Article-144[ Regarding Draft of Arguments for the Councl of Respondents In ICA cases in IHC]

 نوٹ :- کل یعنی  بروز بدھ ، 9 جون 2021 اسلام آباد ھائی کوڑٹ میں سنگل بینچ کے 3 مارچ 2020 کے پی ٹی سی ایل پنشنرز پٹیشنرز کے حق میں آنے والے فیصلے کے خلاف پی ٹی سی ایل اور پی ٹی ای ٹی کی طرف سے تقریبن 35 انٹرا کوڑٹ اپیلیں دائئر کی گئیں جسکی پہلی شنوائی 2 جون 2021 کو اس عدالت کے ڈبل بینچ نے کی تھی ۔ جسکے سربراہ معزز چیف جسٹس اسلام آباد ھائی کوڑٹ  اطہر من اللہ صاحب تھے۔ اس دن اپیلنٹس کے وکلاء نے بحث کی  تھی اب کل ریسپونڈنٹس کے وکلاء بحث کریں گے اور انکے اس اعتراضات کا جواب دیں گے ۔ جو انھوں نے 2 جون کی عدالتی کاروائی میں کئے تھے۔ 

میں  نے اسی تناظر میں یہ انگلش میں ڈرافٹ بنایا ھے اور انکے اعتراضات کا قانونی پہلو سے جواب دیا ھے۔ اس میں تقریبن وھی نکات  شامل ھیں جو میں اپنے آڑٹیکل 143 میں بیان کرچکا ھوں ۔ یہ ڈرافٹ میں نے ان متعلقہ وکیل صاحب کو بھجوادیا ھے اب یہ انکی مرضی کے وہ اسکو اپنے بنائیے ھوئیے جواب میں شامل کرتے ھیں یا نھیں ۔آپ سب لوگوں کی آگاھی اور سمجھنے کے لئیے یہ ڈرافٹ آف آرگیومنٹس  فیس بک فرینڈز سے شئیر کرر رھا ھوں ۔ اپنی رائیے سے نوازئیے گا ۔ شکریہ

واسلام

محمد طارق اظہر

مورخہ 8 جون 2021

DRAFT OF ARGUMENTS PROPOSED TO  BE SUBMITTED BY COUNCIL OF THE RESPONDENTS IN ICA CASES IN IHC ON 

9TH JUNE 2021

 My lord!

                It is a well-established principle that whenever an intra-court appeal is filed in the High Court against the decision of a single bench of the said High Court, the Appellate Council always object to the aforesaid judgment and challenge it.  But the learned Council of the Appellants Anwar Shahid Bajwa, instead of starting  arguments on the impugned judgement of the single bench judge ie  the  Honorable Judge, Mr. Mangal Hussain Aurangzeb on the appeal of Rasool Khan and others WP- 523/2012 , he started raising  some new issues , which were not related to the said impugned  . He , instead of giving the arguments, aimed at filing these intra-court appeals and what are the flaws in the decision of 3rd March 2020 ,  contended that those  employees who were stood transferred from T&T to PTC under PTC Act 1991 & joined it on November 27, 1991 , were not civil servants. Therefore, they were not entitled to the any benefits announced by the government time to time . He further said that many of the respondents came to the definition of workmen and they did not even had  no  authority to  invoke the jurisdiction of the High Court, so why did the single bench judge entertain their writ petitions  and decided in their favour.

For his  second issue, that he raised, that employees of of T& T department  who stood transferred from T&T to PTC on 27th  November 1991 , as per Clause 9(1) of PTC Act 1991 , had the same terms and conditions in Corporation, of which they were entitled immediately before such transfer to PTC, in T&T department. Explaining this further, he said that such transferred  employees in the corporation were not entitled  of any increase in their salaries or in pensions , accordingly as per announcement of Govt time to time.  This meant that whatever salary, pension allowance, etc. they were receiving in T&T immediately before the transfer to their corporation should remain constant and same He further elaborated  when  July 1, 2010, the government increased the pensions of its retired civil servants and the government increased the salaries of its civil servants on July 1, 2017, such  transferred employees in PTCL , were not entitled to enjoy of all such.

All such  issues raised by the learned  council of appellants , were irrational and baseless. Respected Honourable Chief Justice questioned the him  , why he  was raising such  issues then , which been never raised in any case before, not even when the Masood Bhatti case of  CRP, was  being heard. Although these irrational and fabricated issues of the lawyer  of the appellants have nothing to do with this judgment of the single bench, it is better to dismiss it with a proper reply

As far as the  first issue is concerned, regarding the employees who were transferred from T&T to the PTC , were not civil servants, it is absolutely wrong. Position of them  , have been clarified  by Honorable Supreme Court in the Masood Bhatti case ie  in Masood Bhattie & etc Vs FoP & etc (2012 SCMR 152 )that  they were  clearly  Civil Servant .The relevant  Para -7, 0 of the  said judgement is reproduced below.

“. . . It is, as noted above, not in dispute that prior to the establishment of the Pakistan Telecommunication Corporation (the ‘Corporation’) under the PTC Act in 1991, the appellants were civil servants. It is also not a matter in contention that at that time (prior to 1991) the appellants were governed by the various rules and regulations governing the services of civil servants. The Civil Servants (Efficiency and Discipline) Rules, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provide instances of rules which, among others were applicable to the relationship between the appellants and their employer namely, the Federal Government. Such rules undeniably, were statutory, having been framed under rule-making powers granted to the Federal Government, inter alia, under the Civil Servants Act 1973.” It is added further that in the definition clause 2(e) of PTC Act 1991 , all  such transferred employees ie civil servants in T& T department are  refferd as  “Departmental Employees  , defined as under

“Departmental employees  belonging to the Pakistan Telegraph and Telephone Department and includes employees of the said Department who may, for the time being be serving in other organisation , but does not include members of accounts groups or secretariat group or other employees of external organisation who may serving in the said Department.”

The second issue is  concerned that the transferred employees in PTC then in PTCL should always had   the same government benefits , which they had  immediately before their such  transfer from T&T to Corporation ie just before  November 27, 1991. It would had not been possible as it against the  fundamental rights and the law which are unenforceable .The Supreme Court in its Masood Bhatti case 2012SCMR152 and 2016SCMR1362 , has stated  in detail that the departmental employees working in PTCL transferred from the Corporation on January 1, 1996 and became employees of the company are subject to the same Government Civil Servants Act 1973.  From Section 2 to Section 22 of the the terms of service terms and conditions will apply on them . Therefore, whenever government announces any benefits to its civil servants, it would be also applicable to such transferred employees being governed under statuory rules of govt of Pakistan . Whether it's benefits, pay rises, new allowances, or pensions, etc.  

We have seen that in the past, whenever the government made such an announcement for its civil servants regarding the increase in pays or pensions , such transferred employees working in PTC and then PTCL became entitled of the same . When the government had increased the salaries of its civil servants on July 1, 1994, the salaries of such transferred  employees  of the PTC were also increased accordingly  wef July 1, 1994 and so on . In PTCL,  their salaries were also increased with effect December 1, 2001 accordingly as increased by the government to civil servants.  It is a different matter that later on PTCL had discontinued of granting pay increases as announced by the gov from 1st July 2005 , when govt announced pay increases for their Civil Servants . And this discontinuation is still going on . It may be recalled that PTCL was bound by the law to pay such salaries or allowances as announced by the government as such  employees were also subject to the same provisions of the Government Civil Servants Act 1973 as that  civil servants of the government. With effect , 1st July 2010, the PTET abruptly terminated of giving government announced pension increases. And its Board of Trustees started increasing in pension as per their own. Which were always lower then that of the  the government’s.

The learned council said  that apart from giving government pension increases to the respondents, other allowances along with the pension ie medical allowance and orderly allowance etc, the decision of the single bench judge was illegal and said that it could not be given.  Because the decision of June 12, 2015 only mentions the pension increase announced by the government.  At this stage, when the Hon'ble Chief Justice asked him to read the concluded  paragraph of the same judgment, but he did not read the entire paragraph and deliberately excluded these words. . . in respect of  such employees , probably on the apprehension , that the Hon'ble Chief Justice might direct for the payment such govt  pension increases   to all such employees.

The learned counsel for the appellants said that since on June 12, 2015, a three-member bench of the Supreme Court had ordered for the payment of only for government pension increases to all such employees, and no any  order was given for the payment allowances ie  medical allowances , orderly allowance etc, hence these allowances can not be given to the respondents. So does this mean that the respondents are not entitled to the such  allowance and  they could not get it because the Supreme Court in its June 12, 2015 decision did not make any order in this regard? But In fact, on the basis of this June 12 ; 2015 decision, a two-member bench of judges of  Supreme Court ruled on Muhammad Riaz's appeal on July 6, 2015, ordering him to pay the government pays and pension increases . And appellant paid him also medical allowance  wef 1st November 2020 along with the government pension. In the concluded para of Muhammad Riaz Vs Federation of Pakistan 2015 SCMR 1783 , it is clearly mentioned the basis of such order .It same had produced here

“8. In the above perspective, taking into consideration the judgment of three member bench of this Court delivered in C.Ps. Nos. 565 to 568/2014, etc., wherein the subject matter of the instant petition has already stood adjudicated and decided in favour of transferred employees, we convert this petition into appeal and allow the same while setting aside the impugned judgment, and it is held that the case of the petitioner is at par with the case of transferred employees in C.Ps. Nos.565 to 568/2014, etc., therefore, the petitioner is entitled to payment of increase in pay and pension as announced by the Government from time to time.

As the  learned strongly objected to the decision of the Single Bench in which he ordered the respondents to pay the medical and other allowances along with the pension increases within fifteen days . Where the single bench judge made this decision purely on merit .In Para 37 of his judgment , he mentioned 

“Since the law laid down by the Hon’ble Supreme Court  in the cases Pakistan Telecommunication Employees Trust (PTET) Vs Muhammad Arif ( supra), Muhammad Riaz Vs Federation (supra) and PTCL  Vs Masood Bhattie (Supra) is binding not just on this Court but also on PTCL and PTET in-terms  of Articles 189 and 190 of the Constitution. PTCL and PTET were bound to give all the departmental employees the very same benefits as had been given  to the similarly placed departmental employees who were the parties to the review petitions filed against judgement of the  Hon’ble Supreme Court in the case Masood Bhattie Vs Federation of Pakistan (Supra) . “

It is also beyond our comprehension that what objections, the learned had on the judgment of single bench judge of dated 3rd March 2020  for  the payment of govt pension increases , when PTET had already paid such govt pension arrears  to the 343  such PTCL  pensioners petitioners in February 2018 on  the such type order by of the  two members HSCP judges bench on the 15th February  2018. While all other non-petitioner PTCL pensioners have been deprived of it , which is against the   principle & law , laid down by the HSCP in  in the case of Hameed Akhtar Niazi Vs Secretary Establishment Devision Govt , 1996 SCMR 1185 of Pakistan  holding that a decision given by this Court on a point of law will be binding on concerned departmental functionaries who will be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant has litigated . Where in  In the case of “Syed Mahmood Akhtar Naqvi and others. Vs. Federation of Pakistan and others” commonly known as Ms. Anita Turab case,it was retreated  three members bench judges Specifics  to the law relating to civil servants and matters in respect of their service , we have enunciated a principle of law in the case titled Hameed Akhtar Niazi versus The Secretary Establishment Division (1996 SCMR 1185) holding that a decision given by this Court on a point of law will be binding on concerned departmental functionaries who will be obliged to apply such legal principle in other similar cases regardless of whether or not a civil servant has litigated the .In appropriate cases the failure of a state functionary to apply a legal principle which is clearly and unambiguously attracted to a case, may expose him to proceedings also under Article 204(2)(a) of the Constitution. This article, it may be recalled, grants this Court the power to punish for contempt any person who “disobeys any order of the Court”. In a recent judgment, the Court has clarified the significance of the law of contempt as an enforcement mechanism. But in this case instead extending the benefits of the order of the HSCP of dated 12th June to the non petitioners according to the principle and law laid down by HSCP in Hameed Akhtar Niazi Vs Secretary Establishment Devision Govt of Pakistan ( supra), the PTET filed the Intra court appeals against the order of single judge of this honourable court who have ordered for govt pension increases to the respondents accordingly as per order of HSCP of dated 15th for the payment of govt pension increases to the petitioners of the case. 

 So it is requested to this Hon'ble Court to dismiss these intra-court appeals and direct appellants to make payments within in due time  accordingly as per order single bench judge of dated 3rd March 2020 and submit compliance report  within forthright.Thanks