' KHADIM HUSSAIN M. SHAIKH, J.--- The brief facts of the case are that the petitioner being Government servant is subscriber of monthly G.P. Fund deduction, which is deposited in G.P. Fund Account No,HDHL-8057, as per G.P. Fund Rules, 1938. On the application of the petitioner, the Secretary Health Department, Government of Sindh, Health accorded sanction of 40% non- refundable G.P. Fund advance of Rs,30,884, vide office order No, SOCI-(H)I/93 dated 10-2-2007, in favour of the petitioner, but the respondents have refused to make the payment of the said amount of Rs,30,884 to the petitioner, who then issued notice dated 9-4-2007 to the respondents which was replied by the respondent No,2 on 12-4-2007, assigning the reasons for such refusal and thereafter petitioner has filed the present petition with the following prayers: "(a) That this Honourable Court may be pleased to declare that the respondents are bound under the law to pass the pay bill of nonrefundable G.P. Fund advance of petitioner of Rs,30,884 sanctioned by the Secretary Health, Government of Sindh and are bound to issue authority, letter for the encashment of the amount.
(b) This Honourable Court may be pleased to declare that the reply of notice dated 12-4-2007 given by the respondent No,2 assigning reason for refusal to pass the pay bill of the petitioner G.P.
Fund Advance is illegal and without lawful authority and is of no legal effect.
(c) That this Honourable Court may be pleased to issue appropriate writ directing the respondents to process the petitioner's case for the withdrawal of non-refundable G.P. Fund advance of Rs,30,884 as sanctioned by the Secretary Health Government of Sindh and issue authority letter and pass the pay bill.
(d) That the heavy cost/damage may be imposed upon the respondents.
(e) Any other relief either in alternative or in additions as deemed fit by this Honourable Court may also be granted."
2. On the notice, the respondents have filed their parawise comments, stating therein that prior to this, the petitioner was allowed G.P. Fund advance of Rs,40,000 vide order SO-II-C-11(H)I-61/93 dated 4-8-2000, which was refundable in 36 equal installments, but the petitioner failed to pay any instalment. Subsequently the petitioner was allowed 40% non-refundable G.P. Fund advance of Rs,54,339 vide order No,SO-II-C-III(H)A-23/91 dated 19-7-2005. It is further the case of the respondents that the petitioner, who was not entitled to second nonrefundable G.P. Fund advance, by concealing the fact of earlier above advances of G.P. Fund, taken by him, succeeded in getting order dated 10-2-2007, from the Secretary Health, Government of Sindh, and that the petition is not maintainable.
3. We have heard the petitioner in person and Mr. Allah Bachayo Soomro, learned Additional Advocate General Sindh, for the respondents. We have also gone through the material placed on record by the parties.
4. The petitioner has mainly contended that Secretary Government of Sindh, Health Department has issued order dated 10-2-2007 whereby 40% non-refundable G.P. Fund advance of Rs,30,884 has been allowed to the petitioner, but the respondents have refused, though per petitioner they are bound to make the said payment to him.
5. On the other hand, Mr. Allah Bachayo Soomro, learned Additional Advocate-General Sindh has contended that as per rules and policy framed for payment of non-refundable G.P. Fund advance, the petitioner, who is now aged about 44 years, has already been benefited with 40% non- refundable G.P. Fund advance, and such an advance for second time could not be allowed to the petitioner and that the refundable G.P. Fund advance of Rs,40,000 having already been taken by the petitioner, is still outstanding against the petitioner as he has failed to pay any installment out of 36 installments thereof. Learned A.A.-G has further contended that the petitioner by misrepresentation and concealing the fact of earlier G.P. Fund advances taken by him illegally got order dated 10-2-2007 from the Secretary Health Department, which fact was detected on verification of the record regarding earlier payments etc made to the petitioner in the office of the respondents when the process for making of G.P. Fund advance was started on the basis of order dated 10-2-2007 and accordingly the case of the petitioner was returned to the Secretary Health Department Karachi vide letter No,GP-Fund/521 dated 29-8-2007.
6. G.P. Fund advance is regulated under the G.P. Fund Rules, 1938. The rule relating to non- refundable G.P. Fund advance was amended vide Notification No,FD/B&E/2(18)/75-94(P-VII), dated 15-10-2002, issued by Government of Sindh, Finance Department, which reads as under:--- ' Amendment.
' The rule 14(a)(2) shall be read as under:-- "A subscriber, who has attained the age of forty years, forty five years, and fifty years may without assigning any reason, draw a non-refundable advance to the extent indicated below the amount standing at this credit in the Fund:- Attained the age of Extent of non-Refundable Advance.
(a) Forty years Forty percent (b)Forty Five years Fifty percent (c)Fifty years Sixty percent
7. Admittedly the petitioner has already availed the facility of 40% non-refundable G.P. Fund advance of Rs,54,339 according to his age, as per criteria provided under the above amended rule ibid and there is no provision provided for allowing such facility second time to the petitioner.
8. The contention of learned A.A.-G. That the petitioner had got order dated 10-2-2007 from the Secretary Health Department Government of Sindh by concealing the fact of earlier G.P. Fund advances, taken by him carries weight. It is also important to observe that in the instant petition, the petitioner has not disclosed the entire facts as revealed by the respondents.
9. In view of the above, it may be observed that the order dated 10-2-2007 of the Secretary Health Department being misconceived, having been based on no rule or policy is patently ab initio void order, which could certainly be ruled out of the consideration. The contention of the petitioner that the respondents are bound to make the payment of the above amount to him on the basis of order dated 10-2-2007 of the Secretary Health Department notwithstanding it is an illegal order, is not at all tenable.
10. Since the petitioner had failed to point out any provision whereby he can claim the second payment of non-refundable G.P. Fund, per his present age, therefore, his petition was dismissed vide short order dated 5-3-2009, as not maintainable and these are the reasons for the same.