' SARMAD JALAL OSMANY, J.--- Briefly stated the facts of the matter are that the petitioners are the widows/legal heirs of retired and deceased employees of the State Bank of Pakistan/respondent No,1, who had opted for voluntary Golden Handshake Scheme introduced vide Circular No,9 of 1997, dated 23-10-1997. The last date for exercising such option was 22-11-1997 which was complied with by the retired/ deceased employees and the same was accepted by the State Bank of Pakistan on 3-12-1997 by virtue of which the said employees were relieved from their service on 15-12-1997, their benefits being calculated on the basis of their pay and allowances as of 22-11-1997. However, as the same were revised with effect from 1-12-1997, some of the employees (other than the predecessor-in-interest of the petitioners) approached the learned Federal Service Tribunal praying that their benefits should be calculated with effect from such date. As this relief was refused by the learned Federal Service Tribunal, vide order, dated 19-10-2000, this was impugned by such employees before the Honourable Supreme Court of Pakistan through a number of Civil Petitions being Nos.12 of 2001 to 63 of 2001, 65 of 2001 to 92 of 2001, 112 of 2001 to 180 of 2001, 185 of 2001, 2020 of 2000, 1974 of 2000, 2019 of 2000 and 950 to 1113 of 2001, which allowed the same after converting them into Appeals vide judgment dated 3-4-2001 and directed that their benefits should be calculated by taking into account the period between 1-12-1997 to 15-12-1997. In pursuance of the Honourable Supreme Court's Orders, the State Bank of Pakistan Calculated such benefits by taking into account the average pay drawn by the employees during the last six months which was disputed by the latter according to whom the calculations should have been made on the basis of last pay drawn i,e, on 15-12-1997. Accordingly, these employees filed contempt application before the Honourable Supreme Court which were allowed vide order dated 19-11-2002 and the State Bank of Pakistan was directed to calculate the benefits of the employees as per the last pay drawn on 15-12-1997. Again the State Bank limited such benefits to pension only and not other retirement allowances which prompted the employees to file another set of contempt applications in which yet again the Honourable Supreme Court vide order, dated 24-2- 2004 directed that all the retirement/financial benefits should be given to the employees as of 15- 12-1997. The State Bank accordingly vide Circular No,AD(CPD-113)/75/2004, dated. 22-6-2004 gave such benefits to the employees who had filed the petitions and not to others who had opted for the Golden Handshake Scheme unlike the past practice. The petitioners along with others thereafter filed contempt applications before the Honourable Supreme Court in the already disposed of matters against the denial of pensionary benefits to them on the ground of discrimination etc. However, the same were withdrawn by the petitioners on the ground that they would first approach the State Bank of Pakistan for their remedy vide order dated 3-2-2005 wherein it was also observed by the Honourable Supreme Court that the petitioners could approach the appropriate forum according to law if the benefits were denied to them by the State Bank. The petitioners accordingly preferred a departmental representation before the State Bank of Pakistan requesting that the retirement/pensionary benefits be extended to them as had been done to the others who were similarly placed which were regretted vide the impugned Letter No,HRD/(RBU)F.91/1224/2005, dated 8-6-2005 and hence the petition.
2. Comments were filed by the State Bank of Pakistan in which it has been stated that as regards the employees who had opted for the VGHS Scheme and had approached the Honourable Supreme Court the orders of the Honourable Supreme Court have been fully implemented by the Bank. In so far as the present petitioners are concerned the Honourable Supreme Court has dismissed their Applications wherein they had prayed for the same treatment as given to the other employees.
3. In support of the petition Mr. Abdul Rahim Bhatti has firstly submitted that insofar as the objection regarding jurisdiction of this Court is concerned, section 4 of the Service Tribunals Act provides that only a civil servant can file an appeal before the Tribunal and not one who has retired or his legal heirs. Consequently, the petition is very much maintainable having been filed by the legal heirs of the deceased employees. In support of this contention he has relied upon Muhammad Nawaz v.
Ministry of Finance 1991 SCMR 1192, Syed Athar Saeed v. Director General PBC 2005 PLC (C.S.) 853, Manzoor Ahmed v. Chief Executive HESCO 2005 TD (Service) 428, Ghazala Tarique v. Federation of Pakistan 2005 PLC (C.S.) 271, Ghulam Sadique Wadhera v. Pakistan and others 1982 PLC (C.S.) 743 and Ahmed Khan v. Secretary to the Government of Balochistan 1993 PLC (C.S.) 1615. Hence per learned counsel the petitioners who are the legal heirs of the ex-employees of the State Bank have no remedy except to approach this Court.
4. On the merits of the case, learned counsel submits that the impugned order whereby pensionary benefits have been denied to the petitioners is discriminatory since admittedly the same benefits have been given to other employees who approached the Honourable Supreme Court of Pakistan.
Consequently, such discrimination violates Article 25 of the Constitution as the petitioners are being treated differently from whose who are similarly placed for no reason at all. In support of this contention learned counsel has relied upon Nizamuddin v. Civil Aviation Authority 1999 SCMR 467, PIAC through Chairman v. Shahzad Farooq Malik PLD 2004 SC 145, Deputy Inspector-General of Police v. Shafique-ur-Rehman 2000 SCMR 669, District Accounts Officer v. Muhammad Sarwar 1998 PLC (C.S.) 1025, Allah Yar v. General Manager, Railways H.Q. Lahore 2001 SCMR 256 and Mst.
Bashiran Bibi v. Government of Punjab through Secretary of Communication 2000 PLC (C.S.) 467.
5. On the point of benefit of identical judgment learned counsel has cited Hameed Akhtar Niazi v.
The Secretary Establishment Division 1996 SCMR 1185, Tara Chand v. KW and SB 2005 PLC (C.S.) 368, Inamul Haq Shah v. Government of Punjab 2006 PLC (C.S.) 11 and unreported judgment of Honourable Supreme Court of Pakistan in Civil Appeal No,580 of 2004 entitled Anwar Hussain v.
Director Accounts Pakistan Post Office Lahore.
6. Hence, learned counsel has prayed that the petition be granted and it be ordered that the petitioners be treated at par with the other employees of the State Bank and the amounts due to the deceased employees be paid to the petitioners being their legal heirs under the Golden Hand Shake Scheme.
7. On the other hand, Mr. Khalid Anwar, appearing for State Bank of Pakistan, has submitted that in terms of Article 212 of the Constitution the Federal Service Tribunal has been established to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service with respect to civil servants including disciplinary matters. This, per learned counsel, includes retired civil servants as well as the legal heirs of those who have expired. In support of this submission he has relied upon: Superintending Engineer Highways Circle Multan v. Muhammad Khurshid 2003 SCMR 1241, Sahibzada K.A.K. Afridi v. Allied Engineering and Services Limited 2004 SCMR 523, Pakistan International Airlines v. F.M. Shamsi PLD 1990 SC 943 and the Chairman, PIAC v. Nasim Malik PLD 1990 SC 951. Thus, per learned counsel, whenever the terms and conditions of service of civil servants are in issues then only the Federal Service Tribunal has the jurisdiction to entertain any appeal etc. Emanating from the same as in the present case. Hence, where the rights sought to be established forms part of the estate of the deceased civil servant as distinguished from a personal right, only the Federal Service Tribunal would have the jurisdiction.
8. Mr. Khalid Anwar's next arguments was that where the alternate remedy existed, in this case the right to approach the Federal Service Tribunal, then a writ would not be maintainable unless there are certain exceptional circumstances for example an order which is without any authority etc. In this regard he has relied upon Messrs Shahid Agency v. The Collector of Customs (Appraisement)
1989 CLC 1938, Bhagan v. State PLD 1990 Quetta 41, Muhammad Farooq v. The Collector of Customs 1987 CLC 1229 (Karachi), Azizur Rehman, Ex.G.M. Bara Cigarette Factory v. FATA Development Corporation Peshawar PLD 1988 (Peshawar) 9 and Haji Mojakkir Ali v. Regional Transport Authority PLD 1967 Dacca 6.
9. Next, per learned counsel, the issues raised by the petitioners would necessarily require determination of factual disputes and hence to that extent also this petition would not be maintainable. In support of this proposition he has relied upon PLD 2005 SC 796, Ali Enterprises v.
Federal Government 1995 CLC 1289 (Lahore), Arshad Jawad Khan v. Government of Pakistan 1995 MLD 1393 and Muhammad Akhtar Khan v. Executive Officer, Multan Cantonment Board, Multan 1994 CLC 919.
10. Finally, per learned counsel, according to the order dated 29-4-2004 passed by the Honourable Supreme Court, it was, inter alia, observed that ".... In view of the above, "pensionary benefits/retirement benefits" shall be paid to the petitioners by calculating all the retirement/ financial benefits on the basis of last pay drawn after treating the date of retirement as 15-12-1997".
Hence, it is not the State Bank rather the Honourable Supreme Court itself which has restricted the scope of extending the benefits only to the parties to that litigation. Furthermore, per learned counsel, the cases cited by Mr. Bhatti in support of the principle that benefits of litigation should be extended to non-litigating parties also, involved questions of departmental policy and are in no manner relevant to the present controversy regarding extension of the benefit vis-a-vis the Golden Handshake Scheme, the cost of which would be around Rs,160,000,000 which would unduly burden the State Bank of Pakistan and also defeat the very purpose of the Golden Handshake Scheme.
11. For all the foregoing reasons, learned counsel has prayed that the petition be dismissed.
12. Mr. Ziauddin Nasir learned Standing Counsel has supported the arguments of Mr. Khalid Anwar.
13. We have heard all the learned counsel and our conclusions are as follows:-
14. In our opinion, the only issue to be determined before this Court is whether the benefit accorded by the Honourable Supreme Court to the petitioners before it in C.P.L.As. Nos.12 of 2001 to 63 of 2001, 65 of 2001 to 92 of 2001, 112 of 2001 to 180 of 2001, 185 of 2001, 2020 of 2000, 1974 of 2000, 2019 of 2000 and 950 to 1113 of 2001 and subsequent contempt applications can be extended to the petitioners before this Court. In this regard the law is very well-settled by the Honourable Supreme Court whereby it has observed that "if the Tribunal or this Court decides the point of law relating to the terms of service of a civil servant which covers not only the case of civil servant, who litigated but also of other civil servants, who may have not taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the above judgment be extended to other civil servants, who may not be parties to the above litigation instead of compelling them to approach the Tribunal or any other legal forum". Hameed Akhtar Niazi v. The Secretary Establishment Division (supra). Such principle of law has been reiterated in a number of other cases i,e, Tara Chand v. K.W. And SB, Inamul Haq Shah v. Government of Punjab, etc. (supra).
It has not disputed before us that the petitioners are the legal heirs of those deceased employees of the State Bank who did exercise their right under the Golden Handshake Scheme in November, 1997. As much has been admitted in the para-wise comments filed by the State Bank.
Consequently we have no hesitation to hold that indeed the petitioners before us are entitled to all the benefits which were accorded to those who litigated before the Honourable Supreme Court in the proceedings afore-mentioned.
15. In so far as Mr. Khalid Anwar's arguments that the petition is not maintainable since disputed questions of facts are in issue, we are of the opinion, that such is not the case since there is no dispute that the predecessor-in-interest of the petitioners did exercise their right under the Golden Handshake Scheme and hence the only issue is as observed above that whether they are to be treated at par with those of the employees who had approached the Honourable Supreme Court.
So also, we are of the opinion that the Honourable Supreme Court in the aforementioned C.P.L.As.
Out of which these proceedings have arisen decided a point of law vide order dated 3-4-2001 to the effect that such petitioners were entitled to the pensionary benefits upto the last date of their service which in that case was 15-12-1997. Similarly, we are afraid that Mr. Khalid Anwar's contention that an alternative remedy is available to the petitioners by approaching the learned Federal Service Tribunal is again without merit in view of the settled law enunciated by the Honourable Supreme Court vis-a-vis extension of benefit tc non-litigating parties. Finally, we are also of the opinion that only by reason of a burden being levied upon the exchequer where the benefit was extended to the petitioners is no reason to dismiss the petition.
16. For all the foregoing reasons we would allow this petition and direct that the pensionary benefits of the predecessor-in-interest of the petitioners would be calculated as of 15-12-1997 and consequently the petitioners given the same in accordance with the decisions of the Honourable Supreme Court in the various C.P.L. As. Referred to above. Petition stands disposed of along with the listed applications.