IJAZ ANW AR, J.----This writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has been filed by Mst. Farzana Iftikhar , petitioner herein, with the following prayer:- "It is respectfully prayed that by acceptance of this petition, the respondents be directed to extend the benefit of Assistance Package dated 20.12.2018 to the petitioner .
Any other order/remedy , appropriate in circumstances of the case, may also be graciously granted".
2. In essence, petitioner is widow of Iftikh ar Ahmad, who died on 17.05.2017 while serving as Additional Director , Overseas Pakistanis Foundation. After the death of the her husband, petitioner filed representation before the respondent-Foundation qua grant of Assistance Package; however , the Board of Governors (BoG) of the respondent Foundation in its meeting held on 20.12.2018 approved the Assistance Package for the employees of the Overseas Pakistanis Foundation (OPF) who died during service w.e.f. 20.12.2018; as such, petitioner and her family were deprived of such package.
3. Keeping in view the averments of the instant writ petition, comments were called from the respondents, who furnished the same accordingly . They , in their comments, strongly opposed the issuance of desired writ, as prayed for by the petitioner .
4. Learned counsel for the petitioner argued that husband of the petitioner died during the course of his service. It was further argued that it was on the repeated representations of the petitioner which found favour with the Board of Governors of the respondent-Foundation and thus vide its decision dated 20.12.2018, approved the Assistance Package for the officer cadre of OPF, who died during service, the same was made applicable w.e.f. 20.12.2018 and thus, petitioner and her family were deprived of such package.
5. On the other hand, learned DAG appearing on behalf of the Federation stated that the respondent-Foundation is a non-statutory organization and registered under the Companies Ordinance, 1984, as such, no writ can be issued against it. He further argued that the Assistance Package was approved long after the death of the husband of the petitioner and it cannot be given retrospective effect. In this regard he placed reliance on cases titled, "Tanvir lqbal Siddiqi v. The Principal, Overseas Pakistanis' Foundation (OPF), Girls College, Islamabad (1994 SCMR 958), Maqsood Ahmed Toor and 4 others v. Federation of Pakistan through the Secretary to the Government of Pakistan, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928) and unreported judgments of the Hon'ble Islamabad High Court relating to the employees of OPF passed in W.P. No.592 of 2011 decided on 19.01.2012 and W.P. No.3847 of 2009 decided on 21.04.201 1.
6. Arguments heard and record perused.
7. The following two main points are involved in the instant case. i. Exercise of writ Jurisdiction against OPF; and ii. Retrospectivity of the approved Assistance Package.
8. In order to determine the first point/question, this Court finds that OPF was established by the Federal Government under Rule 2(gg) of the Emigration Rules, 1979 to be managed by Board of Governors nominated by the Federal Government. In order to know about the objectives of the. OPF for which it has been established, we may refer to the Memorandum of Association, which provides its objectives as below:- "III. The objectives for which the Foundation is established are:
(1) To advance the social welfare of the Pakistanis working overseas and their families in Pakistan by identifying their problems and by contributions to their solutions.
(2) To establish, maintain or aid vocational training institutions for providing training in such trades as are in demand overseas.
(3) To establish housing societies, colonies, townships for overseas workers and their families in Pakistan and Azad Jammu and Kashmir .
(4) To give scholarships, stipends or grants to the children of workers for studies in the field of technology , science, art and management, in Pakistan and Azad Jammu and Kashmir and overseas.
(5) To establish, manage or give grants to run educational/religious institutions including alternative methods of learning, in Pakistan and Azad Jammu and Kashmir and overseas for the children of overseas workers.
(6) To give grants to Pakistani workers, societies, associations, community centres, mosques, libraries established overseas for welfare, educational and religious activities,, and for the organization of services, seminars, conferences and national day events.
(7) To open offices and establish branches for conducting the operations of the Foundation in any part of Pakistan and Azad Jammu and Kashmir and overseas.
(8) To establish or manage or to invest in commercial, industrial or service enterprises.
(9) To purchase, effect, hire, take on lease and accept land from the Government by way of grant, exchange or otherwise acquire land, buildings, easement rights of any movable or immovable properties.
(10) To manage, sell, improve, develop, lease, mortgage, dispose off or otherw ise deal with all or any of the property of the Foundation.
(11) To collect and edit material for and undertake printing and publishing of pamphlets, reports, journals, periodicals, dailies, or other works of publications.
(12) T o invest the money of the Foundation in such manner as may from time to time be determined.
(13) To receive welfare fund created under the Emigration Ordinance, 1979, read with Rules, framed thereunder and other grants from the Government generate, raise and collect funds, but no funds, whatsoever , shall be disbursed for donation to or for benefit of any political party directly or indirectly .
(14) To receive and manage the custodianship of securities from the Bureau of Emigration deposited with them under the Emigration Ordinance, 1979, and rules thereunder and reimbursement of promoters.
(15) T o apply and appropriate the funds generated and collected under the preceding clauses.
(16) To make policies, rules and regulations and do all acts, deeds and things required, incidental or necessary for the management of the Foundation.
(17) Without prejudice to the above, the Foundation may undertake any other activity to achieve its objectives as it may deem fit in the circumstances".
9. The source of finance as per the Articles of Association is consist of:-
(a) W elfare Fund created under Emigration Ordinance, 1979 and rules made thereunder:
(b) Funds generated through operations of the Foundation;
(c) Any other source.
10. The Members of Board of Governors shall not be less than seven but not exceeding nineteen. Similarly , all Governors shall be appointed by the Federal Government. In view of the functions and appointments of the BoG, it clearly follows that the main functions of the OPF is to strive for the social welfare of the citizens of Pakistan, working overseas and their families in Pakistan.
11. The above details regarding the objectives for which the OPF has been established clearly show that these are the sovereign acts of the Federation duly entrusted to the Foundation. As per the mandate of Article 199 of the Constitution of Islamic Republic of Pakis tan, 1973, a writ can be issued against a person performing within the territorial jurisdiction of the Court, functions in connection with the affairs of the Federation, Province or a Local Authority . In accordance with Sub-Article (5) of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, "person" has been defined as, "person" includes any body politic or corporate, any authority of or under the control of the Federal Government or of a Provincial Government, and any Court or tribunal, other than the Supreme Court, a High Court or a Court or tribunal established under a law relating to the Armed Forces of Pakistan".
12. In the case of "Salah-ud-Din and 02 others v. Frontier Sugar Mills and Distillery Ltd. and 10 others (PLD 1975 SC 244) ", a certain test has been provided for the determination of question whether functions of a body can be considered to be functions of a person within the meaning of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 referred for the convenience of the Court as below:- "The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government: and whether the bulk of the funds is provided by the State. If these, conditions are fulfilled, then the person, including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the af fairs of the Federation or a Province; otherwise not".
13. The parent statute of the OPF is the Emigration Rules, 1979, Rule 2(gg) defines OPF as follows:- "Overseas Pakistanis Foundation" means the Foundation set up by the Federal Government to be managed by a Board of Governors comprising of the Minister in charge of the affairs of the emigrants and such other members as that Government may from time to time nominate."
14. Rule 26 of the ibid Rules, being very relevant and important, is reproduced as under:
26. Establishment of W elfare Fund.
(1) There shall be established a W elfare Fund to which the following amounts shall be credited, namely;
(i) Two thousand rupees paid by each emigrant and credited to the W elfare Fund.
(ii) Interest accrued on the amount of security deposited by the Overseas Employment Promoters;
(iii) Contributions and donations that may be made by the public, corporate bodies companies, welfare associations, societies and banks; and any other source.
(2) The Welfare Fund shall vest in the Overseas Pakistanis Foundation which shall control the said Fund and may invest money and incur expenditure there from on;
(a) the social welfare of the emigrants and their families in Pakistan and abroad by identifying their problems and contributing to their solutions;
(b) the establishment and maintenance of, or giving of assistance to, vocational training institutions providing training in such trades as are in demand overseas;
(c) the establishment of housing societies, colonies and townships for the emigrants and their families in Pakistan;
(d) the giving of scholarships, stipends or grants to the children of the emigrants for studies in the fields of science, technology , art and management in Pakistan and abroad;
(e) the establishment, management and giving of grants to educational or religious institutions in Pakistan and abroad in which the children of the emigrants study;
(f) the giving of grants to emigrant's societies and associations for the establishment of community centres, libraries and mosques and for organizing seminars and conferences in connection with events of national importance;
(g) the opening of offices and branches of the Overseas Pakistanis Foundation in any part of Pakistan and abroad for the convenience of emigrants;
(h) the establishment and management of, or investment in commercial, industrial or service enterprises.
(i) The purchasing or taking on hire of any such, land, building or other prop erty as may be necessary for the purposes of the W elfare Fund;
(j) The management, improvement and development of the property of the Overseas Pakistanis Foundation.
(k) the collection and editing of material for, and under-taking the work of, printing and publishing of pamphlets, reports, journals, periodicals, dailies or other such works which may be necessary in the interest of the emigrants; and
(I) such other investments, including investments in any commercial, indu strial or other enterprises as may from time to time be determined by the Overseas Pakistanis Foundation.
15. In the above sub-rule (1) of Rule 26, the source of fund for the functions of OPF is provided; while in sub-rule (2), it has specifically been provided that the Welfare Fund shall vest in the OPF which shall control the said Fund and may invest money for the welfare of overseas Pakistanis in the same manner which was given in detail in the Articles of Association, above referred.
16. For the determination of the word person used in Article 199 of the Constitution we may refer to a direct judgment of the point, in the case of "Aitchison College, Lahore through Principal v. Muhammad Zubair and another (PLD 2002 SC 326)", wherein it was held that since the Board of Governors of the Aitchison College, Lahore, is headed by the Governor of the Province as its President and other Members who are also nominated by the Governor and exercising sovereign powers as well as public powers being a statutory functionary of the Government, as such, the Aitchison Colle ge falls within the definition of a 'person'. While, in the case of OPF, it is set up by the Federal Government to be managed by a Board of Governors compr ising of the Minister in charge of the af fairs of the emigrants and such other members as that Government may from time to time nominate.
17. During the course of arguments, much emphasis has been laid upon the judgment passed in the case of "Maqsood Ahmad Toor and 04 others v. Federation of Pakistan through Secretary to the Government of Finance, Ministry of Housing and Works, Islamabad and others (2000 SCMR 928)", however , on perusal of the same, this Court finds . that it was an issue raised by certain Civil Servants against the Federal Government Employees Housing Foundation and it was clearly mentioned that the said Foundation is not performing any functions in connection with the affairs of the Federation or Province or a Local Authority; thus, it is distinguishable. Similarly , the other judgments of the Hon'ble Islamabad High Court are not relevant in the instant case, because, in those cases, the employees were claiming enforcement of certain rights which were declined to them on the ground that OPF has got no statutory rules, as such, same cannot be enforced in writ jurisdiction; while, in the instant case, the matter in hand is from the widow of a deceased employee of the OPF and not claiming any terms and conditions of service, rather the Assistance Package, which was earlier allowed by the Federal Government to it employees and recently adopted by the OPF , has been claimed.
18. In view of the above clear pronounce ments of the august apex Court and particularly regarding the functions entrusted to the Foundation, we hold that the instant writ petition is maintainable and objection, to this effect of the learned DAG, is repelled.
19. Now adverting to the merits of the case and retrospectivity of the Assistance Package to the family of the deceased employee. Admittedly , husband of the petitioner while serving as Additional Director in the respondent- Foundation, died during his service on 17.05.2017. At the relevant time, there was an Assistance Package of the Federal Government for its employees, albeit, in view of its independent status, the said package was not adopted or implemented in the OPF. Interestingly , it was the petitioner who for the first time requested and agitated for the grant of Assistance Package. It also came to light that at the relevant time, such Assistance Package was partially implemented in the OPF and was made permissible only to the non-of ficers. Thus, the matter was placed before the Board of Governors in its meeting held on 27.08.2018, wherein, the matter was placed before the Human Resource Committee, which recommende d the OPF's Assistance Package for the families of the employees, who died during service. Accordingly , the Board of Governors gave its approval in its 148th meeting held on 20.12.2018 and gave a uniform package to all its employees who died during service in any OPF's grade. Though, on the representation of the petitioner , the Assistance Package has been extended to the families of the Officers cadre, albeit, with immediate ef fect, thus the petitioner remained deprived of such Package/benefit.
20. Admittedly , the whole process was initiated upon the request of the petitioner . Though, in the minutes of the meeting of the Board of Governors dated 20.12.2018, the Assistance Package was. made applicable with immediate effect, albeit, such being a beneficial package, as such, it can be given retrospective effect and no hard and fast rules can be applied in denying the same benefit to the petitioner . The Division Bench of this Court in the case of "Akhtar Munir v. Secretary Home and Tribal Affairs, Khyber Pakhtunkhwa, Peshaw ar and 08 others (2016 MLD 999)" has granted similar compensation package on the ground that compensation policy of the Government, being beneficial, shall have retrospective effect for those persons who comes within the scope and benefit provided therein. In exactly similar case titled, Dr. Zahra Hassan v. Government of Punjab through Secretary Health and 02 others (2013 MLD 1835 ), it was held that all notifications which are beneficial in nature could be interpre ted to apply retrospectively .
21. On the principle 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 D i.e. a notification which confers benefit cannot operate retrospectively , does not seem to be correct proposition of law. Reference can be made to cases titled, "Messrs Army Welfare Sugar Mills Ltd. and others v. Federation of Pakistan and others (1992 SCMR 1652 )", "Government of Pakistan through Secretary Ministry of Commerce, Islamabad v.
Messrs Village Development Organization, V. P.O. Landrwan, District Laki Marwa t through General Attorney Sher Adam (2005 SCMR 492)", "Muhammad Ramzan Katiar through Legal Heirs v. Pakistan Refinery Ltd and another (PLD 2013 Sindh 01)" and "Messrs Farooqui Ice Factory , Gambat through Proprietor and 24 others v. Revenue Officer SEPCO (W APDA), Ranipur , District Khairpur and 14 others (PLD 2014 Sindh 443 )".
22. In view of the above, this Court finds that petitioner has made out a case for the interference of this Court.
Accordingly , this writ petition is allowed and we direct the respondents to grant the Assistance Package to the family of late Iftikhar Ahmad, Ex-Additional Director , OPF -in the letter and spirit.