' MIAN SAQIB NISAR, J.---The petitioner is stated to be a registered body (under the Societies Laws) of the Retired Executive Officers of the respondent No,2 (M.C.B Bank Limited). It is claimed that the members of the petitioner, upon their -retirement, were entitled to certain pensionary benefits, which are being denied to them in the garb of a Revised Pay Package ("RPP") enforced by the_M.C.B.; this is alleged to be illegal and unlawful act, and thus an attack upon the validity of RPP has also been made. In the above backdrop, quite a comprehensive relief clause has been set out in the petition, but while arguing the matter, Dr. A. Basit, the learned counsel for the petitioner, concedes that the sub-clauses (i) to (iii) thereof are redundant, and the claim is now restricted to the following relief:--
(i) The Pension Fund which is currently being administered as a Trust be directed to pay the same rate of profit on the total amount to the credit of each member of the Petitioner Association at year-wise rate commensurate with the rate of profit paid on Provident Fund.
(ii) State Bank of Pakistan be directed to ask MCB to pay compensation/encashment for the Privilege Leave Balances of the petitioners forfeited by the Bank.
(iii) State Bank of Pakistan may also be directed to ask MCB management to pay/restore post- retirement medical facility as contained in Revised Salary Package of the petitioners within a stipulated period.
(iv) State Bank of Pakistan may also be directed to arrange redressal of grievances regarding payment of Profit Bonus for the LPR period.
' When questioned in the Court, the learned counsel for the petitioner states that the noted reliefs primarily are structured upon the provisions of section 41 of the Banking Companies Ordinance, 1962 ("the Ordinance"). Upon reading of the petition, this also seems to be the pith and substance thereof.
2. At the very outset, the respondents' side has raised a preliminary objection, which is twofold, first about the maintainability of the petition on the premise that the MCB is a private institution, it does not fall within the purview of a "person" as defined by Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 and, therefore, no writ to it can be independently issued; second, in the light of the claim of the petitioner, no direction can be issued by the State Bank of Pakistan as the case does not fall within the mischief and ambit of section 41 ibid.
3. Responding to the above, Dr. A. Basit, Advocate submits that in the course of privatization, an agreement dated 15-11-1991 was executed between the Government of Pakistan through Ministry of Labour, Manpower and Overseas Pakistanis and All Pakistan State Enterprises Workers' Action Committee. The entire privatization process was subjected to this agreement, and all the units/institutions/organizations privatized were bound to keep intact, protect and secure the terms and conditions of service of the employees thereof, by all means whatsoever; the RPP by the MCB, which is contrary to the above, is voidable rather void on the strength of section 10 of the Protection of Economic Reforms Act, 1992 ('the Act") being a statutory instrument, therefore, any package in violation to that is non-existent, resultantly this Court by issuing an appropriate writ should enforce the agreement dated 15-11-1991. However, when inquired, the learned counsel for the petitioner concedes that the RPP at the relevant time was accepted by all the concerned, including the members of the petitioner-association, it was acted upon and during the period of their employment, the members of the petitioner-association have been availing the benefits of RPP without any objection.
4. Heard. In order to resolve the preliminary objection, I feel expedient to reproduce the provisions of section 10 of the Act and section 41 of the Ordinance:-- ' Section 10 of the Act, 1992: "10. Protection of financial obligation.--All financial obligations incurred, including those under any instrument, or any financial and contractual commitment made by or on behalf of the Government shall continue to remain in force, and shall not be altered to the disadvantage of the beneficiaries."
' Section 41 of the Ordinance, 1992:-- "41. Power of the State Bank to give direction.---(1) Where the State Bank is satisfied that---
(a) in the public interest;
(b) to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interest of the banking company; or
(c) To secure the proper management of any banking company generally, ' It is necessary to issue directions to banking companies generally or to any banking company in particular, it may, from time to time, issue directions as it deems fit, and the banking companies or the banking company, as the case may be, shall be bound to comply with such directions.
(2) The State Bank may, from time to time, issue directions, guidelines and instructions with respect to activities and operations of banks and the institutions mentioned in section 3A as may be deemed necessary by it for carrying out purposes of this Ordinance and matters ancillary thereto.
(3) The State Bank may, on representation made to it or on its own motion, modify or cancel any direction issued under subsection (1), and in so modifying or cancelling any direction may impose such conditions as it thinks fit, subject to which the modification or cancellation shall have effect."
' It is not the case set out in the petition that the RPP was enforced without the assent/consent of the MCB Employees, rather it is otherwise; besides, it is incontrovertible that the package was acted upon and the petitioner's members attained due benefits therefrom. Leaving apart, the question if the agreement dated 15-11-1991 has the status of a statutory instrument, suffice it to say that as per section 10 of the Act, it is clear that the alteration of the contractual/financial commitment/obligation has been restricted to the disadvantage of the beneficiaries. There is no prohibition in the above provision that an alteration/novation of the contract can be made with the concurrence of the employees, rather from the clear meaning and interpretation of the section, it is open for the stakeholders to agree and substitute any agreement/ commitment notwithstanding the agreement dated 15-11-1991. In the present case, not only that the petitioner's members during the time when they were in the employment of the MCB have subscribed/assented to the RPP which admittedly was acted upon and they derived all the benefits on account of the said package, which (the package) is not shown to be the one hit by the provisions of section 23 of the Contract Act. The petitioner's members, therefore, are estopped by their own conduct to challenge the RPP; besides, the rules of -acquiescence and waiver is also duly attracted to discard their stance in this behalf. Therefore, view of the above, in the exercise of the constitutional jurisdiction, neither the RPP' can be declared to be void or voidable nor this Court shall enforce the agreement dated 15-11-1991, resultantly; the petition in this context is incompetent and is liable to be dismissed.
5. Analyzing the question with reference to section 41 of the Ordinance, it may be held that the State Bank has the power to give direction to the banks, if it is in the public interest and/or to prevent the affairs of any banking company being conducted in a manner detrimental to the interests of the depositors or in a manner prejudicial to the interest of the banking company, or to secure the proper management of any banking company generally (underlined to supply emphasis). This power of the State Bank of Pakistan is not unlimited, omnipotent, unbridled rather is circumscribed by the condition of being in the public interest; though .Public interest cannot always be constructed to mean all the people or most of the people, but obviously so many of them as contradistinguishes them from the few. Only for the reason that a few ex-employees of the MCB have formed a registered body would not mean to confer the petitioner with the status of the public whose interest should be served in terms of section 41(a); moreover, any impugned action or inaction on part of the MCB, does not fall within the concept of preventing the' affairs of the banking company being conducted detrimental to the interest of the depositors, or prejudicial to the interest of the banking company, or for securing the proper management thereof, which again is the prerequisite for the exercise of the power of the State Bank of Pakistan on account of section, 41(b)(c). The issue raised by the petitioner in this case examined from any angle does not bring the matter within the realm of the noted provision. Subsection (2) of section 41 of the Ordinance, also does not come to rescue the petitioner as the directions, guidelines and instructions contemplated by this subsection are with respect to the activities and operations of the banks and the institutions for carrying out the purposes of the Ordinance -and the matters ancillary thereto. The learned counsel for the petitioner has not been able to substantiate, if the grievance voiced in the petition is 'covered by section 41(2) of the Ordinance. Therefore, I am quite clear in my view that no direction in the constitutional jurisdiction can be issued to the State Bank of Pakistan for further directing the MCB to perform any of the acts as is mentioned in the section.
6. So far as the submission that the MCB is not a "person" within the meaning of Article 199(5) of the Constitution of Islamic Republic of Pakistan, 1973 is concerned, the learned counsel for the petitioner has not been able to convince if the MCB is performing any functions in relation to the affairs of the Province, Federation or any statutory body to which a writ in the nature provided by the noted Article can be issued. Resultantly, the preliminary objection raised by the respondents' side is sustained and this petition is dismissed as being incompetent and not maintainable.