Sadiq Ali and others Vs M.D PTET & other

TTIDGMENTSHEE'T

PESHAWAR HIGH COURT PESHAWAR

.IUDICIAL DEPARTMEN'I'

Civil I N 24- in\M.PN 1l Sadiq AIi and othersVs. M.D PTET& others.

Date of hearing: 09.04.2025.

For Petitioners Mr. Aamir laved. Advocate - alono with er No.l.

For Federation Mr. Ishfao Abmad Iharcra. AAG.

For Respondens/PTET: IVUs. Barrisrcr Oasim Wadud . Waleed Ahmad adoon Babar Khan Advocates alone with Mate-Ur-Rehman. Mdnaser (LeEaD.

PTET.

For resnondents/?TCl; Mr. Shahid Anwar Baiwa. Advocate. alous with Raheel Zafar. General Manager and Naila Tado.

Fxecutive 0emD. PTCL,

IT.JDGMENT

MT]IIAMMAD NAEEM AIWI/AR. l- This single judgment in the instant petition shall also decide CM 12(2) No. 2GP of 2024 titled 'Msr Bakht Pari & others VS MD mE"I & others"CM 12 (2) No. 25-P of 2024 titled ,Msr Bakht Pari & others VS ManasinE Director

PTET & others ", CM l2(2) No. 2&P of 2024 titled 'Muhalomad Rafique & others VS Govt of Pakistan & others ', CM 12(21No. 21- P of 2024 titled 'Sadio Ali & others VS MD PTET & o ", CM t2(2',) No. 24-P of 2017 titled 'Muhamnrad Yousaf Afridi VS FOP etc. ", CM l2(2) No. 27-P of 2017 tided 'Sadiq Ali & others VS MD PTET& others ",cMt2(21 No. 22-P of 2017 titlcd 'MsL Bakht Pari etc. VS MD IrfET& others"CM l2(D No. 2}P of 2017 titled 'M.

Rafique VS FOP & others ", CM 12(21No. 2GP of 2017 titled 'MgL Bakht Pari VS MD PTET & others ", CM L2(2) No. 30-P of 2017 titled 'Sadiq Ali & others VS MD PTET & others ", and CM 12(21 No. 51-P of 2017 titled 'Muhammad Sa]eem VS Federation of Pakistan etc. "as the controversy in the instant and four other petitions through applications under Section l2(2) of the Code of Civil Procedure, 1908 ("CPC',is identical being comrnon questions of law and facts, whereas the second set of petitions, the applications under Section l2(2) CPC filed againsl" the judgment and order ol'dris Court against which Civil Pctitions fbr l.cave to Appcal (CP[A) filcd by the applicants has also becn dismisse<I, nevertheless, during Review Petition, the applicans were allowcd to file applications un<ler section

l2(2) CPC, on their request, before the Hon'ble Supreme Court. Hence these petitions.

2.Mr. Shahid Anwar Bajwa, Advocate learned counsel for applicants contended that initially there were 621 petitioners and during pending adjudication, the other petitioners were also impleaded as petitioners thus, the total number of applicants was 805, who approached this Court, questioning letter No. PtrN/IrfE?LHIVl1l0 dated 27.01.2011, & Ietter Nos. F.4(l)- Res.6l20l\l7 2l and F. 16(1)-Reg.6i2010/7 8 <latell 05.07.2010 as illegal, unjust, unwarranted, against the law, against the Constitution and inoperative upon their rights, on the ground that they were retired employees of Pakistan Telecommunication Company Umited ("PTCL1 and initially, they were the employees ol'Telegraph & Telephone (*T&71, where they were appointed as civil servants and their services were regularized by administrative control of the Ministry of Communication, which Department was converted into Corporation as Pakistan Telecommunication in view of PTCL Ordinancc, 1990, which was later superseded by P'fC Act of l99l and thc seryices ol' the petitioners were transl'errcd to PTC by operation of law. Through their petitions, *rey were seeking their entitlement lor the pension in consonance with the employees of the Federal Government. The letters questioned by them were sought to be declared inoperative upon their rights. He added that since the petitioners have not specified their status as retired employees or those who were the beneficiaries of Voluntary Separation Scheme ("VSS1 , therefore, the present applicants while submitting comments in the writ pctition have raised the question at Sr. No. 7 of the preliminary objections that petitions require burial from its inception fbr non-joindcr ol' necessary party and fbr not providing particulars with rcspect to the retired employee s or the employees o[ T&T or PTC l)epartment especially, those who opted for VSS and this point N was also taken at Sr. No. 1 of the facts of'the colnmcnts. According to him, these particular aspects were reilerated with specification in para-5 and 6 of the comments that those who took pre-mature retirement on VSS are not entitled at par with the retired employees of T&T/PTC. According to him, the consolidated judgment of this

.J

Court passed in W.P No. 2657/20L2 was the result of fraud, misrepresentation and concealment of facts, which exclusively falls within thc parameters of Section 12(2) CPC that is why, after dismissal of CPIA, thc applicants o[ the instant petition and those of the connected pctitions have filed application lor revicw and aflter hearing them, the Hon'ble Supreme Court of Pakistan allowed them to approach this Court to take this specific aspect within the purview of Section l2 (2) CPC, hence, these petitions. He lurther added that to the extent of retired employees of T&T, the applicans are neither agrieved nor the lindings of this Court in the judgment rendered in W.P No. 2657 /20l2have been assailed but those who opted for VSS, were not entitled and to such benefit and this Court has got no jurisdiction for want of non-statutory rules. He placed reliance on the judgments reported as 'Muharnmad Yasin VS Federation of throush Secre tarv F,stablishment Division. Islamabad & others " (PLD 2012 Supreme Court 132), 'State nanf of paUstan ttroudr Govemor & another YS Imtiaz Ali Khan & others " (2012 SCMR 280), 'Masood Ahmed Bhatti & others VS Federation of Pakistan tlrrough Secretary M/o Information Technolory and Telecommunication and others " (2012 scMR 152) and'Nasiruddin Ghori VS Federation of Pakistan throush Secretary & 4 others " (2010 PIrC 323).

3.Conversely, learned counsel for the respondents (petitioners of Writ Petitions), Mr. AamirJaved, Advocate opposed the petitions, resisied the same on the grounds that petitions under Section l2(2) CPC arc not maintainablc from thc vcry inccption. He contended that the applicants were respondents No. 5 & 6 ol'thc Writ Petitions, who have submitted their comments, wcre aw:ue about the legal and factual aspects of the status of the petitioners of the writ petitions and the respondents/ petitioners of the Writ Petitions have submitted particulars in respect of a]l the employees those who were retired ,\ employees and those who opted for VSS, the entire break up was provided to *re Court during pending adjudication o[ the petitions. According to him, at the time of pending adjudication of the Writ Petitions and decisions thereof , therc were no bifurcation for pensionary bcnclits o1'those who opted Ibr VSS irnd those who were

retired cnrployees ol"l'6i1, rather all thc e mpkryces of 1'&T, being transf'erred to Pl-C, were entitled lbr pensioniuy benefits at par with the civil servants of the Federal Government. At the tail end of his submissions, he went on to say that the respondents (petitioners of Writ Petitions) were entitled flor the relief granted by this Court and the reliance of the applicants based on the letter of the year 2017 has got no retospective elfect, as such, could not be made applicable to the cases of respondens (petitioners ol'the Writ Petitions). He also contended that the Hon'ble Supreme Court of Pakistan while hearing the petitions against the.judgment of thc Hon'ble Sindh High Court, where writ pctitions werc dismissed being the matters of non-statutory rules, were adjudicatcd upon by thc Suprcrnc Court and a five- member Bench has not only set aside thc.judgrnent ol'the Hon'ble Sindh High Court, but also remitted thc mattcr to the High Court for decision afresh. Thus, the submission of'the learned counsel for the applicants is misconceived. He placed reliance on the judgments reportedas"' (2016 SCMR 1362) and "Pfistan Telecommunication Co. Ltrl throush Chairman VS Iqbal Nasir & others " (PLD 20il SC 132) l,earned counsel for the applicants in *re connected petitions have relied upon the submissions o[ Mr. Shahid Anwar Bairva, Advocate and rcquestcd that thc judgrnent passed lry this Court recluires reversal/ rer.ival for decision in accordancc with law.

4.Argurnents heard. Record perused.

CMs No. 7l-P of 2024. 56-P of 2024.63-P of 2024and 7&Pof 2024. All these applications were filed by the parties Ibr placing on file the documents, which, as per their contention, were essential for just decision of the main applications. 'fhe contents of the applications were supported by alfidavis submitted by the parties and the documenls appended therewith are rclevant to the determination of the ri$rts and just decision ol'these petitions. Thus, all the CMs submittcd l>y thc partics iuc allowcd and thc rkrcumenLs appcndcd & therewith iu'e read as part and parcel ol'the main applications.

5.We havc befbre us two sets of application under section l2(2) CPC, the instant application with others connected applications were filed when Civil Petition Nos.3895, 3896, 3956, 3994,4014 and 4040

of 2019 questioning the judgement of this Court in Civil Miscellaneous Nos.22, 23, 24, 26, 27 and 30-P/2017 dated 05.09.2019 dismissing the application under section l2(2) on the ground of nrerger, were allowed by setting aside the judgement of this court and rernanding the applications for decision on merits with the following observations: - ",5. In uiew of the alxtvc, it is dear that this Oufi ltas not dccidcd the issue relati6' o V.95, hetre tlte application under Ser:iot 12(2 CPC could not be frled belbre this Court. Ihc qucstin, thus, arises as to whetlrcr tlte said issuc was nised and decided by fie High Ctturt or othctwise. Wc have noted that tltough the mattcr was nised belore the Peshawar High Cout and the Islamabad High Cou4 howeuer, there is no finding recorded in both impugned judgements/orders. Dicates ofjustice demand that tlte petitioners are not to be rendered remediless, and thus, the applicaions under Section 12(2) CPC are liled before the Single Bench of the Islamabad High Court and the Diuision Bench of the Peshawar High Court. The needful be done within onc month of the date of this order. "

6.Conse<yucnt to dre judgemenl datcd 29.04.2024 o{'t}re august Supreme C<lurt, this and connecte d petitions wcrc lile d with the prayers; i) re-call order dated 03.07.2014 in rcspcct ol'Optees for VSS; ii) dismiss the writ petition in respect o[Optees fbr VSS; and iii) trant such relief as may be deemed fit. nrooer and iust in the chcumstances of the case

7.Second set ofpetitions are CM l2(2) No.22-P/2017 ,CM 12(21 No.23-Pl2017, CM 12(2) No.24-P12017, CM l2(2) No.26-P/2017, CM l2(2) No.27-P12017, CM l2(2) No.30-P/2017 and CM l2(2) No.5l-Pl2017 liled in W.P Nos,l785, 164, 2657 a:-xl762. These petitions were lilcd afte r the decision of the Apcx Court in Crimina.l Review Pctition No.86/2015 in Criminal Pctition No.14./2014 and C.R.Ps No.454, 455, 460 to 470 etc. dated 17.05.2017, when the matter was disposed of by the Hon'ble Suprerne Court with the following observations : - ",5. fn the circumstances, submission made by ,t Mr. Khalid Anwar leaned Sr. ASC for the Rcuiew Pelitioners and adopted by counsel for otlter rcuiew petitioners, as noted above, ltitna facie seem to be fair and reasonable and witlnut exprcssing ouselves on aay of the points itvolved in dtc matter, we feel that cause ofjusti'c will bc met il' all these Reuiew Petitions atc disJxtsctl of arroxlingly.

6.Consequently, the listed Reuiew Petitions are disposed of and the PTCI.lReuiew Petitionerc to the extent as noted above may awil remedy undcr Set:tion l2(2), CPC wltir) shall be dcc:idcd by tlte concemcd Court in acrotdant:c wilh Jaw. At tlrc sanrc tine, the )rl'C'I,/Ileuie w Pctitione ; nay urge all poina available to tltem in other cases pending bclbre the lIigh Coutts it accorJatte witlt law. Disposed of '

8.On facts, initially, the petitioners of W.P No.l78512011 with other connected petitions have filed the writ petitions being the legal heirs of retired employees of ruCL, who were inducted in the services of the former Depa-rtment of T&T before coming into existence of P|CL. They have questioned the non-grant or deduction of the pensions/flamily pensions and other financial benefits to the deceased husbiurd ol' the petitioners, apparent I'rorn letter dated 27.01.2011, being lesser to the grant by thc Fcderal Governmenl declaration grant through letter dated 05.07.2010. AII the Writ Petitions were heard by this Court and were decided through consolidated judgement in W.P No.26572012 vide judgement dated 03,07.2014. The Writ Petitions were allowed , which were questioned before the Apex Court and were decided through reported iudgem ent "Pakistan Telecommunication Employees Trust (PTET) throudr M.D.. Islamabad & others Vs. Muhammad Arif & others" (2015 SCMR 1472) when all tlre petitions were dismissed. Review Petition was filed, rvhere the petitioners werc allowed b approach to this Court through.ludgement dated 17 .05.2017 . In view ol'the above, the questions [or determination through both *re sets ol'applications submitted under Section l2(2) CPC that - r) Whethera nerson who has contested the lis submitted a re:rlv- and was afforded an opporh:nitv ofbeins heard-whereafter the lis w'as decided on merits<an subseouendy challense the iudernent under Section l2(2) C.P.C.?

ii)Whether, in decidins the writ petitions durinE the earlier round & of litie"ation. the resoondents/oetitioners commitied anv fraud- concealed material facs. or misreDresented events in relafion to the oroceedinss before this Court?

iii)Whether a o rder can be chall an

aoolication under Section 12 C.P.C - if a nlea taken durins the trial was not soecificallv addressed or decided in the final determination?

9.'lhe contention of Mr, Shahid Anwir Baiwa, Advocate, that the respondens (petitioners of the Writ Petitions) havc not specified their status as retired employees or tlose who were beneliciaries of VSS and were served with the notice. The applicants (respondents of the Writ Petitions) have taken a preliminary objection that the writ petitions were not entertainable for short of lacts i.e., the particulars with respect to retired employees or employees of T&-f or PTC Departrnents especially those who opted fbr VSS and according to him, this ;rspe<:t rcsultc<l into thc judgement in lhvour ol'rcspondents (petitioncrs o1'the Writ Petitions) bascd on the conccalmcnt of lacts and misrcpresentation. -lhe above is thc solc ground of the applications submitted under Section l2(2) CPC and requires determination fbr just decision of all *re mattcrs. Since, the questions raised by the leamed counsel for the applicants was of vital importance and was considered twice by the Hon'ble Supreme Court of Pakistan earlier when Review Petitions apinst the judgernent in the case reported as 2015 SCMR 1472 (supra) was disposed o[ in terms of allowing the applicants to approach to this Court and later one, when tltc .judgcrncnt of'this Court datcd 05.09.2019 was set-aside tlrrouglr Civil Pctitions No.3895 etc. dated 29.04.2024 iurd fbr proper determination ol' the question raised by thc applicants, we have confronted respondents (petitioners ol' thc Writ Petitions), who contended that in view of the comments ol'the applicants in Writ Petitions, re-joinder was submitted with all details o[ each and every petitioners of dre Writ Petitions. He referred to Civil Miscellaneous No.56-P/2024, where the comments of the applicants (PTET/respondent No.l of W.P No.7621201 l) reflect the objection, which that: - "I'ata No.l is denied. Without ncccssary pattirulan;, it cannot be asset'ted or arceplcd tlnt all (i2l pctitioners arc tctitt

.I Boven)nrcnl en4 oyecs or werc entplolrecs ol Tbleplrtnc: and Tblcgraph (T&T) or P.T.C. Deparonent As lter annex 'A" pa,ges (64 of the Wit Pctiion it is not ltossible to determine the satus ol'all petitioncrs. This is a question, which can only be dccidcd through euidence.'

He contended that the petitioners of thc Writ Petition filed re- joinder consisting upon I l7 pages, annexed with Civil Miscellaneous by particularizing the status of each and every petitioner available in

U

W.P No.762l201I filed on 14.02.2012; hence, rhe conrention of the app licants that whethcr the oetitione rS are the retired sov ernment emolo vees or emD lovees of T&T. P.T.C. Den artment was a o uestron in the Writ Petitions and could not be decided , was misconstrued by the applicants. It was the contention ol'thc pctitioners ol' the Writ Petitions (now rcspondents in these applications) that they have started their seruices as the employees o['1&'l' Department enjoyed terms and conditions ol'the service of the civil servauLs and wcrc being treated as such. They were translbrred by the operation of law under Section 9 of the PTC Act. The Rules governing the service of petitioners in'l'&T Departrnent were adopted through reGrence by the Statute itself and made applicable to the pctitioners, who were further Fansferred to PTCL under Section 35(2) o[ Pakistan Telecommunication Reorganization Act, 1996 ("the Act of 1996'\, without option/consent. In view of rc-joinder suburitted by the respondcnts (pclitioncrs of the Writ Pctitirlns) owing to the commcnts ol'the appliciurts, the submission ol' thc lcamcd counsel for the petitioncrs is not only repelling to record but this objection has no force, nor it was a question requiring decision through recording of evidence. Sub-Section (2) of Section l2 CPC, provides a remedy to an aggrievcd person, when dre judgement/order was obtained through lraud or misrepresentation of f'zrct or want of jurisdiction by establishing any of the $ounds, he is e ntitled for revival of the matter decided by the court of law. 'Ihis question has already been resolved by the Hon'ble Supremc Court and High Courts that in cach and cvery casc lraming of issucs and rccording of cvidcnce is not svne qua non rathcr the matters uis l2 (2) C.P.C:uc dealt with in accordancc with thc principle laid down in thc cascs reported as "Ifafiz Malik Karuan Akbar others W. Muhammad Shafi (deceased) thoudt lenl hein and otherc' (Pr,D 2024 SC 262'), t "Amina Bibi throu& Cenenl Afrornev Vs. Nasrullah and othen" (2000 SCMR 296),"Mst Sabiran Bibi and othen Ys. Ahmad Khan and otherl'(2008 SCMR 226)," Ghulan Muharrunad venusAluned Khan' 1993 SCMR EM.C Limited artd " Wanaich hrai (2006 SCMR 531). It is signilicant to Vs-

mcntion that thc lirctunr ol'liaud :urd rtrisrcprcscntation ol'I'act Inust

be in connecLion with the pending a<[judicati<>n ol't]rc lis, pr<>ceedings before the Court. Any alleged fraud, il'playcd outsidc thc Court or having the nexus with the proceedings ol' the matter, pe nding adjudication and connected thereto, is not a Iraud in terms of Section l2(2) CPC. Concealment of fact is also a question having its nexus with the proceedings. Reliance may be placed in thc cases of "Rahrnahrllah Vs. Ali Muhammad and another" (1983 SCMR 1064), "I ql Din and another Vs. Muharnmad Ibrahim" (1993 SCMR 710), "MsL Shabana Irfan Vs. Muhammad Shafi Khan and others" (2009 scMR 40), "Nathu Khan Vs. Muhammad Rafiq" (1987 CLC l50l) and "Miss Shazia Ashraf Vs. Munici Commiuee Sahiwal throudr Admini sFator and another" (2006 CLC l0l8). Hcncc flor the detailed discussion Question No. 2 is dccidcd in negative.

10.Moreover, the purpose and object ol'better statement or re- joinder is to enable a party to de monstrate/cxplain his stance with plausible explanation and elaboration or any fact alleged by the defendant and explained through better statemcnt. In the Writ Petitions, re-joinder was filed to meet the objection of the applicant (respondent No.I/PTET). Non-submission of re-joinder could be a ground flor dete rmination as to whether the pe titions could be decided in tlcir llvour but whcn dre rcspondcnts (pctitioncrs of the Writ Pctitions) havc complie d with thc rcquircrncut o[ law, substiurtiated thcir contention, met with thc objection o[ the applicants and this Court has decided the Writ Petitions in flavour of the petitioners iurd the siune was maintained by the Apex Court, now through these applications nothing about thc concealment o[ alleged I'acts could be brought on record and *re pctitioncrs havc not been able to lay their hands on any of the fact, which could have been concealed by the petitioners of the Writ Petitions or fraud committed in connection with the proceedinp. It may not be out of the context to discuss that ordinarily, in the applications liled urxlcr Section l2(2) CPC, thc plca ol' liaud atd conccaltnelrt is allcgc<l 1o ltave bcen played with connivance of the partics howcve r, in the writ petitions, the applicants were piuty and could not provc any tnisreprcsentation or the lraud on the part of petitioners o[ the writ pe titions.

Il. In the matter in hand, the applicants (respondents of writ petitions) against whom, the relief was sought, have outrightly conhoverted the plea of petitioners of the Writ Petitions, argued the case at length but have not been able in getting the favourable order and now allcged that since the petitioners have not provided the details of the status o[each and every petitioncr, iu such, t]re decision was rendcrcd against thcrn. This plca of the allplicant.s is scll'-repelling and goes against dreir contention; that once lhcy lverc unablc to resist the writ against them and the decision was rendered against the applicants and thereafter, they approached the Apex Court and after hearing the applicants, their Civil Petitions wcre dismissed, and leave was refuse d. In addition, leamed counsel for thc applicants questioned the maintainabilityof the Writ Petitions on the touchstone of the principle laid down in the case of "Nasir-ud-Ghori Vs. Federadon of Pfistan throueh Secrehrv and 04 others" decided on 03.06.2010 reportcd as (2010 PLC 323). It was the decision of the learned Division Bcn<*r of Karachi High Court autlxrred by his tordship Mr..Justicc Shahid Anwar Bajwa, who is representing the applicants in the instant petition. In dre said.fudgcment, it was held lhat, "PTCL is a prson anenable to the jurisdiction of the HiSh but under Atticle 199(5) of hnstidttion, however, since PTCL does not have Sbtutory Rules, Wit Petitions of the employees of trCL are liable to be dismissed."The judgement of Hon'ble Karachi High Court was questioned before the Apcx Court through Civil Appeal Nos.239 ta 241 of 20ll and were decided through consolidated judgement in the case of "Masood Ahmad Bhatti & others Vs. Federation of Pfistan throudr Information Technolory and Telecommunication & others" on 07.r0.202t, where thc judgcment ol'Hon'ble High Court was seL-aside , wherein, it was hel<I, " Thus it is euident that at the moment of hansition when the appellanu cease to rcmain the employees of the Corporation and bccome the employees of PTCI" they adminedly werc pvemed by the rules and regalaabns which had been protected byHlCAct The said rules, therefore, by definition were sbtutory rules as has been discussed aboue. PICI, no doubt, could make benefrcial Rules in relation to its employees which were in addition to the rules of the

1l

employment prevailiry on 01.01.1996. Iloweuer, by uiarc of aforesid prouiso, PTCL had no power to vaty the terms and conditions of the seruice of its employees who were prewbusly employees of Cotpotadon a their disaduantage. Even the Fedenl Govemment was debarred by uirtue of Seclion 35 ibid {rom uaryhg such terms and conditions of the seryice to the disaduan@gc of the appellants. An easy and uncomplicated test becomes available to us to help detennine the status of the employees' rules governing the appellants. If the curent employer of the appellants viz. PTCL ie consfrained bylegislation such as Section 35(2) of the Reorgarlization Act, and as a consequence, cannot vaty the eisting rules to the disaduantage of the appellants, because of such legislation, it must follow that such law has the elfect of sauing the rules which existcd when the appellants becane employees ofPTCL. Such eistingrules, hauing been protected by Section 35(2), therefore, can only be categorized as statutory rules." Thus, the maintainability ol'the Writ Petitions could not be que stioned especially when learned counsel for the applicants before this Court was representing the applicants before the Apex Court in Civil Petition Nos.l596, 1597 of 2014 in the case of " Pakishn Telecommunication Emolovees Trust (Y[TT) throueh M.D Islamabad & othen Vs. Muhammad Aif & other{ (2015 SCMR 1472) and he raised all these questions which being agitated today befbre this Court and the Hon'ble Supreme Court while considcring the submission of Mr. Shahi<l furwar Bajwa, Advocatc, lras hekl; " We may note that while the Company may be endtled to fix the tenns and condiabns of service of its employees so also the prouision ofpension by the Board of Trustees of the Trust butas discussed above, as regards the employees ofT&TDepannent dansferred to the Cotporation and then to the Company, their terms and conditions of seruice sknd protected by the prouision of Section 9 of the Act of 1991 and Sections 35, 36 and 46 of the Aa of 1996 and thus they will be entitled to payment of increase in pension as is announced by the Govenment of Pakisbn. The C,onf ibution of the Company to the Pension find detennined by the Achuuy and its payment by the Company does not appear to be of much relevance because the question before us is of entitlement of the respondents

to the increase in pension. In the case of oSecretaq4 Covernment of the Punjab, Finance Depatunentand 269 othen Vs. M. Ismail Tayer and 269 othen' (2014 SCMR 1336), this Cout has held that while on completion to commub;tion pcriod the ciuil seruant is entided n payment offiill pension. It tns noted, and such has been done time and again by this C,owt that pcnsion is a patt of a ciuil seryant's retirement benefit and is not bounty or an ex-gratia payment but a right acquired in considetation of his past seruice which was a uested right with legitimate expechtion. The right to pension is confened by law which could not be arbiaarily or reduced except in accordance with law. The aspect of the statutory rules has alrcady been dealt with above and we tend to agree with the rule lail down in the case ofMasopd_Ahnad Bhaui bupn). For the forepingreasons, we have come to condusion that the tespondents, who werc the employees of T&T Depattutent hauing rctired after their dansfer to the Corporation and the bmpany, will be entided to the same pension as is announced by the Government of Pakisbn and that the Board of Trustces of the Trust is bound to follow such annou)cement of the Covemment in respect of such Consequendy, these petitions are dismissed." Hence , thc submission of learned counsel lbr thc applicants pe rtaining to jurisdiction of this Court has already been resolved by the Hon'ble Supreme Court and in view of the above, the objection is turned <lown as the matter has already been decided by the Hon'ble Suprcme Court.

12, Admittedly, the applicants were tlte transferred employees in terms of Section 36(l) of the Act ol' 1996 quite difl'erent fi"om mn of the mill PTCL employees, who were working on contract basis. 'fhe applicans were ex-Government employees whose rights were protected by the Statute itself. Rights of' the applicants grraranteed under *re law have bccn violatcd by authorizinl; pcnsion increasc less than their entitletnent; thus, changing thcir lenns and conditions o[ the service and pension reduced to thcir disadvantage, they have approached to this Court. Appointment letter issued by 'l-&T

Department and Service Verification Celtificate and retirement notification issued by PI'CL itself Ibr applicants; PPO order, pension book and disbursement of the pension to applicanls were hken into

consideration in juxtaposition by this Court while deciding the writ petitions. No doubt, they were part of T&T Department and retired Irom PTCL and were receiving pcnsion from plET. The Corporation, PTC was made responsible to pay all pensionary benefiLs to all 'l-& l' pensioners and rctiring cnrployecs. 'fhe pTC Establishcd limpl<>yees' Pcnsion Funds'l'rust tlrrough iur irrevocable trust deed dated 02.04.1994 by incorporation pension rules ol'the Federal Governnrent, which were duly approvc<l bv trfC Board of Trustees. All BPS of salary and pension incrcase n<ltified by the Government of Pakistan time to time were allowed to Departmental employees and the pensions, till its winding up in 1995. The assets and liabilities of PTC Employees -l-rust was established as an irrevocable Trust under deed dated 02.04. 1994 with the sole purpose of provision of pension to the retired 'l-&T ernployees and PTC employecs on their retirement. the legal status ol' the pe titioners of the Writ Pctitions have bcen dilated upon by this Court and by the Apcx Court, as such, thc applica:rts havc not bccn able to prove the concealment of fict or misrepresentation, exclusion ofjurisdiction of this Court under Article 199 of' the Constitution; thus, for the lbregoing reasons, cases of the applicans is not covered by the application of section l2(2) CPC hence no c;ue for revival ol'the judgement is madc out.

13.An equal significance aspect and question of vital importance is that when a partv has raised a Dlea in the pendins ,&s which after hearins has been decided but without touchins the plea raised by the oartv. could it be challenred under section l2(2) CPC? -fhe dispcnsation ol'.justice is a cornerstonc ol'any civilizcd society and legal system. In civil litigation, Section l2(2) of the Civil Procedure Code (CPC) provides iur exfaordinary remedy [o agyicved parties who believe that a judgmen! decree, or ordcr has been obtained through fraud, misrepresentation, or want ol' jurisdiction. 'lhe provision stands as a saf'eguard against miscarriage of justice and upholds the sanctiry of legal procecdings by cnsuring that the courts are not misled into delivering unjust decisions. 'fhis section, therefore, bars the institution of a separate suit and mandate s that the proper lorurn lbr challenging such a decision is the sarnc court that

passed iL Scction l2(2) is not a substitutc lirr appcal ol rcvision. It is a collatcriil rctnedy mcant [o addre ss only sllccilic gricviurces: i.e., Fraud: which is a delibe rare deception to sccure an unjust advantage, Misrepresentation such as false representation that misleads the court and Want of Jurisdiction as a judgment rendered by a court that lacked legal authoriSr. The Supreme Court ol'Pakistan has repeatedly held that l2(2) is not a tool for relidgationbila shiekl against manilbst i4justice. In the case reported as PLD 2001 SC 49, the Hon'ble Supreme Court emphasized that Section l2(2) is aimed at striking a balance between .iudicial finality and justicc. Section l2(2) CPC represcr-tts thc legislature's nuanccd approach kr cnsuring that thc integrity ()l'.iu(licial pxrcccdings is rnaintainc<l witlxrut rcopcuing cascs on frivolous grounds. It reflects a judici<lus blend ol linality and fairness, ensuring that while courts deliver conclusive decisions, they also retain the ability to correct egrcgious crrors resulting Irom fraud or illeg'ality. In the broader scope of civil justice, Section l2(2) CPC seryes as both a sword and a shiekl, defending litigants from deceitlul practices while preserving the sanctiqr of judicial determinations. Section l2(2) CPC is a powerful but narrowly confined remedy. It does not open the door to reJitigate a case but exists to correct grave procedural wrongs that undermine thc justicc l)rocess. C<lurts apply it strictly and cautiously, placing a high llurdcn ol' lrrool on the applicrnt.

14.It is settled law that Section l2(2) cannot be invoked merely on the ground that a plea or issue raise<l during trial was not considered or decided, unless such omission was the result of fraud or misrepresentation. In the case o[ applicants, the plea about t]re status of the respondents (petitioners of writ petitions) was raised, replied, details provided by them (employees) and the court has decided the lis, the petition thereagainst hiled, moreover, lhe appliczurts could not prove the factum of allegcd fraud & ,t misreprcseutation tlrrough the contcnts ol' applications or during argumcnts. Furthe rtnorc, lailure to considcr a lega.l plea <loes not constitutc fiaud or misreprescnhtion rtnlcss the opposing party actively concealed lhcts or manipulated the proccedings. In the case of Mian Muhammad Shafi and another Versus Additional District

Judge Mian Channu District Khanewal and 14 others (2006 CLC 1438) it was observed that:

Now it is a matt€r of record that the plea was specifically raised by the deceased defendant in his written statement. An issue was framed, and he was called upon to lead evidence to establish his plea that the suit- land is urban immovable property and is located within the municipal limits of Mian Channu. He was given sufficient opportunities on the repeated requests made by his learned counsel, but he failed to lead any evidence and the learned trial Court closed his evidence. There being no evidence in support of the said plea, the issue was answered against him. To my mind the said finding became res judicata between the parties to the said suits and could not have been challenged and then set aside in collateral proceedings i.e. under section l2(2), C.P.C. In my humble opinion if this course is allowed to be followed then there will be no end to any proceedings.

Furthermore, the record indicates that the applicants were duly represented by counsel, who contested the writ petitions and argued the matter extensively, resulting in a decision on merit. The judgment of this Court was challcnged belbre the Hon'ble Supreme Court and was dismissed on merits. Consequcntly, the matter reachcd finality. An application under Section l2(2) , C.P .C., can only be entcrtaincd upon establishing cottccalmcrtt ol' lacts or misreprcscntati<xr-allegations which thc applicants Iailed to substantiate on rccord. 'fherefore, thesc applicatious mcrit dismissal.

15.Sincc the merits of the writ petitions have already been considered and decided, we shall confine our discussion strictly within the parameters ol'Section l2(2), C.P.C., and examine the available record in detail. In our considered opinion, thc applications under Sectiort l2(2), C.P.C., were not maintainable lrom tlre outset. Granting such relief would be inconsistent with the established principles and would adversely aflect 0re .iudicial system and procedural liarncwork. 'lhe issues raised in thcsc :rppliczttitlns have already bccn a<ldrcsscd by the piuties, particul:uly on tlte trasis upon which the applic:urts ttave sought permission liom the Hon'ble Supreme Court to approach this Court-this b:Lsis directly contradicts their own stancc as reflected in their comments. 'fhe grounds now relied upon were well within the applicants' knowledge from the very beginning, as evident from the initial filing of the writ petitions' These grounds were specifically mentioned, conlrovcrted, and duly responded to by the petitioners with plausible and legally sound

explanations. Accordingly, the status of the writ petitioners was rightly evaluated, adjudicated, and decided in their favour. Thcrefore, it is held that:

r Section l2(2) cannot be invoked merelv on the sounds that a olea or issue raised durinc tria-l was not considered or decided. unless such omission was the result of fraud or misrepresentation.

a Failure to consider a lecal does not constihrte fraud or misreDresentation unless the opposins party actively concealed facts or manipulated the proceedinss a App_licafion under Section l2(2) is not a substitute for an apoeal or review. even where the court has isnored a material plea or evidence.

For the fbrgoing reasons, thesc applications are devoid of merit and are hercby disnrissed with costs throughout. The record be sent to quarter conccrnc<l irnnrediatcly Announced on 09. 04.202.t Released on 23. 06.2025.

JUDGE.

tr"29 -,-l

JUDGE

Ha cr Shah,.9.9t lDfl Honbk Mr.]ntle Mulannwl itaccn tuuar& llotl'ble Mt.Ju$tic l"dal SDbhM.