2024 P L C (C.S.) 107
[Balochistan High Court]
Before Zaheer- ud-Din Kakar and Gul Hassan Tareen, JJ
Mst. MALALA BIBI
Versus
INSPECTOR GENERAL OF POLICE, BALOCHISTAN, QUETTA and another
C.P. No.1537 of 2022, decided on 27th March, 2023.
(a) Balochistan Civil Servants' and Employees' Benefits and Death Compensation
Policy, 2020---
----S. 4 ---Constitution of Pakistan, Art. 199---Constitutional petition ---Payment of benefits
and death compensation ---Scope ---Petitioner claimed benefits under the Balochistan Civil
Servants' and Employees' Benefits and Death Compensation Policy, 2020, as her husband
had died during service ---Validity ---Policy provides a compensation package to the families
of civil servants and employees who die or are injured as a result of terrorist activities, as well as death compensation approved by the Government of Balochistan to the family of a deceased civil servant ---It also offers one -time financial assistance to the bereaved family of
a Government of Balochistan employee who dies during service due to natural causes ---
Policy is prospective in nature, meaning it does not apply retrospectively---Provisions of the policy do not indicate that it has been given a retrospective effect ---Petitioner's husband
passed away on June 2, 2020, while the policy was promulgated on August 11, 2020--- Since
the policy was not in effect when the petitioner's husband died, it cannot be applied retrospectively to cover cases of individuals who died prior to August 11, 2020---As no right had accrued to the petitioner at the time of her husband's death, she was not an 'aggrieved person' under Art. 199(1)(a)(i) of the Constitution---Constitutional petition was dismissed, in circumstances.
(b) Notification ---
----It is a proposition in jurisprudence and the principle of interpreting a notification and/or an executive order that they operate prospectively and not retrospectively.
Government of Pakistan through Secretary Establishment Division, Islamabad v.
Muhammad Ismail and another 2021 SCMR 1246 rel.
Hushwani Hotels Limited v. Federation of Pakistan and others PLD 1997 SC 315 ref.
Syed Ayaz Zahoor for Petitioner.
Changaiz Dashti, State Counsel for Respondents.
Date of hearing: 14th March, 2023.
JUDGMENT
GUL HASSAN TAREEN, J. ----Through the instant writ petition, filed under Article
199, the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"), the
petitioner seeks as under:
"a) declaring that the husband of the petitioner namely Amanullah (Ex- DSP) being
victim of Covid- 19 while rendering his services entitled for the compensation as per
Death Compensation Policy, 2020, whereas refusal by the respondent is an act which is totally without lawful authority and jurisdiction and of no legal consequences;
b) declaring that the letter dated 01.03.2022 is not applicable in the case of the
petitioner, therefore, the same be declared as of no legal effect against the husband of
the petitioner;
c) further declaring that the act of the respondents in issuance of letter dated 01.03.2022 is not only illegal, improper but is totally contrary to the provisions of Death Compensation Policy, 2020 which has been approved by the cabinet thus the letter dated 01.03.2022 be declared as void and of no legal consequences;
d) further directing the respondents to release the compensation as per Death Compensation Policy, 2020 in favour of the petitioner being widow of deceased (Shaheed) Amanullah Kakar Ex- DSP;
e) any other order which deems fit and proper in the circumstances of the case may also
be awarded in favour of the petitioner, in the interest of justice, fairplay and equity."
2. Petitioner's counsel Syed Ayaz Zahoor, Advocate contended that the husband of the
petitioner was died on 02 June, 2020 during service due to Covid- 19 vide Medico Legal
Department, Sandeman (Prov:) Hospital Certificate dated 04 June, 2020, therefore, his name was included in the list of "Shuhada ", by the Government of Balochistan. As such, the petitioner was entitled to receive compensation package under the Balochistan Civil Servants' and Employees Benefits and Death Compensation Policy, 2020 ("Policy") @ Rs. 5 million as cash compensation and Rs. 5 million for a plot of land. He next contended that the letter dated 01 March, 2022, whereby amount of compensation was curtailed to only rupees one million from rupees 10 million, was issued in violation of the Policy; as such, is liable to be declared illegal. Finally, the learned counsel contended that the petitioner was discriminated in violation of Articles 4 and 25, the Constitution for, widow of D.S.P., Mushtaq Ali died during Covid- 19, has been accorded compensation amounting to Rs. 10
million vide letter No. 4459- 62 (191)/F dated 31 Jan, 2022.
3. Mr. Changaiz Dashti, learned State Counsel relied upon the para wise comments of
the respondent Nos. 1 and 2 and contended that the Policy applies to those civil servants who dies or injured while in service as a result of terrorist activity. He next contended that the widow of D.S.P. Mushtaq Ali was awarded cash compensation amounting to Rs.10,000,000/ -
for, her husband was declared as Shaheed due to his posting at Sheikh Zaid Hospital, Quetta,
whereas the petitioner's husband, at the time of death, was not performing any duty in
relation to Covid -19.
4. Heard learned counsel for the parties at length and gone through the record of the
case.
5. The petitioner has filed this petition on the strength of the provisions of the Policy.
The Policy allows compensation package to the families of civil servants and employees who dies or injured while in service as a result of terrorist activities and death compensation approved by the Government of Balochistan to the family of a deceased civil servant on his death during service. The Policy also allows one- time financial assistance package to the
bereaved family of an employee of Government of Balochistan, who dies during service, due to natural death. The Policy was promulgated on 11 August, 2020 vide Notification No. S.O. FD (R -II)/VII- II/2020/344- 443 dated 11 August, 2020. The term (1)(3) of the Policy reads as
under:
"It shall come into force at once."
The Policy is prospective in nature. The provisions/terms of the Policy do not indicate
that the Policy has been given a 'retrospective effect'. The husband of the petitioner was died on 02 June, 2020, whereas the Policy was promulgated on 11 August, 2020. When the
husband of the petitioner died, the Policy was not in field; therefore, it cannot be given a
retrospective effect to cover cases of all those who died prior to 11 August, 2020. It is a settled proposition of the jurisprudence and principle of interpretation of a notification and or an executive order that the same operates prospectively and not retrospectively. Reliance is
placed on the case of Hushwani Hotels Limited v. Federation of Pakistan and others, reported in PLD 1997 SC 315. On the same subject, the Supreme Court of Pakistan in the case reported as Government of Pakistan through Secretary Establishment Division, Islamabad v. Muhammad Ismail and another (2021 SCMR 1246) has held as under:
"6. It is an admitted fact that respondent's father died in the year 1995 while he was in regular service of Accountant General Khyber Pakhtunkhwa being Senior Auditor. At that time, there was no scheme/policy in field for induction of family member of deceased civil servant in service. It was on 13.06.2006 when the Government of Pakistan issued 'Assistance Package for Families of Government Employees who die in service', to be made effective from 01.07.2005, wherein employment for posts in BS-01 to BS -I5 on two years contract without advertisement for the families of
deceased servant was surfaced. Thereafter, this package was amended thrice i.e. on 20.10.2014, 04.12.2015 and lastly on 09.09.2016 whereby the two years contract period was enhanced to 5 years and the same was also made extendable till the age of superannuation or regularization. We have perused the Assistance Package and the subsequent amendments but could not find any provision therein which gives it retrospective effect especially when the g rievance of respondent was agitated with a
lapse of almost 17 years. It is an established principle of interpretation of statutes / notifications / executive / administrative orders that they would operate prospectively unless they expressly provide for retrospective operation. This Court in the case of Hashwani Hotels Ltd. v. Federation of Pakistan (PLD 1997 SC 315) has
acknowledged this fact by observing that "it is a well -settled principle of
interpretation of a notification and/or an executive order that the same can operate
prospectively and not retrospectively. This principle is equally applicable to a statute in the absence of any express or implied intendment contrary to it. In this view of the matter, when it is clear that afore- referred Assistance Package for legal heirs of
deceased government employee was not available at the time when deceased
employee died and the same was issued later on with prospective effect, the
respondent was not deprived of any right accrued to him at the relevant time by not appointing him. The learned High Court has erroneously presumed that statute or rule, which gives right to the citizens, always operates retrospectively. If this is accepted, it would tantamount to opening a floodgate for all other similarly placed persons."
Since, no right was accrued to the petitioner at the death of her husband; therefore, the
petitioner is not an 'aggrieved person' under Article 199 (1)(a)(i), the Constitution.
6. The petitioner's counsel emphasized that the petitioner was discriminated for, widow
of D.S.P. Ch. Mushtaq Ali, was accorded cash compensation amounting to rupees ten million vide order dated 31 January, 2022 and referred to Article 25, the Constitution. Since, the petitioner's husband died prior to promulgation of the Policy and no cause of action accrued to the petitioner to file this writ petition; as such, ground of discrimination does not arise at all when the petitioner has not furnished the date of the death of the deceased D.S.P. Ch. Mushtaq Ali.
For aforementioned discussion, we are not inclined to allow this petition which fails
and is dismissed.
SA/107/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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