2020 PLP (C (PLC(CS))

AHMAD ALI, J.

Through this single judgment, we intend to decide the following cases, having identical facts and law point involved therein:

1. Writ Petition No.2308-P/2018 Taj Muhammad and others v. Government of Pakistan and others

2. Writ Petition No.4364-P/2017 Muhammad Abdul Haseeb Sadiq v. National Bank of Pakistan and others

3. Writ Petition No.3155-P/2018 Waqar Ahmad and others v. Government of Pakistan and others

2. In Writ Petitions No.2308-P/2018 and No.3155-P/2018, petitioners have prayed for the following relief: - "In the circumstances, therefore, it is most respectfully prayed that the instant petition may kindly be accepted with costs and the respondents be directed to follow the dictums of Hon'ble Supreme Court and affect equal Pay and Perks to petitioners as envisaged towards MTOs from date held by the August Apex Court in Judgment dated 21.09.2016 in C.A. No.1644/2013, with all consequential benefits, to meet the ends of justice. Any other relief, which this Hon'ble Court within given circumstance deems fit and appropriate also very graciously awarded to petitioners".

3. While in Writ Petition No.4364-P/2017, petitioners have made the following prayer: - "It is, therefore, humbly prayed that this Honourable Court may please be declared the act of the respondents to discriminate the petitioner in respect of remuneration with other employee having same grade, nature of jobs and qualification is illegal and unwarranted and against the principles of equality. Any other remedy which deems fit by this Honourable Court may also be granted in favour of petitioner".

4. The common facts in all the cases are that the petitioners are employees of the National Bank of Pakistan and have been serving in the Bank in various cadres for more than a decade. Most of the petitioners are Master and Bachelor degree holders serving on the posts of Officers Grade-I and Officers Grade-II while some of them have been reached to the posts of AVP and VP. The NBP vide Circular No.37/99 dated June 16, 1999, revised pay structure of its Officers/Executives. Nevertheless, the Bank introduced a new class of employees within the cadre of Officer Grade-II called 'Management Trainee Officers' (MTOs) with enhanced salary package but with the same description of duties as of other Officers Grade-II. Discontented with this discriminatory treatment, some employees of the NBP Sukkur, filed Writ Petition No.D-417/2010 before the learned High Court of Sindh, Bench at Sukkur, which was allowed vide Judgment dated 13.03.2013 and was upheld by the august Supreme Court of Pakistan vide Judgment dated 21.09.2016 in Civil Appeal No.1644 of 2013. The Civil Review Petition No.501 of 2016 was also dismissed by the august Supreme Court of Pakistan vide order dated 14.04.2017. Similarly, the learned Lahore High Court, Lahore, also expressed its view in favour of the employees of NBP vide Judgments dated 30.03.2018 in Writ Petitions Nos.110507/2017 and 130801/2018. Now petitioners in all the three writ petitions are seeking the same relief under the umbrella of Judgment dated 21.09.2016 in C.A. No.1644/2013.

5. Learned counsel for the petitioners argued that there is no difference in the nature of the job of petitioners and that of MTOs. Non-Management Trainee Officers and Management Trainee Officers perform the same kind of duties and they can be transferred on the posts of each other without any difference in duties. The only difference between MTO and non-MTO is the difference in pay which is highly unjust and discriminatory. The august Supreme Court of Pakistan has already expressed the view vide Judgment dated 21.09.2016 and the learned Lahore High Court, Lahore has also adopted the said judgment. Petitioners being the same class of employees in the same organization are entitled to similar relief as awarded by the august Supreme Court of Pakistan.

6. Learned counsel for respondents vehemently contested the arguments from the side of petitioners and argued that all the writ petitions are suffering from laches as the MTOs scheme is a past and closed transaction which cannot be agitated after 15 years. He maintained that the judgment of the august Supreme Court of Pakistan is not a judgment in rem but is a judgment in personam and as such the same is not automatically applicable in the case of petitioners. He maintained that the Board of Directors of NBP is competent to frame policies and criteria for recruitment, fixing of pay, etc and to engage officers or staff on the terms and conditions determined by it and thus it is a policy matter which cannot be interfered with. Thus, all the writ petitions are liable to be dismissed.

7. We have heard the arguments and have gone through the record with the valuable assistance of learned counsel for the parties.

8. While taking the first objection of the learned counsel for respondents i.e. laches. In this regard, we may observe that although the Management Trainee Officers' Scheme was introduced in the past, but the same, for the first time was challenged before the High Court of Sindh in Writ Petition No.D-417/2010 which was allowed vide Judgment dated 13.03.2013. The Civil Appeal filed by the Bank before august Supreme Court of Pakistan was dismissed vide Judgment dated 21.09.2016 and then the Review Petition was also dismissed vide order dated 14.04.2017 of the august Supreme Court of Pakistan. Besides a similar matter was also decided by the learned Lahore High Court Lahore vide judgment dated 30.03.2018 thus, the cause of action is being reviewed with the passage of time owing to the ibid judgments of august Supreme Court of Pakistan and that of the Lahore High Court, Lahore. Present writ petitions were filed in the years 2017 and 2018 i.e. after the decision by august Supreme Court of Pakistan in supra Review Petition. The bar of laches cannot be overemphasized in the cases where the relief claimed is based on the recurring cause of action.

9. Now adverting to the issue as to whether the judgment of august Supreme Court of Pakistan is a judgment in rem or is a judgment in persona. The terms `in rem' and `in personam' are of Roman Law used in connection with actio, that is, actio in rem and actio in personam to denote the nature of actions, and with the disappearance of the Roman forms of procedure, each of the two terms `in rem' and `in personam' got tagged with the word judgments to denote `the end products of actions in rem and actions in personam. Thus, according to the civil law an action in which a claim of ownership was made against all other persons was as action in rem and the judgment pronounced in such action was a judgment in rein and binding upon all persons whom the Court was competent to bind, but if the claim was made against a particular person or persons, it was an action in personam and the decree was a decree in personam and binding only upon the particular person or persons against whom the claim was preferred or persons who were privies to them. Monir in his `Principles and Digest of the Law of Evidence' at page 563, gives the import of these terms as under:-- `The point adjudicated upon in a judgment in rem is always as to the status of the res and is conclusive against the world as to that status, whereas in a judgment in personam the point, whatever it may be, which is adjudicated upon, it not being as to the status of the res, is conclusive only between parties or privies. A decision in rem not merely declares the status of the person or thing, but ipso facto renders it such as it is declared. Section 41 of the Evidence Act does not use the term `judgment in rem', but it incorporates the law on the subject of judgments in rem, and makes them relevant not only against strangers but also conclusive of certain matters such as whether a person was entitled to a legal character or to any specific thing not as against any specified person but absolutely. Judgments in rem are an exception to the rule of law that no man should be bound by the decision of a Court of Justice unless he or those under whom he claims were parties to the proceedings in which it was given. This rule of law is referable to the maxims of Roman Law namely, 'Res inter also judicata nullun inter alias prejudicium facit', or 'Res inter alias acta alteri nocere non debet'. Such exception of the judgment in rem in the Roman Law was the foundation of the exception in English Law. Section 41 of the Evidence Act is the foundation for the exception of judgment in rem in our corpus juris. However, nothing could be established to debar the petitioners from claiming the benefits of Judgment dated 21.09.2016. In Para-8 of the ibid Judgment the august Supreme Court, in unequivocal terms, has held both the category of officers i.e. non-MTO and MTO possesses the contemporary qualification, perform the same nature of duties, transferred and posted vice each other and occupy similar grade. NBP, a statutory body, cannot be allowed to create artificial distinction or classification between the MTO and non-MTO officers working the same grade merely to discriminate them in terms of salary package, NBP is equally bound to obey the Constitution and law. This verdict of the Apex Court confers a right to all the non-MTO officers of the NBP to be treated alike and as such the case of petitioners cannot be distinguished or differentiated from the cases already decided. Thus, the Judgment of the august Supreme Court of Pakistan is a judgment in rem in view of Section 41 of the Evidence Act. Reliance is placed on PLD 1990 Supreme Court 686 and Tara Chand and others v. Karachi Water and Sewerage Board, Karachi and others (2005 SCMR 499).

10. The third stance of the learned counsel for the petitioner that the issue is a policy matter of the NBP and its Board of Directors is competent to frame policy and fix pay is also holds no water as the august Supreme Court in the supra judgment dated 21.09.2016 has already expressed its view that the NBP being a statutory body cannot be allowed to create such kind of artificial distinctions or classification between the two MTO and non-MTO officers.

11. There is no cavil to the fact that petitioners are the non-MTO staff of the National Bank of Pakistan therefore, no distinction can be drawn between them and those who were respondents in the C.A. No.1644/2013 and their case is covered under Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioner had not approached the court previously but some non-MTO staff of the NBP Sukkur knocked the door of the court and subsequently succeeded in getting the relief. There is also no denial of the fact that similarly writ petitions by the same class of employees were also filed before the learned Lahore High Court, Lahore, which were allowed vide Judgment dated 30.03.2018. Thus, petitioners being not availed the legal remedy at that time, are equally entitled to the relief as granted to the employees of NBP by the learned High Court of Sindh, maintained by the august Supreme Court and further adopted by the learned Lahore High Court, Lahore. The NBP was a party to earlier litigation, thus, it was obliged to implement these judgments in letter and spirit and apply to all those falling within the same class of employees. Reliance is placed on State Bank of Pakistan and others v. Mst. Mumtaz Sultana and others (2010 SCMR 421), Government of Punjab, through Secretary Education, Civil Secretariat, Lahore, and others v. Sameena Parveen and others (2009 SCMR 01), Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan and others (1996 SCMR 1185).

12. In view of the foregoing submissions, all the three writ petitions are allowed and respondents are directed to treat petitioners at par with those who were respondents in C.A. No.1644/2013, and as such, the relief granted in the Judgment dated 21.09.2016 by the august Supreme Court of Pakistan is also extended to petitioners in all the three writ petitions. The cost shall follow the events. ZC/84/P Petitions allowed.