2019 P L C (C.S.) 1272
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Hashim Khan Kakar, JJ
MUHAMMAD SALEEM MALIK
Versus
GOVERNMENT OF PAKISTAN through its Secretary Finance Division, Regulation
Wing, Pakistan Islamabad and 3 others
C.P. No.287 of 2011, decided on 21st March, 2019.
Pakistan Telecommunication (Re -Organization) Act (XVII of 1996) ---
----Ss.35(2) & 36--- Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9---
Employee of Pakistan Telecommunication Company having opte d Voluntary Separation
Scheme sought similar pensionary benefits as extended to other retired employees of the Company--- Validity ---Petitioner remained in the service of Company for more than thirty
two years ---Terms and conditions of service of employee w ere guaranteed by virtue of S.9 of
Pakistan Telecommunication Corporation Act, 1991 and S.35(2) & 36 of Pakistan Telecommunication (Re -Organization) Act, 1996--- Petitioner neither approached the
competent authority for redressal of his grievance nor brought on record any order of
competent authority passed adversely ---Employee was no more civil servant except
protection of terms and conditions of his service guaranteed under S.9 of Pakistan Telecommunication Corporation Act, 1991 and Ss.35(2) & 36 of Pakist an
Telecommunication (Re -Organization) Act, 1996 ---Petitioner having alternate and
efficacious remedy to approach the competent authority for redressal of his grievance, constitutional petition was dismissed, in circumstances.
Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; Pakistan
Telecommunication Employees Trust (PTET) v. Muhammad f 2015 SCMR 1472; Masood Ahmed Bhatti and others v. Federation of Pakistan and others 2012 SCMR 152 and P.T.C.L. and others v. Masood Ahmed Bhatti and others 2016 SC MR 1362 rel.
Petitioner in person.
Alla ud Din Baloch, Assistant AG for Respondents Nos.1 and 2.
Shahid Anwar Bajwa for Respondents Nos.3, 4 and 5.
Sabira Islam, Additional Advocate General.
Date of hearing: 4th March, 2019.
JUDGMENT
ABDULLAH BALOCH, J.---This judgment disposes of the instant Constitutional
Petition filed by the petitioner Muhammad Saleem Malik against the Government of Pakistan
and others with the following prayer:
"It is, therefore, respectfully prayed that this Hon'ble Court may k indly be pleased to
declare that the impugned notification bearing No. P.i(i)/imp/2010.622, Islamabad, dated 05 -07-2010 as discriminatory and the government of Pakistan, Finance
Division, Regulation Wing may be directed to extend the same benefits to the r etired
employees as well.
Further this Hon'ble Court may kindly be pleased to declare the impugned Notification bearing No. FA(16/210/721 dated 05- 07-2010 also as discriminatory and
the Government be directed to extend the same benefits to equal rate i.e. 20% to the
retired employees as well.
Further this Hon'ble court may kindly be pleased to declare the impugned Notification bearing No.Pen/PTET/LHR/1110 dated 27/01/2011 also as discriminatory as being beyond from Notification bearing No.F.4(1) -REge -6/2010/721 dated 5th July, 2010
and resultantly the Pakistan Telecommunication employees trust may be direct to grant similar benefits as approved by the government of Pakistan in increase of pension to the pensioners @ of 15% and 20%.
Further this Hon'ble court may kindly be pleased to declare the Notification bearing
No.F -1(1)Imp/2010- 623 dated 5th July 2010, wherein 50% of Ad hoc Allowance
increase in Existing Basic Pay of in service employee by deriving the pensioners and
accordingly official res pondent may be directed with directions to amend the
notification by granting same benefits of 50% increase in Ad hoc Allowance in basic pay of pensioners including PTCL pensioners also.
Further this Hon'ble court may be pleased to direct the respondent No.5 to grant benefit of Medical Allowance to the pensioners of PTCL, including petitioner in the light of Memorandum No.F -16(1) REg- 6/2010 -778 dated 5th July 2010 issued by
Finance Division. (Regulations Wing)
Further any other relief which this Hon'ble court deems fit and proper may also be awarded in the interest of justice, equity and fairplay."
2. Petitioner at the very outset, contended that he was employee of the then Pakistan
Telegraph and Telephone (T&T) Department and their employments were trans ferred to
Pakistan Telecommunication Corporation (PTC) and then to the Pakistan Telecommunication Company Limited (PTCL); that the terms and conditions of his services were remained un-changed and guaranteed by the Federal Government by virtue of Section 35(2) and section 36 of the Act, 1996, which had further been protected by the company and the company could not vary the terms and conditions of service of any employee to his disadvantages, who previously remained as employee of the T&T and Corporation. T he petitioner mainly relied
on the judgment passed by the Hon'ble Supreme Court of Pakistan in case of "Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783". That in view of the judgment of the
Hon'ble apex Court the petitioner is entitled for increase in pay and pensionary benefits
announced by the Government from time to time.
3. On the other hand, learned counsel for PTCL contended that the petition is not
maintainable for want of jurisdiction, as the petitioner opted Voluntary Separation Scheme
(VSS) , even otherwise; the company has its own rules and regulations being un- statutory and
also the petitioner is availing pensionary benefits according to the policy of the company and the petitioner has efficacious alternate remedy for redressal of his griev ance; that the
judgment of Hon'ble Supreme Court of Pakistan, titled as "Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783" was person specific and other employees of Company, seeking the benefits of the judgment of the Hon'ble Supreme Court was dismi ssed, as such, the
petitioner is not entitled for the benefit of increase in pension of civil servant granted by the Government of Pakistan from time to time.
4. We have heard the learned counsel for the parties and perused the record, which
reveals that t he petitioner remained under the service of the then T&T merged in PTC and
then into PTCL, he rendered his services for more than 32 years and the terms and conditions of his service guaranteed by virtue of Section 9 of the Act, 1991 and sections 35(2) and 36 of
the Act, 1996, we have also gone through the judgment referred by the petitioner relied upon in the case of Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; wherein the apex Court of the country at paragraph No.14 observed as under:
"It is c lear from the reading of provision of the Act of 1991 so also that of the Act of
1996 that the terms and conditions of service of the Transferred Employees from T&T Department to the Corporation and then to the Company remain unaltered and they
continued t o be paid the benefits as were admissible to them as employees of T&T
Department"
5. Now adverting to the case of petitioner, nut and shell revolved around the increase of
pension equal to civil servants from time to time announced by the Federal Government. As far as the contention of the petitioner with regard to his entitlement to the same pension as is announced by the Government of Pakistan is concerned, the Hon'ble Supreme Court in case titled "Pakistan Telecommunication Employees Trust (PTET) v. Muha mmad Arif 2015
SCMR 1472 observed as under:
"For the foregoing reasons, we had come to the conclusion that the respondents, who were employees of T&T Department having retired after their transfer to the Corporation and the Company, will be entitled to the same pension as is announced by the Government of Pakistan and that the Board of Trustees of the Trust is bound to follow such announcement of the Government in respect of such employees "
While the Hon'ble apex Court observed in the case of Masood Ahme d Bhatti and
others v. Federation of Pakistan and others 2012 SCMR 152 observed as under:
"Thus it is evident that the moment of transition when the appellants ceased to remain the employees of the Corporation and became the employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the
PTC Act. The said rules, therefore, by definition were statutory rules as has been
discussed above. PTCL, no doubt, could make beneficial rules in relation to its employees which w ere in addition to the rules of employment prevailing on 1- 1-1996.
However, by virtue of the aforesaid proviso, PTCL had no power to "vary the terms and conditions of service" of its employees who were previously employees of the
Corporation, "to their dis advantage". Even the Federal Government was debarred by
virtue of section 35 ibid, from varying such terms and conditions of service to the
disadvantage of the appellants."
6. However, the above judgment came under review by the Larger Bench of the Hon'ble
Supreme Court of Pakistan in reported case as P.T.C.L. and others v. Masood Ahmed Bhatti
and others 2016 SCMR 1362; wherein the Hon'ble Supreme Court of Pakistan observed as
under:
"A fleeting glance at the provisions quoted above would reveal that the d epartmental
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 guarant ee the existing terms and conditions of service and rights including pensionary
benefits of the transferred 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. Though in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others and Divisional Engineer Phones, Phones Division, Sukkar and another v. Muhammad Shahid and others (supra) It was held that the departmental employees on their transfer to the Corporation and then to the Company would continue to be the Civil Servants, but this interpretation does not appear to be correct as they on their transfer became employees of the Corporati on under section 9 of the Act of 1991 and then of
the Company under section 35 of the Act of 1996. Retention of their status as civil servants is thus not supported by the words used in the aforesaid provisions."
7. In the light of aforesaid judgments of H on'ble Supreme Court of Pakistan, this Court
in Constitutional Petition No.1336 of 2017 and Constitutional Petition No.412 of 2018 while dealing with the identical matters has observed as under:
"20. From the above, it is obvious that the transferred empl oyees of T&T Department
became employees of the Corporation and then of the Company, but they are not civil servants anymore, however, terms and conditions of their services under sections 13 and 9(2) of the Act of 1991 and sections 35(2) and 36(1) and (2) of the Act, 1996 are
protected and none of the terms and conditions could be varied to their disadvantage, which are statutory as provided in sections 3 to 22 of the Act, 1973 and in case of any
violation, such employees can avail remedy by way of filing petition under Article
199 of the Constitution.
22. As regards the claim of the petitioner with regard to pay and other benefits equal to civil servants of Government employees, section 2(s)( t) of the Act of 1996 provides
that such employees are entitled to receive pensionary benefits from the Corporation and proviso of section 36 depicts that the Federal Government shall guarantee the
existing terms and conditions of service and rights, including pensionary benefits of
the transferred employees. Section 8 of the Act of 1991 further empowers the Federal
Government to issue policy/directive to the authority not inconsistent with the provision of the Act, 1991. The petitioner in view of the judgm ent of Hon'ble
Supreme Court is no more civil servant except the protection of terms and conditions of his service guaranteed under section 9 of the Act, 1991 and section 36 of the Act, 1996, and in respect of his claim of pay equal to civil servants from time to time of the Federal Government, he has alternate and efficacious remedy to approach the competent authority."
8. The perusal of entire record reflects that the petitioner neither had approached the
competent authority for redressal of his grievance nor brought on record any order of
competent authority passed adversely against the petitioner.
9. In view of the above observation has already been made by this Court, the petitioner
is no more civil servant except protection of terms and conditions of h is service guaranteed
under section 9 of the Act of 1991 and section 36 of the Act, 1996, as such, he has alternate and efficacious remedy to approach the competent authority for redressal of his grievance.
Thus, for the reasons discussed hereinabove the petition is dismissed with no order as
to cost.
ZC/20/Bal Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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