Fakhr-e-Alam Vs Federation

JUDGMENT SHEET

PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

WP No.4697-P/2024 Fakhr-e-Alam, Ex-Executive (Quality Assurance) Vs Federation of Pakistan through Ministry of Information Technology and Telecommunication & others Date of hearing: 05.03.2026.

Mr. Anwar Ali Khan, Advocate, for the petitioner.

M/S Akbar Yousaf Khalil, DAG and Sikandar Rashid, Advocate, for the respondents.

JUDGMENT

KAMRAN HAYAT MIANKHEL, J.- Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called in question the legality of order dated 24.04.2024, whereby he has been removed from service by the respondent department. The petitioner has prayed for setting aside the impugned order and for his reinstatement in service with all consequential benefits.

2.Briefly stated, the petitioner was initially appointed as Engineering Supervisor in the Pakistan Telecommunication Corporation on 08.07.1995 and, with the passage of time, earned promotions and ultimately served as Executive (Quality Assurance) in

Northern Telecommunication Region-I, Peshawar.

According to the petitioner, during the execution of a project relating to Fiber to the Home (FTTH) lines in Kohat, he merely forwarded a Provisional Acceptance Test (PAT) report on the instructions of his superior officer and had also pointed out certain discrepancies therein. However, subsequently a Joint Investigation Team noticed irregularities in the project and inquiry proceedings were initiated against the petitioner which culminated in the impugned order of removal from service dated 24.04.2024.

3.Learned counsel for the petitioner contended that the petitioner was made a scapegoat while senior officers were spared and that the impugned order was passed without observing due process of law. It was further argued that the petitioner was not afforded proper opportunity of defence during the inquiry proceedings and thus the impugned order is violative of Articles 4, 10-A and 25 of the Constitution.

4.Conversely, learned counsel for the respondents opposed the petition and raised a preliminary objection regarding maintainability of the instant petition. It was contended that the petitioner was appointed in the Pakistan Telecommunication Corporation in the year

1995, after the promulgation of the Pakistan Telecommunication Corporation Act, 1991, and therefore he does not fall within the definition of a civil servant and as the Tele Communication Corporation was not governed by statutory rules; therefore, this writ petition is not maintainable before this Court. In this regard he placed reliance on the judgment of Hon’ble Islamabad High Court, delivered in I.C.A No.82 of 2020 dated 27.07.2021.

5.We have heard learned counsel for the parties and have perused the available record.

6.In view of the law laid down by the august Supreme Court of Pakistan in the case of Pakistan Telecommunication Company Ltd vs. Muhammad Samiullah [2021 SCMR 998], the following questions fall for the determination of this Court:

i. Whether the terms and conditions of the Respondent's employment were statutorily protected, and ii. Whether PTCL is a person within the meaning of Article 199(5) of the Constitution.

7.Before dilating upon the crux of the matter, the legal position must be laid out clearly. In this regard, reference may be made to Section 9 of the Pakistan Telecommunications Corporation Act 1991 (hereinafter

"the 1991 Act") and sections 35 and 36 of Pakistan Telecommunications (Reorganization) Act, 1996 (hereinafter "the 1996 Act") which read as follows: - "9. Transfer of departmental employees to the Corporation.----(1) Notwithstanding anything contained in any law, contract or agreement, or in the conditions of services, 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 disadvantages.

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

"35. Vesting of the rights, property and liabilities of the Corporation.---(2) An order issued under subsection (1) shall specify the employees of the Corporation who shall, as from the effective date of the order, he transferred to and become employees of the entity referred to in the order Provided that such order shall not vary the terms and conditions of service of such employees to their disadvantage.

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 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 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 the responsibility for his Pensionary benefits without recourse to the Pension Fund referred to in that section.

(5)Under the order vesting property of the Corporation in 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 ward appropriate compensation."

8.A bare perusal of the above provisions makes it abundantly clear that departmental employees of T&T 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.

The terms and conditions of their service remained fully protected under section 9(2) of the Act of 1991 and 35(2) of the Act of 1996.

9.Furthermore, none of the terms and conditions could be varied to their detriment and under section 36 of the 1996 Act, the Federal Government was bound to guarantee the existing terms and conditions of service and rights including pensionary benefits of the transferred employees. This matter has been elaborately

addressed by this Court in the case of “Masood Ahmad Bhatti and others v. Federation of Pakistan and others (2012 SCMR 152) and PTCL and others v. Masood Ahmad Bhatti and others (2016 SCMR 1362). The relevant parts from the same are reproduced below for ease of reference:

"(2016 SCMR 1362).

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 sections 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 High Court."

AND

"(2012 SCMR 152)

15.Thus, it is evident that at the moment of transition when the appellants ceased to remain employees of the Corporation and became employees of PTCL, they admittedly were governed by rules and regulations which had been protected by the PTC Act. The said rules, therefore by definition were statutory rules as has been discussed above. PTCL, no doubt, could make beneficial rules in relation to its employees which were in addition to the rules of employment prevailing on 1-1-1996. However, by virtue of the aforesaid proviso, PTCL had no power to "vary the terms and conditions of service" of its employees who were previously employees of the Corporation, "to their disadvantage". Even the Federal Government was debarred by virtue of section 35 ibid, from varying such terms and condition to the disadvantage of the appellants."

10.Now coming to the principal question in the present case, whether the terms and conditions of the petitioners’ employment enjoy statutory protection? The

answer is in the negative because neither the record nor the relevant law contains anything to support such a conclusion. The petitioner was employed by Pakistan Telecommunications Corporation in 1995 and was removed from service on 24.04.2024. At no point in time was he working in the T&T department. In this regard, it is essential to draw a distinction between departmental employees of the T&T Department whose terms and conditions of service on their transfer to the Corporation and Company were protected by law and those who were employed by the Company on contract or work-charge basis whose terms and conditions of service were governed by the rules of the Company that are clearly non-statutory. The case of the petitioner falls squarely in the latter category. Therefore, any alleged violation of non-statutory rules was not amenable to writ jurisdiction of the High Court. In this regard reference must be made to the case of Pakistan Telecommunication Company Ltd. through Chairman v. Iqbal Nasir and others (PLD 2011 SC 132) wherein it was categorically held that employees of Pakistan Telecommunication Corporation Limited were governed by principle of "Master and servant" and in the absence of statutory rules,

constitutional petitions filed by employees were not maintainable.

Further reliance is placed on I.C.A No.82 of 2020 dated 27.07.2021 vide which it was held by the august Islamabad High Court that those employees who were employed 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 a petition under article 199 of the Constitution is not maintainable.

11.In view of the above legal position, we are of the considered opinion that the instant petition is not maintainable before this Court which is accordingly dismissed.

Announced;

SENIOR PUISNE

JUDGE

JUDGE

Amjad PS DB Hon’ble Mr. Justice Ijaz Anwar & Hon’ble Mr. Justice Kamran Hayat Miankhel