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Petitioner: Abdul Haq & 37 others VS Respondent: Federation of Pakistan & 3 others
Court Name: Lahore High Court Judge(s): Shujaat Ali Khan Title: Abdul Haq & 37 others vs Federation of Pakistan & 3 others Case No.: W.P.No.12840 of 2009 Date of Judgment:2017-02-08 Reported As: 2017 PLC (C.S.) 1400, 2017 LHC 638 Result: instant petition dismissed
Judgment SHUJAAT ALI KHAN, J.- By means of instant writ petition, the petitioners, who are retired employees of State Life Insurance Corporation (now Company and hereinafter to be referred as "the Corporation") have invoked the Constitutional jurisdiction of this Court vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for implementation of a directive issued by the President of Pakistan and conveyed through the Ministry of Commerce by virtue of communications dated 23.01.1994 and 18.01.1995. During pendency of the instant petition, the petitioners filed application (C.M No.3-2010) seeking its amendment which was allowed and amended petition was filed. This Court, vide order dated 29.05.2013, referred the matter to the Chairman of the Corporation with a direction to place the same before the Board of Directors in its meeting scheduled in the month of July, 2013 to consider the question regarding provision of Medical Allowance to the retired employees of the Corporation. Pursuant to the said order , while implementing the directive issued by the President of Pakistan, the Department allowed Medical facility to them equal to three last drawn basic pays through S.R.O. No.(1)/2015 dated 26.10.2015. After coming to know about the aforementioned decision by the departmental authorities, the petitioners filed another application (C.M No.26-2016) seeking permission to challenge the aforementioned S.R.O issued by the competent authority regarding provision of medical facility to the retired employees equal to three basic pays by way of amendment of the writ petition which was dismissed by this Court vide order dated 21.09.2016. The said order having not been challenged in any proceedings has attained finality . 2. The legal formulations put forward by the learned counsel for the petitioners can be summarized in the words that the Corporation was established by virtue of SRO No.(I)/72 issued by the competent authority while exercising power conferred under Articles 11, 13, 23 & 25 of Life Insurance (Nationalization Order) 1972 (hereinafter to be referred as 'Order 1972') and was put under the control of Federal Government, Ministry of Commerce thus the instructions issued by the Federal Government had binding force upon the Corporation; that by virtue of the aforesaid Notification, two other Corporations, namely, National Insurance Corporation and Pakistan Insurance
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Corporation, now "Companies", were also established and the said Companies are providing medical facilities to their retired employees equal to the serving employees; that as any policy framed by the Corporation is subject to the approval of the Federal Government as provided in Article 25 of Order 1972, the Corporation is bound to implement decision/policy of the Federal Government in letter and spirit and any deviation by it amounts to infringement of fundamental rights of the employees of Corporation especially when the same has beneficial impact upon them; that as all the corporations established under the Order 1972 raised voice against anomaly qua pay and pension of their employees before the Anomaly Committee, the Corporation was bound to follow the recommendations of the said Committee; that since the Corporation is under the direct control of Ministry of Commerce, Islamabad (respondent No.1) it is bound to implement the policy guidelines/instructions issued by the said ministry; that the recommendations of the Anomaly Committee having been endorsed by the Finance and Commerce Division could not be sidelined by the persons at the helm of affairs of the Corporation; that when the Ministry of Finance, Government of Pakistan, through communication dated 23.01.1994 apprised the Ministry of Commerce about the decision of the President of Pakistan qua the revision of the existing pay scales of the Officers and Executives of the Nationalized Insurance Corporations, the Ministry of Commerce was under obligation to ensure implementation of the said decision; that by virtue of Para-13 of Communication, dated 23.01.1994, addressed by the Ministry of Finance to the Ministry of Commerce, retired Officers and Executives of the Nationalized Corporations were allowed medical facility as admissible to the serving employees thus the authorities functioning in the Corporation could not interpret the said recommendations according to their own whims to the disinterest of the petitioners; that as the Serving Employees and Executive Officers of the Corporations are enjoying medical facilities in terms of State Life Employees (Medical Attendance) Regulations, 1973 (hereinafter to be referred as 'Regulations 1973'), the petitioners, being retirees, are also entitled for the same relief; that in furtherance of the directive issued by the President of Pakistan, Minist ry of Commerce, Government of Pakistan, issued Circular dated 18.01.1995 regarding implementation of decision of the President in respect of the Pay and Pension of the serving/retired employees of the Corporation but the Corporation did not take any action despite the fact that the same was followed by two sister Insurance Companies in letter and spirit; that in terms of Article 25 of Order 1972, the Corporation is bound to comply with every policy/decision of the Federal Government; that due to the inaction on the part of the relevant authorities of the Corporation, in particular respondents No.2 and 3, the petitioners have been deprived of the facility of medical facility without any upper ceiling which amounts to infringement of their fundamental rights; that Corporation is bound to implement the rules, regulations and policies framed by the Government of Pakistan and by no stretch of imagination, any deviation is permissible in that regard; that despite the fact that respondent No.3 was reminded by the petitioners for more than once, but no step was taken by him so the petitioners approached this Court by filing this petition; that there is no cavil with the preposition that during the pendency of this writ petition the competent authority has allowed medical facility to the petitioners equal to three basic pays (last drawn) but the same being not in consonance with the decision conveyed by the Government of Pakistan to the Corporation, does not serve the purpose; that mala fide on the part of the authorities in the Corporation is manifest from the fact that the serving employees, who are drawing better perks and privileges as compared to the retired employees of the Corporation, are being provided medical facility without any upper ceiling whereas the retired employees who are in need of more care and caution in respect of their physical sustenance in the last span of their lives, have been allowed meager amount to spend on their treatment which is classical example of misuse of powers by the competent authority. To fortify his contentions, learned counsel for the petitioners in addition to relying on the case reported as Muhammad Shahzad Malik vs. Muhammad Suhail and another (2010 SCMR 1825) has also referred to order dated 27.05.2009 and judgment dated 28.10.2003 passed by the apex Court of the country in Human Right Case No.625/2009 and Civil Petition No.1881 of 2003 respectively. 3. Conversely , learned counsel representing the Corporation (Mr. Jahanzeb Khan Bharwana, Advocate) assisted by Syed Waqar Hussain Naqvi, Advocate submits that as the retired employees of the Corporation have already been allowed medical facility equal to three basic pays, instant petition has become infructuous; that as the terms and conditions of service of the retired employees of the Corporation are governed under the State Life
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Employees (Pension) Regulations, 1986, the pensionary benefits, including medical facility, cannot be awarded to them in violation of the said Regulations which were further amended in the year 1988; that the Corporation being an independent commercial entity dealing in the business of life insurance, cannot be equated with the other Companies which are dealing with business of entirely different nature; that directions of the Federal Government are only guidelines and it is up to the Corporation either to follow them as a whole or to skip any part thereof; that as a matter of fact, Security and Exchange Commission of Pakistan is competent to deal with such like matters but said authority having not been arrayed as a party in the instant writ petition proper adjudication of the lis at hand is not possible; that as two other insurance Companies are being governed under the distinct regulations, they cannot be quoted as precedent regarding provision of medical facility to their retired employees; that letter, dated 18.01.1995, being relied upon by the petitioners, is only directory in nature as word 'may' has been used therein; that vide order, dated 29.05.2013, this Court referred the matter to the Chairman of the Corporation to place it before the Board of Directors and after due deliberation, the Board has acceded to the request of the retired employees of the Corporation by awarding them medical facility equal to three basic pays which has been published in the Official Gazette through S.R.O. No.(I)/15 dated 26.10.2015; that in addition to Regulations 1986, the medical facility of the retired employees of the Corporation are governed under the State Life Insurance Corporation Retired Officers (Medical Attendance) Regulations, 2010 thus nothing can be given to the petitioner in violation of said Regulations; that as the petitioners did not assail the order passed by this Court on 21.09.2016 dismissing their application seeking amendment to challenge the S.R.O issued by the competent authority regarding provision of medical facilities to the retired employees of the Corporation equal to three basic pays, instant petition is not proceedable any further; that according to Article 14 of Order 1972, the Corporation enjoys full-fledged autonomy to deal with its commercial activities; that according to the decision rendered in Writ Petition No.9008/2013, the Corporation is not bound to follow the directions issued by the Federal Government especially in respect of the terms and conditions of service of its employees; that the order passed in the said writ petition despite having been challenged in Intra Court Appeal, still holds the field; that according to the State Life Employees (Service) Regulations 1973, the petitioners have no vested right to lay claim for medical facility equal to the serving employees. In addition to his oral submissions, learned counsel representing the Corporation has also referred to the case reported as State Life Insurance Corporation of Pakis tan and others vs Syed Hassan Ali Shah and others (2010 SCMR 1381 ) and an unreported judgments rendered by this Court in W.P Nos.9008/2013 & 12840/2009. 4. Learned Deputy Attorney General, while adopting the arguments advanced by the learned counsel representing the Corporation, submits that as medical facility has already been catered for the retired employees of the Corporation, instant petition has fructified. 5. Learned counsel for the petitioners, while exercising his right of rebuttal, states that when the apex Court of the country has already held that retired employees of the other corporations established under Order 1972 are entitled for medical facilities equal to those serving the corporations, no deviation can be introduced by the Corporation itself; that as a matter of fact, the persons at the helms of affairs of the Corporation are investing its funds in non-viable schemes as a result whereof, loss worth millions of rupees has already been suffered by the Corporation which fact was publicized in daily Dawn dated 07.05.2015 thus, the respondents cannot refuse the medical facility to the retirees on the ground of paucity of funds; that as the petitioners served the Corporation and burnt mid night oil to run its af fairs, they are entitled for medical facilities necessary for their sustenance. 6. I have given anxious consideration to the submissions made by learned counsel for the parties in addition to going through the documents annexed with this petition as well as those forming part of the report and para-wise comments besides the case-law cited at the bar . 7. It is well entrenched by now that an aggrieved person can invoke constitutional jurisdiction of this court in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in the wake of infringement of a vested right. According to Merriam Webster 's Dictionary of law , "vested right" means-- "A right belonging completely and uncond itionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner".
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As per Advanced Law Lexicon (4 Edition), the said term connotes to - "The Expression "vested rights" or "accr ued rights" have been used in the context of a right flowing under the relevant rule". According to Biswas Encyclopedic Law Dictionary (Third Edition, 2008), "vested right" means-- "A right is vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest independent of any contingency . It is a right which cannot be taken away without the consent of the owner". As per Webster 's Third New International Dictionary , "vested right " means -- "A right belonging so absolutely , complete ly and unconditionally to a person that it cannot be defeated by the act of any private person and that is entitled to governmental protection under a constitutional guarantee". Blacks Law Dictionary expresses the meaning of "vested right" in a way-- "Vested. Fixed; accrued; settled absolute; complete. Having the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent". Rights are "vested" when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights". Besides above definitions in the different dictionaries, the said term also came under discussion before the apex court of the country in its land mark judgment reported as Nabi Ahmad and another v. Home Secretary , Government of West Pakistan, Lahore and others (PLD 1969 SC 599) wherein the same has been defined in the following words:- "A close examination of these meanings and explanations reveals that vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross examine (not to re-cross examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examination in chief is over. The occasion to cross examine may not arise or may not be exercised but the right is not to be denied". According to definition of the term "vested right" in afore-quoted lexicons and judgment of the Hon'ble Supreme Court of Pakistan, there is consensus that it means a right which finds support from any law enunciated by the legislature. 8. Now I venture to examine as to whether refusal on the part of the Corporation to provide medical facilities to the retired employees equal to the serving amounts to infringement of any vested right or not. In my humble opinion, to resolve the said controversy , a bird's eye view of different Regulations/Rules in general and those of the provisions of the Order 1972, in particular , is imperative. Firstly , taking up the provisions of Order , 1972, I have noted that Article 49 thereof deals with the power of the Corporation to frame Regulations which, for facility of reference, is reproduced herein below:- "Power to make Regulations. (1) The Corporation may, with the previous approval of the Central Government, by notification in the official Gazette, make Regulations not inconsistent with this Order and the Rules thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Order . (2) In particular and without prejudice to the generality of foregoing power , such Regulations may provide for:- (a) the powers and functions of a Corporation which may be delegated to its Officers; (b) the method for recruitment of employees and agents and employers of agents of a Corporation and the terms and conditions of service of such employee or agents or employer of agents ." (emphasis provided) The afore-quoted provision, in particular sub-clause (b), renders it crystal clear that the Corporation has the exclusive jurisdiction to frame Regulations inter alia in respect of the terms and conditions of service of its employees of course with the previous approval of the Federal Government. The competent authority , whileth
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exercising power under Article 49 ibid, framed the State Life Employees (Service) Regulations 1973 (hereinafter to be referred as "the Service Regulations 1973) which were circulated through Notification dated 01.01.1973. Regulation 4, Part II of Service Regulation 1973 deals with the classification of the employees in terms of pay and allowances whereas Regulation 20, Part IV of the said Regulations relate to the retirement, resignation and termination of service while Regulation 68, Part IX of the said Regulations pertain to the Gratuity payable to the employees of the Corporation. As per the Service Regulations 1973, the Board of Directors enjoys exclusive powers to determine the quantum of Gratuity and ancillary benefits. As the earlier Regulations were silent about other perks and privileges of the retired employees of the Corporation, the competent authority, while exercising power in terms of Article 49 ibid, introduced State Life Employees (Medical Attendance) Regulations 1973 (hereinafter to be referred as the "Medical Attendance Regulations 1973") . According to Regulation 2(3) of the Medical Attendance Regulations, 1973 an employee means 'a full time employee of the Corporation who is paid monthly salary and to whom, these regulations apply'. The medical facility for the retired employees of the Corporation was also not catered in the Medical Attendance Regulations, 1973. With a view to deal with the anomalies relating to the retired employees, State Life Employees (Pension) Regulations, 1986 (hereinafter to be referred as the "Pension Regulations 1986) were introduced. The Pension Regulations 1986 were further amended in the year 1988, however, medical facility was not provided to the employees of the Corporation. The discussion made in this para leaves no ambiguity that there was no legislative piece regarding provision of medical facility to the employees of the Corporation. 9. Now, coming to the communication dated 23.01.1994 addressed by the Joint Secretary (R-1), Ministry of Finance, Government of Pakistan, Islamabad to the Secretary , Commerce Division, Government of Pakistan, Islamabad, I have noted that while apprising about the revision of pay scales of the Officers and Executives of the Nationalized Corporations by the President of the country , the Commerce Division was asked to issue administrative order . According to the statement relating to the existing rates of Allowances/Fringe benefits admissible to Officers of State Life Insurance Corporation, Pay and Pension Committee recommended for provision of medical facility to the retired Officers. The exact decision of Pay and Pension Committee is reproduced herein below:- "Medical Facility to Retired Officers "May be allowed as admissible to the serving employees". The wording used by the Pay and Pension Committee in its afore-quoted recommendations brings it to light that its recommendations were not mandatory in nature rather it was up to the competent authority to adopt said recommendations or not. 10. Insofar as letter , dated 29.01.1994, addressed by the Section Officer, Ministry of Commerce, Government of Pakistan, Islamabad to the Chairman, SLIC, P.I.C and N.I.C, Karachi is concerned, suffice it to note that the Chairman of the Corporation was directed to take necessary action in terms of D.O letter No.1(1)Imp/94 dated 23.01.1994. A cursory glance over the Office Memorandum dated 05.01.1995 issued by the Government of Pakistan, Finance Division (Regulation Wing), Islamabad shows that beside other subjects, anomalies relating to medical facility to the retired employees of the Corporation were also mentioned therein. Item No.3 of the said Memorandum deals with medical facility to retired Officers which for convenience of reference is reproduced herein below:- "The Government has decided that the medical facility to the retired officers of SLIC may be allowed as admissible to serving employee. Action in this respect by the SLIC may be taken accordingly ." In the lines quoted above the word "may" has been deployed meaning thereby that the same was not mandatory in nature rather the same carried the status of only direction. Further , Finance Division left it up to the Corporation to take action in that respect. The reason behind such discretion to the Corporation was Article 49 of Order 1972 where-under Corporation was given autonomy to determine the terms and conditions of service of its employees. 11. The next question which surfaces for determination by this Court is as to whether the Corporation is bound to give same medical facility to the retired employees of other Nationalized Corporations/Companies which were also established in terms of Order 1972. A detail survey of the Order 1972 brings it to light that there was no condition to
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the effect that the terms and conditions of the employees of the Nationalized Insurance Corporations/Companies shall be identical thus, the petitioners cannot quote the perks and privileges of the retired employees of the other Nationalized Corporations/Companies in support of their claim as all these Corporations enjoy the full-fledged autonomy in respect of terms and conditions of their serving/retired employees including medical facility. Further, a person serving/retired of an autonomous institution cannot claim perks and privileges equal to serving/retired employees of another autonomous body. Reliance in this regard can be placed on the case reported as Abdul Khalique v. Federation of Pakistan through Secretary Board of Investment and 4 others (2016 PLC (C.S) 530) wherein a learned Division Bench of the Sindh High Court, while discussing the previous law on the subject in exhaustive manner, clinched the issue, under discussion, by observing inter alia as under:- "16....In the case in hand, it is important to note that the Petitioner is alleging 'discrimination' but without pin- pointing violation of any specific provision of law/Rules which can be challenged/questioned on the touch stone of Article 25 of the Constitution of 1973. The Petitioner in the present case has also failed to establish any 'vested right' as being violated by the Respondents. Needless to say, for seeking a relief much-less under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there must be an established and a bona fide right which may be 'statutory right' or otherwise, but indeed it ought to have been recognized by law. Moreover , such right must be clear and, of course, free from any sort of controversy that is to say, where recording of evidence is not required. The object of proceedings to be initiated under Article 199 of the Constitution is the enforcement and protection of a 'vested right' and by no means it is meant for the establishment of a right. The right of which a redressal is being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 must not only be an existing right but for seeking remedy under the Constitutional jurisdiction, the infringement of such vested right must be there. From the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCMR 1813 ] on the aforesaid aspect of the matter , the relevant observations read as follows:- 10. ..."It is incumbent upon party seeking constitutional…
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