WRIT PETITION UNDER ARTICLE 199 OF THE
CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN
Respectfully Sheweth :
The Petitioner above-named prefers the captioned Writ Petition in the backdrop of the following facts :–
F A C T S
That since the facts relating to the Petitioner hereinbelow are necessary for adjudication of present Petition as also the questions of law arising therefrom as well as the grievance of the Petitioner, and the facts narrated hereinbelow have been confined only to those as would comprehensively assist this Honourable Court in just decision of the instant Petition.
That the Petitioner is a responsible and respectable citizen of Pakistan and has been guaranteed Fundamental Rights as contained in Chapter 1 of Part II of the Constitution of the Islamic Republic of Pakistan and the Petitioner is also entitled to be dealt in accordance with law and due process of law for equal treatment, enjoyment and protection of all such Fundamental Rights.
That the Petitioner is retired from public service as the Deputy Registrar, Federal Shariat Court, Islamabad, with effect from 05-12-2014 vide Notification No. F.11(31)/2014-Admn:FSC, dated 05-12-2014 (Annex-A).
That it is submitted that being an officer working in a constitutional body funded and paid from the Federal Consolidated Fund, the terms and conditions of service of the Petitioner were regulated under the provisions of the Civil Servants Act, 1973 (Act No. LXXI of 1973) and rules, regulations, instructions, etc., made or issued thereunder from time to time except the extension of jurisdiction of the Federal Service Tribunal under the provisions of the Service Tribunals Act, 1973 (Act No. LXX of 1973), being an officer of the judicial establishment.
That being an officer drawing salary from public exchequer under the Federal Government, there was a regular deduction of Group Insurance contribution, at different rates, from time to time, from the salary of the Petitioner under the provisions of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969) and the Federal Employees Benevolent Fund and Group Insurance Rules, 1972, thereunder and a copy of Payment Advice/Slip (Annex-B) is for perusal of the Honourable Court.
That Chapter IV of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969), hereinafter referred to as the “said Act” read with provisions of the Federal Employees Benevolent Fund and Group Insurance Rules, 1972, hereinafter referred to as the “said Rules” as amended from time to time, deals with payment of premia by every employee towards the Insurance Fund and payment of the sum assured.
That under section 19 of the said Act provided for payment of sum assured to the members of family of the employee on his in-service death.
That the Government of Balochistan issued Notification No. PAB/Legis: V(10)/2009, dated 03-11-2009 (Annex-C), whereby the assured person after retirement on maturity of the life insurance policy paid the assured sum but the Petitioner is deprived of from such benefit which is highly discriminatory and in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan.
That, however, if the employee survives till his superannuation the Federal Government represented through the Respondents keep the entire amount paid as premium towards Group Insurance and even not making payment of actually amount deducted as a contribution towards Group Insurance Fund and such practice is highly exploitative being in violation of Article 3 as well as violative of Fundamental Rights as guaranteed in Articles 2A, 9, 18, 23, 25 and the Principles of Policy as contained in Articles 31, 35, 37 and 38 of the Constitution of the Islamic Republic of Pakistan.
That there are similar Group Insurance Schemes introduced by the State Life Insurance Corporation of Pakistan (SLICP) as well as other Insurance Companies working in private sector but all such companies are making payment of all amounts alongwith interest after the retirement of the insured employees of the institutions where there is no in-service death of the employee but the Respondent No. 1 and 2 are not even refunding the actual/original amounts paid towards Group Insurance during service by the employees of the Federal Government.
That in this way the provisions of section 19 of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969), as well as relevant provisions of the said Rules made thereunder are highly exploitative, discriminatory and in violation of Articles 2A, 9, 18, 23 and 25 as well as the Principles of Policy as contained in Articles 31, 35, 37 and 38 of the Constitution of the Islamic Republic of Pakistan and being as such are liable to be declared void upto the extent of non-payment of assured sums to superannuated or surviving employees who are not paid such contributed amounts including the Petitioner.
That in the light of above-said facts and circumstances, the Petitioner is left with no other option for protection of his Fundamental Rights except to approach this Honourable Court on, inter alia, the following grounds :–
G R O U N D S
That the Petitioner is a citizen of Pakistan and is guaranteed Fundamental Rights as contained in Chapter 1 of Part II of the Constitution of the Islamic Republic of Pakistan as well as the Petitioner is entitled for equal protection of law for his Fundamental Rights and from exploitation as provided in Article 3 of the Constitution read with Articles 2A and Articles 31, 35, 37 and 38 of the Constitution of the Islamic Republic of Pakistan.
That Article 8 of the Constitution of the Islamic Republic of Pakistan provides as under :–
“8. Laws inconsistent with or in derogation of Fundamental Rights to be void.– (1) Any law, or any custom or usage having the force of law, in so far as it is inconsistent with the rights conferred by this Chapter, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights so conferred and any law made in contravention of this clause shall, to the extent of such contravention, be void.”.
That Chapter IV of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969), is as under :–
“CHAPTER IV
GROUP INSURANCE
Insurance of employees.– Subject to the provisions of this Act and the rules, in the event of the death of an employee, occurring by whatsoever cause, during the continuance of his employment, the Board shall pay to the family of the deceased employee a sum [as may be prescribed].
Arrangements with Insurance Company, etc.– The Board may from time to time arrange for the insurance of the life of the employees in sums [as may be prescribed] with such insurance company or other insurer and for such period as it deems fit, and where any such arrangement subsists, the liability to pay the said specified sums shall directly devolve upon the insurance company or other insurer.
Federal Employees Insurance Fund.–
(1) There shall be established a fund to be called the [Federal Employees Insurance Fund] which shall vest in and be held and administered by the Board.
(2) All sums received from the employees as premia for the group insurance of the employees and any interest or profit accruing thereon shall be credited to the Insurance Fund.
(3) The moneys credited to the Insurance Fund shall be kept in such bank as may be prescribed.
(4) All [payments made under section 15, the] expenses on any arrangement entered into by the [Board] with any insurance company or other insurer as provided for in section 16 and all expenses on the administration of the Insurance Fund shall be defrayed from the Insurance Fund.
(5) Any sums remaining in the Insurance Fund after defraying the expenses referred to in sub-section (4) may be utilized for such purposes connected with the benefit of the [employees, including retired employees, and their families] as the Board may direct.
- Payment of premia.– (1) Every employee shall be liable to pay to the Insurance Fund such sum of money as may be prescribed as premium for the insurance of his life as provided for in this Chapter and the amount of such premium shall as far as possible be deducted at the source from his pay and credited or remitted to the Insurance Fund.
(2) Where the amount of premium cannot for any reason be deducted from the pay of the employee, the employee shall remit to the prescribed officer the sum of premium payable by him, and any premia remaining unpaid due to inadvertence or negligence of the employee or otherwise shall be recoverable from him in such manner as may be prescribed.
(3) Default in the payment of premia either for the reason that the pay of the employee was not drawn or due to his negligence or fault or for any other reason whatsoever shall not affect the right of his family to receive the sum assured in the event of the death of the employee, but the premium remaining unpaid at the time of his death may be recovered from the assured amount.
Payment of the sum assured.– (1) On the death of an employee, the sum assured shall be paid to such member or members of his family as he might have nominated in accordance with the rules in full or in the shares specified by him at the time of making the nomination.
(2)Where no valid nomination made by the employee subsists at the time of his death, the sum assured shall be paid to such member or members of his family, subject to such conditions imposed with a view to ensuring that the sum is justly and equitably utilized for the maintenance and benefit of all the members of the family, as may be prescribed or may, consistently with the rules, be determined by the Board or an officer authorized by the Board in that behalf.”.
In this way, sub-section (1) of section 19 of the said Act to the extent of depriving the person from the refund of accumulated assured sums contributed towards Group Insurance Fund alongwith interest earned or accrued thereon during the period of subscription/contribution, after his retirement/ superannuation is highly exploitative and violation of Article 3 as well as Article 19 of the Constitution and is liable to be declared as void ab initio.
That it is relevant that all Insurance Companies pay the assured sum of the Policy-holder either on the maturity of Insurance Policy or on the death of the assured person to his descendants. However, due to exploitative provisions of section 19 of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969), as well as relevant provisions of the said Rules made thereunder the Petitioner is deprived of from such benefit on his retirement/superannuation.
That the Government of Balochistan issued Notification No. PAB/Legis: V(10)/2009, dated 03-11-2009 (Annex-C), whereby the assured person after retirement on maturity of the life insurance policy paid the assured sum but the Petitioner is deprived of from such benefit which is highly discriminatory and in violation of Article 25 of the Constitution of the Islamic Republic of Pakistan.
That similarly, the Balochistan High Court, Quetta, also paid such assured amount of Group Insurance after retirement of his staff members and case Mr. Faiz Rasool, Deputy Registrar (Retired), etc., is quite pertinent in this regard and copy of relevant Letter No. 12/ACCOUNT-2010, dated 04-01-2010 (Annex-D) is for perusal of this Honourable Court and the Petitioner is also entitled for similar benefit on his retirement.
That the Honourable Supreme Court of Pakistan has expounded basic principles for eradication of discrimination in its different judgments, however, the principles expounded in judgment cited as 2001 SCMR 1161 [Mst. Attiya Bibi Khan Federation of Pakistan] are as und“Equal protection of law and equal treatment before law under Article 25 of the Constitution of the Islamic Republic of Pakistan provides the following principles with regard to equality of citizens :
That equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike;
that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis;
that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons accused of heinous crimes;
that no standard of universal application to test responsibilities of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances;
that a law applying to one person or one class of persons may be Constitutionally valid if there is sufficient basis or reason for it, but a classification which is arbitrary and is not founded on any rational basis is no classification as to warrant its exclusion from the mischief of Article 25;
that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed;
that in order to make a classification reasonable, it should be based_
on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out;
that the differentia must have rational nexus to the object sought to be achieved by such classification. – [Note M – Page 1183]
Judgments cited as 1997 SCMR 1026 [Muhammad Shabbir Ahmed Nasir v. Secretary, Finance Division, Islamabad], 1997 SCMR 1043 [Mushtaq Ahmad Mohal v. Honourable Lahore High Court] and 1991 SCMR 1041 [I. A. Sherwani v. Government of Pakistan] are also relevant in this regard.
That the Honourable Supreme Court of Pakistan has also held in Judgments titled Hameed Akhtar Niazi The Secretary, Establishment Division and Others [1996 SCMR 1185], Abdul Samad v. Federation of Pakistan [2002 SCMR 71], Managing Director, Sui Southern Gas Company Limited, Karachi v. Ghulam Abbas [2003 PLC (C.S.) 796], Ikram Bari v. National Bank of Pakistan [2005 SCMR 100] that benefit of a Judgment on the same issue be extended to other persons who are similarly placed and who may not be parties to the litigation instead of compelling them to approach the Courts or Tribunals and the Petitioner is also deserving the similar treatment by this Honourable Court.
That the Petitioner will submit further GROUNDS at the time of hearing of the Petition, if so necessary or deemed fit, relying upon the relevant judgments of the Honourable Apex Court and other Courts of law on the issue under consideration in the instant Petition.
That in the light of above-said submissions, there is no other alternate, efficacious, adequate and speedy remedy available to the Petitioner being an ordinary citizen of Pakistan except to seek the indulgence of this Honourable Court by invoking extraordinary constitutional jurisdiction in the matter and for issuance of appropriate writs to ensure rule of law and due process of law to protect the legitimate rights of the Petitioner.
P R A Y E R
In view of the above, it is respectfully prayed that appropriate writs may graciously be issued to the following effect :–
That provisions of sub-section (1) of section 19 of the Federal Employees Benevolent Fund and Group Insurance Act, 1969 (Act No. II of 1969), upto the extent of depriving the Petitioner from the refund of accumulated assured sums contributed towards Group Insurance Fund along with interest earned or accrued thereon during the period of subscription/contribution, after his retirement/ superannuation, is highly exploitative and violation of Article 3 as well as Articles 9, 18, 23 and 25 and the Principles of Policy as contained in Articles 31, 35, 37 and 38 of the Constitution of the Islamic Republic of Pakistan, and being as such be declared unconstitutional, ultra vires, exploitative and void ab initio or after the commencement of the Constitution.
That the Respondent No. 1 and 2 be directed to refund accumulated assured sums contributed towards Group Insurance Fund along with interest earned or accrued thereon during the period of subscription/contribution till retirement/superannuation of the Petitioner, being his own amounts/sums contributed towards Group Insurance Fund during his service.
That cost of this constrained litigation through this Writ Petition for protection of constitutional rights of the Petitioner may also be awarded.
Any other favourable relief may also graciously be granted to the Petitioner as may be deemed just and proper in the facts and circumstances of the case.