' SARMAD JALAL OSMANY, J.--- This petition impugns the privatization of Pakistan Telecommunication Company by the Government of Pakistan on the ground of being violative of Constitutional provisions.
2. In support of the petition, Mr. Sohail Hameed has firstly submitted that Article 142(a) of the Constitution provides that Majlis-eShoora (National Assembly) shall make laws in respect of any matter provided in the Federal Legislative List. Entry No,7 in Part-I of the said list pertains to Post and Telegraph and hence the privatization of the Company without necessary legislation by the National Assembly is quite incompetent and unlawful. In support of this proposition learned counsel has relied upon Reference No,1 of 1988 made by the President of Pakistan PLD 1989 SC 85.
3. Next, he has submitted that per Article 79 of the Constitution the Revenue of the Federation of Pakistan are only to be controlled by the National Assembly. Consequently, the Company which is a highly profitable entity cannot be sold without the appropriate legislation by the National Assembly. Finally, per learned counsel, after privatization of the Company the working conditions of the employees would be adversely affected since the new owners are bound to make changes to suit their interests.
4. On the other hand, Mr. A.H. Pirzada, appearing for the Privatization Commission, has submitted that there are two sources of executive authority, firstly that given by the Constitution itself and secondly through the Legislature by means of legal enactments. Per learned counsel, in this respect, Article 173 of the Constitution allows the Federal Government to sell State property subject to the limitations stated therein and accordingly the Privatization Commission Ordinance, 2000 has been enacted to sell/privatize such property. This is a comprehensive piece of legislation and provides for all eventualities vis-a-vis the disposal of companies Corporations, units owned by the Government of Pakistan. In support of this submission learned counsel has relied upon Ameen Ahmed v. Ministry of Production, Government of Pakistan PLD 1996 Kar. 27, Millat Tractors Employees Trust v. Government of Pakistan PLD 1992 Lah. 68, Brig. Talat Saeed Khan v. Privatization Commission 1999 YLR 1084, Calicon (Pvt.) Ltd. v. Federal Government of Pakistan 1996 MLD 705 and Haji T.M.
Hassan Rawther v. Kerala Financial Company AIR 1988 SC 157.
5. Secondly, per learned counsel, Article 97 of the Constitution provides that the executive authority of the Federation extends to all matters in aspect of which the National Assembly has the power to make laws except where the Provincial Assembly has the power to do so. Per Article 142(a) the National Assembly has exclusive powers to make laws with regard to the matters listed in the federal legislative list, part-1 in which posts and telegraph are at Entry No,7. Consequently, the Pakistan Telecommunication (Re-organization) Act, 1996 has been enacted by the National Assembly whereby a separate Company has been formed to deal with the erstwhile telephone and Telegraph Department of the Government of Pakistan. Per section 34(4) of the Act the Government has been authorized to sell the shares of the company which has been done in the present matter viz. Only 26% have been sold to the highest bidder along with management rights at Rs,118 per share which is much more than that quoted on the stock markets. Per learned counsel the rights of the employees have also been taken care of through section 36 of the Act viz. They continue tp be civil servants within the meaning of the Civil Servants Act.
6. Finally, learned counsel has submitted that the privatization of the company has been done in a plain, open and, transparent manner by inviting bids both nationally and internationally and the highest offer has been accepted, which is much more than the quoted price of the shares in the stock markets. Consequently, per learned counsel, no exception can be taken in this regard. In support of this contention he has relied upon Abid Hassan v. The P.I.A.C. 2005 SCMR 25.
7. In reply Mr. Sohail Hameed has submitted that as the Company is a legal entity hence there must be a board resolution to authorize its privatization which has not been filed at all by the Government to which Mr. Prizada's reply is that the company is not selling any property but the Government of Pakistan is selling its shares which are quoted on the stock exchange.
8. The learned Additional Advocate-General has supported the arguments of Mr. A.H. Pirzada and prayed that the petition be dismissed.
9. We have heard both the learned counsel as well as learned Additional Advocate-General and our conclusions are as follows:--
10. It would be seen that per Amin Ahmed v. Ministry of Production decided by a Division Bench of this Court, and Talat Saeed Khan v. Privatization Commission as well as Calicon (Pvt.) Ltd. v. Federal Government of Pakistan (supra) decided by the learned Lahore High Court it has been held that per Article 173(1) of the Constitution, the Federal Government has the right to sell, mortgage or dispose of State property which is subject only to the well-settled principles in respect thereof viz. Executive authority is to be exercised in accordance with law and must be transparent, fair and non-discriminatory. In fact, it was further held in the aforementioned cases that no specific legislation was required for the exercise of executive authority under Article 173(1). Nevertheless, it would be seen that now the Privatization Commission Ordinance, 2000, has been enacted which specifically caters for privatization of State property. In this regard section 5 lays down the functions and powers of the Commission vis-a-vis the privatization programme of the Government, sections 6, 7, 8 and 9 provide for the management and administration of the Commission and sections 22, 23, 24 and 25 thereof cater for the manner in which privatization is to be carried out. In view of the foregoing observations, we are satisfied that the Government of Pakistan in principle does have the power and the authority to dispose of the shares of the Company. As there is no challenge to the manner which the same have been disposed of, we are not called upon to give any findings in that respect.
11. As regards Article 142(a) of the Constitution it would be seen thereto that the National Assembly has been given exclusive powers to make laws with regard to the matters listed in the federal legislative list, part-1, in which post and telegraph are at Entry No,7. In our opinion, this Article read with Entry No,7 aforementioned, gives the National Assembly executive power to make laws vis-a- vis matters relating to post and telegraph and has nothing to do with the Federal Government's power to dispose of State property while exercising powers under Article 173 as these two provisions of the Constitution deal with separate organs of the State, i,e, the Federal Government and the National Assembly.
12. It would further be seen that insofar as the employees' terms and conditions of service are concerned, the Pakistan Telecommunication (Re-organization) Act, 1996, inter alia, provides for the setting up of a Pakistan National Telecommunication Company vide section 34, thereof. Section 36 caters for the terms and conditions of employees and in particular subsection (2) provides that all employees shall be treated in accordance with the laws of Pakistan and their terms and conditions would not be altered except with their consent and upon award of appropriate compensation.
Consequently, in this view of the matter, we cannot agree with Mr. Salman Hameed that the new buyer of the Company's controlling shares would be able to adversely change the terms and conditions of the employee's service.
13. For the foregoing reasons, we had vide a short order passed earlier, dismissed this petition.