Fazalullah Vs Managing Director PTV & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

W.P No. 469-M/2022

(Fazalullah Versus Managing Director, PTV and others) Present:

Barrister Asad Ur Rahman for petitioner.

Mr. Said Jamil Shah, Assistant Attorney General for Federation.

Muhammad Ishaq Shah, Advocate for respondent No. 1 to 4.

Date of hearing: 27.01.2026

J UDG MENT

QAZI JAWAD EHSANULLAH, J.- Petitioners

Fazalullah has filed the instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, seeking the following reliefs:

“It is therefore respectfully prayed that the Respondents No.1 to 4 may be directed to start giving pension to the petitioner from his retirement onwards, as he is eligible for it by all means.

It is prayed that the petitioner may be given his gratuity, provident fund and all other benefits of regular employee. It is prayed that the Respondents No. 1 to 4 may be directed to share the regularization order of the petitioner and regularization orders of other employees who were on the similar footing to the petitioner. It is further prayed that the Respondents No. 1 to 4 may be directed to share all the relevant policies of pension and other benefits regarding regular employees of PTV with the Hon”ble Court.

It is also prayed that the Respondents No.5 to 6 may be directed to pay the pension and other benefits of the petitioner in accordance to the law.

Any other relief which this Honourable Court deems fit may also be granted.”

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

2.Facts giving rise to the instant petition are that the petitioner was appointed as Road Coolie (Group-I) in the Pakistan Television Corporation Limited (PTV) on 07.09.1989. He rendered uninterrupted service to the Corporation for approximately 29 years, spanning from 1989 to 2018. During the course of his service, his appointment was regularized with effect from 13.10.2016.

Upon attaining the age of superannuation, he stood retired from service on 03.10.2018. It is averred that, although his services, like those of his similarly placed colleagues, were subsequently regularized, he was denied pension and other ancillary retirement benefits by the respondent department.

Aggrieved therefrom, the petitioner approached the National Industrial Relations Commission (“NIRC”), Peshawar Bench through a complaint which was allowed vide order dated 15.10.2020 holding that the petition was a regular employee and directed the respondent department to grant him pensionary benefits accordingly. The said decision was assailed by the respondent department before the Full Bench of the NIRC at Islamabad through an appeal which was accepted vide order dated 18.11.2021.

Consequently, the order of the Single Bench was set aside on the ground that the petitioner, being a retired employee Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

of PTV, could not invoke the jurisdiction of the NIRC.

Being dissatisfied with the said order, the petitioner has approached this Court through the instant constitutional petition.

3.Respondents No. 1 to 4 have filed their comments, controverting the petitioner”s claim on various legal and factual grounds. It is asserted that the internal affairs of Pakistan Television Corporation Limited are regulated by non-statutory rules framed under the Companies Ordinance and, therefore, the relationship between PTV and the petitioner is purely that of master and servant, rendering the matter not amenable to the writ jurisdiction of this Court. It is further stated that the petitioner”s services were regularized with effect from 13.10.2016 and, upon attaining the age of superannuation, were de-notified with effect from 03.10.2018; hence, according to the respondents, he was not entitled to pension under the applicable policy. The respondents also aver that, in pursuance of the policy approved by the Board of Directors in its 176th meeting held on 14.01.2008, the pension scheme was discontinued for prospective employees and a Contributory Pension Fund (C.P. Fund) scheme was introduced. According to respondents, the petitioner was registered with EOBI with regular Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

funding/contribution to it by PTV on monthly basis since 01.03.2012 till his retirement, therefore, the matter is between EOBI and petitioner.

4.Arguments heard and record perused.

5.At the very outset, learned counsel for the petitioner apprised the Court that the petitioner has passed away and that a list of his legal representatives has already been filed before the office. He requested that the deceased petitioner be substituted by his legal representatives in the writ petition and the connected record. The request is allowed. The office is directed to incorporate the names of LRs of the petitioner in the array of petitioners in the writ petition as well as in other relevant record.

6.As regards the preliminary objection raised by respondents No. 1 to 4 concerning the maintainability of the instant petition, notwithstanding the fact that the service conditions of the petitioner were regulated by non-statutory Service Rules framed by PTV, the filing of the present writ petition under Article 199 of the Constitution is fully justified and maintainable. In the first place, from the very inception, PTV is a public utility company. It performs functions in connection with affairs of the Federation and is a “person” within the meaning of Article 199 of the Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Pakistan. In a pronouncement of the Lahore High Court rendered in Muhammad Aslam Saleemi, Advocate v. The Pakistan Television Corporation and another1, it was observed in this regard that:

“18. .... It is also noteworthy that clause (f), section 10(1) and subsection (2) of section 10 of the Pakistan Broadcasting Corporations Act (XXXII of 1973) and Article III(3) of the Memorandum of Association of the Pakistan Television Corporation Ltd. read with the provisions of Wireless Telegraphy Act, 1933 show beyond doubt that both the Corporations are being controlled and run under the directions of the Government. In this connection it is also pertinent to Article 159 of the Constitution. This Article, read with items Nos. 7 and 31 of the Federal Legislative list, provides that broadcasting and telecasting are Federal subjects. Article 253(1) of the Constitution provides that the Government can take over run any such Corporations. The respondent-Corporations are clearly public services and, as shown above, they are being controlled administered by the Government. As a result, we feel that the learned Deputy Attorney- General was justified in not pressing that the respondent corporations are not performing functions in connection with the affairs of the Federation, a province or local authority.

19.It may be mentioned here that for the same reasons as given in para No. 18 above it is evident that the functions and objects of the two Corporations as mentioned in clause (e) of section 10(1) of the Pakistan Broadcasting Corporations Act, 1973 and Article III(2) of the memorandum of Association of the Pakistan Television Corporation are, in fact, in the nature of duties, which they are required to perform as “public services” functioning under the control of the Government and are not merely powers without any corresponding obligations. It is now well settled that when the function required to be performed or thin required to be done is for “public benefit” or “advancement of public interest”, the words used in the relevant law, rules or other similar provisions must be construed as having a compulsory force, i.e., as importing a PLD 1977 Lahore 852 Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

duty as opposed to merely conferring power of an enabling or permissive character. Reference in this connection may be made to Julius v. Oxford (42 L T 546) and Reg v. Tithe Commissioners (1849) 14 QB 459.

Having chosen to exercise the function of disseminating news about significant activity in the country, the respondent-Corporations are duty bound to maintain, as far as possible, a balance and present the news with regard to the aforementioned activity in an accurate and impartial manner and the Court can, therefore, direct them to perform that duty in the said manner through a direction under Article 199(1)(a)(i) of the constitution....” (Underlining added)

Further reference in this regard may also be had to Ghulam Mustafa v. Ulfat Hussain Qureshi, Assistant Controller (Administration & Personnel), Pakistan Television Corporation Ltd. And 3 others2 and S.

Ahtramullah v. Pakistan Television Corporation3. In light of the above precedents, there remains no ambiguity that PTV is performing functions in connection with the affairs of the Federation and is thus amenable to the jurisdiction of this Court under Article 199 of the Constitution. Besides, a writ petition in matters relating to pension and/or other retirement benefits is even otherwise maintainable, subject to the determination that the petitioner has earned a vested right to such pension etc. Once such right is earned, denial or withholding of pension, even if the amount involved is meagre, would amount to a violation of the petitioner”s

1979 PLC 446

1981 PLC (C.S) 726

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

fundamental rights as envisaged in Articles 3, 4, 9, 10, 14, 25 and 27 of the Constitution, thereby attracting the constitutional jurisdiction of this Court. In such circumstances, a writ may be issued irrespective of the technical objection as to whether the respondents strictly fall within the definition of “person” or “any person” under Article 199 of the Constitution. Consequently, for all intents and purposes, a writ petition involving the question of entitlement to pension/post-retirement benefits is required to be examined and decided on merits, particularly where the petitioner asserts that he has lawfully earned the right to receive pensionary benefits. Reliance in this regard is placed on Suo Motu Action regarding Non-Payment of Retirement Benefits by the Relevant Departments and Others (Suo Motu Case No. 20 of 2016, etc.) reported in 2018 SCMR 736 wherein the apex Court held:

“25. The question is once pension is being paid, whether under statutory provision, common law or contract, can it be in an amount so modest that it denies the pensioner a decent living, thereby denying him/her the right to life? Article 14 of our Constitution provides protection to the citizens of our country. Dignity of man shall be inviolable as envisaged in Article 14 of the Constitution. If a man serves his employer for a number of years, during the prime of his life and gives of his honest labour to his employer and where he is promised pension, whether under statute, common law or contract then he should be able to plan his financial future for his declining years keeping in mind such promises of a pension. When that pension is given but is of a sum which is illusory and by no amount of prudent budgeting can it be used to sustain a Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

man independently, and forces him to turn to his children or other relatives/sources for 'help', offends against his dignity. To subject a pensioner to a life of penury and impoverishment, is a clear violation of his fundamental rights to life and dignity as enshrined in Articles 9 and 14 respectively. The entitlement to pension is not a fundamental right but must be duly earned. Once that right has been perfected and earned, as has been by the petitioners, it is no longer a question whether they are entitled to the pension or not. The fundamental right that is to be enforced is that the pension given to such pensioners must be of a level which allows them to keep body and soul together.”

7.Turning to the core issue relating to the inclusion of temporary service for the purpose of computing the total length of service towards pensionary and other retirement benefits. The stance of the respondent PTV inter alia is that although the petitioner”s services were regularized with effect from 13.10.2016, he had only 01 year, 10 months and 04 days of regular service to his credit up to the date of his retirement. Consequently, according to the respondent, the petitioner did not fulfill the prescribed qualifying service required for entitlement to pension/gratuity, and thus was not eligible for the said post-retirement benefits. This aspect of the matter was duly examined by the learned Single Bench of the NIRC in the light of the authoritative pronouncement of the apex Court in Messrs State Oil Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Company Limited v. Bakht Siddique and others4, wherein it was held as under:

“3. ---- As regards the question that the respondents were not the employees of the petitioner but the contractor, suffice it to say that it is a normal practice on behalf of such industries to create a pretence and on that pretence to outsource the employment of the posts which are permanent in nature and it is on the record that the respondents have been in service starting from as far back as 1984. This all seems to be a sham or pretence and therefore, it being not a case of any disputed fact and no evidence was required to be recorded. Moreover, we have seen from the order under challenged that in such like cases where the orders have been passed by the Labour Tribunals, the employees, even those who were under the contractors' alleged employment, have been regularized by the petitioner. And thus keeping in view the rule of parity and equality, all the respondents even if considered to be the employees of the contractor, which is not correct, they having been performing duties of permanent nature should have been regularized. However, at this stage, we would like to observe that the employment of the respondents shall be regularized with effect from the date when they approached the learned High Court through the Constitution petition but for their pensionary benefit and other long terms benefits, if any, available under the law, they would be entitled from the date when they have joined the service of the petitioner. All the petitions are accordingly dismissed.”

(Underlining added)

This Court had also the occasion to examine an analogous controversy in W.P. No. 1158-M/2021, titled Shabir Khan v. Government of Pakistan and others, decided on 02.07.2025, wherein the same legal proposition was analyzed comprehensively. In that case, the writ petition

2018 SCMR 1181

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

was allowed on the strength of a consistent line of authorities laid down by the Supreme Court of Pakistan, and it was unequivocally held that temporary, ad hoc, and daily- wage service is liable to be counted towards the total length of qualifying service for the purpose of pensionary benefits.

It was further observed that once such service is regularized, the entire preceding tenure stands absorbed into regular employment and must be reckoned for all consequential service benefits, including pension. This position finds direct support from the authoritative pronouncement of the Supreme Court in Ikram Bari and others v. National Bank of Pakistan through President and another, reported in 2005 SCMR 100, wherein past service rendered on daily wages, upon regularization, was ordered to be counted for pensionary purposes. The relevant portion reads as under:

“21. For the foregoing reasons:--- (i)' The Civil Petitions ...... filed by the employees seeking financial back-benefits and waiver of conditions of ,regularization/reinstatement are disposed of with the direction to the National Bank to regularize/absorb them in service with effect from 15-9-2003, subject to the conditions as laid down in para. 10 of the impugned judgment. The National Bank is directed to issue them appointment letters within one month. Moreover, previous service rendered by them with the Bank shall be counted towards retirement/pensionary benefits. (Underlining added)

The principle was reiterated and further

reinforced in Secretary Ministry of Finance, Islamabad and Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

others v. Tayyaba Halim Subhani and others (2022 SCMR 77), wherein the apex Court categorically observed:

“11. We find that although the employment of the Respondents was not permanent within the meaning of CSR 361, the establishment under which they were working was permanent and the fact that they rendered services for years shows that they were not employed on temporary basis as a stop-gap arrangement for short periods of time. Further, that the Federal Public Service Commission by recommending the Respondents for retention into service has confirmed their ability and qualification to hold these posts. It is an admitted fact that the Respondents have been working continuously for more than 5 years. We have gone through the memorandum dated 25.01.2006 whereby it was stated by the Federal Directorate of Education that service rendered on an Ad Hoc basis could be counted towards pay and pensionary benefits. If the Appellants/ Petitioners have allowed the services of Ad Hoc teachers/ lecturers to be counted for pay protection and pension, it is hard to understand why the same was cannot be done in the case of the Respondents. The principle of similarly placed persons dictates that the Respondents also deserve to be treated in the same manner as others who were granted the benefits of pay protection and pension from the date of their initial appointment on daily wages basis. The Respondents have been discriminated against which is in violation of their fundamental rights guaranteed to them by the Constitution of the Islamic Republic of Pakistan, In view of the consistent and binding dicta of the apex Court, the legal position admits of no ambiguity. The service rendered on temporary, ad hoc or daily-wage basis, once followed by regularization, cannot be excluded from computation of qualifying service for pension and other Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

post-retirement benefits. We, therefore, find no lawful basis to adopt a contrary stance in the present matter. Reference of the learned counsel for respondent PTV and his reliance upon the judgment of the apex Court in Civil Review Petition No. 471 of 2015 in Constitutional Petition No. 48 of 2009 is also misconceived because the referred judgment in its Para No. 13 denies back benefits to the regularized employees of the PTV. That case does not relate to the issue of computation of temporary/contractual service towards qualifying service for pension and is clearly distinguishable.

8.Regarding the objection raised by respondents No. 1 to 4 in their comments that the pension scheme stood discontinued for prospective employees and that the Contributory Pension Fund (C.P. Fund) scheme was introduced instead, the defence so advanced is again misplaced and misleading and inapplicable to the facts of the present case. As regards introduction of the C.P. Fund scheme, it is evident from the record that the aforesaid assertion of the respondents is wholly unsubstantiated, as no material in support thereof has been brought on record.

Although it has been averred in the comments that copies of the notification and minutes of the meeting were appended therewith yet, quite intriguingly and in apparent disregard of that assertion, the same were never annexed as claimed. Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

It is, therefore, manifest beyond any cavil that the material and relevant information were deliberately withheld by the respondents. The omission is neither inadvertent nor innocent; rather, it appears to be a calculated attempt to obscure the true factual position from this Court. Such conduct strikes at the very root of fair adjudication, for a litigant, particularly a public functionary, is under a solemn and unequivocal obligation to approach the Court with complete candour, transparency and bona fides. The respondents” act of suppressing material facts is not merely unbecoming; it is reprehensible and wholly indefensible. It reflects a disturbing disregard for the sanctity of judicial proceedings and a patent lack of respect for this Court.

Deliberate concealment of relevant information amounts to an abuse of process and challenges the administration of justice. The respondents cannot be permitted to trifle with the Court by selectively disclosing facts to suit their convenience. Such conduct deserves strong disapproval and must be deprecated in the clearest possible terms. Insofar as the service status of the petitioner is concerned, the stance of the respondents in this regard is discernible from paragraph No. 5 of their comments which, for facility of reference and ready appreciation, is reproduced hereunder.

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“5. That as per policy approved by the Board of Directors in its 176th meeting held on 14.01.2008, pension scheme was discontinued for the prospective employees and scheme of contributory pension fund was enforced for those whose services were regularized on or after 1/7/2008 as notified vide No. HPP/120-A/6261 dated 30/10/2013 copy annexed.”

The information we gather from the comments especially Para 5 thereof are that the Board of Directors of PTV has resolved that the C.P Fund rules would be made applicable to “prospective” employees, however, the petitioner cannot, by any stretch of interpretation, be categorized as a prospective employee. He had entered service in 1989 and continued uninterruptedly thereafter;

his services were subsequently regularized in 2016. Thus, he was already in long-standing employment and did not fall within the category of future entrants contemplated by the policy decision. We are at loss to see any document placed on the file showing that any such C.P. Fund scheme was ever approved by the competent authority and, if so, the precise date and terms of such approval. No notification, office order, summary or sanction conveying formal approval has been brought on record. In matters involving financial implications and recurring liabilities, the existence of a duly sanctioned scheme is not a matter of presumption but of record. Even if, for the sake of argument, we accept Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the submission made at the bar that a C.P. Fund scheme was introduced, the record is entirely silent as to its contours and implementation. There is nothing to show when it was introduced, under what authority, what its terms and conditions were or how it was to operate in practice. In the absence of any supporting document, the mere assertion of its introduction remains unsubstantiated and cannot be acted upon. There is nothing to indicate that any option for C.P Fund was ever formally invited, circulated, exercised or acknowledged. No option forms, acceptance letters, contribution statements or ledger entries reflecting deductions and corresponding employer contributions have been produced. In the absence of documentary substantiation, the plea regarding the existence and operationalization of the C.P. Fund scheme rests merely on assertion, unsupported by tangible evidence. Such a position cannot be sustained in judicial scrutiny, particularly when the claim pertains to statutory or service-related financial entitlements. Had any such C.P. Fund scheme involving joint contribution been introduced, deductions and corresponding employer contributions ought to have commenced right from the date of regularization of the petitioner, i.e., 13.10.2016, and been duly reflected in the official record of PTV. However, no notification, option Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

form, deduction statement, or contribution record has been produced. The complete absence of documentary proof not only shatters the respondent”s plea but also reflects a failure on their part to properly assist the Court on a matter within its exclusive knowledge and control. Learned counsel for respondents No. 1 to 4 further contended that under the PTV Employees Service Rules, the petitioner was not entitled to pension or gratuity on the ground that he fell short of the prescribed qualifying service. This submission is equally untenable in view of the express mandate of Clause (i) of Rule 5.28(A)(1) of the PTV Employees Service Rules, which provides as under:

“5.28 (A) (1) An employee shall retire from service:-

(i)On such date after he has completed twenty years of qualifying services for pension/gratuity or other retirement benefits as the competent authority may, in the public interest, direct, or (ii) Where no direction is given under clause (i) on the completion of the sixtieth year of his age.

A plain reading of the above rule makes it evident that completion of twenty years of qualifying service entitles an employee to pension/gratuity or other retirement benefits. In the present case, the petitioner joined service in 1989 and continued to serve until his retirement upon attaining the age of superannuation in 2018. Even if his Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

service is reckoned conservatively from the date of regularization in 2016, the earlier tenure rendered by him, once merged into regular service in light of the settled law, cannot be excluded from computation of qualifying service.

Consequently, having rendered service far in excess of twenty years, the petitioner squarely fulfills the requirement of qualifying service and is, therefore, entitled to pension/gratuity and all other admissible retirement benefits under the Rules.

9.It may further be observed that the respondent PTV has also attempted to cloud the issue by conflating two legally distinct regimes, namely (i) pension and gratuity payable under the applicable service rules of the Corporation, and (ii) old-age benefits under the Employees' Old-Age Benefits Act, 1976. In Para 7 of the comments, the respondents assert that contributions towards old-age benefits were duly deposited and that the petitioner may, therefore, pursue his claim before the EOBI, thereby seeking to absolve themselves of their independent liability and shift the entire burden onto a distinct statutory forum.

This submission is legally misconceived. Benefits under the Act of 1976 arise out of a statutory social insurance scheme, funded through prescribed contributions and regulated by a separate mechanism under the said Act. Such benefits are Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

independent of, and cannot be substituted for, pension and gratuity, which flow from the employer–employee relationship and are governed by the relevant service rules, regulations, or pension scheme applicable to the Corporation. The two operate in distinct legal spheres:

EOBI provides statutory old-age pension subject to qualifying conditions under the 1976 Act, whereas pension and gratuity are post-retirement service benefits earned under the governing service framework. By intermixing these separate entitlements, the respondents have sought to divert the issue, and their comments in this regard are wholly misleading and untenable in law.

10.Foregoing in view, the petition in hand is allowed. The respondents are directed to reckon the entire service of the petitioner, including both his temporary and regular service, towards the total length of employment for the purpose of calculating his pension/gratuity and other retirement benefits within 30 days from the receipt of copy of this judgment and submit compliance report to the office of Additional Registrar of this Court. In view of the contention raised by respondents No. 1 to 4 in paragraph 7 of the comments on facts, Employees Old-Age Benefits Institution (respondent No. 6) is also directed to process and finalize the petitioner”s case strictly in accordance with law Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah

and to submit a compliance report before the Additional Registrar of this Court within a period of thirty (30) days, without fail.

Announced -Sd- Dt:27.01.2026 JUDGE

-Sd-

JUDGE

Tajamul/CS* | (D.B) Hon’ble Mr. Justice Salahuddin Hon’ble Mr. Justice Qazi Jawad Ehsanullah