Professional Documents
Culture Documents
(Appellate Jurisdiction)
Present:
Mr. Justice Nasir-ul-Mulk, CJ
Mr. Justice Gulzar Ahmed
Mr. Justice Mushir Alam
AND
CMA No.3540 OF 2014 in C.P.No.565 OF 2014
[For impleadment of Telecom Pensioners Association as Respondent]
VERSUS
JUDGMENT
GULZAR AHMED, J.— These petitions have arisen from two sets of
The enactments under which their services were transferred are dealt
respondents who have filed Writ Petitions in the High Courts was that
3. We have heard the learned ASCs for the parties and have
contended that there is no provision in the Civil Servants Act, 1973 for
contended that the provision of Civil Servants Act being not applicable
granted by the government to the civil servants will not extend to the
statutory Trust but there being no provision in the statute providing for
per the one announced by the Government of Pakistan but in 2010 the
the liability of the Trust to pay pension and its increase to the
1996, and those who came into employment after 1996 are not
governed by the Trust and are merely contract employees and their
have received the benefit of VSS cannot maintain the petition as their
dues including pensionary dues have been fully paid by the petitioner.
in C.P.No.567 of 2014; Mr. Rizwan Ijaz, learned ASC for the petitioner
in C.P.No.568 of 2014; and Mr. Zulfiqar Khalid Maluka, learned ASC for
with the condition that it should not be less favourable to which they
increase. He contended that those employees who have opted for VSS
in 2007, 2008 & 2009 are being paid pension @ 7% every month
according to the terms of VSS and such being the bargain made by the
VSS optees, they are not entitled to grant of any other pensionary
SRO and such became past and closed transaction. He contended that
there are two types of regulations; one are statutory and the other are
non-statutory and that the PTET Rules are statutory rules and are
Court.
in C.P.Nos.565, 566 and 582 of 2014 has read the provisions of six
took over the liability of the Pension Fund created by the Trust Deed of
contended that all orders passed prior to the promulgation of this Act
were saved including the Employees Pension Fund Rules, 1994 and
that the Company has assumed the liability and such pension is also
protected.
employees their benefits cannot be reduced from the one they were
being paid salary and other dues that of a government employees and
C.P.Nos.1596, 1597, 1602, 1643, 2064, 2065, 2066 and 2067 of 2014
10. Mr. Abdul Rahim Bhatti, learned ASC for the respondents
payment of pension upto 2010 and that such was a guaranteed right
and their terms and conditions of service are governed by the Civil
others [1999 SCMR 1526]; and order dated 23.08.2013 passed by this
11. Mr. Hashmat Ali Habib, learned ASC for the applicants in
CMA No.3540 of 2014 and Mr. Ghulam Mahboob Khokhar, learned ASC
-9–
C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014
for the respondents in C.P.Nos.567 & 584 of 2014 have adopted the
the Corporation shall have the same terms and conditions to which
they were entitled immediately before such transfer and that the terms
Organization) Act, 1996 (the Act of 1996) was promulgated for the
under the Companies Act, 1984, with the principal object of provision
Company from the effective date. The Vesting Order was also to
- 10 –
C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014
become the employees of the Company from the effective date. Sub
Employees. Sub Section (2) of Section 36 provided that the terms and
employees and the Company shall not alter such pensionary benefits
and the Company shall be liable for and assume the responsibility to
13. From the reading of the Act of 1991 and thereafter of the
conditions of their service similar to the one they were enjoying before
Under the terms and conditions of service, such employees were also
(the Trust). Section 45 of the Act of 1996 made provision for issuing
and such liabilities as are specified in the Trust from the effective date.
Section 46 of the Act of 1996 lays down functions and powers of the
Trust which, inter alia, provides for making of provision for the
provision of the Act of 1991 so also that of the Act of 1996 that the
paid pension at the same rate of increase as has been provided by the
follows:-
- 13 –
C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014
pension was being paid by the Trust; (1) who retired before
01.01.1996 and (2) who retired after 01.01.1996. The chart also
makes it clear that those who had retired before 01.01.1996 are being
Pakistan while those who had retired after 01.01.1996 being paid
pension by the Trust until 2009 appears to be consistent with the rate
been amplified from the provisions of the Act of 1991 and the Act of
1996 read with Para 2 of the Trust Deed of 2nd April, 1994, which term
was not varied or altered in creation of the Trust rather the same was
kept intact.
were appointed Telephone Operators and it was held that “in cases of
conditions under which they were working before their transfer to the
are not statutory, the principal of master and servant governed the
& 6 others [PLD 1996 SC 222], it was held that the employees of T&T
case of Ejaz Ali Bughti V. PTCL & others [2011 SCMR 333], this Court
2006 SC 602], the petitioner was not civil servant and his appeal
others [PLD 2011 SC 132], though it was held that the Company is a
- 15 –
C.Ps 565-568, 582-584, 1596-1597, 1602, 1643, 2064-2067 of 2014, Crl.P.No.214 of 2014 & CMA No.3540 of 2014
person within the meaning of Article 199 (5) of the Constitution and
will be amenable to the writ jurisdiction of the High Court but there
17. Mr. Shahid Anwar Bajwa, learned ASC for the Company
has contended that the case of Masood Ahmed Bhatti & others V.
& Telecommunication & others [2012 SCMR 152] may not be relied
upon by this Court for the reason that such judgment is being
of the learned ASC is that a review petition for the review of a reported
judgment may be pending in this Court. We may note that until the
reached other than the one which has already been pronounced by this
judgment of three members bench of this Court and as per the law of
were admittedly civil servants and they were transferred from T&T
provisions of the Acts of 1991 and 1996 and the Vesting Order dated
18. Thus, in the above case this Court has held that the terms
upon the pronouncement of this Court in the case of Akram Ul Haq Alvi
Islamabad & others [2012 SCMR 106]. However, the question before
us is not about the tenor and status of the government order or the
(supra), this Court has held that not only the terms and conditions of
the Corporation and then to the Company will be the same but also the
Company having retired, they will as per the terms and conditions of
employees, the same will also apply and will be paid to the employees
Section 46 (1) (d) of the Act of 1996 where it is stated that the Board
very term “to the extent of their entitlement” shows that there are
apparent from the chart shown above where there already existed two
kinds of employees, one who have retired before 01.01.1996 and the
Act of 1996, we do not find that this Section has any direct nexus with
Corporation and then to the Company and not any other employees.
learned ASC, we may note that while the Company may be entitled to
fix the terms and conditions of service of its employees so also the
of the Act of 1991 and Sections 35, 36 and 46 of the Act of 1996 and
Punjab, Finance Department & 269 others V. M. Ismail Tayer & 269
others [2014 SCMR 1336], this Court has held that while on
payment of full pension. It was noted, and such has been done time
accordance with law. The aspect of the statutory rules has already
been dealt with above and we tend to agree with the rule laid down in
having retired after their transfer to the Corporation and the Company,
CJ.
J.
Islamabad
APPROVED FOR REPORTING J.
*Hashmi*
J.