MUHAMMAD AMEER BHA TTI, J.---- A question concerning the distribution of movable assets/ debts, left by late Imtiaz Ullah Khan, Headmaster in BPS-17 , breathing his last during service on 10.10.2014, is involved in this case wherein the learned trial Court declared that such assets, mentioned hereunder , were exclusively the widow/petitioner's entitlement in terms of the principles enunciated by the judgm ent of Hon'ble Supreme Court reported as Federal Government of Pakistan v . Public at large and others (PLD 1991 Supreme Court 731):-
1. Gratuity Rs.13,41,286/-
2. General Provident Fund Rs.5,36,071/-
3. Benevolent Fund per month Rs.3000/-
4. Salary for four months Rs. 3,28, 372/-
5. Group Insurance Rs.4,50,000/-
6. Leave Encashment Rs. 5, 40,000/-
7. Financial Aid/Assistance Rs.6,00,000/- Whereas the assets namely:
1. A/C No.23593, NBP, District Mianwali.Rs.1,13,000/-
2. A/C No.000105531 1, UBL, Fahad Plaza, Mianwali.Rs.
3,37,000/- were declared to be distributed among all the legal heirs. However , on appeal the order was modified by the learned first appellate Court in the following terms:- "In view of the above, both above titled appeals are hereby partially accepted and Impugned order dated 15.12.2014 passed by Learned Civil Judge Mianwali is modified in this way that appellants along with remaining legal heirs named above of Muhammad Imtiaz Ullah Khan deceased would inherit in gratuity , GP fund, Group Insurance, benevolent fund and amount in account No.23593 National Bank Mianwali and account No.000105531 1 at in UBL Branch, Fahad Plaza being in nature of "Tarka" left by the deceased and they shall be entitled to collect their share individually subject to furnishing surety bonds equal to their share with one sound local surety in the like amount to the satisfaction of learned trial court. However , Following grants i.e. Salary for four months Rs.328372/-, Leave encashment Rs.540000/- and Financial Aid/Assistance Rs.600000/- shall vest with Mst. Nargis Yasmin being widow of the deceased."
Hence, this revision petition.
2. The learned counsel for the petitioner propounds the proposition that the learned appellate Court erred in law while construing the words `service benefits' as `tarka' inasmuch as all the assets of the deceased so left, cannot be termed as `tarka', and were not liable to be distributed among his legal heirs. It was reiterated that these benefits, being the concession/compens ation, are not encompassed by the heritable benefits. Further , learned counsel urged that the benefits such as Gratuity , G.P. Fund, Group Insurance, Benevolent Fund and family pension being grants and concession on the part of the employer , cannot be characterized as heritable by all the legal heirs of the deceased employee at the end of his service, thus the petitioner being nominee, is exclusively entitled thereto. He solicits countenance from the case law cited as Federal Government of Pakistan v. Public at large and others (PLD 1991 Supreme Court 731), Erum v. Mst. Ameena and 5 others (PLD 2015 Sindh 360), Zaheer Abbas v. Pir Asif and 6 others (2011 PLC (C. S.) 1288), Dr. Nasar Ullah v. Abdul Majeed Soomro and others (2009 PLC (C. S.) 263) and Shabaz Wali Khan and others v. Government of Pakistan, Establishment Division Regional Board Federal Employees ( 2019 PLC (C.S.) 1467 ).
3. On the other hand, learned counsel for the respondents while supporting the decision rendered by the learned first appellate Court maintained that General Provident Fund, leave salary , leave encashment and gratuity , being the deceased's estate, were liable to be distributed among all the legal heirs of the deceased; exclusive of group insurance, financial assistance and benevolent fund. He relied upon Federal Government of Pakistan v. Public at Large (PLD 1991 Supreme Court 731), Mst. Riffat Yasmeen v. Hassan Din and another (2014 CLC 126 Peshawar), Muhammad Javed and another v. Mst. Roshan Jahan and 2 others (PLD 2019 Sindh 1) and Dr. Nasar Ullah v . Abdul Majeed Soomro and others (2009 PLC (C. S.) 263) with a view to vindicate his arguments.
4. I have heard the learned counsel for the parties and gone through record of the case.
5. It is deemed appropriate to analyze the ratio of esteemed judgments tendered by both the parties, for ready reference, so as to reach the irresistible conclusion that the test to determine any service benefit as heritable by and for considering it as `tarka' for all his legal heirs, is invariably availability thereof to the concerned employee during his service or on/after retirement. All other benefits allowed by the A employer out of his discretion, even to be paid during his lifetime or on the eve of his retirement or on his death, will be regarded as a grant or concession, to the exclusion of `tarka'. The Hon'ble Supreme Court in a judgment reported as PLD 1991 Supreme Court 731 , which was unanimously relied upon by both the learned counsel in this regard, has already determined the criterion in order to declare it as `tarka'. The relevant part of the celebrated principle handed down by the august court reads as under:- {{URDU TEXT}} It was further observed:- {{URDU TEXT}} Consequently , the august Court construed that the Benevolent Fund, G.P. Fund and Gratuity is beyond the sphere of `tarka' barring Group Insurance.
6. In 2009 PLC (C.S.) 263, supra , also relied upon by both the parties, Pension, Gratuity , Group Insurance and financial assistance/aid. were declared as "not inheritable." In 2009 PLC (C. S.) 263 the view expressed after discussing the relevant rules and case-law , is as follows:- "In view of above cited provision of law and the above discussion, pension cannot be distributed among the respondents in any way. Being brothers and sisters respondents are totally exclude d to receive the pension due to survival of the husband of the deceased, who is appellant and is exclusively entitled to receive pension. The respondents do not fall in any category of persons as prescribed by West Pakistan Civil Servants Pension Rules, 1963 for receiving pension of deceased".
Further at page 272 of the cited pronouncement, it was observed as under:- "Like pension, gratuity cannot be distributed among the respondents. The above mentioned rules exclude the respondents from receiving share of gratuity due to survival of the husband of deceased. The appellant being surviving husband of the deceased Government servant is exclusively entitled to receive the gratuity whereas respondents being brothers and sisters of deceased are not entitled to receive gratuity . Nothing on record shows any status or any other degree of relati onship of the respondents with deceased which may bring them within requisite category of persons eligible for receiving gratuity as laid down in above mentioned rules.
The Group Insurance is also not the "Tarka" of the deceased and to that extent the reliance is placed on Fatima Bi case reported in 1999 YLR 759 at relevant paras 6 and 9".
However , the amount of financial assistance was exempted from the definition of `T arka'.
7. In the case cited as PLD 2019 Sindh 1 supra , by the learned counsel for the respond ents, the peculiar facts although are distinguishable, in that, the nominee therein was an adopted daughter and the issue of nomination was governed by employer-bank's Regulations and not the Civil Servants Pension Rules, 1963, but Group Insurance was held to be not falling within the purview of l'arka' in the said case.
Likewise, in the case-law reported in 2014 CLC 126, supra , also relied upon by the learned couns el for the respondents, this Court at Page-128 held as under .- "The record reveals that the trial Court while amending/reviving the order has held that G.P. Fund, leave salary , leave encashment and gratuity being in nature of tarka, shall go to the legal heirs of the deceased while group insurance, financial assistance and benevolent fund do not fall within the ambit of tarka, being just grant and the grantee is empowered to distribute the same as per the Rules and Regulations of Service or any provision of law.
The order dated 22.09.201 1 is in accordance with law in field and dictum of the apex Court. In the famous case of Government of Pakistan v. Public-at-large reported as PLD 1991 SC 731, the word 'tarka' has been defined explicitly along with the benevolent fund, group insurance etc."
8. From all the case-law cited by the learned counsel for the respondents, it trans pires that Benevolent Fund and Group Insurance cannot be distributed among brothers and sisters of the deceased. The petitioner , being surviving wife of the deceased government servant, thus, excludes the respondents for the grant of Benevolent Fund and Group Insurance. The principles laid down in the judgments cited as PLD 2015 Sindh 360 and 2019 PLC (C.S.)
1467 supra, by learned counsel for the petitioner , also significantly reinforced the akin view .
It would not be wide of the mark to menti on that in latter reported case i.e. 2019 PLC (C.S.) 1467 , this Court held, at Page-1474 vide paras 13 and 16, as under:- "13. It is clear and evident that gratuity is also in the nature of a -compensation/grant, which becomes payable after the incidence of death. Therefore, in wake of the principle discussed in Federal Government of Pakistan v.
Public-At-Large (PLD 1991 SC 731), and lately followed in Re: Succession of the Assets Securities, Properties and Accounts of late Javed Iqbal Ghaznavi (PLD 2010 Karachi 153) and Zaheer Abbas v. Pir Asif and 6 others (2011 CLC 1528 ) and Liaquat Ali v. Mst. Huma Faiz and anot her (PLD 2018 Sindh 251) claim of gratuity is not heritable--T arka. The judgments referred by learned counsel for the petitioner and relevant to the controversy involved are mentioned and discussed."
16. In the circumstances, the claims in respect of gratuity , Benevolent Fund, Group Insurance and House Rent Allowance were rightly declined and no declaration to treat/construe said claims as Tarka--heritable--can be made in view of the law laid down in Federal Government of Pakistan v. Public-at-Large (PLD 1991 SC 731) and the judgments referred and discussed above."
I am, therefore, fortified by the view expre ssed by this Court in respect of gratuity . Even otherwise, the fact remains that Rules 4.7 and 4.10 of West Pakista n Civil Servants Pension Rules, 1963, permit only wife and children of deceased civil servant to receive pension and gratuity as such.
9. As far as the case-law relied upon by the learned counsel for the petitioner in Mst. Ameeran Khatoon v. Mst.
Shamim Akhtar and others (2005 SCMR 512) is concerned, suffice it to observe that facts and circumstances of that case are distinct altogether from the present one inasmuch as in that case the nominee was mother of the deceased instead of widow , thus the same is not applicable to the one in hand. In addition thereto, in "Succession of the Assets Securities, Properties and Accounts date Javed Iqbal Ghaznavi (PLD 2010 Karachi 153), it was held:- "9. In the case reported in 2005 SCMR 512 the Division Bench of the honourable Supreme Court while recognizing the principle laid down by the five member bench of the Shariat Appellate Bench of the Supreme Court in the case of Federal Government of Pakistan v. Public-at-Large reported in PLD 1991 Supreme Court 731, mistakenly interpreted it conversely which appears to be typographical error as service benefits granted towards Benevolent Fund or Group Insurance were not treated as heritable benefits in terms of the principle laid down in PLD 1991 Supreme Court 731."
10. To sum-up, the celebrated principles contemplated in the judgment cited as 2011 PLC (C.S.) 1288 , supra, relied upon by the learned counsel for the petitioner , aptly provide an effective answer to the proposition under consideration. The fundamental principle articulated in the said judgment flows from the basic landmark judgment reported as PLD 1991 SC 731 , as under:- "Whether an employee dies while in service or dies after retirement, in both the situations there can be an occasion where he may not have received certain service benefit from his employer that had already become due for payment in his lifetime. Such unpaid service benefits shall invariably become part of the estate of the deceased employee and are to be distributed among all his heirs according to the personal law of the deceased employee. It matters not whether any of those service benefits fall under any of the two categori es of benefits defined by Shariat Appellate Bench of the Hon'ble Supreme Court in PLD 1991 SC 731. The reason being that any of the two categories of service benefit upon their becoming due for payment in the lifetime of an employee but remained unpaid to him becomes part of his inher itance and thus inheritable by all his heirs according to their respective share in the estate left by the deceased . However , the service benefits that have accrued i.e. become due for payment after the death of the deceased employee need to be first classified on the basis of interpretation given in the case reported in PLD 1991 SC 731. If a service benefit is definable unde r the category of a 'grant' or `concession' on the part of the employer and have accrued for payment after the death of the employee, then the same cannot be treated as part of the estate of the deceased employee. They can only to be paid to such persons who are made beneficiaries of such grant or concession under the rules and regulations of service or under any law. Any heir of the deceased employee, not being beneficiary of such grant or concession cannot claim any share in such benefits merely because he is also an heir of the deceased employee.
The upshot of the above discussion is that any service benefit which an employee can claim from his employer in his lifetime and have also become payable to him in his lifetime but for any reason remained unpaid then to such extent only would become part of his estate and become heritable by all his heirs according to their respective shares. However , a service benefit, which has not fallen due to a deceased employee in his lifetime and is of a nature definable as a grant or concession on the part of the employer , then whatever amount that becomes payable after the death of the employee under such benefit is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service or under any provision of law. It is the discretion of the employer to make rules and regulations in relation to any grant or concession that an employer intends to give to an employee or after employee's death to any member of his family ."
11. While concurring with and following the views expressed in the above-noted verdicts, any further comments by this court is not called for; therefore, it is held that the benefits accrued on end of service or after death of a person, as in the present case, Gratuity , Group Insurance, Benevolent Fund and General Provident Fund, being a grant/concession/compensation, cannot be regarded as hereditary in nature nor can be interpreted to mean `tarka'.
Resultantly , this revision petition is allowed ; the impugned order of the learned first appellate Court is partly set- aside and modified to the extent that the petitioner shall also be entitled to receive Gratuity , GP fund, Group Insurance and Benevolent Fund.