Succinctly , the petitioner joined the Telecommunication Department as Telephone Operator on 20.12.1987. In the year 2008, the department launched Voluntarily Separation Scheme (VSS). The petitioner exercised her option which was accepted by the competent authority and she was retired from service under the said scheme on 06.02.2008. Resultantly , she was paid pensionary emoluments. Later on, the department rescinded its order regarding retirement of the petitioner under VSS on 19.06.2008. Aggrieved by the order passed by the competent authority , the petitioner filed Writ Petition No.8762 of 2008 before this court which was disposed of vide order , dated 18.12.2008, whereby the matter was referred to the Senior Executive Vice President (Sere), Pakistan Telecommunication Company Ltd., Islamabad to decide the controversy between the parties. Pursuant to order , passed by this court in the afore-quoted writ petition, the competent authority decided the matter through order , dated 12.02.2009, by holding that as the petitioner did not join duty after deposit of entire amount received by her, her request could not be entertained. The petitioner has filed the instant petition seeking direction to the respondents to comply with order , dated 18.12.2008, passed by this court in the afore-quoted writ petition and grant of pensionary benefits.
2. Learned counsel for the petitioner submits that retirement order of the petitioner under VSS was recalled by the departmental authorities mainly on the ground that the period consumed by her towards training could not be counted for while determining length of qualifying service under the said scheme but the said finding of the departmental authorities being repugnant to the law laid down by the superior courts has no sanctity in the eye of law. Adds that on the one hand, the respondents took the plea that the petitioner was granted VSS due to some clerical mistake and on the other they have declined to join her at the duty on the ground that until and unless she returned the amount, received in lieu of pensionary benefits under VSS, she could not be allowed to rejoin the duty.
In support of his contentions, learned counsel has referred to judgments reported as Pakistan Telecommunications Company Ltd. through President and 5 others vs. Azhar Ali Babar (2013 PLC 345), Masood Ahmed Bhatti and others vs. Federation of Pakistan through Secretary , M/O Information Technology and Telecommunication and others (2012 SCMR 152), Pakistan Telecommunication Emloyees Trust (PTET) through M.D. Islamabad and others vs. Muhammad Arif and others (2015 PLC CS 1417 ), Nazir Ahmad vs. Government of Punjab through Secretary Transport, Lahore and others (2006 PLC CS 237), Pakistan Telecommunication Company Ltd. vs. Aneesa Khatoon (2010 PLC 534) and unreported judgment passed by the High Court of Sindh in Civil Petition No.D-797 of 2000 and judgment dated 11.09.2012 by Peshawar High Court in Writ Petition No.223 of 2011 and judgment dated 16.03.2010 passed by the High Court of Sindh in Constitutional Petition No.D 299 of 2008.
3. Conversely , leaned counsel representing the respondent-PTCL states that as the VSS was not backed by any statutory rules, instant petition is not maintainable; that in the earlier writ petition filed by the petitioner , she prayed for issuance of direction to the respondents to permit her to join the duty and in line with her prayer , the competent authority has already decided the matter vide order , dated 12.02.2009, requiring her to deposit the entire amount received by her under VSS thus present petition is not maintainable; that as millions of rupees were paid to the petitioner under VSS, she could not be allowed to rejoin the duty without deposit the same; that as the petitioner failed to join the duty within prescribed period of limitation, she could not make any prayer in that regard; that not only the petitioner alone but other 300 employees were retired under VSS, however , after coming to know that the same was result of some arithmetic mistake, the same was rectified and out of them many persons have already rejoined their duties upon deposit of amount received by them in lieu of VSS and that this court in number of cases has already held that writ petition is not maintainable in relation to the VSS. To fortify his contentions, relies upon the cases reported as Shafique Ahmed Khan and others vs. Nescom through Chairman, Islamabad and others (PLD 2016 SC 377), Ahsanullah and 11 others vs. Federation of Pakistan through Secretary and 4 others (2016 PLC (C.S) 477), order dated 09.07.2015 passed by this court in Writ Petition No.22521 of 2013, order dated 10.08.2015 passed by this court in ICA No.1035 of 2015, judgment dated 18.12.2015 passed by the Hon'ble Supreme Court of Pakistan in Civil Petition No.2910 of 2015, judgment, dated 24.11.2014, passed by this court in Writ Petition No.12586 of 2012, order, dated 14.01.2015, passed in Writ Petition No.27890 of 2011, order, dated 03.12.2014, passed in Writ Petition No.20787 of 2012, judgment, dated 19.09.2013, passed by this court in Writ Petition No.21228 of 2012 and judgment, dated 27.05.2016, passed by this Court in Writ Petition No.5978 of 2011.
4. Learned counsel for the petitioner , while exercising his right of rebuttal, submits that question regarding jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 arising out of the terms and conditions of the service of the employees who were transferred from other departments to PTCL has already been put to rest by the Apex Court of the Country while holding that writ petition by such employees is maintainable thus this petition cannot be dismissed on the point of maintainability .
5. I have heard leaned counsel for the parties and have also gone through the documents appended with this petition as well as those forming part of the report and para-wise comments in addition to the case law cited at bar .
6. Firstly taking up the objection raised by learned counsel for the respondent that the prayer of the petitioner in Writ Petition No.8762 of 2008 was confined to rejoining of service by the petitioner, the instant petition has become infructuous as the competent authority has already allowed the petitioner to rejoin the duty after deposit of emoluments received by her under VSS. To resolve the said controversy , a perusal of the prayer clause of the referred writ petition is of paramount consideration which for convenience of reference is reproduced herein below :- "Under the circumstances and submissions made above, it is most humbly and respectfully prayed that the pension withdrawal of order dated 19.06.2008 (Annexure-P/3) may graciously be declared to be without lawful authority , without jurisdiction and hence of no legal effect.
Alternative, after appreciating the pathetic economic condition of the petitioner , the respondent may graciously be directed to permit the petitioner to rejoin on the conditions of payment of amount taken by the petitioner in easy installments preferably from a portion of the pay leaving the rest for making the petitioner capable of running the day to day expenditure in this extreme inflationary trends of economy .
It is further prayed that any other direction/relief under the circumstances of the case, as is deemed fit and proper , may also kindly be granted."
A cursory glance over the afore-quoted prayer clause of the earlier writ petition filed by the petitioner shows that mainly she put challenge to the order dated 19.06.2008 whereby her pension order was withdrawn by the competent authority . There is no cavil with the preposition that in the alternate, she prayed for issuance of a direction to the respondents to rejoin her on duty. As in the main petition, the petitioner assailed order whereby her pensionary order was withdrawn, it cannot be accepted that as the competent authority allowed her to rejoin subject to certain conditions, instant petition has become infructuous.
7. Considering from another angle, if the competent authority was of the view that the petitioner could not be allowed to rejoin without deposit of entire amount received by her in lieu of VSS, there was no impediment in the way of said authority to recall order whereby the pension order of the petitioner was withdrawn. It is very strange to note that on the one hand, the respondents are of the view that the petitioner succeeded to get VSS due to some arithmetic mistake but on the other refused to rejoin her on duty without deposit of entire amount and that too within the stipulated time frame. It is well established by now that nobod y's case should be prejudiced due to act of the government functionaries. In this regard, reliance can be placed on the case reported as Jawad Mir Muhammadi vs. Haroon Mirza and others (PLD 2007 SC 472 ).
8. A perusal of order , dated 19.06.2008, shows that the pension order of the petitioner was withdrawn mainly for the reason that as her training period could not be counted for towards qualifying service, her mater was not covered under VSS, the said preposition has already been put to rest by the learned Division Bench of Peshawar High Court in the case reported as Pakistan Telecommunications Company Ltd. through President and 5 others vs. Azhar Ali Babar and 2 others (2013 PLC 345 ) by holding that:- "It is settled law that an employee begins his service from the date of assumption of charge of the office to which he has been appointed. Training is and should be part and parcel of the service. The benefit of pre-training service be given to employees and it should be countable for calculating their monthly pension."
9. Now coming to the objection raised by learned counsel for the respondents against the maintainability of this petition, I am of the view that as the petitioner was a transferee employee in the PTCL, her terms and conditions of service were governed under the rules and regulations applicable in her parent department. The said query has been responded to by the Apex Court of the Country in its illuminated judgment reported as Masood Ahmed Bhatti and others vs. Federation of Pakistan through Secretary M/O Information Technology and Telecommunication and others (2012 SCMR 152 ) by inter alia observing as under:- "Learned counsel for PTCL stressed certain provisions of section 36 of the Reorganization Act to contend that the employment rules applicable to the appellants could not be treated as statutory rules. In particular, he adverted to the proviso to Section 36(1) ibid wherein it has been stipulated "that the Federal Government shall guarantee the existing terms and conditions of the service and rights including pensionary benefits" of employees who stood transferred from the Corporation to PTCL. It was submitted on behalf of PTCL that there would be no occasion or necessity for the Federal Government to provide a guarantee as aforesaid, if PTCL stood saddled with the liability of pensionary benefits and the terms and conditions of service of employees transferred to it. From this provision, learned counsel wanted us to infer by implication that PTCL was left free to deal with its employees regardless of any constraints specified in sections 35 and 36 of the Reorganization Act. This contention has no force. There guarantee does not change the nature or status of PTCL as the principal obligant required under law to adhere to the protected terms and conditions of service of transferred employees such as the appellants. The only effect of the guarantee is to ensure that in the event PTCL becomes incapable of fulfilling its obligations as to pensionary or other benefits, for reasons such as bankruptcy etc., the employees do not suffer from such event of default. It is important, at this point, to draw a distinction between employees who stood transferred to PTCL by virtue of section 35 ibid and the Vesting Order, on the one hand and those employees, who joined PTCL after 1-1-1996. The protection under the Federal Government guarantee would not be available to the latter category whose terms and conditions of service would be contractual in nature and would there be non-statutory.
10. According to the present status, neither the petitioner has rejoined nor she is being paid pensionary benefits meaning thereby she has been put in the lurch. As she served the department for a considerable time, she cannot be made to suffer due to any mistake of the departmental authorities while determ ining her eligibility to qualify for VSS. If such an approach is allowed to be followed, perhaps the persons at the helm of affairs in the government institutions would play havoc with the fate of the employees without any legal rhyme or reason.
11. Insofar as the case law cited by the learned counsel for the respondents is concerned, suffice it to note that the same is not applicable to the facts and circumstances of the present case inasmuch as in the case of Shafique Ahmed Khan and others (supra) the Apex Court of the Country held that the rules framed without intervention and approval of the Federal Government cannot be considered as statutory whereas, the Apex Court of the Country has already held that writ petition on behalf of the employees of PTCL who fall within the category of transferred employees is maintainable in respect of their terms and conditions of service. As far as the case of Ahsanullah and 11 others (supra) is concerned, instead of lending any support to the respondents, the same goes against them. Likewise, the other unreported decisions of various courts are distinguishable in view of peculiarity of facts and circumstances.
12. As a necessary corollary to the above discussion, I am of the view that the petitioner 's case was fully covered under VSS and the period served by her in training could not be excluded while determining her eligibility in respect of length of service. Consequently , the instant petition is accepted and order dated 19.06.2008 is set-aside with a direction to the respondent No.2 to ensure the payment of outstanding as well as future pensionary benefits to the petitioner forthwith. There shall be no order as to costs.