1976 PLP [C (PLC(CS))

‑‑ S. 4, Provisos (a) & (c) and Explanation ‑ Expression "Departmental Authority"‑Means authority designated under respective service rules and not applicable to any of Courts of law‑Order or decision made by departmental authority prior to 1‑7‑1969‑Not amenable to jurisdiction of Tribunal‑Appeal of Provincial Government (appellant before Tribunal) lying pending before High Court for more than 90 days envisaged in S. 4(a)‑Contention that High Court, for purposes of litigation pending before it, was a departmental authority, held, without any substance and not sustainable in view of Explanation under S.

4. Faizullah Khan v. Government of Pakistan P L D 1974 S C 291 rel. This is an appeal by the Government of North‑West Frontier Province against Subedar Abdul Qayyum (Retired), and arises out of the following circumstances.

2. Mr. Abdul Qayyum, respondent before me in this appeal, served in Zhob Militia for a period of fourteen years, seven months and seven days whereafter he resigned from this Force and joined Khairpur State Military Police Service. On the merger of Khairpur State in the Province of West Pakistan, the Military Police of the State was merged in West Pakistan Indus Rankers. Mr. Abdul Qayyum served in the West Pakistan Indus Rangers till 6th of January 1966 when he retired from service. His service in Zhob Militia was not counted towards pension by the authorities concerned with the result that he represented to the Provincial Government requesting that his service in Zhob Militia be counted towards pension. The representation so submitted did not find favour with the Provincial Government and was consequently rejected. Thereupon, Mr. Abdul Qayyum served the Govern ment with a notice under section 80 of the Code of "Civil Procedure. On the expiry of the period given in the notice. Mr. Abdul Qayyum instituted is civil suit for a declaration to the effect that he was entitled to the benefit of service rendered by him in Zhob Militia towards his pension. The suit was vehemently resisted by the Government of West Pakistan on various grounds giving rise to as many as six issues which need not be reproduced here. After recording all the evidence which the parties wished to adduce, the trial Judge came to the conclusion that the plaintiff was entitles to the relief claimed and consequently granted him a decree on 4th November 1968, as prayed for in the plaint, against the defendant leaving the parties to bear their own costs. Feeling dissatisfied with the judgment and the decree of the trial Court, the Provincial Government went up in appeal to the District Court but with no success. The appeal failed and was dismissed with costs, by an Additional District Judge. Peshawar, on 6th April 1970. There upon, the Provincial Government challenged the decisions of the two Courts below, in the High Court, by way of second appeal. During the pendency of the appeal in the High Court, which, in fact, is still pending the North‑West Frontier Province Service Tribunals Act, 197 (hereinafter referred to as the Act) came into force whereupon, the Government of North‑West Frontier Province filed the present appeal before this Tribunal alleging that with the coming into force of the Act, the appeal pending in the High Court automatically stands abated and this Tribunal was now the only competent authority to look into the matter. By this order, I propose to dispose of the appeal so filed by the Provincial Government. There can be two formidable objections against the entertainment of the present appeal by this Tribunal, which to my mind, would go to the root of the case. Since these objections will have reference to the true interpretation of section 2;a) and proviso (c) to section 4 of the Act, it will be convenient to reproduce them which read t‑ "2(a) 'Civil Servant' means a person who is, or has been, a civil servant within the meaning of the North‑West Frontier Province Civil Servants Act, 1973 (N.W.F.P. Act No. XVIII of 1973). 4(c) No appeal shall lie to a Tribunal against an order or decision of a Departmental Authority made at any time before the 1st July 1969." I shall first deal with the objection having reference to section 2(a) of the Act. The crux of the matter with regard to this objection is to find out if the meaning of the expression "Civil Servant" can legitimately be extended so as to include in that expression a person like the appellant who has been a civil servant of the Government of North‑West Frontier Province after the disintegration of the Province of West Pakistan in the year 1970. In this connection, it may be stated at the very outset that the North‑West Frontier Province Civil Servants Act, 1973 received the assent of the Governor of the Province on the 11th of November 1973. Before that, it was in the form of an Ordinance known as the North‑West Frontier Province Civil Servants Ordinance, 1973. This piece of legislation was intended to provide for regulating the appointment of persons to, and the terms and conditions of service of persons in, the service of the North‑West Frontier Province and matters connected therewith or ancillary thereto. In the said Act, the expression "Civil Servant" has been defined to mean a person who is a member of a Civil Service of the Province or who holds a civil post in connection with the affairs of the Province, while the expression "Province" has been defined to mean the North‑West Frontier Province. The expression "Province" has been similarly defined in the Act, There can be no doubt about the fact that the North‑West Frontier Province Civil Servants Act, 1973 was enacted after the dissolution of the Province of West Pakistan and was intended to regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of the North‑West Frontier Province and this fact finds full support from the preamble of the said Act. It is not denied that the North‑West Frontier Province Service 'Tribunal is competent only to hear appeals in respect of the North‑West Frontier Province. The learned counsel for the appellant was, however, of the view that the expression "Province" had not only reference to the North‑West Frontier Province formed on the disintegration of the Province of West Pakistan but it had also reference to the Province of North‑West Frontier which was in existence immediately before the integration of the Province of West Pakistan into One‑Unit. Such a view, in the existing circumstances, would violate against the letter and spirit of the Act. If the Legislature intended to give such an extended meaning to the said expression, they would have certainly defined the expression so as to cover the period intervening between the integration of the Provinces of West Pakistan into One‑Unit and the disintegration of the Provinces of West Pakistan, because during this period, the Province of North‑West Frontier was not in existence besides, some of the areas now forming part of the North‑West Frontier Province did not actually form part of the Province of North‑West Frontier at the time of the establishment of the Province of West Pakistan and while defining the expression in question, the Legislature could not be ignorant of this fact. In this context, a reference to certain provisions of the Province of West Pakistan (Dissolution) Order, 1970 (hereinafter referred to as the Order) which appear to me to be relevant as also material, to the point in issue, may be useful. In the introductory part of the Order, it has been stated in most unambiguous words that the Province of West Pakistan would be dissolved and in its place new Provinces would come into being and for the purpose of making provisions in the legal frame‑work for elections to the Provincial Assemblies and delimitation of constituencies for such election, it is necessary to provide for the dissolution of the Province of West Pakistan and constitution of new Provinces in its place. In the definition clause, "new Province" has been defined to mean a Province constituted under the Order. Then Article 4 of the Order provides that as from the appointed day (which came to be 1st July 1970), the Province of West Pakistan as it existed immediately before that day, shall cease to exist and there shall be constituted in its place four Provinces to be known respectively as (a) Baluchistan (b) the North‑West Frontier Province (c) the Punjab and (d) Sind and the Centrally Administered Tribal Areas of the Islamabad Capital territory, Centrally Administered Tribal Areas, and the territories of the new Provinces of the Centrally Administered Tribal Areas, shall be as set out in the Schedule. Article 5 of the Order also refers to the administration of the new Provinces. From all these provisions the conclusion, and the only conclusion, that can be drawn is that the reference is to the constitution of new Provinces, and not to the restoration or revival of the Provinces existing immediately before the establishment of the Province of West Pakistan. If the author of the Order aimed at the restoration or revival of the old Provinces in the form in which they existed immediately before the integration of the Provinces of t West Pakistan into One‑Unit, he would have never used the words "new Provinces" and instead would have used some other words or terms conveying the restoration or revival of the old Provinces. In that event, the author of the Order would have also taken notice of the addition of those areas forming part of the North‑West Frontier Province at the time of coming into force of the Order, which were not a part of the North‑West Frontiner Province immediately before the establishment of the Province of West Pakistan In the circumstances, there can be no doubt about tile fact that the Order aimed at the constitution of new Provinces which could not be tantamount to the restoration of the Provinces existing at the time of integration of the Provinces of West Pakistan into One‑Unit. Taking all these facts and circumstances into consideration, I feel no hesitation to coming to the conclusion that the meaning of the expression "Civil Servant" cannot be extended so as to include in that expression the appellant who retired before the constitution of the new Province of North‑West Frontier in pursuance of the provisions contained in the Order. Such being the case, this Tribunal will have no jurisdiction to proceed with the present appeal as the jurisdiction of this Tribunal extends only to the hearing of matters relating to the terms and conditions of Service of Civil Servants of North‑West Frontier Province. The second objection will have reference to the limitation placed on the jurisdiction of this Tribunal by proviso (c) to section 4 of the Act. In asserting that this Tribunal was competent to hear the present appeal, it has been argued by the learned counsel for the appellant that this Tribunal is competent to hear the present appeal in so far as it has been constituted under Article 212 of the Constitution of Islamic Republic of Pakistan and that the appeal filed by the Provincial Government before the High Court was pending for more than ninety days with the result that under proviso (a) to section 4 of the Act, the appellant was entitled to move this Tribunal. According to the learned counsel for the appellant, the High Court, for the purpose of the litigation pending before it was a Departmental Authority within the meanings of section 4 of the Act. I am afraid, the view point coo expressed by the counsel for the appellant is without any substance and cannot prevail. The proviso (c) to section 4 is clear on the point that no appeal shall lie to a Tribunal against order or decision of a Departmental Authority made at any time before the 1st July 1969. The counsel for the appellant has a wrong notion of law in saying that a Court of Law, and in the instant case, the High Court where the appeal preferred by the appellant was pending, could be regarded as a Departmental Authority within the meanings of section 4 of the Act. He seems to have been ignorant of the fact that in Explanation under section 4 of Act, Departmental Authority has been defined to mean any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of service of Civil Servants. The Departmental Authorities have been designated in the respective Rules by which the civil servants concerned are governed and they alone are competent to make an order in respect of any of the terms and conditions of service of a Civil Servant concerned. No Court of Law has been designated as a Departmental Authority under these Rules. There is no doubt that an order made without jurisdiction, or in excess of the powers conferred upon a Departmental Authority, is liable to challenge in a civil Court, but even then the Civil Court cannot be a substitute for the Depart mental Authority. It was in view of this distinction that a separate provision as contained in section 8 of the Act was enacted in respect of the matters within the jurisdiction of the Service Tribunals pending in any Court immediately before the commencement of the Act, and a procedure was also provided for moving the Tribunal in such like matters. It would thus follow that the High Court, for the purpose of the Act could not be regarded as a Departmental Authority, within the meaning of section 4 of the Act, with the result that this section could not be attracted to the present case. In fact the Departmental Authority in the instant case was the Provincial Government by which the representation of the appellant against the fixation of his pension by the Comptroller, was rejected. This, was even the appellant's own case and it was for this reason that he made a representation to the Provincial Government for re‑fixation of his pension. In this view of the matter, there can be no doubt about the fact that the Departmental Authority, in the present case, was the Provincial Government and not a Court of Law. As already indicated, the final decision by the Departmental Authority in this case was made before the institution of the civil suit by Mr. Abdul Qayyum which was instituted on 6th of April 1968. It will not be out of place to point out here that the authority reported as Faizullah Khan v. Government of Pakistan (P L D 1974 S C 291) appears to me to be on all fours with the present case where it was held that proviso (c) to section 4 of the Act places a limitation on the jurisdiction of the Service Tribunals where the impugned order or decision is made by a Departmental Authority before 1st July 1969. In the present case the decision having been made by Departmental Authority before 1st July 1969, this, Tribunal has no jurisdiction to proceed with the matter. In view of what has been stated above, it is manifest that this Tribunal has no jurisdiction in respect of the order challenged by Abdul Qayyum respondent before the civil Court. The result, therefore, is that the present appeal fails and is hereby dismissed in limine as being beyond the jurisdiction of this Tribunal.