Article-28[ Draft of WP for T&T employees]
Article-28
یہ اس رٹ پٹیشن کا ڈرافٹ ھو جو ٹی اینڈ ٹی ڈیپاڑٹمنٹ میں بھرتی ھونے والے بنائں گے اور اسکو اپنے وکیل سے vetting کراکر ھی عدالت میں پیش کرنا ھوگا اگر انکا وکیل چاھے یا اپنی طرف سے انھی خطوط پر تیار کرے
(A) "Writ Petition for T&T employees "
(A) Draft of Writ petition for those PTCL employees who appointed in T&T Department & now part or not part of PTCL at present but are/were being governed by statutory rules of GoP in PTCL
IN THE HONORABLE _________ HIGH COURT ________
WRIT PETITION NO. ……. /…...
____________________ S or D/O _______________
Adult, Muslim/ _____________ (by caste,)
Working/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 Mazhar 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 provisions 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 not providing due emoluments ie in pays, Adhoc relief allowances and other miscellaneous allowances & increse in pensions also etc as granted and being guaranteed by the Federal Government of Pakistan to its Civil Servants time to time ,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 Telegraph and Telephone Department (T&T) an attached department with sub-ordinate offices of Ministry of Communication Government of Pakistan at that time.
3. That the Petitioner's appointment, as a_________ (Grade-_____) in the then T&T Department Government of Pakistan, was carried through prescribed procedure in the year ____________
4. That the Petitioner's appointment in the then T &T Department Government of Pakistan was according terms and conditions envisaged in Civil Servants Act 1973 as per 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 in the year 1991,vide Pakistan Telecommunication Corporation Act, 1991, the erstwhile Pakistan Telegraph and Telephone Department, was incorporated as Corporation and the employees of Pakistan Telegraph and Telephone Department, by virtue of section 9 of the said Act, stood transferred and became the employees of the said Corporation, on the same terms and conditions to which they were entitled immediately before such transfer .By the sub-section (2) of the said Section 9, the terms and conditions of such departmental employees ( defined in sub-section e of Section 2 of PTC Act 1991), as is referred to in Section (1) of the said Section 9, could not to be varied by the Corporation to their disadvantage. That on establishment of the Pakistan Telecommunication Corporation (PTC), as stated above in pursuance of section 9 of the Act No. XVIII of 1991 which reads "All departmental employees shall, on the establishment of the corporation, stand transferred to and become employees of the corporation, on the same terms and conditions to which they were entitled immediately before such transfer". accordingly Petitioner stood transferred to the Corporation as established under the Act of 1991 . Hence all statutory rules of Federal Government the Terms and Conditions of the Services for Civil Servants as mentioned Civil Servants Act 1973 (Section-3 to Section-22 ) which were being applicable for all such transferred employees in T&T Department, prior to their induction in PTC were also applicable upon them in PTC. In PTC all employees were governed by such statutory rules. This has also been confirmed by the Honourable Supreme Court of Pakistan in Masood Bhattie case reported in 2012 SCMR 152, which is now attained finally after the the dismissal of PTCL review petitions against this, vide HSC short order of dated 19-02-2016 and its detail judgement of dated 16-03-2016 ( Copy Attached at_____)
6.On the establishment of Pakistan Telecommunication Company Limited (PTCL) on 1-1-1996 under Pakistan Telecommunication (Re-organization) Act,1996, the service of the Petitioner stood transferred from PTC to PTCL & Petitioner became the employee of PTCL on 1-1-1996. 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. Such employees, pursuant to subsection (2) of Section-35, were transferred to the Pakistan Telecommunication Company Limited. The Proviso Subsection (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.The Petitioner is now still part of PTCL and working as _________in BPS____________//// is not a part of PTCL now as he/she has been retired/resigned/removed /from service wef ___________from the post of________BPS_________
7.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 (which is 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 T&T Department, were made applicable to and binding on the Corporation and then in PTCL (as they first transferred from T&T Department to the Pakistan Telecommunication Corporation under PTC Act, 1991 and then again transferred to PTCL under section 36 of the Pakistan Telecommunication (Re-organization) Act,1996, on the same terms and conditions who they possessed in T&T Department and then Pakistan Telecommunication Corporation). This has also been now confirmed by the Honourable Supreme Court of Pakistan in Masood Bhattie case reported in 2012 SCMR 152, which is now attained finally after the the dismissal of PTCL review petitions against this, vide HSC short order of dated 19-02-2016 and its detail judgement of dated 16-03-2016 ( Copy Attached at_____)
8. 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".Even Federal Govt has no any power to alter these conditions for the disadvantages of such PTCL there is no other way for PTCL but to act according to the true sprit on the verdicts honourable Supreme Court of Pakistan accordingly as per also PTC Act 1991 &
PT Act1996 .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. Since from 1-7-2005 , the PTCL management neither revised the pays & not granted any allowance without any conditions to such PTCL employees as that of granted by the Federal Government of Pakistan to its civil servants time to time . Similarly , since from 1-7-2010, the PTET at their has stopped of giving such increments in the monthly pensions of such PTCL retired pensioners as being announced by the government for their civil servants pensioners. Similarly the PTET has not given medical allowance wef 1-7-2010 and increase medical allowance wef 1-7-2015 to such PTCL pensioners,as announced by the federal government for their civil servants pensioners etc.
9. The Honourable Supreme Court of Pakistan in her Judgement in Muhammad Riaz case reported in 2015 SCMR 178 for the grant of same pension , pays & leave encashment accordingly as per of Federal Government .Mr Muhammad Riaz was the same category of employee in PTCL who had been governed by statutory rules of the Federal Government being transferred employee from PTC to PTCL on 1-1-1996 .He was retired after 30-6-2012 & with effect 1-7-2012, the Federal Govt vide through Finance Division # S.R.O 70(KE)/2012 Dated 29-08-2012, Revised Leave Encashment of 360 days instead of 180 days, where PTCL has refused to give such revised encashment amount ie of 360 days. So he knocked the door of court for his litigimate rights.There are two parts of Raja Riaz's judgment. First, pay and allowance as per Civil Servant Act, 1973, and rules framed thereunder (Section 3 to 22 of Act, 1973), encashmment of 360 days pay instead of 180 days in lieu of un-availed LPR, calculation of pensionery benefits under revised pay scale at par with Civil Servants.Second, enhancement of pension as announced by the Government.
10. Since the Petitioner is/was also the same category of employee in PTCL as of Muhammad Riaz in PTCL and Petitioner has the same issue is of Muhammad Riaz to so he/she submitted appeal to Respondents 3&4 with copy to Respondent-1 through his/her application of dated ___________along with the claim amount of Rs/-____ ( Copies appeal and claim both are attached at ________), through Registered post # __________of dated__________(Copies of each attached________)///through TCS invoice #s____________of dated_________________ ( Copies of all attached_________). As confirmed the same have been received by all such concerned on___________(Copies of acknowledgement attached_____________)
GROUNDS
1. The PTCL had no any power to alter the Terms and Conditions of such transferred employees for their disadvantages. The pay & pension are also the part of terms and conditions of the service mentioned in the Section-3 to Section-22 in Civil Servant Act 1973.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 (which also attained final when the CRP of the respondents 3&4 against it also rejected / dismissed by HSC through her short order of dated 19-2-2016 of which detail order issued on 16-3-2o16 )
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 viz 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 the act of PTCL & PTET for not payment of pays, allowances & pensions as announced by the Federal Govt for its civil servants time to time, are illegal and tantamount to be the violation of HSC verdicts.
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.The Honourable Supreme Court of Pakistan in her Judgement in Muhammad Riaz case reported in 2015 SCMR 178, ordered PTCL & PTET for payment pay,leave encashment & pension etc to Mr Muhammad Riaz as since he was the transferred employee from PTC to PTCL on 1-1-1996 and according to HSC verdicts in Masood Bhattie, he was being governed statutory rules of GoP in PTCL during service there, so ultimately he should be given same pay allowances during service and pension as of GoP for its civil servant.Since the Petitioner is also the PTCL employee of the same category thus having the same issue as that of Muhammad Riaz so the PTCL & PTET are bound to to pay the same to him/her.As it is ruling of HSC that if issue is the same ,the decision will be applicable to all such employees ie
the decision made by a court in favour of an employee will be applicable to other employee o the same issue.in this connection the decision of the Honorable Supreme Court of Pakistan , Judgement , of 1996 SCMR 1186 is referred. So when Petitioner requested the respondents 3&4 with copy to respondent-1 for the pay same to also him as per GoP and pay the claim amount,no any action has been taken by the respondents till date.
PRAYERS
The petitioner, therefore, prays that this Honourable Court may be pleased to
a) direct respondents 3& 4 to pay arrears of his/her legitimate pays, Adhoc relief allowances, Misc allowances, Convince allowances , Medical Allowances , Leave encashmets pensions ,medical allowances for pensioners etc as given by GoP etc to its civil servants till date , without any further loss of time claimed amount of the petitioner to till date with claimed for up to date___________
b) 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;
c) award costs of the petition to the petitioner.
Signature________________
Petitioner
Date
____________________
Advocate
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