2019 P L C (C.S.) Note 48
[Balochistan High Court]
Before Syeda Tahira Safdar, CJ and Muhammad Ejaz Swati, J
ASAD MAHMOOD and another
Versus
FEDERATION OF PAKISTAN and others
C.Ps. Nos. 1336 of 2017 and 412 of 2018, decided on 20th February, 2019.
(a) Pakistan Telecommunication Corporation Act (XVIII of 1991) ---
----S.9 ---Pakistan Telecommunication (Re -Organization) Act (XVII of 1996), Ss.35 & 36---
Transfer of employees of T&T Department to Corporation ---Terms and conditions of service
of employees ---Ac ceptance of promotion on the terms and conditions of the Company---
Effect ---Petitioner claimed relief with regard to increase in pay, pension, promotion, transfer
as well as his status under which he was to be proceeded with for disciplinary proceedings by
the Department ---Petitioner contended that he was appointed in the erstwhile T&T
Department, which was converted into Pakistan Telecommunication Corporation by Pakistan
Telecommunication Corporation Act, 1991 and S.9 of said Act stipulated that all the employees of the department would, on the establishment of the Corporation, stand
transferred to and become employees of the Corporation on same terms and conditions to which they were before such transfer ---Validity ---Pakistan Telecommunication Corporation
Act, 1991 was published in the Gazette on 27th November, 1991 whereas petitioner was appointed in Pakistan Telecommunication Corporation on 31st December, 1991, after promulgation of Pakistan Telecommunication Corporation Act, 1991--- Petitioner was not an
employee of T&T Department and he was promoted by the Pakistan Telecommunication Company Limited--- Petitioner was an employee of Pakistan Telecommunication Corporation
and on his transfer, he opted promotion on the terms and conditions of Pakistan Telecomm unication Company Limited, thus no protection or benefit of S.9(2), Pakistan
Telecommunication Corporation Act, 1991 or benefit of S.35(2) or S.36(2) of Pakistan Telecommunication (Re -Organization) Act, 1996 was available to him, as he was not an
employee of T&T Department, but he was employed by Pakistan Telecommunication
Company Limited on its own terms and conditions ---Constitutional petition was dismissed.
Muhammad Riaz v. Federation of Pakistan through Secretary Ministry of Information
Technology Government of Pakistan, Islamabad and others 2015 SCMR 1783; 2010 SCMR 253; PLD 1980 Lah. 337; 2009 CLC 620; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others 2012 SCMR 152; 2016 SCMR 1363; PLD 1969 SC 356; PLD 1992 SC 825; 2015 SCMR 1472; [1979] IILLJ 86 Del.; Khalid Mehmood v. Government of Pakistan; C.A. No.230-L/2015; PTCL v. Tariq Mehmood, C.A. No.576/2007 and Asghar Ali v. PTCL W.P.
No.10380/2012 ref.
(b) Pakistan Teleco mmunication (Re -Organization) Act (XVII of 1996) ---
----Ss.35 & 36---Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9---
Constitution of Pakistan, Art. 199---Constitutional petition--- Transfer of departmental
employees (T&T Department) to Cor poration ---Terms and conditions of service of
employees ---Promotion ---Necessary parties ---Alternate and efficacious remedy ---
Availability of ---Effect ---Petitioner claimed relief with regard to increase in pay, pension,
promotion, transfer as well as his st atus under which he was to be proceeded with for
disciplinary proceedings by the Department ---Validity ---Petitioner was employee of T&T
Department, which was converted into Corporation by virtue of S.3 of Pakistan Telecommunication Corporation Act, 1991---Rights relating to the terms and conditions of services of such employees were guaranteed under S.9(2) of Pakistan Telecommunication Corporation Act, 1991, which could not be varied by the Corporation to their disadvantage ---
Pakistan Telecommunication Corp oration was converted into Company under Pakistan
Telecommunication (Re -Organization) Act, 1996--- Sections 35(2) & 36(2) of Pakistan
Telecommunication (Re -Organization) Act, 1996, further extended protection to the terms
and conditions of services of the e mployees transferred from Corporation to Company---
Petitioner was present in service therefore, relief sought by him regarding pension was premature---Sections 3 to 22 of Civil Servants Act, 1973 were the relevant sections under which disciplinary action could be taken against the petitioner ---Petitioner, for his claim of
promotion, though filed certain appointment orders of the employees of Pakistan Telecommunication Company Limited, but none of them were impleaded as party, therefore, in absence of necess ary parties no adverse order was permissible under law ---Petitioner had
remedy to first approach the Department for his due promotion or any of his grievance relating to transfer or disciplinary proceedings ---Petitioner had alternate and efficacious
remedy to approach the competent authority in respect of his claim of pay equal to civil
servants ---Constitutional petition was dismissed.
Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783; 2010 SCMR 253; PLD
1980 Lah. 337; 2009 CLC 620; Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others 2012 SCMR 152; 2016 SCMR 1363; PLD 1969 SC 356; PLD 1992 SC 825; Pakistan
Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472; [1979] IILLJ 86 Del.; Khalid Mehmood v. Government of Pakistan; C.A. No.230- L/2015; PTCL v. Tariq Mehmood, C.A. No.576/2007;
Asghar Ali v. PTCL W.P. No.10380/2012; Muhammad Zaman and others v. Government of Pakistan through Secretary Finance Division (Regulation Wings) Islamabad and others 2017 SCMR 571; PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; State
of Pakistan through Governor and others v. Imtiaz Ali Khan and others 2012 PLC (C.S.) 218; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Division Engineer Phones, Phones Divisi on Sukkur and another v. Muhammad
Shahid and others 1999 SCMR 1526; Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222; Ahmed Khan Niazi v. Through Municipal Administration, Lahore through Town Municipal Officer a nd 2 others PLD 2009 Lah. 657
and Muhammad Din v. Nazar Muhammad Khan and others PLD 1966 (W.P.) Lah. 780 ref.
Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O
Information Technology and Telecommunication and others 2012 SCMR 152; Pakistan
Telecommunication Employees Trust (PTET) through M.D., Islamabad and others v.
Muhammad Arif and others 2015 SCMR 1472; PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362; Muhammad Riaz v. Federation of Pakistan through Secreta ry
Ministry of Information Technology Government of Pakistan, Islamabad and others 2015 SCMR 1783; Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others PLD 2011 SC 132; Divisional Engineer Phones Phones Division Sukkur and another
v. Muhammad Shahid and others 1999 SCMR 1526; Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others PLD 1996 SC 222 and Criminal Appeal No.2 of 2018 rel.
(c) Pakistan Telecommunication (Re -Organization) Act (XVII of 1996) ---
----S s.35 & 36--- Pakistan Telecommunication Corporation Act (XVIII of 1991), S.9--- Civil
Servants Act (LXXI of 1973), Ss.3 to 22--- Civil servant ---Scope ---Constitution of Pakistan,
Art.199--- Constitutional petition ---Transfer of departmental (T&T Department) employees to
Corporation--- Terms and conditions of service of employees ---Scope ---Transferred
employees of T&T Department became employees of the Corporation and then of the Company, but they were not "civil servants" anymore, however, terms and conditions of their services under Ss.13 & 9(2) of Pakistan Telecommunication Corporation Act, 1991 and Ss.35(2) & 36(1) and (2) of Pakistan Telecommunication (Re -Organization) Act, 1996 were
protected and none of the terms and conditions could be varied to their disa dvantage, which
were statutory as provided in Ss. 3 to 22 of Civil Servants Act, 1973 and in case of violation, such employees could avail remedy by way of filing petition under Art.199 of the Constitution. [Para. 20 of the judgment]
Masood Ahmed Bhatti a nd others v. Federation of Pakistan through Secretary M/O
Information Technology and Telecommunication and others 2012 SCMR 152 and PTCL and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362 rel.
M/s Syed Ansar Hussain Zaidi, Masood Ahmed Bhatti, Fa rooq Anwar and
Muhammad Saleem Ansari for Petitioner (in C.P. No.412 of 2018).
Shahid Anwar Bajwa, Adnan Ejaz and Salman Zafar for Respondents Nos.2 and 3.
Abdullah Khan Kakar, Deputy Attorney General.
Date of hearing: 13th December, 2018.
JUDGMENT
MUH AMMAD EJAZ SWATI, J. ---Since both the Petitions relate to same facts and
law, therefore, are being disposed of through this common judgment.
2. The Telecommunications in Pakistan were being run by Pakistan Telegraph and
Telephone (T&T) Department of Federal Government of Pakistan. The T&T Department was
converted into Pakistan Telecommunication Corporation (PTC) by the Act of Parliament i.e. Pakistan Telecommunication Act, 1991 (the Act 1991), which was promulgated to establish Pakistan Telecommunication Co rporation (PTC) and published in the Gazette of Pakistan,
Extra -Ordinary Part 1 on November 27, 1991. Section 9 of the Act, 1991 stipulates that all
the departmental employees shall, on the establishment of the Corporation stand transferred to and became employees of the Corporation on the same terms and conditions, to which they were directly before such transfer. The function of the Corporation is to establish, maintain and operate Telecommunication with transfer of assets employees of the T&T Department to
the Corporation. Sections 9(1), (2) and (3) of the Act, 1991 provide as under:
"(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of services, all departmental, employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take discipl inary action
any such employee.
(2) The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantages.
(3) Notwithstanding anything contained in any law for that time be ing in force, no
person shall stands transferred to the Corporation by virtue of subsection (1) shall be entitled to any compensation because of such transfer."
Section 2(e) of the Act, 1991 defines the departmental employees as under: -
"Departmental emp loyees" means employees belonging to the Pakistan Telegraph and
Telephone Department and includes employees of the said Department who may for the time being, be serving in other organizations, but does not include members of the accounts group or secretar iat group or other employees of external organizations who
may be serving in the said Department."
Section 8 of the Act, 1991 states about the employment of the officers, servants,
experts and their terms and conditions of service as under:
"Officers and servants. ---(1) The Corporation may from time to time employ such
officers and servants and appoint such experts or consultants, as it may consider necessary for the performance of its functions, on such terms and conditions as it may deem fit appointment of its officers, servants, experts and consultants, and the terms
and conditions of their service."
3. After above, the Pakistan Telecommunication (Re -Organization) Act, 1996 (the Act,
1996) was promulgated under section 2(d) of the Act, 1996, which defined the Company to be the Pakistan Telecommunication Company Limited (PTCL). Section 2(s)(t) of the Act, 1996 defines the Telecommunication Employees as under:
"telecommunication employees" means the employees of the Corporation who are transferred to the employment of the Company under this Act, other than those to
whom subsection (3) of section 36 applies, and all persons who, on the effective date
for the Company were employees of the Corporation the former Telegraph and
Corporation Department of the Federal Government and are receiving or are entitled to receive pensionary benefits from the Corporation."
Section 35 of the Act, 1996 deals with vesting of the rights, property and liabilities of the Corporation to the Company. Subsection (2) of section 35 deals with transfer of the employees of the Corporation and Company as under section 36(2) of the Act of 1996 settled the terms and conditions of the transferred employees to the Company as under:
"(2) Subject to subsection (3), the terms and conditions of service of any Transferred
Employee shall not be altered adversely by the Company except in accordance with the laws of Pakistan or with the consent of the Transferred Employees and the award of appropriate compensation."
4. The petitioner Asad Mehmood (i n C.P. No. 1336 of 2017) was appointed as Junior
Accounts Clerk (JAC) (BPS -5) on probation for a period of one year w.e.f. 31st December,
1991 in PTC by the General Manager, Western Telecom Region, Quetta. He was posted an Accounts Officer Telephone Revenue, Khuzdar and at present, he is working as Accounts Officer (BPS -17).
5. The petitioner Imran Aziz (in C.P. No. 412 of 2018) was employed in T&T
Department, Office of the Government Management Western Telecom Region, as Junior Accounts Clerk (JAC) on 11th December, 1988 and at present he is working as Revenue
Officer (RO) (BPS -17).
6. The petitioners claimed relief with regard to increase in pay and pension equal to civil
servants from time to time announced by the Federal Government and their promotions, transfers as well as status under which they are to be proceeded with for disciplinary proceedings by the Department.
7. Learned counsel for the petitioners contended that the petitioners were appointed in
the erstwhile T&T Department, which was converted into PTC by the Act of the Parliament i.e. Act, 1991 and Section 9 of the said Act, 1991 stipulates that all the departme ntal
employees shall, on the establishment of the Corporation stand transferred to, and became employees of the Corporation on the same terms and conditions, to which they were before such transfer; that under section 35(2) and Section 36 of the Act, 1996, the terms and
conditions of service of any employee of the Company had further been protected are the Company could not vary the terms and conditions of service of any employee to his disadvantages, who previously remained an employee of the Corporation; that the Rules of the PTC are statutory, therefore, Constitutional jurisdiction could be invoked; that the Federal Government is under legal obligation to guarantee of terms and conditions of service including revised pay equal to the employees of the Fede ration, as the services of the
petitioners provided by sections 35(2) and 36(1) and (2) of the Act, 1996 are statuary and guaranteed, therefore, the petitioners are entitled for the revised pay equal to the employees of the Federation; that change of terms and conditions through agreement cannot be
permitted, as it is against the public policy; that the judgment passed by the Hon'ble Supreme Court of Pakistan in Muhammad Riaz v. Federation of Pakistan 2015 SCMR 1783, the
petitioners are entitled for increas e in pay and pension as announced by the Government
from time to time, which further attracts Article 189 of the Constitution of Islamic Republic
of Pakistan, 1973 (the Constitution).
8. In respect of laches, learned counsel for the petitioners
contended that the issue related to "pay" is a fundamental right, which is prompted in
terms of Article 24 of the Constitution. He further contended that issue related to "pay" is recurring cause of action and no question of laches arises. He placed relian ce on the cases
reported in (i) 2010 SCMR 253, (ii) PLD 1980 Lahore 337, (iii) 2009 CLC 620, (iv) 2012 SCMR 152, (v) 2016 SCMR 1363, (vi) PLD 1969 SC 536, (vii) PLD 1992 SC 825, (viii) 2015 SCMR 1472, (ix) 2015 SCMR 1783, [1979] IILLJ 86 Del, Khalid Mehmood v. Government of Pakistan, C.A. No.230- L/2015, PTCL v. Tariq Mehmood, C.A. No.576/2007,
Asghar Ali v. PTCL W.P. No.10380/2012, letter dated 28.11.2018.
The learned counsel for Pakistan Telecommunication Company Limited, contended
that as a matter of fac ts and record, the employees, who were in service prior to 1st January
1991 were governed under Statuary Service Rules, but the said Rules are not applicable to the employees, who were inducted in service by the Corporation after 1st January 1991; that none of the judgments referred to by the learned counsel for the petitioners indicate that the employees joined the Corporation after 1st January, 1991, were governed under Statuary Rules; that section 20 of the Act, 1991, empowers the Corporation to frame Rules, thus, the Rules framed under the said Act were non -statutory; that the petitioner in C.P. No.1336 of
2017, joined the Corporation after 1st January, 1991 i.e. 31st December, 1991, therefore, C.P. No.1336 of 2017 is not maintainable; that C.P. No.412 of 2018 is maintainable, but the
petitioner of C.P. No.412 of 2018, is bound to follow terms and conditions of Sections 35 and 36 of the Act, 1996; that the petitioners are not civil servants, therefore, in view of Section 36 of the Act, 1996, they have no vested right to claim increase in pay announced by the Federal Government, unless approached the Federal Government; that the petitioners had efficacious and alternate remedy; that the judgment of the Hon'ble Supreme Court of Pakistan, titled as Muhammad R iaz v. Federation of Pakistan 2015 SCMR 1583, was person
specific and other employees of the Company, applications for seeking the benefit of the judgment of the Hon'ble Supreme Court was dismissed.
The learned Deputy Attorney General representing the res pondent No. 1 while
adopting the arguments advanced by Mr. Shahid Anwar Bajwa, Advocate contended that benefit of section 9 of the Act, 1991 and sections 35(2) and 36 of the Act, 1996 is not available to the petitioner in C.P. No. 1336 of 2017, as he joine d services of the Corporation
after promulgation of the Act of 1991; that the petitioners have no vested right to claim their promotion without following the process prescribed under Pakistan Telecommunication Corporation Limited Service Regulation, 1991. It is further contended that main purpose of
filing these petitions is to defer the transfer and the disciplinary proceedings initiated by the management against them.
9. The learned counsel for the petitioners while exercising their right of rebuttal
contended that protection under section 9 of the Act, 1991 and sections 35(2) and 36 of the
Act, 1996 were extended to all the employees, who were in service of the Corporation prior
to 1st January 1996; that sections 3 to 22 of the Civil Servants Act, 1973 (t he Act, 1973)
have been made applicable for the employees of the Corporation and other companies by the Hon'ble Supreme Court in petitions and judgment reported in 2016 SCMR 1362, therefore, entitled the petitioners for revised pay equal to Federal Governm ent employees.
10. We have heard the learned counsel for the parties and perused the record annexed
along with the petitions. Adverting to the case of Asad Mehmood petitioner in C.P. No.1336 of 2017 with regard to status of his employment including terms a nd conditions and
provisions of regulating his service. The Act of 1991 was published in the Gazette on 27th November 1991, whereas the petitioner Asad Mehmood was appointed in Corporation (PTC) on 31st December, 1991, after promulgation of the Act of 1991. He was not employee of T&T Department, as he was appointed after 1st January, 1991 and he was promoted by the PTCL as Accounts Officer (BS -17) vide order dated 12th February, 2016, which reads as
under:
"Management is pleased to promote you to the posit ion of Accounts Officer (BPS -17)
as per channel of promotion with immediate effect you will be entitled to avail financial benefits as admissible to the new position as per Company policy."
11. Admittedly, the petitioner Asad Mehmood was employee of PTC and on his transfer,
he opted promotion vide order dated 12th February 2016 on the terms and conditions of the Company policy, thus no question of protection or benefit of section 9(2) of the Act, 1991 or section 35(2) or 36(2) of the Act of 1996 was availab le to him, as he was not employee of
T&T Department, but he was employed by PTCL on its own terms and conditions and he shall be dealt with accordingly. Reference in this respect is to be made to Civil Appeal No.
576 of 2007 decided by the Hon'ble Supreme Court of Pakistan vide order dated 24th August 2015, which reads as under:
"As far as Muhammad Naeem and Muhammad Faheem (respondents Nos.2 and 3) are concerned, they were not employees of T&T, but they were employed by Pakistan Telecommunication Corporat ion on its own terms and conditions, therefore, they shall
be dealt with in accordance with their terms and conditions of service settled by the Pakistan Telecommunication Corporation."
12. The case of Masood Ahmed Bhatti and others reported in 2012 SCMR 152 relied
upon by the learned counsel for the petitioners to the extent of petitioner Asad Mehmood is not attracted to his case, as the judgment ibid relates to three employees, who were employed by the Federation in the T&T Department prior to the enactme nt of the Act, 1991, whilst the
petitioner was appointed in the PTC after promulgation of the Act of 1991, therefore, the petitioner Asad Mehmood was not employee of erstwhile T&T Department, thus protection under section 9(2) of the Act, 1991 and section 36 of the Act 1996, is not attracted to his case
and his terms and conditions of service related to pay, transfer and disciplinary proceedings is to be governed under Pakistan Telecommunication Company Limited Service Regulation, 1996 (the Service Regulati on, 1996) and without adopting the process prescribed under the
Service Regulation, the instant petition for his extent is not maintainable.
13. Whereas C.P No. 412 of 2018 is concerned, the learned counsel for the respondents
conceded that the Constitutional Petition is maintainable. In the instant petition, it is
contended that by virtue of section 9(2) of the Act 1991 and sections 35(2) and 36(2) of the Act, 1996, the petitioner retained his status as a civil servant by operation of law, therefore, he is entitled to the pay and other benefits announced by the Federal Government for its
employees from time to time. He is also entitled for promotion, transfer and disciplinary
proceedings in the manner prescribed under the Act, 1973. Though the employees of the
T&T Department were civil servants, but by operation of law, they are required to be dealt
with in the change terms and conditions of their services; firstly upon their transfer in the Corporation and then in PTCL (Company). Reference in this respect i s to be placed to the
following judgments:
(1) Muhammad Zaman and others v. Government of Pakistan through Secretary Finance Division (Regulation Wings) Islamabad and others (2017 SCMR 571).
(2) PTCL and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362),
(3) Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others (2012 SCMR 152),
(4) Muhammad Riaz v. Federation of Pakistan through Secretary Ministry of Information
Technology Government of Pakistan, Islamabad and others (2015 SCMR 1783)
(5) State Bank of Pakistan through Governor and others v. Imtiaz Ali Khan and others (2012 PLC (C.S.) 218),
(6) Pakistan Telecommunication Co. Ltd through Chairman v. Iqbal Nasir and others
(PLD 2011 SC 132),
(7) Divisional Engineer Phones, Phones Division Sukkur and another v. Muhammad Shahid and others (1999 SCMR 1526),
(8) Pakistan Telecommunication Corporation a nd another v. Riaz Ahmed and 6 others
(PLD 1996 SC 222),
(9) Ahmed Khan Niazi v. through Municipal Administration, Lahore through Town Municipal Officer and 2 others (PLD 2009 Lahore 657) and
(10) Muhammad Din v. Nazar Muhammad Khan and others (PLD 1966 ( WP) Lahore
780)."
14. Admittedly, the petitioner in C.P No.412 of 2018 was employee of T&T Departrfient,
which was converted into Corporation by virtue of section 3 of the Act 1991. The rights related to the terms and conditions of services of such employees were guaranteed under section 9(2) of the Act, 1991, which shall not be varied by the Corporation to his disadvantages. The Corporation (PTC) converted into Company under the Act, 1996. Sections 35(2) and 36(2) of the Act, 1996 further extend protection to the terms and
conditions of services of the employees transferred from Corporation to the Company. In the case titled Pakistan Telecommunication Corporation and another v. Riaz Ahmed and others PLD 1996 SC 222, it was observed that "employees of erstwh ile T&T Department to
Corporation are civil servants within the meaning of Civil Servant Act, 1973." It was also
followed in case titled Divisional Engineer Phones, Phones Division Sukkur and another v. Muhammad Shahid and others 1999 SCMR 1526.
In Pakist an Telecommunication Company Limited through Chairman v. Iqbal Nasir
and others PLD 2011 SC 132, it was observed that "Services Regulation of PTC are non-statutory".
In the case titled Pakistan Telecommunication Employees Trust (PTET) through MD.,
Islamabad and others v. Muhammad Arif and others 2015 SCMR 1472, the Hon'ble Supreme Court of Pakistan at Paragraph No. 18 of the judgment observed that "the terms and conditions of service so also the rules of service which were applicable to the T&T Department e mployees while in the employment of the Government of Pakistan will continue
to be applicable to them on their transfer to the Corporation and then to the Company".
In Muhammad Riaz v. Federation of Pakistan through Secretary, Ministry of
Information Tech nology, Government of Pakistan, Islamabad and others, 2015 SCMR 1783,
the Apex Court of the Country at Paragraph No. 14 observed as under: -
It is clear 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
to be paid the benefits as were admissible to them as employees of T&T Department."
15. In the above referred case, the petitioner Muhammad Riaz was held entitled to
payment of increase in pay and pension as announced by the Government from time to time. In view of the above referred judgment of the Apex Court of the Country, the learned counsel for the petitione rs though contended that by Article 189 of the Constitution of Islamic
Republic of Pakistan, 1973 (the Constitution), any decision of the Hon'ble Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principl e
of law, be binding on all other Courts in Pakistan, however, could not refute the contention of the learned counsel for the PTCL that the above referred judgment of Hon'ble Supreme Court was not a precedent with regard to any other case on the following reasons:
"The petitioner Muhammad Riaz through Criminal Original Petition No. 63 of 2015 had sought the enforcement / implementation of the afore -referred judgment dated
July, 6th 2015 passed in Civil Petition No. 797 of 2015, wherein 714 employees of PTC L and Pak Telecom had also filed Criminal Miscellaneous Application No.
1631/2017 for impleadment as party, the Hon'ble Apex Court vide order dated 27- 10-
2017 while dismissing the same observed as under: -
"This application has been filed by 714 employees of the PTCL and Pak Telecom Peoples Employees Unity, through Senior Counsel Mr. Muhammad Latif Khan Khosa, who seek to be impleaded as parties in Criminal Original Petition No. 63 of 2015. However, since Criminal Original Petition No. 63 of 2015 arises out of the
judgment dated July 6, 2015 in Civil Petition No. 797 of 2015, wherein none of the applicants were arrayed as parties, there is no reason to implead them in the present
proceedings, particularly when PTCL has settled the matter with Mr. Muhammad
Riaz. Consequently, this application is dismissed. However, the dismissal of this
application would not in any manner adversely affect the rights, if any, of the applicants."
16. In Criminal Appeal No.2 of 2018 filed by PTCL in Criminal Original Petition No. 63
of 2015, the Hon'ble Supreme Court vide order dated 7th February 2018 was pleased to observe as under:
"That since the parties could not agree about the amount that was payable pursuant to the aforesaid order the Registrar was assigned the task to cal culate the same which he
has done. We have examined the Registrar's calculations of the amounts. The learned counsel has not been able to persuade us that such calculations are contrary to the aforesaid order. However, as regards the matter of availing bot h free medical services
and also receiving a medical allowance, Muhammad Riaz has to elect which he wants and as regards the concern of the appellant that the payment will constitute a precedent such contention is not correct as it had already been noted i n the said order
that it would not constitute a precedent with regard to any other case.
Subject to the aforesaid observation/clarification the appeal against the Registrar's order is dismissed."
17. Now adverting to the instant case, the relief claimed b y the petitioner with regard to
increase in pay and pension equal to civil servant from time to time announced by the Federal Government and his promotion, transfer as well as status of the petitioner under which he is to be proceed with for disciplinary proceedings by the Department. 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 Trus t (PTET) v. Muhammad 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 relied 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."
18. In the instant case, the petitioner at present is in service and the relief sought by him
is premature. The August Apex Court case titled Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary Ministry of Information Technology and Telecommunication and others, 2012 SCMR 152, the Ho n'ble Supreme Court observed that
"these appeals have been filed by three individual appellants, who admittedly were civil servants employed by the Federation in Telephone and Telegraph (T&T) Department prior to enactment of Pakistan Telecommunication Corp oration Act, 1991 (the PTCL Act) and in
para No. 15, it was observed as under:
"Thus it is evident that at the moment of transition when the appellants ceased to remain the employees of the Corporation and became the employees of PTCL, they
admittedly wer e governed by rules and regulations which had been protected by the
PTCL 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 were in a ddition 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 disadvantage", 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."
19. The above judgment came under review by the Larger Bench of the Hon'ble Supreme
Court of Pakistan in case reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others 2016 SCMR 1362, the Hon'ble Supreme Court observed as under:
"A fleeting glance at the provisions quoted above would reveal that the departmental employees on their trans fer 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 section 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 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 o f the High Court. Though in the cases of
Pakistan Telecommunication Corporation and anther v. Riaz Ahmed and 6 others and Divisional Engineer Phones, Phones Division, Sukkur 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 Corporation 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."
20. From the above, it is obvious that the transferred employees 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 fil ing petition under Article 199 of the Constitution.
21. The provisions of sections 3 to 22 of the Act, 1973 including disciplinary matters are
disciplinary action against such employees, they are to be proceeded with under the said
Service Rules being prot ected in view of the judgment of the Hon'ble Supreme Court of
Pakistan reported in 2016 SCMR 1362. The petitioner for his claim of promotion though
filed certain appointment orders of various employees of the PTCL, but none of them had been impleaded as a party, therefore, in absence of necessary parties, no adverse order is permissible under the law, even otherwise, the petitioner has remedy to first approach the
Department for his due promotion, if any or any of his another grievance related to transfer
or disciplinary proceedings.
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 f urther 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 judgment 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 ap proach the competent authority.
In view of the above, Constitutional Petitions Nos. 1336 of 2017 and 412 of 2018 and
dismissed accordingly. Parties are left to bear their own costs.
SA/53/Bal Petitions 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,
let us know.