SHAHID ANWAR BAJWA, J.--- By this judgment we propose to decide C.P. No. D-135 of 2007 as well as C.P. No. D-286 of 2007 as common questions of law and facts are involved in these petitions.
2. Petitioners have been employees of Industrial Development Bank of Pakistan (hereinafter called the Bank). In order to reduce its manpower the Bank from time to time floated various employee reduction schemes. First such scheme was called "Rightsizing Plan-Golden Hand Shake" and it was announced by Circular dated November, 3, 1997. Another scheme, this time called "Voluntary Golden Hand Shake" was announced by Circular dated July 19, 2000 and as far as the present petitioners are concerned, the last of such schemes and the relevant one was announced vide Circular November 15, 2005. This time it was called "Voluntary Separation Scheme". The petitioners opted for separation under Voluntary Separation Scheme and received benefits thereunder. These petitions were filed for claiming further benefits in respect of pension, benevolent fund and medical facilities. Under the scheme of 1997 the following benefits were paid in respect of the above three items:-- PensionUnder New Retirement Benefits: General Provident Fund contribution and 100% commutation of pension as full and final settlement.
Benevolent FundBenevolent Fund Grant will be paid in lump sum worked out on the basis of rules on the subject.
Medical FacilitiesMedical In respect of medical Facilities, the optees eligible for normal retirement benefits would be given an option either to accept a lump sum payment equivalent to 10 years normal post-retirement annual monetary ceiling as a full and final settlement in respect of medical facilities or they may continue with the post-retirement medical facilities as available to the existing retired employees of... (sic)The employees who are not eligible for normal retirement benefits would be paid in lump sum an account equivalent to 10 years of existing monetary ceiling in advance as final settlement in respect of medical facilities.It has also been decided that the employees opting for the scheme will be paid any medical balance outstanding in their medical account as on the date of acceptance of offer by the Bank.
3. However, later on, but before the scheme was implemented, rate of commutation of pension was reduced from 100% to 50% for all the employees who had put in maximum of 10 years service.
However, employees with service of 25 years or more monthly pension as per retirement benefits (50% commutation and 50% monthly pension) was allowed. Option was subsequently given and some of the employees opted to receive medical facility as per rules rather than the amount in .lump sum. Under the scheme of 2007 the following was provided:-- PensionPension Benefits(a) Those who have completed qualifying service for pension as per rules.* 100% commutation of gross pension Benevolent Fund(ii) Benevolent Fund Grant as per prevailing rates, commuted for a period of 10 years will be paid in lump sum at the time of settlement of dues as a final payment. The employees whose service is less than 10 years will however not be eligible for Benevolent Fund Grant.
Medical FacilitiesMedical An amount equivalent to 286% of the current annual monetary entitlement i.e., medicines/consultation commuted for a period of 10 will be paid in lump sum. The employees whose service is less than 10 years would not be eligible.
4. The above would indicate that as far as pension is concerned, the employees under Scheme of 1997 were allowed 50% commutation and balance 50% in the form of monthly pension. As far as medical facility is concerned they were allowed option either to avail payment in lump sum or to avail medical benefits under the rules. On the other hand, under the Scheme of 2005, 100% commutation of pension was paid and there was to be no monthly pension thereafter. Secondly, medical benefits were paid in lump sum.
5. In July 2007, it was proposed that lump sum payment be made to retired employees/widows of 1997 scheme Optees to liquidate future pension/medical benefits and benevolent fund grant. The amount was actuarially calculated which it was stated to be into account the mortality rates, interest, expenses on hospitalization for prolonged illness etc. A firm of Actuaries was engaged to workout a scheme and based on that scheme a formula for purchase of future benefits from the Optees of 1997 was devised. The petitioners are aggrieved by grant of such benefits and facility to the persons who were separated from employment in 1997 and have claimed similar benefits.
6. Mr. Abdul Mujeeb Pirzada, learned counsel for the petitioners submitted that some of the optees of 1997 are now being paid benefits assuming age of 94 whereas the petitioners have not been paid any such benefit. He further submitted that classification and different benefits to the optees of 1997 and 2005 is ex facie discriminatory. He relied upon Province of Sindh through Chief Secretary Sindh, Karachi and 4 others v. Gul Muhammad Hajano, 2003 SCMR 325, Imdad Magsi and others v. Karachi Water and Sewerage Board and others, PLD 2002 SC 728=2002 PLC (C.S.) 1361.
7. Mr. Zamir Ghumro, learned counsel for the petitioners in the second petition substantially adopted arguments of Mr. Abdul Mujeed Pirzada and also relied upon L.A. Sharwani and others v.
Government of Pakistan through Secretary, Finance Division, Islamabad and others, 1991 SCMR 1041.
8. Mr. Abubakar A.I. Chundrigar, learned counsel for the respondent Bank referred to Annexures "R/7" and "R/8" to contend that in the first place, benefits received by two sets of employees i.e. Optees under the 1997 Scheme and then under 2005 Scheme were vastly different. Learned counsel also referred to comments filed by the Actuaries and contended that calculation has been made on the basis of life expectancy and it is balance 50% of the pension, future payments of benevolent fund and medical facility which have been purchased by the bank from the optees of 1997. Learned counsel also submitted that petitioners are barred by estoppel because they opted under scheme and received full payment under that scheme. Learned counsel relied upon State Bank of Pakistan v. Khyber Zaman and others 2004 PLC (C.S.) 1213 and judgment of Division Bench of this Court in Syed Nasim Ahmed Shah and others v. Sate Bank of Pakistan and others C.P. No.D-1708 of 2008 announced on 17-11-2009.
9. We have considered the submissions made by the learned counsel and have also gone through the record as well as the case-law cited at the bar.
10. Facts of Gul Muhammad Hajano's case (Supra) were that Gul Muhammad Hajano was working as District Education Officer when he filed a Constitutional Petition praying that Secretary Finance, Government of Sindh may be directed to issue minutes of meeting dated 26-3-1995 and be directed to enforce the minutes in letter and spirit. The writ petition was disposed of by the High Court with certain observations. The Supreme Court observed that the summary was approved by the Chief Minister, for protection of seniority and the respondent was entitled to such benefits.
11. Reference was also made to I.A. Sharwani's case (supra) for two reason. Firstly in respect of right to pension and secondly in respect of equality before law. Reference was made to Para 16 in respect of pension which is in the following words:-- "(16) It seems that there are various kinds of pension scheme which are obtaining in various countries of the world. However, the same can be divided into two broad categories, namely, (i)
Government Pension Schemes; (ii) Non-Government Pension Schemes. Each of the above category can be sub-divided into a number of sub-categories according to the object for which a particular scheme is designed. In the instant case, we are mainly concerned with the pension scheme meant for public employees/ public officers, who are known in the sub-Continent as civil servants.
A 'pension is intended to assist a retired civil servant in providing for his daily wants so long he is alive in consideration of his past services, though recently the above benefit has been extended inter alia in Pakistan to the widows and the dependent children of the deceased civil servants. The raison d'etre for pension seems to be inability to provide for oneself due to old-age. The right and extent to claim pension depends upon the terms of the relevant statute under which it has been granted."
And then reference was made to Para 26 in respect of discrimination, which is in the following words:-- "(26) From the above cited cases the following principles of law are deducible: -- (i)that equal protection of law does not envisage that every citizen is to be treated alike in all circumstances, but it contemplates that persons similarly situated or similarly placed are to be treated alike; (ii)that reasonable classification is permissible but it must be founded on reasonable distinction or reasonable basis; (iii)that different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standings, and persons acceded of heinous crimes; (iv)that no standard of universal application to test reasonableness of a classification can be laid down as what may be reasonable classification in a particular set of circumstances, may be unreasonable in the other set of circumstances; (v)that a law applying to one person or one class of persons may be constitutionally valid if there is sufficient basis of reason for it, but a classification which is arbitrary and is not founded on any rational basis is not classification as to warrant its exclusion from the mischief of Article 25; (vi)that equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed; (vii)that in order to make a classification reasonable, it should be based--- a.on an intelligible differentia which distinguishes persons or things that are grouped together from those who have been left out; b.that the differentia must have rational nexus to the object sought to be achieved by such classification."
12. In the present case the petitioners knowingly and willingly opted for separation under a scheme floated in 2005, where there was specific and clear distinction in respect of pension, benevolent fund and medical when compared with 1997 Scheme. It is not grievance of the petitioners that they had not been paid in accordance with the terms stated in the Circular relating to the Scheme of 2005 in respect of receiving 100% pension, receiving benevolent fund in lump sum and receiving payment in lump sum in lieu of medical benefits. In New Jubilee Insurance Employees' Union v.
SLAT, Karachi and another, 1982 PLC 1012, Mr. Justice Ajmal Mian (as his lordship then was) writing for a Division Bench laid down the following principles for a valid waiver:- "In order to constitute a waiver in law inter alia the following ingredients must be present.
(i)That the right should exist; (ii)the person in whose favor the right exists should have the knowledge of such right; (iii)that he consciously waives such a right; and (iv)that waiver does not violate any law."
13. The persons who opted under Scheme of 1997 were altogether in different category and class than person who opted under the Scheme of 2005 and some of the distinguishing features were that 2005 optees received 100% commutation of pension whereas 97 optees received only 50% commutation of pension and the balance 50% they were entitled to receive as monthly pension. It has been stated by the Respondent Bank by submitting a comparison sheet that whereas the petitioner No.1 in the form of commutation received Rs.2,480,424 another similarly placed employees who had opted in 1997 received Rs. 1,421,074. Similarly the petitioner received Rs.1,704,560, on account of medical benefits whereas correspondingly 97 optees received Rs.420,234.
14. Same is the position regarding medical benefits and benevolent grant; Petitioners being optees under 2005 Scheme received in lump sum where 97 optees did not receive any such lump sum amount.
15. What the bank has done now is, it has carried out an exercise to liquidate its future obligations and decided to purchase accounting to a managerially with actuarial assistance devised formula the future benefits from the 97 optees. There was no future or continuing payment in the Scheme of 2005 and therefore there could not have been any question of any purchase of future payment. In Syed Nasim Ali Shah's case the facts were that Board of Governors of State Bank introduced in 1997 a scheme of Golden Hand Shake and the employees opted. They also opted for lump sum payment of post retirement medical facilities through an option was availed to them not to receive it in lump sum. They approached High Court with a prayer that they are entitled to medical facility upon expiry of period of 10 years. Division Bench extensively referred to Khayber Zaman's case and held that having exercised the option, the petitioners are not entitled to receive these benefits. The ratio of this case is applicable to the case of petitioners also.
16. Mr. Abdul Mujeeb Pirzada repeatedly emphasized that the 97 optees are being paid benefit till the age of 94 years. The report of the Actuaries have been placed on record and no Counter- Affidavit has been filed against it. In respect of age expectancy the Actuaries have given the following table:-- Age andActuarial factorAge andActuarial FactorAge andActuarial Factor 50 19.043 63 13.429 80 7.068 51 18.725 66 12.996 81 6.716 52 18.400 67 12.559 82 6.382 53 18.065 68 12.117 83 6.064 54 17.723 69 11.672 84 5.763 55 17.372 70 11.226 85 5.480 56 17.013 71 10.780 86 5.213 57 16.646 72 10.337 87 4.964 58 16.270 73 9.897 88 4.730 59 15.886 74 9.463 89 4.512 60 15.494 75 9.036 90 4.307 61 15.094 76 8.618 91 4.115 62 14.688 77 8.211 92 3.933 63 14.274 78 7.816 93 3.758 64 13.855 79 7.434 94 3.588
17. Payments to 97 Optees in respect of purchase of future payments have been based on this table and this Court in constitutional jurisdiction cannot undertake exercise determine as to what should be life expectancy of a person at a particular age. This is job for professionals and no material has been placed on record by the petitioners to demonstrate any fallacy or unreasonableness in the table designed by the Actuaries.
18. Petitioners, as stated above exercised their option and received benefits in accordance with their option and the Scheme of 2005. 1997 Scheme was a different Scheme where some of the benefits were paid to the employees other benefits were held to be payable over a span of an employee's and in case of death of such an employee, or his widow's life. The two schemes are materially different. Repurchase scheme must have been designed keeping in view commercial consideration of the organization and the High Court cannot interfere with decision by management which decision is based on commercial considerations. This has been held by the Supreme Court in the case of United Bank Limited v. Shahmim Ahmed Khan and 41 others PLD 1999 SC 990.
For the above reasons, these Constitutional Petitions are dismissed. Listed applications are also disposed of.