Through this single judgment I intend to decide Writ Petition No. 13590/10 as well as Writ Petitions No. 8260/14, 31187/13, 19765/10, 13400/10, 13401/10, 21843/10, 22757/10, 8730/13, 8731/13, 25207/13, 27942/13, 28452/13, 29211/2013, 29217/13, 29717/13, 30704/13, 32081/13, 1111/14, 1112/14, 2588/14, 2590/14, 3209/14, 5903/14, 5907/14, 7246/14, 8724/14, 8798/14, 8956/14, 8958/14, 9029/14, 9551/14, 10590/14, 10925/14, 2259/13 and 19091/15 as they all proceed almost on similar facts and circumstances and the law points involved therein are also identical.
2. Brief facts of the case leading to the controversy in hand are that all the petitioners are retired officials/officers of National Bank of Pakistan (a financial institution) which was constituted under National Bank of Pakistan Ordinance, XIX of 1949 and were governed by the statutory Rules, 1973 made thereunder duly approved by the Federal Government of Pakistan. During their service with the Bank, Federal Government introduced new pension, scheme which was circulated by the respondent-bank vide Circular No. 228 (C) dated 26.12.1977. As per Clause 4(b) of the said circular the pension of the retired employees of the Bank was to be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. The bank employees were required to opt for a new scheme of pension and accordingly the petitioners opted for aforesaid scheme. In Para No. 10 of the aforesaid scheme it was further mentioned that any change or revision in rates/scales of pension or gratuity that may thereafter be made by the Federal Government shall also apply to the officials/ officers of the Bank. In the year 1999 the Management of thel Bank issued Circular No. 37/1999 dated 16.06.1999 whereby the pension was reduced to almost 33% as against 70% which is impugned herein these writ petitions.
3. Learned counsels for the petitioners contends that Circular No. 228 (C) dated 26.12.1977 was issued with the approval of the Federal Government and the petitioners opted for the said scheme in writing which was accepted by the respondent-bank as such a lawful right stood accrued in favour of the petitioners which could not be recalled without first putting the petitioners under notice and seeking approval from the Federal Government. In this regard, reliance has been placed upon case law reported as Saqib Akbar A.S.I, and others vs. Sanobar Khan, A.S.I, and others (1998 SCMR 2013). It has further been contended that the Board of Directors of the National Bank has no authority, to reduce pensionary benefits of the petitioners which are protected under Section 13(i) of the Banks Nationalization Act, 1974. Reliance is placed on case reported as Muhammad Tariq Badar and another vs. National Bank of Pakistan and others (2013 SCMR 314). Learned counsels have also made a reference to the case reported as Rasheed Baig and others vs. Zarai Taraqiati Bank Limited (2013 PLC (C.S) 1444) of the Islamabad High Court to contend that in a similar situation the employees of Zarai Taraqiati Bank Ltd. have been restored previous formula factor @ 70% with regard to their pension. They next contended that the impugned circular reducing the pensionary benefits of the petitioners is also violative of Articles 3, 4, 9 and 10 of the Constitution of Pakistan, 1973 and hit by the principle of loucs poenitentiae. He added that being aggrieved by the impugned circular the petitioners have been moving various applications before the administration of the Bank but of no avail.
4. Learned counsels for the Bank on the other hand have strenuously argued that the matter relates to the applicability of National Bank of Pakistan (Staff) Service Rules, 1980, and it is a prerogative of the administration of the respondent/bank to decide the matter according to their policy. They add that to regulate pension of the employees of the bank is purely an executive act and based on a policy decision taking into consideration various factors including growing inflation and institutions financial constraints; that Board of Directors of the respondent/bank is fully empowered to fix amount of pension of its employees, make increase therein, bring about changes in its formulae from time to time and prescribe methods for its calculation. They further contended that these writ petitions are not maintainable inasmuch as the petitioners are getting much more benefits than the required ones and that writ cannot be issued on account of the matter being based on controversial facts. They also raised an objection that the matter pertains to the year 1999 whereas writ was filed in the year 2010 as such the same is hit by the principle of lathes and this alone is a sufficient ground for dismissal of the writ petition. It was further added that after circular of the year 1977 the management of the bank also issued a number of instructions and circulars whereby the pay scales of the bank employees were revised and their pension rates were also enhanced accordingly to which the employees of the bank including the petitioners were also benefitted, therefore, the present claim of the petitioners is not justified. In this regard, they have made reliance on case reported as Ch. Abdul Hameed etc. vs. National Bank of Pakistan (NLR 1982 Service 243). In the end, learned counsel for the bank has also produced comparative chart showing calculation on the basis of Circular No. 288(C) dated 26.12.1977, Circular No. 37/99 dated 16.06.1999, Circular No. 58/2008 dated 01.07.2008 and Circular No. 33/2010 and submitted that the employees of the Bank have not suffered any loss of pensionary benefits as alleged by them.
5. Arguments heard. Record perused.
6. First of all I would like to deal with the objection of ladies. The petitioners have invoked Constitutional jurisdiction of this Court which is discretionary and the relief granted thereunder is always on the basis of equity. The issue of laches is to be considered and examined on the basis of equitable principles and this Court finds that in this case equity leans in favour of the petitioners because it has been proved on record that the petitioners have been agitating their claim before the administrative authorities of the Bank from the very inception of the impugned circular, when they were still in their service. It is also evident from the record that on the agitation of the petitioners certain Circulars No. 24/2005 dated 01.02.2005, No. 54/2006 dated 10.07.2006 and No. 16/2008 dated 15.02.2008 were issued and they were assured that their grievance will be redressed and a committee was also formed in this regard. In this view of the matter the objection of laches raised by the bank is without substance. Even otherwise, the petitioners are continuously suffering financial loss due to impugned circular, therefore, being a continuous wrong done in the matter of their pensionary emoluments and the petitioners cannot be ousted on the ground of laches which is merely of a technical nature.
7. So far as objection of the Bank regarding maintainability of this writ petition on the ground of controversial facts is concerned, suffice it to say that the lis in hand involves a legal question insofar as the petitioners' case is that during their service in the year 1977 a circular was issued by the Bank and they were asked to give option whether it was acceptable to them or not. The petitioners admittedly adopted the said circular and their option was accepted by the bank, therefore, now the issue which arises before this Court is whether the Bank thereafter could unilaterally override the terms and conditions thereof which is purely a legal question and this Court has jurisdiction to adjudicate upon the same.
8. Now coming to the merits of the case. Admittedly, the petitioners are officers/employees of the National Bank of Pakistan which is a body corporate having being established under the National Bank of Pakistan Ordinance, 1949. U/S. 32 of the said Ordinance the Central Board of the Bank was empowered to make bye-laws, with previous approval of the central Government to run and regulate the affairs of the bank and to provide for all matters for which provision is necessary for the purposes of governing the services of the employees of the bank. Accordingly, Central Board made the rules called as National Bank of Pakistan (Staff) Services Rules, 1973 which were duly sanctioned by the Central Government and thus earned the status of statutory rules. In 1974 the'
Banks (Nationalization) Act, 1974 was promulgated for nationalization of banking business in Pakistan and U/S. 13 of the said Act all officers and other employees of the bank were provided to continue in their respective offices and employments on the same terms and conditions, remuneration and rights of pension and gratuity as were applicable to them immediately before the commencing day. Under Act, 1974 no rules were framed U/S. 20 of the said Act by the Federal Government. However, the executive board of the bank U/S. 11(4) of the Act ibid framed National Bank of Pakistan (Staff) Service Rules 1980. Thus it is manifestly clear that 1973 rules were the statutory rules which were duly approved by the Federal Government, whereas, 1980 Rules having no sanction by the Federal Government could not acquire the status of statutory rules. Admittedly, the petitioners are employees of National Bank of Pakistan and they served the Bank in different capacities during the period between 1965 to 2005 and stood retired after attaining the age of superannuation. Their sole grievance is that during the tenure of their service the Federal Government introduced a pension scheme which was circulated by the Bank vide Circular No. 228
(C) dated 26.12.1977, Clause 4(b) of which provided as under: "(b) Pension shall be calculated at the rate of 70% of average emoluments on completion of 30 years qualifying service. Where qualifying service is less than 30 years but not less than 10 years, proportionate reduction in percentage shall be made. Any amount of pension in excess, of Rs.
1,000/- shall be reduced by 50%.......
9. The petitioners as per requirement opted to adopt the aforesaid scheme which was duly accepted by the respondent/walk. In Para 10 of the said scheme it was further laid down as under: "Since the rates of pension and gratuity given above have been fixed by the Pay Commission for banks and financial institutions on the same lines as obtaining on the side of the Federal Government, the existing provisions and any changes or revision in the rates or scales of pension or gratuity that may hereafter be made by the Federal Government shall also apply to the officers/executives of the Bank.".
10. The petitioners' right of pensionary benefits stood protected by virtue of Section-13 (1) of the Banks (Nationalization) Act, 1974 which envisages that all officers and other employees, of a Bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day. Further, in view of Section-20 of the said Act, it is only the Federal Government which may by notification in the official gazette make rules to provide for all matters which provision is necessary or expedient for the purpose of giving effect to the provisions of the Act. The impugned circular was issued by the Bank administration under National Bank, of Pakistan (Staff) Service Rules, 1980 and it is an admitted position that the aforesaid rules were' not framed as mandated in Section-20 of the Act ibid inasmuch as neither they have any approval of the Federal Government nor published in the official gazette. The value and sanctity of the aforesaid Rules have Already, been discussed and adjudged by the Hon'ble Supreme, Court of Pakistan in case of Muhammad Tariq Badar supra wherein it has been observed as under: "It is an admitted position that 1980 Rules have not been framed as per mandate of law ibid inasmuch as these rules are neither made by the ,Federal Government nor published in the official gazette. There is also no cavil/quibble that the said rules have not been composed/enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government whether (admittedly) the rules have been formulated by the Board of the respondent-bank, constituted U/S. 11 of the Act 1974 which stipulate the general power of the Board pertaining to the policy making and the administration and management of the Nationalized Banks. Sub-section (4) thereof specifically provides "The general direction and superintendence of the affairs and business of a bank, and overall policy malting in respect of its operations, shall, rest in its Board". Furthermore as per sub-section (5) of the Act 1974 the Board shall determine "personal policies of the Bank, including appointment and removal of officers and employees "and in accordance with sub-section (10) "All selections, promotion and transfer of employees of Banks except the President and decisions as to there remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel policies determined by the Board". From the above it is unequivocally clear that 1980 rules have been framed by the Board of the Bank personal to its authority in the nature of management/ superintendence of the affairs of the bank and/or the policy making power; however for all intents and purposes, it is so done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P. for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy status of statutory instrument. And this is not disputed by the parties, therefore the legal question which eminently calls for the resolution, is that whether non-statutory rules although (we have herein construed these as mere instructions etc.) have and/or can repeal, rescind or displace the statutory rules of 1973? To plead so, it has been inter alia submitted on the bank's behalf that on account of Section 13(2) of the Act 1974 particularly the expression "Notwithstanding" which shall operate as a non-obstante provision/clause even though 1980 Rules are non-statutory, yet as per the force of the law afore-stated, these (1980 Rules) have the overriding effect qua the 1973, Rules. In order to appreciate above contention, it shall be germane to reproduce, the whole Section 13 which reads as follows: "13. Provisions regarding Staff.--(1) Save as otherwise provided in this Act, all officers and other employees of a bank shall continue in their respective offices and employment on the same terms and conditions, remuneration and rights as to pension and gratuity, as were applicable to them immediately before the commencing day.
(2) Notwithstanding any law or any provision contained in a contract agreement, letter of appointment, rules or regulations of a bank, every officer and employee of a bank shall be liable to transfer to any of its branches in or outside Pakistan or to any other bank: Provided that this status and emoluments shall not be adversely affected. "A Plain reading of Section 13(1) ibid unambiguously postulates that the service of the officers and other employees of the nationalized banks have in fact and in true sense and spirit been secured and protected (emphasis supplied) as per force thereof "on the same term's and conditions" etc. which were applicable to them immediately before the commencement of the Act, 1974. It is an admitted and undisputed factual reality that before the commencing day of 1974 Act, 1973 Rules were validly in force and for all intents and purposes were serving as the conclusive terms and conditions of service of the employment for the N.B.P. officers etc. Thus, by virtue of the Section 13(1), such rules were specifically saved, guarded and shielded instead of having been displaced/repealed/rescinded or overridden. The language of the Section 13(1) without any shadow of doubt, spells out the clear intendment of the legislature to preserve the earlier terms and conditions of the nationalized bank, which in the present case undoubtedly, were 1973 Rules, rather than being obliterated. The arguments of the learned counsel for the respondent that the expression "notwithstanding" appearing in Section 13(2) should be construed as a non obstante provision/clause to annul and cancel 1973 rules 'as a whole' and thus be replaced by 1980 rules is doubtlessly misconceived and unfounded. The protection and security provided under Section 13(1) which in fact is absolute and unambiguous in nature cannot be negated and vitiated by Section 13(2) on account of the expression "notwithstanding" which is an expression only relatable to that specific part and purpose of the Section (i.e. 13(2)). In my candid view it can neither be legally done, or permissible under the law nor it is the purport or the meaning and. the spirit of Section 13(2) when it is read in the syntax of its full text. In simplest terms, the tenor and the command of this sub-section is limited and restricted qua the transfer of the officers/employees of a nationalized bank, inter se the branches of the same bank, and/or a room has been provided for such transfer to any other nationalized bank. Obviously this being the legislative command and if there was anything to the contrary contained in any other law for the time being in force i.e. any law in force at the time of enforcement of 1974 Act, including the 1973 rules to this restricted extent, the provisions of sub-section (2) of Section 13 shall prevail and anything inconsistent thereto even in the said (1973) Rules or contract/agreement etc. shall be subservient to this provision and has to give way. But this shall be without in any manner affecting any other earlier terms and conditions of service, which stand fully secured under Section 13(1). I may like to add here with emphasis that the board of N.B.P. constituted under Section 11 of the Act, 1974, at the most was conferred with the power of managing the affairs of the bank in terms of the policies etc. to be formulated by it on the subject enumerated in the section, but by no express command of law (Section 11) was empowered to make service rules, which can be termed as statutory in nature, with the further authority to annul the statutory rules already in force. In any case, the Board in the garb of its general empowerment of policy making, superintendence and managing the affairs and business of the bank, by no stretch of legal comprehension and principle of interpretation could, rescind, replace, substitute and/or vitiate the 1973 Rules. This undoubtedly could not be done by a non statutory instrument, which has come into being through simipliciter account of the exercise of executive authority of the Board; and it is a fundamental rule of jurisprudence that the executive has no empowerment to annul or in any manner invalidate or vitiate the command of the statute.
Therefore, I am constrained to hold that 1980 Rules have not replaced or rescinded the earlier rules of 1973."
11.In view of the above discussion and in the light of authoritative judgment of the Hon'ble Apex Court, it has become crystal clear that the Rules of 1980 in any event and in no manner can rescind, replace or substitute the statutory Rules of 1973. The Board of Directors has travelled beyond its competence while reducing the pensionary benefits of the petitioners through the impugned circular which was not even having the assent/approval of the Federal Government. The impugned notification being devoid of any legal status is, therefore, declared illegal, without any lawful authority and has no effect as against the pensionary benefits of the petitioners provided to them under Circular No. 228 (C) dated 26.12.1977.
12.For what has been discussed above, all the aforementioned writ petitions are accepted and the respondent/bank is directed to release pensionary benefits of the petitioners in accordance with Circular No. 228(C) dated 26.12.1977 within two months from the date hereof.