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Petitioner: Muhammad Qamurdin VS Respondent: Federation of Pakistan etc
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Muhammad Qamurdin vs Federation of Pakistan etc Case No.: W.P. No.28225 of 2016 Date of Judgment:2018-06-08 Reported As: 2018 [M] C.L.R. 1418, PLJ 2019 Lahore 6, 2018 LHC 1041 Result: petition disposed of
Judgment Through this single order , I intend to decide this petition as well as those mention ed in Schedule-A, B & C having commonality of law and facts inasmuch as in the Writ Petitions enumerated in Schedule-A the petitioners have inter-alia sought a direction restraining the respondents to alter their basic pay scales and to increase their salary according to the revision introduced by the Federal Government from time to time whereas in the petitions mentioned in Schedule-B the petitioners have inter-alia prayed for restoration of their pension from the date of their retirement and payment of arrears of pension on the basis of restored pension in view of the judgment of the Apex Court of the country reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , M/O Information Technology and Telecommunication and others (2012 SCMR 152) while Schedule-C comprises of petitions filed by the employees who retired from service under VSS wherein they have inter-alia prayed for payment of pensionary benefits as admissible to ordinary retirees. 2. Mr. Khalid Ismail, Advocate represent ing the petitioners in certain petitions submits that the petitioners were appointed by the Pakistan Telecommunication Corporation (hereinafter to be referred as 'the Corporation ') and according to section 35 of the Pakistan Telecommunication (Re organization) Act, 1996 (hereinafter to be referred as 'the Act 1996 ') their terms & conditions of service were fully protected; that as the regulations framed by the Corporation were adopted by the Pakistan Telecommunication Company Limited (hereinafter to be referred as 'the PTCL ') at the time of transfer of the petitioners to the PTCL, their existing terms & conditions were protected; that according to section 20 of the Pakistan Telecommunication Corporation Act, 1991 (hereinafter to be referred as 'the Act 1991 ') till the framing of service rules/regulations by the Corporation, the rules/regulations applicable to the employees transferred from Telephone & Telegraph Department (hereinafter to be referred as T&T Department) were applicable to the employees of the Corporation and that PTCL sought legal opinion/advice from the Ministry of Information & Technology (I.T. & Telecom Division) regarding the terms & conditions of the transferred employees
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whereupon it was opined that they were entitled to the same terms & conditions prevalent at the time of their transfer from the Corporation to PTCL. 3. Hafiz Tariq Nasim, Advocate representing the petitioner in W.P.No.168790/2018 (Schedule-A) argues that the petitioner was appointed as Telephone Supervisor upon recommendations by the Establishment Division, his terms & conditions were at par with those of the civil servants; that according to claus e 16.2 of the Share Agreement between the Government of Pakistan and Etisalat International Pakistan, all the transferred employees irrespective of their induction by the T&T department or the Corporation were held entitled to the statutory protection regarding their terms & conditions of service. In support of his arguments, learned counsel has referred to Paras No.13, 14 & 18 of the judgment reported as Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , M/O Information Technology and Telecommun ication and others (2012 SCMR 152), Paras No.8 & 23 of the judgment reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362 ), Zarai Taraqiati Bank Limited v. Said Rehman and others (2013 SCMR 642) and Muhammad Riaz v. Federation of Pakistan through Secretary , Ministry of Information Technology , Government of Pakistan, Islam abad and others (2015 SCMR 1783 ). 4. Mr. Ishtiaq A. Chaudhary , Advocate representing the petitioners in most of the petitions, in addition to adopting the arguments advanced by M/s Khalid Ismail and Hafiz Tariq Nasim, Advocates submits that the employees who were transferred firstly to the Corporatio n and then to the PTCL are entitled to the same perks & privileges as admissible to the civil servants; that since the Act 1991 did not repeal the rules applicable to the employees of T&T department, they were also applicable to the employees of the Corporation; that none of the petitioners, being represented by him, are either contract or work charge employee, thus, their terms & conditions cannot be altered or varied by the PTCL to their disadvantage; that the service regulations which were framed by the Corporation in the year 1996 could not be made applica ble retrospectively to the disinterest of the employees of the Corporation who joined prior to the year 1996; that prior to the promulgation of the Act 1996, the Telecommunication Ordinance, 1995 was enforced on 07.03.1995 and according to section 12 thereof all the employees, irrespective of the fact whether recruited by the Corporation or became employees of the Corporation under section 9 of the Act 1991, were transferred to the PTCL on the same terms & conditions which were applicable to them immediately prior to their transfer; that the Apex Court of the country in the case of Masood Ahmed Bhatti and others (Supra) has already held that the employees who were in service, prior to 01.01.1996, were governed under the statutory service regulations and the benefits given by the Federal Government to its employees from time to time were/are admissible to them, thus, they are entitled to revised pay as determined by the Federal Government. Relies on P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362 ), Muhammad Riaz v. Federation of Pakistan through Secretary , Ministry of 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 ), Zarai Taraqiati Bank Limited v. Said Rehman and others (2013 SCMR 642), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , M/O Information Technology and Telecommunication and others (2012 SCMR 152), Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others (2010 SCMR 253), Pakistan Telecommunication Company Limited v. Province of N.-W .F.P. through Secretary , Excise and Taxation, Peshawar and others (PLD 2005 SC 670), Order , dated 09.01.2017, passed by the Apex Court of the country in Crl. Org. Petition No.63 of 2015 in Civil Petition No.797 of 2015 titled Muhammad Riaz v. Walid Irshaid , Order , dated 19.02.2016 passed by the Apex Court of the country in Civil Review Petition Nos247-249 of 2011 in Civil Appeals No.239 to 241 of 2011 titled P.T.C.L. etc. and others v. Masood Ahmed Bhatti etc., Judgment, dated 23.08.2013, rendered by the Apex Court of the country in Civil Petitions No.717 and 718 of 2013 titled The President PTCL and others v. Faiz-ur Rehman , Order , dated 06.12.2013, passed by the Hon'ble Supreme Court of Pakistan in Civil Review Petitions No.253-254 of 2013 in Civil Petitions No.718-718 of 2013 titled President PTCL, Islamabad and others v. Faiz-ur-Rehman and others and order , dated 19.11.2012, passed by the Apex Court of the country in Civil Petition Nos. 613 and 614 of 2012 titled Pakistan Telecommunication Company Limited through its President v. Muhammad Samiullah and others , Pakistan Telecommunication
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Company Limited v. Mohammad Dilpazeer Abbasi and others (2016 PLC 367), Hassan Muhammad Rana v. P.T.CL. through President and another (2012 PLC 386), Atique Hussain and another v. Federation of Pakistan through Secretary , Ministry of Communication and 2 others (2005 CLC 1931 ), Order , dated 21.04.2015, passed by this Court in W.P. No.10380/2012 titled Asghar Ali v. PTCL through its President etc, Judgment, dated 25.01.2016, passed by this Court in ICA No.861/2015, titled PTCL Vs. Asgh ar Ali, Judgment, dated 16.11.2015, passed by this Court in W.P. No.19546/2012 titled Ch. Basharat Ali v. Pakistan Telecommunication Company Limited and another , Judgment, dated 03.05.2016, rendered by this Court in ICA No.1772/2015, titled Pakistan Telecommunication Company Ltd. and another v. Ch. Basharat Ali, Order , dated 15.03.201 1, passed by the Islamabad High Court, Islamabad in W.P. No.4853/2012, titled Muhammad Ashraf etc. v. Pakistan Telecommunication Company Limited etc. and Judgment, dated 21.03.2012, rendered by the Peshawar High Court, D.I. Khan Bench, in W.P. No.19-D/2012 titled Muhammad Samiullah v. Pakistan Telecommunication Company Limited through its President etc. 5. Mian Jaafer Hussain, Advocate representing the petitioners in W.P. No. 23575/2016 (Schedule-A) has adopted the arguments advanced by Hafiz Tariq Nasim, Advocate. 6. Mr. Muhammad Imran Chohan, Advocate representing the petitioners in certain petitions states that some of the petitioners being represented by him having already retired from service have filed their representations for redressal of their grievances regarding provision of pay and pensionary benefits according to the revised rate and that the petitioners who are still serving the PTCL are being penalized while re-des ignating their posts just to bring them out of the mainstream with a view to deprive them from service benefits to be given by the Federal Government from time to time. 7. Learned Assistant Attorney General states that as no relief has been claimed against the Federation rather the plea of the petitioners is that as the Federal Government is guarantor towards the protection of terms & conditions of the petitioners, prevalent at the time of their transfer to the Corporation or to the PTCL, the real contest is between the petitioners and PTCL. 8. Mr. Shahid Anwar Bajwa, Advocate representing PTCL in some of the cases argues that as a matter of fact the employees who were in service prior to 01.01.1991 were governed under statutory service rules but the said rules are not applicable to the employees who were inducted in service by the Corporation after 01.01.1991; that in none of the judgments, referred by the counsel for the petitioners, it has been held that the employees who joined the Corporation after 1991 were governed under statutory rules; that section 9 of the Act 1991 empowered the Corporation to frame rules without the intervention of the government, thus, the rules framed under the said Act were non-statutory in nature; that as per section 59(2) of the Act 1996 only existing terms & conditions of service of transferred employees which were applicable at the time of their transfer to the PTCL were protected but the said fact cannot be used to declare the Service Regulations framed by the Corporation as statutory , thus, the writ petitions filed on behalf of the transferred employees, who joined the Corporation after 01.01.1991, are not maintainable; that the Apex Court of the country has already decided in Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) that the employees who severed their relation with the department under VSS were not entitled to pensionary benefits admissible to the ordinary retirees; that the latest judgment on the subject passed by a Five Member Bench has been reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362) whereby the earlier judgments passed in the cases of Muhammad Shahid and Muhammad Riaz (Supra) have been revisited by the Apex Court of the country, thus, they cannot be quoted as precedent; that all the employees of T&T department were not civil servants as according to section 2(b)(iii) of the Civil Servants Act, 1973 the workmen have been ousted from the definition of civil servant which fact has further been affirmed under clause 9 of Second Schedule to Workmen Compensation Act, 1923 according to which the persons related with establishment of telephone industry etc. are workmen, thus, these petitions are not maintainable; that according to the plain language of Act 1991 and the Act 1996 the employees were entitled to pay protection which was admissible at the time of their transfer but the said fact cannot be used to compel the PTCL to pay salaries to the transferred employees according to the rates revised by the Federal Government from time to time; that the judgment of the Apex Court of the country in
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the case of Zarai Taraqiati Bank Limited (Supra) is not applicable to these petitions inasmuch under section 6 of the Agricultural Development Bank of Pakistan (Re-organization & Conversion) Ordinance, 2002 the rules and regulations prevalent in the erstwhile Agricultural Development Bank of Pakistan were protected whereas at the time of promulgation of the Act 1996 though certain legislative pieces and actions taken under the said enactments were protected under section 59(2) of the Act, 1996 but the rules and regulations framed by the Corporation were not given such protection apparently for the reason that they were not applicable to the employees of the Corporation upon their transfer to the PTCL; that as the Share Agreement was executed between the PTCL and Etisalat International Pakistan it has nothing to do with the terms & conditions of the employees who were transferred from Corporation to the PTCL thus the same cannot be used to establish that they were governed under statutory service rules; that in the year 1993 it was administratively decided that all appointments in Federal departments shall be made through the Establishment Division, thus, the recommendation of the petitioner in W.P. No.168790/2018 by said Division does not render his status as civil servant; that though the employees of the T&T department were civil servants but they were bound to follow the changed terms & conditions of their service firstly upon their transfer in the Corporation and then in the PTCL. In support of his contentions, learned counsel has relied upon the cases reported as (Muhammad Zaman and others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571), P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362), Muhammad Riaz v. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan, Islamabad and others (2015 SCMR 1783), State Bank of Pakistan through Governor and another 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), Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others (1999 SCMR 1526), Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others (PLD 1996 SC 222), Ahmad Khan Niazi v. Town Municipal Administration, Lahore through Tow Municipal Officer and 2 others (PLD 2009 Lahore 657), Muhammad Din v. Nazar Muhammad Khan and others (PLD 1966 (W.P.) Lahore 780); Order, dated 17.05.2017, passed by the Hon'ble Supreme Court of Pakistan in Cr.R.P. No.86/2015 titled Pakistan Telecommunication Employees Trust v. Federation of Pakistan through Secretary, M/o Information Technology, Judgment, dated 27.05.2016, rendered by this Court in W.P. No.5978/2011, titled S.M. Talib Naqvi etc. v. President/CEO PTCL etc., Judgment, dated 21.04.2016, rendered by the Islamabad High Court, Islamabad in W.P. No.3381 of 2012 titled Syed Imran Hussain v. Federation of Pakistan etc. and Judgment, dated 06.05.2013, passed by the Islamabad High Court, Islamabad in W.P. No.1350/2012, titled Ammad Ul Hassan Qureshi v. Pakistan Telecommunication Co. Ltd. and 3 others. 9. M/s Sheikh Aftab Ahmad and Mirza Aamir Baig, Advocates appearing on behalf of PTCL in some of the petitions have adopted the arguments advanced by Mr . Shahid Anwar Bajwa, Advocate. 10. While exercising his right of rebuttal, Mr. Ishtiaq A. Chaudhary, Advocate submits that dozen of persons who joined the Corporation after 01.01.1991 filed their Writ Petitions before Islamabad High Court which were accepted through order, dated 08.03.2011, passed in W.P. No.4853/2010 against which CPLA filed by the PTCL was also dismissed, thus, these petitions are maintainable; that after pronouncement by the Apex Court of the country that section 2(1) of the Civil Servants Act, 1973 is not applicable to the employees of the PTCL said provision cannot be referred to establish that the petitioners falls within the definition of workmen; that as section 8 of the Act, 1996 relates to consultants, engineers etc. same are not applicable to the petitioners; that as according to section 36(2) of the Act, 1996 the existing terms & conditions of service of the employees who were transferred to PTCL were protected, the rules and regulations applicable to them were automatically protected; that the judgments referred by Mr. Shahid Anwar Bajwa, Advocate from the jurisdiction of Islamabad High Court and Peshawar High Court are per in curium for the reason that while deciding the matters the earlier judgments of the Hon'ble Supreme Court of Pakistan on the subject were not discussed by the said courts; that the judgment in Iqbal Nasir's case has already been disbelieved by the Apex Court of the country while deciding Review Petition through judgment reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016
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SCMR 1362) and that according to section 39(2) of the Act, 1996 the operation of Etisalat International Pakistan is going to end in the year 2021 and as a result the PTCL would again be under the control of the Federal Government. 11. Mr. Khalid Ismail, Advocate while exercising his right of rebuttal, submits that as existing terms & conditions of service of the employees who were transferred to PTCL were protected through the statutory intervention these petitions are maintainable as the petitioners have agitated their grievance against violation of their terms & conditions of service which were protected under section 36(2) ibid. 12. Mian Jaffer Hussain Advocate, in rebutta l, submits that the Apex Court of the country while deciding the cases reported as P.T.C.L. and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362 ), Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary , M/O Information Technology and Telecommunication and others (2012 SCMR 152) has held that Writ Petition by the employees of the Corporation are maintainable, thus, no exception can be taken against the maintainability of these petitions. 13. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with these petitions, as well as the case-law cited at the bar . 14. Firstly, taking up the plea of the petitioners, who joined the Corporation after 01.01.1991, that in view of the judgment reported as Masood Ahmed Bhatti and others (Supra) the employees who were serving in the Corporation prior to 01.01.1996 were covered under statutory rules, thus, their writ petitions are maintainable, I am of the humble opinion that with a view to appreciate the said contention a perusal of the referred judgment is of paramount consideration, opening lines whereof read as under: - "These appeals have been filed by three individual appellants who admittedly were civil servants employed by the Federation in the Telephone and Telegraph ('T&T') Department prior to the enactment of the Pakistan Telecommunication Corporation Act 1991 (the 'PTC Act') ......(emphasis provided). The afore-quoted portion from the judgment of the august Supreme Court of Pakistan leaves no ambiguity that all the three petitioners before the Apex Court of the country in the referred case were those who were employed by the Federal Government in T&T department. Subsequently , after promulgation of the Act 1991, they were transferred to the Corporation. Further , after enforcement of the Act 1996 they were then transferred to the PTCL. In this scenario, the assertion of learned counsel for the petitioners that the employees who were in service prior to 01.01.1996 were governed under statutory rules, has no substance. Moreover , the Apex Court of the country in the case of Divisional Engineer Phones, Phones Division, Sukkur and another (Supra) while dealing with the nature of service regulations, framed by the Corporation, regarding terms & conditions of its employees has inter-alia held as under: - "In cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation, in the absence of any provision to the contrary, the transferred employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by the service rules of the Corporation. If such rules are not statutory, the principle of master and servant governed the relationship between the employee and Corporation .(emphasis provided) Further , the said issue also came under discussion before the Apex Court of the country in the case reported as Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) wherein the status of the employees, who joined the Corporation after 01.01.1991, was adjudged in the following manner:- "24. However , this Court, in the case of Principal Cadet Collage Kohat v. Muhammad Shoaib Qureshi (PLD 1984 SC 170), while dealing with the question, as to whether in absence of any breach of statutory provision the employees of a corporation can maintain an action for reinstatement, held that where the conditions of service of an employee of a statutory body were governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules could be set aside by a writ petition; however, where his terms and conditions were not governed by statutory rules but only by regulations, instructions or directions, which the
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institution or body, in which he was employed, had issued for its internal use, any violation thereof would not, normally, be enforced through a writ petition. Recently, this Court in Tanweer-ur-Rehman's case (supra), while dealing with the issue of invoking of jurisdiction of the High Court under Article 199 of the Constitution by the employees of the PIAC, held that although the appellant-Corporation was performing functions in connection with the affairs of the Federation, but since the services of the respondent-employees were governed by the contracts executed by them with the employer, and not by the statutory rules framed under section 30 of the Pakistan International Airlines Corporation Act, 1956 with the prior approval of the Federal Government, therefore, they would be governed by the principle of 'Master and Servant'. On the question whether in absence of any breach of statutory provision, the employees of appellant-Corporation could maintain an action for reinstatement etc., it was observed that the said question needed no further discussion in view of the fact that this Court was not of the opinion that if a Corporation was performing its functions in connection with the affairs of the Federation, the aggrieved persons could approach the High Court by invoking its constitutional jurisdiction. But as far as the cases of the employees regarding their individual grievances were concerned, it was held that they were to be decided on their own merits, namely, if any adverse action was taken by the employer in violation of the statutory rules, only then such action would be amenable to the writ jurisdiction. Therefore, in absence of statutory rules, the principle of 'Master and Servant' would be applicable and such employees would be entitled to seek remedy permissible before the Court of competent jurisdiction. Similarly, in M. Tufail Hashmi (supra), after discussing the aforesaid two judgments in detail, it was held that the employees of those organizations, which were performing functions in connection with the affairs of Federation, were eligible to approach the High Court under Article 199 of the Constitution if their services were governed by statutory rules. It was further held that since the employees of AIOU, SME Bank and Pakistan Steel Mills, who approached the Service Tribunal for redressal of their…
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