PLJ 2019 Quetta 71 (DB)
Present : MUHAMMAD HASHIM KHAN KAKAR AND ABDULLAH BALOCH , JJ.
MUHAMMAD SALEEM MALIK --Petitioner.
versus
GOVERNMENT OF PAKISTAN through its Secretary Finance Division, Regulation Wing, Pakistan
Islamabad
and others --Respondents
C.P. No. 287 of 2011, decided on 21.3.2019.
Pakistan Telecommunication Act, 1991 --
----S. 9 --Pakistan Telecommunication (Re -organization) Act, 1996 (XVII of 1996) --S. 35(2) & 36-- Petitioner
was employee of T&T department --Transfer of em ployment from T&T to PTCL --Voluntary separation
scheme --Availing of pensionary benefits --Alternate remedy --Jurisdiction --Maintainability --Challenge to --
Perusal of entire record reflects that petitioner neither had approached competent authority for redress al of his grievance nor brought on record any order of competent authority passed adversely
against petitioner --In view of observation has already been made by this Court, petitioner is no more
civil servant except protection of terms and conditions of his service guaranteed under section 9 of Act
of 1991 and section 36 of Act 1996, as such, he has alternate and efficacious remedy to approach
competent authority for redressal of his grievance --Petition was dismissed.
[Pp. 77] A & B
2016 SCMR 1362, 2015 SC MR 1472 & 2012 SCMR 152, ref.
Petitioner in person.
Mr. Alla -ud-Din Baloch, Assistant AG for Respondent Nos. 1 & 2.
Mr. Shahid Anwar Bajwa, Advocate for PTCL and Mrs. Sabira Islam , Additional Advocate General for
Respondent Nos. 3, 4 & 5.
Date of hearing: 4.3.2019.
J
UDGMENT
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'bl e Court may kindly 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 bene fits to the retired employees as well.
Further this Hon'ble Court may kindly be pleased to declare the impugned notification bearing No. F.A (1) 6/210/721 dated 05 -07-2010 also as discriminatory and the Government be directed to extend the
same benefits to equal rote 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 Adhoc Allowance increase in Existing Basic Pay of in service
employee by deriving the pensioners and accordingly of ficial respondent my (sic) be directed with
directions to amend the notification by granting same benefits of 50% increase in Adhoc 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 employm ents were transferred 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 virt ue 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 an d Corporation. The 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 redr essal of his grievance; 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 Supr eme Court was dismissed, 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 the 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 an d Sections 35(2) & 36 of the Act, 1996, we have also gone through the
judgment referred by the petitioner relied upon in the case of Muhammad Riaz vs. Federation of
Pakistan 2015 SCMR 1783; wherein 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"
5. Now adverting to the case of petitioner, nut and shall 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) vs. 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 retired after their transfer to the Corporation and the Company, w ill 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 Ahmed Bhatti and others v. Federation of
Pakistan and others , 2012 SCMR 152 observed as under:
"Thus it is evident that at the moment of transition when the appellants ceased to remain the employe es
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 were 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 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."
6. Howeve r, 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 other , 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 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 o f 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. N ot
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
essen tially 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, Pho nes 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 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."
7. In the light of aforesaid judgments of Hon'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 obs erved as under:
"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 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, Se ction 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 ri ghts, 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 o f 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 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 conditi ons of his 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 hereinabov e the petition is dismissed with no order as to cost.
(Y.A.) Petition DismissedThis 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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