2016 PLP (C (PLC(CS))

MUHAMMAD SAJID MEHMOOD SETHI, J.

Brief facts necessary for disposal of this writ petition are that petitioner started serving as Lineman in Pakistan Telecommunication Corporation Limited on 13.02.1995. His service was terminated on the charge of inefficiency, misconduct and willful desertion from duty. Petitioner challenged his dismissal from service before learned Federal Services Tribunal, Lahore and vide order dated 28.05.2005 he was reinstated in service with the direction to the department to proceed against the petitioner strictly in accordance with the rules. Respondents again initiated disciplinary action against the petitioner under the Government Servants (E&D) Rules, 1973 and under Removal from Service (Special Powers) Ordinance, 2000. After holding fresh inquiry, minor penalty of stoppage of two increments for three years was imposed on the petitioner vide order dated 15.04.2006 of General Manager MTR, Multan, and he was released from suspension with immediate effect and his intervening period was treated as leave due. The respondents on 05.11.2014 announced Voluntary Separation Scheme (VSS), and the petitioner was also offered a package under the said scheme with specific calculation package benefits. As per Part II: Employee Calculation Sheet' of the VSS Notification Package, the petitioner was offered the said package with the Qualifying Length of Service (QLOS) of 19 years, 10 months and 10 days with Grade BPS-4 as on 05.11.2014. Petitioner accepted the package offered to him, but on 07.01.2015, the respondents curtailed the QLOS of the petitioner from 19 years, 10 months and 10 days to 12 years, 9 months and 29 days.

2. Learned counsel for the petitioner contends that service of the petitioner has been illegally and arbitrarily curtailed without any notice; while calculating his service, seven years of service of the petitioner has been reduced and this act of respondents has adversely affected his promotion to Grade BPS-8 as well as financial emoluments; the revised VSS Package dated 07.01.2015 is without notice and without hearing the petitioner, and he has not accepted the said package offered to him on 07.01.2015; the VSS Package already offered to him on 05.11.2014 cannot be changed subsequently; even the VSS Package dated 05.11.2014 was offered to the petitioner without giving him promotion to Grade BPS-8 instead of Grade BPS-4, and that package was accepted by petitioner under compelling circumstances as the petitioner was transferred from Burewala to Layyah vide transfer letter dated 18.11.2014, therefore the said VSS Package is also liable to be declared illegal and without lawful authority; respondents have acted discriminately, illegally, arbitrarily and against the law.

3. On the other hand, learned counsel for the respondents contends that in absence of statutory rules of service, petitioner is restrained to invoke to invoke the constitutional jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973; PTCL is not amenable to writ jurisdiction as it has been privatized vide notification published in the official gazette of Pakistan dated 15.05.2006; petitioner himself accepted Voluntary Separation Scheme (VSS) Package and his service was insufficient for up-gradation; terms and conditions of VSS clearly debar the petitioner from filing this writ petition and his case is quite distinguishable from other employees, hence, no discrimination has been made against him.

4. Heard. Record perused with assistance of the learned counsel for the parties.

5. Admittedly VSS Package dated 05.11.2014 was offered by Pakistan Telecommunication Company Limited (PTCL)/respondent No.2 to the petitioner and as per Calculation Sheet of the said Package, the petitioner was offered the package with the Qualifying Length of Service (QLOS) of 19 years, 10 months and 10 days with Grade BPS-4 as on 05.11.2014. The fact that the QLOS of the petitioner at the time of issuance of VSS Package dated 05.11.2014 was 19 years, 10 months and 10 days is also substantiated from VSS Offer Letter dated 05.09.2012. Upon acceptance of VSS Package dated 05.11.2014 offered to the petitioner, all the terms and conditions provided under the VSS became binding on both the parties, and the petitioner is entitled to the benefits that were part of the offer contained under the VSS itself. In this regard, reference can be made to "Pakistan Telecommunication Company Limited and others v. Yasmeen Tabassum and others" 2014 PLC

176. The respondent company had no authority to take away any benefit offered by it to the petitioner and already accepted by the petitioner under the VSS, therefore issuance of revised VSS Package dated 07.01.2015 is illegal, unlawful and without lawful authority.

6. Learned counsel for the petitioner has referred to the provisions of section 35(2) and section 36(1) of Pakistan Telecommunication (Reorganization) Act, 1996 and contends that the terms and conditions cannot be taken through VSS, 2014 and the same is ultra-vires, not only to the provisions of aforesaid sections, but also the law laid down by the Hon'ble Supreme Court in "Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/O Information Technology and Telecommunication and others" (2012 SCMR 152). I have gone through the aforesaid provisions and judgment of Hon'ble Supreme Court of Pakistan. By virtue of proviso to section 35(2) of Pakistan Telecommunication (Reorganization) Act, 1996, the respondent company had no power to vary the terms and conditions of service of the petitioner to his disadvantage who was previously employee of the Corporation. However, the VSS Package offered to the petitioner on 05.11.2014 has not varied the terms and conditions of the service of the petitioner in any manner, therefore the same cannot be held to be ultra vires the law.

7. Record shows that petitioner had to contact the support center of VSS till the 17.11.2014 for correction of information regarding his service. Ample time was granted to the petitioner for correction of facts and figures regarding his service but he unconditionally accepted the VSS Package offered to him on 05.11.2014. If the petitioner had any objection regarding his scale he could have challenged issuance of letter No. 03-04/2012-ER/IR dated 14.04.2014 and '12-Years Up-Gradation Performa' whereby he was refused for placement in higher scale on the ground that he did not fulfill the criteria as per HQs instructions. After acceptance of the severance of his ties with the respondent company by opting settlement under the VSS, the petitioner has accepted all the contents of VSS Package. Question whether the exercise of option by the petitioner was voluntary or because of transfer order dated 18.11.2014, cannot be decided by the High Court in its constitutional jurisdiction being purely a question of fact. In this regard, reference can be made to "Shahnaz Parveen v. PTCL through President and others" 2011 SCMR 1924. The acceptance of the offer by the petitioner was unconditional. The principle of past and closed transaction is fully attracted in the instant matter, therefore, the petitioner has no right to wriggle out the same. No discrimination had been pointed out by the petitioner. VSS Package offered to the petitioner cannot be termed discriminatory as it was accepted by the petitioner without any reservation.

8. Petitioner became employee of Pakistan Telecommunication Corporation on 13.02.1995. Rules of employment which were applicable to the petitioner during his service with the Corporation were statutory rules. At the moment of transition when the petitioner ceased to remain the employee of the Pakistan Telecommunication Corporation and became employee of the respondent company, he was governed by rules and regulations which had been protected by Pakistan Telecommunication (Reorganization) Act, 1996, therefore, said rules by definition were statutory rules. Reference in this regard can be made to Masood Ahmed Bhatti Case supra. There is no force in argument of the counsel for the respondents that in absence of statutory rules of service, petitioner is restrained to invoke to invoke the constitutional jurisdiction of this court and PTCL is not amenable to writ jurisdiction as it has been privatized.

9. It is hereby declared as follows: i. Terms and conditions of VSS Package, offered by the respondent company on 05.11.2014, have been unconditionally accepted by the petitioner and are binding upon both the parties. ii. VSS Package, unilaterally issued by the respondent company on 07.01.2015, is held to be illegal.

10. The instant constitutional petition is partly allowed in the above terms. ZC/M-264/L Petition disposed of.