MUHAMMAD JUNAID GHAFFAR, J.--- This is a petition filed in terms of Article 187(2) of the Constitution of Islamic Republic of Pakistan, 1973, ("Constitution") The petitioners have primarily sought implementation of the judgment of the Hon'ble Supreme Court dated 02.05.2003 reported as Managing Director Sui Southern Gas Company Limited v. Ghulam Abbas and others (PLD 2003 SC 724), [hereinafter referred to as "Ghulam Abbas" case] whereby, the Civil Petition for Leave to Appeal filed by Sui Southern Gas Company Limited ("SSGCL") against order(s) of Federal Service Tribunal, through which the petitioners were re-instated/absorbed with back benefits has been dismissed and leave has been refused. The petitioners have in fact called in question the in-action on the part of SSGCL, as according to them they have failed to act upon the judgment of the Hon'ble Supreme Court in its letter in spirit, in that they have not given all consequential benefits to the petitioners as granted to various other similarly placed employees.
2. The precise facts as stated are that in the year 1994-96 the petitioners were appointed as "Management Trainees" and were supposed to be made permanent/absorbed subject to certain conditions. They continued in employment of SSGCL for more than two years, but were never made permanent and suddenly in 1997 their services were terminated. Such termination orders were finally challenged before the Federal Service Tribunal and vide judgment(s) dated 21.8.2002 and 26.8.2002 all the petitioners were reinstated in employment from the date of termination with all back benefits. In doing so the learned Federal Service Tribunal relied upon the cases of other employees in respect of which the issue was finally decided at the level of Hon'ble Supreme Court.
SSGCL impugned that order before the Honorable Supreme Court and through judgment in Ghulam Abbas case, the Hon'ble Supreme Court dismissed the petitions for leave to appeal. The petitioners through instant petition have sought implementation of the judgment passed by the Hon'ble Supreme Court in terms of Article 187(2) of the Constitution.
3. Learned Counsel for the petitioners has contended that under Article 187(2) of the Constitution, this Court has ample power to implement the judgment of the Hon'ble Supreme Court as according to the learned counsel, respondents have discriminated with the petitioners as some of the employees have been granted all consequential benefits which includes seniority from the date of termination. He has further submitted that insofar as financial benefits are concerned, the respondents have paid all such benefits and the only dispute which now remains to be satisfied and resolved is the claim of seniority of the petitioners in view of grant of consequential back benefits. In support of his contention he has referred to various orders placed on record and the judgment of the Hon'ble Supreme Court passed in the case of The Managing Director Sui Southern Gas Company Limited v. Saleem Mustafa Shaikh PLD 2001 SC 176 [hereinafter referred to as "Saleem Mustafa" case], Engineer Naraindas v. Federation of Pakistan and others 2002 SCMR 82 [hereinafter referred to as "Naraindas" case] and an order dated 5.4.2010 passed on Criminal Misc.
Application No,509 of 2009 in Criminal Original Petition No,21 of 2009 (Mushtaq A Shaikh and others v. Umair Khan, Managing Director SSGCLL and others) and has prayed for grant of this petition.
4. Conversely Counsel for SSGCL has raised an objection regarding maintainability of instant petition on the ground that there are no statutory rules of respondents; and therefore no petition is maintainable under Article 199 of the Constitution. He has placed on record copy of order dated 26.4.2012 and has contended that the controversy has already been decided by the Hon'ble Supreme Court in a contempt application filed by one of the employees in the same judgment in the case of Ghulam Abbas and such claim of the employee has been dismissed on the ground that consequential back benefits does not include grant of any seniority, and therefore, instant petition being misconceived in fact and law is liable to be dismissed. In support of his submissions he has relied upon the following cases.
1. Saleemullah v. Shahid Hamid and another (2010 PLC (C.S.) 888).
2. Abdul Hameed v. Ministry of Housing and Works, Government of Pakistan, Islamabad through Secretary and others (PLD 2008 Supreme Court 395).
3. Mumtaz Ali Naral v. Chief Secretary, Government of Sindh, Karachi and others (2008 PLC (C.S)
255).
4. Muhammad Zakir Khan v. Government of Sindh .and others (2004 SCMR 497).
5. Government of Pakistan through Establishment Division, Islamabad and 7 others (PLD 2003 Supreme Court 11Q).
6. Pakistan International Airline Corporation and others v. Tanweer-ur-Rehman and others (PLD 2010 Supreme Court 676).
7. Syed Nazir Gilani v. Pakistan Red Crescent Society and another (2014 SCMR 982).
8. Abdul Wahab and others v. HBL and others (2013 SCMR 1382).
9. Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707).
10. P.I.A Corporation v. Syed Sulleman Alam Rizvi and others (2015 SCMR 1545).
11. Muhammad Zaman and others v. Government of Pakistan through' Secretary, Finance Division (Regulation Wing), Islamabad and others (2017 SCMR 571).
12. Muhammad Aslam v. Chairman, Pakistan Engineering Council and 2 others (2017 PLC (C.S.) 715).
13. Aziz-Ur-Rehman Chaudhry v. Pakistan International Airlines Corporation through Chairman/CEO (2017 PLC (C.S.) 745).
5. We have heard all the learned Counsel and perused the record. First we would like to take up the question of maintainability of instant petition. Insofar as the objection regarding Non-statutory rules of SSGCL is concerned it appears to be an admitted position and in fact the learned Counsel for the petitioners has also not seriously disputed the same. The petitioners are also admittedly cannot be termed or called as Civil Servants within the contemplation of the Civil Servants Act, 1973, and therefore, cannot be asked to avail the remedy before the Federal Service Tribunal, though previously it was not the case. After amendment in the Service Tribunal Act, and pronouncement of judgment in the case of Muhammad Mubeen-us Salam and another v.
Federation of Pakistan (PLD 2006 SC 602), an employee whose relation with the employer is not governed by any Statutory Rules, cannot maintain a writ petition in terms of Article 199 of the Constitution, and in such cases, the remedy lies by filing a Civil Suit. To that extent perhaps the law is now almost finally sealed. And if that is so, then as per the dicta laid down by the Hon'ble Supreme Court as recently as in 2013 after a threadbare examination of entire case law on the subject, in the case of Pakistan Defence Officers' Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), a petition under Article 199 of the Constitution is not maintainable against a Corporation which does not have any Statutory rules for governing the relations between an employee and the employer. In our view, to that, there is no cavil as the said question now stands decided finally by the Hon'ble Supreme Court. However, in this matter the petitioners have not come before this Court under Article 199 of the Constitution but under Article 187(2) ibid, which provides that "Any direction, order or decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province". A bare perusal of this Article clearly reflects that an order of the Hon'ble Supreme Court shall be executed in a Province by the High Court as if it has been issued by the High Court of that Province. Now if an order or judgment has been passed by the High Court, the same can be executed through various modes as provided in law and for Constitutional matters, reference may be made to the provisions of Contempt of Court Ordinance, 2003 and so also to Article 204 of the Constitution. In fact instant petition has to be treated as a contempt petition for alleged violation of the orders of the Hon'ble Supreme Court. In such circumstances the question of having any statutory rules or for that matter its maintainability in view of the bar contained in Article 199 of the Constitution and the judgments of the Hon'ble Supreme Court as discussed hereinabove will not be applicable. It is simplicitor a petition under Article 187(2) of the Constitution and (subject to the condition that any such order or judgment has been passed by the Hon'ble Supreme Court of which the implementation is being sought), ordinarily, any objection regarding maintainability of such petition does not seems to be justified having no substance. The Hon'ble Supreme Court has held in a number of cases that for enforcement of a final judgment of that Court, the proper recourse is to invoke Article 187(2) of the Constitution. In the case of Khushi Muhammad v. Inspector General of Police, Punjab, Lahore and 4 others (1999 SCMR 2868) it was held as under: "4. Be that s it may, We are unable to scribe to the pleas raised in paragraph 22 of the application moved before this Court that the petitioner has no other adequate and efficacious remedy available to him except to invoke the jurisdiction of this Court for the redress of his grievance and for the implementation of the order, dated 10.10.1995 (supra). Suffice it to say that a specific provision has been made under Article 187(2), of the Constitution of Islamic Republic of Pakistan, 1973, for enforcement of any direction, order or decree passed by this Court by the concerned High Court. Thus, visualized, the petitioner may approach the High Court, if so advised, for speedy and effective implementation of this Court decision which, as stated above, is the Constitutional obligation of the Government under Article 190. The petition is disposed of with these observations."
Similar view has been expressed in the case of Messrs Mahboob Pictures v. Government of Pakistan through Secretary, Ministry of Culture, Archaeology, Sports and Tourism, Islamabad and another (1997 SCMR 1973), in the following terms: "2. After hearing the learned counsel for the petitioner we are not persuaded that the application for initiating action against the respondents under the law of contempt has been properly filed in this Court. This application is in substance one and for seeking the enforcement of the order which was made by the High Court and with which this Court declined to interfere by refusing to grant leave to appeal to the respondents. Thus, if there has been any violation; it is that of the order of the High Court. Apart from that clause (2) of Article 187 of the Constitution reads as follows: "Any such direction, order of decree shall be enforceable throughout Pakistan and shall, where it is to be executed in a Province, or a territory or an area not forming part of a Province but within the jurisdiction of the High Court of the Province, be executed as if it had been issued by the High Court of that Province." As will be noticed under this clause order of this Court has to be executed as if it has been issued by the High Court of the Province concerned."
In the case of Dr. Sabir Zameer Siddiqi v. Government of Punjab, Lahore (1993 SCMR 2017), it was held as under: "The petitioner seeks implementation of our judgment in C.A. No,673 of 1990 decided on 21.11.1990 (PLD 1991 SC 226) for which provision is made in Article 187(2) of the Constitution. The Cr.M.P. is disposed of with these observations."
6. After having come to the conclusion that instant petition is maintainable in terms of Article 187(2) of the Constitution and in view of the aforesaid pronouncements of the Hon'ble Supreme Court we now come to the merits of the case of the petitioners. The primary objection of the petitioners is to the effect that after dismissal of the CPLA filed by SSGCL, through the case of Ghulam Abbas, the judgment of the Hon'ble Supreme Court was to be implemented. To this there is no cavil that in peculiar facts and circumstances of a case in terms of Article 187(2) of the Constitution, a High Court of a Province can exercise its jurisdiction for implementation of the judgment passed by the Hon'ble Supreme Court, but in this matter the facts do not support the case of the petitioners inasmuch as what the petitioners have done is that first they have approached the Hon'ble Supreme Court by filing Original Criminal Misc. application(s) for initiating contempt proceedings against SSGCL. And after doing so and passing of certain orders by the Hon'ble Supreme Court they have filed this petition in the year 2012, wherein, implementation of the said judgment is being sought in terms of Article 187(2) of the Constitution. Though while arguing the petition the learned Counsel vehemently, disputed such fact that any of the petitioners had approached ,the Hon'ble Supreme Court through a contempt application (whether such approach had any effect on the petitioners case will be dealt with later in this opinion). But the facts so narrated in the memo. of petition by the petitioners itself negates the contention of the learned Counsel representing them.
In Para 16 of the petition it has been stated as follows;
16. That thereafter the petitioners and other aggrieved employees approached the Honourable Supreme Court of Pakistan and filed applications to initiate contempt proceedings against respondents, but again all the applications were disposed of together vide Order dated 05.04.2010 as common questions of facts and law were involved. The operative part is in Para 4 which is reproduced hereunder;-- The above narration of facts by the petitioners reflects that they did approach the Hon'ble Supreme Court through certain contempt applications. Now the question is that as to whether the petitioners could be permitted to invoke both the jurisdictions at the same time. And a very clear answer must be a big "No". Once the petitioners had approached the Hon'ble Supreme Court by filing Original Criminal Misc. Application(s) which fact has not been denied, rather admitted and stated in the memo. of petition, then the appropriate course of action which was left for the petitioners was to pursue such remedy until and unless it was directed in clear and express terms by the Hon'ble Supreme Court to approach the High Court under Article 187(2) of the Constitution. But this is not the case here as the petitioners after having filed the Original Criminal Misc. Applications have abated such remedy on their own and have instead approached this Court by filing instant petition. The learned Counsel for the petitioners was confronted as to how such course of action can be adopted and justified by the petitioners; he could not satisfactorily respond and instead referred to the very provision of Article 187(2) ibid. We are afraid this cannot be permitted in such a manner. The petitioners being so advised firstly opted to file contempt applications before the Hon'ble Supreme Court and then they on their own left such applications pending before the Hon'ble Supreme Court and made an attempt by approaching this Court for implementation of the judgment so passed in their favour. Notwithstanding this, it is a matter of fact and was consistently pleaded by the Counsel for the petitioners that after passing of the judgment by the Service Tribunal when the respondent SSGCL approached the Hon'ble Supreme Court; various other identical appeal(s) and CPLA's which were pending were also clubbed together and were decided by the Hon'ble Supreme Court through one common judgment through the Ghulam Abbas case.
On perusal of the common judgment it appears that the case of the petitioners has been dealt with at Paras Nos,24 to 26 which read as under;
24. As far as question relating to applicability of Rules 6.1, 6.2 and 6.3 of the Executive Service Rules of the petitioner-company on the cases of the respondents-employees is concerned, it has also been decided by this Court in the cases of Saleem Mustafa Sheikh and Dr. Anwar Ali Sahto (ibid), therefore, needs no further discussion.
25. So far as arguments of the learned counsel for Petitioner Company relating to grant of back- benefits to the respondent by the Federal Service Tribunal is concerned, it enjoys vast jurisdiction under section 5 of the Act, 1973 to set aside, vary or modify order appealed against. In this behalf as well the detailed discussion has been made in Para No, 10 (supra) while discussing the question whether Service Tribunal can issue direction to the departmental authority for the absorption of its aggrieved employees, therefore, no separate discussion in this behalf is called for as well.
26. Now adverting towards the observation of this Court i,e, "whether the judgment of this Court in the case of Dr. Anwar Ali Sahto (ibid), relating to qualifying IBA Test by the respondents is applicable on the respondents?" In this behalf it is to be seen that in Dr. Anwar Ali Sahto's case directions were made to the employees to qualify IBA Test in view of the arguments advanced by the parties counsel in the case of Engineer Narain Das (ibid). Surprisingly, in the said case no such directions were issued, therefore, we are of the opinion that the respondents are entitled for the same treatment and deserve absorption as regular employees in petitioner-Company on the same premises as it has been held in the case of Engineer Narain Das and the earlier judgment in the case of Saleem Mustafa Sheikh (ibid) because they all belong to the same category/class as such deserve equal protection of law under the principles of Article 25(1) of the Constitution of Islamic Republic of Pakistan, in view of the judgments in the case of I.A. Sherwani and others v.
Government of Pakistan (1991 SCMR 1041), Government of Balochistan through Additional Chief Secretary v. Azizullah Memon and 16 others (PLD 1993 SC 341), Messrs Ellahi Cotton Mills and others v. Federation of Pakistan through Secretary Ministry of Finance, Islamabad and 6 others (PLD 1997 SC 582), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) and Pakistan Muslim League (Q) and others v. Chief Executive of Islamic Republic of Pakistan and others (PLD 2002 SC 994).
Thus, we are of the opinion that the respondents cannot be directed to qualify IBA Test for permanent absorption in service of petitioner-Company, therefore, petitions are dismissed. No order as to costs.
7. Time and again it was argued that the petitioner's case was at par with the case of other similarly placed employees and therefore SSGCL ought to have given them the same treatment as was given to them. It was further argued that there were certain benefits which were accorded to these employees and were being denied to the petitioners. It may be appreciated that the Hon'ble Supreme Court while refusing leave to appeal against Tribunals judgment has held that the present petitioners are entitled for the same treatment and deserve absorption as regular employees in SSGCL on the same premises as it has been held in the case of Nariandas and Saleem Mustafa Shaikh cases. It is further noted that in Para 24 of the said judgment, the Hon'ble Supreme Court while dealing with the Appeals filed against the present petitioners has made reference to Para 10 of the same judgment which in fact is the case of employee. Ghulam Abbas.
This means that while dismissing the petitions for leave to appeal(s) filed by SSGCL, in favour of the petitioners, reliance was placed on the findings given in the case of Ghulam Abbas at Para 10 of the judgment which reads as under;
10. Adverting to the question whether an employee can be ordered to be absorbed in the service by the Tribunal while deciding an appeal. The expressions used in section 5(1) of the Act namely confirm, set aside or modify the order appealed against are understandable in ordinary sense but expression "vary" needs to be defined to ascertain the powers of Tribunal. As per Shorter Oxford English Dictionary "vary" includes the meaning of to undergo change or alteration, to pass from one condition state etc. to another, to differ in respect of statement to give. Undoubtedly if this definition is accepted there would be no difficulty in concluding that the Service Tribunal had vast jurisdiction to redress the grievance of the person before it. As per dictum laid down in the case of Pakistan Railways through General Manager v. Ghulam Rasool (1997 SCMR 1581). Powers of Service Tribunal under section 5 of the Act are very wide and all questions of laws and facts arising therein are open to be gone into by the Tribunal. The Service Tribunal while, hearing such an appeal has full power to confirm, alter, set aside or" modify the order of Departmental Authority keeping in view the facts and circumstances of the case and to meet the ends of justice.
It may be noted that learned counsel for appellant who also appeared in Dr. Anwar Ali Sahto (ibid) case argued that the Tribunal had no jurisdiction to order reinstatement of the petitioner in service.
The argument was ex facie found misconceived and the same was repelled and while relying upon the judgment of Pakistan Railways through General Manager (ibid) it was held that the Tribunal had very wide powers and all questions of law arising therein can be gone into by the Tribunal and the only limitation on the powers of the Service Tribunal is that it should satisfy the test of reasonableness. In the case of Dr. Anwar Ali Sahto besides relying on the judgment referred to hereinabove, reference to the case of Saleem Mustafa Shaikh (ibid) was also made. It may be noted that in the said case identical argument was raised namely the Tribunal could not direct the appellant-Company to issue letter of absorption of the employees but the argument did not find favour and it was repelled by making observation that Tribunal had given such direction in context of termination order and it has not determined the fitness or otherwise of the employees to be appointed or to hold a particular post and finally it was held that the contention is misconceives and the Tribunal had not exceeded its jurisdiction.
It would be advantageous to note that in Dr. Anwar Ali Sahto's case it has been held that re- instatement and absorption for all intents and purposes are synonymous expressions. Relevant para reads as under: -- "59. After bearing the learned counsel appearing in support of the cases of their respective clients and going through the material available on record with their assistance, we are of the considered view that the impugned judgments are unexceptionable, inasmuch as, the petitioners herein have been reinstated in service, which fact meets the ends of justice and further that the respondent- Company has not challenged their reinstatement before this Court. Notwithstanding the originality and ingenuity of Mr. Wasim Sajjad in his endeavour to create a fine distinction in the words 'reinstatement' and 'absorption' we are of the view that 'reinstatement' and 'absorption' for all intents and purposes, are synonymous expressions, in that, 'reinstatement' in service involves an element of 'absorption', therefore, the expression 'absorbed' used in Abdul Samad (supra) by this Court is to be constructed accordingly and to that extent the case of Abdul Samad (supra) also stands revisited. The findings in this case shall not, however, affect the transactions past and closed."
But we are not persuaded to subscribe to above view because terms 'reinstatement' and 'absorption' are distinct and different from each other, even as per dictionary meanings. As far as reinstatement is concerned it would mean to restore or replace in last position, privileges, etc., whereas absorption means disappearance through incorporation in something else. It is also to be noted that learned counsel for appellant-Company himself admitted that the connotation 'absorption' with reference to instant cases was originally used by the Company itself while issuing a letter to Nisar A. Sangi on 17-4-1998 one of the Trainee ?Engineers, whose service was also terminated at one stage, therefore, the Tribunal while accepting the appeal of Saleem Mustafa Shaikh (ibid) directed the Company to issue the same letter of absorption to him and the decision of the Tribunal was maintained in the petition filed by Managing Director, SSGC. As such since then this expression is being used invariably in all the identical cases.
Similarly, this very connotation was used by this Court in the case of Engr. Naraindas (ibid) wherein on setting aside the appellate order directions were made to respondent to absorb the petitioners in their respective disciplines on the same lines as mentioned in the case of Saleem Mustafa Sheikh etc. Likewise, in the case of Abdul Samad (ibid) identical relief was given to the employees.
Admittedly the respondents on completion of training period were entitled for change over to regular employment of the Company because they have successfully completed their training and such incorporation to regular cadre has become necessary because despite of completing training period of six months they were not being absorbed against regular cadre of the company and their fate was hanging in fire despite the fact that they had also completed the period of probation entirely to the satisfaction of the employer as termination order of service discloses nothing adverse against them. Thus in view of the facts and circumstances of the case the Tribunal had jurisdiction to grant such relief. Assuming for sake of arguments that if no direction for absorption of respondents had been issued by the Tribunal and had only passed an order of reinstatement then the authorities would restore them to the position of Trainee Engineers/Management Trainee after the lapse of more than a period of 7/8 years from the date of their joining the company notwithstanding the fact that under Rules 6.1, 6.2 and 6.3 of Sui Gas Transmission Company Limited Service Rules, 1982 they had completed the period of probation successfully. It is also to be kept in mind that the respondents were appointed as Trainee Engineers/Management Trainee on jobs as per the arguments advanced by Mr. Iftikhar Hussain Gillani learned Senior Advocate Supreme Court. In this context the advertisement made by the company indicates that applications were invited from fresh Graduate Engineers possessing a First Class Bachelor's degree for training/posting at any of the various Company Stations in the Provinces of Sindh and Balochistan which means that they were not recruited as apprentices but Trainee Engineers possessing requisite qualification and after completion of the period of training of six months they were to be posted at any of the company's station in the Provinces of Sindh and Balochistan.
The respondents naturally had an expectation of posting as career Engineers and in Management cadre after the completion of pre?-service training of six months but the appellant-Company for one or the other reason did not absorb them against the regular cadre and kept them running from pillar to post but without any success as ultimately after lapse of 7/8 years when they had become over-age to join any Government Service in Pakistan they were shown door with ulterior motives. For no other reason except that till then their absorption in the regular cadres had become mandatory. Therefore, simplicitor reinstatement of the respondents in service by the Service Tribunal would have not met the ends of justice. As such in exercise of the powers conferred upon the Tribunal and this Court in number of cases directions were made to absorb the employees of appellant-Company into the regular cadres.
Learned counsel for the appellant relying upon the judgments reported in the cases of (i) Mian Abdul Malik v. Dr. Sabir Zamer Siddiqui and 4 others (1991 SCMR 1129), (ii) Z.A. laved Raja v. Secretary, Establishment Division, Islamabad and 3 others (1996 PLC (C.S.) 360) and (iii) Abdul Baqi and others v. Muhammad Akram and others (PLD 2003 SC 143) argued that it is the prerogative of the employer to absorb an employee into service. We afraid the judgments cited by him are not relevant with reference to the discussion on the subject because in these cases question of fitness, eligibility for promotion of the employees has been considered in context of jurisdiction of the Service Tribunal under section 4 of the Act.
From perusal of the aforesaid observations it very clearly reflects that insofar as the present petitioners are concerned, their case was decided merely on the basis of findings given in favour of Ghulam Abbas. This Ghulam Abbas in fact moved contempt application(s) before the Hon'ble Supreme Court time and again and learned Counsel for SSGCL has placed before us copy of an order dated 26.4.2012 passed on Cr.M.A.No,698/2010 in Criminal Original Petition No,21/2009 (against the order dated 5.4.2010 passed in Cr.M.A.614/09 and 5/10 in Cr.O.P.21/2009) wherein the controversy which is now being raised and pleaded vehemently on behalf of the petitioners has been dealt with by the Hon'ble Supreme Court on merits. For the sake of repetition we may once again state that such application was filed by Ghulam Abbas, one of the parties to the judgment of which the implementation is being sought through instant petition. In fact Ghulam Abbas in his contempt application had urged the same grounds as are now being pressed upon by the petitioners and the said ground was that grant of back benefits also included all consequential back benefits which also included the seniority inter-se from the date of reinstatement / absorption. This is in fact the case of the petitioners precisely in this petition as admittedly all other monetary benefits have been paid to them. It would be advantageous to refer to the contention of the applicant Ghulam Abbas before the Hon'ble Supreme Court as well as the reply of SSGCL and the findings of the Court in the aforesaid order which reads as under; "4. Not satisfied with the report submitted by the respondent Company, the applicants alleged that they had been awarded "all consequential back benefits" by the Court which according to them included their periodic promotions and inter se seniority that they would have attained had they been in service with effect from the date when they were dismissed from service or at least with effect from the date when they were directed to be reinstated on 5.4.2002. Pursuant to the order of this Court passed in these contempt proceedings, the Respondent Company through Criminal Misc. Application No,136/2010 has submitted another detailed report spelling out the effect of their notional promotion / seniority if the afore-referred prayer is granted. It has however inter alia been argued by the respondents learned counsel that the applicants cannot be granted promotion with effect from the date of their reinstatement as that would be violative of the mandatory Service Rules laying down a threshold of eligibility criterion which is three folds i,e, (i) continuous service of 03 years; (ii) the employee must obtain at least 60% performance marks which are call PMS marks; and (iii) availability of vacancy.
5. Learned Counsel for the applicants Mr. Hamid Khan submitted that the applicants' services were dispensed with without any justifiable reason in the year 2000; that they were not reinstated despite the judgment of the learned Service Tribunal dated 5.4.2002 and of this Court dated 2.5.2003; that the applicants taking conciliatory stand accepted their absorption with effect from 5.4.2002 in deference to the institutional considerations but they could not be deprived of all the full benefits of the expression "all consequential back benefits".
6. Having heard learned counsel for the parties at some length and having considered the submissions made, we find that a perusal of the judgment of the learned Service Tribunal dated 5.4.2002 would indicate that the applicants never claimed promotion or seniority from the back date; that even before this Court, the afore-referred aspect was neither agitated by the applicants nor adverted to by this Court. It is not disputed that so far as the salary aspect and other financial benefits relatable to "consequential benefits" are concerned, the judgment of this Court stand fully complied with. However, their belated claim for retrospective promotion, inter se seniority and consequential benefits pursuant thereto would not be tenable, first because this aspect was never agitated earlier on either before the Service Tribunal and secondly this Court would not like to widen the scope of back benefits so as to violate the mandatory provisions of the relevant rules to which reference has been made by the respondent's learned counsel and thirdly, they cannot claim a relief beyond the said judgment through this contempt application. Besides, such an exercise is likely to affect several in-service employees. Even otherwise the question of contempt is a matter between the Court and the alleged contemnor. In the facts and circumstances of the case and for the reason alluded to above, we are not minded to proceed any further in these proceedings. The application having no merit is accordingly dismissed."
8. We are of the considered view that after passing of the aforesaid order there is nothing left for the petitioners to agitate before this Court under Article 187(2) of the Constitution. The learned Counsel for the petitioners while confronted with the aforesaid order tried to make an attempt by arguing that the said order was not passed in the case of any of the present petitioners. This argument per-se is misconceived and so also contradictory. On the one hand all along the petitioners have argued and agitated before the Service Tribunal, the Hon'ble Supreme Court and so also before this Court that they were entitled for a similar treatment as was accorded to the other similarly placed employees. The entire edifice of their case was built on this argument alone and interestingly the Hon'ble Supreme Court while refusing leave to appeal of SSGCL has categorically held that since earlier various order have already been passed by the Hon'ble Supreme Court in respect of similarly placed persons/employees (Nariandas and Saleem Mustafa Shaikh cases); therefore the present petitioners were also entitled to the same treatment and for the sake of repetition we may refer to Para No, 26 of the said judgment. Now on the one hand the petitioners have built upon their case on the basis of certain treatment it meted out to a similarly placed employee and on the other hand they intend to seek shelter on the ground that the order dated 26.4.2012 passed by the Hon'ble Supreme Court does not apply to them as it was not passed in their case but is in respect of some other employee. We do not see any reason to entertain such line of argument. The Hon'ble Supreme Court in its order dated 26.4.2012 has dealt with the entire case of the petitioners on merits; though it is in respect of some other employee; but in our view, once an order has been passed by the Hon'ble Supreme Court in respect of the same proceedings, (though may be in other employees case), the same ratio as held and decided by the Hon Supreme Court would also apply on the case of petitioners. The petitioners are only seeking implementation of the judgment passed by the Hon Supreme Court in their case and once the Hon'ble Supreme Court comes to a conclusion that back benefits will not 'ipso facto include inter- se seniority from the date of granting back benefits or reinstatement for that matter, then this Court under its limited jurisdiction in terms of Article 187(2) of the Constitution would not go into interpreting the judgment of the Hon'ble Supreme Court in any contrary manner to what the Hon'ble Supreme Court has already interpreted on a contempt application. We are by ourselves surprised to note the conduct of the petitioners. This has done nothing but burdened the Court as the present petition is not filed with clean hands and even if it was not so, it ought to have been withdrawn. Firstly, they themselves approached the Hon'ble Supreme Court as stated in the memo. of petition by filing their own contempt applications and at least secondly, when the aforesaid order dated 26.4.2012 was passed by the Hon'ble Supreme Court on a contempt application of another employee as the case of the petitioner stood decided by the Hon'ble Supreme Court on merits. There was nothing left for the petitioners to agitate before this Court since 2012.
9. Notwithstanding the aforesaid discussion, the question of interpreting "back benefits" and "all consequential back benefits" already stands decided by the Hon'ble Supreme Court and it has been held in the case of National Bank of Pakistan v. Muhammad Akram Khan and 2 others (1996 SCMR 153), that grant of back benefits will not necessarily mean grant of inter se seniority as it always has its own parameters. It was held as under: "From a bare reading of the relief claimed by the applicant and that granted by the learned Judge in Chamber, it becomes abundantly clear that the "Writ was accepted with consequential benefits" and "the order dated 30.12.1986 imposing penalty was declared to have been passed without any lawful authority and of no legal effect and was set aside". Now according to the applicant 'consequential benefits' granted to him covered "all consequential and back benefits". The ratio deducible from the judgment of the High Court clearly is that "writ petition was accepted with "consequential benefits" only and not "all consequential and back benefits". His relief part "including his seniority and promotion and that the seniority of the petitioner be restored vis-a-vis Respondents Nos,4 to 26...." Was not granted nor it could be so granted after deletion of respondents Nos,4 to 26. This conclusion is reinforced by the fact that fixation of seniority and grant of promotion squarely falls within the discretion of the competent Authority after taking into consideration a number of factors including the rights of others who would also be affected. In the instant case, rights of respondents Nos,4 to 26 were being affected whose names were deleted from the array of the respondents. By getting deletion of their names the applicant had himself been guilty of foregoing the relief of seniority and promotion. He would, therefore, be stopped to claim the promotion to the posts and the date from which he was entitled thereto particularly after his promotion as Executive Vice-President had been ante-dated from 1.1.1988 to 1.1.1982 under the order of the Prime Minister. He has since been promoted to the rank of Senior Executive Vice- President w,e,f, 1.1.1993. The stand of the appellant-bank that matter of selection and appointment as Member, Board of Directors is in the exclusive discretion of the competent Authorities is sustained."
10. In view of hereinabove facts and circumstances of the case we are of the view that the petitioners have failed to make out any case for exercise of the discretion so limitedly vested in this Court under Article 187(2) ibid, whereas, the petitioners have unnecessarily filed instant petition and have also pursued the same before the Hon'ble Supreme Court simultaneously. Therefore by means of a short order on 30.8.2017 we have dismissed instant petition by imposing coast of Rs,1000/- on each petition and these are the reasons thereof.