2002 PLP (C (PLC(CS))

I intend to dispose of Writ Petitions Nos. 15124 of 2001, 15025 of 2001 and 15026 of 2001 filed by the State Bank of Pakistan Retired Employees Welfare Association as identical questions of law and facts are involved in all of them. However, it shall remain on the tile of Writ Petition No. 15124 of 2001.

2. The brief facts of the case are that the petitioner claims to be a welfare organization dedicated for the welfare of its members who were retired employees of the State Bank of Pakistan and is duly registered according to the petitioner. In 1977, a new pension scheme was introduced by the respondent‑Bank to replace contributory provident fund and gratuity scheme. The employees were pursuaded to opt for the new scheme and the majority of the employees opted for the new scheme. On 1‑12‑1997, new salary structure was also introduced and concept of basic pay was abolished and gross salary was defined as monetized salary. But prior to it the basis of calculation of retirement benefits for both the categories of the employees who had opted to the pension and the others who retained the old benefits of gratuity was the basic pay last drawn by the employees concerned. According to the petitioner on 25‑1‑1999 respondent‑Bank decided that the gross salary would be taken as basic pay for calculation of gratuity and Circular No.4 was issued on 9‑5‑2000. According to the petitioner the action of the respondent‑Bank is discriminatory between those who opted pension scheme and those who retained old gratuity and provident fund scheme and requested to the respondent‑Bank vide letter dated 21‑9‑2000 for taking necessary action but the respondent‑Bank has declined the same, therefore, it is prayed in the writ petition that the same may kindly be accepted and the act of the Bank of withholding and denying the lawful benefits to certain retired employees of the Bank may be declared as illegal, void without lawful authority and discriminatory and the respondent‑Bank be directed to give relief to its retired employees as under:‑‑ (a) commutation of pension of those who opted for the pension scheme be calculated @100% of the monetized salary, and the balance be given to the concerned retired employees immediately; (b) leave encashment benefits to those who retired on or after 1‑12‑1997 be allowed on the basis of 100% of revised monetized salary and the balance amount, if any, be paid to the concerned employees immediately; (c) the annual increment for the year 1997 be given to the retired employees who were entitled for the same at the relevant time and all their benefits be revised accordingly and be paid immediately. (d) the increase in the pension in the year 1999 be given to those who retired on or after 1‑12‑1997 as was given to those who retired before 1‑12‑1997. (e) the relief given to the pensioners w.e.f. 1‑9‑2000 may also be given to those retired employees who retired between 1‑12‑19,97 and 31‑8‑2000. (f) Further prayed that in the meanwhile the respondent‑Bank be directed to give the above benefits to the entitled persons immediately subject to outcome of the writ petition.

3. In Writ Petition No. 15025 of 2001 the Association claims that the discrimination is being made between the different employees due to the issuance of Circular dated 28‑11‑2000 but the officials/employees retired before 4‑9‑1988 have been discriminated and the benefits to their extent are not being given of the abovesaid circular hence it is prayed "that this writ petition may kindly be accepted, the condition of "entitled to" imposed vide amending circular dated 28‑1 1‑2000 may be held to be illegal, void, without lawful authority, against the judgment dated 9‑10‑1999 and of no legal effect and it may be held that all the employees who retired before or after 4‑9‑1988 are entitled for the benefits of the Circular No. 10 dated 17‑9‑1992".

4. In Writ Petition No. 15026 of 2001 the Association has prayed that "this writ petition may kindly be accepted, the imposition of cut off date i.e. 1‑12‑1997 and 31‑8‑2000 and condition of date of grant of entitlement imposed vide Circular No.20 dated 7‑11‑2000 may be declared to be illegal, void. without lawful authority, discriminatory and of no legal consequences the benefits of the said Circular may be ordered to be given to all the retired employees irrespective of any cut off date or condition of entitlement as has been held by this Hon'ble Court as well as by the Hon'ble Supreme Court of Pakistan. It is further prayed that in the meanwhile the respondent‑Bank may kindly be directed to start giving the benefits of said circular to all the retired employees irrespective of any cut off date or condition of entitlement".

5. The comments were called for from the respondent‑Bank in which the respondent has taken the stand that the Central Board of the State Bank of Pakistan under section 54(2) (i) of the State. Bank of Pakistan Act, 1956 is fully competent to frame service conditions and rules of the employees and the circulars impugned in these writ petitions have been issued by the competent Authority in a lawful manner and cannot be declared as illegal and unlawful. The bank has fully supported the Circulars impugned in the writ petitions and has also supported the issuance of the same in a lawful manner.

6. Learned counsel for the petitioners contends that the petitioners are being discriminated by the issuance of the impugned notifications in all the writ petitions and this Court can interfere in such‑like circumstances by accepting the same as the fundamental rights have been granted to the citizens of this country through the Constitution of the Islamic Republic of Pakistan, 1973, and no person or body can be discriminated. He relied upon LA. Shirwani v. Government of Pakistan (1991 SCMR page 1041). He further contends that the august Supreme Court of Pakistan in the above sai6 case has drawn a distinction between the cases in which interference can be made by the superior judiciary on the basis of the discrimination to the retired employees at well. It is further contended that the Circulars issued are liable to be set aside and the benefits liable to be made applicable to all the employees including the employees, which have been deprived of the same through these circulars.

7. On the other hand Kh. Saeeduz Zafar, learned Deputy Attorney -General has raised a preliminary objection that the Employees Welfare Association cannot challenge the impugned circulars in this Court through writ petitions as the pension, gratuity and provident fund come under sections 19, 20 and 21 of the Civil Servants Act rather pertains to terms and conditions of service and the provision of subsection (2)(a) of section 2 of the said Act, clearly defines that any civil servant who is or has been a civil servant can file an appeal for the redressal of his grievances before the Federal Service Tribunal. The learned Deputy Attorney‑General has contended that the case relied upon by the learned counsel for the petitioners reported in "1991 SCMR 1041" (supra) supports the contentions raised by the learned Deputy Attorney‑General the reliance has been referred to page 1063‑e. He further contends that this finding has been given in a petition tiled under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973. and the Hon'ble Supreme Court of Pakistan is the appellate authority against the decisions of the Federal Service Tribunal. It is further contended that the Supreme Court of Pakistan in C.P.L.A. No.715‑K of 1999. in the similar situation filed by the retired employees of the State Bank of Pakistan upheld the decision of the Karachi High Court that they can seek their remedies before Federal Service Tribunal and the writ petition is not maintainable.

8. I have heard the learned counsel for the parties arid also' perused the documents attached with this petition as also the comments filed by the respondent‑Bank. The first question which requires decision is whether the writ petitions are maintainable or not. It is an admitted position that the members of the Association petitioners are ex‑employees of the State Bank of Pakistan which is a statutory corporation and by virtue of amendment brought in the Statute Book in the form of section 2‑A in the Service Tribunals Act, employees of the statutory bodies/corporations and institutions have been included in the definition of civil servants. As the State Bank, of Pakistan is a statutory corporation and its employees are now amenable to the jurisdiction of the Federal Service Tribunal hence the bar contained in Article 212 of the Constitution of the Islamic Republic of Pakistan, is applicable and this Court cannot interfere in the matters relating to terms and conditions of the civil servants. This view has been taken by the Sindh High Court in Civil Petition No.D‑1246 of 1998 decided by a Division Bench of the Sindh High Court on 4‑6‑1999. The relevant para. is reproduced as under:‑‑ "We have given anxious consideration to the arguments advanced. It is an admitted position that the petitioner was employee of State Bank of Pakistan a statutory corporation and by virtue of amendment brought in the statute book in the form of section 2‑A in the Service Tribunal Act, employees of statutory corporation have been included in the definition of Civil servants. Petitioner being employer: of State Bank of Pakistan a statutory corporation is now amenable to the jurisdiction of the Service Tribunal and in fact several employees have approached the Service Tribunal arid decision of Service Tribunal has been challenged before the apex Court on merits."

9. The decision of the Sindh High Court in the abovesaid case was challenged through Civil Petition No.715‑K of 1499, and the Hon'ble Supreme Court of Pakistan has upheld the decision of the said Court and has held as under:‑‑ "We are of the view that the High Court was right in holding that the grievance raised by the petitioner related to the terms and conditions of his service under the respondent‑Bank, which is a statutory corporation, controlled by the Federal Government, therefore, remedy of its grievance lay before an appropriated Service Tribunal in view of insertion of section 2‑A in the Service Tribunals Act, 1973 whereby the petitioner has become civil servant for the purposes of the said Act."

10. Due to the above said decisions my view is fortified that the writ petitions are not maintainable as the matter pertains, to the terms and conditions of the employees of the State Bank of Pakistan.

11. Learned counsel for the petitioners tried to argue that the individual employees have not tiled the writ petitions rather the same have been filed by the Association and Association could not file appeals in the Federal Service Tribunals.

12. This argument is fallacious. The relief which cannot be claimed by the individuals cannot be claimed by the Association for the benefit of the individuals to whom the jurisdiction of the High Court is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973.

13. For the foregoing reasons the writ petitions are not maintainable and are hereby dismissed without going into the merits of the case. Q.M.H./S‑297/ L Petitions dismissed.