1991 PLP (C (PLC(CS))

"12. Transfer of Radio Pakistan Servants to the Corporation.

(1)Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service, the Federal Government, may, subject to the provisions of subsections (2) and (3) transfer persons in the service of Pakistan and serving in connection with the affairs of the department of the Government of Pakistan headed by the Director-General, Radio Pakistan, hereinafter referred to as Radio Pakistan, immediately before the commencement of this Act, including persons on deputation to other organisations in Pakistan or abroad, to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement. (2) Notwithstanding anything in subsection (1) only such members of the Information Service of Pakistan serving radio Pakistan immediately before the commencement of dais Act shall be transferred to the Corporation as opt for service in the Corporation. (3) The persons transferred to the Corporation under subsection (2) shall, on such transfer, cease to be members of the Information Service of Pakistan. (4) The terms and conditions of service of the members of the Information Service of Pakistan transferred to the Corporation under subsection (2) shall not be altered by the Corporation to their disadvantage. (5) No person in the service of Pakistan who is transferred to the Corporation under subsection (1) shall, notwithstanding, anything contained in any law for the time being in force, be entitled to any compensation because of such transfer." The appellant has laid emphasis on the last clause of subsection (1) of section 12 of the Act reading as "on the same terms and conditions to which they were entitled immediately before such commencement" and also on the provisions of subsection (2) of section 12 of the Act and urged that by virtue of the expression viz. "on the same terms arid conditions to which they were entitled before such commencement", he is deemed to have been continuing as the civil servant but he did not become employee of the Corporation and, more so, since he had not opted for service in the Corporation, as provided under subsection (2) of section 12 of the Act. In this context, he has placed reliance on the judgment of the Supreme Court in the case of Nasir Ahmad, being Civil Appeals Nos.106 of 1984 and 775 of 1984. The contention on behalf of the Corporation is that the expression in the Act of "on the same terms and conditions to which they were entitled immediately before such commencement" provided protection to the persons in the service of Pakistan and serving in connection with the affairs of the Department of the Government of Pakistan, headed by the Director General, Radio Pakistan only to the extent of their terms and conditions of service but not to the continuity of their service as civil servants and that the option envisaged in subsection (2) of section 12 of the Act extended only to the members of the Information Service of Pakistan, who were serving the Radio Pakistan immediately before the commencement of the Act, and not to all the employees of the Radio Pakistan transferred to the Corporation under the provisions of section 12 of the Act. Reliance from the Corporation side has been placed also on the same judgment of the Supreme Court in Nasir Ahmad's cases. Subsection (1) of section 12 of the Act begins with the obstante clause "notwithstanding anything to the contrary in any contract or agreement or in a condition of service" and it empowers the Federal Government to transfer to the Corporation, of course subject to the provisions of subsections (2) and (3), persons in the service of Pakistan and serving in connection with the affairs of the Department of the Government of Pakistan headed by the Director-General, Radio Pakistan, immediately before the commencement of the Act, including the persons on deputation to other organisations in Pakistan or abroad. The Federal Government did, by Notification No. S.R.O. 414 (1)/74, dated the 27th March, 1974, direct that the persons mentioned in the list appended thereto, who were serving in connection with the affairs of the Department of Government of Pakistan, headed by Director-General, Radio Pakistan, shall, on the publication of the notification, stand transferred with effect from 20 12-1.972 to the Pakistan Broadcasting Corporation established under section 3 of the Act on the same terms and conditions to which they were entitled before their transfer. The list comprises 9f more than two thousand persons, who were serving at different stations of the installations of Radio Pakistan. The name of the appellant stands included in the list at S.No. 60 of the employees who were then serving at Radio Pakistan, Hyderabad. The crucial question, however, is whether the condition of option envisaged in subsection (2) of section 12 of the Act extended to all the employees transferred from Radio Pakistan to the Corporation or to only a section of them. The plea of the appellant is that it extended to all the employees who were so transferred to the Corporation, whereas the contention of the Corporation is that it extended to only such members of the Information Service of Pakistan who were serving Radio Pakistan immediately before the commencement of the Act. The provisions of section 12 were considered by the Supreme Court in the case of Nasir Ahmad, referred to above, decided by judgment dated 24-10-1988, an attested copy whereof is placed on the record at page

196. Mr. Nasir Ahmad entered the service of Radio Pakistan as Regional Director on his selection by the Federal Public Service Commission and was appointed on 16-1-1951. He was confirmed as a Director in the Radio Pakistan on 9-12-1965. In February, 1970, he held the post of Deputy Director-General (Administration). He obtained training at the British Broadcasting Corporation in 1971. On enactment of the Pakistan Broadcasting Corporation Act, 1973, he was transferred to serve the Pakistan Broadcasting Corporation under the provisions of section 12 of the Act and was appointed as Controller (Admn). For one reason or the other, he was shifted from the post of Controller (Administration) in February, 1978. He resented his shifting. The Managing Director of the Corporation abolished the permanent post of Controller (Administration) and created a new post of Controller (Personnel & Administration) and appointed a junior person to that post. He i.e. Mr. Nasir Ahmad filed a writ petition No. 5223 of 1978 in the Lahore High Court against several orders which affected him. He succeeded in the writ petition and was reported as Controller (Administration) on 1-7-1979, in pursuance of the judgment of the Lahore High Court, although an Intra-Court Appeal No. 192 of 1979 was filed against the order of the -High Court. He was retired from service on 27-12-1980 on having completed twenty-five years' service qualifying for pension. He challenged the order of his retirement in writ petition No. 59-S of 1982. His writ petition was dismissed on 29-12-1983. He- filed Intra-Court Appeal No. 106 of 1984. Both the Intra-Court Appeals were disposed of by common judgment. Civil Appeals Nos. 106 of 1984 and 775 of 1984 were filed before the Supreme Court. During the hearing of .the -Civil Appeals before the Supreme Court, the question whether the appellant was still a civil servant after his transfer to the Corporation under section 12 of, the Pakistan Broadcasting Corporation Act, 1973 was considered and it was decided by the Supreme Court as under:-- "However, we have examined the question as to whether he was still a civil servant as after his transfer to the Corporation under section 12 (1) of the Pakistan Broadcasting Corporation Act, 1973. The High Court, regret to say, failed to notice subsections (2) and (3) of section 12 while holding him as an employee of the Corporation on his transfer as within the meaning of Regulation

2. It would accordingly be of advantage to reproduce these subsection: (2) Notwithstanding anything in subsection (1), only such members of the Information Service of Pakistan serving Radio Pakistan immediately before the commencement of this Act shall be transferred to the Corporation as opt for service in' the Corporation. (3) The persons transferred to the Corporation under subsection (2) shall, on such transfer, cease to be members of the Information Service of Pakistan:' The word "transfer" in subsection (1) of section 12 does not have the consequence of rendering a civil servant an employee of the Corporation unless the provisions of subsections (2) and (3) of section 12 of the Act are complied with namely the civil servant opts for service in the Corporation in which case he ceases to be a member of the Information Service of Pakistan. It is only in this case that there is a severance of the service as a civil servant and in no other cash. Admittedly the appellant was in the Information Service of Pakistan and serving in the Radio Pakistan before the promulgation of the Act and that he did not opt for service in the Corporation. He, therefore, continued to be a civil servant within the meaning of section 2(1)(b) of the Civil Servants Act and the provisions of the Act applied to him. His transfer to the Corporation was relatable to section 10 of the Civil Servants Act, and, accordingly, the word "transfer section 12(1) must be read in that context. In this view of the matter, the High Court was in error to hold that he was an employee of the Corporation and the order retiring him from service on completion of 25 years service for pension was a valid order having been passed by the Chairman who was the competent authority under the Regulation. The High Court, accordingly, has no jurisdiction to decide the question of the legality of his retirement and should have left it to the consideration of the Federal Service Tribunal. The order is, therefore, without jurisdiction and is set aside. In that view of the matter, the judgments of the High Court in Writ Petition No. 59-S of 1982 and in I.C.A. No. 192 of 1979 were without jurisdiction and are set aside. The cross objections, however,, succeed and are allowed. In the result, both the appeals fail and are hereby dismissed, but with no order as to costs:' The appellant has relied upon the extract of the judgment of the Supreme Court which is just below the reproduction of subsections (2) and (3) of section 12 and the respondent Corporation has placed reliance on the next following paragraph of the judgment. According to the appellant, the observation of the Supreme Court in the judgment that transfer under the said subsections (1) and (2) does not have the consequence of rendering a civil servant as employee of the Corporation unless the provisions of subsections (2) and (3) of section 12 of the Act are complied with, and unless a civil servant opts for service in the Corporation, he does not cease to be a civil servant. The contention of the learned counsel for the respondent Corporation is that the observations of the Supreme Court extend to only a civil servant who was a member of the Information Service of Pakistan, which term has been used in both the paragraphs of the judgment and they do not extend to all the employees of Radio Pakistan who were transferred to the Corporation. The appellant stated that no option was obtained from him for his transfer to the Corporation and, therefore, he continued to be .a civil servant. The view portrayed by the learned counsel for the respondent Corporation seems to have greater substance. It appears from the reading of subsection (2) of section 12 of that Act reproduced above, that it provides the protection of option in respect of service under the Corporation only to those persons who were members of the Information Service of Pakistan and were serving Radio Pakistan immediately before the commencement of the Act; and subsection (3) provides that the persons transferred to the Corporation under the provisions of subsection (2) would cease to be members of the Information Service of Pakistan on such transfer. The appellant before the Supreme Court, namely Mr. Nasir Ahmad was a Member of the Information Service of Pakistan, as observed in the judgment of the Supreme Court. It is to be seen whether the appellant too was a member of the Information Service of Pakistan. According to him, he was an Assistant when he was transferred to the Corporation, whereas in the notification dated 27th March, 1974, which was given effect to from 20th December, '1972, he was only a Lower Division Clerk. However, whether he was a Lower Division Clerk or and Assistant, it would not make any difference for considering his status for the purpose of service of Information Service of Pakistan. The Information Service of Pakistan initially known as "Central Information Service" was constituted by Resolution dated 24th January, 1964. The initial constitution of, the service, as per paragraph. 3 of the Resolution, comprised all the then existing permanent or temporary-officers including officers on deputation or on foreign service whose appointment to Class-1 posts was made in consultation with the Central Public Service Commission; while the cases of those whose first appointment to Class-I post was not made with the approval of the Commission, or which involved promotion from a Class-II to Class-I post were to be referred to the Commission. The posts comprising the Information Service of Pakistan are specified in the Annexure to the Resolution. They are sub-divided in Grade I, Grade II and Grade III. The posts in Grade I and Grade II are the posts of superior and senior officers and in Grade III the posts are of the rank of officers. Only few posts of Radio Pakistan are included in the Information Service of Pakistan. The appellant did not occupy any one of those posts and, as such, he was not, at the time of his transfer, in the Information Service of Pakistan and he did not have the option in respect of his transfer to the Corporation as envisaged under subsection (2) of section 12 of the Act. Obviously, his case is not covered by the judgment of the Supreme Court in Nasir Ahmad's case and he is employee of the Corporation for all intents and purposes. It follows that he is not a civil servant for the purpose of invoking the jurisdiction of this Tribunal under the Service Tribunals Act, 1973.

6. In view of the findings arrived at above that the appellant is not a civil servant for the purpose of Service Tribunals Act, 1973, this tribunal does not have jurisdiction in the matter. It would not be worthwhile to deal with the other legal pleas advanced by the respondent Corporation and also to discuss the merits of the case agitated by the appellant.

7. For the reasons recorded above, the appeal is dismissed for want of jurisdiction. No order is, made for costs. M.Y.H./580/Sr.F Appeal dismissed.