2007 PLP (C (PLC(CS))

FAISAL ARAB, J.

The petitioners were employees of State Bank of Pakistan. In 1997, vide its Circular No.9, dated 23-10-1997 the State Bank floated "Voluntary Golden Handshake Scheme" (Scheme for short). The petitioners, along with hundreds of other employees opted to retire under the said scheme within the period stipulated in the scheme. Their option-was duly accepted by the State Bank and they were relieved from service with effect from 15-12-1997. When the employees who had opted for retirement under the Scheme were still in service, the State Bank issued Circular No.12, dated 29-11-1997 whereby the salary structure of the employees was raised with effect from 1-12-1997. Those employees who opted for retirement under the scheme were also given the salary at the revised rate uptill their retirement date i.e. 15-12-1997. However, upon their retirement the State Bank calculated their emoluments under the Scheme on the basis of pay that was applicable at the time of exercise of option under the scheme and not on the basis of the last drawn salary. Several employees, excluding the petitioners, who had opted for retirement under the Scheme first made representations before the State Bank and upon rejection of their representation, took their grievance to Federal Service Tribunal seeking calculation of their emoluments under the Scheme on the basis of last drawn salary i.e. the salary that was payable on 15-12-1997. The Federal Service Tribunal dismissed their appeals. The matter was then taken to the Honourable Supreme Court which while allowing their appeals vide judgment, dated 2-4-2001 held that all emoluments under the Scheme are to be computed on the basis of last drawn salary i.e. 15-12-1997. Supreme Court vide its order dated 19-11-2002 further clarified its judgment, dated 2-4-2001 whereby benefits on the basis of last drawn salary were to be extended to pension as well as other retirement allowances. The State Bank computed the benefits under the Scheme on the basis of last drawn salary of only those employees who have taken the matter uptil the Supreme Court but refused to extent such benefit to other employees on the ground that they had not agitated the matter in any Court of law. On such refusal, several hundred other employees, who h".1 not agitated the matter earlier, directly moved to the Honourable Supreme Court seeking the same relief as was granted by it to other employees. However, the Honourable Supreme Court vide its order, dated 3-2-2005 directed them to first make representations before the State Bank. Consequently they made representations to the State Bank. Upon rejection of their representations, these employees filed Constitutional Petition No.969 of 2005 which was allowed by this Court vide judgment, dated 14-11-2006 and they were given the same relief as granted by the Honourable Supreme Court vide-its decision dated 2-4-2001. The petitioners in the present petition are placed in the same position as the other employees who were party in Constitutional Petition No.969 of 2005. They also upon rejection of their representations are seeking the same relief in the present petitioners. We are of the view that the State Bank cannot be permitted to apply the same Scheme differently to a group of employees who are though placed in the same position but their emoluments are calculated less favourably than the others. Such treatment can only be regarded as discriminatory liable for interference by this Court under its constitutional jurisdiction. We therefore, hold that benefits under the Scheme have to be uniformly applied to all employees who opted to retire under the scheme including the present petitioners. Mr. Muneeb Akhtar, learned counsel for State Bank however, took the solitary plea that the present petitioners have sought enforcement of their right at a time when their claims had already become barred by time and therefore, they cannot seek its enforcement in a Court of law. No doubt a person who is entitled to a right, may choose to seek its enforcement at a time when the period of limitation provided for seeking such right has gone by, then his legal remedy also becomes barred. However, we may clarify that the decision of the Courts arising from a private right only are to be treated as judgment in personam. Where a decision is in personam then of course, two persons may be entitled to the same right based on same cause of action and may be placed in the same position as the other person, but if one has sought remedy within the period of limitation and the other has not, then the person who has allowed the period for seeking his remedy to expire, he has to be denied the relief purely for the reason that he failed to come to Court within the period provided in the Limitation Act. This principle of right in personam has been elaborately discussed by the Honourable Supreme Court in the case of Pir Bakhsh v. The Chairman, Allotment Committee reported in PLD 1987 SC

145. The decision given in Pir Bakhsh's case pertained to a private right available to few individuals only. However, in cases where a right is available to a entire class of persons or a section of a public on the basis of a public policy or a law and upon its denial some of the aggrieved persons have taken the matter to Court and the decision of the Court recognizes such right, then it matters not whether some individuals of such class of persons or section of public have not taken legal proceedings before the Court. The right determined by the Court, nevertheless, has to be uniformly applied. Therefore, a clear distinction between a private right and public right has to be kept in mind while applying decisions of a Court of law. It is on account of such distinction that the Supreme Court in its decision dated 2-4-2001 has not only granted the relief to the petitioners before it but also enlarged its scope to be applied to all employees of State Bank who had opted under the Scheme. For this reason the decision of the Supreme Court is not only directed in favour of the petitioners before it but also to employees of the State Bank and the word "employees" is used side by side with the petitioners. Evidently, this was done as the controversy pertained to a policy applicable to all employees of a public institution i.e. State Bank of Pakistan and the right declared by the Supreme Court came within the realm of public rights and not confined to few individuals of such institution so as to be treated as a private right only. We may also refer to the case of Hameed Akhtar Niazi v. The Secretary, Establishment Division, Government of Pakistan reported in 1996 SCMR 1185. In this case the Honourable Supreme Court while deciding a point of law relating to the terms of service of a civil servant which covered not only the case of a civil servant who litigated before it, but also of other civil servants who had not taken any legal proceedings. The Honourable Supreme Court held that the benefit of the decision is to be extended to those also who had not litigated the matter. As right sought in the present petition pertains to a public right available to a entire class of employees of a public institution, we find no force in the plea of limitation taken by the counsel for respondent No.1. Following the rule of consistency, we allowed the present petition by a short order, dated 11-1-2007 on the same terms as H incorporated in the order dated 14-11-2006 passed in Constitutional Petition No.969 of 2005. The above are the reasons for the same. H.B.T./J-1/K Petition allowed.