MUHAMMAD ANW AR KHAN KASI, C.J.--- This Writ Petition as well as W.P. 1376/201 1 arise out of impugned action taken in sequence of dispute with regard to LAP encasement of petitioner for period served with previous department, therefore, being decided through this Single Judgment.
2. Brief facts of the case are that petitioner was appointed as Accounts Assistant in OGDC (subsequently converted to OGDCL) w .e.f.
02.02.1995 through proper channel from Pakistan Military Accounts Department, Wah Cantt. (hereinafter referred as previous department'). Period of his service with previous department i.e. 14 Years and 5 months was allowed to be counted towards pension vide Office Memorandum dated 27.11.1996. He moved the respondent Organization for encasement of 569 days LAP accumulated during period served with previous department by invoking statutory service rules of OGDC, 1994 and cited departmental decision dated 28.12.2 005 whereby Ex-Deputy . Chief Engineer (Meth) Mr. Muhammad Shabbir Qureshi was allowed to encash 24 months and 27 days LAP, pursuant to the Hon'ble Supreme Court Order dated 01.03.2005. However , the respondents initially vide OM dated 06.11.2006 counted 6 months/180 days LAP for period of previous service, but subsequently the same was cancelled vide OM dated 08.09.2008 hereafter one of the OGDCL employees preferred W.P. No.1280/2008 which was allowed vide order dated 17.02.2009 which prompted the respondents to issue OM dated 17.08.2009 whereby OM dated 06.11.2006 was restored.
3. Petitioner was still aggrieved of non-counting the remaining 389 days LAP due to which he moved departmental representation dated 17.11.2006 but inaction of department compelled him to invoke aid of Court in Constitutional Jurisdiction through W.P. No. 2954/2010 which was disposed of by the Hon'ble Lahore High Court, Rawalpindi Bench vide Order dated 29.06.2010 whereby respondent authorities of OGDCL were directed to look into his grievance. In compliance, the respondents issued letter dated 30.08.2010 where by petitioner was informed that being a staff member/workman he is governed under CBA agreement and under Clause 10.35 of 15th Memorandum of Settlement incorporated in OM dated 06.11.2006, six Months LAP had already been credited to his account. Due to persistent dissatisfaction petitioner filed appeal before learned Federal Service Tribunal but the same abated vide order dated 15.12.2010 hereafter he filed present W rit Petition No.171/201 1 before this Court.
4. During pendency of Writ Petition No.171/201 1 respondents issued OM dated 12.04.201 1 whereby observation of Audit Department with regard to excess payment in connection with Leave Encasement for 08 months and 19 days was referred and it was ordered that recovery be made from his salary . He mentioned that leave encasement facility allowed pursuant to rule 64(1), OGDC Service Rules, 1994 was revoked w.e.f. 01.07.2005 vide para-VIII, IX and X of OM dated 06.07.2005 which, purportedly , is in violation of the Hon'ble Supreme Court Judgment dated 17.11.2009 passed in cases of Nisar Muhammad v. OGDC [CPLAs Nos.1359 to 1361/2009] and OGCL v. Nazar Hussain [2010 PLC (C.S.) 621 SC]. He brought this grievance in Constit utional Jurisdiction through connected Writ Petition No. 1376/201 1.
5. Learned Counsel for petitioner submitte d that he is governed by statutory service rules as he falls in category of employees who were transferred to OGDCL by operation of law contained under OGDC (Re-Organization), Ordinance, 2001 and vide Ordinance, ibid his terms and conditions prevailing prior to Re-Organization of Company were kept intact but through the impugned actions respondents have not allowed him benefit of leave encasement as permissible under OGDC Service Rules, 1994.
6. Learned Counsel next submitted that petitioner brought 569 days LAP while joining OGDC in 1995 but the same was not accounted for despite the same being admissible under Rule 64(1) of OGDC Service Rules, 1994 and is admissible for encashment under Rule 81 of the Rules, ibid. It is added that 180 days of LAP were accounted pursuant to this Court order dated 04.03.2009 passed in case of Khalid Mehmood v. M.D. OGDCL etc. [W.P.
No.1280/2008] but the order was not implemented in letter and spirit.
7. It is further submitted that petitioner has been treated with discrimination as similary placed employee namely Muhammad Shabbir Qureshi who joined OGDC from CDA was allowed LAP encasement in full of 658 days for his period of service with CDA without any deduction but equal treatment was not afforded to petitioner which is violation of fundamental rights and amounts to arbitrary exercise of discretion. Learned Counsel added that seven golden principles for exercise of discretion enunciated by the Hon'ble Supreme Court in case of Gadoon Textile Mills [ 1997 SCMR 641 ] have been negated by the respondents.
8. It is next submitted that petitioner is serving in EG-1, an officer grade while the agreement of respondent organization with CBA is not applicable upon him and on that pretext his previous benefits cannot be withheld. He added that even otherwise he was neither party to the said settlement nor any instrument can run counter to dictates of Ordinance or pronouncements of the Hon'ble Supreme Court whereby it was held that terms and conditions of transferred employees cannot be changed to their disadvantage and inaction on the part of previous department, if any , cannot be made basis to deprive petitioner of a legal benefit.
9. Learned Counsel also mentioned that earlier petitioner was refused his promotional right despite judgment dated 17.11.2009 passed by Hon'ble Supreme Court due to which he had to file contemp t petition which culminated upon Order dated 22.10.2010 whereby the respondent authorities agreed to promote him but they turned inimical and issued impugned Order for recovery of leave encasement ostensibly on pretext of audit objection but no such document has been annexed with the petition, therefore, they have violated requirements of law and contravened principle of locus penitential and audi alteram partem. While highlighting requirement to preserve the terms and conditions of transferred employees, learned counsel argued that portions of pack age contained under OM dated 06.07.2005 run counter to OGDC Service Rules, 1994 and are illegal because requirement of law is not to change terms of transferred employees to their disadvantage, however , benefits can be increased.
10. In support of his submissions learned Counsel placed reliance on case laws titled as "Mrs. Farkhanda Talat v.
FOP etc." [2007 SCMR 886], Secretary Mb Finance GOP v. Muhammad Hussain Shah" [2005 SCMR 675], "Muhammad Aslam v. Senior VP HBL" [2003 PLC (C.S.) 388 AJ&K], "Anound Power Generation Ltd. v. Federation of Pakistan etc." [PLD 2001 SC 340], "Muhammad Rashid v. FOP etc." f2000 SCMR 1297 ], "Federation of Pakistan etc. v. Shaukat Ali Mian" [PLD 1999 SC 1026 ], "The Engineer in Chief Branch Mb Defense v. falaiUd-Din" [PLD 1992 SC 207], "Pakistan International Air Lines Corporation v. Inayat Rasool" [2003 PLC (C.S.) 333], "Muhammad Shakir etc. v. Administrator District Council, Rajanpur" [2002 PLC (C.S.) 302 Lahore], "Mrs. Anisa Rehman v. PIAC and another" [1994 SCMR 2232 ], "Abdul Hafeez Abbassi and others v. MD PIAC" [2002 SCMR 1034 ], "Chairman WAPDA v. Zulfiqar Ali" [2002 PLC (C.S.) 128], "Chairman Hazara (Hill Tract) Improvement Trust v. Mst. Qaisra Elahi etc." [2005 SCMR 678], "PIAC v. Shahzad Farooq Malik etc." [2004 PLC (C.S.) 82], "Province of Punjab v.
Zulfiqar AU" [2005 PLC (C.S.) 1165], 'Collector , Customs and Central Excise Peshawar v. Abdul Waheed" [2004 PLC (C.S.) 301], "Director Social Welfare IVWFP Peshawar v. Saullah Khan" [1996 SCMR 1350 ], "Oil and Gas Development Company v. Nazar Hussain etc." [2010 PLC (C.S.) 621], "Anwar Hussain v. ADBP etc." [1992 SCMR 1112] and "Dr . Muhammad Amin v . President ZTBL etc." [ 2010 SCMR 1458 ].
11. On the other hand, learned Counsel for respondents vehemently opposed the petition by submitting that petitioner wants relief in relation to encashment of LAP for period of service with Pakistan Military Accounts while at that time he retained status of Civil Serva nt, therefore, proper remedy for him is to approach the Federal Service Tribunal and present petition is not maintainable.
12. It is next submitted that petitioner joined service of OGDCL as Accounts Assistant and was in non-of ficer scale, therefore, retained status of Workman and was subject to settlement of Company Management with CBA pursuant to which he had been granted leave encasement for 180 days. He added that there was no element of discrimination as the referred employee i.e. Muhammad Shabbir Qureshi was not subject to settlement with CBA being in officer grade and retired w.e.f. 14.03.2000 i.e. Prior to enforcement of revised package dated 06.07.2005, hence-was allowed encashment of LAP in full.
13. It is further submitted that petitioner has been promoted to officer grade since 2001 while leave policy was revised according to Pay, Allowances and Leave Package of Company approved by the BoD and issued through OM dated 06.07.2005, resultant leave accumulation cap has been set at maximum 48 days while LAP encasement is no more possible, however , the employees were allowed to encase or carry forward 48 days leave accumulated prior to effective date of the package. Learned Counsel added that Package dated 06.07.2005 does not adversely affect terms and conditions of employees because plenty of benefits have been allowed through the same package including but not limited to 35 % increase in basic pay .
14. Learned Counsel averred that judgme nts of the Hon'ble Apex Court have been cited out of context as no-where it has been directed that Company cannot ameliorate perks, pay and leave policy for its employees. He added that pay package and leave encashment is now past and closed transaction which cannot be interfered at this belated stage.
15. Heard and Record perused.
16. Concerning the question of maintainability , petitioner has sought relief in the form of implementation of OGDC Service Rules, 1994 which have been held by the Hon'ble Supreme Court to carry statutory character and were preserved under Section 5 of the OGDC (Re-Organization) Ordinance, 2001, therefore, the petitions are maintainable in constitutional jurisdiction. The Hon'ble Supreme Court in case of OGDCL etc. v. Nazar Hussain etc. [2010 SCMR 1559 1 reiterated the earlier finding in unreported case of "Nisar Muhammad v. OGDCL" [Civil Petitions Nos.1359 to 1361 of 2009] wherein it was held as follows; "10. With regard to question whether the Service Regulations framed in 1994 under the repeal of Oil and Gas Development Corporation Ordinance, 1961, were still in vogue and has statutory force, this Court in CPs. 1359 to 1361 of 2009 (which is case of appellants company), specifically observed as under; "we have heard the learned counsel for both sides and agree with learned counsel for the petitioners that the High Court did not take into account the provis ions of section 5 reproduced above. After having gone through the said provisions, we are not left in any manner of doubt that the rules governing the petitioners in matters of employment were the Rules of 1994. Since the said rules have incorporated into law through reference made by section 5 of the Ordinance, the said Rules, if any, are elevated to a status even higher than that of mere statutory rules which are framed under rule making powers granted by a statute."
17. The Hon'ble Supreme Court in case of "Syed Tahir Abbas Shah v. OGDCL etc." [2012 PLC (C.S.) 885] held as follows; "Employees of Oil and Gas Development Corporation being governed by statutory rules, therefore, for redressal of their grievances, remedy of filing Constitutional petition before High Court was available to them and Service Tribunal had no jurisdiction."
18. On the merits of case Questions emanating from contentions of either side are as follows;
(i) Whether Petitioner is entitled to FULL Leave encasement for LAPs he earned during his Service with previous department?
(ii) Whether Package dated 06.07.2005 adversely changes the terms and conditions of employees in contravention of Oil and Gas Development Corporation, 2001?; if so,
(iii) Whether impugned Recovery Notice dated 12.04.201 1 merits to be set aside?
19. It is undisputed that petitioner was appointed in OGDCL on 02.02.1995 and had LAP of 569 days on his Credit at the time of induction and Leave encasement policy under Rule 64(1) of OGDC Service Rules, 1994 was in field while the 15th Memorandum of Settlement Agreement ("CBA Settlement") was executed with CBA in the Year 1999 almost four years after his induction, therefore, it is untenable that on the basis of CBA Settlement, petitioner is not entitled for FULL LAP, encasement, reason being that point of determination for entitlement is date of induction which occurs earlier to CBA Settlement and cannot operate retrospectively . Moreso, the subsequent Package dated 06.07.2005 did not carry any affect as it was also issued later in time and previously accumulated LAP encasement till effective date of Package was kept intact. For the sake of clarity it is observed that by operation of OGDC Service Rules, 1994, petitioner became entitled for leave encasement as soon as his previous service was counted in the Company while this became his accrued right and any subsequent event cannot change the same.
On the basis of above principle his case becomes analogous to that of Mr. Muhammad Shabbir Qureshi who was allowed Leave encasement in FULL for the period he served with his earlier employer i.e. CDA.
20. Adverting to next limb of case, Section 5 of OGDC (Reorganization) Ordinance, 2001 carries significant import and the same is, therefore, being reproduced; "Transfer of employees from the Corporation to the Company
(i) All officers, workmen or other employees of the Corporation (hereinafter referred to as the employees) shall as on the date of incorporation Company be deemed to be employees of the Company on the same remuneration and other conditions of service, rights and privileges including but not limited to, provisions as to the pension, provident fund and gratuity , if any, and other matters as were applicable to them before the conversion of the Corporation into Company ."
' Undoubtedly above provision of the Ordinance kept intact the terms and conditions of employees who were transferred from the Corporation to Company by Operation of said law but this does not mean that Rules made prior to promulgation of Ordinance ibid were unalterable; In fact, the only fetter imposed through Section 5 ibid was not to change the terms and conditions in a manner un-advantageous to the transferred employees. The administrative authority bestowed upon the mechanism of Corporate Governance envisaged under OGDC (Re- Organization) Ordinance, 2001 cannot be undermined by putting unbridled limits. Though the Board of Directors is competent to bring about changes within the policies applicable to employees, yet subject to the condition that the same do not adversely change terms and conditions as were applicable to the transferred employees.
21. Bare perusal of policy dated 06.07.2005 shows that the same is couched in beneficial manner and instead of taking away the benefits already available, the same are only being realigned in order to bring harmony within the Organization. While considering the plea of transferred employees one cannot overlook another class of employees within the Organization who do not have protection of Section 5 and element of discrimination cannot be ignored if similarly placed employees are afforded different benefits for doing same functions. Moreover the petitioner has challenged only some portions of the Policy dated 06.07.2005 which shows that he has an objection over part of policy which is not suitable to him. This cannot be allowed to prevail because it shows that petitioner wants to avail benefits of earlier leave policy but at the same time does not want to cling with perks allowed under present policy which amounts to claim double benefits by blowing hot and cold at the same time. The Hon'ble Supreme Court did not oust the authority to frame new rules by holding as follows in case of OGDCL etc. v Nazar Hussain etc. [ 2010 PLC (C.S.) 621 ]; "Employees of Oil and Gas Development Company continued to be governed under Service Regulations framed in the year , 1994, unless those were varied and amended or repealed as the case could be." [emphasis added]
22. Petitioner is not the only officer of the Company who has been singularly subjected to revised leave policy , instead the same has general application but he did not put document to show that remaining officers have voiced their grievances which shows that only the petitioner has objection upon some parts of policy . Similarly , the policy dated 06.07.2005 was not challenged by him for considerable time and it is not plausible that he was not aware of the same till issuance of Recovery Notice dated 12.04.201 1, therefore, element of laches is evident in the case.
23. The Revised policy dated 06.07.2005 is found to have been passed under competent authority of law and was accessible to all the employees of company , therefore, a policy directive of general application cannot be said to have been issued without giving audience to all the persons dealt there under because the same remains open to challenge by any employee but even the petitioner had not raised any objection upon the same within the Corporate hierarchy . A benefit which has been issued in derogation of lawful authority cannot be presumed to create valid right in favour of recipient and in such cases principle of locus penitential does not apply . Guidance is sought from case of "Begum Nusrat Ali Gondal v . Federation of Pakistan" [ PLD 2013 SC 829 ]. "locus penitential was the power of receding till a decisive step was taken but it was not a principle of law that order once passed became irrevocable and past and closed transaction---If the order was illegal then perpetual rights could not be gained on the basis of such an illegal order ."
Consequently the impugned Recovery Notice dated 12.04.201 1 having been passe d on correct premises does not warrant interference.
24. In view of above, Writ Petition No.171 of 2011 is allowed by holding petitioner entitled for LAP of 569 days encasement IN FULL for period of service with previous department, the respondent No.1 is directed to count remaining 389 days LAP of petitioner for encasement according to Para X of Policy dated 06.07.2005. Connected Writ Petition No.1376/201 1 having no force is dismissed. No order as to costs.