2013 M L D 1835

[Lahore]

Before Shahid Waheed, J

Dr. ZAHRA HASSAN---Petitioner

Versus

GOVERNMENT OF PUNJAB through Secretary Health and 2 others---Respondents

Writ Petition No.9956 of 2007, heard on 13th March, 2013.

(a) Constitution of Pakistan---

----Arts. 25 & 199---Constitutional petition---Death during service of Senior Demonstrator,

Pharmacology Department of a Medical College---Refusal of Health Department to grant
financial benefits to widow of deceased civil servant in pursuance of Finance Department's
Letter No. FD.SR.1/3-10/2004, dated 10-11-2004---Department's plea was that petitioner's
husband had died before issuance of said notification, thus, she was not entitled to get benefit
thereof---Validity---Government had issued such notification in order to provide umbrellas
cover to all families of civil servants, who expired during service---Such notification for being
beneficial would be applicable with retrospective effect---Record showed that Government had
extended benefit of said notification to widow of another Doctor, who had also died before its
issuance---According to Art.25 of the Constitution, all citizens for being equal would be entitled
to equal protection of law---Duty of public servants or department would be to help and not to
thwart grant to people of their rights---Approval of Chief Minister for grant of benefits under
such notification was not necessary---Case of petitioner and that of widow of such another
Doctor was at par, thus, refusal of department to grant same benefits to petitioner was violative
of Art. 25 of the Constitution---High Court set aside impugned order and directed department to
pay financial benefits to petitioner in pursuance of such notification within specified time.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others
1992 SCMR 1652; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999
SC 1026; Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD
2001 SC 340 and Government of Pakistan v. Messrs Village Development Organization 2005
SCMR 492 rel.

(b) Notification---

----Applicability of---Scope---All notifications would apply prospectively and not retrospectively

except beneficial notification conferring certain rights could be interpreted to apply
retrospectively.

Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others
1992 SCMR 1652; Federation of Pakistan and others v. Shaukat Ali Mian and others PLD 1999
SC 1026; Anoud Power Generation Limited and others v. Federation of Pakistan and others PLD
2001 SC 340 and Government of Pakistan v. Messrs Village Development Organization 2005
SCMR 492 rel.

Muhammad Aurangzeb for Petitioner.

Shahid Mubeen, Addl. A.G. and Ijaz Farrukh, Senior Law Officer, Health Department for
Respondents.

Date of hearing: 13th March, 2013.

JUDGMENT

SHAHID WAHEED, J.---Petitioner, Dr. Zahra Hassan widow of Dr. Sibt-e-Hassan, ex-
Senior Demonstrator BS-18, Pharmacology Department, Punjab Medical College, Faisalabad has
filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973
seeking direction to the respondents for grant of following financial benefits:

(a) Payment of four months salary (last pay drawn and allowances) in addition to other
benefits in pursuance of Finance Department's letter No. FD.1/3-2/99 dated 1-7-2002.

(b) Sanction of financial assistance to the tune of Rs.800,000 (Eight hundred thousand only)
in pursuance of Finance Department's Letter No. FD.SR.1/3-10/2004 dated 10-11-2004 in
addition to other benefits admissible under the rules.

2. Briefly the facts of the case are that Dr. Sibt-e-Hassan, ex-Senior Demonstrator, Punjab
Medical College, Faisalabad died on 29-8-2004 and his obituary notification was issued on
18-1-2005. The Secretary Health, Government of the Punjab vide order No. SO (South)
910/R/85 dated 23-4-2005 accorded sanction to the grant of 180 days leave encashment in
respect of Dr. Sibt-e-Hassan under Revised Leave Rules, 1981. The petitioner being widow of
Dr. Sibt-e-Hassan moved an application for grant of financial benefits in terms of Finance
Department's Letter No. F.D.1/3-3/99 dated 1-7-2002 ("Notification, 2002") and Finance
Department's Letter No. F.D.SR.1/3-10/2004 dated 10-11-2004 ("Notification, 2004"). In
response to above said application, the Health Department, Government of the Punjab vide
Letter No. SO(South) 910/R/85 dated 7-7-2005 asked the Principal, Punjab Medical College,
Faisalabad to provide the Succession Certificate and No Marriage Certificate in respect of the
petitioner. The Principal, Punjab Medical College, Faisalabad vide Letter No. PT/705/10837/
PMC/2005 dated 30-7-2005 supplied the afore-stated documents to the Secretary Health,
Government of the Punjab; and, thereafter vide Letter No. PT/705/2844/PMC/2006 dated 21-2-
2006 requested the Secretary Health for the sanction of financial benefits to the petitioner. The
Health Department, Government of the Punjab, vide Letter No.SO (South) 910/R/85 dated 20-5-
2006 informed the petitioner that her request for grant of financial assistance under Notification,
2004 was considered and rejected as Dr. Sibt-e-Hassan was died on 28-9-2004 while
Notification, 2004 was issued on 10-11-2004. In these circumstances, the petitioner firstly on 23-
6-2006 by relying upon the precedent of Order No. SO(AMI)2-59/86 dated 29-1-2005 whereby
widow of Dr. Altaf Hussain, (late), Assistant Professor of Physiology, Punjab Medical College,
Faisalabad was granted financial assistance, moved an application before the Chief Minister,
Government of the Punjab and requested for the grant of financial assistance under Notification,
2004; and, secondly, through proper channel filed an application dated 28-6-2006 for grant of
financial benefit, that is, four months salary (last pay drawn and allowances) under Notification,
2002. The second application was recommended by the Principal, Punjab Medical College,
Faisalabad vide Endorsement No. PT-705/9072/PMC/06 dated 3-7-2006 and forwarded to the
Secretary Health for necessary sanction. The petitioner on 31-7-2007 also sent reminder/
application to the Secretary Health for grant of benefits under Notification, 2002 but all in vain.
Being aggrieved, the petitioner has filed the instant petition.

3. In response to notice issued by this Court, the Health Department, Government of the
Punjab, has filed report and para-wise comments wherein it has been stated that Government of
the Punjab vide order dated 29-8-2007 has issued sanction for grant of four months salary as per
Notification, 2002 to the petitioner. However, with regard to financial benefit under Notification,
2004 it was stated that the same was available to family members of a civil servant who died on
or after 10-11-2004. It was also explained that case of Dr. Altaf Hussain was distinguishable as
he during service suffered Neuro disease and due to which his case for invalidation was in
pipeline; in the meantime he died on 11-10-2004; and, therefore, the case being already in
process was sent to Chief Minister for approval for grant of financial assistance and accordingly
it was sanctioned vide order dated 29-1-2005.

4. After perusing report and para-wise comments, this Court vide order dated 6-6-2008
directed the departmental representative, who was present in court, to submit the case of the
petitioner before the Chief Minister in line with the case of Dr. Altaf Hussain because the
petitioner's grievance seemed to be justified. The case was adjourned for the decision on the
summary to be submitted by the department before the Chief Minister. The respondent
department did not comply with the above said order and resultantly the petitioner filed contempt
petition (i.e. Crl. Org. 772-W/2010) before this Court wherein notice was issued to the Secretary
Health. Pursuant to the notice issued in above stated contempt petition, a summary containing
proposal for not applying Notification, 2004 with retrospective effect was put up before the
Chief Minister and the same was accordingly approved. The petitioner was informed about the
decision of the Chief Minister vide letter No. SO (South) 910/R/85 dated 12-1-2011. Consequent
upon the decision of the Chief Minister, the petitioner filed an application under Order VI, Rule
17, C.P.C. (i.e. C.M. No. 1 of 2011) before this Court seeking permission to amend the
petition and to challenge the validity of letter dated 12-1-2011. This application was allowed
vide order dated 18-5-2011. Thereafter, vide order dated 5-7-2012 the respondents were directed
to produce the relevant record of Dr. Sibt-e-Hassan and Dr. Altaf Hussain. In compliance with
orders dated 5-7-2012 and 16-11-2012 the respondents submitted additional reply and placed
on record a copy of summary put up before the Chief Minister.

5. The perusal of record, available in this file, and the summary submitted to the Chief
Minister reveals that the Health Department, Government of the Punjab has sanctioned: (i) vide
order No. SO (South) 910/R/85 dated 23-4-2005 180 days leave encashment in respect of Dr.
Sibt-e-Hassan under Revised Leave Rules, 1981; and, (ii) in pursuance of Notification 2002 four
months salary (last pay drawn and allowances) vide Order No. SO (North)910/R/85 dated 29-8-
2007 in favour of the petitioner. Confronted with above said two orders, the learned counsel for
the petitioner has submitted that although the Health Department, Government of the Punjab has
sanctioned the financial benefits under Notification, 2002 yet the payment has not so far been
made. In reply thereto the learned Addl. Advocate General, Punjab assisted by Mr. Ejaz Farrukh,
Senior Law Officer, Health Department, has submitted that the payment under the above said
two orders would be made to the petitioner. Thus, the issue to the extent of grant of benefits
under Notification, 2002 stands settled.

6. Now, sole point which requires determination by this Court is as to whether the petitioner
may claim financial benefits under Notification, 2004. It is the case of the petitioner that the
respondents have already been extended facility of Notification, 2004 to the family of Dr. Altaf
Hussain (late), Assistant Professor of Physiology, Punjab Medical College, Faisalabad, who died
on 11-10-2004 and, therefore, she is also entitled to get the benefit of Notification, 2004.
Conversely learned Additional Advocate General has canvassed that Notification, 2004 cannot
be applied retrospectively as husband of the petitioner had died on 29-8-2004 i.e. before
issuance of above said notification. I am afraid the contention canvassed by the learned Addl.
A.G. has no force. The recital of Notification, 2004 unfolds that it was issued because
Government of Punjab felt need to provide umbrella cover to all families of civil servants who
expire during service so that they may meet the financial problems that crop up after the death of
earning hand. This notification is indeed a beneficial notification. It is well settled principle of
law that all notifications are applied prospectively and not retrospectively but beneficial
notification which seeks to confer certain rights can only be interpreted to apply retrospectively.
This principle was recognized by the Hon'ble Supreme Court of Pakistan in case of Messrs Army
Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others (1992 SCMR 1652)
wherein it was held as follows:--

"It seems to be well-settled proposition of law that a notification which purports to impair
an existing or vested right or imposes a new liability or obligation, cannot operate retrospectively
in the absence of legal sanction, but the converse i.e. a notification which confers benefit cannot
operate retrospectively, does not seem to be correct proposition of law".

The aforesaid judgment was followed by Full Bench of the apex Court in the case of Federation
of Pakistan and others v. Shaukat Ali Mian and others (PLD 1999 SC 1026) and relevant extract
thereof reads as under:--

"Reference may also be made to the case of Messrs Army Welfare Sugar Mills Limited
and others v. Federation of Pakistan and others 1992 SCMR 1652, in which it has been held that
a notification adversely affecting the right of any person cannot operate retrospectively but if the
same confers any benefit, it can be made applicable retrospectively."

Thereafter the Hon'ble Supreme Court in the case of Anoud Power Generation Limited and
others v. Federation of Pakistan and others (PLD 2001 SC 340) held as follows:--

"At this juncture another important aspect of the retrospectivity of notification may also
be noted that if the notification has been used for the benefit of the subject then it can be made
operative retrospectively but if its operation is to the disadvantage of a party who is the subject
of the notification then it would operate prospectively."

The aforesaid view was reiterated by the Hon'ble Supreme Court of Pakistan in the case of
Government of Pakistan v. Messrs Village Development Organization (2005 SCMR 492). In
view of above stated principle laid down by the Hon'ble Supreme Court of Pakistan, the
Notification, 2004 can be applied to the case of Dr. Sibt-e-Hassan and the financial assistance
thereunder can be extended to the petitioner.

7. There is yet another angle to address the question of applicability of Notification, 2004 to
the case of the petitioner. The petitioner for getting the benefits of Notification, 2004 has
invoked fundamental right guaranteed under Article 25 of the Constitution of Islamic Republic
of Pakistan, 1973 which contemplates that all citizens are equal before law and are entitled to
equal protection of law. Learned counsel for the petitioner has contended that both Dr. Sibt-e-
Hassan and Dr. Altaf Hussain died before the issuance of Notification, 2004; date of death of
Dr. Sibt-e-Hassan and Dr. Altaf Hussain is 29-8-2004 and 11-10-2004 respectively whereas date
of issuance of Notification, 2004 is 10-11-2004; and, the government has extended benefit of
Notification, 2004 to Dr. Altaf Hussain but denied to Dr. Sibt-e-Hassan which is discriminatory.
Conversely, the learned Addl. Advocate General by making reference to the report and parawsie
comments submitted that Dr. Altaf Hussain during service suffered Neuro disease and due to
which his case for invalidation was in pipeline; in the meantime he died on 11-10-2004; and,
therefore the case being already in process was sent to the Chief Minister for approval for grant
of financial assistance which was sanctioned vide order dated 29-1-2005. The record does not
bear out the contention canvassed by the learned Addl. Advocate General. The Secretary Health
in his additional reply (compliance report) has stated that "original file of the case of Dr. Altaf
Hussain is not available as it was sent to the Central Record Room of S & GAD along with other
weeding files at the time of clearance of encroachments from the corridors of the Health
Department's building and the same has not been traced back from the Central Record Room of
S&GAD. Therefore, approval of the then Chief Minister on the case could not be traced out
despite best efforts to locate the file". Thereafter, the Secretary Health on the basis of
"institutional memory" submitted summary to the Chief Minister for rejecting the petitioner's
application for grant of financial benefits under Notification, 2004. This shows that the Health
Department firstly made an attempt to mislead this Court by concealing or mis-stating the facts;
and, secondly pulled the wool over the eyes of the Chief Minister by stating incorrect facts in the
summary. This conduct cannot be appreciated on any canon of morality and justice. This indeed
constitutes misfeasance and malfeasance. The public servants or departments should help and not
to thwart the grant to the people of their rights. The facts stated in the report and para wise
comments, additional reply (compliance report) and summary for Chief Minister stand negated
from the contents of Order No. SO(AMI) 2-59/86 dated 29-1-2005 whereby financial benefits in
terms of Notification 2004 were extended to the widow of Dr. Altaf Hussain. Order dated 29-1-
2005 reads as under:--

"Sanction is hereby accorded to the grant of financial assistance to the tune of

Rs.8,00,000 in respect of widow of Dr. Altaf Hussain (Late), Assistant Professor of Physiology,
Punjab Medical College, Faisalabad who died on 11-10-2004 during his service, in pursuance of
Finance Department's letter No. FD.SR.1/3-10/2004 dated 10-11-2004, in addition to other
benefits admissible to his family under the rules.
 2. Expenditure involved will be met out of the existing budget grant of Punjab Medical
College, Faisalabad."

8. The examination of above said order shows that neither a summary was submitted to the
Chief Minister nor he passed any order for the grant of financial benefit under Notification, 2004
to the widow of Dr.Altaf Hussain. Had the Chief Minister passed any order, then this fact, as was
done in the case of the petitioner vide letter No.SO.(SOUTH) 910/R/85 dated 12-1-2011, should
have been mentioned in the order. Moreover, as per contents of Notification, 2004 the approval
of Chief Minister is not required for the grant of financial benefits to the family of a civil servant
who dies during service. Thus, the respondents have failed to bring on record any fact on the
basis of which the case of Dr. Altaf Hussain, may be distinguished. In fact the case of the
petitioner and that of the widow of Dr. Altaf Hussain are at par and, therefore, impugned Letter
No. SO (SOUTH) 910/R/85 dated 12-1-2011 being violative of Article 25 of the Constitution of
Islamic Republic of Pakistan, 1973 is not sustainable in the eye of law and the Constitution.

9. In view of above, this petition is allowed; letter No. SO (South) 910/R/85 dated 12-1-
2011 issued by the Health Department, Government of the Punjab is set aside and declared to
have been passed without lawful authority and of no legal effect; and respondents are directed to
make payment of financial assistance to the petitioner in pursuance of Finance Department's
Letter No. FD.1/3-2/99 dated 1-7-2002 and Finance Department's Letter No. FD.SR.1/3-10/2004
dated 10-11-2004 within a period of two weeks from receipt of certified copy of this order.

SAK/Z-8/L Petition accepted.