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Petitioner: UMAR HAYAT KHAWAJA VS Respondent: NATIONAL BANK OF PAKISTANHonorable Justice Faisal Zaman KhanUmar Hayat Khawaja,Abid Hussain and Umar Abdullah
2015 P L C (C.S.) 1331
[Lahore High Court]
Before Faisal Zaman Khan, J
UMAR HAYAT KHAWAJA
versus
NATIONAL BANK OF PAKISTAN through President and 2 others
W.Ps. Nos.16272 of 2013, 24741 of 2012, 3213, 28556, 31343 of 2014 and 833 of 2015, heard on 3rd April, 2015.
Constitution of Pakistan---
----Art. 199---Constitutional petition---Civil service---Calculation of pensionary benefits---Laches, doctrine of---Applicability---Contention of petitioners who were retired employees of Bank was that their pensionary benefits were not calculated in accordance with the circular issued in the year 1986 which was still holding the field---Validity---Initially pension was calculated under the circular issued in the year 1986, however pay structure inclusive of pension was revamped with the promulgation of circular issued in the year 1999---Petitioners enjoyed the benefit of revised pay scales and got pension under the circular issued in the year 1999---Petitioners never challenged the circular issued in the year 1999 during their currency of service and they acknowledged the revised pay and pension structure whereupon other circulars were issued introducing periodical increase in pensionary benefits---Circular issued in the year 1986 was taken over/superseded by the subsequent circular of 1999 which was neither challenged nor objected by the petitioners---Petitioners availed the benefit of circular of year 1999 and subsequent circulars of the years 2008 and 2010 by availing the pensionary benefits under said circulars without any protest or objection---Petitioners, in circumstances, were estopped from raising the question of calculation of pension under the circular of year 1986 at such belated stage---Present constitutional petitions had not been filed due to non-payment of pension by the Bank---Petitioners had in fact challenged the circular issued in the year 1999 which could not be permitted at such belated stage---Instrument/notification/instructions not challenged within reasonable time would be hit by principle of laches---Constitutional petition was dismissed in circumstances.
I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others 1991 SCMR 1041; State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280 and Dr. Muhammad Tahir ul Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others PLD 2013 SC 413 rel.
Umar Hayat Khawaja for Petitioners.
Abid Hussain and Umar Abdullah for Respondents.
Date of hearing: 3rd April, 2015.
JUDGMENT
FAISAL ZAMAN KHAN, J.--- Through this consolidated judgment I intend to decide the present writ petition (W.P.No.16272/2013) and the connected writ petitions (W.Ps.Nos. 24741/2012, 3213/2014, 28556/2014, 31343/2014 and 833/2015) filed by ex-employees of the respondent National Bank of Pakistan (Bank), through which a common question of applicability of Circular No.804 (ZD) dated 9-9-1986 qua calculation of pensionary benefits has been agitated.
2. Learned counsel for petitioners .submits that petitioners retired on different dates (from 2006 till 2014) from the Bank and were granted pensionary benefits, however, the same were not calculated in accordance with the afore-noted Circular of 1986, which according to him is still holding the field which has been further endorsed vide Circular No.87/1991 dated 18-11-1991 by virtue of which instruction of the previous circular were extended to employees, who retired prior to 1-7-1986.
3. Conversely learned counsel appearing on behalf of respondent Bank strongly oppose the contentions and submit that the afore-noted circular of 1986 was superseded by Circular No.37/1999 dated 16-6-1999, through which the terms of pension were revised, therefore, petitioners are not entitled to any benefit under the Circulars of 1986 and 1991. They further submit that subsequent to Circular of 1999, Circulars Nos.58 of 2008 dated 1-7-2008 and 33/2010 dated 3-4-2010 were issued, which have further clarified the Circular of 1999.
4. It is their contention that petitioners have to be and have been dealt with under the Circular of 1999 and the subsequent Circulars and their pension has been calculated in accordance with the criteria given therein, therefore, petitioners have no grievance to air before this Court. Lastly they submit that petitioners after reaping all the pensionary benefits under the Circular of 1999 and as an afterthought have approached this Court that too after delay of considerable period of time, therefore, they are debarred from approaching this Court.
5. 1 have heard the learned counsel for the parties and have gone through the available record.
6. The main stay of the claim of the petitioners is Circular No.804(ZD) dated 9-9-1986 which offered the following term for calculation of pension, which is reproduced for convenience:---
"B. BENEFIT FOR EXTRA YEARS OF SERVICE AFTER COMPLETITION OF 30 YEARS.
In terms of para. B.3(b) and para. B.4(b) of Instruction Circulars Nos.162 and 228(C) and 13-4-1977 and 24-12-1977 respectively, a Bank employee is entitled to full pension on completion of 30 years qualifying service. In order to provide additional benefits to those Bank employees, who serve beyond 30 years of service, it has been decided that a bank employee, who shall retire on or after 1-7-1986 shall be allowed benefit to the extent of 2% of his gross pension for each extra year of service put in by him beyond 30 years qualifying service subject to a maximum of 10% of his gross pension."
7. The operation of the afore-noted term was further extended through Circular No.87/1991 dated 18-11-1991, the operative part of which is reproduced for convenience:---
"A BENEFIT FOR EXTRA YEARS OF SERVICE AFTER COMPLETION OF 30 YEARS:
1. Further to pare-B of Instruction Circular No.804(ZD) dated 9-9-1986, it has been decided that Bank employees retired prior to 1-7-1986 shall also be allowed the benefit to the extent of 2% of gross pension for each extra year of service put in by them beyond 30 years qualifying service subject to a maximum of 10% of his gross pension from 1-7-1986. No arrears will be allowed prior to 1-7-1986.
2. Commutation/gratuity of any part of the additional amount will not be admissible.
3. Indexation on pension and ad hoc relief allowed from 1-7-1986, 1-7-1987, 1-7-1988 and 1-7-1990 vide Instruction Circular No.804(ZD) dated 9-9-1986, 804(ZG) dated 12-8-1987, 1085(G) dated 22-8-1988 and 52/90 dated 30-9-1990 respectively will also be admissible on the above amount.
4. The above benefit will also be applicable/admissible to family pension."
8. Thereafter on 16-6-1999 Circular No.37/1999 was issued through which a revision of pay structure of Executives/Officers was put in place. The opening part of the Circular mentions that:---
"The existing pay scales have been replaced with the following grade minimum and maximum of each grade. These parameters will be periodically revised to reflect market movements and cost of living changes."
Part.-V of the Circulars deals with the "RETIREMENT BENEFITS" under which a new formula of calculation of pension was introduced, operative part of which is reproduced for convenience:
"PART-V. RETIREMENT BENEFITS
PENSION
Monthly Gross Pension under the new retirement benefits will be calculated on the basis of Revised Basic Pay (x) Number of years of Service (x) 1.10%. However, the amount of gross pension on the basis of existing Basic Pay and existing formula is protected and will not adversely affect the present amount of pension as on 31-12-1998 with this change in the formula. Other terms and conditions of pension scheme will continue to be the same.
The cases of those who retired upto 31-12-1998 will not be reopened."
9. From the afore-noted reproduced term, it is clear and obvious that initially pension was calculated under the Circular issued in the year 1986, however, with the promulgation of Circular of 1999 the total pay structure inclusive of pension was revamped. This fact was well within the knowledge of the petitioners, who retired from service well after the promulgation of the Circular of 1999 i.e. between 2006 to 2014. They enjoyed the benefit of the revised pay scales; got the pension under the Circular of 1999 and thereafter, re-agitated the issue of calculation of pension by way of seeking a direction for enforcement of Circular of 1986. It shall not be out of place to mention here that during the currency of their service, they never opted to challenge the Circular of 1999, which clearly would mean that they acknowledged the revises pay and pension structure, whereupon Circular No.58 of 2008 dated 1-7-2008 and Circular No.33/2010 dated 3-4-2010 were issued, which apart from clarifying the Circular of 1999 also introducing periodical increase in pensionary benefits.
10. Be that as it may, as the Circulars of 1986 and 1991 were taken over/superseded by the subsequent Circular of 1999 which was neither challenged nor objected to by the petitioners before any competent forum during their service or after their retirement; They availed the benefit of Circular of 1999 and subsequent Circulars of 2008 and 2010 by availing the pensionary benefits under them that too without any protest or objection therefore, at this juncture and at a belated stage they are estopped from raising the question of calculation of pension under the Circular of 1986.
11. This has to be kept in view that the present petitions are not filed due to non-payment of pension by the Bank which would attract the principle enunciated by the Honourable Supreme Court of Pakistan in judgment reported as I.A. Sharwani and others v. Government of Pakistan through Secretary Finance Division, Islamabad and others (1991 SCMR 1041). Through the present petitions, in the garb of enforcement of Circular of l986, in fact a challenge has been thrown to Circular of 1999 which cannot be permitted at this belated stage.
12. It is by now settled by the superior courts that an instrument/ notification/instructions not challenged within reasonable time would be hit by principle of laches. The honourable Supreme Court of Pakistan has discussed the afore-noted principle in judgment reported as State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280), the operative part of which is reproduced below:
"Laches is a doctrine whereunder a party which may have a right, which was otherwise enforceable, loses such right to the extent of its enforcement if it is found by the Court of a law that its case is hit by the doctrine of laches/limitation. Right remains with the party but it cannot enforce it. The limitation is examined by the Limitation Act or by special laws which have inbuilt provisions for seeking relief against any grievance within the time specified under the law and if party aggrieved do not approach the appropriate forum within the stipulated period/time, the grievance though remains but it cannot be redressed because if on one hand there was a right with a party which he could have enforced against the other but because of principle of limitation/laches, same right then vests/accrues in favour of the opposite party."
This judgment has been further upheld by the Honourable Supreme Court of Pakistan in judgment reported as Dr. Muhammad Tahir ul Qadri v. Federation of Pakistan through Secretary M/o Law, Islamabad and others (PLD 2013 SC 413).
13. The upshot of the above discussion is that there is no merit in these petitions therefore, the same are dismissed.
ZC/S-75/L Petition dismissed.