' IJAZ-UL-AHSAN, J.--- The petitioners are ex-employees of the State Bank of Pakistan SBP BSC (Bank). They opted to seek "Early Retirement" vide State Bank of Pakistan SBP Banking Services Corporation (Bank) Staff Regulations, 2005. In view of the option sought to be exercised by the petitioners for Early Retirement, they were allowed to retire on various dates specified in the petition. It is however, important to note that dates of retirement ranged between September, 2006 to April, 2007.
2. The petitioners were governed by the "Monetized Salary System" ("MSS"). MSS entails that an employee receives a lump sum salary which includes all allowances. These are neither separately identified nor item-wise break down is given. After retirement the monetized salary is used as the basis for calculation of pension, gratuity, provident fund etc, payable to the employee.
3. It appears that the respondents introduced a "dearness allowance" which was to be calculated at rate of 17% of the monetized salary being drawn by an employee w.e.f, 1-9-2006. This was done vide Circular No,AD(CPD-112)36/2006 dated 16-9-2006. It was stated in the said circular that from the aforesaid date dearness allowance will be paid to employees as a separate allowance, over and above the monetized salary. The petitioners are partly aggrieved of the said circular inasmuch as a separate dearness allowance was allowed and it was not made a part of the monetized salary. In addition, its value was excluded from entitlement to/or calculation of any allowance, other benefits and pension, gratuity, provident fund etc. They seek a direction to the respondents to the effect that dearness allowance at rate of 17% be merged in the monetized salary of the petitioners w.e.f, 1-9-2006 for calculation of pensionary benefits and grant of arrears accordingly.
4. The grievance of the petitioners seems to have been triggered by a decision of the Board of Directors of the respondents dated 20-3-2007, whereby monetized salary was increased by 20%, while discontinuing payment of 17% dearness allowance. This according to the petitioners constitutes merger of the dearness allowance in the monetized salary. They claim to have been deprived of the benefit of such merger. It may be noted that this change has taken place after retirement of the petitioners and applies to employees in the service of respondent as on 16-2007.
5. The respondents entered appearance and filed parawise comments. It appears that vide order dated 2-5-2008 passed by this Court in Writ Petition No,3319 of 2008, the respondents were directed to attend to the grievance of the petitioners, consider the material fairly and justly and then decide the same strictly in accordance with law and pass appropriate orders in consonance with section 24-A of General Clauses Act. It is pointed out that the aforesaid order resulted in a letter dated 20-5-2008 being circulated by the Chief Manager, State Bank of Pakistan to the following effect:--- "Please refer to your application dated 9th April, 2007 regarding the captioned subject.
(2) In this context we have to advise that the Board of the Bank in its meeting held on 7th September, 2006 approved payment of dearness allowance w.e.f, 1st September, 2006 at rate of 17% of the monthly monetized salary as on 30th June, 2006 to all the employees who were on payroll on 1st September, 2006. It was also approved in the same meeting that the allowance was not the part of the monetized salary for calculation of any allowance benefits, pension, gratuity, provident fund etc. The Board in its meeting held on 20th March, 2008 has approved 20% increase in the salaries w.e.f, the 1st June, 2007 and decided that dearness allowance would no more be given w.e.f, 1st June, 2007. As such your request for merger of Dearness Allowance in the monetized salary prior to 1st June, 2007 cannot be acceded to."
6. The petitioners were dissatisfied with the contents of the aforesaid letter and again assailed the same before this Court through a number of writ petitions including Writ Petition No,11673 of 2008.
After hearing the learned counsel for the petitioners, this Court issued a further direction vide its order dated 17-10-2008 to the following effect:--- "(7) In the attending circumstances, it shall be appropriate to refer the matter to respondent No,1 i.e, the Governor, State Bank of Pakistan, Karachi, who shall examine the contents of writ petition along with its annexure in the light of order passed in Writ Petition No,3319 of 2008 dated 2-5-2008 and then decide the controversy at his own end but strictly in accordance with law with particularity of adherence to Articles 4 and 25 of the Constitution of Pakistan. The matter shall be finalized within a period of two months from today. Office is directed to send a copy of this writ petition along with order dated 2-5-2008 passed in Writ Petition No,3319 of 2008 to the Governor, State Bank of Pakistan, Karachi (respondent No,1) for compliance of Court's order. Disposed of."
7. It has been pointed out that vide letter dated 11-12-2008 the aforesaid position taken by State Bank of Pakistan had been reiterated and the representations moved by the petitioners for inclusion of dearness allowance in the monetized salary for the purpose of calculation of retirement benefits with effect from 1-9-2006, have been rejected. The learned counsel for the petitioner has argued that the petitioners have been subjected to discrimination and rights guaranteed to them under Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 have been violated.
8. The learned counsel appearing on behalf of the respondents submits that the petition is not maintainable, no case of discrimination is made out. Further the petition also suffers from laches insofar as it has been filed after a delay of more than a year from the date of retirement from service. According to the learned counsel, the petition is an afterthought intended to entangle the respondent bank in unnecessary litigation.
9. The learned counsel appearing on behalf of SBP has taken the position that the petitioner had voluntarily opted for retirement from service of the respondent under regulations 17(i) and 18(iii) of SBP BSC Staff Regulations, 2005. The option was voluntarily exercised by the petitioners and accepted by the respondents. The petitioners are now estopped from reopening a past and closed transaction, specially so in view of the fact that they have received their retirement dues without demur or protest. It has further been pointed out that the petitioners have suppressed material facts and documents from this Court. In this regard the learned counsel has placed on record letter No,PMD(ODD112)/15/2008 dated 21-5-2008, through which the Board of Directors of the respondents has allowed increase of 8% to all ex-employees including the petitioners who retired / expired during the period between 1-9-2006 to 31-5-2007. This increase in pension was allowed from the next day of retirement/death of the employee. As pointed out above the petitioners have retired from the service of the respondents during the period between 1-9-2006 to 31-5-2007 and have benefited from such increase in pension. He further submits that the petitioners have neither been discriminated against nor is their grievance justified. The learned counsel for the respondents has also placed on record letter dated 4-11-2009, which indicates that the Board of Directors of the respondents has recently decided to further increase pension of the petitioners and other similarly placed persons by 15%. The net result is that the pensionary benefits of the petitioners have been increased by 23%.
10. I have heard the learned counsel for the parties and perused the document annexed with the petition as well as those placed on record with the parawise comments of the respondent. It is common ground between the parties that the respondents had converted to a system of monetized salaries, in which no allowances were being paid. The said system was not objected to by the petitioners at any stage. However, in a meeting held on 7-9-2006 the Board of Directors of the respondents decided to grant relief to employees by way of a dearness allowance calculated at rate of 17% of the monetized salary of each employee as on June 30th, 2006. The allowance was payable w.e.f,10-9-2006. It would be useful to reproduce the contents of the said circular:--- "No,AD(CPD-112)//36/2006 16th September, 2006.
' All Heads of Departments, All Chief Managers, ' Dear Sir, ' GRANT OF DEARNESS ALLOWANCE.
' The Board of SBP Banking Services Corporation (Bank) in its meeting held at Faisalabad on 7th September, 2006 has been pleased to allow payment of a Dearness Allowance w.e.f, 1st September, 2006 to all employees of the Bank (i.e,OG-1 and below, OG-2 and above) at rate of 17% of their monetized salaries as on 30th June, 2006 on the following terms and conditions:---
(i) All employees who are on the payroll on 1st September,2006 or hired thereafter shall be eligible for payment of Dearness Allowance.
(ii) The value of the Dearness Allowance shall remain fixed (i.e, not change with increase in the monetized salaries of the employees for any reason). For all those hired after 30th June, 2006 the value of the Dearness Allowance shall be calculated at rate of 17% of their monthly monetized salaries as of the date of their appointment.
(iii) The Dearness Allowance is dot part of the monetized salary and its value shall not be included for entitlement to/or calculation of any allowance, other benefits and pension, gratuity, provident fund etc.
(2) Please bring contents of this circular to the notice of all employees through their Unit Incharge."
' It is important to note that the petitioners never objected to the grant of aforesaid dearness allowance or to the fact that it was not made a part of the monetized salary or that its value was excluded for entitlement to/or calculation of any allowance, other benefit and pension, gratuity, provident fund etc.
11. It appears from the record that through Circular No,3 dated 6-4-2007, a decision of the Board of Directors of the respondents made in its meeting held on March 20th, 2007 was circulated. It would be useful to reproduce the contents of the said circular.
"Circular No,03 6th April, 2007.
' All Heads of Departments, All Chief Managers, ' Dear Sirs, ' INCREASE IN SALARIES W.E.F. JUNE 1, 2007.
' The Board of Directors of SBP BSC (Bank) in its meeting held on March, 20, 2007 has approved a 20% (twenty percent) increase in the existing monetized salaries of all OG-2 to OG-5 employees of SBP BSC (Bank) with effect from June 1, 2007. This 20% (twenty percent) increase in salary will include the 17% (seventeen percent) dearness allowance which will no more be given as a separate head of salary with effect from June 1, 2007."
' It is evident from the content of the above circular that the Board of Directors of the respondents had decided, to increase the monetized salaries of staff mentioned in the said circular by 20% w.e.f, 1-6-2007. It was also clarified that 20% increase included 17% Dearness Allowance being paid. It was further clarified that said Dearness Allowance will be discontinued w.e.f, 1-6-2007. The effect of said change is that the monetized salary including 20% increase would henceforth be used as a basis for calculation of pension, gratuity, provident fund etc.
12. The question that requires determination is whether the decision made by the Board of Directors of the respondents relating to the salary structure of their employees whereby additional benefits have been granted to their existing employees, gives a right to ex-employees, (who had already exercised their right of voluntary retirement, received their benefits and had retired from service for all intents and purposes) to seek similar benefits. Further, can such action on the part of an employer in favour of existing employees be termed as discriminatory vis-a-vis employees whose connection with the respondents had already been severed.
13. Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 guarantees equal protection of law. It is, however, settled law that such equality is guaranteed amongst persons who are equally placed. All persons, who fall under the same category or belong to the same group are entitled to the same treatment. However, in case there is a differentiation and the same is based upon a valid classification, which does not have the taint of arbitrariness, the same does not fall in the definition of discrimination. In the case of Wali-ur-Rehman and others v. State Life Insurance Corporation and others 2006 SCM R 1079 the honourable Supreme Court of Pakistan in a matter involving a question of similar nature held that "after having severed their connection with the respondent corporation, the petitioners legitimately cannot claim monetary benefits, which respondent corporation is extending to its employees from time to time depending upon the changed circumstances by efflux of time and if the proposition put forward by the petitioners is accepted, then there would be no end to litigation."
' The petitioner having severed their connections with the respondent bank constitute a different class, compared to others who are still in service or will retire henceforth, who would fall in a different category. It is not the case of the petitioners that the same class of employees have received different treatment. This has neither been alleged not argued. Therefore, a case of discriminations is not made out.
14. Even otherwise the petitioners have received their severance benefits, their pensions have recently been increased and such increase has not been disclosed to this Court. To that extent the petitioners have not approached this Court with clean hands.
15. In addition to the fact that the acts of the respondepts are not hit by the equality clause of the Constitution of Pakistan 1973 and the opinion of this Court that no restriction can be placed on the right of the employer to provide additional benefits/incentives to its existing employees, this Court is also of the opinion that the petitioners are estopped by their conduct to claim merger of 17% dearness allowance with their monetized salary w.e.f, June, 2006 after having voluntarily opted for and accepted the benefits of pre-mature retirement package offered to them.
16. For the foregoing reasons, I find no merit in this petition. It is accordingly dismissed.
17. Parties are left to bear their own costs.