Article-16(Drafted Writ Petetion for those VSS retiree w/o pension who point in PTC directly)

(B) Draft of Writ petition for those who appointed in Pakistan Telecommunication Corporation and retired under VSS 2008 from PTCL without pension in spite having 10 or more than ten years qualifying service but less than 20 years

                                              ************************

IN THE HONORABLE _________ HIGH COURT ________


                                                                WRIT PETITION NO. ……. /…...

____________________ S or D/O _______________

Adult, Muslim/ _____________ (by caste,)

Ex_____________________PTCL ____________

Resident of _____________________________

_________________________..……………………………………PETITIONER

                                             Versus

1. Federation of Pakistan
   Through Secretary Information & Technology
  Ministry of Information & Technology
 4th Floor Evacuee Trust Building
 Islamabad.
2. Pakistan Telecommunication Company Ltd,
   Through its President,
   Pakistan Telecommunication Company Ltd.
  PTCL HQs.G-8/4
  Islamabad.
3. The President & CEO PTCL
    Pakistan Telecommunication Company Ltd.
    PTCL HQs.G-8/4
    Islamabad
4. Mr Hamid Farooq
     Managing Director PTET
     Pakistan Telecom Employee Trust
    Tele-House Mouve Area
    G-10/4   Kashmir Highway
    Islamabad
5.Syed Mazher Hussain
    Senior Executive Vice President (HRA)
    Pakistan Telecommunication Company Ltd.
    PTCL HQs. G-8/4
   Islamabad     . . . . . . . . . . . . . . . . . . . . RESPONDENTS

                                                                 
WRIT PETITION UNDER ARTICLE 199 READ WITH ARTICLES 4, 8, 9, 13, 14, 25, 27   OF THE CONSTITUTION OF ISLAMIC

REPUBLIC OF PAKISTAN 1973
Respectfully Sheweth,                      

                                        Respectfully it is submitted that above named petitioner, having being greatly aggrieved by the  policy of the  PTCL management to victimize, disgrace, discrimination, disregard and unlawful  actions with the PTCL regular employees who stood transferred from PTC to PTCL on 1st January 1996 and thus having statutory protection of   rules of the Federal government, is filling this writ petition to this Honourable ________ High Court ________ for the sake of justice and  for compensating the damages  caused to him for his unlawful retirement without pension through VSS 2007-2008 , on the following facts and grounds. .
FACTS
1. The Petitioner is an educated in ___________from___________ in the year ______________
2. That the Petitioner joined on __________in Class- ____Service (____________) of erstwhile the then Pakistan Telecommunication   Corporation under the then Ministry of Communication Government of Pakistan at that time.
3. That the Petitioner’s appointment, as a_________ (Grade-_____) in the then then Pakistan Telecommunication   Corporation was carried through prescribed procedure in the year ____________
4. That the Petitioner’s appointment in the then then Pakistan Telecommunication   Corporation was under sub-rule (2) of Rule (3) of the Civil Servants (Appointment, Promotion and Transfer) Rules 1973. His terms and conditions of service at the time of initial appointment in the service of Pakistan were confirmed to be governed by the provisions of the Civil Servants Acts, 1973, and such other terms and conditions as are in force or may be prescribed by the Government from time to time. You shall appreciate his status and position since his initial appointment to be a Civil Servant in the service of Pakistan having constitutionally protection under Art. 240 of the Constitution 1973.
5. That on the establishment of PTCL wef t 1-1-96 under Pakistan Telecommunication (Re-organization) Act, 1996, the service of the Petitioner stood transferred from PTC to PTCL and he became the employee  of PTCL on 1-1-96 . By section 36 of the Pakistan Telecommunication (Re-organization) Act, 1996, the terms and conditions of service of employees of the Corporation, has been safe guarded, The Proviso sub-section (1) of Section 36 of the said Act of 1996 provides that that the Federal Government shall guarantee the existing terms and conditions of service and rights, including the pensionary benefits of “Transferred Employees”. It may not be out of place to mention here that all these employees who were transferred pursuant to this Act of 1996 to the Pakistan Telecommunication Company were called as “Transferred Employees” Subsection (2) provided that the terms and conditions of service of any “Transferred Employee” shall not be altered adversely by the Company except in accordance with the laws of Pakistan or with the consent of the “Transferred Employees” and the award of appropriate compensation.
6..That in the historical judgment of Honourable Supreme Court of Pakistan in C.A 239 to 241 of 2011 namely Masood Bhattie and others Vs Federation of Pakistan now reported in 2012 SCMR 152 announced on 7th October 2011,(Photostat Copy Attached at Annex……)  for guidance and establishing the “Rule of Law” and “Justice “ in PTCL, clearly defined the status of transferred employees in PTCL is of Civil Servants as they  have statuary status because whatever rules were in place governing the employment in the PTC, were made applicable in the Corporation , the same would be applicable in PTCL.
7.The present PTCL management has never safe guarded the interest of these   transferred employees and never full fill their legal obligation to treat such employees who have statutory protection of Government rules  and accordingly their terms and conditions of service cannot be varied for their disadvantages. After the clarification by the Honourable Supreme Court of Pakistan in the said judgment of dated 7th October 2011 in  ”the statutory rules will be applicable on these transferred employees in PTCL and these statutory are rules of employment of Govt of Pakistan and PTCL has no power to vary the terms and conditions of the service of such employees for their disadvantages who were previously the employees of Corporation and & stood transferred  to PTCL on 01-01-1996”, there is no other way for PTCL but to act according to the  true sprit on the verdicts  honorable Supreme Court of Pakistan.
But contrary to the above, the PTCL management adopted their own rules to for the treatment of such PTCL employees who have the statutory protection of rules of Federal Government of Pakistan. The PTCL management was unnecessary victimizing, teasing, and torturing such employees on the basis of unlinking and even on the very minor charges. The main aim of the cruel PTCL management who just have 26% shares in PTCL, to kick out such employees from PTCL by hook or crook. They offered the VSS package in 2007-2008 to such transferred  employees in PTCL for the granting of pension on the basis of twenty years qualifying service where there is provision in Pension Rules of Govt of Pakistan that on the compilation of ten (10) years qualifying service , a civil servant becomes entitle of pension and as his /her qualifying service increases from the ten years of qualified service yearly  the " Scale of pension expressed as fractions of average emoluments" increases ( Copy of the Revised Pension Table attached at____ which is annexed as Annexure I in Pension Rules Manual Government of Pakistan).   In fact the PTCL management was not legally authorized to retire such employees under VSS without pension who had legally right and entitlement of pension having ten years and more than ten years qualified service for pension. The PTCL without law full authority extended the period for granting pension for 10 years to twenty years. As per Section-9 (2) of PTC Act 1991 & Section-36(2) under which all such transferred employees are protected in PTCL, their Terms and Conditions of service cannot be altered for their disadvantage by the Company (PTCL). The pension is the part of such  Terms of Conditions of the Services .The petitioner is one them who has been retired in VSS 2007-2008 scheme by the PTCL  vide their memo number ____________unlawfully without pension in-spite of having qualifying service of________ years. The Petitioner suffered a great monitory loss and also being suffering of non-having pension due to the unlawful action and victimization policy of the   PTCL management
8.First  the PTCL management declared petitioner "Redundant" as obvious from  notification number____________dated___________  (Copy attached ________) and then he was forcibly compelled to get retirement without pension in VSS 2007-2008 scheme, He was threatened  that in case the petitioner could not adopt such retirement without pension , he would be transferred very  remote and deserted areas. Otherwise who want to get retirement without pension after having entitled service period for pension?
9. After the dismissal of review petition of PTCL & PTET against Masood Bhattie case reported in 2012 SCMR 152 and when it has been attained final, the petitioner sent his appeal vide his application of dated __________through_______to the Respondent 3&4 for the order of restoration his pension from the date of his retirement under VSS 2007-2008 without pension and payment of all its arrears up to date (Copy of the same attached at __________). But neither any action is taken nor the petitioner has been informed anything in this regard till date

                                                                                                     GROUNDS
1.To alter the qualifying service period of the for pension from ten years to twenty years  for the disadvantages of petitioner , was unlawful act of PTCL had no any power to alter the Terms and Conditions of such transferred employees  for their disadvantages. The pension is one of the part of terms and conditions of the service. The petitioner stood transferred in PTCL from PTC and became the employee of PTCL on 1-1-1996 by virtue Section 35(2) of PT ( re-Organization) Act 1996.Hence this alteration in pension qualifying service from ten years to twenty years is  the clear violation of Section -9 of PTC Act 1991 and  Section 35(2) of PT ( re-Organization) Act 1996.  No alteration in the Terms and Conditions in Service of the transferred employee in PTCL who became the employee of PTCL on 1-1-96 can be done for his/her disadvantages. This clearly mentioned in the Para-15, Para-16 &  in Para-17 in the judgement  (re produced below) of Honourable Supreme Court of Pakistan namely Masood Ahmed Bhatti & others Vs Federation of Pakistan & others  C.A. 239 to 241 of 2011 reported in 2012 SCMR 152
                                                     Para-15

 “Thus it is evident that at the moment of transition when the appellants ceased to remain the employees of the Corporation and become    employees of PTCL, they admittedly were governed by the rules and regulations which had been protected by PTC Act. The said rules, therefore, by definition were statutory rules as has been discussed above.PTCL, no doubt, could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1-1-96.However, by virtue of aforesaid proviso, PTCL has no power to “vary the terms and conditions of service “of its employees who were previously employees of the Corporation “to their disadvantages”. Even the Federal Government was debarred by virtue of Section 35 ibid, from varying such terms and conditions of service to disadvantages of the appellants.”
Para-16
       "An easy and uncomplicated test becomes available to us to help determine the status of employment governing the appellants
 If the current employer of the appellants via PTCL is constrained by legislation such as Section 35(2) of the Reorganization Act, and as a consequences, cannot vary the existing rules to the disadvantages of the appellants, because of such legislation, it must fallow the such law has the effect of saving the rules which existed when appellants became employees of PTCL. Such existing rules, having been protected by Section 35(2), therefore can only be categorized as statutory rules."
Para-17 (last lines)                                
   "When this legal provision is read together with Section 35, it becomes abundantly clear that by operation of Reorganization Act , the terms and conditions of service as on 1-1-1996 stood conferred on them  as vested rights under the said law."
From the above verdicts of Honourable Supreme Court in Masood Bhattie case (2012 SCMR 152), it is crystal clear that PTCL had no power to alter the Terms and Condition of the Service of petitioner for his disadvantages as his terms and conditions of service as on 1-1-1996 stood conferred on him under the said law i.e. Section 35(2) of the PT (re -Organization) Act 1996.  So alteration in pensionable service from ten years to twenty years and to compel the petitioner for retirement without pension under VSS 2007-2008was mollified and unlawful action of PTCL, for which the PTCL had no legally power
2. Petitioner’s Constitutional guaranteed rights having statutory protection of  terms and conditions and rights  in totality and fully secured under PTC Act 1991, PT (Re-Organization) Act 1996,  and by the two agreements between the President of the Islamic Republic of Pakistan, for and on behalf of the Federal Government of Pakistan,  and  Etisalat International Pakistan LLC (minority share purchaser of PTCL with management control) signed on 12-03-2006 i.e. Share Purchase Agreement Clause 15.2 and on 12-04-2006 i.e. Shareholder Agreement Clause 16.2. Non- settlement of his rights and claims as per Federal Government Rules and Regulations tantamount adversely altering his terms and conditions and rights of service.
3. The benefits of long performed government service had created valuable rights in his (Petitioner) favour being, a ‘Transferred Employee” had attained finality. Such valuable rights could not be undone/withdrawn or superseded/rescinded to the detriment of those rights because of sale of minority share with management control. It is devoid of any moral or legal sanctions behind it and does not fulfil the requirement of natural justice.
4.If a govt servant ,having such statutory rules provision, is compulsory retired as a result of finalisation  disciplinary proceeding against him/her , then according to rule he/ she would entitled  pension from the date of his/ her compulsory retirement if he /she possesses the qualified service ten years or more , being his/her fundamental rights. But the cruel PTCL management forcibly got retirement from such transferred employees in PTCL without pension in VSS 2007-2008, in spite of having qualified service more than ten years and less than twenty years. Thus such employees were discriminatory treated, which was clear violation of Article -4 read with Article -27 of the Constitution of Islamic Republic of Pakistan. The PTCL management clearly responsible of such violations of the Constitution and tantamount to be strict action against them according to the law.
5. In 1997-1998 similar type voluntary scheme under golden shake hand was introduced by the then PTCL management but not such type conditions for granting the pension for such transferred employees of having qualified service twenty or more, were imposed. It is fundamental law who retires from the govt service, he/she definitely get pension subject to the condition of having due qualified service of ten years or more. So those who retired voluntary in under golden shake hand in 1997-1998 are still getting monthly  pension as they were having there qualifying service ten years or more  even  less than twenty years. But those retired unlawfully in VSS 2007-2008 are not getting monthly pension unfortunately as they did not possess required qualifying at that time i.e. service of twenty years. This was the clearly unlawful treatment of PTCL with the transferred employees.
6.It is worthwhile to mention here there is very relaxation in Pension Rules for the grant of pension for instance  if there is deficiency of a period not exceeding period six month in the qualifying service of such employee shall be deemed to have been condoned automatically ( Rule 423(1) of CSR) and the competent may sanction condone , in unavoidable circumstances , if there is deficiency of period exceeding six months and less than one year in the qualifying service of such employee (Rule 423(2) of CSR). But, here PTCL instead of condoning the deficiency period in qualifying service, if any, unlawfully extended the period of qualifying service up to twenty years, for which they had no power.

                                                                                                       PRAYERS
The petitioner, therefore, prays that this Honourable Court may be pleased to
a) direct respondents 3& 4 firstly, to approve/ restore the pension of the petitioner from the date of his retirement under VSS 2007-2008
B) direct above said respondents concerned for the payments of the arrears of such of the restored pension from the said date of his retirement to till date.
c) direct above said respondents for the same increase in the pension of the petitioner to be given as announced by Govt time to time during intervene periods of his retirement without pension along with the arrears of the same to till date.
d) direct above said respondents to include the *Medical Allowance wef 1-7-2010 according to his grade_____with his due pension and 25% increase in the said **Medical Allowance wef 1-7-2015 be also given as announced by the Govt for civil pensioners. The arrears of the same also be given weft from the dates 1-7- 2010 & 1-7-2015 to till date respectively.
e) direct the respondents 3 to restore ***medical facilities of me and my authorised family members immediately as being given to all PTCL Pensioners.
f) to grant such order/further relief /compensation or pass such other orders as may be deemed fit and appropriate in the circumstances of the case and;

(Name_______________)

             Petitioner

   Dated…………….


Note:-
*Medical Allowance given by Govt to all govt and army pensioners wef 1-7-2010[ Finnace Division Govt of Pakistan Notification No F.16(1)-Reg.6/2010-778 dt 5-7-2010] along with the usually increase of yearly pension. 25%  Medical Allowance for those who retired from the  BPS-1 to BPS-15 and 20% of above BPS-15 to BPS -22 and it was freezed at this stage
**  25% increased  wef 1-7-2015 [Finnace Division Govt of Pakistan Notification No F.16(1)-Reg.6/2015-698 dt 7-7-2015] in medical allowance which was freezed on 1-7-2010 .Where increase in pension 7.5% wef 1-7-2015
*** It is usual medical facilities given by PTCL to its working and retired employees through their Medical System  ie PTCL Medical Dispensaries and PTCL panel Hospitals in the cities