MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioners, who are former officers of the House Building Finance Company Limited ("H.B.F.C.L."), seek a direction to the respondents to grant them increase in their pay and perks with effect from 01.01.2016, i.e. when the pay and allowances of clerical and non-clerical staff of the H.B.F.C.L., were increased.
2. The facts essential for the disposal of the instant petition are that the House Building Finance Corporation ("Corporation") was established under the provisions of House Building Finance Corporation Act, 1952 ("the 1952 Act"). Section 41 of the 1952 Act empowered the Federal Government to make Rules while Section 42 of the said Act empowered the Corporation's Board of Directors to make Regulations. In exercise of the powers conferred under Section 42 of the 1952 Act, the Board of Directors, with the approval of the Federal Government, made the House Building Finance Corporation Service Regulations, 1957 ("the 1957 Regulations"). Under Regulation 19 of the 1957 Regulations, the Corporation's employees' pay scales were to be decided by the Board of Directors after negotiations with the Workers' Union and the Officers' Association.
3. Admittedly, the petitioners were employed in the years 1980, 1982 and 1983 during the time when the 1957 Regulations were in force. It is not disputed that until the year 1998, the Wage Commission used to determine the pay of the Corporation's employees. Vide circular dated 20.04.1998, the Corporation's Board of Directors for the first time itself revised the pay scales, allowances and fringe benefits of the employees pursuant to Regulation 19 of the 1957 Regulations. In the year 2006 the Corporation, with the approval of its Board of Directors, revised the terms and conditions of service of its employees and issued a Human Resource Manual which was made effective from 01.01.2006.
4. On 13.06.2006, the H.B.F.C.L. was incorporated under the provisions of the erstwhile Companies Ordinance, 1984.
5. Vide circular dated 24.04.2007, the pays of both categories of H.B.F.C.L.'s employees (i.e., the officers and workmen) were increased.
6. Vide Order (S.R.O.941(I)/2009), dated 31.10.2009 issued by the Federal Government in exercise of the powers conferred under Section 36 of the 1952 Act, the assets and employees of the Corporation were transferred to the H.B.F.C.L. Under paragraph 18 of the said Order, the terms and conditions of service and pension of the transferred employees were not to be revised to their disadvantage by the H.B.F.C.L. except in accordance with the law or with the consent of such employees. Vide circular dated 24.03.2010, the pay scales, allowances and fringe benefits of all regular employees of the H.B.F.C.L. including the Executives / Officers and Staff (Clerical and Non- Clerical), were revised. The letter dated 27.02.2015 issued by the H.B.F.C.L. shows that the H.B.F.C.L.'s Board of Directors, in its meeting held on 28.01.2015, increased the gross pay (as prevailing on 31.12.2013) by 15% for all the officers and staff.
7. The petitioners' grievance emanates from the H.B.F.C.L.'s letter dated 30.08.2016 whereby the H.B.F.C.L.'s Board approved overall increase of 18% of gross pay as on 31.12.2015 only for the staff (clerical and non-clerical). The petitioners filed writ petition No.3100/2018 before this Court which was disposed of vide order dated 15.08.2018 whereby the petition was converted into a representation and the Regional Head of the H.B.F.C.L. at Islamabad was directed to decide the same. On 14.09.2018, H.B.F.C.L.'s Regional Head decided that the petitioners' claim relating to their salary structure which was outside his domain and authority. This caused the petitioners to file the instant writ petition.
8. Learned counsel for the petitioners, after narrating the facts leading to the filing of the instant petition, submitted that the terms and conditions of the petitioners' service are regulated by the statutory service regulations; that after the incorporation of the H.B.F.C.L., their terms and conditions of service were protected pursuant to the paragraph 18 of the Order dated 31.10.2009 issued by the Federal Government; that the H.B.F.C.L., vide letter dated 30.08.2016, increased the pay of only those employees who fell in the category of workmen; that this was a discrimination against H.B.F.C.L.'s officers who had been deprived of an increase in pay; that H.B.F.C.L. did not incur loss in the year 2016 and earned a profit of 76 crores in the year 2017; that the pay of workmen was increased after the negotiations with the Collective Bargaining Agent; that no negotiations with the Officers'
Association had been conducted in accordance with Regulation 19 of the 1957 Regulations; that clause 7.4.2 of the "HBFC Human Resource Manual" also requires annual review of the pays of the employees of the H.B.F.C.L.; that due to the increase in the pay of the workmen / non-officers, an anomaly in the hierarchy of the H.B.F.C.L. has been caused; that a Senior Assistant, who is lower in the hierarchy, earns more pay than Assistant Manager who is higher in hierarchy; that the deprivation of the officers from pay increase is sheer discrimination; that some officers of the H.B.F.C.L. filed a Constitutional petition (C.P.No.D-5773/2016) before the Hon'ble High Court of Sindh seeking a revision in their pay; that the said petition was allowed vide judgment dated 22.11.2018; that there was no increase in the pay of the officers in the year 2018 but in the year 2019 their pay was increased; and that several officers of H.B.F.C.L., who had retired from service between the period of 2016 to 2019, had been adversely effected by the discrimination caused by H.B.F.C.L. in increasing the pay of the workmen only. Learned counsel for the petitioners prayed for the petition to be allowed in terms of the relief sought therein.
9. On the other hand, learned Deputy Attorney-General assisted by Barrister Adeel Aftab opposed the petition and submitted that the petitioners' terms and conditions of employment are not governed by any statutory rules or regulations; that ever since 01.01.2006 (i.e., before the incorporation of H.B.F.C.L.) the terms and conditions of Corporation's employees were governed by the Human Resource Manual which was made by the Board of Directors itself; that the H.B.F.C.L. was incorporated on 13.06.2006; that vide House Building Finance Corporation (Repeal) Act, 2018, the 1952 Act was repealed; that with the repeal of the 1952 Act, the 1957 Regulations framed thereunder also stood repealed; that the terms and conditions of the H.B.F.C.L.'s employees including the officers are now governed under the Human Resource Manual which is non-statutory; that even under Regulation 19 of the repealed 1957 Regulations, the negotiations about the pay is a matter between the Association and the H.B.F.C.L. and individual officers have no locus standi to file a petition seeking an increase in their pay at the same rate as the increase in the pay of workmen; and that this Court lacks territorial jurisdiction as the H.B.F.C.L.'s Head Office is situated at Karachi and only the Board of Directors of the H.B.F.C.L. is empowered to take decision about the revision of the pay of employees.
10. Learned Deputy Attorney-General further submitted that the officers and workmen are two different categories of employees and there is nothing in the Human Resource Manual or the 1957 Regulations whereby the officers and workmen are to be equally treated in terms of pay; that the minutes of the 5th Meeting of the H.B.F.C.L.'s Board of Directors shows that the losses of Rs.2.9 billion and Rs.4.8 billion had been incurred in the years 2014 and 2015, respectively; that the Board of Directors noted that the officers from executive cadres were demanding increase in pay despite the accumulated losses which reached to Rs.5.8 billion on 31.12.2016 even after the bailout package of Rs.16.4 billion by the State Bank of Pakistan through conversion of loans into equity; that despite such precarious financial position of the H.B.F.C.L., the Officers' Association approached the Hon'ble Sindh High Court through Constitutional petition No.D-5773/2016, which was allowed vide judgment dated 22.11.2018; that H.B.F.C.L.'s appeal against the said judgment dated 22.11.2018 was allowed by the Hon'ble Supreme Court vide order dated 04.09.2019; and that since the Hon'ble Supreme Court has conclusively decided the matter, therefore, the instant petition also deserves to be dismissed.
Learned Deputy Attorney-General prayed for the writ petition to be dismissed.
11. I have heard the contentions of the learned counsel for the petitioners and the learned Deputy Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 7 above, and need not be recapitulated.
12. Admittedly, H.B.F.C.L. is performing functions in connection with the affairs of the Federation.
H.B.F.C.L. has its Regional Offices across Pakistan and as such it functions all over the country. The petitioners, who claimed to be adversely affected by H.B.F.C.L.'s letter dated 30.08.2016 granting an increase in the pay to the workmen cadre, are employed at Islamabad, i.e. within the territorial jurisdiction of this Court. Therefore, this Court has concurrent jurisdiction with the High Court of Sindh to entertain this petition. The Hon'ble Supreme Court of Pakistan expressed similar view in the case of Al-Iblagh Limited Vs. The Copyright Board, Karachi and others (1985 SCMR 758). In the said case, the Hon'ble Supreme Court observed as follows:- "...The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order passed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case. ...We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case.
We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for the decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law."
13. The learned Deputy Attorney-General has also contended that the terms and conditions of the H.B.F.C.L.'s employees are non-statutory. The said question as to the status of the terms and conditions of service of those employees of H.B.F.C.L. who were transferred from Corporation by virtue of paragraph 18 of the Order dated 31.10.2009 is no longer res integra. The Hon'ble Supreme Court settled the said question vide order dated 06.02.2014 passed in civil appeal No.26-K/2012 titled "Muhammad Ali Gohar Zaidi Vs. House Building Finance Corporation and others."
Paragraphs No.3 and 4 of the Hon'ble Supreme Court's said order read thus:- "3. Learned A.S.C for the respondent Nos. 1 to 3, when confronted with the proposition of law raised in the leave granting order, applicable to the facts of the present case, candidly conceded that those employees of House Building Finance Corporation, who were in service before change of its status as House Building Finance Corporation Limited, by virtue of clause 18 of S.R.O dated 25.07.2007, as reported above, will not be governed by the principle of Master and Servant, but will have their remedy under Article 199 of the Constitution before the High Court as held in the cases reported as Masood Ahmed Bhatti and others vs. Federation of Pakistan through Secretary M/O Information Technology and Telecommunications and others (2012 SCMR 152) & Zarrari Taraqiati Bank Limited and others vs. Sajid Rehman and others (2013 SCMR 642).
4. This being the position, the impugned judgment, being passed on misapplication of law is liable to be se aside and the case is remanded to the High Court for fresh disposal of Constitutional Petition No.D-527 of 2010 in accordance with law, preferably within three months. Order accordingly."
14. On merits the petitioners' claim is that ever since the year 2016 until 2019 the pays of only the unionized staff of H.B.F.C.L. had been increased after negotiation with the Workers' Union but neither were any negotiations held with the Officers' Association in terms of Regulation 19 of the 1957 Regulations nor had the officers' pay been increased. According to the petitioners, while they had been deprived of the pay increase in a discriminatory manner, the Federal Government had in the meanwhile increased the pays of all civil servants. Therefore, the foundation of the petitioners' case rests on the ground of discrimination. However, some other employees of H.B.F.C.L. in Sindh Province, who also belonged to the officer cadre had raised the same grievance before the Hon'ble High Court of Sindh in Constitutional petition No.5773/2016, which was allowed vide judgment dated 22.11.2018 and held that since there is no intelligible differentia between the officers and workmen / staff category of H.B.F.C.L.'s employees, the officers of H.B.F.C.L. are also entitled to equal treatment.
The Hon'ble High Court of Sindh directed H.B.F.C.L. to grant increase in pay, allowances and emoluments to H.B.F.C.L.'s officers at par with such increase granted to the workmen / non-officer category.
15. H.B.F.C.L. assailed the said judgment dated 22.11.2016 before the Hon'ble Supreme Court in civil appeal No.86-K of 2018. The Hon'ble Supreme Court allowed the H.B.F.C.L.'s said appeal vide judgment dated 04.09.2019 reported as House Building Finance Company Limited Vs. Muhammad Irfan Khan etc. (2020 SCMR 98). In the said judgment, it was held that there is a clear distinction between the employees covered by the labour laws and the employees in Executive and Officers' cadre. It was further observed that financial exigency as has been expressed by H.B.F.C.L. does empower the employer to consider different yardstick for revision in salary for different categories of its employees. The relevant portion of the paragraph 7 of the Hon'ble Supreme Court's order dated 04.09.2019 reads as follows:- "7...To arrive at the conclusion as noted in para-12 as reproduced above, no rational basis has been identified as to how the Officers and Executive' cadre which does not enjoy a statutory protection of collective bargaining could be equated with the workmen cadre in service of HBFCL.
We have also noted that Government of Pakistan in a recent fiscal year, 2019-2020 increased the salary from Grade-01 to Grade-16 employees and revision was ordered to the extent of 10% whereas for the Gazetted Officers of Grade-17 to Grade-20 the increase was only ordered to the extent of 05% and salary of BPS-21 and above was not increased. Even we have noted that no increase was considered in respect of the armed personnel on account of the financial crunch faced by the State of Pakistan. As such, financial exigency as has been expressed above, do empower the employer to consider different yardstick for revision in the salary of different categories of its employees. All employees cannot claim to be treated alike irrespective of their grades, domain and class. There is a clear distinction between the employees covered by the labour laws and other statutory dispensation vis--vis employees in Executive and Officers cadre. This principle was so held in Sail Ex-Employees Association case (Supra). In a case reported Muhammad Shabbir Ahmed Nasir versus Secretary, Finance Division, Islamabad (1997 SCMR 1026) and Farman Ali versus State (PLJ 1997 Supreme Court 1994) it was held by this Court that grouping for good governance by the employer of its employees serving in BPS-01 to BPS-16 into one category and those serving in BPS-17 to BPS-22 to another category for the purpose of granting greater monetary benefit, cannot be challenged on ground of arbitrariness or unreasonable classification and as violative of article 25 of the Constitution."
16. Since in view of Article 189 of the Constitution, I am bound to follow the law laid down by the Hon ble Supreme Court in the case of House Building Finance Company Limited Vs. Muhammad Irfan Khan etc (supra), therefore, the instant writ petition is dismissed with no order as to costs.