2017 PLP (C (PLC(CS))

SHAUKAT AZIZ SIDDIQUI, J.

Petitioners invoked the Constitutional Jurisdiction of this Court by way of filing instant Writ Petition with the following prayer:- "Based on the foregoing, it is very respectfully prayed that this Honourable Court may graciously be pleased to: A. Declare that the act of respondent No.2 whereby it is not extending the benefits of revision in Basic Pay Scales (as approved and notified by the Federal Government in 2011 and 2015 to the petitioners and denying to grant ad hoc relief allowance @ 20% of basic pay (as granted by the Federal Government through Office Memorandum F.No.1(3)Imp/2012 dated 02.07.2012) is unconstitutional, discriminatory, unlawful and based on sheer mala fide; B. Direct the respondent PTCL to extend the benefits of revision in Basic Pay Scales -2011 and 2015 to the petitioners as approved and notified by the Federal Government; C. Direct the respondent PTCL to grant ad hoc relief allowance @ 20% of basic pay to the petitioners as granted by the Federal Government vide Office Memorandum F.No.1(3)Imp/2012 dated 02.07.2012; D. Direct the respondent PTCL to grant 12 months leave encashment to the petitioners as is given to the Federal Government Employees upon their superannuation in case the petitioners superannuate during pendency of the instant petition; E. Direct the respondent PTCL to revise, as a consequence of above declaration/directions, all service benefits including pensionary benefits in case the petitioners superannuate during pendency of the instant petition; F. Grant any other relief this Honourable Court deems fit and just in the circumstances of the case; G. Grant costs of the case.".

2. Brief facts presented through instant writ petition are that: Petitioners joined the predecessor of Respondent PTCL i.e. Pakistan Telegraph and Telephone Department (T&T), which was converted into Pakistan Telecommunication Corporation (PTC) by virtue of Section 3 of the Pakistan Telecommunication Corporation Act, 1991. Thereafter, in the year 1996 to provide for re-organization of telecommunication system in Pakistan, legislature promulgated (Re-organization) Act, which besides creating four other entities, also created Respondent, PTCL. After aforementioned changeovers from T&T to PTC and PTC to PTCL, the organization underwent another change when in the year 2006, Federal Government decided to partially privateize it by selling its 26% shares to a Dubai based company namely, Etisalat International. The parties i.e. Federal Government of Pakistan and Etisalat International, entered into a Shareholders Agreement dated 12.04.2006, accordingly. In all the above said three conversions, provisions were provided e.g. in PTC Act, 1991 Section 9 was inserted; in PTCL (Re-organization) Act, 1996 Sections 35 and 36 were added and in the Shareholders Agreement clause 16.1 was inserted with an intent to give protection to the transferred employees. Now, Petitioners who are the transferred employees of transformed T&T claim that despite there being due protection provided to their terms and conditions of service, through the said provisions in all the three transformations, management of Respondent No.2 is withholding, all financial benefits to Petitioners, granted by the Federal Government, to its employees from time to time, through different notifications.

3. Respondent No.2, through written comments raised preliminary legal objections and also rebutted the assertions, of Petitioners as under:- That employment of Respondent No.2's employees is governed by the rule of Master and Servant thus no declaratory or injunctive relief can be granted to Petitioners and writ petition is liable to be dismissed on this ground alone; That Petitioners ceased to be the civil servants, with effect from 01.01.1991 after joining PTC and no change in their terms and conditions can be or has been made applicable; That Muhammad Arifs' case referred in the petition is under review, in the Supreme Court of Pakistan. Moreover, same relates only to pension and not to periodic changes in terms and conditions; That share capital of Respondent No.2 is divided into two categories; i) Category A-74% shares ii) Category B- 26% shares. Out of 74% Category Shares 12% shares are with general public and 62% shares are with the Federal Government, whereas, all the 26% shares Category B shares are owned by Dubai based company "Etisalat", therefore, writ is not maintainable against it. Learned Counsel further submitted that for the purpose of election of Directors one Category B share carries 4 votes while one Category A share carries only 1 vote, thus Federal Government has only 34.63 votes and Respondent No.2 is not controlled by the Federal Government. That under Section 36(2) of the Pakistan Telecommunication (Re-organization) Act, 1996, employer is empowered to alter the terms and conditions of service of its employees. Learned Counsel for Petitioners submitted that although Petitioner's terms and conditions of service were duly protected by the PTC Act, 1991, PTCL (Re-organization) Act, 1996 and Shareholders Agreement dated 12.04.2006, with specific provisions but following financial benefits granted to the Federal Government Employees have not been extended to the Petitioners:- (I) The Finance Division vide Office Memorandum No.F.1(5) Imp/2011-419 dated 04.07.2011 approved and notified the revision of Basic Pay Scales-2011 thereby granting substantial increase in monthly salaries of Federal Government Employees; (II) Vide Office Memorandum F.No.1(3)Imp/2012 dated 02.07.2012, Federal Government gave ad hoc relief allowance @20% of basic pay to all the Federal Government Employees; (III) Through Office Memorandum No. F.No.1(3)Imp/2015-630 dated 07.07.2015, basic pay scales of Federal Government Employees were revised; (IV) Federal Government, upon retirement of an employee, gives 12 months leave encashment, whereas, Respondent No.2 grants only 06 months leave encashment. Learned Counsel added that the impugned act on the part of Respondent No.2 is based on mala fide, ulterior motives and is violative of the Constitutional Guarantees. Learned Counsel further added that through the impugned act of Respondent No.2 valuable rights of Petitioners have been infringed and they are made to suffer, huge financial loss. Learned Counsel further contended that the superior Courts of the country, through different pronouncements, have time and again held that terms and conditions of service of the transferred employees are duly protected and Respondent No.2, being public functionary, is duty bound to abide by the commands of the Constitution and act fairly, justly, judiciously and strictly in accordance with law and cannot be allowed to act, according to its own whims and wishes. Moreover, such like acts of Respondent No.2 have been held by the Supreme Court to be unlawful, illegal, Capricious, arbitrary and result of an abuse of authority. Learned Counsel in support of his contentions placed reliance on the case law reported as PTCL and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Muhammad Riaz v. Federation of Pakistan through Secretary, M/o Information Technology, Government of Pakistan, Islamabad and others (2015 SCMR 1783), Pakistan Telecommunication Employees Trust (PTET) through M.D. Islamabad and others v. Muhammad Arif and others (2015 SCMR 1472), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, M/o Information Technology and Telecommunication and others (2012 SCMR 152) and judgment passed by this Court in the case titled Muhammad Shareef Malik v. Government of Pakistan (W.Ps.Nos. 3212 and 3213/2011).

4. Conversely, learned Counsel for Respondents while raising preliminary objections submitted that Respondent No.2 is a Limited Company incorporated under Companies Ordinance, 1984, having non-statutory rules and its share capital is divided into two categories; (i) Category A-74% shares (ii) Category B- 26% shares. Out of 74% Category Shares 12% shares are with general public and 62% shares are with the Federal Government, whereas, all the 26% shares Category B shares are owned by Dubai based company "Etisalat", therefore, writ is not maintainable against it. Learned Counsel further submitted that for the purpose of election of Directors one Category B share carries 4 votes while one Category A share carries only 1 vote, thus Federal Government has only 34.63 votes and Respondent No.2 is not controlled by the Federal Government. Learned Counsel contended that under Section 36(2) of the Pakistan Telecommunication (Re-organization) Act, 1996, employer is empowered to alter the terms and conditions of service of its employees. Learned Counsel lastly contended that employment of Respondent No.2's employees is governed by the rule of "Master and Servant" as protection of terms and conditions of service of Petitioners / transferred employees, is applicable prior to their transfer to the Pakistan Telecommunication Corporation, as after that they are no more remained civil servants. Moreover, no provision is any where provided which makes, Petitioners eligible for any benefit, subsequently awarded to the Federal Government Employees. Learned counsel in support of his contention also placed reliance on 2016 SCMR 1362 and judgments dated 19.07.2016 and 29.09.2016, passed in W.P. No.3381/2012 and W,Ps.Nos, 2050 and 2051/2016, by this Court.

5. I have heard the learned counsel for parties and perused the available record.

6. Since, learned Counsel for parties placed much reliance on the latest dictum laid down by august Supreme Court, passed in Civil Review Petitions Nos.247 to 249/2011. Civil Petition No.423/2011 and Crl.Misc. Nos.871 to 873/2014, titled as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), therefore, it is imperative to seek guidance from it. The Hon'ble apex Court after recording respective contentions of the learned Counsel for parties, opted to provide and discuss, Section 9 of the Act of 1991 and Sections 35 and 36 of the Act of 1996 under para 6 and held as under: "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under Section 9 of the Act of 1991 and then of the Company under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the Company, they did not remain Civil Servants any more. But the terms and conditions of their service provided by sections 3 to 22 of the Civil Servants Act and protected by Section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the High Court." "

7. The argument of Mr. Khalid Anwar, learned Sr. ASC for the petitioners that where a three-Member Bench of this Court in the case of Pakistan Telecommunication Company Ltd. v. Iqbal Nasir and others (supra) held that the employees of PTCL being governed by the principle of master and servant could not invoke jurisdiction of the High Court under Article 199 of the Constitution, another Bench with equal number of Judges could not deviate therefrom, is based on misconception when the employees in the aforesaid case, were not those whose terms and conditions of service on their transfer to the Corporation and the Company were protected ad guaranteed under section 9 of the Act of 1991 and sections 35(2) and 36(1) and (2) of the Act of 1996, but those who were employed on contract or on work-charge basis. We, therefore, do not feel inclined to agree therewith."

7. While answering to the argument of the learned Counsel for Petitioner (therein) that PTCL was not under the control of the Federal Government, therefore, cannot be construed as a person in terms of Article 199(5) of the Constitution, august Supreme Court held the same to be misconceived by referring the judgments passed in PTCL v. Iqbal Nasir and others (PLD 2011 SC 132) and PTCL v. Muhammad Zahid and 29 others (2010 SCMR 253). Wisdom showered through above referred judgments, settled the proposition with regard to maintainability of writ petition against PTCL. Only condition is that, if discrimination is reported to the High Court by an aggrieved person(s) with regard to accrued rights, protected by law at the time of transfer to PTCL writ petition is required to be entertained by the High Court. Petitioners' stance herein, is that as result of discriminatory treatment and mala fide intent, PTCL, breached provision of the Act, as a result whereof, terms and conditions of their service altered to their disadvantage, therefore, this Court is satisfied that instant writ petition is maintainable.

8. To answer the question, as to whether, Petitioners, who admittedly joined T&T Department and became employees of PTCL, as a result of transition, are entitled to the relief claimed through instant petition? It would be suffice to say that the Hon'ble Supreme Court has already answered the question, through different authoritative pronouncements which are given as under:- In the case of Pakistan Telecommunication Employees Trust v. Muhammad Arif and others, reported as (2015 SCMR 1472), it has been held that;: "

18. Thus, in the above case this Court has held that the terms and conditions of service so also the rules of service which were applicable to the T&T Department employees while in employment of the Government of Pakistan will continue to be applicable to them on their transfer to the Corporation and then to the Company, The proposition advanced by Mr. Khalid Javed Khan, learned Advocate Supreme Court, that an order granting increase in pension is an executive function based on a policy taking into consideration various factors of inflation and financial conditions, on its face, appears to be correct as the same is based upon the pronouncement of this Court in the case of Akram ul Haq v. Joint Secretary (R-II) Government of Pakistan, Finance Division, Islamabad and others [2012 SCMR 106]. However, the question before us is not about the tenor and status of the government order or the order which is passed by the petitioner for increasing the pension on the very entitlement of the respondents to the benefit of increase in pension awarded by the Government. The entitlement of the respondents to the increase in pension, as the one announced by the Government of Pakistan, is to be determined on the basis of the law applicable to their employment. In Masood Ahmed Bhatti's case (supra), this Court has held that not only the terms and conditions of service of the employees of T&T Department who were transferred to the Corporation and then to the Company will be the same but also the rules of service as were applicable to them as employees of T&T Department. Thus, it becomes clear that the employees of T&T Department who were transferred to the Corporation and then to the Company having retired, they will as per the terms and conditions of service will be entitled to payment of pension also according to the one announced by the Government of Pakistan. Thus if any increase in pension is announced by the Government of Pakistan for its employees, the same will also apply and will be paid to the employees of T&T Department transferred to the Corporation and then to the Company." * In the case of Muhammad Riaz v. Federation of Pakistan reported as (2015 SCMR 1783) by following the above dicta, another learned Bench of august Supreme Court, observed as under: "

8. In the above perspective, taking into consideration the judgment of three member bench of this Court delivered in C.Ps. Nos.565 to 568/2014, etc., wherein the subject matter of the instant petition has already stood adjudicated and decided in favour of transferred employees, we convert this petition into appeal and allow the same while setting aside the impugned judgment, and it is held that the case of the petitioner is at par with the case of transferred employees in C.Ps. Nos.565 to 568/2014, etc., therefore, the petitioner is entitled to payment of increase in pay and pension as announced by the Government from time to time.". * Earlier, in the case of Masood Ahmed Bhatti and others v. Federation of Pakistan and others, reported as (2012 SCMR 152) apex Court had held that: "

9. It is clear from this legal provision, that the rules relating to the terms and conditions of employment of the appellants were given statutory status. This status was on a higher plane than the status of regulations framed by way of subordinate legislation under section 20 of the PTC Act. Consequently, whatever rules were in place governing the employment of the appellants in the T&T Department, were adopted by reference in the statute itself and were made applicable to and binding on the Corporation. There can be little doubt that by virtue of section 9, ibid such rules acquired statutory status having been sanctified by the PTC Act itself. We can, therefore, conclude without difficulty that the rules of employment which wee applicable to the appellants during their service with the Corporation were statutory rules.", * And Review Petition preferred against this judgment has been dismissed, vide judgment ibid reported as (2016 SCMR 1362). * While dealing with the proposition of applicability of rules, this Court, in the case of Muhammad Asghar and Muhammad Shareef Malik v. Government of Pakistan (W.Ps.Nos.3212 and 3213/2011) declared that: "

14. In view of the facts it is crystal clear that the authority was to be exercised by the respondents under the civil servants (E&D) Rules but they did not proceed in accordance with law. The entire proceedings in the shape of inquiries and show cause notices initiated by the respondents are illegal as these have not been conducted in accordance with E&D Rules No question ... petitioners are to be governed being in the employment of PTCL as admittedly the petitioners joined the service before the promulgation of the PTCL Act, 1991, therefore, they were to be governed by the Civil Servants (E&D) Rules, 1973. In view of the above discussion, the writ petitions are hereby accepted and the impugned orders are hereby set-aside being undertaken by the respondents in sheer violation of the concerned rules.".

9. Learned counsel for Respondent, ably advanced his arguments but it is observed that all his contentions and questions of law, have already been dilated upon by the Hon'ble Supreme Court, in above reported cases. In my humble view, law has been settled by the ultimate Court of the country, therefore, unreported judgments passed by the learned Benches of this Court and relied upon by the learned Counsel for Respondent, could not persuade this Court to follow the same.

10. Authority vested in Respondents, is a sacred trust and depriving any deserving person from lawful rights is not less than breach of trust. Almighty Allah, in the Quran, Surah (4) Nisa, Verse 58, gave the following command: Allah commands you to deliver trusts to those worthy of them; and when you judge between people, judge with justice. Excellent is the admonition Allah gives you. Allah is All-Hearing, All-Seeing. The Holy Prophet Muhammad showed complete dismay, about those who do not pay the consideration of labour:- Abu Hurayrah narrated that the Prophet said "Allah Said, 'I will be the opponent of three on the Day of Judgment: one who makes a covenant in My Name and then breaks it; one who sells a free man as a slave and devours his price and one who hires a workman and having taken full work from him, does not pay him his wages."' Similarly following saying of the Holy Prophet Muhammad further signifies the adherence to impartiality:-- "It was narrated from Abu Umamah that the Messenger of Allah said. "Among the worst people in status before Allah on the Day of Resurrection will be a person who loses his Hereafter, for the sake of worldly gains of others."

11. The command and wisdom ordained in the Quran and Hadees, impose absolute duty upon the person made custodian of the rights of people and bestowed upon with an obligation, to umpire amongst the people, not besides the ableness, merit, rectitude and worthiness. It is hard to believe that in the Islamic Republic of Pakistan, executive functionaries or persons on the helm of affairs, would keep on disobeying the orders of the superior Courts by making the interpretation to safeguard their monetary interests and to escape from the financial liabilities. This approach being rarity, constrain the aggrieved persons/employees, to seek the redressal of their grievances through litigation, which is burdensome, for the poor employees at the twilight of their careers. Public functionaries vested with some authority, in order to decide about the accrued rights of person(s) subordinate to them or any other person(s) required to decide honestly, without likes/dislikes, fear or favour, and by considering the responsibility as a sacred trust, so that benefit must be extended to the one, qualify for.

12. Allah, warns those who pursue either personal or national interest at the cost of honesty, equity, reasonableness and good faith. It has been emphasized through above Quranic verse that, declare what is right in the face of friend and foe alike, and judge between people with justice and equity. To deprive someone from his due, intentionally and malafidely is nothing but a rude and noisome act, for which responsible persons shall be held accountable. I must observe that management of the PTCL, need to realize that settled propositions, through authoritative pronouncements of august Supreme Court is law of the country, and binding on all other Courts in Pakistan, as enshrined under Article 189 of the Constitution, therefore, denial of any fiscal benefit under settled question of law is not less than disobedience, defiance and an endeavor to frustrate the law, declared by the apex Court of the country. This malicious approach can lead to initiation of contempt of Court proceedings, against the persons responsible, irrespective of their influence, origin and status. Unfortunately, organizational behavior of PTCL, in respect to its employees is neither graceful nor in line with corporate culture of successful enterprises.

13. For what has been discussed above, this writ petition is allowed, Respondents are directed to extend those benefits to Petitioners, to which equally placed persons declared entitle to by the Hon'ble Supreme Court of Pakistan, as per the laid down dictums, referred in this judgment, in particular "Muhammad Riaz v. Federation of Pakistan (2015 SCMR 1783) which has already attained finality. Needful, must be done within a fortnight from the receipt of this judgment. ZC/21/Isl. Petition allowed.