2023 PLC(CS)N 37

PAKISTAN TELCOMMUNICATION EMPLOYEES TRUST Versus MUHAMMAD JAFFAR KHAN

Citation2023 PLC(CS)N 37

CourtIslamabad High Court

Judge(s)Aamer Farooq

1. AAMER FAROOQ, J.---- This judgment shall decide the above-mentioned Intra Court Appeal as well as other appeals mentioned in Schedule-I attached herewith inasmuch as the questions involved are common.

2. There are three sets of appeals which are being decided, however, the questions involved in all three sets are almost the same. The private respondents in all the appeals except I.C.A. No.273/2020, (in which case the appellants are either employees of erstwhile Telegraph and Telephone Department ("T&T Department") or employees of Pakistan Telecommunication Corporation ("Corporation"). In 1991, the T&T Department of Pakistan merged into a Corporation through Pakistan Telecommunication Corporation Act, 1991 ("1991 Act"). In the definition clause of the referred Act, section 2(e) defines departmental employee as an employee belonging to the Pakistan Telegraph and Telephone Department, including employees of said department who may be serving in other organizations, but did not include members of the accounts group or secretariat group or other employees of external organizations who may be serving in the said department. Section 9 of the 1991 Act provided security of terms and conditions of service and under subsection (2) ibid, it was provided that the terms and conditions of service of any such person who has been transferred shall not be varied by the Corporation to his disadvantage. Another change was made as to the status of the Corporation by way of creation of a Company through Pakistan Telecommunication (Re-Organization) Act, 1996 ("1996 Act"). Under the same, Pakistan Telecommunication Company Limited ("PTCL") was created (section 34 of the 1996 Act). Section 36 of the 1996 Act provided for transfer of employees of Corporation to the newly created company and such employees were referred to as 'transferred employees'. Like the 1991 Act, terms and conditions of service of the transferred employees were saved by providing that they shall not be altered adversely by the Company except in accordance with laws of Pakistan or with the consent of the transferred employees. In the referred backdrop, the private respondents either were the employees of erstwhile T&T Department or the Corporation. They retired from the service of PTCL and seek pensionary and other benefits at par with the employees/civil servants in the government of Pakistan on the basis that since their terms and conditions of service have been protected under the law, hence they are entitled to same pensionary and other benefits accordingly. All such employees filed petitions under Article 199 of the Constitution seeking declaration and payment of the benefits in line with the benefits being enjoyed by the civil servants. As noted above, there are three sets of appeals, as the matters (writ petitions filed by the employees) were heard by three different single Benches of this Court. Two of the learned Benches allowed the writ petitions of the employees, whereas one set of writ petitions was dismissed. In this behalf, the first judgment was handed down in the leading case titled "Rasool Khan and others v. Federation of Pakistan through its Secretary Ministry of Information and Technology and others" (Writ Petition No.523/2012), vide judgment dated 03.03.2020. Another judgment granting relief to the employees was handed down on 27.05.2021 in the leading case of Khalid Mehmood and others v. Federation of Pakistan, etc. The third set of writ petitions was dismissed by the Judge in Chambers on 07.07.2020, hence the appeals.

2. It is pertinent to observe that appeals have been filed by the PTCL as well as Pakistan Telecommunication Employees Trust ("PTET") against the judgments, whereby relief has been granted to the transferred employees or employees of the erstwhile T&T Department on the basis that prior to 1991, they were civil servants and after transfer in 1991, their terms and conditions of service were protected, hence they are entitled to the same benefits which are being enjoyed by the persons who had been in the government service.

4. Mr. Shahid Anwar Bajwa, ASC, leading the arguments on behalf of PTCL submitted that impugned judgments dated 03.03.2020 and 27.05.2021 are not tenable under the facts and circumstances of the case. In this behalf, it was contended that not all the employees of the erstwhile T&T Department were the civil servants; it was contended that the definition of civil servant as provided in section 2(1)(b) of the Civil Servant Act, 1973, excludes workmen as defined under the Workmen's Compensation Act, 1923 and whereas as defined in the Factories Act, 1934. The learned counsel pointed out that the judgments of the Hon'ble Supreme Court of Pakistan declaring the employees of erstwhile T&T Department as civil servants were passed on the fact that the petitioners in the said cases were civil servants only and the argument that some of the employees are workmen or do not fall within the dentition of civil servants was neither raised nor considered by the august Apex Court. Reference was made to P.T.C.L and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362). It was further contended that to the extent of employees who were employed in the erstwhile T&T Department, a petition under Article 199 of the Constitution is maintainable against PTCL on the basis that terms and conditions of service are statutory, but such is not the case with respect to the employees who were engaged/employed after the creation of the Corporation. Learned counsel elaborated his arguments and took the Court through definition of workman as provided in the Workmen's Compensation Act, 1923, to substantiate his argument on the issue. He also drew attention of the Court towards some recent judgments/orders of the Hon'ble Supreme Court of Pakistan, whereby such argument was entertained. Reference was drawn to order dated 02.02.2021, passed by the Hon'ble Supreme Court in Civil Appeals no.856 to 867 & 869 879/2020, order dated 25.06.2020, passed in Civil Petition Nos.673 to 694/2020 and decision in Civil Appeal No.616/2020, dated 20.04.2021.

5. The learned counsel further added that despite arduous litigation between the employees and PTCL, the phrase as contained in section 9 of the 1991 Act, "to which they were entitled immediately before such transfer" has never been considered by any court, including the Hon'ble Supreme Court of Pakistan. He added that the said phrase referred to the fact that protection was afforded to the employees who were transferred from erstwhile T&T Department was temporary and till such time that the Corporation framed its Rules and Regulations, no immediate adverse action was taken against such transferred employee; he also submitted that section 36 of the 1996 Act does take into account such facts and circumstances and has provided means and ways of altering the terms and conditions of service of the transferred employees. Learned counsel further added that undoubtedly, in the case of PTET v. Muhammad Arif and others (2015 SCMR 1472), it has been held that employees of T&T Department are entitled to the same pensionary and other benefits as are being enjoyed by the civil servants, but the said judgment is not binding on this Court in light of the recent order passed in review petition in Masood Ahmed Bahtti's case. He also added that medical and orderly allowances were not in existence in 1991 Act, hence could not have been awarded.

6. Mr. Abuzar Salman Khan Niazi, along with Mr. Wasim Abid, AHC, addressed arguments on behalf PTET, in ICA No.279/2021 and others. It was submitted that PTET is the creation of the 1996 Act and has the sole task of payment of pension to the retired employees of erstwhile T&T Department and Corporation. It was submitted that section 36 of the 1996 Act does provide for altering the terms and conditions of service of the transferred employees. In this behalf, attention was drawn to sub-section 2 of section 36 /bid and it was submitted that with the consent of the transferred employees, terms and conditions of service can be altered. It was submitted that whether there has to be a raise in the pensionary benefits awarded to the transferred employees, the sole judge of the same is PTET under the 1996 Act. Learned counsel pointed out that till 2010, PTET granted increases to pensioners coinciding with increases granted by the Federal Government, however, in 2011, the increases were different from the ones granted by the Federal Government. It was submitted that the increases made in 2011 and onward were accepted by the transferred employees without any protest, therefore, they had consented to increase in pension granted by PTET in line with subsection (2) of section 36 of the 1996 Act. The learned counsel pointed out that it is only in the year 2020 or thereabout that increases were challenged, which resulted in the judgment in Rasool Khan case dated 03.03.2020, however, it was argued that writ petition was hit by principle of laches inasmuch as it was filed almost after the lapse of 09-years. Learned counsel further argued that writ petitions were not maintainable on account of doctrine of acquiescence, principles of estoppel, and laches and in light of section 36(2) of the 1996 Act. The learned counsel placed reliance on various judgments to establish that in the facts and circumstances, where no protest or challenge is made, the same amounts to acquiescence and estoppel. Reliance was placed on Karachi Gas Company Ltd. v. Dawood Cotton Mills Ltd. (PLD 1975 SC 193), Muhammad Satter and others v. Tariq Javaid and others (2017 SCMR 98); Ministry of IPC through Secretary and others v. Arbab Altai Hussain and others (2014 SCMR 1573), Messrs M.A. Khan & Co. v. Messrs Pakistan Railway Employees Cooperative Housing Society (2006 SCMR 721). The learned counsel adopted the arguments addressed by Mr. Shahid Anwar Bajwa, ASC vis-a-vis the status of the employees of erstwhile T&T Department to argue that not all of them are civil servants.

7. Mr. Rashid Anwer, ASC, representing PTET, in ICA No.96/2020, adopted the arguments addressed by Mr. Shahid Anwar Bajwa, ASC. He drew attention of the Court to various judgments/orders of the Hon'ble Supreme Court of Pakistan and particularly two judgments in Masood Bhatti case. In this behalf, he took the Court through the initial judgment handed down Masood Bhatti case reported as Masood Ahmed Bhatti and others v. Federation of Pakistan and others (2012 SCMR 152) and review petition in the same reported as P.T.CL and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362). All other counsel appearing on behalf of the appellants namely PTCL and PTET adopted the arguments addressed by aforenoted learned counsel.

8. Mr. Khalil-ur-Rehman Abbasi ASC and Mr. Mushtaq Hussain, ASC leading the arguments on behalf of the private respondents/employees of the erstwhile T&T Department controverted the submissions of the learned counsel for the appellants. In this behalf, it was contended that it has been settled in the case of Muhammad Arif Khan (2015 SCMR 1472) that the employees of erstwhile T&T Department are entitled to the same pensionary benefits as the ones in government service. It was contended that it has also been settled by the Hon'ble Supreme Court of Pakistan in the review decision of Masood Bhatti case ibid that employees of erstwhile T&T Department though are not civil servants, but their terms of service is governed under sections 3 to 22 of the Civil Servant Act, 1973, hence their terms and conditions of service being statutory, they are entitled to such statutory protection and a petition under Article 199 of the Constitution is maintainable. It was also submitted that after the decision in Rasool Khan and others, petitions were filed on the basis of discrimination as PTCL was not granting the same relief to all other similarly placed employees of erstwhile T&T Department and/or transferred employee. It was also argued that in the chequered history of litigation between the employees and PTCL, the argument that not all the T&T employees are civil servants was never raised and the same argument is not only fallacious, but also is without any substance or basis. It was reiterated that since the Hon'ble Supreme Court has settled in the decision that the employees of erstwhile T&T were civil servants prior to 1991 and now have protection of sections 3 to 22 of the Civil Servant Act, 1973, hence the matter has been put to rest for all times to come and even the ratio of Muhammad Arif case is binding on this Court and periodic increases in pension are to be afforded to the erstwhile T&T employees.

9. All other learned counsel for the private respondents primarily adopted the said line of arguments with addition to the effect that the employees of erstwhile T&T Department are entitled to the same pensionary benefits as are being enjoyed by the retired government employees.

10. The learned counsel for the appellants, in ICA No.273/2020, also adopted the arguments and contended that dismissal of their writ petitions was unjust and uncalled for in light of law laid down by the Hon'ble Supreme Court of Pakistan and as provided in the Acts of 1991 and 1996 respectively.

11. Arguments advanced by the learned counsel for the parties have been heard and the documents placed on record examined with their able assistance.

12. The factual aspects of the controversy has been mentioned with brevity hereinabove, hence reiteration of the same is not called for.

13. The crux of the controversy, as borne out from the submissions of the learned counsel for parties, is as to the status of the employees of erstwhile T&T Department and Corporation and their entitlement regarding pensionary benefits. Before embarking upon consideration of the submissions made by the learned counsel for the parties in defending the impugned judgments and/or assailing the same, it is appropriate that the provisions of the statutes which are material for consideration of the controversy be reproduced for the ease of convenience. As noted above, T&T Department was converted into Corporation by virtue of the 1991 Act and all the employees of erstwhile T&T Department were transferred to the newly created Corporation. Section 9 of 1991 Act provides security of terms and conditions of service as well as mandated the transfer. Section 9 of the Act reads as follows:-

3. "Transfer of departmental employees to the Corporation.- (1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of service, 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, provided that the Corporation shall be competent to take disciplinary action against any such employee.

(2) The terms and conditions of service of any such person as is referred to in subsection (1) shall not be varied by the Corporation to his disadvantage.

(3) Notwithstanding anything contained in any law for the time being in force, no person who stand transferred to the Corporation by virtue of subsection (1) shall be entitled to any compensation because of such transfer."

4. The referred Act was repealed and replaced by the 1996 Act and, under the same, PTCL was created and employees of the Corporation were transferred to PTCL which included employees of erstwhile T&T Department. The transfer and protection of terms and conditions of service was mandated in section 36 ibid which reads as follows:

5. "36. Terms and conditions of service of employees.-(1) No person transferred to the Company pursuant to subsection (2) of section 35, hereinafter referred to as "Transferred Employee", shall be entitled to any compensation as a consequence of transfer to the Company:

6. Provided that the Federal Government shall guarantee the existing terms and conditions of service and rights, including pensionary benefits of the Transferred Employees.

(2) Subject to subsection (3), 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.

(3) At any time within one year from the effective date of the order vesting property of the Corporation in the Company, the Federal Government may, with the prior written agreement of a Transferred Employee, require him to be transferred to or revert him back and be employed by the Authority, National Telecommunication Corporation, Trust or the Federal Government on the same terms and conditions to which he was entitled immediately before such transfer.

(4) Subject to proviso to subsection (1) of section 45 on transfer of a Transferred Employee under subsection (3), the Federal Government shall assume responsibility for his pensionary benefits without recourse to the Pension Fund referred to M that section.

(5) Under the order vesting property of the corporation M the Company, the Federal Government shall require the Company to assume the responsibility of pensionary benefits of the telecommunication employees and the Company shall not alter such pensionary benefits without the consent of the individuals concerned and the award of appropriate compensation."

7. In order to make payment to ex-employees of erstwhile T&T Department and Corporation, PTET was created under section 44 of the 1996 Act, and its functions and powers are provided under section 46 ibid. Sections 44 and 46 read as follows:

8. "44. Establishment of the Pakistan Telecommunication Employees Trust.---(1) As soon as may be, after the commencement of this Act, the Federal Government shall, by notification in the official Gazette, establish a trust to be called the Pakistan Telecommunication Employees Trust.

(2) The Trust shall be a body corporate, having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire and hold property, both moveable and immovable, and shall sue and be sued by its name.

(3) The Trust shall be managed by a Board of Trustees consisting of six trustees, three to be appointed by the Federal Government and three by the Company, for a period of three years, unless earlier removed by the appointing authority.

(4) The trustees shall be eligible for re-appointment for a similar term or terms specified in subsection (3).

(5) The trustees may appoint-

(a) a Chairman of the Board of Trustees from amongst themselves;

(b) the Manager of the Trust;

9. Provided that the first Chairman of the Board of Trustees shall be selected from amongst the trustees appointed by the Federal Government and shall, unless removed on the charges of physical or mental infirmity or misconduct, including corruption and dishonesty, remain in the office of Chairman for the first twelve months of his tenure as a trustee.

(6) A Trustee may resign from his office by writing in his hand addressed to the Board of Trustees.

(7) In case of a vacancy being created due to the death, resignation or removal of a trustee, the appointing authority referred to in subsection (3) may appoint another person in his place as trustee for the unexpired term.

(8) The Manager and Actuary of the Trust shall be entitled to such remuneration and perquisites as the Board of Trustees may determine:

(9) The Board of Trustees may, with the approval of the Federal Government and by notification in the official Gazette, make rules for the management and conduct of business of the Trust"

10. "46. Functions and powers of the Trust.----(1) For carrying out the purposes of the Trust, the Board of Trustees shall-

(a) take over and assume the liability of the Pension Fund, including contributions of the Company to the Pension Fund;

(b) obtain payment from the Company of the amount determined by Actuary as representing the unfunded proportion of the accrued pension liabilities to be dischargec ~gthe Company;

(c) determine, at the commencement of each financial year, the amount to be contributed to the Pension Fund by the Company; and

(d) make provision for the payment of pension to telecommunication employees to the extent of their entitlement.

(2) In performance of its functions, the Board of Trustees shall-

(a) have the exclusive right to determine the amounts, if any, payable in respect as pension benefits to the telecommunication employees;

(b) administer and operate the Pension Fund;

(d) appoint, promote, remove and exercise discipline and control over its employees;

(e) enter into contracts;

(f) acquire, lease, encumber, dispose of, exchange, invest or otherwise deal with any moveable or immovable property or any interest therein; and

(g) exercise all such powers as may be necessary or incidental to the performance of any of its functions or the exercise of any of its powers.

(3) The Manager of the Board of Trustees shall be responsible for administrative control of the employees of the Trust and day to day working of the Trust as may be assigned to him by the Board of Trustees."

11. Litigation between the retired employees of PTCL with their employer has been arduous almost all over the country and led to series of cases ending up before the Hon'ble Supreme Court of Pakistan with respect to various aspects of the controversy. One such aspect, which is material for the purposes of present controversy, is the status of the employees of the erstwhile T&T Department and Corporation. The initial judgment on the issue was handed down in Masood Ahmed Bhati and others v. Federation of Pakistan and others (2012 SCMR 152). The judgment was authored by Jawwad S. Khawaja, J., (as the lordship then was) and it was held that proviso to section 35(2) of the Re-Organization Act provides a clear answer to the controversy as it specifies that even after the transfer of the appellants to PTCL, their terms and conditions of service which existed on 01.01.1996 would be a base and bare the minimum. It was also observed that section 36 of the 1996 Act has relevance in as much as subsection (2) of section 36 keeps protection to terms and conditions of service of employees such as the appellants who stood transferred from the Corporation to PTCL on 11.01.1996. PTCL unsatisfied with the referred decision filed review petition in the said case and the judgment in the same was handed down and reported as P.T.C.L and others v. Masood Ahmed Bhatti and others (2016 SCMR 1362). In the referred review petition, the judgment was authored by Ejaz Afzal Khan, J. (as the lordship then was) and after discussing the statute on the subject as well as case law, it was held and observed as follows:-

12. "A fleeting glance at the provisions quoted above would reveal that the departmental employees on their transfer to the Corporation became employees of the Corporation under section 9 of the Act of 1991 and then of the company under section 35 of the Act of 1996. Their terms and conditions of service were fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996. None of the terms and conditions could be varied to their disadvantage as is provided by the sections reproduced above. Not only that the legislature also bound the Federal Government to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. Since they by virtue of the aforesaid provisions became employees of the Corporation in the first instance and then the Company, they did not remain Civil Servants any more. But the terms and conditions of their service provided by section 3 to 22 of the Civil Servants Act and protected by section 9(2) of the Act of 1991 and sections 35(2), 36(a) and (b) of the Act of 1996 are essentially statutory. Violation of any of them would thus be amenable to the constitutional jurisdiction of the Nigh Court. Though in the cases of Pakistan Telecommunication Corporation and another v. Riaz Ahmed and 6 others and Divisional Engineer Phones Phones Division, Sukkur and another v. Muhammad Shahid and others (supra) it was held that the departmental employees on their transfer to the Corporation and then to the Company would continue to be the Civil Servants, but this interpretation does not appear to be correct as they on their transfer became employees of the Corporation under section 9 of the Act of 1991 and then of the Company under section 35 of the Act of 1996. Retention of their status as civil servants is thus not supported by the words used in the aforesaid provisions."

13. In light of the above, conclusion and observations by the Hon'ble Supreme Court, the principle that can be discerned is that the employees of erstwhile T&T Department are not civil servants but since their terms and conditions of service are protected and remained the same in light of section 9 of the 1991 Act and section 36 of the 1996 Act, hence their terms and conditions of service would be governed under sections 3 to 22 of the Civil Servants Act, 1973. It was also concluded that since terms and conditions of service of such employees are statutory hence a petition under Article 199 of the Constitution would be maintainable. As was argued by Mr. Shahid Anwar Bajwa, ASC that not all the employees of T&T Department were civil servants was never the subject matter apex Court nor any finding was rendered on the same. The said argument finds truth by reading of the judgments and on the basis of the same, it can safely be observed that the findings handed down by the Hon'ble Supreme Court in the aforenoted judgments are confined to those employees of erstwhile T&T Department who were civil servants prior to the Act of 1991 and not otherwise. It seems that the argument that not all the employees of the T&T Department were civil servants has been raised for the first time on behalf of the PTCL and PTET, hence careful examination of the same is required. Definition of civil servant is provided in section 2(1)(b) of the Civil Servant Act, 1973. The referred section reads as follow:-

14. "Civil servant means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include.

(i) a person who is on deputation to the Federation from any Province or other authority;

(b) a person who is employed on contract or on work-charged basis, or who is paid from contingencies; or

(iii) a person who is a "worker or "workman" as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923."

15. For the purposes of present controversy, it seems that section 2(1)(b) relevance as it is the case of PTET that some of the employees who fall in the definition of worker or workman are not civil servants and, hence, do not enjoy the protection afforded under sections 3 to 22 of the Civil Servant Act, 1973 as has been observed in the (2016 SCMR 1362) supra. By way of quick reference, definition of worker and workman needs to be examined to resolve the controversy. In section 2(1)(n) of the Workmen's Compensation Act, 1923, workman is defined; it reads as follow:-

16. "Workman means any person (other than a person whose employment is of a casual and who is employed otherwise than for the purpose of the employer's trade or who is-

(i) a railway servant as defined in Section 3 of the Railways Act, 1890 not permanently employed in nay administrative, district or sub-divisional office of a railway and not employed in any such capacity as is specified in Schedule II, or

(ii) employed in any such capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of this Act and whether such contract is expressed or implied, oral or in writing; but does not include any person working in the capacity of a member of naval, military or air forces and any reference to a workman who has been injured shall, where the workman is dead, include a reference to his dependents or any of them."

17. The above definition provides that a person who is employed in any capacity as is specified in Schedule II, whether the contract of employment was made before or after the passing of the Act, would be a workman. In this behalf, entry nos. ix and xiiia are relevant which provides that where a person employed in setting up, repairing, maintaining, or taking down any telegraph or telephone line or post of any over-head electric line or cable or post or standard for the same would be a workman. In the Factories Act 1934, worker is defined in section 2(h) and reads as follow:-

18. "Worker means a person employed, directly or through an agency whether for wages or not, in any manufacturing process, or in cleaning any part of the machinery or premises used for a manufacturing process, or in any other kind to work whatsoever, incidental to or connected with the subject of the manufacturing process, but does not include any person solely employed in a clerical capacity in any room or place where no manufacturing process is being carried on."

19. The referred definition provides that a worker is a person who is directly or indirectly involved in the process of manufacturing, including cleaning of any part of the machinery and premises involving manufacturing process, or even any work incidental or connected with such manufacturing process. Likewise, in section 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, workman has been defined as any person employed in any industrial or commercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward. Similarly section 1(3)(b) of the West Pakistan Industrial Relations Ordinance, 1969, provides that workman working in Telephone and Telegraph Department are covered and were enjoying the benefits afforded under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.

14. In view of the above position of law and facts to say that all the employees of erstwhile T&T Department were civil servants would not be correct and, as observed hereinabove, the judgment of the Hon'ble Supreme Court of Pakistan reported as P.T.C.L and others v. Masood Ahmed Bhatti and others (2016 5CMR 1362) confined itself only to the extent of those employees who were civil servants prior to the Act, 1991.

15. If any employee of the erstwhile T&T Department was not civil servant, he is not entitled to enjoy the benefits that are being afforded to the civil servants. Though this issue was argued by the learned counsel for the parties before us and in one set of cases even before the Judge in Chambers, but no information was laid before either forums to substantiate the line of work that the petitioners in writ petitions performed or as to their terms and conditions of service before the 1991 Act. However, it is the stance of the employees that all of them are civil servants which, in the light of the above position of law, has no legs to stand.

16. Undoubtedly, there are judgments of this Court as well as of Hon'ble Supreme Court that employees of erstwhile T&T Department are entitled to the same pensionary benefits which are afforded to the retired government servants. In this regard, this Court in I.C.A. No.34/2017, titled "PTCL versus Noor Wali Khan and others" concluded to the same effect, relying upon the judgment of P.T.E.T. v. Muhammad Arif and others (2015 SCMR 1472) and Muhammad Riaz v. Federation of Pakistan and others (2015 5CMR 1783). The judgments of this well as Hon'ble Supreme Court are based on the premise that since all the employees of T&T Department were civil servants prior the Act 1991, hence are entitled to the same pensionary benefits as are enjoyed by the retired government servants. Again the argument that some of the employees of erstwhile T&T Department can be workmen or fall in any other class of employment and were not the civil servants was neither raised nor considered by the Courts, hence without determination that whether a retired employee of PTCL enjoys the protection under sections 3 to 22 of the Civil Servant Act, 1973, no order can be passed granting pensionary benefits that are being afforded to retired civil servants. As mentioned hereinabove, though the argument was raised before us as well as the Judge in Chambers, who authored the leading judgment in Khalid Mehmood and others v. Federation of Pakistan and others, dated 27.05.2021, but no material was placed before the Court to examine the status of the employment of such employees.

17. It was also argued on behalf of the private respondents that PTCL and PTET never took the position in some of the cases before the Judge in Chambers, questioning their status as civil servants, however, the question raised by PTCL and PTET regarding status of petitioners in writ petitions is a question of law, which can be raised at any stage of the proceedings, hence objection is without substance.

18. Even with respect to those employees of erstwhile T&T, who were civil servants, their terms and conditions of service can be altered in light of section 36(2) of 1996 Act. In this behalf, the referred sub-section provides 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 employee and award of appropriate compensation. It has been categorically argued by Mr Abuzar Salman Niazi, Advocate, on behalf of PTET that raise in the pension amount granted to the retired employees of PTCL in 2011 was not at par with raise granted to government employees but they did not question the same, hence there is tacit acceptance of the same by way of silence and that amounts to acquiescence and estoppel inasmuch as the terms and conditions of service were varied with their consent. In this behalf, reliance has been placed on various judgments of the Hon'ble Supreme Court of Pakistan to show that there was acceptance by silence, hence principles of acquiescence and estoppel would be applicable. In reported case of Karachi Gas Company Ltd. v. Dawood Cotton Mills Ltd. (PLD 1975 SC 193), the Hon'ble Supreme Court observed that where the plaintiffs paid the bills of gas at increased rate without any protest for almost two years had accepted the raise and doctrine of acceptance by silence applied. Likewise, in Muhammad Sattar and others v. Tariq Javaid and others (2017 SCMR 98), the Hon'ble Supreme Court observed that for an agreement to become a contract, the promisee has to accept the offer and if there is consideration then whether agreement was not signed by one party but the parties acted, hence there was a valid contract. In the Ministry of IPC through Secretary and others v. Arbab Altaf Hussain and others (2014 SCMR 1573), the Hon'ble Supreme Court defined acquiescence and held that where there is delay in filing of a constitutional petition, bar under the laches would be applied. Similar observations were made in Messrs M.A. Khan & Co. v. Messrs Pakistan Railway Employees Cooperative Housing Society (2006 SCMR 721). In light of the referred judgments, the argument by the learned counsel for PTET that raise as afforded to the retired employee of PTCL not in line with raise by the Government of Pakistan had been accepted and acted upon without any protest, therefore, there was consent within the meaning of section 36(2) ibid, is a meaty arguments but for that to establish that there was actual consent under the facts and circumstances, proof is required which issue requires recoding of evidence, however, with respect to lathes, it has been observed by the Hon'ble Supreme Court in a number of judgments that in cases of payment of pension, laches would not apply inasmuch as the cause of action is recurrent. Another aspect of the controversy which was argued by the learned counsel for the appellants but no such finding was rendered by this Court or any other High Courts or the Hon'ble Supreme Court is the implication of the phrase 'terms and conditions of service enjoyed immediately prior to the transfer'. As noted above, section 9 sanctioned the transfer of the T&T employees to Corporation and while doing so, section 9 afforded protection and in the same elaborated that the same terms and conditions will be enjoyed as were being enjoyed just before the transfer. Meaning of phrase has never received judicial consideration; it seems that what legislature had in mind was to afford immediate protection to employees of T&T Department and then to transferred employees under the Act of 1996 till such time that Rules and Regulations are framed under the Act of 1991 and/or Act of 1996, as provided in Section 36(2) ibid. In this behalf, any perk and privilege not in existence in 1991. cannot be granted to the employees of erstwhile T&T Department. Section 36 ibid makes it more specific as it provided an option to the transferred employees to even opt out of the service of PTCL and come back in government service if after the transfer he was not pleased or did not intend to continue. While interpreting section 36, as it is the prevailing law, one is to bear in mind that PTCL is a commercial entity and by virtue of statutory interference obligations cannot be thrusted upon it so it ceases to be a viable entity. The Dicta in P.T.E.T. v. Muhammad Arif and others (2015 SCMR 1472) and Muhammad Riaz v. Federation of Pakistan and others (2015 SCMR 1783) are binding on this Court, hence those employees of T&T Department which were civil servants are entitled to raise in pensionary benefit at par with government employees except for those who consented to variation of their terms and conditions of service.

19. The upshot of the above factual and legal discussion can be stated in the following manner:-

(i) The employees of erstwhile T&T Department, who fall within the definition of civil servants as provided under section 2(1)(b) of the Civil Servant Act, 1973, enjoy statutory protection under sections 3 to 22 of the Civil Servant Act, 1973, hence are entitled to increase in pensionary benefits as are being enjoyed by the government servants except where there is variation in terms and conditions of service, including receipt of pensionary benefits which are different from the ones enjoyed by the government servant and there is consent of the employee and some compensation has been afforded to him.

(ii) Those employees of erstwhile T&T Department who do not fall within the definition of civil servants would not be entitled to protection under sections 3 to 22 of the Civil Servant Act, 1973, hence to them raise in the pensionary benefits at par with the retired government servants cannot be granted.

(Hi) Those employees of erstwhile T&T Department who fall within the definition of worker or workmen as provided under the Workmen's Compensation Act, 1923 or the Factories Act, 1934, would not be civil servants, hence not entitled to the raise in the pensionary benefits as enjoyed by the civil servants.

(iv) (Those employees of erstwhile T&T Department who do not enjoy statutory protection under sections 3 to 22 of the Civil Servants. Act, 1973, and their terms and conditions of service are not statutory, petitions under Article 199 of the Constitution to their extent would not be maintainable.

(v) Those employee who were engaged after the enactment of Pakistan Telecommunication Corporation Act, 1991, do not have statutory terms of employment as enjoyed by the employees of erstwhile T&T Department and fall within the definition of civil servants, hence to their extent as well a petition under Article 199 of the Constitution is not maintainable.

(vi) Those employees of erstwhile T&T Department who are civil servants but have consented for variation in their terms and conditions of service during employment or after retirement and have been afforded some compensation such as voluntary separation scheme, etc. are not entitled to any raise in the pensinary benefits.

(vii) Any allowance or benefit which was not in existence at the time when the employees of erstwhile T&T Department were transferred from the Pakistan Telegraph and Telephone Department to Pakistan Telecommunication Corporation could not be granted to the retired employees of T&T Department who were civil servants in light of the wording of section 9 of the 1991 Act, even though the same are being enjoyed by the retired employees of government servants.

20. The principles laid down above involve determination of certain facts in order to grant remedy to the petitioners in writ petitions. The proof of such facts was not before the Judges in Chambers and not even before us in appeals, hence cannot be discerned in the appeals. Even otherwise, it is the stance of the respondents (petitioners in writ petitions) that all of them are civil servants and entitled to raise in the pensionary benefits, whereas the appellants (PTCL and PTET) vehemently controverted the same, hence that amounts to a disputed question facts, however, we feel that instead of reverting the matters to the court of plenary jurisdiction, it would be appropriate that PTCL and PTET make an exercise and decide the status and entitlement of the retired employees to raise in the pensionary benefits in light of the principles laid down above. In case any employee is not satisfied with the action or inaction of PTCL/PTET, he/she can avail remedy before the court of competent jurisdiction.

21. For what has been stated above, the judgments dated 03.03.2020, 27.05.2021 are modified and, consequently, the appeals are disposed of in light of the above observations; the judgment handed down on 07.07.2020, in writ petitions No.3435 & 2689/2017 also stand modified in line with above observations and principles. All appeals are disposed of accordingly. Since appeals stand decided, all pending applications are disposed of accordingly as well.

SCHEDULE-I

20. LIST OF APPEALS CONNECTED WITH I.C.A. NO.82 OF 20202

21. S.No.

22. Case No.

23. Title

24. 1.

25. I.C.A. No.83 of 2020

26. Pakistan Telecommunication Employees Trust v. Mst. Hadia Iqbal and others

27. 2.

28. I.C.A. No.84 of 2020

29. Pakistan Telecommunication Employees Trust v. Muhammad Azam and others.

30. 3.

31. I.C.A. No.85 of 2020

32. Pakistan Telecommunication Employees Trust v. Fazal Karim and others.

33. 4.

34. I.C.A. No.86 of 2020

35. Pakistan Telecommunication Employees Trust v. Muhammad Nazir and others.

36. 5.

37. I.C.A. No.87 of 2020

38. Pakistan Telecommunication Employees Trust v. Naveed Iqbal and others.

39. 6.

40. I.C.A. No.88 of 2020

41. Pakistan Telecommunication Employees Trust v. Muhammad Arif and others.

42. 7.

43. I.C.A. No.89 of 2020

44. Pakistan Telecommunication Employees Trust v. Muhammad Ilyas and others.

45. 8.

46. I.C.A. No.91 of 2020

47. Pakistan Telecommunication Employees Trust v. Syed Qudrat Shah and others.

48. 9.

49. I.C.A. No.92 of 2020

50. Pakistan Telecommunication Employees Trust v. Ijaz Ahmed Mirza and others.

51. 10.

52. I.C.A. No.93 of 2020

53. Pakistan Telecommunication Employees Trust v. Ghufran Ullah and others.

54. 11.

55. I.C.A. No.95 of 2020

56. Pakistan Telecommunication Employees Trust v. Muhammad Yar Tahir and others.

57. 12.

58. I.C.A. No.96 of 2020

59. Pakistan Telecommunication Employees Trust v. Muhammad Suleman and others.

60. 13.

61. I.C.A. No.97 of 2020

62. Pakistan Telecommunication Employees Trust v. Rasool Khan and others.

63. 14.

64. I.C.A. No.98 of 2020

65. Pakistan Telecommunication Employees Trust v. Muhammad Tariq Azhar and others.

66. 15.

67. I.C.A. No.99 of 2020

68. Pakistan Telecommunication Employees Trust v. M. Ghafoor Ahmed and others.

69. 16.

70. I.C.A. No.100 of 2020

71. Pakistan Telecommunication Employees Trust v. Ghulam Qadir and others.

72. 17.

73. I.C.A. No.101 of 2020

74. Pakistan Telecommunication Employees Trust v. M. Ismail javed and others.

75. 18.

76. I.C.A. No.102 of 2020

77. Pakistan Telecommunication Employees Trust v. Shahid ul Haq and others.

78. 19.

79. I.C.A. No.103 of 2020

80. Pakistan Telecommunication Employees Trust v. Zahid Hussain and others.

81. 20.

82. I.C.A. No.104 of 2020

83. Pakistan Telecommunication Employees Trust v. Abdul Hameed Malik and others.

84. 21.

85. I.C.A. No.109 of 2020

86. Pakistan Telecommunication Employees Trust v. Rasool Khan and others.

87. 22.

88. I.C.A. No.117 of 2020

89. Pakistan Telecommunication Employees Trust v. Mehmood Mehdi and others.

90. 23.

91. I.C.A. No.118 of 2020

92. Pakistan Telecommunication Employees Trust v. Syed Ubaid Hussain Shah and others.

93. 24.

94. I.C.A. No.119 of 2020

95. Pakistan Telecommunication Employees Trust v. Muhammad Yousaf and others.

96. 25.

97. I.C.A. No.120 of 2020

98. Pakistan Telecommunication Employees Trust v. Gul Dad Khan and others.

99. 26.

100. I.C.A. No.122 of 2020

101. Pakistan Telecommunication Employees Trust v. Sanaullah Baloch and others.

102. 27.

103. I.C.A. No.125 of 2020

104. Pakistan Telecommunication Employees Trust v. Muhammad Jehangir and others.

105. 28.

106. I.C.A. No.126 of 2020

107. Pakistan Telecommunication Employees Trust v. Sanaullah Baloch and others.

108. 29.

109. I.C.A. No.127 of 2020

110. Pakistan Telecommunication Employees Trust v. Mst. Naeema Khatoon and others.

111. 30.

112. I.C.A. No.140 of 2020

113. Pakistan Telecommunication Employees Trust v. Ghufran Ullah and others.

114. 31.

115. I.C.A. No.141 of 2020

116. Pakistan Telecommunication Employees Trust v. Mehmood Mehdi and others.

117. 32.

118. I.C.A. No.142 of 2020

119. Pakistan Telecommunication Employees Trust v. Rehmat Bibi and others.

120. 33.

121. I.C.A. No.149 of 2020

122. Pakistan Telecommunication Employees Trust v. Muhammad Tariq Azhar and others.

123. 34.

124. I.C.A. No.150 of 2020

125. Pakistan Telecommunication Employees Trust v. Muhammad Azam and others.

126. 35.

127. I.C.A. No.273 of 2020

128. Syed Mukhtar Ali and others v. Federation of Pakistan and others.

129. 36.

130. I.C.A. No.274 of 2020

131. Imtiaz Ahmad and others v. Federation of Pakistan and others.

132. 37.

133. I.C.A. No.275 of 2020

134. Habib ur Rehman and others v. Federation of Pakistan and others.

135. 38.

136. I.C.A. No.276 of 2020

137. Muhammad Hafeez ur Rehman and others v. Federation of Pakistan and others.

138. 39.

139. I.C.A. No.277 of 2020

140. Muhammad Ishaq and others v. Federation of Pakistan and others.

141. 40.

142. I.C.A. No.278 of 2020

143. Zulfiqar Ali Channa and others v. Federation of Pakistan and others.

144. 41.

145. I.C.A. No.278 of 2021

146. Pakistan Telecommunication Employees Trust v. Bagh Ali Shah and others.

147. 42.

148. I.C.A. No.279 of 2021

149. Pakistan Telecommunication Employees Trust v. Muhammad Shah and others.

150. 43.

151. I.C.A. No.280 of 2021

152. Pakistan Telecommunication Employees Trust v. Israr Ahmed Khan and others.

153. 44.

154. I.C.A. No.281 of 2021

155. Pakistan Telecommunication Employees Trust v. Muhammad Yaqoob and others.

156. 45.

157. I.C.A. No.282 of 2021

158. Pakistan Telecommunication Employees Trust v. Muhammad Ghous and others.

159. 46.

160. I.C.A. No.283 of 2021

161. Pakistan Telecommunication Employees Trust v. Muhammad Naeem and others.

162. 47.

163. I.C.A. No.284 of 2021

164. Pakistan Telecommunication Employees Trust v. Muhammad Ismail and others.

165. 48.

166. I.C.A. No.285 of 2021

167. Pakistan Telecommunication Employees Trust v. Khalid Mehmood and others.

168. 49.

169. I.C.A. No.286 of 2021

170. Pakistan Telecommunication Employees Trust v. Mumtaz Ali Shah and others.

171. 50

172. I.C.A. No.287 of 2021

173. Pakistan Telecommunication Employees Trust v. Khurshid Ahmed and others.

174. 51

175. I.C.A. No.294 of 2021

176. Pakistan Telecommunication Employees Trust v. Raja Muhammad Saeed and others.

177. MH/271/Isl. Order accordingly.