' AKHTAR HASSAN (CHAIRMAN).---The appellant Syed Khushnood Hussain, (Ex-Deputy Headmaster BS-18), H. No,676 behind Rawal Food Products, Peshawar Road, Nasirabad, Rawalpindi Cantt. Was retired from service on medical grounds vide the Notification dated 30-11-1992 (Annexure A). On a technical objection raised by the department, he was reexamined by the Standing Medical Board, Rawalpindi Division, Rawalpindi which again found him in their Certificate dated 1-8-1993 (Annexure B) to belong to Category 'A' meaning thereby that he was "completely and permanently incapacitated for further Government Service "and was consequently granted pension on medical grounds. Because of his permanent invalidment he made an application (Annexure C) to the respondent Board for a monthly grant of Rs,2,300 from the Benevolent Fund, to which he made contributions during his entire service of some 20 years, but unluckily his request was turned down vide their letter dated 23-11-1994 (Annexure D) on the ground that it was not "covered under the existing Instructions/Policy". He made a representation dated 11-12-1994 (Annexure E) to the next higher Authority for reconsidering his claim as he thought that it squarely fell under section 4 of the Punjab Government Servants Benevolent Fund Ordinance, 1960 and that the existing, or for that matter the amended Instruction/Policy dated 14-10-1991, had no relevance to his case. His representation went unresponded and after waiting for 90 days, he brought the instant appeal before the Tribunal.
2. The main ground urged by him in support of the appeal was that his case was covered by section 4 of the Act inasmuch as his invalidment was of category 'A' to which the aforesaid Instructions/Policy dated 14-10-1991, had no application and further that those Instructions had so specifically exempted from their purview an invalid person of category 'A' like him. He submitted that the Board did not keep in view the statutory provisions of section 4 ibid which permitted such grants to all sorts of invalids irrespective of their classification as held in the judgment of this Tribunal dated 25-1-1995 (Annexure F) wherein an invalid civil servant suffering from the same category `A' incapacity, was allowed Rs,1,800 p.m. As grant from the Fund and that on the parity of reasoning, he too could request for a similar grant. Still further, he showed that having no issue to support him in his such a disastrous disease requiring constantly costly treatment, he was perhaps the most deserving case for such assistance all the more when his meagre premature pension did not suffice to make his both ends meet. He sought the grant at the rate of Rs,2,300 p.m. From the date of his retirement, namely, 9-9-1992 till his life.
3. The appeal was opposed by the department in their written objections on the sole ground that the appellants case for monthly grant was not covered by the Invalidation/Policy Benevolent Fund Rules nor was it exempted from purview thereof. As for the judgment dated 25-1-1995 of this Tribunal in Appeal No,608 of 1993 (Annexure F) they indicated that a copy thereof had not been received by them and that in any event it had no application to the appellant's case as the Officei who obtained the judgement, was retired on 1-10-1990, i.e, before amendment of the Invalidation/Policy taking place on 14-10-1991. Lastly, they stated that the appellant representation was "considered and filed by the higher Authority on 11-12-1994".
4. Ch. Munir Ahmad, Advocate Counsel for the appellant heavily relied upon the judgment of the precedent case (Annexure F) which according to him, covered all points raised in the written objections. He emphasised that so for the respondents did not assail it before the Supreme Court and that thereby it had become final for the purposes of applying it to all cases falling under the Punjab Government Servants Benevolent Fund Ordinance, 1960. The learned DA. Had nothing substantial to state against the proposition. The assumption therefore would be that the respondents were not reminded, or may be that they were not advised to further assail it.
Additionally, this was a judgment rendered by one of us (the Chairman) who shall ordinarily be bound by it unless, of course, something tangible was stated against the interpretation of section 4 of the Ordinance as also the Invalidation/Policy made thereunder.
5. It was however convassed that the judgment was distinguishable from the facts of the present case inasmuch as the civil servant there had retired on 1-10-1990. i.e, a year before the amendment in the Invalidation Policy was enforced on 14-10-1991 whereas the present appellant retired on 9-9- 1992, that is much after the aforesaid policy was amended. The contention has no merit, firstly because para. 4 of the Invalidation Policy as per letter dated 14-10-1991 clearly held that it would not apply to the disability of 'A' category i.e, completely and permanently incapacitating the civil servant from further service of any kind. Learned counsel drew attention to the Certificate of the Standing Medical Board (Annexure B) whereby the appellant's disability was declared to be of A- category holding him totally incapacitated for further service of any kind. The argument appeared to be well-placed. Para. 4 of the letter cuts short the respondents argument as it clearly protects invalids of Category 'A'. Further, mention of the servant disease in the letter was some what explanatory having no reference to Category 'A' type of incapacities, which indeed were excluded from its purview. The second argument in the context, and perhaps stronger in import, was the implication of section 4 of the Ordinance. It was discussed in the precedent case in detail and was held to relegate the Invalidation Policy to a secondary position. The section reads as under:-- "4." Utilization of the Fund.---The Fund shall be utilized for--
(ii) giving financial assistance to Government servants invalided out of service.
It would be clear from a perusal of the section that the case of "Government servants invalided out of service" was governed by the statute itself. In other words, it was not left to be determined by the Rules/Policy and even if the rules tried to override this provision, those shall be void on the ground of travelling beyond the main Act. If, therefore, a Medical Board holds any civil servant to be invalid, or to borrow the language from the Section, if a Government Servant is invalided out, he would be so invalided out by the force of section 4 ibid, and not by invoking any subordinate legislation like A Rules/Policy. Moreover, the Section does not admit of any classification or categorisation. The invalidment coming down from the Medical Board, has to be taken as something absolute without subjecting it to this category or that. No exception would be taken to the opinion of the Medical Board held under the main statute on the ground that a subordinate rule provided something to the contrary. In this case the Medical Board held the appellant to be invalid suffering from Category 'A' incapacity under section 4 and the same would make him ipso facto eligible to get grant or assistance from the Benevolent Fund.
6. The learned DA. Raised the same objection as he had earlier raised in the precedent case that the Statutory Board refusing grant under the Ordinance, was not a "Departmental Authority" as contemplated by section 4 of the Punjab Service Tribunals Act, 1974 so as to bring the instant appeal. It I would suffice to reiterate hereto that grants from the Benevolent Fund constituted a vital term or a condition of service. Section 20 of the Punjab Civil Servants Act, 1974 clearly provided so.
Denial of such grant would, therefore, be a breach of the terms and condition of service of a civil servant and he could make a claim. Ubi jus ibi remedium is the principle of law which would enable the appellant to come to this Tribunal. The Board of Management could not be said to be a private body as distinguished from a "Departmental Authority" It is constituted by the Government under section 6 of the Punjab Government Servants Benevolent Fund Ordinance, 1960 for the purposes of "consummation" of the fund in accordance with the rules. Its powers and character clearly suggested that it was a Departmental Authority charged with the duties of administering the fund and hence it was manifestly subject to the incident of the action under the Punjab Service Tribunals Act; 1974.
7. The appeal is allowed. The impugned order is set aside. The appellant is declared entitled as an invalid Government servant to the grant of Rs,2,000 p.m. From the aforesaid Fund from the date, he was declared to be invalid by the Medical Board, namely, 9-9-1992 and shall remain so entitled till his life.
8. The appellant's claim was for Rs,2,300 p.m. But this rate applied to Officer of BS-19. The appellant admittedly retired as an Officer of BS-18 and. Therefore, was entitled to only Rs,2,000 p.m. The relevant Notification, dated 9-9-1990 so provides.