SHUJAAT'ALI KHAN, J.--- By means of instant writ petition, the petitioners, who are retired employees of State Life Insurance Corporation (now Company and hereinafter to be referred as "the Corporation") have invoked the Constitutional jurisdiction of this Court vested under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 for implementation of a directive issued by the President of Pakistan and conveyed through the Ministry of Commerce by virtue of communications dated 23.01.1994 and 18.01.1995. During pendency of the instant petition, the petitioners filed application (C.M No.3-2010) seeking its amendment which was allowed and amended petition was filed. This Court, vide order dated 29.05.2013, referred the matter to the Chairman of the Corporation with a direction to place the same before the Board of Directors in its meeting scheduled in the month of July, 2013 to consider the question regarding provision of Medical Allowance to the retired employees of the Corporation. Pursuant to the said order, while implementing the directive issued by the President of Pakistan, the Department allowed Medical facility to them equal to three last drawn basic pays through S.R.O. No.(1)/2015 dated 26.10.2015.
After coming to know about the aforementioned decision by the departmental authorities, the petitioners filed another application (C.M No.26-2016) seeking permission to challenge the aforementioned S.R.O. issued by the competent authority regarding provision of medical facility to the retired employees equal to three basic pays by way of amendment of the writ petition which was dismissed by this Court vide order dated 21.09.2016. The said order having not been challenged in any proceedings has attained finality.
2. The legal formulations put forward by the learned counsel for the petitioners can be summarized in the words that the Corporation was established by virtue of SRO No.(1)/72 issued by the competent authority while exercising power conferred under Articles 11, 13, 23 and 25 of Life Insurance (Nationalization Order) 1972 (hereinafter to be referred as 'Order 1972') and was put under the control of Federal Government, Ministry of Commerce thus the instructions issued by the Federal Government had binding force upon the Corporation; that by virtue of the aforesaid Notification, two other Corporations, namely, National Insurance Corporation and Pakistan Insurance Corporation, now "Companies", were also established and the said Companies are providing medical facilities to their retired employees equal to the serving employees; that as any policy framed by the Corporation is subject to the approval of the Federal Government as provided in Article 25 of Order 1972, the Corporation is bound to implement decision/policy of the Federal Government in letter and spirit and any deviation by it amounts to infringement of fundamental rights of the employees of Corporation especially when the same has beneficial impact upon them; that as all the corporations established under the Order, 1972 raised voice against anomaly qua pay and pension of their employees before the Anomaly Committee, the Corporation was bound to follow the recommendations of the said Committee; that since the Corporation is under the direct control of Ministry of Commerce, Islamabad (respondent No.1) it is bound to implement the policy guideline/instructions issued by the said ministry; that the recommendations of the Anomaly Committee having been endorsed by the Finance and Commerce Division could not be sidelined by the persons at the helm of affairs of the Corporation; that when the Ministry of Finance, Government of Pakistan, through communication dated 23.01.1994 apprised the Ministry of Commerce about the decision of the President of Pakistan qua the revision of the existing pay scales of the Officers and Executives of the Nationalized Insurance Corporations, the Ministry of Commerce was under obligation to ensure implementation of the said decision; that by virtue of Para 13 of Communication, dated 23.01.1994, addressed by the Ministry of Finance to the Ministry of Commerce, retired Officers and Executives of the Nationalized Corporations were allowed medical facility as admissible to the serving employees thus the authorities functioning in the Corporation could not interpret the said recommendations according to their own whims to the disinterest of the petitioners; that as the Serving Employees and Executive Officers of the Corporations are enjoying medical facilities in terms of State Life Employees (Medical Attendance) Regulations, 1973 (hereinafter to be referred as 'Regulations 1973'), the petitioners, being retirees, are also entitled for the same relief; that in furtherance of the directive issued by the President of Pakistan, Ministry of Commerce, Government of Pakistan, issued Circular dated 18.01.1995 regarding implementation of decision of the President in respect of the Pay and Pension of the serving/retired employees of the Corporation but the Corporation did not take any action despite the fact that the same was followed by two sister Insurance Companies in letter and spirit; that in terms of Article 25 of Order, 1972, the Corporation is bound to comply with every policy/ decision of the Federal Government; that due to the inaction on the part of the relevant authorities of the Corporation, in particular respondents Nos.2 and 3, the petitioners have been deprived of the facility of medical facility without any upper ceiling which amounts to infringement of their fundamental rights; that Corporation is bound to implement the rules, regulations and policies framed by the Government of Pakistan and by no stretch of imagination, any deviation is permissible in that regard; that despite the fact that respondent No.3 was reminded by the petitioners for more than once, but no step was taken by him so the petitioners approached this Court by filing this petition; that there is no cavil with the preposition that during the pendency of this writ petition the competent authority has allowed medical facility to the petitioners equal to three basic pays (last drawn) but the same being not in consonance with the decision conveyed by the Government of Pakistan to the Corporation, does not serve the purpose; that mala fide on the part of the authorities in the Corporation is manifest from the fact that the serving employees, who are drawing better perks and privileges as compared to the retired employees of the Corporation, are being provided medical facility without any upper ceiling whereas the retired employees who are in need of more care and caution in respect of their physical sustenance in the last span of their lives, have been allowed meager amount to spend on their treatment which is classical example of misuse of powers by the competent authority. To fortify his contentions, learned counsel for the petitioners in addition to relying on the case reported as Muhammad Shahzad Malik v. Muhammad Suhail and another (2010 SCMR 1825) has also referred to order dated 27.05.2009 and judgment dated 28.10.2003 passed by the apex Court of the country in Human Right Case No,625/2009 and Civil Petition No,1881 of 2003 respectively.
3. Conversely, learned counsel representing the Corporation (Mr. Jahanzeb Khan Bharwana, Advocate) assisted by Syed Waqar Hussain Naqvi, Advocate submits that as the retired employees of the Corporation have already been allowed medical facility equal to three basic pays, instant petition has become infructuous; that as the terms and conditions of service of the retired employees of the Corporation are governed under the State Life Employees (Pension) Regulations, 1986, the pensionary benefits, including medical facility, cannot be awarded to them in violation of the said Regulations which were further amended in the year 1988; that the Corporation being an independent commercial entity dealing in the business of life insurance, cannot be equated with the other Companies which are dealing with business of entirely different nature; that directions of the Federal Government are only guidelines and it is up to the Corporation either to follow them as a whole or to skip any part thereof; that as a matter of fact, Security and Exchange Commission of Pakistan is competent to deal with such like matters but said authority having not been arrayed as a party in the instant writ petition proper adjudication of the lis at hand is not possible; that as two other insurance Companies are being governed under the distinct regulations, they cannot be quoted as precedent regarding provision of medical facility to their retired employees; that letter, dated 18.01.1995, being relied upon by the petitioners, is only directory in nature as word 'may' has been used therein; that vide order, dated 29.05.2013, this Court referred the matter to the Chairman of the Corporation to place it before the Board of Directors and after due deliberation, the Board has acceded to the request of the retired employees of the Corporation by awarding them medical facility equal to three basic pays which has been published in the Official Gazette through S.R.O. No, (1)/15 dated 26.10.2015; that in addition to Regulations 1986, the medical facility of the retired employees of the Corporation are governed under the State Life Insurance Corporation Retired Officers (Medical Attendance) Regulations, 2010 thus nothing can be given to the petitioner in violation of said Regulations; that as the petitioners did not assail the order passed by this Court on 21.09.2016 dismissing their application seeking amendment to challenge the S.R.O issued by the competent authority regarding provision of medical facilities to the retired employees of the Corporation equal to three basic pays, instant petition is not proceedable any further; that according to Article 14 of Order, 1972, the Corporation enjoys full-fledged autonomy to deal with its commercial activities; that according to the decision rendered in Writ Petition No,9008/2013, the Corporation is not bound to follow the directions issued by the Federal Government especially in respect of the terms and conditions of service of its employees; that the order passed in the said writ petition despite having been challenged in Intra Court Appeal, still holds the field; that according to the State Life Employees (Service) Regulations, 1973, the petitioners have no vested right to lay claim for medical facility equal to the serving employees. In addition to his oral submissions, learned counsel representing the Corporation has also referred to the case reported as State Life Insurance Corporation of Pakistan and others v. Syed Hassan All Shah and others (2010 SCMR 1381) and an unreported judgments rendered by this Court in W.Ps. Nos,9008/2013 and 12840/2009.
4. Learned Deputy Attorney General, while adopting the arguments advanced by the learned counsel representing the Corporation, submits that as medical facility has already been catered for the retired employees of the Corporation, instant petition has fructified.
5. Learned counsel for the petitioners, while exercising his right of rebuttal, states that when the apex Court of the country has already held that retired employees of the other corporations established under Order, 1972 are entitled for medical facilities equal to those serving the corporations, no deviation can be introduced by the Corporation itself; that as a matter of fact, the persons at the helms of affairs of the Corporation are investing its funds in non-viable schemes as a result whereof, loss worth millions of rupees has already been suffered by the Corporation which fact was publicized in daily Dawn dated 07.05.2015 thus, the respondents cannot refuse the medical facility to the retirees on the ground of paucity of funds; that as the petitioners served the Corporation and burnt mid night oil to run its affairs, they are entitled for medical facilities necessary for their sustenance.
6. I have given anxious consideration to the submissions made by learned counsel for the parties in addition to going through the documents annexed with this petition as well as those forming part of the report and para-wise comments besides the case-law cited at the bar.
7. It is well entrenched by now that an aggrieved person can invoke constitutional jurisdiction of this court in terms of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 in the wake of infringement of a vested right. According to Merriam-Webster's Dictionary of law, "vested right" means-- "A right belonging completely and unconditionally to a person as a property interest which cannot be impaired or taken away (as through retroactive legislation) without the consent of the owner".
As per Advanced Law Lexicon (4th Edition), the said term connotes to--- "The Expression "vested rights" or "accrued rights", have been used in the context of a right flowing under the relevant rule".
According to Biswa s Encyclopedic Law Dictionary (Third Edition, 2008), "vested right" means--- "A right is vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest independent of any contingency. It is a right which cannot be taken away without the consent of the owner".
As per Webster's Third New International Dictionary, "vested right" means--- "A right belonging so absolutely, completely and unconditionally to a person that it cannot be defeated by the act of any private person and that is entitled to governmental protection under a constitutional guarantee".
Blacks Law Dictionary expresses the meaning of "vested right" in a way--- "Vested. Fixed; accrued; settled absolute; complete. Hating the character or given the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent". Rights are "vested" when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in 'property founded on anticipated continuance of existing laws, does not constitute vested rights".
Besides above definitions in the different dictionaries, the said term also came under discussion before the apex court of the country in its land mark judgment reported as Nabi Ahmad and another v. Home Secretary, Government of West Pakistan, Lahore and others (PLD 1969 SC 599) wherein the same has been defined in the following words:- "A close examination of these meanings and explanations reveals that vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised. There must always be occasions at which and circumstances under which they may be exercised. Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of those rights. For instance, the right to cross-examine (not to re-cross examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examination in chief is over. The occasion to cross examine may not arise or may not be exercised but the right is not to be denied"
According to definition of the term "vested right" in afore-quoted lexicons and judgment of the Hon'ble Supreme Court of Pakistan, there is consensus that it means a right which finds support from any law enunciated by the legislature.
8. Now I venture to examine as to whether refusal on the part of the Corporation to provide medical facilities to the retired employees equal to the serving amounts to infringement of any vested right or not. In my humble opinion, to resolve the said controversy, a bird's eye view of different Regulations/Rules in general and those of the provisions of the Order, 1972, in particular, is imperative. Firstly, taking up the provisions of Order, 1972, I have noted that Article 49 thereof deals with the power of the Corporation to frame Regulations which, for facility of reference, is reproduced herein below:- "Power to make Regulations. (I) The Corporation may, with the previous approval of the Central Government, by notification in the official Gazette, make Regulations not inconsistent with this Order and the Rules thereunder to provide for all matters for which provision is expedient for the purpose of giving effect to the provisions of this Order.
(2) In particular and without prejudice to the generality of foregoing power, such Regulations may provide for:-
(a) the powers and functions of a Corporation which may be delegated to its Officers;
(b) the method for recruitment of employees and agents and employers of agents of a Corporation and the terms and conditions of service of such employee or agents or employer of agents." (emphasis provided)
The afore-quoted provision, in particular sub-clause (b), renders it crystal clear that the Corporation has the exclusive jurisdiction to frame Regulations inter alia in respect of the terms and conditions of service of its employees of course with the previous approval of the Federal Government. The competent authority, while exercising power under Article 49 ibid, framed the State Life Employees (Service). Regulations, 1973 (hereinafter to be referred as "the Service Regulations, 1973) which were circulated through Notification dated 01.01.1973. Regulation 4, Part II of Service Regulation 1973 deals with the classification of the employees in terms of pay and allowances whereas Regulation 20, Part IV of the said Regulations relate to the retirement, resignation and termination of service while Regulation 68, Part IX of the said Regulations pertain to the Gratuity payable to the employees of the Corporation. As per the Service Regulations 1973, the Board of Directors enjoys exclusive powers to determine the quantum of Gratuity and ancillary benefits. As the earlier Regulations were silent about other perks and privileges of the retired employees of the Corporation, the competent authority, while exercising power in terms of Article 49 ibid, introduced State Life Employees (Medical Attendance) Regulations, 1973 (hereinafter to be referred as the "Medical Attendance Regulations 1973"). According to Regulation 2(3) of the Medical Attendance Regulations, 1973 an employee means 'a full time employee of the Corporation who is paid monthly salary and to whom, these regulations apply'. The medical facility for the retired employees of the Corporation was also not catered in the Medical Attendance Regulations, 1973. With a view to deal with the anomalies relating to the retired employees, State Life Employees (Pension) Regulations, 1986 (hereinafter to be referred as the "Pension Regulations, 1986) were introduced. The Pension Regulations, 1986 were further amended in the year 1988, however, medical facility was not provided to the employees of the Corporation. The discussion made in this para leaves no ambiguity that there was no legislative piece regarding provision of medical facility to the employees of the Corporation.
9. Now, coming to the communication dated 23.01.1994 addressed by the Joint Secretary (R-1), Ministry of Finance, Government of Pakistan, Islamabad to the Secretary, Commerce Division, Government of Pakistan, Islamabad, I have noted that while apprising about the revision of pay scales of the Officers and Executives of the Nationalized Corporations by the President of the country, the Commerce Division was asked to issue administrative order. According to the statement relating to the existing rates of Allowances/Fringe benefits admissible to Officers of State Life Insurance Corporation, Pay and Pension Committee recommended for provision of medical facility to the retired Officers. The exact decision of Pay and Pension Committee is reproduced herein below:- "Medical Facility to Retired Officers "May be allowed as admissible to the serving employees".
The wording used by the Pay and Pension Committee in its afore-quoted recommendations brings it to light that its recommendations were not mandatory in nature rather it was up to the competent authority to adopt said recommendations or not.
10.Insofar as letter, dated 29.01.1994, addressed by the Section Officer, Ministry of Commerce, Government of Pakistan, Islamabad to the Chairman, SLIC, P.I.C. and N.I.C, Karachi is concerned, suffice it to note that the Chairman of the Corporation was directed to take necessary action in terms of D.O. letter No,1(1)Imp/94 dated 23.01.1994. A cursory glance over the Office Memorandum dated 05.01.1995 issued by the Government of Pakistan, Finance Division (Regulation Wing), Islamabad shows that beside other subjects, anomalies relating to medical facility to the retired employees of the Corporation were also mentioned therein. Item No,3 of the said Memorandum deals with medical facility to retired Officers which for convenience of reference is reproduced herein below:- "The Government has decided that the medical facility to the retired officers of SLIC may be allowed as admissible to serving employee. Action in this respect by the SLIC may be taken accordingly."
In the lines quoted above the word "may" has been deployed meaning thereby that the same was not mandatory in nature rather the same carried the status of only direction. Further, Finance Division left it up to the Corporation to take action in that respect. The reason behind such discretion to the Corporation was Article 49 of Order, 1972 where-under Corporation was given autonomy to determine the terms and conditions of service of its employees.
11. The next question which surfaces for determination by this Court is as to whether the Corporation is bound to give same medical facility to the retired employees of other Nationalized Corporations/Companies which were also established in terms of Order, 1972. A detail survey of the Order, 1972 brings it to light that there was no condition to the effect that the terms and conditions of the employees of the Nationalized H Insurance Corporations/Companies shall be identical thus, the petitioners cannot quote the perks and privileges of the retired employees of the other Nationalized Corporations/Companies in support of their claim as all these Corporations enjoy the full-fledged autonomy in respect of terms and conditions of their serving/retired employees including medical facility. Further, a person serving/retired of an autonomous institution cannot claim perks and privileges equal to serving/retired employees of another autonomous body.
Reliance in this regard can be placed on the case reported as Abdul Khalique v. Federation of Pakistan through Secretary Board of Investment and 4 others (2016 PLC (C.S.) 530) wherein a learned Division Bench of the Sindh High Court, while discussing the previous law on the subject in exhaustive manner, clinched the issue, under discussion, by observing inter alia as under:- "16 ....In the case in hand, it is important to note that the Petitioner is alleging 'discrimination' but without pin pointing violation of any specific provision of law/Rules which can be challenged/questioned on the touch stone of Article 25 of the Constitution of 1973. The Petitioner in the present case has also failed to establish any 'vested right' as being violated by the Respondents. Needless to say, for seeking a relief much-less under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, there must be an established and a bona fide right which may be 'statutory right' or otherwise, but indeed it ought to have been recognized by law.
Moreover, such right must be clear and, of course, free from any sort of controversy that is to say, where recording of evidence is not required. The object of proceedings to be initiated under Article 199 of the Constitution is the enforcement and protection of a 'vested right' and by no means it is meant for the establishment of a right. The right of which a redressal is being sought under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 must not only be an existing right but for seeking remedy under the Constitutional jurisdiction, the infringement of such vested right must be there. From the case of Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others [2011 SCMR 18131 on the aforesaid aspect of the matter, the relevant observations read as follows: -
10. "It is incumbent upon party seeking constitutional remedy to show that such party has a clear legal right and that such right is so clear as not to admit of a reasonable doubt or controversy.
High Court will not go into disputed questions of fact in Constitutional jurisdiction. This is more so when it is supported by attending circumstances and relevant record. Constitutional jurisdiction of High Court, cannot be converted into that of an appellate Court. Disputed questions of fact cannot be entertained or allowed to be reagitated in writ jurisdiction. When the relevant law provides other forums for the purpose. It follows that finding of fact recorded by appellate Court below on appraisal of evidence cannot be disturbed in, writ jurisdiction. In constitutional jurisdiction Court does not go into a question involving minute details nor can it decide facts of which no foundation is laid, unless it is shown that such controversy is devoid of supporting record, or perverse." (M. H.
Abidi v. State Life Insurance Corporation 1990 MLD 563, Muhammad Nazim v. Rehana Parveen Begum 1990 MLD 344).
11. It is well settled by now that "the superior Courts should not involve themselves into investigations of disputed question of fact which necessitate taking of evidence. This can more appropriately be done in the ordinary civil procedure for litigation, by a suit. This extraordinary jurisdiction is intended primarily, for providing an expeditious remedy in a case where the illegality of the impugned action of an executive or other authority can be established without any elaborate enquiry into complicated or disputed facts. Controverted questions of fact, adjudication on which is possible only after obtaining all types of evidence in power and possession of parties can be determined only by courts having plenary jurisdiction in matter and on such ground constitutional petition was incompetent." (State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280).
17. In the present case, the Petitioner is holding the post of the PRO in Board of Investment [Boll for which Posts recruitment rules have already been framed by FPSC in consultation with the Establishment Division. All the posts of PRO's thus advertised by the FPSC are in 'grade 16' and the Petitioner as being well aware of such grade had applied for the same with open eyes and as per his sweet will. In view this position, the question of any 'discrimination' as being alleged by the Petitioner under the facts and circumstances of the case in hand does not arise particularly when the Petitioner was also in knowledge of the posts of Assistant PROs/Assistant Information Officers and Assistant Protocol Officers in other Departments of Federal Government and Provincial Governments in grade 17 ....".
12. The terms and conditions of the petitioners and those serving employees of the Corporation having been governed under distinct Regulations the protection of equal treatment as envisaged under Article 25 of the Constitution is not available as the same is confined to similarly placed persons. The august Supreme Court in the case of Federation of Pakistan v. Sultan Ahmad Shams and 17 others (2014 SCMR 570), while dealing with somewhat identical issue, laid law to the following effect:- "12 ....As regards discrimination, grievance of the respondents is that in announcing the basic pay scales 2011 all these allowances were merged in the basic pay scales 2008 so as to introduce basic pay scales 2011 and it was made effective from 1-7-2011 meaning thereby that the benefit of these allowances will be admissible to the employees who were in employment on 1-7-2011 or retiring on or after the said date as having become the part of their emoluments and denying the benefit of this merger of allowances in the emoluments to the respondents amounts to discrimination. This grievance of the respondents in our view is not well founded in the face of the established law, which has been propounded .by this Court time and again the leading one is the case of I.A. Sherwani (supra). It was specifically held in this case that on the basis of reasonable classification pensioners as a group are treated as one class and all serving civil servants as a group are to be treated as a separate class and in this view of the matter if the pay scales of serving civil servants are revised, the civil servants, who have by then already retired cannot have any legitimate grievance to agitate for notional revision of their basic pay scales for recomposing their pension amounts for any purpose as the pension amount is to be computed on the basis of pension rules in force on the date of retirement of a civil servant, the pension rules contain formula as to the method of computation of pension amount with reference to salary drawn by the civil servants till the date of retirement and there Cannot be uniformity in the amount of pension among the civil servants despite having equal rank and equal length of service, if they retire not on one date but on a different dates and in between such dates pay scales are revised.
Thus the revision of the pay scales of serving employees were held not to be applicable to the civil servants who stood already retired and they will have no justification or right to claim benefit of the revision of pay scales subsequent to their retirement. This being the state of law, where pensioners have been classified as a separate group/class from the one, who are in service, the question of discrimination or violation of Article 25 of the Constitution will not arise as the two groups are not to be dealt-with in the same manner..."
13. Considering from another angle, reasonable classification by the competent authority on the basis of an intelligible differentia cannot be declared as illegal or unlawful. As the retired employees of the Corporation and those serving it cannot be treated alike in view of the distinction in respect of the Regulations governing their terms and conditions, the Corporation has not violated the provisions of Article 25 ibid while introducing different package in respect of medical facility. Reference in this regard can be made to the cases reported as Government of the Punjab through Chief Secretary and others v. Ch. Abdul Sattar Hans and 29 others (2015 SCMR 915) and Secretary Economic Affairs Division Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCMR 1687). In the case of Government of the Punjab through Chief Secretary and others (supra) the apex court of the country, while dealing with question of reasonable classification vis a vis discrimination, decided as under:- "2.... We have gone through the impugned judgment rendered by the Chairman, Punjab Service Tribunal. He has proceeded on the assumption that Federal Government employees and employees of the Provincial Government should receive the same emoluments and perquisites if they are performing the same type of duties. This finding is flawed for two reasons. Firstly, we have not found any exercise undertaken by the Tribunal or indeed any other government functionary which would show that the actual work being performed by Senior Auditors of the Audit Department who are employees of the Federal Government is exactly the same as the work being done by the Deputy Accountants employed by the Province. Secondly, it has been held by the Service Tribunal as under:-- "The appellants possess the similar qualifications, nature of the duties performed are similar, work under the same roof and same officer. Similarly placed are to be treated similarly. No doubt the Provincial Govt. works independently under the Constitution but generally it follows the pay scales sanctioned by the Federal Govt. If two different pay scales are given to the Federal Govt. employees and the Provincial Govt. employees it may amount to extracting labour and exploitation under Article 3 of the Constitution of Islamic Republic of Pakistan. I tend to agree with the judgment of the Lahore High Court 2004 PLC (C.S.) 586 that it is violation of Articles 2-A, 3, 25, 37 and 38 of the Constitution of Islamic Republic of Pakistan, 1973."
The above reproduced observation, however, is also flawed because Article 3 of the Constitution has no application in the present case. We may note that the respondents who were appellants before the Service Tribunal were not conscripted in service. They had joined service voluntarily and had accepted the terms and conditions of service. It is evident that they did not compete with the Senior Auditors (BPS-16) of the Federal Government and, therefore, cannot claim that they should be given perks and emoluments as the Senior Auditors of the Federal Government. The question of exploitation would only have arisen if the respondents had been forcibly inducted into compulsory service. This is not the case and it appears that they had happily joined service and are enjoying the benefits of the same.
3. Thirdly, it is important to note that the Provincial Government has to remain within its own budgetary constraints. The finding of the Service Tribunal that the "Punjab Government will have to bear extra financial burden of Rs, 46.44 millions, suffice to say that the service structure and financial constraints cannot stand in the way of the Constitution". This is not a tenable position because the amounts paid by way of salaries, are extracted from the pockets of citizens by means of taxation. The Province and its Government can genuinely come to the conclusion that they are not prepared to burden the people of the Province by imposing an extra levy on them. It is not for the Service Tribunal to tell the Government of Punjab to impose additional taxes/levies for the purpose of meeting the command of the Service Tribunal. We are cognizant that there may still be duties imposed on Governments which are absolute and may require allocation or reallocation of financial resources with the object of ensuring performance of such duties. In an appropriate case this can be examined. However, this case does not raise such issues.
4. It is also important to bear in mind that Article 25 of the Constitution is only attracted where there is an apple-to-apple, comparison. In the present case, this is not the position because both sets of individuals i,e, Senior Auditors of the Federal Government (BPS-16) and Dy. Accountants of the Provincial Government (BPS-14) are not equally placed. There is an obvious criterion which differentiates the two categories i,e, they are employed by different employers with different financial and other resources. Thus a very fundamental issue of federalism has arisen in this case.
If the reasoning of the Service Tribunal is upheld, tomorrow a Province or the Federation which is more affluent than other Provinces and is prepared to raise the salaries of its employees or as a policy decides that government servants should be paid according to the market salaries it will not be constitutionally permissible for a Court to hold that the Province which is less affluent should pay the same emoluments and provide the same perquisites as has been done by the more, affluent Province. The federation and each of the Provinces exercise independent powers as per distribution of powers set out in Chapter 1 of Part V of the Constitution. This indeed is the essence of a truly federal constitutional structure..."
14. According to the prayer clause of the original writ petition, the petitioners groused against non- provision of medical facility to the retired officers of Corporation despite recommendations by the Federal Government in that regard. A perusal of Circular No, P&GS/P0/1694 dated 25.05.1994 issued by the Corporation shows that medical facility was catered for the employees who retired on or after 01.01.1993. Further, during pendency of instant petition, this Court, vide order dated 29.05.2013, referred the matter to the Chairman of the Corporation to place the same before the Board of Directors in its meeting scheduled in July 2013 meaning thereby that this Court being cognizant of the fact that only Board of Directors was competent in that respect, referred the matter to the said forum. Further, according to Notification dated 26.10.2015 copy whereof has been produced by the learned Deputy Attorney General, medical facility to the retired officers of the Corporation has been enhanced from one basic pay to three basic pays in addition to increasing the heads against which the said amount can be utilized by the retired Officers/Executives of the Corporation. So, the grievance of the petitioners that no medical facility is available to the Offices/Executives of the Corporation, does not exist.
15. The next foremost question which surfaces for determination by this court is as to whether the Corporation was bound to implement the decision taken by the Federal Government in relation to medical facility in toto or it could deviate or relinquish any part thereof. To respond the said query, at the cost of repetition, reference is again made to the provision of Order, 1972, in particular, Article 49 ibid according to which, the Corporation was competent to make rules and regulations including those governing the terms and conditions of service of its employees with previous approval of the Federal Government. As the government has already assented to the decision taken by the Board of Directors pursuant to order dated 29.05.2013 passed by this Court in the instant petition, the petitioners cannot claim that the same is not acceptable to them for the reason that medical facility equal to three basic pays only has been given to them. It is up to the competent authority to decide qua the terms and conditions of service of serving/retired employees. There is no cavil with the preposition that the Corporation falls under the control of Ministry of Commerce, however, according to Schedule II attached with the Rules of Business, 1973 the said supervision has been confined to the following subjects:- "Law of insurance; regulation and control of insurance companies; actual work; insurance of war; riot and civil commotion --risks and life insurance but excluding health and unemployment insurance for industrial labour and post office insurance."
According to the afore-quoted portion from Schedule H, no supervisory role has been given to the Commerce Division to compel any of the nationalized corporations/companies to introduce incentives to their serving/retired employees.
16. It is imperative to observe over here that crux of the arguments advanced by the learned counsel for the petitioners is that despite approval by the Federal Government the medical facility is not been provided to the retired employees of the Corporation as permissible to the serving employees of the Corporation. If the earlier recommendations of the Federal Government conveyed to the Corporation through the Commerce Division had binding force on the Corporation the government could refuse to validate the decision taken by the Board of Directors of the Corporation towards medical facility to the retirees. As a matter of fact the Federal Government being fully cognizant of the fact that the power to allow any facility to a serving/retired employee of the Corporation exclusively falls within the domain of the Board of Directors instead of insisting for adoption of earlier recommendations, it endorsed the decision of the Board of Directors regarding medical facility.
17. Both sides are unanimous on the point that the pay and allowances of the serving/retired employees are being paid by the Corporation from the funds being raised by it from its own sources. On the one hand the petitioners have taken the stance that due to investment in non- viable schemes/projects the Corporation has already suffered loss worth millions of rupees but on the other, are not ready to accept the said financial crunch of Corporation as one of the causes for restricted medical facility to the retired employees. In this state of affairs the claim of the petitioners for provision of medical facility equal to that permissible to serving employees of the Corporation cannot be acceded to.
18. This court agrees with the plea of the learned counsel for the petitioners that in view of their advance age they need more funds to maintain their physical health during rest of the life but the same is subject to the reasonable restriction by the competent authority. If the request of the petitioners for medical facility without any upper ceiling is acceded to, perhaps the Corporation would feel handicap to meet with the expenses being incurred by it to run its day to day affairs.
Further, the petitioners should also be mindful that in none of the State run institutions, the perks and privileges of the serving and retired employees are the same.
19. Now, coming to the judgment dated 28.10.2003, I am of the view that the apex Court of the country upheld order dated 11.03.2002 passed by the Federal Service Tribunal, Islamabad regarding the post-retirement medical facilities to the employees of the Nationalized Insurance Companies.
The said judgment having been passed in relation to different companies, the same cannot be made applicable to the employees of the Corporation as all the Insurance Corporations/ Companies established under Order, 1972 enjoy complete autonomy towards framing of rules and regulations. As far as case of Muhammad Shahzad Malik (Supra) is concerned, though the apex Court of the Country has held that the superior courts while deciding the matter can take into consideration all subsequent events as well but the said principle is not applicable in the instant matter for the reason that while deciding the matter pursuant to order dated 29.05.2013 passed by this Court, the competent authority has already allowed medical facility to retired officers/executives of the Corporation equal to three basic pays and in case the petitioners have any grievance against SRO where-under they have been allowed the said facility, they can agitate the matter in independent proceedings especially when their applications seeking amendment in the shape of challenge to said SRO has already been dismissed by this court. Insofar as order dated 27.05.2009 passed by the Hon'ble Supreme Court in Human Right Case No,625 of 2009 is concerned, suffice it to observe that pursuant to notice issued to the respondents in the said case, Secretary as well as Senior Joint Secretary appeared before the Court and sought time to approach the Board of Directors to take permission for extension of benefits of medical facility to the retired employees as well as wife and dependent children. As the controversy, in pith and substance in that case, revolved around provision of medical facility to the retired employee, wife and children the same is not applicable in the present case.
20. As a necessary corollary to the discussion made in the paragraphs supra, I have. no doubt to hold that the claim of the petitioners for medical facility equal to the serving employees of the Corporation is not supported by any law. Consequently, instant petition is dismissed with the observation that this judgment shall not be an impediment if the Corporation opts to enhance the permissible medical facility to its retirees. There shall be no order as to costs.