' JAWAD HASSAN, J.--- Through the instant petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner while challenging the legality of judgment dated 20.03.2013 passed by the Respondent No,1, has sought modification in the same and regularization of his service w,e,f, 09.06.1990.
2. Brief facts of the case are that the Petitioner joined service with Pakistan Telecommunication Company Limited ("PTCL") as Telephone Operator w,e,f, 09.06.1990 and after rendering service of .Three months under Standing Order No,1(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (the "Ordinance") became permanent Workman/Regular employee but was considered as temporary employee. The Petitioner after exhausting remedy of departmental appeal filed appeal before the Federal Service Tribunal at Lahore which was declared as abated vide notice dated 02.08.2006 in pursuance of case titled as Muhammad Mubeen us Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 SC 602). Thereafter, the Petitioner served a grievance notice to the Respondents and then filed Grievance Petition which was accepted by the learned Punjab Labour Court No,4, Faisalabad vide judgment dated 07.09.2009 directing the Respondents to regularize the services of the Petitioner w,e,f, the date of his first appointment along with all the back benefits. The said judgment was implemented in letter and spirit. Feeling aggrieved thereby the Respondents Nos,2 and 3 preferred an appeal before the Respondent No,1 which was partly allowed vide the impugned judgment dated 20.03.2013. Hence, the instant petition.
3. Pre-admission notice was issued to the Respondents vide order dated 06.12.2013 and in pursuance of which the Respondents Nos,2 and 3 put appearance through their representatives.
4. Learned counsel for the Petitioner submitted that the impugned judgment to the extent of date of regularization of Petitioner's services i,e, 17.09.1997 is against the law and facts as the same has been passed in violation of the Ordinance. Learned counsel further argued that the Respondent No,1 has failed to take into consideration the findings of the learned Labour Court which had been passed in accordance with law. Learned counsel also contended that the judgment to the above extent is not sustainable in the eye of law as the same has not been passed keeping in view the Ordinance and the latest pronouncements of the Hon'ble Supreme Court of Pakistan in this regard.
Learned counsel also maintained that the appeal of the Respondents Nos,2 and 3 was not competent as the judgment of the Labour Court had been implemented much before assailing the same. Learned counsel also pointed out that the impugned judgment of the Respondent No,1 is in clear violation of the fundamental rights of the Petitioner guaranteed under the constitution. To further strengthen his contentions learned counsel has placed reliance on the cases titled Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 Supreme Court 724), Executive Engineer, Central Civil Division, Pak PWD Quetta v. Abdul Aziz and others (PLD 1996 Supreme Court 610), Punjab Seed Corporation and 2 others v. Punjab Labour Appellate Tribunal and 2 others (1996 SCM R 1947), Izhar Ahmed Khan and another v. Punjab Labour Appellate Tribunal, Lahore and others (1999 SCM R 2557), Province of Punjab through Secretary Communication and Works Department and others v. Ahmad Hussain (2013 SCM R 1547) and Tehsil Municipal Administration v. Muhammad Amir (2009 SCM R 1161).
5. On the contrary learned counsel for the Respondents has contested the arguments advanced by the learned counsel for the Petitioner and contended that the Petitioner cannot claim his regularization from the date of his appointment on the basis of Respondents' circular dated 17.09.1997 as the same was having prospective effects. Learned counsel also argued that the grievance notice to the Respondents was time barred because it relates to the grievance of 1997.
Learned counsel further stated that the Petitioner was not entitled to the relief claimed for as he was matriculate and fell short of the prescribed qualification of intermediate. Learned counsel further argued that the instant Petitioner is liable to be dismissed as there is no illegality or infirmity in the impugned judgment. Learned counsel has placed reliance on the cases titled The Workmen of Tando Jam and its Feeders v. Director, Agricultural Engineer, Sindh and 8 others (1981 PLC 47), Mohammad Hussain and 3 others v. Syed Ahmed Masood and another (1974 PLC 61), Sindh Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and another (PLD 1975 Supreme Court 450), Ibrahim v. Muhammad Hussain (PLD 1961 SC 119), Faysal Bank Limited v. Punjab Labour Court and another (2002 PLC 244) and The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of Pakistan Works Division and 2 others (PLD 1972 Supreme Court 279).
6. I have heard the arguments of the learned counsel for the parties and have gone through the record.
7. The main grievance of the Petitioner is that he is entitled to be regularized in service with effect from the date of his initial recruitment i,e, 09.06.1990 instead of 17.09.1997. The perusal of impugned judgment reveals that the same has been passed in consonance with the spirit of law after taking into consideration all the material made available. In the impugned judgment the Appellate Tribunal has rightly observed as follows: "The main issue is whether the Respondent has any right to be regularized in view of PTCL's circular dated 17.09.1997. A perusal of the said circular reveals that in fact it records the agreement between PTCL management and its CBA. No doubt, the said agreement is not a "Settlement" as defined in section 2(xxvi) of the Industrial Relations Ordinance, 2002, for having not entered into during the pendency of an industrial dispute. Nevertheless, this agreement is a collective agreement as defined by section 2(a) of the Industrial and Commercial (Standing Orders)
Ordinance, 1968, as it specifies the conditions of employment and has been entered into by and between the employer, PTCL and the CBA, the duly authorized representatives of the workmen.
Reference may be made here to section 2(g) of the Industrial and. Commercial (Standing Orders)
Ordinance, 1968, which provides that Standing Orders include any modifications made pursuant to section 4 of the Industrial and Commercial (Standing Orders) Ordinance, 1968. According to section 4 ibid, a collective agreement has the effect of modifying the Standing Orders provided that no rights conferred by the Standing Orders are diminished or taken away. The collective agreement or the circular dated 17.09.1997 is, thus, recognized and sanctioned by section ibid as it confers additional rights on the PTCL's employees to be regularized in accordance with the terms recorded therein. As such, the Respondent cannot be denied the benefits conferred by the collective agreement which include the Regularization of the PTCL's Telephone Operators provided that they have remained in continuous service for a period of 4 years. Applying the criteria specified in the circular, there is no doubt that the respondent was qualified to be regularized as he had completed 4 years' service counted from 09.06.1990."
8. From the above, it is clear that the PTCL circular dated 17.09.1997 has a sanction of Section 4 of the Ordinance. For the sake of brevity Section 4 of the Ordinance is reproduced herein blow: "4. Modification of Standing Orders.The Standing Orders may be modified by means of a collective agreement and not otherwise.
' Provided that no such agreement shall have the effect of taking away or dismissing any right or benefit available to the workman under the provisions of the Schedule."
9. As, from the above, it is clear that the Petitioner has availed the benefit of said circular in the shape of his regularization, therefore, now cannot claim to be regularized apart from the conditions of circular. The Petitioner derived benefits of circular through regularization of his services but cannot be allowed to partly accept the same and partly disown it thought he had taken full benefit of it. Reliance in this regard can be placed on the case, titled Allied Bank Ltd. v. Muhammad Ilyas (2010 PLC 13 [Lahore High Court]) wherein it has been held as follows: "Coming to the merit of the case, the scheme was launched on 4-9-2002 and a freezing date was fixed as 30-6-2002 for the purposes of calculation of pension at any time when the employee retires but with this disadvantage a major advantage was also given to the employees in the shape of major jump in their salary package. Respondent on 23-4-2005 in unequivocal terms giving reference to the scheme of 4-9-2002 gave his option to continue with the pensionary scheme payable in terms of the said scheme, therefore, he cannot be allowed to partly accept the scheme and partly disown to the portion which is disadvantageous to him although he has taken all the benefits in the shape of increased pay."
' Furthermore, in case titled M.C.B. Bank Limited through Authorized Representative v. State Bank Pakistan through Governor and 2 others (2010 CLD 338) before Hon'ble Mr. Justice Mian Saqib Nisar, it was held as follows: "In the present case, not only that the petitioner's members during the time when they were in the employment of the MCB have subscribed/assented to the RPP which admittedly was acted upon and they derived all the benefits on account of the said package, which (the package) is not shown to be the one hit by the provisions of section 23 of the Contract Act. The petitioner's members, therefore, are estopped by their own conduct to revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.