Khawaja Abdul Hamid Nasir, Senior Auditor, Muhammad Qasim Chaudhry and Muhammad Ramzan Ansari, Officers Grade III of the National Bank of Pakistan, have filed this Constitution petition on their own behalf as well as on behalf of and for the benefit of all other officers of the National Bank of Pakistan who are allegedly affected adversely by the impugned orders. It was stated in the petition that a list of officers on whose behalf the petition is being filed has been appended and that permission may be granted to sue for the other officers interested in the relief under Order 1, rule 8, C. P. C. It may, be noted at this stage that though a list of officers likely to be interested in the result of the petition was submitted and vide order 2nd November, 1980 the petitioners were permitted to take steps in order to comply with the provisions of Order 1, rule 8, C. P.
C., yet notice was not got issued to any of the officers mentioned in the lists. The petitioners, therefore, cannot seek to bind other officers with the result of this petition and this petition will, there fore, be considered as having been filed by the petitioners in their personal capacity. The reasons for not treating this petition as one in representative capacity have been given in the judgment delivered in connected petition (W. P. 731/80, Muhammad Ramzan Ansari and others v.
Government of Pakistan) and the same may be read as a part of this judgment.
2. The factual and legal background of the controversy is that the National Bank of Pakistan was constituted and established under the National Bank of Pakistan Ordinance, 1949 (Ordinance XIX of 1949). Under section 32 of said Ordinance, Central Board was authorised to make Bye-Laws not inconsistent with the provisions of the Ordinance with the previous approval of the Federal Government. Bye-Law 18 (a) (i.e),(iv) and (v) conferred power on the Central Board to frame rules under which officers and staff of the Bank shall be 1governed, to grant salaries, pensions and other emoluments to officers and staff, etc. And to constitute provident, pension and Guarantee Funds for officers and staff with the previous approval of the Federal Government. In exercise of the powers so given under Bye-Law 18 (a) (i.e), National Bank of Pakistan Staff Service Rules, 1963, were framed by the Central Board with the previous approval of the Central Government. Rule 44 provided that the employees in the permanent service of the Bank shall become members of the Bank's Provident, Pension and Guarantee Funds. Rule 45 provided for execution of an agreement in the form of Appendix III, which provided that the employee agrees to serve the Bank upon the terms and conditions embodied in the Service. Rules and that the Bank agrees to pay to the employee salaries, allowances, emoluments, pension and other payments as mentioned in the said Rules of Service, etc. The Pension Rules were also framed by the Central Board under Bye-Law 18 (a) (v) of the Bye---Laws with the approval of the Central Government, and it is common ground that pension at the rate of 1/60th of the pay was made admissible to the eligible employees. Provident Fund Rules were also framed by the Central Board and a fund was created ensuring a sum of money determinable according to the rules at the termination of the service. The Provident Fund according to rule 3 was to be held by the Bank and was to be administered by the three Administrators nominated in accordance with rule 3. Rule 5 of the Provident Fund Rules provided that Admi--nistrators may amend any of the Rules with the previous approval of the Central Government provided that the alteration, variation or modifica--tion of the Rules is not prejudicial to the rights of any member with respect to any funds then in the hands of the Administrators. According to rule 9, members were to subscribe a sum equivalent to 7% and an equal amount was to be contributed by the Bank monthly to the credit of the account of each member.
The above-stated position was obtained when the Banks (including National Bank of Pakistan) were nationalised under Banks (Nationalisa--tion) Act, 1974, with effect from 1st day of January, 1974, Section 13 of the aforesaid Act provided that the employees shall continue in their respective offices on the same terms and conditions including remunera--tions and rights as to pension and gratuity as were applicable to them immediately before the commencing date.
3. On 15th October, 1977 Circular No. 228 was issued implementing the decision of the Federal Government, taken in pursuance to recom--mendations of the Pay commission. This Circular provided for the new scales of pay, allowances and fringe benefits, etc. Nothing, however, was said therein in respect of provident and pension funds. However, employees were given the option to opt for the new Pay Code or to continue with the old one. Thereafter, Circular No. 228-C dated 26th December, 1977 to implement the decision of the Federal Government was issued pertaining to pension and retirement benefits for the officers and executives of the Banks. Para. 2 of the Circular provided that "the previous continuous service of officers/executives shall count as qualifying service for pension. The contribution made by the Bank towards the contributory Provident Fund shall be withdrawn as that service shall now count for the purpose of pension. The contribution of the officers/execu--tives plus interest thereof standing in respect of their account shall be transferred and credited to the Provident Fund Account to be established under the new Provident Fund Scheme". Another Circular No. 228 (V) dated 24th September, 1979 was issued requiring the officers to give options for a now retirement benefits with the condition that if any officer wants to retain Bank's contribution towards Provident Fund accumulated up to 30th April, 1977, then in such a case qualifying service for their Retirement Benefit Scheme shall start only from 1st May, 1977. It is not denied that the pension under the new Retirement Scheme is admissible at the rate of 70% of the pay as against 1/60th of the pay, admissible under the old Scheme.
4. The case of the petitioners is that they lodged protest with the authorities against the aforesaid actions and as they were not satisfied with the reply dated 3rd April, 1980, they nave approached this Court for a declaration that the instructions contained in para. 2 of Circular dated 26th December, 1977 and paras. 2 (if) and (i.e) of Circular No. 228(V) dated 24th September, 1979 regarding withrawal of contribution made by the Bank towards the Provident Fund and altering the length of service for payment of pension, are without lawful authority and nullity in law.
5. Learned counsel for the respondents has raised preliminary objections as follows :-
(i) New Pension Scheme enforced from 1st May, 1977 was accepted by the petitioners as they opted for the same along with other benefits. They having opted the same cannot, after lapse of three and a half years, be allowed to resile and assail the new scheme. Relying on Muhammad Sadiq v.
Commissioner, Rawalpindi Division (1973 SCMR 422) and Muhammad Din v. Fazal Karim (PLD 1968 Lah. 544 learned counsel sought dismissal of the petition on account of alleged delay and acquiescence ; and .
(ii) the petitioners, according to their own averments joined service on contract and such employees of statutory corporations have no locus standi to invoke constitutional jurisdiction for enforcing these terms and conditions. Reference was made to Muhammad Hayat v. Manager, WPIDC Salt Mines (1977SCMR205), R. T. H. Janjua v. National Shipping Corporation (PLD 1974 SC 146 and Muhammad Aslam v. National Shipping Corporation (PLD 1979 Kar. 246
6. In reply, learned counsel for the petitioners submitted that with the issuance of such Circular options were asked for, firstly, under Circular dated 26th December, 1977, secondly, under Circular dated 3rd July, 1978 and then, thirdly, under Circular dated 24th September, 1979. These options were not legal and effective in law as the Circulars were issued by incompetent officers and that statutory rights cannot be defeated even through agreements obtained by superiors. This was as regards acquiescence on account of the filing of the options by the petitioners. On the question of delay, it was submitted that various representations; appeals and protests were made and were being followed and it was only when the petitioners and the officers' union were left with no hope of receiving redress of the grievances, that this Court was approached.
7. No doubt, change of terms and conditions of service to the disadvantage of the employees of Government or Statutory Corporation already in employment cannot be made through, a mutual agreement as it would be against public policy, yet an employee may opt for such terms and conditions which may be found to be beneficial by him. In such a situation, a person may also contract out of the provisions of law in case such a contract is not against public policy. The options given freely adopting the new retirement benefits would naturally debar the persons, who had given the options, to seek equitable relief, and in this context the period of more than three years that has elapsed will also assume importance as in this sequence it will be relevant to consider whether equitable jurisdiction be exercised to set at naught a scheme which was accepted by all the employees, including the petitioners themselves.
8. Coming to the second preliminary objection as to the locus standi to invoke constitutional jurisdiction suffice it to say that the petitioners are not seeking restoration to any office or post and instead the grievance made is that the impugned action taken by the respondent is without lawful authority and that they be directed to act in accordance with law. For the reasons recorded in connected writ petition (WP 731 / 1980) Muhammad Ramzan Ansari v. Government of Pakistan (NLR 1982 Service 249), this preliminary objection is repelled.
9. Coming to the merits, it is important to note that as per the averments of the respondents, the petitioner at the time of nationalisa--tion of the Banks did not belong to the category of officers/Executives and that till 1st January, 1977, the petitioners were governed by the Provident Fund and Pension Scheme given in the Wage Commission Award 1974-75. The foremost question which requires consideration is whether the new retirement benefits in shape of new Pension and Provident Fund Scheme were beneficial or prejudicial as compared to the old Pension and Provident Fund Scheme. It is not denied that earlier a nominal pension at the rate of 1/60th of the pay was admissible whereas new pension at the rate of 70/0 of the pay is to be paid to the eligible employees. The Pension Scheme, as such, is definitely beneficial to the employees and the same cannot be assailed on any hypothesis or even on the basis of the provisions of section 13 of the Banks (Nationalisation) Act, 1974. It is pertinent to clarify here even at the cost of repetition that with the introduction of new Pension Scheme it was provided by circular No. 228 dated 26th December, 1977, that previous continuous service of officers shall count as --qualifying service for pension and the contribution made by the Banks towards the contribution fund shall be withdrawn as that service shall now count for the purpose of pension. The officers were asked to give options and those officers who did not exercise option for new pensionary benefits were allowed to continue on their previous terms with the result that Bank's Contribution towards Provident Fund was not withdrawn. Again vide Circular No. 228 (V) dated 24th November, 1979, option was given to the officers despite their having, already opted for the new/old Retirement Benefits, to retain Banks Contribution to the Provident Fund accumulated up to 30th April, 1977 and then opt for new retirement benefits as a package. It was provided that in such a case the qualifying service for new retirement benefits shall start from 1st May, 1977. Thus, in fact, the new Pension Scheme itself is not under attack as it is only that portion of the circular under attack which provides that if officers want to retain bank contri--butions towards Provident Fund then the qualifying service for their retirement benefits shall commence from 1st May, 1977. 1t is the com--mencement of the qualifying service for pension which is under challenge. Naturally, the petitioners cannot have both the benefits. Either they have to opt for the new pension benefits in which event their entire continuous service is to be counted towards pension under the new scheme and in lieu thereof they have to surrender bank's contribution to the Provident Fund, or they can opt for retaining the bank's contribution, but then they have no right in law or equity to demand that their entire service should be counted as qualifying service towards pension. In any case, no law or rule having the force of law has been cited whereby the petitioners can demand that they can retain Bank's contribution towards Provident Fund and as well claim that they are entitled to reckon their entire continuous service as qualifying service towards pension under the new Pension Scheme. It may also be added that under section 13 of the Banks (Nationalization) Act, protection has not been afforded to Pro--vident Fund. Moreover, as regards Provident Fund, the petitioners were given the option either to retain the Bank's contribution or to have their full length of continuous service reckoned as qualifying service for pension under the new Scheme. They having exercised that option with their free consent cannot now resile after expiry of three years especially when it has not been demonstrated that in terms of money the petitioners will be suffering anything by surrendering Bank's contribution. The new Pension Scheme has been opted by officers whose number runs into thousands and if any alteration is now allowed to be trade as the behest of a few officers, it may cause insurmountable administrative difficulties. It will, therefore, not be in the interest of all concerned to allow reopening of the options. As regards the employees falling in the category of Clerical and non-clerical staff, the Banks were obliged in view of section 38-G of the Industrial Relations Ordinance to give effect to Wage Commission Award whereunder Pension and Provident Fund Scheme were abrogated by the Wage Commission with effect from 1st January, 1975 vide para. 252 of the Award. The deci--sion of the Wage Commission is binding under section 38-C3 of the Industrial Relations Ordinance and section 38-1 of the said Ordinance provides that the provisions of section 38-G shall have effect notwithstanding anything inconsistent therewith contained in any other law or in terms of any award, agreement or contract of service, whether made before or after the coming into force of the Industrial Relations (Amendment) Ordinance, 1974. The date of coming into force of this Ordinance is 10th October, 1974. Hence as regards this category oft employees, the earlier Scheme cannot be pressed into service.
10. For all the reasons given above, this petition is dismissed with costs.