SHAKEEL AHMAD, J. Knocking the doors of this Court in the first instance, under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has challenged the legal defensibility and tenability of the act of the respondents refusing to pay pension and all other benefits attached to his regular service in Telegraph & Telephone Department till the date on which his resignation had become effective.
02. Before coming to the factual narrative of a long-drawn event that has taken place in the instant petition, we would like to state, in capsiculated manner, the circumstances, under which the matter has been landed up in this Court. The petitioner joined service of Telegraph and Telephone (T&T)
Department, Government of Pakistan, initially, as Professional Engineer (Assistant Divisional Engineer BPS-17) on 09.05.1988. He was promoted as Divisional Engineer in BPS-18 in 1992. He possesses additional qualifications of MS in Telecommunication Engineering, MBA, and LL.B degrees having foreign and local professional training. He was given the charge in his own pay scale (OPS) in BPS-18 in the year 2004. It was averred that in the year 2007, respondent No.3, categorized all its existing regular employees to determine the suitability for retention or otherwise, preparatory to a Voluntary Separation Scheme (VSS) under different categories such as "Key Talent" (3%), other needed employees (32%), surplus not needed (22%) and redundant (21%) etc, as is evident from office memorandum dated 11.05.2007. The Key Talents were those who were considered indispensable to PTCL, business objectives and may be groomed to become high-level executives in future. The petitioner was found important and indispensable for PTCL, thus was declared to be a Key Talent. Thereafter, respondent No.3 offered the petitioner an appointment as Senior Manager, carrying the same assignment as that of the previous post held by him, with lucrative pay package (almost three times higher) on fresh terms & conditions (NTC), but, he was required to resign from regular service. Being placed in Key Talent category and attractive job facilities and the offer of one step promotion and huge pay package, the petitioner conditionally tendered his resignation from his regular service and signed NTC in 2007. Respondent No.3, on 15th November 2007 announced Voluntary Separation Scheme (VSS) with the following package including pensionary benefits to employees with 20 years of service or more: a. Severance pay upto 90 basic pays. b. Separation bonus between Rs.300,000/- to Rs.450,000/-. c. Medical payment = Basic Pay x 1.5 x 10, Leave encashment and housing allowance.
03. It was pleaded in the petition that Voluntary Separation Scheme VSS was not offered to the petitioner on the ground that he has been given Key Talent post with promotion. In February 2008, the petitioner was given the charge of General Manager, RTR in his own pay scale, and later on, in April 2009, he was promoted as General Manager VAS Management, after following all legal and codal formalities. The petitioner has rendered unblemished service for 20 years and earned appreciation on many occasions from the department. On 11th February, the respondents terminated the service of the petitioner illegally, unlawfully and without disclosing any reason under Clause 12 of the NTC of PTCL Services Rules, 1996. Being aggrieved by the termination order, he filed constitutional petition No.938-P/2010 before this Court, however, it could not be decided due to one or other reason. Many colleagues of the petitioner, feeling aggrieved from the termination order, filed constitutional petition No.1901/2009 before the Hon'ble Islamabad High Court, which was partially allowed on 13th May 2014, and the writ petitioners were held entitled to benefits under Voluntary Separation Scheme dated 15.11.2007 with cut off date of their resignation.
Feeling aggrieved to the extent of disallowing other relief, the writ petitioners filed Intra-Court Appeal (ICA) No.364/2014, the Department also filed Intra-Court Appeal (ICA) No.323/2014, vide consolidated judgment dated 09.02.2017, the appeal filed by the Department succeeded, consequently, the judgment dated 13.05.2014, passed in constitutional petition No.1901/2009 was laid to rest and while that of the writ petitioners was dismissed. Dissatisfied with the same, the writ petitioners filed a petition for leave to appeal before the Hon'ble Supreme Court of Pakistan. Vide judgment dated 07.11.2017 reported in 2018 SCMR 162, the Hon'ble Supreme Court maintained the judgment rendered in ICA No.323/2014. It was further averred that during arguments in constitutional petition No.938/2010, on 18.10.2018, before this Court, the learned counsel representing the respondents pointed out that the constitutional petition No.1901/2009 involving identical questions of law and facts allowed by the Hon'ble Islamabad High Court has been set aside in ICA No.323/2014, and prayed for dismissal of the writ petition, however, the Court was pleased to direct the petitioner to amend his prayer part of the writ petition, consequently, this amended writ petition has been filed.
4. Pursuant to the order of this Court, respondent No.3 to 6 have filed their written statement, raising therein many legal and factual objections.
5. The following submissions were made by the learned counsel for the petitioner:
(i) That petitioner was employee of Telegraph & Telephone Department (T&T Department), he was transferred to Pakistan Telecommunication Company Limited.
(ii) That Company gave the offer to the petitioner, the option to tender his resignation as transferred employee and opt for a Key Talent Package, which was much higher lucrative in terms of salaries and benefits as compared to his previous service.
(iii) That petitioner tendered his resignation and executed a fresh contract under the Key Talent Package accepting the fresh terms & conditions of his service.
(iv) That the terms & conditions of the previous service of the petitioner were protected under section 9 (2) of the Pakistan Telecommunication (Reorganization) Act, 1996.
(v) That the petitioner is entitled to pensionary and other benefits attached to his service till the date of his resignation/pre-mature retirement as held by the Hon'ble Supreme Court of Pakistan in 2018 SCMR 163. In support of his contention, he read out para No.6 of the said judgment.
06. The aforesaid submissions of the learned counsel made on behalf of the petitioner have been rebutted by the learned counsel appearing on behalf of the respondents/Department on the following grounds:
(i) That the Hon'ble Supreme Court of Pakistan in the case reported in PLD 2011 SC 132 has held that the employees of PTCL being governed by the principle of Master and Servant, cannot invoke constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
(ii) That the petitioner having tendered resignation from his previous service for much higher benefits and salaries, is not entitled to pensionary benefits and prayed for dismissal of the writ petition.
07. We have listened the learned counsel for the parties at great length and examined the relevant law, judgments relied upon by the learned counsel for the parties, and also examined the record appended with the pleadings, with their able assistance.
08. In our view, the questions involved in this case are:
(i) Whether the terms & conditions of petitioner's previous service on his transfer to the corporation are protected under sub-section (2) of section 9 of the Pakistan Telecommunication Corporation Act, 1991 (hereinafter referred to as "the Act of 1991'9 and then to the Company under section 35 (2) and 36 (2) of the Pakistan Telecommunication (Reorganization) Act, 1996 (hereinafter referred to as "the Act of 1996")?
(ii) Whether the petitioner is entitled to pensionary and other benefits attached to his service till the date of his resignation/pre-mature retirement?
(iii) Whether the terms and conditions of service of the petitioner can be altered or modified to his detriment and without his consent?
(iv) Whether this Court has got jurisdiction to adjudicate upon the matter?
09. Before proceedings on merit, we deem it appropriate to reproduce section 9 of the Act of 1991 and sections 35 & 36 of the Act of 1996, as under:- "9. Transfer of departmental employees to the Corporation.---(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of services, all departmental employees shall, on the establishment of the Corporation, stand transferred to, and become employees of the Corporation, on the same terms and conditions to which they were entitled immediately before such transfer, provided that the Corporation shall be competent to take disciplinary action against any such employee.
(2) The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantages.
(3) Notwithstanding anything contained in any law for time being in force, no person who stands transferred to the Corporation by virtue of subsection (1) shall be entitled to any compensation because of such transfer."
"35. Vesting of the rights, property and liabilities of the Corporation.--
(1) The Federal Government may, by orders, direct that all or any property, rights and liabilities to which the Corporation was entitled or subject to immediately before such orders, and identified therein, shall, on such terms and conditions as the Federal Government may determine, vest in a) the Company; b) the National Telecommunications; c) the Authority; d) the Trust; or e) the Board through Federal Government, and become the property, rights and liabilities of the respective entity.
(2) An order issued under subsection (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, be transferred to and become employees of the entity referred to in the order: Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage.
(3) An order issued under subsection (1) in favour of the Company shall provide for a) the continuation by the Company of the operations and undertaking of the Corporation on the same basis as were carried on immediately prior to the date of the order save in respect of the operations and undertakings to be carried on by the National Telecommunication Corporation pursuant to section 41; and b) the dissolution of Corporation as from the effective date of the order.
(4) In consideration of the vesting in the company of the property of the Corporation, the Company shall issue such securities in the name of the President of the Islamic Republic of Pakistan as the Federal Government may direct
(5) Unless an order so directs the property vested under subsection (1) shall be free from any charge, burden, hypothecation or encumbrances to which it may be subject at the effective date of the order.
(6) If any property of the Corporation vests in the Company subject to any charge, burden hypothecation or encumbrances the same shall be deemed to be on the assets of the company and the provisions of section 121 of the Companies Ordinance, 1984 (XLVII of 1984), shall apply to such charges, burden, hypothecation or encumbrances as if it had been created on the assets of the Company on the effective date for the Company.
(7) If any property of the Corporation vests in the National Telecommunication Corporation, the Authority or the Trust subject to any charge, burden, hyphenation or encumbrance, the same shall be the first charge by way of hypothecation in favour of the creditor.
(8) In this section, "property" includes assets, rights and entitlements of every description and nature wherever situated and "liabilities" includes duties, obligations, loans encumbrance, claims and charges of every description and nature (actual or contingent), whether or not they are capable, under any law of Pakistan or of any other State or under any agreement or otherwise, or being vested, transferred or assigned by the Corporation.
(9) No stamp duty shall be payable under any law for the time being in force on or in relation to the transfer or vesting of property of the Corporation under any order issued under subsection (1).
36. Terms and Conditions of service of employees.--(1) No person transferred to the Company pursuant to subsection (2) of section 35, hereinafter referred to as "Transferred Employee", shall be entitled to any compensation as a consequence of transfer to the Company: Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including Pensionary benefits of the Transferred Employees.
(2) Subject to subsection (3), the terms and conditions of service of any Transferred Employee shall not be altered adversely be he Company except in accordance with the laws of Pakistan or with the consent of the transferred Employees and the award of appropriate compensation.
(3) At any time within one year from the effective date of order vesting property of the Corporation in the Company, the Federal Government may, with the prior written agreement of a Transferred Employee, require him to be transferred to or revert him back and be employed by the Authority, National Telecommunication Corporation, Trust or the Federal Government on the same terms and conditions to which he was entitled immediately before such transfer.
(4) Subject to proviso to subsection (1) of section 45 on transfer of a Transferred Employee under sub section (3), the Federal Government shall assume responsibility for his Pensionary benefits without recourse to be Pension Fund referred to in that section.
(5) Under the order vesting property of the Corporation in the Company, the Federal Government shall require the Company to assume the responsibility of Pensionary benefits of the telecommunication employees and the Company shall not alter such Pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation."
10. A plain reading of the provisions of section 9 of the Act of 1991 and sections 35 & 36 of the Act of 1996, referred to above, clearly depict that the employees of T&T Department, on their transfer to the corporation, have become employees of the Corporation as envisaged under section 9 of the Act of 1991 and then of the Company in terms of section 35 of the Act of 1996 and their terms & conditions of service, were fully protected under section 9 (2) of the Act of 1991 and section 35(2) of the Act of 1996, and the same could not be altered, modified or varied to their detriment or disadvantage. Not only this but the legislature has also bounded the Federal Government to guarantee the existing terms & conditions of service and rights including pensionary benefits of the transferred employees, under the 1st proviso to section 36, as under: Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including pensionary benefits of the Transferred Employees.
11. In this behalf, reference may be made to the case reported as "Pakistan Telecommunication Employees Trust (PTET) through MD, Islamabad vs. Muhammad Arif & others" (2015 SCMR 1472), wherein, it was held that employees of the T&T Department who were transferred to the Corporation and then to the Company, would on retirement be entitled to payment of pension according to one announced by the Federal Government, and if any increase in pension was announced by the Federal Government for its employees, the same would also apply to the employees of T&T Department, transferred to the Corporation and then to the Company. In this context, further reliance can be placed on the judgments reported as "Divisional Engineers Phones, Phones Division, Sukkur and another vs. Muhammad Shahid and others" (1999 SCMR 1526), "Raja Iyiz Mehmood and another vs. Federation of Pakistan through Secretary M/o Information Technology & Telecommunication and others" (2018 SCMR 162), "Muhammad Riaz vs. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan, Islambad and others" (2016 PLC (CS) 71 Supreme Court of Pakistan) and unreported judgment of this Court dated 03.07.2014 rendered in constitutional petition No.2036-P/2012 titled "Muhammad Yousaf Afridi, General Manager (BPS-20) PTCL, Peshawar vs. Federation of Pakistan through Secretary, Ministry of Information Technology, Government of Pakistan. IT & Telecom Division, Islamabad & others".
12. No doubt, by virtue of the provisions quoted above, the petitioner had become employee of the Corporation in first instance and then the Company and he lost his previous status of a civil servant, but terms & conditions of his service provided by sections 3 to 22 of the Civil Servants Act, and protected by section 9 (2) of the Act of 1991 and sections 35, 36 (1)&(2) of the Act of 1996, are by all means and intent statutory in nature and violation of any such provisions would give a right to an aggrieved employee to knock at the door of this Court by invoking provisions of Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.
13. It is observed that pension is intended to assist a retired employee/civil servant in providing for his daily wants so long he is alive in consideration of his past service, and this right has now been extended to widows and dependant children of the deceased civil servant. The claim of the petitioner in the instant case is governed by statutory provisions quoted above, and this statutory right cannot be denied to him on any pretext, even if he opted to tender his resignation from his previous service, acquiring the status as a transferred employee, because of protection and safeguard available to his pensionary benefits.
14. For all these reasons, this writ petition is allowed and the petitioner is held entitled to pensionary and all other benefits of the transferred employees in terms of first proviso of sub-section 1 of section 36 and section 35 of the Act of 1996 read with section 9 of the Act of 1991, and act of the respondents refusing to pay pension and other benefits attached to his service, is declared as illegal, without lawful authority, without jurisdiction and ineffective upon the rights of petitioner and they are directed to release his pension and other benefits as permissible to him under the law, forthwith. No order as to costs.