1989 PLP (C (PLC(CS))

In view of the above definition we have to see if the appellant is a member of provincial civil service or he is a Federal employee on deputation to the Provincial Government. The appellant admittedly started his service career as Federal employee. Consequent upon his selection by the Federal Public Service Commission he was appointed as Grade‑18 Officer in the Population Division of Ministry of Planning and Development, Government of Pakistan vide Notification dated 4th November, 1981. However, on promulgation of the Ordinance No.XIX of 1983 by the Federal Government, the services of the appellant stood transferred to the Provincial Government. The official respondents have construed the above Ordinance to have provincialized the Population Welfare Programme with effect from 1‑9‑1983 (vide Notification dated I1‑8‑1983) and therefore according to the said respondents, the appellant became employee of Provincial Government. But according to the private respondents Ziauddin Ahmad and Ghulam Sarwar even after the enactment of the said Ordinance, the employees of the Population Welfare Programme continued to be employees of the Federal Government. In support of this plea they have relied upon the decision of the Federal Service Tribunal and Punjab Service Tribunal. For resolving the dispute about the Government to which the appellant belonged after coming into force of said Ordinance we may refer to the relevant provisions of the Constitution of 1973. "Population Planning and Social Welfare" is mentioned as subject at S.No.25 in the concurrent legislative list of the Constitution. As provided in clause (b) of Article 142 of the Constitution, both the Parliament and the Provincial Assembly have power to make laws with respect to any matter listed in the Concurrent Legislative List. Obviously the Ordinance No. XIX of 1983 has been promulgated at Federal level in pursuance of the said power. Despite this, Article 137 of the Constitution gives power to the Provincial Government to exercise executive authority in respect of all these matters for which the Provincial Assembly is competent to make laws. This power is however subject to the condition that if the Parliament too has power to make laws in respect of the same subject‑matter then the Provincial executive authority in respect of that matter shall be limited by the executive authority expressly conferred by the Constitution or by law of Parliament upon the Federal Government or authorities thereof. Thus, it is clear that it is the basic responsibility of the Provincial Government to exercise executive authority in respect of Population Welfare and the matters connected therewith, unless of course it is limited by executive authority expressly conferred upon the Federal Government or authority thereof either by the Constitution or by the law of Parliament. The Ordinance No. XIX of 1983 is a law of Parliament. We have to see if the said Ordinance have allowed the employees transferred to the Provincial Government to retain their identity as employees of the Federal Government. In this connection section 8 of the Ordinance is relevant and it is reproduced as under: ‑ "

8. Transfer etc of Employees.‑‑Notwithstanding anything contained in any contract of agreement or in the conditions of service, an employee shall be retained in the Population Welfare Division or transferred to the Province as follows:‑‑ (a) an employee who was recruited or appointed by the Council shall be retained in, or as the case may be, stand transferred to the Population Welfare Division. (b) an employee who was recruited by the Board shall be retained in, or as the case may be, stand transferred to the Province in which he was originally recruited; (c) an employee who was originally recruited by the Board but subsequently appointed by the Council shall be retained in or as the case may be, stand transferred to the Population Welfare Division. (d) an employee shall, if he was recruited for the Population Welfare Division, be retained in that Division and, if he was recruited against a post in a Province, stand transferred to the Province of his domicile; and (e) a female employee who is married or a widow may be allowed the option to be transferred to the Province of the husband's or late husband's domicile; Provided that the Provincial Government of the Province in which an employee who is to be so transferred to the Population Welfare Division or to another Province is serving immediately before the commencement of this Ordinance may retain the services of such employee for such period as may be agreed upon between the Provincial Government and the Population Welfare Division or, as the case may be, the Government of the other Province to which he is to be transferred: Provided further, that the services of an employee, who immediately before the commencement of the Ordinance was working in relation to any of the functions of the Federal Government under the Ordinance, shall be retained by the Federal Government in consultation and with the agreement of the Provincial Government concerned. (2) Every employee referred to in subsection (1) shall be entitled to the same terms and conditions of service with respect to grade, remuneration, leave and pension to which he was entitled immediately before the commencement of this Ordinance. (3) Unless otherwise directed by the Provincial Government, all Authorities and Officers and ministerial staff executing powers and functions immediately before the date of transfer shall, as from that day, continue to exercise their respective powers and functions. (4) No employee referred to in subsection (1) shall be entitled to any compensation because of his transfer by virtue of, or under, the provisions of this Ordinance." It would appear from the above section that some employees have been retained in Population Welfare Division of Federal Government and others have been transferred to the Provinces. The latter category of employees on their transfer to the Provinces have become employees of Provincial Government and are entitled to same terms and conditions of service with respect to grade, remuneration, leave and pension to which they were entitled immediately before the announcement of the Ordinance. However, the employees covered by first proviso to subsection (1) herein above would be considered to be on deputation with the Provincial Government retaining their services. Consequently they would be excluded from the definition of Civil Servant hereinabove. In the instant case neither the private respondents nor the appellant himself claims to fall within the above proviso and therefore in our opinion he is a "Civil Servant", as has been defined in the Sind Service Tribunals Act. We have perused the judgment of Federal Service Tribunal dated 4‑12‑1986 delivered in the case of Maqsood Ahmad Rohi (Appeal No. 92(R) of 1980)‑‑Miscellaneous Petition No. 157 of 1988) wherein the relevant passage borrowed from the judgment of Punjab Service Tribunal has also been reproduced. We regret our inability to persuade ourselves to agree with the view expressed by the said learned Tribunals inasmuch as that despite the enactment of the Ordinance No.XIX of 1983 by the Federal Government, none of the Federal Employees of the Population Welfare Programme transferred to the Provincial Government had become the Provincial employee. Thus, having arrived at the conclusion that the appellant is Provincial employee and hence a civil servant, we hold that this Tribunal has jurisdiction in the case. As for the objection of limitation, as stated above the impugned order by which move‑over was allowed to eleven officers including the appellant, was made on 14‑5‑1987. Instead of filing appeal to the higher authority against the said order, the appellant approached the same authority namely the Secretary, who had passed the order for review thereof. Subsequently in pursuance of the order allowing move‑over to the appellant and others, their pay was fixed in Grade‑19 vide order of the Director, Finance dated 9‑6‑1987. The appellant preferred departmental appeal on 8‑7‑1987 from this order. After waiting for statutory period of 90 days for filing of the appeal, the appellant came to this Tribunal in the present appeal on 24‑10‑1987. The question arises if the appellant was aggrieved by the order dated 14‑5‑1987 by which he was allowed move‑over from 1‑11‑1986 and not from 1‑12‑1984 as claimed by him or by the order dated 9‑6‑1987 by which his pay was fixed in Grade‑19 in consequence of his move‑over to that grade. No doubt both the orders were adverse to him. But he was aggrieved for the first time by the order dated 14‑5‑1987. The subsequent order dated 9‑6‑1987 was only consequential issued in implementation of the first order. Accordingly he was to file departmental appeal against the first order dated 14‑5 1987. However, he actually filed departmental appeal against the second order dated 9‑6‑1987 and waited for the statutory period of 90 days from this date before filing the present service appeal. In view of the position stated above, the point for our consideration is whether the present appeal is in time. We have given our careful consideration to this point. Although the cause of action arose for the first time with passing of the order dated 14‑5‑1987, yet in our opinion the subsequent 6rder dated 9‑6‑1987 by which earlier order was implemented and the appellant's pay was refixed in the higher grade gave him fresh cause of action and as such if the period of limitation was computed from the date of the second order dated 9‑6‑1987, the present appeal would be within time. Having disposed of the above two objections, we come to the consideration of the case on merits. The point for our decision is whether the appellant was entitled to move‑over to Grade‑19 from 1‑12‑1984 as has been claimed by him. The appellant's argument was that he being senior to first three private respondents was entitled to move‑over to Grade‑19 from the same date I (i.e. 1‑12‑1984) from which it was allowed to them. The argument is obviously untenable. Seniority has nothing to do with the concession of move‑over to the higher grade. It is no criterion to decide the entitlement of a civil servant to the benefit of move‑over. The concession of move‑over is allowed in accordance with the formula evolved by the Finance Department, contained in its office memo No.F.B.SR -IV)‑1/4‑82, dated 27‑8‑1983, which was modified by the Finance Department's Letter No. FD (SR‑1)1(27/83), dated 12th June, 1986. According to the modification in the policy of granting benefit of move‑over, waiting for three years at the maximum of pay scale was done away with, instead grant of the concession was subjected to nine conditions recited in latter policy memo of the Finance Department. The condition No.(IX) being relevant for disposal of this case is reproduced as under:‑ "(ix) In allowing move‑over the competent authority should ensure that the confidential reports of the concerned employees are:‑ (a) free from adverse remarks for the last five years. In case an employee fails to fulfil this condition, he shall wait at the maximum of the pay scale till he has earned in succession the requisite number of reports without adverse entry and his move‑over shall take effect from 1st December, of the year in which the last such report is earned; (b) average to good in the case of move‑over to scales 17 and 18; (c) generally good in the case of move‑over to scale 19; and (d) at least good or above for move‑over to NPS‑20." It appears from the above condition that ACRs record of the concerned employee should be free from adverse remarks for the last five years and further in the case for move‑over to Scale‑19, the reports earned by the employee were generally good. It is an admitted position that as a result of revision of pay scales in 1983, the pay of the appellant as well as of the four private respondents was fixed at the maximum of pay scale‑18 on 1‑7‑1983. As provided in the condition No. (i) of the Finance Department's letter dated 12th June, 1986, referred to above, all employees who reached the maximum of scale on or before 1‑12‑1983 were eligible for the benefit of move‑over. No doubt on the basis of this condition the appellant and the private respondents became eligible for move‑over to Grade‑19, as they had reached the maximum of scale‑18 before 1‑12‑1983. But actual grant of the move‑over was subject to fulfilment of condition No.(ix) hereinabove; Since first three private respondents were allowed the move‑over to scale‑19, w.e.f. 1‑12‑1984, they had presumably fulfilled the said condition. However, the appellant was allowed the same concession two years later, i.e. from 1‑12‑1986. The argument made at the Bar for delaying the concession of move over in case of the appellant was that when the appellant's case was processed for move‑over, he did not meet the requirements of the condition No.(ix) referred to above. Like the cases of the respondents, the appellant's case was scrutinized for the move‑over obviously after the issuance of the Finance Department's letter dated 12th June, 1986. As stated above, the condition No. (i) of this letter entitled the employees of Sind Government to move‑over to higher scale retrospectively w.e.f. 1‑12‑1984 provided their A.C.Rs record reflected no adverse entries for the last five years and further in case like that of appellant (move‑over to scale‑19) the employee had earned `generally good' reports during the said period. In other words for back years of 1983, 1982, 1981, 1980 and 1979, the reports earned by appellant should be `generally good". The ACR file of the appellant was made available to us during the hearing of the appeal. We went through his ACR file for the said years. Although we did not come across any adverse entry during the said years, the reports for years 1981 and 1982 were only "average". Again the report for the year 1980 contained mixed entries of good and average. Thus out of five reports given to him, only two reports for years 1979 and 1983 were good Obviously he could not be held to have generally good reports to his credit, when majority of reports were not good. We are in agreement with the argument of the learned, counsel for the appellant that it was not necessary for the employee to earn good reports for all the five years and that he would be entitled to the benefit of move‑over if majority of reports given to him were good. As has been shown above, the appellant was denied the concession of the move‑over from the earlier date precisely for the above reason, as majority of his reports were not good. On close examination of the appellant's case, it would appear that same I formula was applied in allowing him the concession of move‑over even from 1‑12‑1986. In relation to this date, last five years would be 1985,1984,1983, 1982,1981. As stated above the reports for the years 1982 and 1981 were "average". However, the reports for the remaining three years being "good" he was treated to fall in the category of having earned "generally good" reports and therefore he was allowed the move‑over w.e.f. 1‑12‑1986. For above reasons, we are of the view that both the orders: one dated 14‑5‑1987 by which appellant was allowed move‑over to BS‑19 and the other dated 9‑6‑1987 by which his pay was refixed in the said scale of pay were un exceptionable and are, therefore, hereby upheld. Consequently appeal is dismissed with no order as to costs. AA./165/Sr.S Appeal dismissed.