The four petitioners who are employed in the National Bank of Pakistan as Officer Grade-III, Senior Head Cashier and Assistant Engineer have filed this petition in representative form on behalf of all officers of the Central Circle of the Bank in the same Grade asserting that all officers of Grade-III of the Central Circle have one and the same interest in the subject-matter of the petition. An application (C. M. 6/80) under Order I, rule 8, C. P. C. Was also moved seeking permission to maintain the petition in representative capacity. This application was granted vide order dated 1st July, 1980 subject to the objection of the respondent that the petition was not competent in representative form. The petitioners submitted a list of 77 employees who were likely to be interested in the petition and a notice of the institution of the petition to the aforesaid 77 persons was issued through publication in the Press. None of these persons, however, applied to be made a Party to the petition.
2. The factual and legal background of the controversy raised in the, petition is that employees of the Bank can be grouped in two cate--gories, namely (1) Officers/Executive and (2) Clerical and Non-Clerical Staff. In the first category fall Officers of Grade-III including Senior Head:, Cashier and Assistant Engineer. The petitioners belong to this category of officers of Grade-III and under orders dated 16th March, 1973 and 8th November, 1973 (Annexures A and A/I with the petition) they were entitled to House Rent Ceiling besides other benefits and allowances is addition to the pay. The service and employment of the petitioners was continued on nationalization of Banks. The ownership, management and control of all the Banks, including National Bank of Pakistan was transferred to and vested in the Federal Government on the first day of January, 1974 under the Banks (Nationalisation) Act, 1974. The em--ployees, however continued to enjoy the same terms and conditions after nationalisation as were admissible to them earlier. It is common ground that employees belonging to the Officers category were governed by the Pay Commission Report which was implemented by the respondents with effect from 1st May, 1977 by an order circulated on 15th October, 1977. The employees belonging to the category of Clerical and Non-Clerical Staff were governed by Wage Commission Award implemented with effect from 27th July, 1978. The dispute in this petition pertains to House Rent Ceiling facility admissible to the Officers of Grade-III, Senior Head Cashier and Assistant Engineers. Before Nationalisation these Officers were allowed House Rent Ceiling to the extent of Rs. 250 per mensem at specified places and Rs. 200 at non-specified places. This was enhanced to Rs. 300 and Rs. 250 at specified and non-specified places respectively vide order dated 16th March, 1973. Again vide order dated 8th November, 1973 Head Cashiers were categorised in the Officer's Grade and House Rent Ceiling was increased to Rs. 375 at specified places and Rs. 310 at non-specified places. Then Circular dated 15th October, 1977 was issued which under item No. 6 provided as under :- "House Rent Allowance/House Rent Ceiling.-All Officers/ Executives not provided with residential accommodation by the Bank will be allowed House Rent Allowance at 30of the basic pay at all stations. In cases where a hired accommodation is provided by the Bank, rent/ceiling to the following extent will be applicable :--
(i) Upto 60% of the basic pay at Federal and Provincial Capitals and Rawalpindi.
(ii) Upto 50% of the basic pay at, Industrial towns, via. Hyderabad, Multan, Sahiwal, Faisalabad, Gujranwala, Sialkot, Gujrat and Nowshera.
(i.e) Upto 40% of the basic pay at other places."
Again vide Circular No. 358 dated 5th April, 1979 it was provided that House Rent Ceiling will be allowed to all Managers and all Officers holding equivalent posts and all Officers in Grade-I and above. Accord--ingly, House Rent Ceiling was disallowed to Officers in Grade-III who were not designated as Accountants and Senior Head Cashier posted at Chest (Treasury) Branches. The Officers, who were not covered under the formula prescribed in the said Circular were to receive House Rent Allowance at 30% of their basic pay. On representation made another Circular No. 228
(V) dated 24th September, 1979 was issued whereunder the House Rent Allowance was increased from 30% to 40% of the basic pay on all stations. As regards House Rent Ceiling it was provided as order : - "In cases where a hired accommodation is provided by the Bank. Rent ceiling to the following extent will be applicable but restricted to Officers in Grade-I and above and branch Managers only :-
(1) Upto 60% of the basic pay at Federal and Provincial Capitals and Rawalpindi.
(2) Upto 50% of the basic pay at industrial towns (Hyderabad Multan, Faisalabad, Gujranwala, Sahiwal, Gujrat, Sialkot and Nowshera).
(3) Upto 40% of the basic pay at all other places.
(c) The effects of above revisions are two-fold. First, the House Rent Allowance is enhanced from 30% to 40Y. Secondly, the term 'Equivalent' applied to the Officers, as mentioned in instruction Circular No. 358 dated 5th April, 1979 for grant of House Rent Ceiling is dispensed with.
(d) In the case where hired accommodation has already been provided by the Bank, under a lease agreement subsisting as on 30th June, 1979 to an officer other than in Grade-I and above and Branch Managers, the relative amount of house rent ceiling (available as on 30th June, 1979) will be frozen, quantified and allowed to continue so long as the amount of House Rent Allowance (as otherwise admissible) does not exceed the amount of House Rent Ceiling so quantified and frozen.
The effect would be that the amount drawn by each affected individual as on 30th June, 1979 as house rent ceiling would be protected. The protection shall cease to be operative if a person is transferred to an area where the House Rent Ceiling is also 40% for as long as he remains in that area. In the case of transfer from 50% Zone to 50% Zone, the amount required to be protected shall be recalculated at the lower rate. No advantage would accrue in case the transfer is from areas with the rate of 40% or 50% to areas, of higher rates."
3. The petitioners seem to be satisfied with the above circular as in para. 7 of the petition, it was stated that this Circular No. 228 (V) dated 24th September, 1979 restored the petitioners' House Rent Ceiling as pre--viously existing which is apparent from item No. 5 (1) (c) of the afore--said circular. The assertion regarding restoration of the rent ceiling facility does not appear to be correct as under this Circular the House Rent Ceiling was restricted to officers in Grade-I and Branch Managers only and in case where hired accommodation had already been provided to an officer other than in Grade-I and Branch Managers, the amount of House Rent Ceiling available as on 30th June, 1979 was frozen and allowed to continue so long as the amount of House Rent Allowance otherwise admissible does not exceed the amount of House Rent Ceiling so quanti--fied and frozen.
4. However, thereafter, another circular dated 5th January, 1980 was issued saying that it be ensured that Rent Ceiling is not being paid to Officers of Grade-III who have not been designated as Accountant on or before 30th June, 1979 and Senior Head Cashier who are not posted as joint custodian of cash at Chest Branches. It was this order so conveyed vide circular dated 5th January, 1980 which was challenged in the constitution petition on the grounds that the terms, conditions and remuneration including allowances admissible to the employees stood protected under section 13 of the Bank (Nationalisation) Act, 1974 and that the House Rent Ceiling having been allowed by the Federal Government under Circular No. 228(V) dated 24th September, 1979 in implementation of the recommendations of the Pay Commission could not be withdrawn through an incompetent order/ circular dated 5th January, 1980. It was asserted that only Executive Board constituted under section 11 of the Banks (Nationalisation) Act, 1974 was competent to issue orders in respect of terms and conditions of the employees subject to the condition that the orders passed do not prejudicially affect any of the existing terms and conditions, including remuneration, etc. Of the employees.
5. During the pendency of the writ petition impugned circular dated 5th January, 1980 was rescinded vide circular dated 9th February, 1980. Thereafter, the petitioners submitted an application (C. M. 5/80) for amending the petition. This application came up for hearing on 7th April, 1980 and the order passed thereon reads as under :- "This application has been made by the learned counsel for the petitioners seeking leave to amend the writ petition but he has failed to disclose the proposed amendment in this application. He is directed to file an amended petition within a week, a copy of which should be supplied to the respondents' counsel."
Thereafter, instead of filing the amended application the petitioners filed amended writ petition.
Learned counsel for the petitioners claimed that vide order dated 7th April, 1980 reproduced above, permission was granted to file the amended writ petition whereas counsel for the respon--dents submitted that the said order cannot be read as having granted the permission to file the amended writ petition and as such the amended writ petition filed was unauthorised and that in any case amended petition having not been filed within a week's time, the same should not have been accepted by the office and placed on the file after the expiry of the time allowed. In addition to this, the learned counsel for the respondents raised following preliminary objections :-
(1) That writ petition as originally filed was rendered infructuous as the impugned circular dated 5th January, 1980 was rescinded vide circular dated 9th February, 1980 and thereafter, nothing remained to be adjudicated upon ; '
(2) that the amended writ petition was filed without any order of the Court and that even the amendment sought cannot be allowed as now the challenge, in fact, is to circular dated 24th September, 1979 which was earlier made the basis to assail the Circular dated 5th January, 1980.
Attention was drawn to the contents of paras. 7, 9, (c), (d) and (f) in this connection and relying on Mst. Khudeja v, Jehingir Khan and 37 others (1971 SCMR 395) it was contended that amendment introducing new case cannot be allowed ;
(3) that the petitioners hold appointment on contract basis and they are governed by the rule of master and servant and as such are not entitled to invoke constitutional jurisdiction of this Court ; and
(4) that the writ petition in representative form is not maintainable.
On merits, it was argued that the provisions pertaining to House Rent Ceiling contained in Circular No. 228 (V) dated 24th September, 1979 does not violate any law or rule having the force of law for the enforcement of which Constitutional jurisdiction is being invoked; that the Rent Ceiling facility being enjoyed has been protected under item No. 5(i) (d) of the said Circular ; that the House Rent Ceiling or the House Rent Allowance was otherwise amenable to alterations or change vide rule 49 read with rule 51(2) of the National Bank of Pakistan Staff Service Rules, 1973 framed with the approval of the Central Government under bye-law 18 (a)(i.e) of the National Bank of Pakistan Bye- laws in exercise of powervesting under clause (28) of subsection (2) of section 32 of Ordinance XIX of 1949 hence no vested right can be claimed in the allowances sanc--tioned at one point of tine.
6. The preliminary objections may be dealt with at first. No doubt with the rescission of the impugned Circular dated 5th January, 1980 by Circular dated 9th February, 1980, the writ petition as filed, became infructuous as nothing 'remained thereafter to be adjudicated upon. It is also true that the application filed seeking permission to amend writ petition failed to disclosed the amendments sought to be made in the writ petition and in these circumstances fresh application should have been filed to seek permission to amend the writ petition. The order dated 7th April, 1980 in the circumstances cannot be read as having allowed the filing of the amended writ petition.
There is also weight in the argu--ment of the counsel for the respondents that the amendment sought even otherwise could not be allowed as the petitioners sought to challenge the circular dated 24th September, 1979 which was the very basis for assailing the circular dated 5th January, 1980. In this connection averments made in paras. 7, 9, (c) (d) and (f) of the original writ petition are relevant. It is apparent that by way o amendment an altogether new case was being introduced. However, I would not like to non-suit the petitioner on this account as lengthy arguments were addressed on merits as well by the parties and as the amended writ petition can be treated as a fresh petition. I have preferred to deal with the matter on merits as otherwise petitioners would have filed a fresh petition to agitate the same grievance as according to them it is a continuing wrong which is being suffered by the officers of their category. Learned counsel for the respondents, to meet this situation, argued that if amended petition is to be treated as a fresh petition then the same should be dismissed on the ground of laches. This argument is without merit as the facility disallowed is continuously affecting the relevant officers and expiry of time alone is not a sufficient cause for refusing relief if otherwise available.
Now I may deal with the objection that petition in representative form is not competent. No doubt in Abdul Karim v. The Province of East Pakistan (PLD 1959 Dacca 115), it was observed that the provisions of Civil Procedure Code regarding representative capacity have no application to the prerogative writs but no reasons for making this observation were given. In case of Hussain Bakhsh v. Settlement Commissioner (PLD 1970 SC 1) it was held that Civil Procedure Code is applicable to proceedings under Article 98 of the Constitution. The provision relating to filing a suit in representative capacity is contained in Order 1, rule 8, C. P. C. And the same is repro--duced for ready reference :--- "Where there are numerous persons having the same interest in one suit, one or more of such persons may, with the permission of the Court sue or be sued, or may defend, in such suit, on behalf of or for the benefit of all persons so interested. But the Court shall in such case give at the plaintiff's expense, notice of the institution of the suit to all such person either by personal service or, where from the number of persons or any other cause such service is not reasonably practicable, by public advertisement, as the Court in each case may direct."
With reference to the aforesaid provision the question of filing a cons--titution petition in representative form was considered in the case of Anquman Aralan Bhera v. Abdul Rashid and 5 others (PLD 1973 Lah. 500) and it was observed that an unregistered society could maintain an action under rule 8, Order, 1, C. P. C. It is fully established that the principles contained in the Code of Civil Procedure are applicable to the proceed--ings under Article 199 of the Constitution. The rule embodied in rule 8 of Order I, C. P. C. Is one of convenience based upon reason and good policy and saves trouble and expense which would otherwise have to be incurred in such cases. In my humble view where the circumstance warrant and it is in the interest of justice so as to avoid multiplicity of proceedings. Court may in its discretion grant permission to institute or to prosecute the petition already instituted in representative form. To my mind, as a rule it cannot be said that writ petition cannot be instituted in representative capacity. Reverting to the case in hand it will be recalled that permission was granted in this case subject to the adjudication at the final hearing.
The question is, therefore, still were open. There are admittedly more than 1,700 officers employed and working in the Central Zone but a list of 77 officers was only supplied. Accordingly a public notice through Press was issued to them alone. According to provision of rule 8 of Order I, C. P. C.
Court gran--ting the permission to sue in representative capacity shall give notice of institution of the suit (proceedings) to all persons on whose behalf or for whose benefit a suit is instituted so that any such person may if he so likes, apply to be made a party to such suit or proceeding The object of the notice is to give all interested persons the right to contest the claim in the suit or proceedings. In view of the fact that notice was given to only 77 officers and the vast majority of the officers had no notice it will not be fair to treat this petition as repre--senting the interest of all officers. It is well established that where neither a proper notice is issued under Order I, rule 8, C. P.
C. Nor it is duly served on the persons concerned, the procedure amounts to irregularity which vitiates the entire proceedings.
Now I propose to deal with the preliminary objection that the petitioners held appointment on contract basis as per agreement given in Appendix-III to Staff Service Rules, 1953 and in Appendix- IV of Staff Service Rules, 1973 as revised in 1980 and as such the petitioners are not entitled to invoke constitutional jurisdiction. No doubt an employee engaged on contract cannot invoke constitutional jurisdiction so as to enforce the agreed terms and conditions but this rule would not be applicable to cases where the employment started on the basis of an agreement but later the terms and conditions of employment came to be regulated by provisions of law or rules having the force of law on account of some intervening law. The argument was advanced by the B learned counsel for the respondents himself that the Staff Service Rules framed with the approval of the Central Government by the Board have statutory force as they were made under statutory Bye- laws which were in turn framed under section 32, subsection (PLD 1980 Lah. 337) of Ordi--nance XIX of 1949. Even for the Staff Service Rules of 1980 presently in force, the statutory backing of Banks (Nationalisation) Act, 1974 was pleaded. The terms and conditions having thus been provided by statutory instruments cannot be modified or changed to the disadvan--tage of the employees by something lower in status in the shape of administrative orders or through mutual agreement. The other limb of the argument that employees of the statutory corporation are governed by the rule of master and servant and are not entitled to invoke constitutional jurisdiction may now be attended to. The short answer to this objection is that the petitioners are not seeking restoration to any office.
They have approached the Court with the grievance that the impugned action taken by the respondents is without lawful autho--rity and that they being persons performing function in connection with the affairs of Province were obliged to act in accordance with law. The circular impugned has been contended to have been issued by an officer who under the statutory rules had no power to issue the same. The petitioners cannot be refused relief merely because they are emplo--yees of a statutory corporation. A similar view was taken by Gul Muhammad, J. In Habibullah v. Government of the Punjab and 5 others (PLD 1980 Lah. 337).
7. Coming now to the merits, the foremost thing to be noted is that according to the respondents none of the petitioners was entitled to draw Rent Ceiling Allowance on 1st January, 1974 i.e. The date of nationa--lisation of the Banks as none of them belonged to any category of officers to whom the Rent Ceiling was admissible. It was stated that they belonged to the Clerical Staff category which was entitled to House Rent Allowance at 20% of the basic pay. An affidavit was filed in support of this assertion and the said assertion has not been refuted by filing a counter-affidavit. In view of above even if it is assumed that impugned circular dated 24th September, 1979 has prejudicially affected certain officers to whom the facility was earlier available, still the petitioners cannot successfully press into service the provisions of section 13 'of the Banks (Nationalisation) Act, 1974.
Moreover, as held in Agricultural Development Bank Officers Association v. Government of Pakistan and 2 others (W. P. No. 2647/80), section 13 protects only terms and conditions, etc. Admissible to an employee immediately before the commencing day and not the terms and conditions of any higher post or Grade to which he might be promoted and appointed after that day. The reasons given in the aforesaid judgment may be read as a part of this judgment. Even if any of the petitioners belon--ged to the category of officers to whom Rent Ceiling was admissible (he said facility has not been withdrawn as under item No. 5 (i) (d) of the circular dated 24th September, 1979 the amount of blouse Rent Ceiling available as on 30th June, 1979 was frozen, quantified and allowed to continue till absorbed in the amount of House Rent Allowance otherwise admissible. The main plea in this respect raised was that the impugned circulars were issued by Senior Executive Vice-President (Administration) and Executive Vice-President (Personnel Wing) whereas under the Banks (Nationalisation) Act read with Staff Service Rules, 1980, it is only Executive Board with the previous approval of the Government which cap issue binding orders having the effect of amending even the rules themselves. Learned counsel for the respondents filed an affida--vit of Ch. Munir Ahmad, Executive Vice-President. National Bank of Pakistan, wherein it was deposed that circulars in question as well as others mentioned therein were based on the directions of the Federal Government and decision contained in those circulars were made by the Executive Board and that the decisions of the Board were only circulated under the signatures of Senior Executive Vice-President (Administration) and Executive Vice-President (Establishment Division or (Personnel Wing). The petitioners did not choose to refute the contents of the affidavit by filing a counter- affidavit. It is common ground that prior to nationalisation power to frame bye-laws was provided in section 32 and under Bye-law 18 (a) (i.e) of the National Bank of Pakistan Bye-laws Central Board was empowered to frame rules with the approval of the Central Government. However, section 11 of the Banks (Nationalisation) Act provided that the Bank shall have an Executive Board and the general direction and superintend--hence of the affairs and business of the Bank shall vest in its Executive Board which may exercise all such powers and do all such acts deeds and things as the Bank was competent immediately before the commencing day to exercise or do in a meeting of the Board of Directors. The provisions contained in the Banks (Nationalisation) Act by virtue of section 2 override all other laws, agreements, etc. It is, therefore, apparent that previous approval of the Central Government for enforcing a rule is no longer applicable and the power vests exclusively in the Executive Board now. Rule 49 of the Staff Service Rules, 1980 provides that any allowance may be discontinued without notice and rule 51 disallows Rent Ceiling to the officers of the category to which the petitioners belong. The decision conveyed in the impugned circular was taken by the Executive Board under the directions of the Government. The decision thus was competently taken and is valid and effective in law. Even the statutory rules d not contemplate grant of the claimed rent ceiling facility. There is thus neither any violation of law or any statutory rule nor there is any law or rule having the force of law conferring any such right on the petitioners which may be enforced in exercise of constitutional jurisdiction.
8. For the above reasons, I am constrained to hold that this petition is without merit and is, therefore, dismissed with costs.