Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned order dated 09.07.2021, passed by learned Additional District Judge, West-Islamabad, whereby appeal filed by the petitioner against order dated 16.01.2021, was dismissed.
2. Brief facts of the case are that the son of the petitioner, while husband of respondent No.3, namely Muhammad Abrar was serving as teacher in Federal Education department at Islamabad, who died on 07.06.2017, during his service.
3. The petitioner applied for the succession certificate in respect of death/amounts which are, pensions, gratuity, benevolent fund, insurance, provident fund and Prime Minister Assistance Package. Thereafter, certificate was accordingly granted to the petitioner Hafiz Muhammad Yaqoob (father) and Mst. Bibi Tahira (widow) / respondent No.3 dated 24.04.2018.
4. Respondent No.3 submitted an application for revocation of succession certificate which has been accepted and the same was revoked on 21.12.2019.
5. The petitioner preferred an appeal against order dated 21.12.2019 which was set aside by learned Appellate Court/respondent Court to decide the matter "after giving opportunity to the parties, properly adjudicate upon the share of party regarding the service benefit of deceased in accordance with the definition of "Tarka" that which of the service benefit constitute "Tarka" and which is out of its domain in order to determine the entitlement of parties as per shares."
6. Learned trial Court / Respondent No.8 upon the directions, passed an order dated 16.01.2021, partially allowed the revocation application filed by the respondent No.3, wherein it is stated that "the instant application is partially allowed in the manner that the legal heirs of the deceased are entitle to get fresh succession certificate on the basis of surety already submitted before the Court with the direction to the department to distribute the service benefits as per law."
7. Being aggrieved, the petitioner filed an appeal which was also dismissed by the Court Islamabad vide impugned order dated 09.07.2021, hence the instant petition.
8. Learned counsel for the petitioner, inter alia, contends that son of the petitioner was federal government employee and died during service on 07.06.2017; the petitioner applied for the payment of amount of inheritance of his share against G.P. Fund, Group Insurance, Provident Fund, Benevolent Fund and Prime Minister Assistance Package But both the learned lower courts have dismissed the petition on the ground that the petitioner being father of the deceased was not entitled and respondent No.3 being widow of deceased was only entitled for release of the inheritance amount, hence the amount was released in favor of respondent No.3; both the impugned orders are illegal and unjustified, and not sustainable in the eyes of law, hence are liable to be set-aside.
9. Conversely, learned counsel for respondents has vehemently opposed the law respondent No.3/widow of the deceased servant is entitled to receive the amount of inheritance share and all benefits; impugned orders have been passed in accordance with law, and prayed for dismissal of instant writ petition.
10. Arguments advanced by learned counsel for the petitioner and learned counsel for the respondents have been heard and record has been perused with their able assistance.
11. Husband of respondent No.3, Mst. Bibi Tahira was serving as Ex-TGT, BPS-16, Islamabad Model College for Boys, Bharakahu (FA) Islamabad who expired on 07.06.2017 during his service. He left respondent No.3/widow and father/petitioner as legal heirs as per succession certificate.
12. After the death of son of the petitioner, respondent department has given service benefits i.e. Benevolent Fund grant, Lump-sum grant, plot payment etc. to respondent No.3 being widow.
Learned Civil Judge issued was revoked on 21.12.2019; the petitioner filed an appeal against order dated 21.12.2019, whereby learned ADJ, West-Islamabad vide judgment dated 11.11.2020, remanded back the case to learned trial Court with the direction to decide upon the shares of parties regarding the service benefits of the deceased in accordance with the definition of "Tarka" but learned trial court did not decide the controversy whereas disposed of the petition vide order dated 16.01.2021. The petitioner filed an appeal which was dismissed by the Court of learned ADJ, West-Islamabad vide impugned order dated 09.07.2021 and declared that benefit given by the department to respondent No.3 / Bibi Tahira falls within the ambit of non-tarka and decided the matter in favor of respondent No.3.
13. The term "Tarka" is defined in the landmark judgment of the august Supreme Court in the case titled as Federal Government of Pakistan v. Public at Large, PLD 1991 SC 731, the relevant portion of the same is reproduced herein below: In the aforementioned judgment, it is held that Tarka is the grant / benefit for which an employee shall be entitled / can claim during his lifetime / period of service. And the non-tarka are the benefits which have not accrued to the employee while he was alive or in service but accrue or become payable to him after his demise/service, for which nominated legal heirs of employee become entitled after his death. The same position of law is reiterated in the following judgments of various High Courts:
(i) Mst. Rabia Qavi v. Mst. Hina Qavi Khan, PLD 2020 Sindh 263: "Tarka', is a 'financial benefit' over and regarding which a deceased during his life time is not only authorized but also entitled to withdraw or get such financial benefits from the employer.
All other 'financial benefits' which yet to mature or the deceased cannot get it during his life time do not form part of a 'Tarka'."
(ii) Muhammad Javed & another v. Mst. Roshan Jahan & 2 others, PLD 2019 Sindh 1: "21. The upshot of the above discussion, to reiterate, is that whatever benefits an employee can claim from its employer during his life time are to be treated as part of "Tarka" and being inheritable, are to be distributed amongst the legal heirs only according to shariah. And at the same time, the benefits which an employee is not entitled to claim from the employer during his lifetime and are to be matured on his/her death, are not part of the "Tarka" and can be handed over to a nominee, if there is any...."
(iii) Sher Ali v. Director General Pakistan Rangers, PLD 2019 Lahore 474: "4. In terms of the law enunciated in Federal Government of Pakistan v. Public-at-Large PLD 1991 SC 731, it is clear that only such benefits are inheritable that become receivable by the deceased during his lifetime, i.e. payable to employee before his death. And such service benefits, as given by an employer as grant/compensation, in lieu of death of an employee and made payable to a nominee or family as defined under the relevant rules and regulations - such grant or compensation, by its very nature, is not heritable and cannot be treated as Tarka estate of the deceased. In these circumstances, the service benefits claimed cannot be treated as heritable, being a grant/compensation accrued after the death of deceased employee."
(iv) In the matter of: Succession of the Assets, Securities, Properties & Accounts of Late Javed Iqbal Ghaznavi, PLD 2010 Karachi 153: "12. Thus any financial benefit which an employee can claim from his employer in his lifetime and have also become payable in his lifetime is to be treated as an absolute right of the employee and if any benefit or any part of it remain unpaid during his lifetime when the same becomes heritable and is to be distributed amongst all his heirs. However, a service benefit, which has not fallen due to an employee in the lifetime of an employee and being a grant or concession on the part of the employer, then whatever amount that become payable after the death of the employee is to be distributed only to those members of his family who are entitled for the same as per rules and regulations of service...."
"13. Thus benefits such as special retirement benefits, special, compensation group insurance under term insurance policy and group insurance under provident fund policy benefits definable as grant and concession on the part of employee and payabale after the death of the employee cannot be treated as heritable by all heirs of the employee but are to be distributed to those who are entitled to it under the rules and regulation of service provided by the employer...."
14. Pension Rules, 2018 while dealing the matter of Gratuity & Family Pension, provide that same will be given to the wife or wives, in case of a male Government servant; servant; children of the Government servant; widow or widows and children of a deceased son of the Government servant and similarly family pension is also liable to be paid to widow of the deceased Government servant (in present case).
15. As far as Prime Minister Assistance Package is concerned, the same also provides that pension, accommodation, employment, education, health, plot of land, house building advance etc. of the employee who die in service are paid to the spouse or children as defined in the said package but in all the aforementioned provisions, father of the deceased employee is not held entitled to receive the amount which are not falling within the definition of tarka. Reliance is placed on the case titled as "Mst. Parveen Khalid v. Pakistan Institute of Medical Sciences (PIMS), Islamabad through Executive Director & 4 others", 2021 YLR Note 109 [Islamabad] wherein similar controversy was adjudicated and the relevant part of it reads as under: "13. Thus, in the light of the opinion of the Hon'ble Shariat Appellate Bench, the fund and grants announced by the employer to be paid after the death of employee during service to compensate the untimely death of the employee, is a prerogative and discretion of the employer to nominate the person from his family to receive such compensation."
"14. The principle laid down by the Hon'ble Shariat Appellate Bench in Federal Government of Pakistan v. Public-at-Large (PLD 1991 SC 731) is on all force applicable to Prime Minister Assistance Package as it is a relief package announced with the intention to provide financial support to bereaved family in the shape of a grant according to the basic scales of the employee."
"16. For what has been discussed above and in the light of above cited judgments of superior courts, I am of the view that the grant under PM Assistance Package, 2015 is not a tarka and the petitioner / widow of the deceased Khalid Pervaiz is the only beneficiary of the lump sum grant and the amount, in lieu of plot, as clarified vide O.M. dated 25.09.2020, and parents of the deceased government employee are not entitled for the same. The petition is allowed, accordingly."
16. There are concurrent findings of both the learned Courts below against the petitioner. In case of concurrent findings of the learned Courts below, scope of the constitutional petition becomes very limited. The petitioner has failed to point out any misreading or non-reading of the evidence. It has been laid down in a case titled as Syed Arif Ali Sabri Vs. Abdul Samad through L.Rs. and 2 others, 2008 YLR 2309 that: "When there are concurrent findings of Courts below, the scope of the constitutional petition for interference is very limited and it can only be interfered when the orders of the Courts below are fanciful or based on misreading or non-reading of the evidence".
The same view has also been taken in cases titled as Sadruddin Vs. Aslam Madad Ali and others, PLD 2008 Karachi 2005 & Khuda Baksh Vs. Muhammad Sharif and another, 1974 SCMR 279.
17. The High Court while issuing a writ of certiorari acts in exercise of supervisory, not appellate, jurisdiction. The High Court in exercise of its writ jurisdiction will not review the findings of facts reached by the inferior Court or a tribunal. Reliance may be made to the following case laws:
(i) Amjad Khan Vs. Muhammad Irshad (Deceased) through LRs, 2020 SCMR 2155
(ii) President All Pakistan Women Association, Peshawar Cantt Vs. Muhammad Akbar Awan and others, 2020 SCMR 260
(iii) Jurist Foundation through Chairman Vs. Federal Government through Secretary, Ministry of Defence and others, PLD 2020 SC 1,
(iv) Chief Executive MEPCO and others Vs. Muhammad Fazil and others, 2019 SCMR 919
(v) Chairman, NAB Vs. Muhammad Usman and others, PLD 2018 SC 28
(vi) Shajar Islam Vs. Muhammad Siddique and 2 others, PLD 2007 SC 45.
18. Learned counsel for the petitioner has not made any submissions on the point as to how the concurrent orders passed by both the learned Courts below are not in consonance with law or without jurisdiction or in excess of jurisdiction.
19. In view of the above, instant writ petition is dismissed being meritless.