MRS. SYEDA TAHIRA SAFDAR, (MEMBER-II).---The appellant has tiled present appeal raising contention that he has been retired from service w,e,f, 9-3-1977 prematurely being completely incapacitated physically on medical grounds to discharge the duties on account of his poor eyesight. Thus as per notification dated 7-3-1982 he was granted maintenance allowance for ten years uptill 8-3-1987. But thereafter the said allowance was stopped for a period w,e,f, 9-3-1987 to 31-3-1996 without any reason. But afterwards said maintenance allowance was restored w,e,f, 1-4- 1992 in view of amendment carried out in Rules through notification dated 14-1-1992, but this amendment was directed to be applicable in cases which occurs after issuance of said notification. But afterwards another notification was issued on 1-4-1996, wherein it is provided that said amendment is applicable to those invalid Government servants, who have become invalid before 4-1-1992 and whose monthly allowance has been discontinued on completion of ten years.
But the same is applicable with immediate effect, while no dues be given for intervening period. It is his contention that due to the same has been deprived of maintenance allowance for intervening period illegally and unlawfully. Feeling aggrieved of the same he preferred several representations and also tiled appeal, which was rejected through order dated 23-5-1996. This order is impugned before the Tribunal.
2. The appellant has prayed for setting aside of impugned order on grounds that the order is contrary to law and facts. Further both orders dated 14-1-1992 and 1-4-1996 are contradictory to each other, while due to the same his vested rights are effected. Furthermore, respondent No,2 wrongfully refer the case to the Board, as such the opinion of the Board is unlawful and cannot be made ground for rejection of his appeal. Further, as he is still alive, therefore, entitled for the maintenance allowance.
3. Respondents in their joint reply have raised contention that as per Rules the appellant was granted monthly maintenance allowance out of Benevolent Fund for ten years upto 8-3-1987, and after completion of ten years the same has been discontinued. But afterwards on issuance of notification dated 1-4-1996 payment of monthly maintenance allowance was restored w,e,f, 1-4- 1996 to him for lifetime. It is further their contention that as per said notification only those Government servants are entitled for maintenance allowance who have become invalid after issuance of the same. No legal rights of the appellant is effected, nor he is deprived of the same.
The respondents have prayed for dismissal of appeal being baseless.
4. In present case it is an admitted position that the appellant has been retired prematurely from his services on medical grounds being incapacitated physically on account of poor eye sight on 9- 3-1977, about 6 years, 4 months and 14 days earlier to his actual date of retirement. Further as per rules 3 of the Balochistan Government Servants Benevolent Fund, Part-1 (Disbursement) Rules, 1982 Monthly Maintenance Allowance was granted to the appellant for a period of ten years. This period of ten years expired in case of the appellant on 8-3-1987. Thereafter, an amendment was carried out in said Rules through notification dated 14-1-1992. The perusal of the same reveals that clause
(a) of rule 3 of said Rules has been substituted, which reads as under:-- "(a) MONTHLY MAINTENANCE ALLOWANCE. .
' If a Government Servant is invalidated or dies during Service or the death occurs within (10) years after his retirement, he, or his family as the case may be, shall be entitled to a monthly maintenance allowance for life."
' There is also a note attached to it to the effect: "The revised rates and periods will apply to cases where any such became due after issuance of above amendments."
5. Thus in view of the same this amendment only benefited those persons who invalidate or die after issuance of this amendment. While the appellant was invalid and thereby retired before' issuance of the said amendment in 1977. But afterwards another notification was issued on 1-4- 1996 whereby the Government allowed the application of amended Rule on cases of those invalid Government servants who have been declared invalid before 14-1-1992 and whose monthly maintenance allowance was discontinued on completion of (10) years, but no dues will be given for the intervening period during which the monthly maintenance allowance suspend after completion of ten years. This order is further applicable with immediate effect.
6. The appellant is aggrieved of this order to the extent of its application with immediate effect. He claims that a lawful right accrued to him, which cannot be taken away from him and he is entitled for said allowance during the period it remains discontinued. The appellant has also raised objection on referring the matter to Board of Management as S&GAD is by itself competent to look into the matter. ##TE# Though in Rules of Business it is provided that no Department shall, without the concurrence of Services and General Administration Department issue any orders, other than orders in pursuance of any general or special delegation made by S&GAD, which also includes matter relating to interpretation of rules and orders relating to service matters, also any change in the conditions of service or the statutory rights and privileges of Government servants. The mentioned fact does not help the appellant, as the impugned notification is issued by Government of Balochistan, by order of Governor of Balochistan who is very much competent to issue the same.
As far as disposal of application/representation of the appellant made by Board is concerned, as per relevant Rules Board of Management is fully competent. Thus to this extent the contention of the appellant is baseless.
7. It is an admitted position that as per Rules of 1982 Monthly Maintenance Allowance is allowed for period of only ten years to a gazetted Government servant, if he is invalid during the service before retirement or to the widow if member of family dies during service before retirement. In view of the same the appellant received said allowance since 9-3-1977 and after completion of ten years on 9-3-1987 the same has been discontinued. Afterwards the amendment was made in said Rule on 14-1-1992 and rule 3
(a) is substituted whereby said monthly allowance is made allowed for life.
' But it is further provided that this amendment is applicable only those cases where said allowance become due after issuance of the mentioned amendment. Thus in view of the same the case of the appellant was not covered, while he (the appellant) is not benefited with the same. But in addition to the same another notification was issued on 1-4-1996, whereby the amendment was made applicable to the cases of those invalid Government Servants who have been declared invalid before issuance of said amendment i,e, 14-1-1992. Further, no arrears are allowed for intervening period. Thus in view of the same the appellant become entitled for monthly maintenance allowance for life. The appellant feels aggrieved of this-notification to the extent of its application with immediate effect.
8. Though Benevolent Fund cannot be claimed as a matter of right. But as the appellant is an old and also an invalid person, therefore, his case deserve sympathetic consideration. Though the amendment made has prospective effect, which does not cover the case of the appellant but due to further clarification the case of the appellant comes within the perview of said amendment.
Though no dues for intervening period is allowed. But it is not proper rather is unjust to allow the application of said amendment since 1-4-1996, date of issuance of notification, as the delay occurs due to process hold by the authorities. Rather, the same is to be applicable since the date when the amendment took place i,e, 14-1-1992. As the intervening period will be deemed to be the period when provided ten years have been completed till the issuance of said amendment. The remaining period from issuance of amendment till issuance of impugned notification does not come within the perview of intervening period. As such the appellant and other person cannot be deprived of their right accrued to them due to said amendment and notification.
9. Keeping in view abovementioned facts it will be just and proper to accept the appeal to the extent that the impugned order date 23-5-1998 is hereby set aside. The appellant is entitled for Monthly Maintenance Allowance w,e,f, 14-1-1992. The respondents/concerned Authorities are directed to pay dues to the appellant for period w,e,f, 14-1-1992 to 31-3-1996. The Authorities/respondents are directed to take immediate steps, and complete the same within one month, with intimation to this office.
10. Parties are left to bear their own costs. File after completion be consigned to record.