IN THE SUPREME COURT OF PAKISTAN 
(Original Jurisdiction) 
 
 
PRESENT: 
MR. JUSTICE TASSADUQ HUSSAIN JILLANI 
MR. JUSTICE MIAN SAQIB NISAR 
MR. JUSTICE ASIF SAEED KHAN KHOSA 
MR. JUSTICE SARMAD JALAL OSMANY 
MR. JUSTICE GULZAR AHMED 
MR. JUSTICE MUHAMMAD ATHER SAEED  
 
 
Constitution Petition No. 39 of 2007 and 
H.R.C. Nos. 14127-S/2009, 13486-S/2010,  
14646/2009 and 47811-P/2010 
(Petition under Article 184(3) of the Constitution of the Islamic Republic of Pakistan, 1973) 
 
 
 
Abdul Wahab and others  
 
 
(in Const.P.39/2007) 
Mst. Amna Baloch 
 
 
 
(in HRC 14127-S/2009) 
Amina Ahmed Baloch 
 
 
 
(in HRC 13486-S/2010) 
Employees & officers of Habib Bank Ltd 
(in HRC 14646/2009) 
Application by Syed Sohail Bashir 
 
(in HRC 47811-P/2010) 
 
… PETITIONERS/APPLICANTS 
 
VERSUS 
 
HBL and others 
 
 
 
 
(in Const.P.39/2007) 
 
… RESPONDENTS 
 
 
For the Petitioners: 
Mr. Muhammad Akram Sheikh, Sr. ASC 
(Assisted by: Mr. Hassan Murtaza, Advocate,  
Mr. Sajeel Shahryar Swati, Advocate and 
Syed Riaz Hussain, Advocate) 
Mr. Mehmood A. Sheikh, AOR 
 
 
 
 
 
For the Respondents: 
Ch. Aitzaz Ahsan, Sr. ASC 
 
 
 
 
(Assisted by Mr. Gohar Ali Khan, Advocate and 
 
 
 
 
Mr. Kashif Ali Malik, Advocate)  
 
 
 
 
Mr. M.S. Khattak, AOR 
 
For the applicants: 
Mr. Zulfiqar Khalid Maluka, ASC 
(in CMA No. 1899/2012) 
 
For the applicants: 
Mr. Sher Muhammad Baloch, in person 
(In HRC 14127-S/2009 & HRC 13486-S/2010) 
 
Dates of Hearing:  
15th, 16th & 17th October, 2012. 
 
*  *  *  *  *  *  
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
2
JUDGMENT 
 
 
MIAN SAQIB NISAR, J.- Pursuant to the short order 
dated 17.10.2012 passed in the noted matter, whereby the said 
petition(s) was dismissed, the detail reasons are being hereby 
provided. 
2. 
 
This petition, under Article 184(3) of the Constitution 
of the Islamic Republic of Pakistan, 1973 (the Constitution), has been 
initiated by 310 ex-employees (the petitioners) of Habib Bank Limited 
(HBL), respondent No.1 (the Bank), out of whom 308 were early 
(compulsorily) retired, pursuant to a policy decision taken by the 
Board of Management of the bank; and by invoking the provisions 
of Rule 17 of the Habib Bank Limited (Staff) Service Rules, 1981 
(the Rules 1981). Whereas the services of the two (petitioners) have been 
terminated under Rule 15 (supra), by paying them three months 
dues. Vide this petition, petitioners have challenged the aforesaid 
action of the Bank, with the prayer that “it is, therefore, prayed that this 
petition may be accepted, orders and decision passed by respondent No.1-bank 
for termination of services of the employees of the bank may be declared to be 
without lawful authority and of no legal effect and quashed. Respondent No.1 may 
be directed to lay down or prescribe for guidance of the officers parameters and 
criteria in the light of which such decision should be made in-discriminatory to 
prevent the employees from arbitrary and whimsical exercise of powers. Costs of 
the petition may also be awarded”.  When the instant matter came up for 
hearing before this Court on 29.11.2010, the following order was 
passed:- 
“We have heard learned counsel for the parties at some length 
and have also considered the law laid down by this Court in 
cases where issue of a “person” in terms of Article 199 of the 
Constitution was one of the points in issue or the Banking 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
3
company or a corporate body was either a respondent or a 
petitioner i.e. Airport Support Services Vs. Airport Manager 
(1998 SCMR 2268), Aithison College Vs. Muhammad Zubair 
(PLD 2002 SC 326), Pakistan International Airline Corporation 
Vs. Tanweer-ur-Rehman (PLD 2010 SC 676) & Muhammad 
Mubeen-us-Salam Vs. Federation of Pakistan (PLD 2006 SC 
602). We find that in those cases, the question of distinction 
between the relief sought by a “person” in terms of Article 
199(a)(ii) and Article 199 (1)(c) was not raised which could 
have a strong bearing in the case we are seized of and similar 
matters. In these circumstances, we are persuaded to refer this 
matter to the Hon’ble Chief Justice for constitution of a larger 
Bench for rendering an authoritative judgment. Since this matter 
is pending since long, subject to the order of the Hon’ble Chief 
Justice this may be fixed for an early date. A notice shall also 
issue to learned Attorney General for Pakistan.” 
 
3.  
 
Be that as it may, in the context of the instant matter; 
the facts of the case are:- that the petitioners were in the 
employment of the bank (most of the petitioners were either VP or AVP) and 
as per their own case, their services were regulated and governed 
by the terms and conditions envisaged by Rules 1981, which 
(services) have been dispensed with as stated above and the 
petitioners are aggrieved of this action of the Bank; it is not the 
case of the petitioners that such rules were/are statutory in 
nature; and/or they were civil servants. For the facility of 
reference, Rules 15 and 17 being the germane rules for the 
purposes of the present petition, the relevant part thereof is 
reproduced:- 
 
 
 
“15. 
Termination of Services:- (1) Services of an 
employee in Category I may be terminated by the competent 
authority on 3 months’ notice or on payment of a sum equal to 
his substantive pay for three months in lieu thereof:……………” 
 
  
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
4
 
“17.  
Superannuation and retirement – (1) Every 
employee shall retire from service:- 
(a) 
on such date after he has completed twenty five  
years of service as the competent authority may, 
in the interest of the Bank, direct or 
(b) 
where no direction is given under clause (a) on 
the completion of the sixtieth year of his age 
….………………………………………………….” 
 
Earlier HBL was a private bank and was nationalized under the 
Banks 
(Nationalization) 
Act 
1974, 
however 
upon 
its  
denationalization, according to the petitioners, their performance 
was duly evaluated, and that being found to be satisfactory, all of 
them were retained by the Bank. Not only that, some of them were 
even rewarded. It is averred in the petition that most of the 
petitioners have excellent service record and in the ordinary course 
of employment, they were to retire on the completion of sixty years 
of age under clause (b) of Rule 17 (reproduced above), but the 
petitioners have been retired/terminated (in case of two) from service 
vide certain order(s)/letter(s) (note: different letters for different petitioner). In 
case of petitioner No.1, the order/letter is dated 13.1.2007, the 
relevant part whereof reads as under:- 
“Dear Mr. Wahab,  
The management would like to thank you for your services 
during the past years. 
Going forward in line with the Bank’s changed staffing needs, 
you are being retired from Bank service with effect from 13th 
January 2007, in accordance with the rule # 17 of HBL (Staff) 
Service Rules – 1981. 
In view of your sincere services to the Bank, the Management is 
pleased to grant you, in addition to all the benefits payable to 
you under the terms and conditions of employment, the following 
additional benefits.” 
 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
5
Almost similar orders/letters were issued with regard to the other 
petitioners as well (note: in case of those against whom action is taken under Rule 
15, the orders simply are based on that Rule). It is the grievance of the 
petitioners, that the exercise of power under Rule 17(1)(a) ibid, for 
their retirement, is pursuant to the “changed staffing needs”, but 
without disclosing and justifying  as to what those exigencies were; 
the petitioners had not been provided with any opportunity of 
hearing before the impugned action was taken, yet they have been 
deprived of their vested and fundamental right(s), which action is 
void being in breach of the rule of natural justice; the power(s) 
under Rules 15 and 17(1) ibid is (are) uncontrolled and unbridled 
and has been exercised not only in violation of the equality clause 
as enshrined by Article 25 of the Constitution, but in an arbitrary 
and whimsical manner which again is violative of the said Article; 
it is also their grouse that through the impugned action their 
fundamental right to life (Article 9) and the rights available to them 
as per Articles 3, 4, 8, 27, 29, 37 and 38 of the Constitution have 
been infringed; before taking the impugned decision, the Bank has 
not adverted to Rule 89 of the amended Habib Bank Limited (Staff) 
Service Rules, 1989, which reads below:- 
  
 
“Rule 89: Encashment of leave preparatory to retirement 
1. An employee shall exercise his option either to avail the leave 
preparatory to retirement or for encashment of the leave 
preparatory 
to 
retirement, 
(on 
attaining 
the 
age 
of 
superannuation or on completion of 30 years qualifying service) 
inasmuch as no power is vested with the bank to retire the 
employee under this rule before the attainment of 30 years 
service.” 
 
4. 
 
Furtherance to the petitioners case,  Mr. Muhammad 
Akram Sheikh, their learned counsel, has submitted (1) that the 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
6
forced retirement of the petitioners is contrary to the Bank’s own 
rules, although such rules are non-statutory in nature, yet those 
do not empower the Bank to violate the same rules with impunity 
(2) that the petitioners have fundamental right to life and as they 
have been removed from service and deprived of their livelihood in 
a forced and coercive manner without following the rules in that 
regard, thus it tantamounts to depriving them of such right (to life), 
which action undoubtedly is against the provisions of Article 9 of 
the Constitution; in this context it is also submitted that the right 
to life should be given an extended/broader meaning, so as to 
include the right to livelihood; reliance in this behalf is placed on 
the judgments reported as Delhi Transport Corporation Vs. DTC 
Mazdoor Congress and others (AIR 1991 SC 101 paragraph 
223 at pages 172 and 173), Arshad Mehmood and others Vs. 
Government of Punjab through Secretary, Transport Civil 
Secretariat, Lahore and others (PLD 2005 SC 193 at page 
232) (3)--; the Bank is a ‘person’ in terms of Article 199(1)(c) of the 
Constitution as it is distinct from an ‘ordinary private individual’, 
because it (the Bank) is owned and controlled by the State, 
therefore, for all intents and purposes, thus an appropriate writ 
petition against the Bank is maintainable not only under the 
Article supra,  but independently under Article 184(3) as well. In this 
behalf emphasis has been laid on the “function test” and reference 
has also been made to Articles 97, 141 and 142 of the Constitution 
in order to substantiate that the executive authority of the 
Federation is extendable to such matters (note: see item No.28 of the 
Federal legislative list), in regard to which it has the empowerment to 
legislate; besides, the Bank statedly is the extended arm of the 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
7
State and thus it is claimed to be performing its functions in 
connection with the affairs of the State/Federation. It may be 
pertinent to mention here in the context of function test it is also 
argued that the Bank is, under the regulatory control of the State 
Bank of Pakistan (SBP) and therefore amenable to the writ 
jurisdiction (5) It is urged that the present is the era of substantial 
justice and, therefore, in order to alleviate the sufferings and 
miseries of the petitioners, this Court should act magnanimously 
while exercising its jurisdiction/power in order to grant relief to the 
petitioners in the interest of justice and on humanitarian grounds; 
(6) It is pleaded that the present matter is of immense public 
importance as it shall affect not only a large number of persons 
involved in the case, but shall also settle the principles of law in 
relation to the jurisdiction of this Court under Article 184(3) and 
the issues involved in the matter, which shall have vital impact on 
the public-at-large. (7) The provisions of Article 184(3) have no 
trappings and limitations of Article 199 of the Constitution and 
shall not deter this Court from exercising its jurisdiction under 
Article 184(3) (Constitution) which is an independent provision, and 
also because of the expression “without prejudice” appearing in the 
said Article should be construed as a non obstante clause to 
Article 199; (and) thus where the fundamental rights of a 
person(s)/citizen(s) have been violated and the matter is of public 
importance, appropriate orders can be issued by this Court, by 
ignoring any constraint of Article 199 ibid. 
In support of his various contentions, learned counsel for the 
petitioners has relied upon the judgments reported as Darshan 
Masih alias Rehmatay and others Vs. The State (PLD 1990 SC 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
8
513) (5), Muhammad Yasin Vs. Federation of Pakistan through 
Secretary, Establishment Division, Islamabad and others (PLD 
2012 SC 132), (1993) 4 Law Reports of Common Wealth and 
(1995) 
2 
Law 
Reports 
of 
Common 
Wealth), 
Pakistan 
Telecommunication 
Company 
Limited 
through 
General 
Manager and another Vs. Muhammad Zahid and 29 others 
(2010 SCMR 253), Pakistan Telecommunication Company 
Limited through Chairman Vs. Iqbal Nasir and others (PLD 
2011 SC 132), Pakistan International Airline Corporation and 
others Vs. Tanweer ur Rehman and others (PLD 2010 SC 676),  
Wattan Party and others Vs. Federation of Pakistan and others 
(PLD 2012 SC 292 at pages 326 and 327, paragraph 35), Miss 
Benazir Bhutto Vs. Federation of Pakistan and another (PLD 
1988 SC 416 at page 488) and Mian Muhammad Nawaz Sharif 
Vs. Federation of Pakistan and others (PLD 1993 SC 473). 
5.  
 
To controvert the above, Ch. Aitzaz Ahsan, learned 
counsel, has joined serious issue about the maintainability of this 
petition, it is argued by him that the Bank for all intents and 
purposes is a private institution. HBL was nationalized in 1974 
and was privatized in 2004; the admitted position is, that more 
than sixty percent of the shares of the Bank are held by Agha Khan 
Foundation, which were acquired in 2005 and the said foundation 
has the absolute majority in (on) the Board of Management; it is 
submitted that, it shall be misconceived to argue that the Bank is 
being owned and controlled by the State/Federation either directly 
or indirectly, besides, the SBP is only a regulatory authority for all 
the banks in Pakistan, therefore by virtue of such a status of SBP, 
no private bank in the country can be said to be a State owned and 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
9
a controlled enterprise. It is also argued that the petitioners have 
no fundamental right(s) which could be said to have been violated 
by the Bank; they were simply contract employees of a (private) 
Bank, whose services have been dispensed with strictly as per the 
terms of the contract (i.e.) Rules 1981; the (noted) matter absolutely 
do not involve a question of public importance or of the 
enforcement of fundamental rights, therefore, the case does not fall 
within the purview of Article 184(3) of the Constitution. 
6.  
 
Heard. In our view following are the broader (important) 
questions in the matter, which shall encompass the points in issue 
between the parties and the answers thereto: 
(i) 
What is the status of the Bank; the status and 
relationship of its employees (the petitioners) viz-a-viz the 
Bank; 
(ii) 
Whether the petition is maintainable in terms of Article 
184(3) of the Constitution; 
(iii) 
Whether there is a violation of any of the fundamental 
rights of the petitioners, especially in relation to the 
right to life (Article 9), and right to equality (Article 25). 
And other Articles of the Constitution, such as, 
Articles 3, 4, 8, 27, 29, 37 and 38 etc.; 
(iv) 
Whether the Bank’s action against the petitioners is 
arbitrary, whimsical and discriminatory, thus Article 
25 of the Constitution should be resorted to in 
allowing relief to the petitioners. 
However, before answering/resolving the aforesaid questions/ 
propositions, it seems expedient to mention here, that vide short 
order dated 17.10.2012, we had dismissed the noted petition, 
holding (a) “that the grievances voiced through this petition are 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
10
individual in nature” (b) “the nature of relationship between the 
petitioners/employees of the bank and the respondent was 
contractual” (c) “that the impugned order of compulsory 
retirements were in accord with the Habib Bank Limited (Staff) 
Service Rules, 1981 which are non-statutory” (d) “the bank is not 
performing any function in connection with the affairs of the 
Federation or a Province” (e) “no question of public importance 
with reference to enforcement of fundamental rights has been 
raised and the petition having no merits is accordingly dismissed”. 
As regards the question formulated by this Court vide order dated 
29.11.2010, it was held that the same “shall be addressed in some other 
appropriate case” (emphasis supplied). 
7.  
Question No.1:  It is an admitted position that the Bank has 
been privatized and the majority shareholding thereof, has been 
acquired and is vested in Agha Khan Foundation, there also is  no 
discord that the Board of Management of HBL is predominantly 
represented by the said foundation. However, in order to bring the 
Bank within the purview and the connotation(s) of a ‘person’ and 
‘authority’ appearing in Articles 199, 199(5) and 199(1)(c) of the 
Constitution and also for the purposes of urging that appropriate 
order, in the nature of a writ can be issued independently by this 
Court under Article 184(3) (Constitution), to the Bank, the learned 
counsel for the petitioners has strenuously relied upon the ‘function 
test’; and in this respect it is submitted that the State/Federation 
has a considerable, shareholding in the Bank and  representation 
in the managing affairs thereto therefore it shall qualify having the 
status of a person/authority within the meaning of the law; 
besides, the Bank is being regulated by and under the authority of 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
11
the SBP thus on this account as well it (Bank) has the status 
mentioned above, therefore  this Court should exercise its 
jurisdiction in terms of the Article supra. In this context, it may be  
held that for the purposes of resorting to the ‘function test’, two 
important factors are the most relevant i.e. the extent of financial 
interest of the State/Federation in an institution and the 
dominance in the controlling affairs thereof. But when queried, it is 
not 
shown 
if 
the 
State/Federation 
has 
the 
majority 
of 
shareholding, or majority representation in the Board of 
Management of the Bank. As regards the authority and the role of 
the SBP (in the above context), SBP is only a regulatory body for all the 
banks operating in Pakistan in terms of Banking Companies 
Ordinance 1962 and suffice it to say that such regulatory role and 
control of SBP shall not clothe the Bank, with the status of a 
‘person’ or the ‘authority’ performing the functions in connection 
with the affairs of the Federation. Rather it shall remain to be a  
private entity. In support of the above, reliance can be placed on 
two judgments of this Court reported as Salahuddin and 2 others 
Vs. Frontier Sugar Mills and Distillery Ltd, Takht Bhai and 10 
others (PLD 1975 SC 244), which prescribes that “regulatory control 
does not make a person performing functions in relation to the federation or a province”; 
likewise in Pakistan Red Crescent Society and another Vs. Syed 
Nazir Gillani (PLD 2005 SC 806) it  was held “such control must be 
particular to the body in question and must be persuasive ………….. on the other hand, 
when the control is merely regulatory whether under the statute or otherwise it would not 
serve to make the body a ‘State’ ”, therefore, we have no hesitation to hold 
that the Bank is a private institution for all intents and purposes. 
And we vide short order dated 17.10.2012 has deferred our 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
12
decision on the issue if such a private person is amenable to writ 
jurisdiction in the context of Article 199(1)(c) of the Constitution.  
  
Attending to the second part of the proposition, it is an 
admitted position that the petitioners were employed (promoted) by 
the Bank as a result of a prescribed internal process  of the Bank 
and the letters of petitioners appointment (promotion) clearly  
indicate that they were taken into employment on their 
unequivocal 
acceptance 
of 
the 
terms 
and 
conditions 
of 
employment, because in the said letters (appended by the petitioners 
themselves with the petition), it is clearly mentioned that “you shall be bound 
by the rules and regulations of the bank for the time being in force”. Thus when 
such offer (of appointment) was duly accepted by the petitioners, it  
culminated into a valid and a binding service contract between the 
parties, which for all intents and purposes was meant to govern 
and regulate the relationship inter se the parties. It may not be 
irrelevant to mention here (which may also be reiterated in other parts of the 
judgment) that it is not the case of the petitioners that they are 
governed by any statutory rules of service. It is settled law that,  
where a service grievance is agitated  by a person/employee who is 
not governed by the statutory rules of service, before the High 
Court(s), in terms of Article 199 of the Constitution such petition 
shall not be maintainable; reference in this behalf can be made to 
PLD 2010 SC 676 (Pakistan International Airline Corporation Vs. Tanweer-ur-
Rehman) and PLD 2011 SC 132 (Pakistan Telecommunication Co. Limited Vs. 
Iqbal Nasir). (note: the question however if that is possible in terms of Article 199(1)(c), 
we have deferred). But the plea that such law shall not prevent this 
Court while exercising its jurisdiction under Article 184(3); suffice 
it to say that while exercising the jurisdiction this Court is bound 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
13
by the conditions of Article 184(3); and moreover by such rules 
which are laid by this Court for regulating its jurisdiction, keeping 
in view the principles of restraints.  We find that in the cases of 
contractual service, where the grievance agitated is against a 
private person, there is no reason that such restraint should be 
resorted to by this Court and any exception should be taken to the 
law laid down in Tanweer ur Rehman case supra (note: even if it pertains 
to the writ jurisdiction of High Courts).  
8. 
Question No.2: 
Fundamental 
rights enshrined 
in 
our 
Constitution have a very significant and pivotal position and are 
the most sacred of the rights conferred upon the citizens/persons 
of the country and thus the regard, security and the enforcement 
of these rights is one of the primary duties of the State and its 
institutions at all the levels. These are such a primordial rights, 
that the sanctity and the significance attached thereto can be 
gauged from the constitutional mandate as prescribed (envisaged by) 
by Article 8 of the Constitution, whereby it is ordained (specified) 
that any law etc. in so far as it is inconsistent with such rights 
shall to the extent of inconsistency be void.  Not only that, under 
Article 8(2), a complete bar and a prohibition has been placed on 
the State, in that, “the State shall not make any law which takes away or 
abridge the rights so conferred and any law made in contravention of this clause 
shall, to the extent of such contravention, be void.” In view of the sanctity 
and the importance of these rights and for the safeness and the 
safeguard (saving those from a slightest impairment) thereof the Constitution 
itself in a noteworthy way, has provided a specific and a special 
mechanism, in terms of Article 199(1)(c) by virtue whereof 
notwithstanding the powers of the High Courts under Article 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
14
199(1) (a) and (b) an extraordinary  power has been conferred on it 
“to make an order giving directions to any person etc…………as may be appropriate for 
the enforcement of the fundamental rights conferred by Chapter I of Part-II” and 
moreover a bar has placed on the State in terms of Article 199(2) 
that subject to the Constitution, the right to move to the High 
Court(s) for the enforcement of such rights shall not be abridged. 
And in addition thereto a wider power(s) as per Article 184(3) of the 
Constitution) to this Court has been conferred. Besides, the superior 
Court of the country has the power, of judicial review to examine 
and adjudge any legislative and/or administrative action of the 
State on the touchstone of the fundamental rights and, to pass 
appropriate orders for protecting such rights and enunciating the 
law in respect thereof.  In relation to the jurisdiction of this Court 
under Article 184(3) though the constraints and limitations, if any 
of  Article 199 may not be stricto sensu attracted, in view of the 
expression “without prejudice” appearing at the very opening of the 
Article, meaning thereby “without any detriment” (i.e. without being harmed or 
damaged or hurt). However, this Court has the power and the 
jurisdiction to lay down the rules for the purposes of regulating its 
own jurisdiction and to apply the rules of restraints as mentioned 
earlier. Besides, Article 184(3) itself has its own limitations and 
conditions, which are:- 
(i) 
The matter before the apex Court should be for the 
enforcement of any of the fundamental rights 
conferred by Chapter I of Part-II of the Constitution 
(emphasis supplied); 
AND  
(ii) 
With 
reference 
to 
the 
enforcement 
of 
such 
fundamental rights the question involved should be of 
public importance (emphasis supplied). 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
15
 
The above are the two primary, foundational and fundamental 
conditions for the exercise of the power vested in this Court under 
Article 184(3) and are sine qua non thereto; Both these (conditions) 
must first be established by the petitioners of the case and shown 
to co-exist before, enabling the Court to exercise its jurisdiction in 
terms of the said Article (obviously subject to its own principles for regulating its 
jurisdiction and the judicial restraints). 
  
In the context of the present matter, it is thus expedient to 
examine if these basic conditions are satisfied. And for this we 
shall first take up if the requirement regarding “question of public 
importance”  is fulfilled, qua which some facts and the legal account, 
needs recapitulation:-   
(a) Petitioners are 310 in numbers (most of them are VP & AVP); 
they are the ex- employees of a Bank, a private 
organization/institution; they have a personal grievance 
against their employer of early/compulsory retirement. 
(note: in two cases the termination is under rule 15) in violation of the 
terms and conditions of their service, which undoubtedly 
is contractual in nature, and the rules of 1981 admittedly 
are  non statutory.  From catenated precedent law laid 
down by this Court in order to meet the said condition 
and for the purpose of qualifying the test of “question of public 
importance”, the issue involved in a matter before this Court 
under the said Article must belong and should concern 
the public at large, the State or the nation. But, if the 
proposition/matter involves the alleged violation of the 
rights (FR) of an individual or a group of individuals, how 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
16
so large it may be, but if it has no concern and affect on 
the public, then it cannot be termed as “question of public 
importance”. The petitioners are the contractual employees, 
of a private institution having no statutory rules to 
safeguard their service. In view of the stance taken by the 
Bank, all except six of the petitioners have received their 
dues and no issue has been joined by the petitioners to 
this fact, therefore virtually it seems to be the grievance of 
few individuals, which (grievance) hardly constitutes the 
requisite question of law. (note: especially when we have deferred to 
decide the point of law which was formulated in our order dated 29.11.2010, 
vide our short order dated 17.10.2012). For the purpose of the 
support of our above view that the instant matter does 
not qualify the test of the said condition reliance can be 
placed upon the cases reported as Pakistan Muslim 
League(N) through Khawaja Muhammad Asif, MNA and 
others Vs. Federation of Pakistan through Secretary, 
Ministry of Interior and others (PLD 2007 SC 642), 
wherein a seven members bench of this Court ordained: 
“it is, however, to be kept in view that the earlier petition preferred on behalf 
of Mian Muhammad Shahbaz Sharif was dismissed being non-maintainable 
as it was filed in his individual capacity and for the redressal of his 
individual grievances and the element of public importance which is sine qua 
non for the invocation of Article 184(3) of the Constitution was missing and 
it is well established by now that the issues arising in a case, cannot be 
considered as a question of public importance, if the decision of the issues 
affects only the rights of an individual or groups of individuals. The issue in 
order to assume the character of public importance must be such that its 
decision affects the rights and liberties of people at large. The adjudicative 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
17
‘public’ necessarily implies the thing belonging to people at large, the 
nation, the State or a community as a whole. Therefore, if a controversy is 
raised in which only a particular group of people is interested and the body 
of the people as a whole or the entire community has no interest, it cannot be 
treated as a case of public importance”. (note: in this context some more 
precedents from this Court, such as, PLD 2004 SC 600 (APNS Vs. 
Federation of Pakistan); PLD 1996 SC 632 (Shahida Zahid Abbasi Vs. 
President of Pakistan); 1995 PLC 1 (Human Right case); 1994 SCMR 2308 
(Human Right case) and 1994 SCMR 445 (Ali Gul Khan Vs. Lahore High 
Court) can be helpful). In another case, 1998 SCMR 793 
(Zulfiqar Mehdi Vs. Pakistan International Airlines), the petitioners (of 
that 
case) 
were 
employees 
of 
PIA 
who 
claimed 
discrimination on the ground of withholding of back 
benefits, this court held that the question of back benefits 
does not involve a question of public importance i.e. it 
was not a thing that belonged to the people at large, the 
nation, the State or a community. In PLD 2004 SC 583, 
where a political figure (ex-Chief Minister of Province Mr. Shahbaz 
Sharif) was not allowed to enter the country and a direct 
petition was brought before this Court under Article 
184(3), it was held that the matter does not relate to the 
whole community; the grievance of a class or a group 
could not constitute, public at large; thus, the petition in 
that case was held not maintainable.  
 
In view of what has been discussed, we are of the opinion that on 
the basis of the facts and circumstances of the present matter, and 
the nature of grievance propounded herein, this petition does not 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
18
qualify the test and the condition of the “question of public importance” 
and the petition should fail on this score alone (emphasis supplied).  
 
(b) Now attending to the other condition of the Article 184(3) 
(supra) with reference to the violation of the fundamental 
rights (if any) of the petitioners; there seems no room to 
disagree with the plea/legal position that the right to life 
of a person/citizen shall include the right to livelihood 
and right to livelihood, therefore cannot hang on to the 
fancies of individuals in authority; the employment is not 
a bounty from them (individuals in authority) nor can its 
survival be at their mercy[1]. But at the same time it 
cannot be ignored and elided if a person, who is once 
taken into an employment by the State or any State 
Controlled 
institution, 
or 
even 
a 
private 
institution/individual has (such employee/person) a right in 
perpetuity (throughout his life time) to remain in service, and 
his services can never be dispensed with by his employer, 
even though it is so permissible in terms of the service 
rules (where statutory) by which  he is governed, despite of 
his 
inefficiency, 
incapacity, 
misconduct 
etc. 
and  
compulsory 
retirement 
and 
more-so, 
where 
the 
employment is of contractual nature and with a private 
entity. Because such an action (termination etc.) shall be an 
infringement of right to life as envisaged by Article 9 of 
the Constitution. Upon analysis of the said Article, which 
stipulates “No person shall be deprived of life and liberty save in 
                                       
[1] AIR 1991 SC 101 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
19
accordance with law” and when it is resorted to in respect of 
the issues having nexus to service matter it shall 
unmistakably be permissible that the employment of an 
employee can be brought (come) to an end, but obviously 
in accordance with the law (emphasis supplied), when there is 
some law regulating such an employment/service. 
Therefore, if the services of an employee are dispensed 
with by the employer, either by removal, dismissal, 
termination or compulsory retirement or any other 
adverse action is taken against him in connection with 
his service rights, other than in accordance with law, the 
employee shall have a right to take recourse to the 
remedies available to him and provided by or under the 
relevant law, before the forum of competent jurisdiction. 
(note:  May it be  the termination etc. of one employee of 
State/Government/institution or the group or bulk of such employees). 
However, in those cases where the employment/service(s) 
is not regulated by any law, as in the present case it is 
admitted position that Rules 1981 are non-statutory 
(emphasis supplied), and thus not a law, rather contractual 
stipulations, and no specific forum is designated for the 
resolution 
of 
such 
service 
issues, 
therefore 
an 
infringement of any condition of such a contract shall at 
the most entitle and clothe the employee to avail his 
ordinary remedy for the breach of the contract and on 
account of wrongful action against him, before the court 
of plenary jurisdiction. In such a situation, it cannot be 
urged that the fundamental right of the employee has 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
20
been violated conferring upon him a right to enforce the 
same (in terms of Article 199 and/or) under Article 184(3) (supra).   
Despite the above, we hereby proceed to examine, 
whether 
any 
alleged 
fundamental 
right(s) 
of 
the 
petitioners has/have at all been violated or not; From  
Rules 15 and 17(a) (reproduced above), it is quite obvious that 
the bank has the  due authority to bring to an end to the 
services of its employees by way of termination/early 
retirement, likewise, the employee also has the option to 
give up the employment of the Bank. In this behalf, the 
relevant rules 16 and 18 of Rules, 1981 are referred to as 
below:-  
  
“16.  
Resignation:-(1) An employee in Category I 
shall not resign from the service of the Bank without giving three 
months previous notice in writing of his intention to do so, 
failing which he shall be liable to pay the Bank a sum equal to 
his 
substantive 
pay 
for 
three 
months: 
………….………………………………………………………………”  
  
  
“18.  
Option to retire:--  An employee may retire at his option 
after completing 25 years continuous service in the Bank.” 
 
It is clear from all the above four Rules, when those are read 
together, that the true intention and the spirit of the contractual 
understanding between the employer and the employees was (is) 
that the Bank has the right to finish the employment of its 
employees under rules 15 and 17, while the employees under rules 
16 and 18 have an akin right. These indeed reflect absolute and 
un-circumvented privilege and prerogative, of the employer and the 
employee, in the above context. Rule 17(a) when invoked especially 
for large scale of Bank employees,  and pursuant to the decision (as 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
21
in this case) of the Board it shall be deemed that the decision and the 
action 
is 
primarily 
founded 
upon 
commercial, 
business, 
administrative wisdom, the prudence and judgment of a private 
enterprise for the better interest of the institution, which may 
involve 
and 
be 
based 
upon 
financial 
constraints 
and 
considerations and/or for the restructuring and revamping of the 
staff (the ability, efficiency and skill wise). Such decisions in our view are 
not justiciable by this Court, while sitting as a court of appeal over 
it. Anyhow, coming back to the four rules, to our mind, a balance 
has been created by allowing both the employer and the employee 
to finish employment at their option. Be that as it may, considering 
the plea of right to life propounded by the petitioners from another 
angle, according to rule 17(b) an employee shall stand retired on 
attaining 60 years of age, now can an employee on the basis of 
right to life and the concept of livelihood attached thereto, plead 
that being fit for the job, he should not even retire at the age of 60 
years; and rule 17 (b) ibid should be declared invalid. The answer 
certainly should be in the negative. Though in this petition to the 
contrary, the plea urged, is that the petitioners should have been 
allowed to complete their age of superannuation.  
  
While summing up, in the facts and circumstances of the 
case, we find that even no fundamental right to life of the 
petitioners has been violated by the Bank to satisfy the second 
condition of Article 184(3) warranting interference by this Court. 
Rather the petitioners have been allowed all the benefits of early 
retirements, which they were entitled and it seems from the record 
that the majority of them have even received such amounts, baring 
a few (may be six in numbers as avowed by the Bank). It may further be 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
22
mentioned that where a case is not made out in terms of the said 
Article, jurisdiction should not be exercised on the plea of pity, 
compassion and humanitarian reasons only (alone).  
9. 
Question No.3: Though this question to an extent has been 
settled while answering question No.2, yet even considering the 
case of the petitioners independently on the touchstone of Article 
25 of the Constitution, there are two main pleas on their part. One, 
that some of the employees similarly placed as the petitioners 
were, retained but their (petitioners) services have been dispensed 
with; and second, that the action against them is subjective, as no 
reasons have been assigned, even the changing needs of the  Bank 
are neither specified nor shown, thus the action is arbitrary, 
whimsical, capricious and unfair. As far as the first plea is 
concerned, the petitioners have not provided for the comparison, 
any dates or material or the particulars of the persons, who were 
equally placed as them and have been retained. Even otherwise it 
is for the Bank management to decide about the usefulness of the 
employees or otherwise. Obviously, it has to be the evaluation of 
the management as to who is the employee(s) worthy of serving the 
best interest of the Bank, more suitable, so as to be retained and 
those who should retire. In regard to the second plea, it may be 
stated that the petitioners have not challenged the validity of rules 
15 and 17 of Rules 1981; they also have not impugned the decision 
taken by the Board of Management, it is only the adverse action 
against them by the authority which has been attacked. But as 
held earlier the rules duly empower the Bank to take action; and 
the decision impugned in this case has been made pursuant to the 
Board resolution and seemingly on the basis of the considerations 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
23
of the Bank highlighted in the preceding para, therefore, the 
question of arbitrariness and lack of assigning reasons etc. shall 
have no relevance to the matter. Thus, we are of the candid view 
that the provisions of Article 25 of the Constitution does not help 
the cause of the petitioners and no case of discrimination in terms 
of said Article has been made out. 
10. 
 
With regard to the plea that the rights of the 
petitioners conferred upon them by Articles 3, 4, 8, 27, 29, 37 and 
38 be enforced in these proceedings. Without going into the 
question about the nature of such rights if any, it may be held that 
Article 184(3) has made a specific reference to the fundamental 
rights conferred by Chapter 1 of Part-II of the Constitution and 
nothing beyond; therefore the said Articles can at the most operate 
as enabling provisions where there is the violation of the rights (FR) 
mentioned in Article 184(3), but per se are not enforceable.  
11.    
While dilating upon the plea of the petitioners based 
upon rule 89 of Rules 1981, we find that both these rules are 
independent. Rule 89 in no way controls or overrides rule 15 or 
rule 17(a) and/or obliterates or abridges or circumvents the power 
and authority of the Bank to take action independently under the 
said Rules. Therefore, the plea of the petitioners in this context, 
also has no force.  
12. 
 
 Before parting it may be pointed out that vide short 
order we have already held that the question formulated by this 
Court on 29.11.2010 shall be addressed in some other appropriate 
case, therefore, while giving these reasons, obviously no discussion 
is warranted on the said point. 
Constitution Petition No. 39 of 2007 and H.R.C. Nos. 14127-S/2009, 13486-S/2010, 14646/2009 and 47811-P/2010 
 
24
13. 
  
In the light of the above, the noted petition as held in 
the short order dated 17.10.2012 stands dismissed. The Human 
Right Petitions and other miscellaneous petitions therefore are also 
dismissed. 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
 
 
 
 
 
JUDGE 
 
 
Islamabad, the 
17th of October, 2012 
Approved For Reporting 
Ghulam Raza/* 
