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Petitioner: Rasool Khan and others VS Respondent: Federation of Pakistan through its Secretary, Ministry of Information and Technology and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Rasool Khan and others vs Federation of Pakistan through its Secretary,
Ministry of Information and Technology and others Case No.: W.P.No.523 of 2012 Date of Judgment:2020-02-27 Reported As: 2020 IHC 38 Result: Petitions allowed Judgment MIANGUL HASSAN AURANGZEB, J. Through this judgment, I propose to decide the writ petitions listed in "Schedule-A" hereto. 2. The petitioners, who have all retired from service, seek a direction to the Pakistan Telecommunication Company Limited ("P.T.C.L.") and the Pakistan Telecommunication Employees Trust to pay them pension with periodic increases commensurate to the ones announced by the Federal Government for civil servants from time to time. Some of the petitioners also seek the payment of medical allowance, special additional pension (at the rate of the orderly allowance announced by the Gove rnment for in service government servan ts in BPS-20 and above), family pension, and the restoration of the commuted portion of their pension in the same manner as permissible to civil servants. 3. The Pakistan Telecommunication Corporation Act, 1991 ("the 1991 Act") was enacted on 25.11.1991. By operation of Section 9(1) of the said Act, the employees of the Pakistan Telegraph and Telephone Department, Government of Pakistan ("T&T Department") were transferred to the Pakistan Telecommunication Corporation ("P.T.C.") on the same terms and conditions to which they were entitled immediately before such transfer . Section 9(2) of the 1991 Act provided that the terms and conditions of service of the depart mental employees transferred to P.T.C. shall not be varied to their disadvantage. The terms and conditions of service to which such employees were entitled before their transfer were to continue to be applicable to them notwithstanding their transfer to P .T.C. 4. The Pakistan Telecommunication (Re-organization) Act, 1996 ("the 1996 Act") was enacted on 13.10.1996. Section 34 of the said Act provided inter alia that the Federal Government shall establish a company to be known as Pakistan Telecommunication Compan y, limited by shares, and cause it to be incorporated under the erstwhile Companies Ordinance, 1984. The principal object of this company was to be the provision of the domestic and international telecommunication and related services consistent with the provisions of the 1996 Act.
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5. Section 35(2) of the 1996 Act provided inter alia that the employees of P.T.C., specified in an order issued by the Federal Government pursuant to Section 35(1) of the said Act, shall be transferred to and become the employees of either Pakistan Telecommunication Company Limited ("P.T.C.L."), the National Telecommunication Corporation, the Pakistan Telecommunication Authority , the Pakistan Telecommunication Employees Trust, or the Frequency Allocation Board referred to in such order . It is an admitted position that the petition ers stood transferred to P.T.C.L. by virtue of the said provisions in the 1996 Act. 6. Section 36(1) of the 1996 Act provided inter alia that no person transferred to P.T.C.L. pursuant to Section 35(2) of the said Act shall be entitled to any compensation as a consequence of such transfer . Under the proviso to Section 36(1) of the said Act, the Federal Government was under an obligation to guarantee the existing terms and conditions of service and rights includin g pensionary benefits of the employee s transferred to P.T.C.L. Under Section 36(2) of the said Act, the terms and conditions of service of any such transferred employees could not be altered adversely by P.T.C.L. except in accordance with the laws of Pakistan or with the consent of such transferred employees and the award of appropriate compensation. Section 36(5) of the 1996 Act provided as follows:- "36(5) Under the order vesting property of the Corporation in the Company , the Federal Government shall require the Company to assume the responsibility of pensionary benefits of the telecommunication employees and the Company shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation." 7. In this judgment, the petitioners who were employed in T&T Department and transferred to P.T.C. by operation of Section 9 of the 1991 Act and further transferred to P.T.C.L. by operation of Sections 35 and 36 of the 1996 Act, and who retired while in service of P .T.C. or P .T.C.L. shall be referred to as "departmental employees". 8. At this stage, it may be mentioned that the Pakistan Telecommunication Corporation Employees Pension Fund ("P.T.C.E. Pension Fund") was created by a trust deed dated 02.04.1994. It is a matter of record that clause 2 of the trust deed provided that "all departmental employees transferred to the Corporation as defined in Section 9 of the Pakistan Telecommunication Corpora tion Act, 1991 shall be entitled to benefi ts as defined under the Federal Government Pension Rules as applicable to such employees before the formation of P.T.C." Section 45(1) of the 1996 Act provided inter alia that the Federal Government shall, by notification in the official Gazette, order that all assets of the P.T.C.E. Pension Fund and such liabilities as are specified in the notification, shall vest in and shall become the assets and liabilities of the Pakistan Telecommunication Employees Trust ("P.T.E.T") established by the Federal Government pursuant to Section 44(1) of the said Act. P.T.E.T. was to be a body corporate managed by a board of six trustees, three of whom were to be appointed by the Federal Government and three by P .T.C.L. 9. Under Section 45(2) of the 1996 Act, P.T.C.L. was to contribute to the Pension Fund the amount determined by the Actuary (appointed by the trustees) representing the unfunded portion of the accrued pension liabilities which was to be assumed by P.T.C.L. The Pension Fund administered by P.T.E.T. was to consist of (a) amounts received from the P.T.C.E. Pension Fund; (b) contributions to be paid by P.T.C.L.; (c) annual contribution to be paid by P.T.C.L. at the commencement of each financial year; (d) investments and profits, gains and other returns accrued on such investments; and (e) donations and other contributions by individuals or any aid-giving agencies. 10. One of the functions and powers of P.T.E.T. was to make provision for the payment of pension to the telecommunication employees to the extent of their entitlement. In the performance of its functions, the Board of Trustees had inter alia the exclusive right to determine the amounts, if any, payable in respect of pensionary benefits to the telecommunication employees. P.T.E.T. was created through notification No.5(3)/93-PTET , dated 03.01.1996 after which all assets and liabilities of P .T.C.E. Pension Fund became vested in P .T.E.T. 11. Having discussed the statutory scheme regarding the transfer of the employees of T&T Department/departmental employees to the P.T.C. and then to the P.T.C.L. by operation of the above-mentioned provisions of the 1991 Act and the 1996 Act, and their entitlement to the payment of pension after their retirement, it is pertinent to mention that the retired departmental employees who had pensionable service had been paid their pension as well as the periodic increases in pension in the same proportion as paid by the Federal Government to retired civil servants up to 30.06.2010. The decisions to increase pension for the retired employees of P.T.C.L. at
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the same rate as was increased by the Federal Government for retired civil servants were made from time to time by the Board of Trustees of P .T.E.T. 12. It is not disputed that until 30.06.2010, the increases in the rate of pension made by P.T.E.T. for its pensioners was commensurate with the increases in such rates made by the Federal Government for retired civil servants from time to time. For instance, the Federal Government, vide Office Memorandum ("O.M.") , dated 13.07.2009 had increased the pension for civil servants. Vide letter dated 17.07.2009, the Board of Trustees of P.T.E.T., after making reference to the said O.M., approved the increases in pension for the retired employees of P.T.C.L. at the same rate as had been increased by the Federal Government through the said O.M. The disparity in the rate of increase of such pension by P.T.E.T. and the Federal Government arose after 30.06.2010. For the purposes of clarity , such disparity is set out in the table below:- Office Memoranda issued by the Finance Division (Regulations W ing) regarding increases in pension to the pensioners of the Federal GovernmentRate at which pension was increasedLetters issued by P.T.E.T. regarding increases in pension to the P .T.C.L.'s pensionersRate at which pension was increased by P .T.E.T. No.F.4(1) Reg.6/2010/721, dated 05.07.201015% PTET/LHR/1 10, dated 27.01.201 18% No.F.1(5)-Imp/201 1- 419, dated 04.07.201 115% PTET/LHR/9842, dated 25.10.201 18% No.F.4(1)-Reg.6/2012- 1144, dated 02.07.201220% PTET/LHR/MISC/5940, dated 22.10.20128% No.F.4(1)-Reg.6/2013- 1375, dated 16.07.201310% PTET/LHR/4541, dated 08.10.20138% No.F.4(1)-Reg.6/2014, dated 07.07.201410% PTET/LHR/3090, dated 12.1 1.20148% No.F.4(1)-Reg.6/2015- 697, dated 07.07.20157.5% PTET/LHR/15968, dated 16.10.20168% No.F.4(1)-Reg.6/2016- 870, dated 01.07.201610% PTET/LHR/21695, dated 22.1 1.20168% No.F.4(1)-Reg.6/2017- 831, dated 03.07.201710% PTET/LHR/29085, dated 20.12.20177.5% 13. On 11.08.2010, the General Manage r (C&A), P.T.E.T. asked the Post Masters not to pay the increases in pension and medical allowance to the pensioners of P .T.C.L. until such increases were approved by P .T.C.L. 14. The retired employees of P.T.C.L. filed writ petitions (including writ petition No.148/201 1) before this Court assailing the said letter dated 11.08.2010 and praying for the increases in the pension and medical allowance announced by the Federal Government to be paid to them. Vide judgment dated 21.12.201 1, the learned Judge-in- Chambers allowed the writ petitions, and P.T.E.T. was "directed to pay pension etc. to the petitioners according to the increase made by the Government along with arrears if any." In the said judgment, after making reference to Section 9 of the 1991 Act and Sections 35, 36, 44 and 46 of the 1996 Act, it was inter alia held as follows:- "28. The situation which crystallizes from the above quoted provisions of law is that the terms and conditions of service of employees could not be varied to their disadvantage, the same could not be altered adversely by the
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Company without consent of the employ ees and subsection-5 of Section 36 further stresses that the Company could not alter pensionary benefits without the consent of the individuals. It also manifests from the above provisions that the Federal Government has guaranteed that existing terms and conditions of service and rights including pensionary benefits of the employees and the Federal Government has also assumed the responsibility of pensionary benefits of employees. It is not the case of the respondents that before taking the impugned action, they had ever consulted the pensioners. The same can be termed as disadvantage. It is crystal clear that the impugned action is illegal and flagrant violation of provisions of Act, 1996. It is also against the principle of "A communi observantia non est recedendum" (where a thing provided to be done in a particular manner that must be done in that manner and not other than that). The Hon'ble Supreme Court of Pakistan in the matter of: HUMAN RIGHTS CASES NOS.4668 OF 2006, 1111 OF 2007 AND 15283-G of 2010 has held that "Things are required to be done strictly according to law , or it should not be done at all". 15. The said judgment dated 21.12.20 11 was assailed by P.T.C.L. etc. in Intra Court Appeals (including I.C.A.No.8/2012) before the Division Bench of this Court. Vide judgment dated 17.03.2014, the said appeals were dismissed with costs. On the question whether the retired departmental employees were also entitled to the increases in pension at the same rate as announced by the Federal Government for the retired civil servants, the view of the Division Bench of this Court was as follows:- "17. The contention that the company had accepted the liability to the extent of payment of pension fixed at the time of retirement and not for the future increases, again is not correct, for the simple reason that the pension is part of pay and any increase extended to the similarly placed employees can not be refused to the respondents, as they can not be discriminated against others. Denial of increases, made by the Government, to the respondents is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973." 16. P.T.C.L. etc. filed petitions against the said judgment dated 17.03.2014 before the Hon'ble Supreme Court. Vide judgment dated 12.06.2015 reported as Pakistan Telecommunication Employees Trust (PTET) Vs. Muhammad Arif (2015 SCMR 1472 ), the said petitions were dismissed and it was held inter alia that "the employees of T&T Department having retired 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." 17. The said judgment dated 12.06.2015 was sought to be reviewed by P.T.C.L. etc. in several review petitions, which were all disposed of vide order dated 17.05.2017 passed by the Hon'ble Supreme Court. The primary ground taken by P.T.C.L. in the said review petitions was that some of the ex-employees of P.T.C.L. in whose favour the judgment under review had been passed, had availed the benefit of Voluntary Separation Scheme ("V.S.S."), and having done so, they were not entitled to the benefit of pension in terms of what was announced by the Federal Government, and that the High Court could not have exercised its jurisdiction under Article 199 of the Constitution in such cases since the V.S.S. had conv erted their employment to be governed by contract as contained in the V.S.S. 18. The Hon'ble Supreme Court also recorded the contention of the learned counsel for the review petitioners that P.T.C.L. will approach the High Court by filing an application under Section 12(2) C.P.C. for resolving the said issue in accordance with the law. The Hon'ble Supreme Court, after observing that the submissions made by the learned counsel for the review petitioners seemed to be fair and reasonable, disposed of the review petitions without giving findings on any of the grounds agitated in such petitions. For the purposes of clarity , paragraphs 5 and 6 of the said order dated 17.05.2017 are reproduced herein below:- "5. In the circumstances, submission made by Mr. Khalid Anwar , learned Sr. ASC for the Review Petitioners and adopted by counsel for other review petitioners, as noted above, prima facie seem to be fair and reasonable and without expressing ourselves on any of the points involved in the matter , we feel that cause of justice will be met if all these Review Petitions are disposed of accordingly . 6. Consequently , the listed Review Petitions are disposed of and the PTCL/Review Petitioners to the extent as noted above may avail remedy under Section 12(2), CPC which shall be decided by the concerned Court in
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accordance with law. At the same time, the PTCL/Review Petitioners may urge all points available to them in other cases pending before the High Courts in accordance with law . Disposed of." 19. P.T.C.L. filed several applications unde r Section 12(2) C.P.C. against the judgment dated 17.03.2014 passed by the Division Bench of this Court in Intra Court Appeal No.08/2012 and connected matters, whereby appeals against the judgment dated 21.12.201 1 passed by this Court in writ petition No.148/201 1 and connected matters had been dismissed. As mentioned above, vide the said judgment dated 21.12.201 1, the learned Judge-in-Chambers had allowed several writ petitions filed by the retired employees of P.T.C.L., who had been transferred from T&T Department, and held that they were entitled to be paid the increases in pension announced by the Government of Pakistan, and directed P.T.C.L. to pay pension etc. to them according to the increase made by the government along with arrears, if any . 20. A preliminary objection to the maintainability of said application under Section 12(2) C.P.C. was taken by the respondents in the said application that since the judgment dated 17.03.2014 passed by the Division Bench of this Court had been upheld by the Hon'ble Supreme Court in the case of Pakistan Telecommunication Employe es Trust (PTET) Vs. Muhammad Arif (supra), P.T.C.L. could only file the application under Section 12(2) C.P.C. before the Hon'ble Supreme Court in view of the law laid down in the case of Sahibzadi Maharunisa Vs. Mst. Ghulam Sughran (PLD 2016 SC 358). The said preliminary objection found favour with the Division Bench of this Court, and vide order dated 22.01.2018, the said applications were dismissed as not maintainable. 21. The said order dated 22.01.2018 has been assailed by P.T.C.L. before the Hon'ble Supreme Court. I am told that P.T.C.L. has also made an alternative prayer for its petitions for leave to appeal against the said order to be treated as applications under Section 12(2) C.P.C. against the judgment dated 12.06.2015, reported as Pakistan Telecommunication Employees Trust (PTET) Vs. Muhammad Arif (supra). The said petitions are pending adjudication before the Hon'ble Supreme Court. It was in these circumstances that the writ petitions proposed to be decided through this judgment were filed. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS:- 22. Learned counsel for the petitioners drew the attention of the Court to the law laid down by the Hon'ble Supreme Court in the cases of Pakistan Telecommunication Employees Trust (PTET) Vs. Muhammad Arif (supra), and Muhammad Riaz Vs. Federation of Pakistan (2015 SCMR 1783 ), and submitted that the petitioners seek the grant of the same relief as was granted to the retired employees of P.T.C.L. in the said cases; that it is the petitioners' fundamental right to be granted all pensionary and retirement benefits as were payable by the Federal Government to retired civil servants; that such retirement benefits are not just restricted to pension or increases in pension but also include medical allowance, special additional pension (at the rate of the orderly allowance announced by the Government for in-service government servants in BPS-20 and above), family pension, and the restoration of the commuted portion; that upon the transfer of the departmental employees to P.T.C. and thereafter to P.T.C.L., the terms and conditions of their service were protected under Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act; that it is well settled that pension is not a bounty but a right and the same cannot be reduced arbitrarily; that when the departmental employees were transferred to P.T.C., they were not told that they would not be given the same benefits as would have accrued to civil servants in the future; that it is an admitted position that prior to the transfer of the departmental employees from T&T Department to P.T.C. they were civil servants; that after the transfer of such departmental employees, they were no longer civil servants but by virtue of the protection afforded to them under Section 9 of the 1991 Act, they were entitled to be given the same retirement benefits as were granted by the Federal Government to retired civil servants; that since up to 2010, the rate of increases in pension payable to the retired employees of P.T.C.L. was exactly the same as the rate of increases in pension announced by the Federal Government for retired civil servants, this was the correct interpretation of the protection afforded to the departmental employees as well as employees transferred from P.T.C. to P.T.C.L. enshrined in Section 9 of the 1991 Act and Sections 35 and 36 of the 1996 Act; and that the Hon'ble Supreme Court has already held that the disparity in the rate of the increases in pension betw een the one allowed by P.T.E.T. to the retired employees of P.T.C.L. and the one allowed by the Federal Government to retired civil servants was
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unlawful. Learned counsel for the petitioners prayed for the writ petitions to be allowed in terms of the relief sough therein. CONTENTIONS OF THE LEARNED COUNSEL FOR P .T.C.L.:- 23. Learned counsel for P.T.C.L. contended that in the case of Pakistan Telecommunications Corporation Vs. Riaz Ahmad (PLD 1996 SC 222), it has been held inter alia that the employees of P.T.C. who had been transferred en bloc from T&T Department under Section 9 of the 1991 Act were civil servants within the meaning of the Civil Servants Act, 1973 and could approach the Service Tribunal to enforce a service rule related to a condition of their eligibility for promotion to a higher post; that similarly in the case of Divisional Engineer Phones, Phones Division, Sukkur Vs. Muhammad Shahid (1999 SCMR 1526 ), it was held inter alia that if an employee transferred to P.T.C. was a civil servant before such transfer , he continues to be a civil servant; that the law laid down in the above referred two judgments was still holding the field when the Hon'ble Supreme Court passed the judgment in the case of Masood Ahmed Bhatti Vs. Federation of Pakistan (2012 SCMR 152), which begins with the sentence: "These appeals have been filed by three individual appellants who admittedly were civil servants employed in the Telephone and Telegraph (`T&T') Department prior to the enactment of the Pakistan Telecommunication Corporation Act, 1991 (the `PTC Act')"; that although the review petitions against the judgment in the case of Masood Ahmed Bhatti Vs. Federation of Pakistan (supra) were dismissed by the Hon'ble Supreme Court vide judgment reported as P.T.C.L. Vs. Masood Ahmed Bhatti (2016 SCMR 1362 ), it was held inter alia that the employees of T&T Department on their transfer to P.T.C. and further transfer to P.T.C.L. "did not remain civil servants anymore" ; that the said judgment was passed on 19.02.2016, i.e. after the judgment dated 21.02.201 1 passed by the learned Single Bench of this Court in writ petition No.148/201 1 etc., judgment dated 17.03.2014 passed by the Division Bench of this Court in I.C.A.No.8/2012 etc., and judgment dated 12.06.2015 passed by the Hon'ble Supreme Court in civil petitions No.565-568 and 582- 584/2014 etc reported as Pakistan Telecommunication Employees Trust (PTET) Vs. Muhammad Arif (2015 SCMR 1472 ); that since the latest dictum of the Hon'ble Supreme Court is that the departmental employees are not civil servants after their transfer to P.T.C., the law laid down in the above-mentioned judgments dated 21.12.201 1, 17.03.2014 and 12.06.2015 no longer holds good; that the increases in pension announced by the Federal Government from time to time are not for the benefit of non-civil servants, and therefore the benefit of such increases cannot be given to the departmental employees; that P.T.C.L. has also increas ed the pension payable to its retired employees with pensionable service, however such increases are not at the same rate of increases in pension announced by the Federal Government for retired civil servants from time to time; that since the departmental employees, after their transfer to P.T.C. were no longer civil servants, they were not entitled to any of the retirement benefits to which retired civil servants had been made entitled by the Government; and that the petitions filed by the petitioners who were employed in P.T.C. after the enactment of the 1991 Act are not maintainable since the terms and conditions of their service were not governed by statutory rules. Learned counsel for P .T.C.L. prayed for the petitions to be dismissed. 24. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petitions have been set out in sufficient detail in paragraphs 2 to 21 above, and need not be recapitulated. 25. As mentioned above, the Hon'ble Supreme Court in the case of Pakistan Telecommunication Employees Trust (PTET) Vs. Muhammad Arif (supra) held inter alia that the retired departmental employees "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." Against the said judgment, P.T.C.L. has filed an application under Section 12(2) C.P.C. which is…
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