1999 PLP 2346 (MLD)

Vested Right Vested Right is interpreted by Peshawar High Court in Mardan Industries' case PLD 1965 Pesh. 47 in the following terms:-- It is an immediate fixed right of a person or future enjoyment and rights are vested in contradiction to being expected or contingent. Hon'ble Supreme Court has also interpreted words vested right in Nai Ahmad's case PLD 1969 SC 599 and observed as follows:-- Vested means clothed or robed, dressed especially ecclesiastical vestments, vested right essentially different from rights which are contingent i.e., completely created vested interest may perhaps be defined as rights based not upon contract but upon custom. Division Bench of the Dacca High Court interpreted in 19 DLR 106 as follows: -- An interest is said to be vested when it is not special to any condition precedent. A person takes a vested interest in property when he acquires proprietary right in it, but the right of enjoyment is deferred till a future event happens which is certain to happen. An interest may be a vested one, though its enjoyment may be postponed. The Dacca High Court has also interpreted in A-Ali's case. PLD 1969 Dacca 764 (sic) as follows:-- Means right, which is, complete and consummated so that nothing remains to be done to fixed the right. Right to receive compensation remains in an inchoate. Vested right cannot be taken away by an executive action as is held by the Hon'ble Peshawar High Court in Bannu Sugar Mills' case 1990 CLC 569 similarly if no vested right is denied to a party, the High Court has no jurisdiction to interfere by means of writ PLD 1960 SC

81. Similarly Supreme Court of Pakistan in Mirza Muhammad Irfan Baig's case PLD 1992 SC 1760 has interpreted word vested right and the relevant observation is follows: -- By vested right is meant a right, which is complete and not dependent on any contingency and its enjoyment has become the property of the person concerned. The Hon'ble Supreme Court of Pakistan has compared the word privilege and vested right in Karamat Hussain' case PLD 1987 SC 139 and the relevant observation at P.144 as under: -- A privilege is some particular benefit or , advantage conferred on a person or clause of persons which other citizens do not enjoy, while a right is some benefit conferred on a person by virtue of a given law. Karachi High Court also defined vested right in Zohra's case PLD 1996 Kar. P. 1 which is as follows:-- Right was not subject to any event or contingency it was, therefore, a vested right. The facility of conferred condition travelling pass was considered in Rana. Khalid Mahmood's case 1997 (PLC (CS)

232. The relevant observations are as follows:-- "In the first notification pertaining to the school teachers, dated 8-5-1988 it has been laid down that school teachers who have been allowed selection grade in B.S.17 are entitled to the privilege of A: C. C. passes. The word entitled refers to the existence of a vested right. Once a person is entitled to a particular privilege, he will have the right to enforce the said entitlement through the process of law if such entitlement is refused thereafter. Once a decision is made and tote facility is extended, it does not remain discretion of the department any more but becomes a vested right which can be enforced through legal process. Thus grant of selection grade to an employee in B.S. 17 shall invest such employee with the right to claim all the benefits attached to the post in B.S.17 and this right cannot be modified or withdrawn by administrative instructions." Railway Pass Article 1(1) of the Railway Pass Manual was considered by Late. Mr. Justice Gul Muhammad Khan in Rana Manzur-ul-Haq's case and observed as follows. (1980 PLC I) "Articles 52 and 134 of the Pass Manual, which are relevant to this case, read as under:-- "

52. Passes to retired employees.

(I) The number of sets that may be issued per annum to as employees who has retired and his family is as follows:-- (a) Officers of over 25 years' service (irrespective of whether over the home line or over foreign lines) (3 Sets). (b) Subordinate with not less than:-- 30 years' service 1 Set. 35 years' service 2 Sets. Inferior servants .. Nil

134. Passes to retired employees.

An employee who has retired from service and who was eligible for passes while in service, may be given passes for himself and his family according to the following scale:-- Number of sets of passes admissible per year (i) For officer of over 25 years' service 3 (ii) For non-gazetted staff (Except 1 inferior servants with not less than 30 years' service (iii) All others Nil Article 1(1) of the Pass Manual reads:-- "Passes cannot be claimed as a matter of right their issue is without exception, subject to the direction of the Administration. The wording of the above two articles must be read subject to Article 1(l). Their cumulative effect is that the grant of a pass cannot be claimed as a right and so the demand cannot be enforced as a matter of course. However, the discretion of the respondent in granting it can neither be whimsical nor arbitrary. The respondents, who are public functionaries are obliged to exercise their discretion on the basis of some principles or guidelines and without discrimination. The settled legal position with regard to privileges is that they cannot be claimed as of right. However, if grantor is a public functionary, he is obliged to act justly, fairly and equitably as held in Ikram's case. Further, a privilege once validly granted and carried into effect becomes a right. Admittedly, no hearing had been given to the petitioner before recalling the previous order. The impugned action, thus, effect the status and reputation of the petitioners. He, therefore, had a right to be heard. " From the above precedents it is crystal clear that in any case whether it is a privilege or a vested right the petitioner has a right to agitate the matter before this Court as the competent Authority has granted the privilege to the petitioner which has already been acted upon, therefore, it is not merely concession of facility given by the respondents to the petitioner. No doubt the E respondents at the initial stage have discretion either to grant the facility of pass to the petitioners or not. Once the discretion is exercised then it comes out of sphere of the discretion of the respondents and falls under the category of a right of the petitioner. It is a settled principle of law that any right created in favour of a citizen cannot be taken away by a notification through an administrative order even by a competent authority. This is only a prerogative of the legislator to take away the rights of the citizens retrospectively by law. I am fortified by the well know judgments on the subject Salahuddin's case PLD 1991 Supreme Court 546, Messrs Army Welfare Sugar Mills' case 1997 SCMR .1244. Taj Muhammad Hotel Ltd's. case 1997 SCMR 503 and Hashwani Hotel's case PLD 1997 SC

315. Now I intend to deal the preliminary objections raised by the learned counsel of the respondents that this Court has no jurisdiction to take cognisance of the matter as being the terms and conditions of Service by virtue of Article 212(2) of the Constitution read with section 4 of the Service Tribunal Act. The petitioner took stand that it is a privilege, therefore, does not act of terms and conditions hence the matter is out of the sphere of terms and conditions then Service Tribunal has no jurisdiction to take cognisance of the matter under section 4, of the Service Tribunal Act. I am fortified by the judgment of the Hon'ble Division Bench of the Quetta High Court 1997 SCMR 1874 = 1997 PTD 2303 Muhammad Idrees's case. The Hon'ble Supreme Court of Pakistan has considered this aspect of the case in Amin-ur-Rehman's case 1989 SCMR 1948 and observed as follows:-- "Allotment of a quarter/houses is not included in the terms and conditions of service of civil service, therefore, the jurisdiction of the High Court is not barred under Article 199 of the Constitution." In view of the circumstances I am of the view that privilege of pass to the petitioner is not a part of terms and conditions, therefore, this Court has jurisdiction to take the cognisance of the matter. The second preliminary objection raised by the learned counsel for the respondents that it is a policy matter and this Court has no jurisdiction to interfere in the realm of policy. It is no doubt that our Constitution is based on trichotomy, therefore, this Court has only right to interpret the law as is held by the Hon'ble Supreme Court of Pakistan in Zia-ur-Rehman's case PLD 1973 SC 49.' The petitioners have not challenged the policy letter but have only challenged the action taken by the respondent under the said policy. I am fortified by the judgment of the Hon'ble Full Bench of the Karachi I High Court in Zohra's case PLD 1996 Kar.

1. This proposition of law was discussed in detail by my learned brother Mr. Justice Ehsan-ul-Haq Chaudhry in a reported case 1997 CLC 1308 and laid down a principle that High Court has jurisdiction to examine the actions based on policy letters, therefore, preliminary objection of the learned counsel of the respondents has no force. Another objection was raised that the aforesaid letters and act are also suffered from illegality as the same were issued without providing personal hearing to the petitioners which is inalienable right of a citizen as is held by the Hon'ble Supreme Court of Pakistan in Zakir Ahmad's case PLD 1965 SC

90. In the present case, the principle of natural justice is not attracted and is not possible that the policy maker should provide opportunity of hearing to all the employees, therefore, the contention of the learned counsel has no force and aforesaid case of Rana Manzur-ul-Haq is distinguishable on facts and law. It is also admitted fact that the respondents have provided concession of pass to the petitioners but subsequently it was not take away but it was modified according to the circumstances and prevailing circumstances in the country specially in the Railway Department. It is settled principle of law that respondents have right to change the terms and conditions at any time and the petitioners have no right to be treated by the same terms and conditions which were offered to them at the time of appointment. ' I am fortified by the judgment of Iqra Ahmad's case PLD 1980 SC 153 and PLD 1989 SC

262. Following the aforesaid precedents and on the basis of, analogy it is held that respondents have a right to change subserviently a right to change the privileges provided to as employee. In view of the circumstances the only question left to resolve the controversy between the patties whether the aforesaid principle of taking the rights of the petitioner retrospectively is available to the respondents or not. It is admitted position that the respondents have not taken the facility of pass to the petitioners but have made effort to remove the anomalous situation and modified the facility provided to the petitioners qua the status of the employee/petitioners. So, the question of retrospective does not arise in this case and it falls purely in the area of policy, therefore, this Court has no jurisdiction to take the cognizance of the matter as is held by Hon'ble Supreme Court in Zamir Ahmad Khan's case PLD 1975 SC 667 and relevant observation is as follows:-- "Indeed the Government has' all along since the inception of the Act, frequently and materially altered import policies. These policies are determined generally with reference to the domestic needs their priorities, availability of foreign, exchange and multitudes of other factors of which the Federal Government is the sole arbiter in exercise of its executive authority. The decision taken falls within the realm of policy making. These policy decisions are binding on the subordinate administrative authorities as a matter of duty. In all such cases, orders made must conform to the policy decisions of the Government." The review petition was also filed in the aforesaid Zamir Ahmad Khan's case but the same was dismissed reported as 1978 SCMR

328. Thee is another aspect of the case speaking from ideological point of view. The answer to the question can only be in the affirmative, for that would be the highest socio-economic goal that a State could achieve by virtue of Article 38 of the Constitution and the principles of policy provided in Chapter II of the Constitution, but if the economic position is feeble and weak, the same is not economically feasible and the fulfilment or this particular principle of policy, by virtue of Article 27(2), can be deferred due to non-availability of resources, out of which some are reproduced as under:-- "31(2) The State shall endeavour, as respect the Muslims of Pakistan." 37(c)Make technical and professional education generally available and higher education equally accessible to all on The basis of merit. 38(a)Secure the well being of the people, irrespective of sea caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of production and distribution in the 'hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between the employers and employees, and landlords and tenants. (b) Provided for all citizens, within the available resources of the country, facilities for work and adequate livelihood with reasonable rest and leisure. (c) Provided for all person employed in the service of Pakistan or otherwise, social security by compulsory social insurance or other means. (d) Provide basic necessities of life, such as food, clothing, housing, education and medical relief, for all such citizens, irrespective of sex, caste, creed or race, as are permanently or temporarily unable to earn their livelihood on account of infirmity, sickness or unemployment. 29(2) In so far as the observance of any particular Principle of Policy may be dependent upon resource being available for the purposes, the Principles shall be regarded as being subject to the availability of resources." From the aforesaid articles of the Constitution it reveals that it is the duty and obligation of the State to frame such policies to raise the standard of living of a citizen including the Government servants/employees and retired employees but subject to the availability of resources. Since the country is under a very bad condition on account of the debts of I.M.F. and World Bank, therefore, the competent Authority changed the policy to save the public exchequer as generally the sleeper and A.C. are occupied by the employees of the department either retired or serving. In view of what has been discussed above let a copy of the writ petition be sent to the Railways Board Ministry Railways Government of Pakistan to consider the case of the petitioners afresh and formulate feasible scheme for redress the grievances of the petitioners. With the so observations the writ petition is disposed. Q.M.H./A-7/L Order accordingly.