MUHAMMAD SAJID MEHMOOD SETHI, J. --- This consolidated judgment shall dispose of instant writ petition alongwith following connected writ petitions on the objection of maintainability of these petitions, raised by learned counsel for respondent-Bank:---
(1) W.P. No, 12802 of 2006 titled Muhammad Zamir Hassan Farooqi v. The State Bank of Pakistan through its Governor & another
(2) W.P. No, 11741 of 2009 titled Jamshed Ali Khan v. The Governor, State Bank of Pakistan/Chairman, Board of Directors & others
(3) W.P. No, 18754 of 2010 titled Nisar-ul-Haq & others v. The State Bank of Pakistan & another
(4) W.P. No, 12148 of .2011 titled Jamshed Ali Khan & others v. The Managing Director, State Bank of Pakistan & another
(5) W.P. No, 25908 of 2012 titled State Bank of Pakistan Retired Employees Welfare Association (Regd.), Lahore through its General Secretary v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad & others
(6) W.P. No, 31668 of 2012 titled Muhammad lftikhar & others v. State Bank of Pakistan through Govemor/Chairman & others
(7) W.P. No, 1744 of 2014 titled 'Mst. Mumtaz Begum & others v. Government of Pakistan through Secretary, Finance Division (Regulation Wing), Islamabad & others
(8) W.P. No, 16814 of 2009 titled Muhammad Sulaman & another v. The Managing Director, State Bank of Pakistan & another
(9) W.P. No, 16815.of 2009 titled Bashir Ahmad Chauhan & another v. The, Managing Director, State Bank of Pakistan & another.
(10) W.P. No, 9846 of 2014/titled Akhtar Hassan Agha v. The Managing Director, State Bank of Pak an & another.
(11) W.P No, 9847 of 2010 titled Akhtar Hassan Agha v. The Managing Director, State Bank of Pakistan & another
(12) W.P. No, 18754 of 2010 titled Nisar-ul-Haq & others v. Th Managing Director, State Bank of Pakistan & a Other
(13) W.P. No, 20798 of 2010 titled Nisar-ul-Haq & others v. The Managing Director, State Bank of Pakistan & another
(14) W.P. No, 20902 of 2010 titled Muhammad Yaqoob & others v. The Managing Director, State Bank of Pakistan & another
(15) W.P. No, 22516 of 2010 titled Naseem-ud-Din & others v. The Governor, State Bank of Pakistan & others
(16) W.P. No, 26641 of 2010 titled Salman Junaid Khan v. The Managing Director, State Bank of Pakistan & another
(17) W.P. No, 3913 of 2011 titled Salman Junaid Khan v. The Managing Director. State Bank of Pakistan & another
(18) W.P. No, 7037 of 2011 titled Mst. Najam-usSahar v. The Managing Director, State Bank of Pakistan & another
(19) W.P. No, 10417 of 2012 titled Muhammad Sher v. The Governor/Chairman, Board of Directors, State Bank of Pakistan & others.
(20) W.P. No, 10444 of 2012 titled Muhammad Sher v. The Governor/Chairman, Board of Directors, State Bank of Pakistan & others.
(21) W.P. No, 23748 of 2012 titled Salman Junaid Khan & others v. State Bank of Pakistan through Governor/Chairman & others
(22) W.P. No, 8702 of 2013 titled Abdul Rehman & others v. State Bank of Pakistan through its Governor/Chairman, Board of Directors & others.
(23) W.P. No, 9495 of 2013 titled Amin-ud-Din v. State Bank of Pakistan through its Governor/ Chairman & others
(24) W.P. No, 15406 of 2013 titled Muhammad Ali v. State Bank of Pakistan through its Governor/Chairman, Board of Directors & others.
(25) W.P. No, 24611 of 2010 titled Syed Muhammad Yousaf Kirmani & others v. The Governor, State Bank of Pakistan/Chairman, Board of Directors, SBP, BSC (Bank) & others
(26) W.P. No, 26707 of 2010 titled Muhammad Zahid & others v. The Government State Bank of Pakistan/Administrator, State Bank of Pakistan Employees Benevolent Fund Scheme & others
2. These petitions have been filed by retired employees of the State Bank of Pakistan ("SBP") and involve different categories of grievances relating to, inter alia, challenge to the vires of different Regulations of SBP, non-implementation of different letters/circulars/Golden Hand Shake Scheme ("GHSS"), issued by SBP, non-payment of various pensionary benefits, salaries; annual increases, encashment, inclusion of period of service on daily wages towards calculation of pension, severance benefits etc.
3. Learned counsel for respondent-Bank raise preliminary objection as to maintainability of the writ petitions, on the ground that Rules and Regulations, pensionary benefits, being claimed on the basis whereof, are non-statutory as held by the "Superior Courts. In support of his contentions, they have placed reliance upon The Principal, Cadet College, Kohat and another v. Muhammad .Shoab Qureshi (PLD 1984 Supreme Court 170), Khiali Khan v. Haji Nazir and 4 others (PLD 1997 Supreme Court 304), Zia Ghafoor Piracha v. Chairman, Board of Intermediate and Secondary Education, Rawalpindi and others. (2004 SCMR 35), State Bank of Pakistan through Board SBP and others-v.
Agha Muhammad Auranszeb Khan (2006 SCMR 1962); Chief Manager, State Bank of Pakistan, Lahore and another v. Muhammad Shafi [2010 PLC (C.S.) 1088], Akram-ul-Haq Alvi v. Joint Secretary (R-ll), Government of Pakistan, Finance Division, Islamabad and others (2012 SCMR 106), State Bank of Pakistan through Governor and another v. lmtiaz Ali Khan and others (2012 SCMR 280), Syed Nazir Gillani v. Pakistan Red Crescent Society and another (2014 SCMR 982), PIA Corporation v. Syed Suleman-Alam Rizvi and others (2015 SCMR 1545), Muhammad Zaman and others v, Government-of Pakistan through Secretary Finance Division (Regulation Wink, Islamabad and others (2017 SCMR 571), judgment dated:: 23.10.2017 delivered by Hon'ble Supreme Court in Civil Appeals No 509 and 510 of 2017 titled Governor, State Bank of Pakistan, Karachi, etc. v. Shams-ul- Islam and Badar Munir v. Federation of Pakistan, through Secretary Finance Ministry of Finance and 2 others [2015 PLC (C.S.) 15281].
4. In response, learned counsel for petitioner opens his arguments with the submission that all prevailing pension schemes are statutory and approved by Federal Government and no new scheme has been introduced by Board of Directors of the SBP. He adds that Benevolent Fund Regulations, Leave Rules and Post-retirement Medical Facilities are also statutory in nature. He further submits that employees of SBP are treated like government employees for the purpose of suing and to be sued under Section 46(1) of State Bank of Pakistan Act, 1956 ("the SBP Act, 1956"). He argues that under sub-sections (1) & (3) of Section 46 of the SBP Act, employees of SBP have been given the status of public--officers/servants, He next argues that after amendment in Foreign Exchange Regulation Act, some adjudication powers have been entrusted to officers of SBP, giving them powers of District & Sessions Judge. He argues that Hon'ble Supreme Court. has laid down that Federal Government must have controlling affairs and main functions of a body/institution in order to ascertain maintainability of writ petition. He adds that Federal Government has 100% shares and dominance in the affairs of SBP. He further submits that SBP is a person within the meaning of Article 199(1)(a)(ii) and 199(5) of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution"). He maintains that relationship of 'Master & Servant' does not exist between SBP and its employees. He contend that employees of SBP have no alternate remedy except to approach this Court, after the decision of Hon'ble apex Court in Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (PLD 2006 Supreme Court 602). He next submits that valuable fundamental rights of petitioners are being violated, so, this Court has ample jurisdiction in the matter. He goes on to submit that, earlier many writ petitions filed by employees of SBP have been admitted for hearing by this Court and decisions rendered by this Court, as well as Hon'ble Supreme Court, on the disputes of Benevolent Fund.
Grant, retirement benefits etc. have been implemented by SBP in letter and spirit, so, on the rule of consistency, these petitions are also maintainable. In support of his contentions, learned counsel has relied upon Khyber Zaman and others v. Governor, State Bank of Pakistan, Karachi and others (2005 SCMR 235), State Bank of Pakistan and others v. Mst. Mumtaz Sultana and others (2010 SCMR 421), Executive Council, Allama lqbal Open. University, Islamabad through Chairman and another v.
M. Tufail. Hashmi (2010 SCMR .1484), Pakistan International Airline Corporation and others v.
Tanweer-ur-Rehman and others (PLD 2010 Supreme Court 676), Chief Manager, State Bank of Pakistan and 2 others v. Ghulam Rasool and others (2011 SCMR 313), Pakistan Defence Officers'
Housing Authority and others v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707), Muhammad Dawood and others v. Federation of Pakistan and others [2007 PLC (C.S.) 10461, judgment dated 25.09.2017 delivered by Hon'ble Supreme Court in Civil Appeal No, 353 of 2015 titled Bahadur Khan and others v. Federation of Pakistan through Secy. Wo Finance, Islamabad and others, and Jawaid Ghafoor v.
Pakistan Civil Aviation Authority and another [2010 PLC (C.S) 276].
5. Arguments heard. Available record perused.
6. Undeniably, the issue qua maintainability of writ petitions filed against respondent-Bank by its employees, has already been settled by Hon'ble apex Court in the case of Muhammad Zaman supra, wherein it has been held that Rules/Regulations/Circulars/scheme framed by Central Board of SPB are non-statutory and jurisdiction of this Court under Article 199 of the Constitution cannot be invoked. The relevant observations are as under:-- "7. According to the judgment delivered in Civil Appeal No, 654/2010, etc. titled Shafique Ahmed Khan, etc. v. NESCOM through its Chairman, Islamabad, etc., the test of whether rules/regulations are statutory or otherwise is not solely whether their framing requires the approval of the Federal Government or not, rather it is nature and efficacy of such rules/regulations. It has to be seen whether the rules/regulations in question deal with instructions for internal controller management, or they are broader than and are complementary to the parent statute in matters of crucial importance. The former are non-statutory whereas the latter are statutory. In the case before us, the Regulations were made pursuant to Section 54(1) of the Act and Section 54(2) thereof goes on to provide the particular matters for which the Board can frame regulations [while saving the generality of the power under Section 54(1) of the Act]. Out of all the matters listed in Section 54(2) of the Act, clause (j) is the most relevant which pertain to the "recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers 'and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans and advances, their betterment and uplift". A perusal of the Regulations suggests that they relate to pension and gratuity matters of the employees of SBP and therefore it can be said that the ambit of such Regulations is not broader but narrower than the parent statute, i,e, the Act. Thus the conclusion of the above discussion is that the Regulations are basically instructions for the internal control or management of SBP and are therefore non-statutory. Hence the appellants could not invoke the Constitutional jurisdiction of learned High Court which was.correct in dismissing their writ petition.
8. Since it has been held above that the Regulations are non-statutory, therefore we do not find it necessary to dilate upon the point of laches."
7. It has further been observed in the said judgment that SBP is a body corporate having perpetual succession and a common seal and the ability to sue or be sued. The Board has been entrusted with the general superintendence and direction of the affairs and business of SBP and its functions and responsibilities have been provided in detail in Section 9A of the Act. The Board of Directors ("the Board") consists of the Governor (Chairman of the Board), Secretary, Finance Division, Government of Pakistan and eight directors (including at least one from each Province), who shall be eminent professionals from the fields of economics, finance, banking and accountancy (Section 9 of the Act). There are also Monetary and Fiscal Policies Coordination Board for the coordination of fiscal, monetary and exchange-rate policies (Section 9B of the Act) and Monetary Policy Committee (Sections 9D and 9E of the Act). SBP has also been given the power to frame regulations. In this regard, Section 54 of the Act is relevant which reads as follows:--- "54. Powers of the Central Board to make regulations. (1) The Central Board may make regulations consistent with this Act to provide for all matters for which provision is necessary or convenient for the purpose of giving effect to the provisions of this Act: Provided that the terms and conditions of service of Governor and Deputy Governor shall be determined by the Federal Government.
(2) In particular and without prejudice to the generality of the foregoing provision, such regulations may provide for all or any of the following matters, namely:---
(j) recruitment of officers and servants of the Bank including the terms and conditions of their service, constitution of superannuation, beneficial and other funds, with or without bank's contribution, for the officers and servants of the Bank; their welfare; providing amenities, medical facilities, grant of loans, and advances, their betterment and uplift;
(3) ...................
8. There has been consistent view of Hon'ble apex Court in a series of judgments that Rules and Regulations framed by Central Board of SBP are non-statutory. Some of the leading cases are as under:--- In the case of Muhammad Shafi supra, the Hon'ble Supreme Court has held as under:-- "8. The omission of the aforesaid words subject to approval from Section 54 is meaningful. Rules framed by the Central Board of Directors which does not require approval of the Government, therefore aforesaid regulations may be termed as internal instructions or domestic rules/regulations having no status of statutory rules/regulations as law laid down by this Court in various pronouncements which are as follows:---
(i) Cadet College Kohat's case PLD 1984 SC 170
(ii) Zia Ghafoor Paracha's case 2004 SCMR 35."
In State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others (2012 SCMR 280), it has been ruled by august Supreme Court that Rules and Regulations framed by the Central Board of SBP, after the amendment in Section 54, would no longer be statutory and internal instructions of domestic Rules, Regulations, would have no status of statutory Rules/Regulations.
In Civil Appeals No, 203-K to 206-K & 319 of 2011 titled Waseem Ahmed v. Federation of Pakistan etc., the Hon'ble apex Court declared the State Bank of Pakistan Staff Regulations. 1999 as non-statutory and dismissed the appeals.
In Syed Nazir Gilani v. Pakistan Red Crescent Society and another (2014 SCMR 982), Hon'ble Supreme Court ruled as under:-- "4. Having heard learned counsel for the petitioner at some length, we find that it has now been well-settled that the Rules framed by the Pakistan Red Crescent Society are non-statutory and on that count the writ petition was not maintainable. This Court has dilated on this aspect at length in Pakistan Defence Officer's Housing Authority. v. Lt. Col. Syed Jawaid Ahmed (2013 SCMR 1707) wherein in para 50(ii) it has specifically been held as follows:--- "Where conditions of service of employees of a statutory body are not regulated by Rules/Regulations, framed under the Statute but only Rules or Instructions issued for its internal use, any violation thereof cannot normally be enforced through writ jurisdiction and they would be governed by the principle of 'Master and Servant'."
9. The Hon'ble apex Court, in C.P. Nos, 505 to 556 of 2003, vide judgment dated 10.06.2004, held that the employees who opted for GHSS would be governed by the terms and conditions as enumerated therein. The existing rules concerning Benevolent Fund Grant ("BFG") have been substituted with lump sum grant equivalent to ten years of BFG for all those employees, who had opted.for GHSS. The relevant observations are reproduced as under:-- "5. A bare perusal reveals that there can be no other payment after "final Payment" and BFG equivalent to ten years payment whereof was to be made in lump sum. The said portion of the scheme from whatever angle it may be examined cannot be stretched too far to include payment of BFG on monthly basis for ten years or till the age of seventy years. It is not understandable, how any deletion, amendment, addition or insertion can be made by us in GHSS specially when it is free from any ambiguity and does not call for scholarly interpretation. In fact, the lump sum BFG was in lieu of monthly BFG for fifteen years which was to be paid under the normal/existing rules. We are afraid that both the benefits under GHSS as well as existing rules cannot be obtained. In fact the respondents had "impliedly" surrendered their "claim" to receive BFG on monthly basis for fifteen years or upto the age of seventy years "in lieu of lump sum payment" equivalent to BFG. It is to be noted that every employee de aware to remove any doubt or ambiguity by means of a computer print indicating "the different and approximate benefits the said employee was to receive if he/she opted for this scheme. In other words, before any employee opted for this Scheme, it was absolutely clear to all employees about what benefits were part of this 'Voluntary Golden Handshake Scheme'. A bare reading of this computer print clearly, shows that this lump sum Benevolent Fund Grant was a final payment of his/her entitlement of the Benevolent Fund Grant and as a consequence, each employee opting for this scheme gave up his/her claim to receive a monthly Benevolent Grant. It is also important to note here that the afore-mentioned computer- print does not at all mention the employee as being entitled to receive the monthly Benevolent Grant either as a normal or additional retirement benefit."
In a recent judgment delivered in the case of Shamsul-Islam's case supra, Hon'ble Supreme Court has held that those who opted for golden handshake are covered and controlled under the terms and conditions as spelt out in the scheme itself. No case of discrimination, is made out. Relevant observations are reproduced hereunder:--- "9. The respondent sought to claim a component of his salary, that is, the special pay, which he was receiving prior to the issuance of the Circular. The Circular granted him considerably more than what he was receiving previously or would have received upon the acceptance of his option to avail the golden handshake pursuant to the Scheme. In the case of State Bank of Pakistan v. lmtiaz Ali Khan (above) this Court held:--- "23. Since the respondent-employees could not point out that fraud was committed to them or they were deceived by the Bank, nor there is any material to infer that any duress or coercion was used against them rather they were allowed four weeks' time alongwith printout of the approximate emoluments they would be receiving on exercise of option and because the Scheme itself states that the option once exercised will not be revocable under any circumstance, the respondent-employees cannot claim nor they can be entitled to be benefit of pension."
What the employees of SBP who had availed of the golden handshake under the Scheme, were entitled to and matters of their pension was also attended to in the same judgment: "28. Since the respondent-employees have not retired from service of the appellant-Bank by application of the Regulations, 1980 nor under the Staff Regulations, 1993 but they have left the service of the appellant-Bank at their own by exercising their own right of option by accepting the Scheme, therefore, their cases are squarely governed and controlled under the terms and conditions as was clearly spelt out in the Scheme itself. As no reference can be made as to how and against whom the respondents were differently treated in a discriminatory manner, we have failed to understand as to how there was any violation of Article 25 of the Constitution."
It is now well-settled that where the nature of the Rules/Regulations governing terms and conditions of service of an employee, formed by Central Board, of SBP, are non-statutory, Constitutional petition against an order of the authority is barred.
10. So far as reference to judgments relied upon by learned counsel for petitioner including the case of Bahadur Khan's supra, to contend that these petitions are maintainable is concerned, suffice it to say that it has been held in the said judgment that Rules and Regulations of Central Board of NBP are statutory in nature and it has nowhere been held that SBP Regulations are statutory in nature. The operative part of the observations reads as under:-- "11. A careful reading of the provisions reproduced above would reveal that the Board with the dissolution of the Pakistan Banking Council became more autonomous and independent in managing the Bank and determining the terms and conditions of services of the officers and executives of the bank. It, in exercise of such powers, introduced circular No, 3799, dated 16.6.1999 revising the pay structure bringing, substantial increase in the salaries of the officers and executives, of the bank. It, however, has not been given a power by any of the provisions in general and Section 11 of the Act in particular to rescind, replace or repeal a statutory dispensation, already in force. In the case of Muhammad Tariq Badar and another v. National Bank of Pakistan and others (2013 SCMR 314) this Court while dealing with a similar controversy held as under:-- "It is an admitted position that 1980 Rules have not been framed as per the mandate of law ibid, inasmuch as these rules are neither made by the Federal Government nor published in the official Gazette. There is also no cavil quibble that the said rules have not been composed enforced with the prior approval of the Government or any subsequent benediction was conferred to those by the Government. Rather (admittedly) the rules have been formulated by the Board of the respondent-bank constituted under Section 11 of the Act, 1974 which stipulate the general power of the Board pertaining to policy making and the administration and management of the nationalized banks. Sub-section (4) thereof specially provides "The general direction and superintendence of the affairs and business of a bank and overall policy making in respect of its operations, shall vest in its Board." Furthermore, as per sub-section (5) of the Act, 1974; the Board shall determine "personal policies of the bank, including appointment, and removal of officers and employees and in accordance with sub-section (10) "All selections, promotion and transfer of employees of banks except the President and decisions as to their remuneration and benefits shall be made by the President in accordance with the evaluation criteria and personnel polices determined by the Board". From the above it is unequivocally clear that the 1980 Rules have been framed by the Board of the bank pursuant to its authority in the nature of management/superintendence of the affairs of the bank and/or the policy making power; however for all intents, and purposes, it is so -done in the exercise of an executive authority under the statute, but having even no remote or possible or permissible connection and nexus to any statutory jurisdiction, these rules thus can at best be termed, understood, comprehended and construed merely as the guidelines or the domestic instructions of the N.B.P., for the purposes of highlighting, elucidating or beneficially revamping the service structure of bank's employees for their advantage, provided the same do not in any manner contravene the 1973 Rules, but nothing more than that can be imputed to those; and in any case the rules do not enjoy the status of a statutory instrument."
11. Likewise, other case-law cited by learned counsel for petitioner does not suggest that Rules and Regulations framed by Central Board of SPB are statutory in nature. The same, being on' distinguishable circumstances, are not attracted to resolve the proposition in hand.
12. Needless to observe here that decision of Hon'ble Supreme Court on a question of law would have binding effect in terms of Article 189 of the Constitution. Where Hon'ble Supreme Court deliberately and with the intention of settling the law, pronounces upon a question, such pronouncement is the law declared by Hon'ble apex Court within the meaning of Article 189 of the Constitution, and is binding on all Courts in Pakistan. Any finding or interpretation in the context of a particular law is not to be applied to the cases in which circumstances are not identical and the provisions of law are different. Principle of law enunciated by Hon'ble Supreme Court in the case of Bahadur Khan's supra, is regarding NBP Regulations and it has been decided in the context of NBP law, Rules and Regulations.
13. In view of the above discussion, instant petition and all connected petitions are dismissed being not maintainable, as the same relate to grievances of petitioners concerning Regulations/Rules/Circulars/Scheme, etc., framed by Central Board of SBP, which are non- statutory.
No order as to costs.