IQBAL HAMEEDUR RAHMAN, J.---Through the instant petition for leave to appeal, the petitioner has called in question the judgment dated 11-3-2015 passed by the Islamabad High Court, Islamabad, in W. P. No. 1727 of 2012; whereby the said writ petition filed by the petitioner has been dismissed.
2. The concise facts are that the petitioner, who started his career with the Pakistan Telephone and Telegraph Department (T&T) as Upper Division Clerk, on the formation of Pakistan Telecommunication Corporation (PTC) Vide Pakistan Telecommunication Corporation Act, 1991, was transferred to the newly formed PTC. Thereafter, on the promulgation of Pakistan Telecommunication Reorganization and Telegraph Act, 1996 (hereinafter to be referred as "the Act, 1996"), the PTC system was further divided into four entities namely Pakistan Telecommunication Employees Trust (PTET), Frequency Allocation Board (FAB), National Telecommunication Corporation (NTC) and Pakistan Telecommunication Company Ltd. (PTCL). The employees of PTC were transferred to the newly constituted entities. The petitioner was transferred to PTCL. It was further asserted by the petitioner in his writ petition that as per sections 35 and 36 of the Act, 1996, the terms and conditions of transferred employees were again protected. In the above perspective, the petitioner had instituted the writ petition before the High Court with multiple prayers, which read as under:-- "(i) Accept the writ petition with costs; (ii)Declare the impugned orders/letter of the respondents i.e. letter No.ICT/Admin. 4-6/2010/164, dated 3-10-201(sic.), letter No.F.48/2011-TL, dated 16-11-2011 and letter No.4-8/2011- TL, dated 8-3- 2012 as illegal, mala fide, colourable exercise of powers, without any lawful authority and of no legal effect and the same be set aside; (iii)Direct the respondents to act in accordance with provisions of sections 35, 36(1) and (2) of the Pakistan Telecommunication (Re-organization) Act, 1996 and refrain from altering the protected/guaranteed terms and conditions of service of the transferred employees (including the petitioner) and in this regard, the respondents be further directed to issue a clear order that the terms and conditions of service of the transferred employees of erstwhile Pakistan Telegraph and Telephone Department would remain un-changed and they would be governed accordingly and the PTCL Service Regulations, 1996 would be applicable only to the employees who have been recruited on or after 10-6-1996 as employees of the Company; (iv)Direct the respondents to extend the benefit of revised pay scale and other adhoc reliefs given to the other civil servants from time to time being transferred employee forming his terms and conditions of service; (v)Restrain the respondents from taking any adverse action against the petitioner during the pendency of the titled writ petition; and (vi)Any other relief, which the Hon'ble Court deems just and appropriate in the given circumstances, may also very graciously be granted along with costs to the petitioner."
Respondent No. 1, Federation of Pakistan through Secretary M/o Information Technology, while filing the written comments before the High Court had conceded to the position that the terms and conditions of the transferred employees are protected under sections 35 and 36 of the Act, 1996, with regard to transfer/reassignment letter dated 3-10-2011. It was their stand that it does not fall within the terms and conditions of service as such it was the prerogative of the PTCL management, respondents Nos. 2 and 3. The writ petition was hotly contested by respondents Nos. 2 and 3 both on maintainability as well as on merits. The High Court on the question of maintainability has held the writ petition to be maintainable by holding as under: "(10) On the question of maintainability, it is pertinent to mention that this Court has already dilated upon the statutory character of the service rules for the employees who were transferred from T&T department. Moreover in the latest case-law titled as "Masood Ahmed Bhatti v. Federation of Pakistan etc." (2012 SCM R 152) the honourable Supreme Court held as follows: "Para 15---Thus it is evident that at the moment of the transition when the appellants ceased to remain the employees of the Corporation and became the employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the PTC Act. The said rules, therefore, by definition were statutory rules as has been discussed above."
Thereafter, the High Court proceeded to decide the writ petition on merits and dismissed the same by holding as under: "(11) The objection upon the maintainability of the petition is scored out. Adverting to the merits of case, the circumference of the managing authority in the backdrop of statutory liability requires determination of following two questions;
(1) Whether the management can undertake transfer and other administrative measures in relation to statutorily protected employee, for better functioning of the Corporation.
(2) Whether all benefits given by the federal government to its employees are ipso facto admissible to PTCL statutorily protected employees.
(11) On the first question, section 9 of PTC Act, 1991 clearly provides that all departmental employees become employees of the Corporation. The phenomena inevitably entail the consequence of administrative subjugation to the transferee employees. It cannot be said that the Corporation or its successor PTCL cannot take administrative measures because a conclusion otherwise would necessarily result in chaos and paralysis of the corporate functioning.
(12) Bare perusal of the order dated 3-10-2011 shows that several officers besides the petitioner were moved from their assignment, in result of structural reform in the organization of PTCL Academy/ICT, therefore, it cannot be said that the order was aimed at disadvantage of petitioner but was a part of an administrative endeavor: Another aspect of the matter is that petitioner himself acknowledges that his position in the T&T Department was of Superintendent which was subsequently changed as Assistant Director in PTCL regime and then as Assistant Manager but no objection was raised by him. The logical conclusion is that the company was having administrative powers to vary the nature of work assignment.
(13) On the next question regarding admissibility of allowances and other benefits awarded by the Federal Government, it is obvious that the terms and conditions of employees protected by the statute are in fact the liability of company, therefore, the protecting provisions cannot be interpreted so as to give a benefit which has not been expressly allowed in the said provisions. In the instant case, section 9 of the Pakistan Telecommunication Act 1991 as well as section 36 of PTCL Re-Organization Act, 1996 gave protection of existing terms and conditions which means that the protected conditions are those which were applicable at the time of transfer of employees and it cannot be presumed that the spirit of protection encompasses prospectus benefits allowed by the Federal Government from time to time specifically for Federal Government Employees. In Masood Ahmed Bhatti case supra, the honourable Supreme Court observed in Para-14 as follows: Para 14----"It specifies that even after the transfer of the appellants to PTCL their terms and conditions of service which existed on 1-1-1996, would be the base and bare minimum in matters of their employment with PTCL. These terms and conditions were imposed on PTCL by the Reorganization Act, as a legal obligation and the Vesting Order was issued by the Federal Government "in exercise of powers conferred by section 35" of the Reorganization Act.
(14) It is thus concluded that restriction and protection imposed upon the company is to adhere to bare minimum which was applicable either at the time of transfer of the employees or in accordance with the laws of the country but it does not in any manner confer the "privileges upon the transferred employees or make the financial benefits conferred upon the federal government service admissible to them after their transfer in the Corporation."
3. Mr. Taufiq Asif, learned counsel for the petitioner, at the very outset stated that the petitioner has since retired as such his prayer No.(ii) with regard to transfer has become redundant, but he very much presses his other prayers i.e., prayers Nos. (iii) and (iv), and in this regard the petitioner is highly prejudiced by the remarks of the High Court that, " In the instant case, section 9 of the Pakistan Telecommunication Act, 1991 as well as section 36 of PTCL Re-Organization Act, 1996 gave protection of existing terms and conditions which means that the protected conditions are those which were applicable at the time of transfer of employees and it cannot be presumed that the spirit of protection encompasses prospectus benefits allowed by the Federal Government from time to time specifically for Federal Government Employees.....", and argued that the High Court has erred in holding the same. Under sections 35 and 36 of the Act, 1996, the terms and conditions of the transferred employees of T&T were fully safeguarded and they were legally entitled for the benefits accrued to civil servants as a result of revised pay scales and pension made from time to time and the same had also been granted by respondents Nos. 2 and 3 in July, 2010 as such when the petitioner has now retired he is entitled not only to receive the benefits of 15 % on revised pay scales made by the Federal Government in the year 2011 as well as Ad-hoc Relief Allowance in July, 2011 and 50% Ad-hoc Relief Allowance granted in July, 2010 as well as subsequent increase in pay and pension allowed by the Government as the same falls within the ambit of terms and conditions of service. Further in this regard he has placed on record the judgment of this Court passed in C.Ps. Nos.565 to 568/2014, etc. (titled Pakistan Telecommunication Employees Trust
(PTET) through its MD. Islamabad. etc. v. Muhammad Arif, etc.) wherein the same point had been agitated and this Court vide its judgment dated 12-6-2015 had come to the conclusion that the employees of T&T department having retired after their transfer to the corporation and the company will be entitled to the same pension as is announced .by the Government of Pakistan and the Board of Trustees of PTET is bound to follow such announcement of the Government in respect of such employees.
4. On the other hand, learned counsel for respondents Nos. 2 and 3 at the very outset raised preliminary objection that the instant petition has been filed against the judgment of the learned Single Judge in Chamber of the High Court. The petitioner has failed to assail the same through an Intra Court Appeal as such the instant petition is not maintainable and in this regard he relied upon unreported judgment of this Court delivered in the case of Pakistan Telecommunication Company Limited v. Muhammad Aslam, etc. (C.Ps. Nos. 511, 512, 527 to 532/2014). Further it was contended that the case of Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary, Wo Information Technology and Telecommunication and others (2012 SCM R 152) being in contradiction to another judgment of this Court reported as Pakistan Telecommunication Company Ltd., through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) in view of which leave has been granted by this Court in C.Ps. Nos. 511/2014 etc. to consider the following 'points:- "(i) what is the effect of two Judgments of this Court in the case of Masood Ahmed Bhatti and others v. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others (2012 SCM R 152) and Pakistan Telecommunication Co. Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) for determination of the question that service in the petitioner's company is governed by statutory rules or not; (ii)whether on transfer to the petitioner, its employees can be put in two categories, one governed by the statutory rules and the other by non-statutory rules and whether such distinction is permissible in law in the light of the fact that they all are employed in the petitioner company, which is not a statutory body; and (iii)whether in the facts and circumstances of the case, the learned Division Bench of the High Court was justified in dismissing the Intra Court Appeals being not maintainable, in a Review Application filed by one of the respondents namely Rana M. Pervaiz despite the ' fact that in its earlier order dated 10-6-2013, the same learned Division Bench has ordered that the remaining 13 Intra Court Appeals shall be heard on merits."
The learned counsel submitted that in view of the above, the case of Masood Ahmed Bhatti (supra) has become per incuriam and vehemently stressed that the writ petition before the High Court was not maintainable as respondents Nos. 2 and 3 have non-statutory service rules. It was further submitted that the latest judgment passed in C.Ps. Nos.565 to 568/2014, etc. by this Court vide judgment dated 12-6-2015 the respondents have filed a review petition wherein certain important lacunas have been pointed out by the respondents as stated above. While referring to the Agricultural Development Bank of Pakistan (Reorganization and Conversion) Ordinance, 2002, the learned counsel stated that by virtue of section 6 therein, it was specifically provided that, "(1) The employees of ADBP who were in the service of ADBP before the effective date shall stand transferred to and become the employees of the Company as of the effective date on the same terms and conditions and shall be subject to the same rules and regulations as were applicable to them before the effective date", whereas in the Act, 1996, such provision has not been provided, therefore, the rules and regulations of T&T department would not be applicable in this case. Further in the above cited latest judgment PTET was a party whereas in the instant petition PTET has not been impleaded.
5. Heard. The petitioner in the instant petition was admittedly an employee of the T&T department and had been subsequently transferred firstly on account of operation of law under section 9 of the Pakistan TelecommuniCation Corporation Act, 1991, to PTC and thereafter on the promulgation of the Act, 1996, to the PTCL. He has since retired. The grievances raised by him before the High Court as well as this Court are mainly that he being a transferred employee of the T&T department his terms and conditions of service were fully protected both under section 9 of the Pakistan Telecommunication Corporation Act, 1991 as well as under sections 35 and 36 of the Act, 1996, on account of which he was entitled to revised pay scales and pension made from time to time by the. Government. The same has already been determined and decided by this Court in C.Ps. Nos.
565 to 568/2014 etc. (supra) in favour of transferred employees by holding as under: "13. From the reading of the Act of 1991 and thereafter of the Act of 1996, it is abundantly clear that the employees of T&T Department were transferred to the Corporation with the terms and conditions of their service similar to the one they were enjoying before such transfer. It is not in dispute before us that the employees of T&T Department, whose case is before us, were transferred to the Corporation and they enjoyed the same terms and conditions of service as were applicable to them as employees of T&T Department. Under the terms and conditions of service, such employees were also entitled to payment of pension on their retirement. On 2nd April, 1994, the Corporation executed a Trust Deed establishing Pakistan Telecommunication Corporation Employees Pension Fund. Para 2 of which reads as follows:- "All departmental employees transferred to the Corporation as defined in section 9 of the Pakistan Telecommunication Corporation Act, 1991 shall be entitled to benefits as defined under the Federal Government Pension Rules as applicable to such employees before the formation of PTC."
By section 44 of the Act of 1996, the Federal Government has established a trust called Pakistan Telecommunication Employees Trust (the Trust). Section 45 of the Act of 1996 made provision for issuing of Vesting Order by the Federal Government of vesting of all assets and such liabilities as are specified in the Trust from the effective date. Section 46 of the Act of 1996 lays down functions and powers of the Trust which, inter alia, provides for making of provision for the payment of pensions to telecommunication employees to the extent of their entitlement with exclusive right to determine the amounts, if any, payable in respect of pension benefits to the telecommunication employees. It has already been mentioned above that by the Vesting Order dated 7-2-1996, inter alia, the liability of payment of pension of telecommunication employees was transferred to the Trust and the Company was liable and has assumed the responsibility to contribute to the Trust, the amounts determined in accordance with section 45.
14. The question that needs to be addressed is about the status in obtaining of pension by the employees of the erstwhile T&T Department, who were transferred to the Corporation from where they were transferred to the Company. It is clear from the reading of provision of the Act of 1991 so also that of the Act of 1996 that the terms and conditions of service of the Transferred Employees from T&T Department to the Corporation and then to the Company remain unaltered and they continued to be paid the benefits as were admissible to them as employees of T&T Department.
There seems to be no dispute until 2009 regarding the entitlement of pension to the employees of erstwhile T&T Department inasmuch as they have been paid pension at the same rate of increase as has been provided by the Federal Government to its employees as is apparent from the record of pension payment submitted by the counsel for the Trust by way of C.M.A. No.6331 of 2014, which shows the payment of pension as Rows; CMA No.6331 of 2014 Pension increased by the Pakistan Telecommunication Company Employees Trust Year(s) Category Percentage 2004- 05Retired before 01-01- 9616% As per GOP Retired after 01-01- 968% 2005- 06Retired before 01-01- 9610% as per GOP Retired after 01-01- 9610% 2006- 07Retired before 01-01- 9620% As per GOP Retired after 01-01- 9620% 2007- 08Retired before 01-01- 96Per GOP Retired after 01-01- 96 2008- 09Retired before 01-01- 9620% As per GOP Retired after 01-01- 9620% 2009- 10Retired before 01-01- 9615% As per GOP Retired after 01-01- 9615%
15. The above chart of payment of pension by the Trust shows that there were in all two categories of employees to whom the pension was being paid by the Trust; (1) who retired, before 1-1-1996 and
(2) who retired after 1-1-1996. The chart also makes it clear that those who had retired before 1-1- 1996 are being paid pension as per the increase announced by the Government of Pakistan while those who had retired after 1-1-1996 being paid pension according to the rate fixed by the Trust.
The payment of pension by the Trust until 2009 appears to be consistent with the rate and entitlement of the employees of erstwhile T&T Department as has been amplified from the provisions of the Act of 1991 and the 'Act of 1996 read with Para 2 of the Trust Deed of 2nd April, 1994, which term was not varied or altered in creation of the Trust rather the same was kept intact.
(16) While examining the question in issue we also examined some precedents of this Court in respect to the employees of PTCL, who were initially in employment of T&T Department from where they were transferred to the Corporation and then to the Company. In the case of Divisional Engineer Phones, Phones Division, Sukkur and another v. Muhammad Shahid and others [1999 SCM R 15261, the respondents were appointed Telephone Operators and it was held that "in cases of Corporation created by the Government through statutory instruments if existing employees are transferred to the Corporation in the absence of any provision to the contrary, the Transferred Employees continue to remain in the service of Corporation on the same terms and conditions under which they were working before their transfer to the Corporation. Therefore, if an employee of the Corporation before his transfer to the Corporation was a civil servant, he continues to be a civil servant. In all other cases, where an employee is appointed in the service of the Corporation after the Corporation is established, his service is governed by Service Rules of the Corporation. If such Rules are not statutory, the principal of master and servant governed the relationship between the employee and the Corporation". In the case of Pakistan Telecommunication Corporation and another v. Riaz Ahmad and 6 others [PLD 1996 SC 222], it was held that the employees of T&T Department transferred to the Corporation were civil servants. In the case of Ejaz Ali Bughti v. PTCL and others [2011 SCMR 3331, this Court has held that as there were no statutory rules of service applicable to the employees of the Company and in view of the judgment in the case of Muhammad Mubeen-us-Salam v. Federation of Pakistan [PLD 2006 SC 6021, the petitioner was not civil servant and his appeal before the Service Tribunal was not maintainable. In the case of Pakistan Telecommunication Corporation Limited v. IqbalNasir and others [PLD 2011 SC 1321, though it was held that the Company is a person within the meaning of Article 199(5) of the Constitution and will be amenable to the writ jurisdiction of the High Court but there being no statutory rules of service applicable to its employees, the writ petition in the High Court was found to be not maintainable."
6. As far as the contention of the learned counsel for the respondents that leave had already been granted by this Court to consider the case of Masood Ahmed Bhatti (supra) is concerned, suffice it to say that such contention had also been raised before this Court in C.Ps. Nos.565 to 568/2014, etc., which has also been taken note of and observed as under:- "17......We may note that until the judgment of this Court is reviewed and some other conclusion is reached other than the one which has already been pronounced by this Court, the same remains in field and operates as a law pronounced by this Court. Therefore, we cannot ignore this case inasmuch as it is a judgment of three members bench of this Court and as per the law of precedent, the same is binding on us......."
As such we are also of the same view. Further the argument of the learned counsel for the respondents that writ petition was not maintainable on account of absence of statutory rules, the same has also been dealt with in C.Ps. Nos. 565 to 568/2014, etc., while discussing the case of Masood Ahmed Bhatti (supra), in the following terms:- 18........ In Masood Ahmed Bhatti's case (supra), this Court has held that not only the terms and conditions of service of the employees of T&T Department who were transferred to the Corporation and then to the Company will be the same but also the rules of service as were applicable to them as employees of T&T Department. Thus, it becomes clear that the employees of T&T Department who were transferred to the Corporation and then to the Company having retired, they will as per the terms and conditions of service will be entitled to payment of pension also according to the one announced by the Government of Pakistan. Thus if any increase in pension is announced by the Government of Pakistan for its employees, the same will also apply and will be paid to the employees of T&T Department transferred to the Corporation and then to the Company. This view of ours is further fortified by the provision of section 46(1)(d) of the Act of 1996 where it is stated that the Board of Trustees of the Trust shall make provision for payment of pension to telecommunication employees to the extent of their entitlement. The very term "to the extent of their entitlement" shows that there are different kinds of employees having different entitlement and provisions for them have to be made accordingly. This is also apparent from the chart shown above where there already existed two kinds of employees, one who have retired before 1-1-1996 and the other who have retired after 1-1-1996 to whom different rate of increase in pension is paid.
It is, therefore, not correct to state that there will be redundancy of section 44 of the Act of 1996 if the Trustees are allowed to make provision for the pension according to their own working. In view of this clear provision in Section 46 of the Act of 1996, we do not find that this Section has any direct nexus with section 44 of the Act of 1996 nor the redundancy to section 44 can be attributed. We are here only dealing with cases of those employees, who were employed in T&T Department and transferred to the Corporation and then to the Company and not any other employees.
7. Regarding contention of the learned counsel for the respondents about maintainability of the instant petition, that an I.C.A. should have been filed against the impugned judgment, at this stage we are not inclined to take the same into consideration as the subject matter of the instant petition has already been finally, decided and adjudicated upon by this Court in C.Ps. Nos. 565 to 568/2014 etc. It would not serve the interest of justice at this stage to decide the instant petition on technical premises.
8. In the above perspective, taking into consideration the judgment of three member bench of this Court delivered in C.Ps. Nos. 565 to 568/2014, etc., wherein the subject matter of the instant petition has already stood adjudicated and decided in favour of transferred employees, we convert this petition into appeal and allow the same while setting aside the impugned judgment, and it is held that the case of the petitioner is at par with the case of transferred employees in C.Ps. Nos.565 to 568/2014, etc., therefore, the petitioner is entitled to payment of increase in pay and pension as announced by the Government from time to time.