' MALIK MUHAMMAD AQIL AWAN, J.---The three petitioners have filed this petition with the prayer that they may be allowed/granted increase of salary on account of revision of the salary as ordered in 134th meeting of the Board of Management held on 22-8-2002.
2. All the three petitioners were employees of the respondents Nos.2 and 3 and during their employment, respondents had offered optional retirement plan issued on 26-7-2002, for which petitioners had opted which options were accepted and resultantly petitioner No,1 was retired on 9-8-2002, petitioners Nos.2 and 3 retired on 5-8-2002 respectively.
3. The Board of Management of respondents Nos.2 and 3 held its 134th meeting on 22-8-2002 raised the salary structure of employees of Pakistan State Oil Company Limited which revision was with effect from 1st July, 2002.
4. All the three petitioners through separate and independent applications applied to respondents Nos.2 and 3 for grant of difference of salary on account of revised salary structure as ordered in the aforementioned meeting of the Board of Management with effect from 1st July, 2002. The ground of such application was that since the salary structure was revised with effect from 1st July, 2002, when the petitioners were still in service of Pakistan State Oil, therefore, they are also entitled for benefit of the revised salary structure and difference of pay arising out of such revision. The respondents Nos.2 and 3 vide their letter dated 9-10-2002 declined the request of all the three petitioners, which are filed at pages 73, 77 and 79 of the petition. The main reasoning for declining the request of petitioners is recorded in paras.2 and 3 of the letter dated 9-10-2002 which is available at page 73 and the relevant portion thereof is reproduced as under:-- "Please note that in view of your accepting and opting ORP-2002 willingly strictly in accordance with the terms and conditions specifically offered and accepted by you voluntarily on 26-7-2002, based on the attached Estimated Gross benefits worked out on the basis of Salary/allowances applicable/payable to you on 1-7-2002, the question of payment of additional benefits/increases after full and final settlement of your dues under ORP-2002 does not arise.
(3) That an undertaking was also furnished by you in respect of ORP-2002, and clause 3 of this undertaking reads as under:--- "that the full and final settlement of my dues offered to me under the Optional Retirement Plan- 2002 is acceptable to me on the statement of accounts attached with the said Option Form (as highlighted at serial No,1 hereinabove)."
5. The aforementioned letters have not been challenged specifically in the present petition, however, the relief claimed in the petition if granted would have the effect of nullifying such letters.
6. We have heard the learned counsel Mr. Sanaullah Noor Ghauri at length. He very candidly conceded that all the three petitioners were retired and relieved from service on 9-8-2002 and 5- 8-2002 respectively whereas 134th meeting of the Board of Management was held after their retirement, on 22-8-2002. He further conceded that the petitioners never received any pay during their service in pursuance of the revised salary as ordered in 134th meeting. The only contention in support of above petition, raised by the learned counsel for petitioners is that since salary has been revised/enhanced with effect from 1-7-2002 while petitioners were in service therefore, petitioners are entitled to the benefit of revised salary.
7. We have asked the learned counsel to show anything from the minutes of the meeting which is at page 51 of the petition which covers those employees who are retired in pursuance of Optional Retirement Plan or in other words such relief granted to the employees under 134th meeting of the Board of Management is applicable to the petitioners. Learned counsel candidly conceded that there is no such clause in the minutes of said meeting which may cover retired employees or those employees who are retired in pursuance of Optional Retirement Plan.
8. Learned counsel vehemently argued that he is entitled to such enhanced/revised salary and supported his submission by placing reliance on the case of Abdul Qadir Ismail v. State Bank of Pakistan, reported in 2001 PLC (C.S.) 810. We have carefully gone through the case of Abdul Qadir decided by the Honourable Supreme Court and find that on facts as well as law, it is distinguishable and has no application on the case in hand. In the case of Abdul Qadir the employees of the State Bank were informed in writing on 3-12-1997 that their options submitted for Voluntary Golden Hand Shake Scheme had been accepted and they would be relieved of their duties with effect from 15-12-1997. The State Bank in the meanwhile raised the salary structure vide circular 12 dated 29-11-1997 which had become effective from 1-12-1997 and were paid the remuneration as per revised salary structure for the period 1-12-1997 to 15-12-1997. The State Bank calculated the pensionary benefits/ emoluments under the Voluntary Golden Hand Shake Scheme not on the basis of last pay drawn i,e, having become effective from 15-12-1997 but on the basis of pay drawn on 22-11-1997 i,e, old pay structure. Under such situation Supreme Court held that all aggrieved employees were in employment of the Bank on 1-12-1997 when the revised salary structure became effective notwithstanding the fact that they earlier opted for Golden Hand Shake Scheme and the same was accepted by the Bank on 3-12-1997. All the aggrieved employees were paid the revised salary for the period 1-12-1997 to 15-12-1997 i,e, up to the date when they were relieved from service under Golden Hand Shake Scheme, therefore, Honourable Supreme Court directed that all the pensionary benefits shall be calculated by taking into the account period 1-12- 1997 to 15-12-1997.
9. In the present case, admittedly petitioners were retired and relieved from service much before the 134th meeting of Board of Management where under the salary was revised of the employees and moreover the said revised salary was never paid even for one day to the present petitioners because the principle of law is that pensionary benefits are to be calculated on the basis of last pay drawn and this was consideration before Supreme Court, while deciding the case of Abdul Qadir Ismail. In the present case, petitioners have not complained before us that their pensionary benefits have not been calculated on the basis of their last pay drawn. In this view of the matter, the distinguishing feature in the case of Abdul Qadir Ismail is that employees of the State Bank were still in service when the salary structure was revised and not only that but they were paid the salary in accordance with the said revised salary structure and it was the State Bank which refused to calculate their pensionary benefits on the basis of last pay drawn.
10. This brings us, to the next question as to whether the 134th meeting of the Board of Management of respondents Nos.2 and 3 covers those employees who have been retired much before holding of such meeting in pursuance of Optional Retirement Plan. As earlier stated the learned counsel could not point out any clause from minutes of the meeting, which are on record of the file under which such benefit is extendable to the retired employees. The contention of the learned counsel that since such revised salary structure is with effect from 1st July, 2002 therefore, it covers the petitioners as they were in service of respondents Nos.2 and 3 at that point of time is absolutely misconceived because the grant of retrospective benefit of the revised salary is for those employees who are still, in service and not for the retired employees. In number of cases the Honourable Supreme Court has classified the retired employees as a separate class than the employees in service. The benefit granted by the employer to the employees in service " cannot be extended to the retired employees automatically for the reason that such benefit is granted with retrospective effect. If any authority is needed in support of the above legal position, the case of I.A.
Sherwani v. Federation of Pakistan, reported in 1991 SCMR 1041 can be cited in support thereof. In this judgment at page 1088, complete reply is provided, to the contention raised by the learned counsel for the petitioner in the following words:--- "In this view of the matter, if the pay scales of serving civil servants are revised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their pay scales for re-computing their pension amounts for any purpose as the pension amount is to be computed as above C.S.R.4 on the basis of the pension rules in force on the date of retirement of a civil servant. However, a pensioner may have a legitimate grievance if he is not treated alike with the other pensioners, for example, if the legislature/Government increases pension amount by 10%, say on 1-1-1991, but provides that this benefit will be available to those pensioners who have retired on or after 1-1-1989. In other words, the pensioners who had retired prior to 1-1-1989 are deprived of the above benefit. This would be violative of Article 25 of the Constitution unless the Government can demonstrate that the above sub-classification within the class of pensioners is based on an intelligible differentia and that the latter has rational nexus to the object sought to be achieved by the relevant classification under the statute or statutory rules.
Therefore, if the Government improves the pensionary privileges and benefits for its serving employees or future entrants it cannot be said that it is guilty of discriminatory treatment towards those who have already retired. It is further clarified that when a Government servant retires, he earns the pension according to the rules in force on the date of his retirement. Should any revision take place thereafter augmenting the pensionary benefits, he is not entitled to them, unless any of them specifically or retrospectively covers his case."
11. The Honourable Supreme Court while interpreting the term "emoluments" has held that they are to be collected upon what the officer was receiving immediately before his retirement and since inter alia basic pay, dearness allowance, indexation pay, etc., are some of the constituents that go to make up emoluments, that pay or allowance etc., alone would be taken into consideration which the employee was receiving immediately before his retirement.
12. Before parting with this case, we are mindful of the legal situation that the Pakistan State Oil Company Limited may be a company being controlled under the Ministry of Petroleum and Natural Resources, Government of Pakistan but it goes without saying that .This company has no statutory rules. It is further clarified that the High Court in constitutional jurisdiction can enforce a statutory rule to the extent if right of any employee is violated in defiance of such statutory rule. Ordinarily contractual obligation or obligations arising out of non-statutory instruments are not enforceable in extraordinary constitutional jurisdiction of High Court under Article 199 of the Constitution.
Admittedly 134th meeting of Board of Management held on 22-8-2002, minutes whereof are on record of this case, the petitioner wanted to enforce this instrument for claiming relief in pursuance of the same notwithstanding the fact whether on merits such relief is permissible to him or not. It is admitted position that such minutes of meeting is non-statutory instrument and ordinarily petition could have been dismissed on this ground alone.
13. But we would not like to non-suit the petitioner on this score for the reason that in I.A. Sherwani's case referred (supra), at page 1096 CC, their Lordships have concluded. "The right to receive pension by a Government servant is property so as to attract Articles 23 and 24(1) of the Constitution and any illegal denial to a Government servant to receive the same would affect his fundamental right guaranteed under the said provisions of the Constitution."
14. If the aforementioned findings of the Honourable Supreme Court are read with the case of Muhammad Dawood and others v. Federation of Pakistan and others, decided by the full bench of this Court, reported in 2007 PLC (C.S.) 1046 wherein their lordships have drawn the conclusion in paras.29 and 30 and held:-- "(i) Irrespective of an employee of a State controlled corporation not being a civil servant the corporation themselves continue to remain amenable to the jurisdiction of this Court under Article 199 of the Constitution.
(ii) The rule of master and servant is inapplicable to cases where there is violation of statutory provisions or of any other law.
(iii) The expression "violation of law" would not be confined merely to violation of any specific provision of a statute but the expression "law", as observed by Hamoodur Rehman, J., (as his Lordship then was) in Government of West Pakistan v. Begum Agha Abdul Karim Sorish Kashmiri PLD 1969 SC 14, relevant at page 31 ought to be considered in its generic sense as connoting all that is treated as law in this country including even the judicial principles laid down from time to time by the superior Courts. It means according to the accepted norms of legal process and postulates a strict performance of all the functions and duties laid down by law., It may, for instance, includes the principles of natural justice, the public duty to act fairly and honestly and absence of mala fides in fact and law. In all such cases the Court would be competent to grant relief of reinstatement."
15. We are bound by the aforementioned two judgments in the case of I.A. Sherwani as well as ,Muhammad Dawood. Had the case of petitioner been covered or supported by the case of Abdul Qadir v. State Bank, which arisen out of the judgment of Federal Service Tribunal as by that time section 2-A of Service Tribunals Act, 1973 was intact and case of Mubeen-us-Salam, reported in PLD 2006 SC 602 has not come into being, had supported the contentions of the petitioners in respect of relief claimed by them we would have no hesitation to grant such relief in constitutional jurisdiction. But unfortunately that is not so. Therefore, all the contentions raised by learned counsel for respondents Mr. Asim Iqbal towards maintainability of this petition based on the ground that Pakistan State Oil Company Limited, being a limited company is not amenable to the jurisdiction of Sindh High Court, since law of master and servant regulates the relationship of employer and the petitioner, and lastly that no statutory instrument is being sought to be enforced, are hereby repelled in view of the reasons what are stated above.
16. That since we have reached the conclusion that the petitioners are not entitled to any relief on merits of the case therefore, we have no other option but to dismiss this petition in limine.
17. On 16-4-2009 after hearing the learned counsel for the parties, by a short order this petition was dismissed in limine. Above are the reasons for the said short order.