P L D 1985 Karachi 619 (PLP)

MUNAWAR ALI KHAN, J.-By this Constitution petition, the petitioner Muhammad Bux Shaikh has sought to challenge two orders of Government of Pakistan, Establishment Division; one dated 16th October, 1976 whereby he was prematurely retired from the post of Deputy Director, Food, Karachi on his completing 25 years of service, qualifying for pension and other retirement benefits under section 13 (ii), Civil Servants Act, 1973 .(hereinafter referred to as she Act) and another dated 9th December, 1976 whereby he was granted leave preparatory to retirement for six months effective from 16th October, 1976. The case of the petitioner as is reflected in the memo. of his petition is as follows. The petitioner entered Government service on 8-7-1949 as `E' grade clerk in the Revenue Department of the Provincial Government of Sind. He was later promoted to `D' grade post. While holding the said post, he applied for a post of Assistant Food Controller advertised by West Pakistan Public Service Commission. Consequent upon his selection by the said Commission, he was appointed to the said post which was temporary. Again he was selected by the Federal Public Service Commission for a post of Assistant Director, Food and was appointed as such on .26-11-1966 in Directorate General of Food, Government of Pakistan. Later on he was promoted as Deputy Director in the same Directorate. Both the posts of Assistant Director and Deputy Director held by him were temporary. Ultimately his services were transferred to Rice Export Corporation of Pakistan w. e. f. 24-9-1974 and he was re-designated as Manager of the said Corporation. The petitioner continued to hold this post until his premature retirement as aforesaid. At the outset we invited Mr. Mushtaque Memon, the learned counsel for the petitioner to satisfy us on the question of jurisdiction. Opening his arguments, the learned counsel submitted that at the time of his premature retirement, the petitioner had a lien on the post of the Provincial Government of Sind and for that reason he was permanent employee of the said Government. He further contended that the petitioner was on deputation to the Federal Government and as such he stood excluded from the definition of civil servant for the purpose of his service under that Government. Consequently, the learned counsel argued, the forum of Service Tribunal was not available to him and he could not agitate the impugned orders before that forum. Repelling the above argument, Mr. Abdul Sattar Shaikh, the learned Additional Advocate-General expressed the view that since the impugned orders related to the terms and conditions of the petitioner's service, his remedy lay before the Service Tribunal. According to him the said Tribunal, in view of the express provisions contained in clause (i) of Art. 212 of the Constitution, possessed the exclusive jurisdiction in respect of matters relating to terms and conditions of the petitioner's service. In support of his view he also placed reliance on Abdul Bari v. Government of Pakistan and 2 others P L D 1981 Kar.

290. It may be observed that determination of the forum for seeking the desired relief depends upon whether the petitioner was a civil servant at the time of passing of the impugned orders and if so whether the impugned orders related to the terms and conditions of the petitioner's service. As defined in section 2 (I) (b) of the Act "civil servant" means a person who is a member of an All Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of Federation, including any such post connected with defence but does-not include (i) a person who is on deputation to the Federation from any province or other authority. (ii) .. (iii) . It is clear from .the above definition that a person who is on deputation to the Federal Government is excluded from the said definition and is not deemed to be a civil servant. In order to decide whether the petitioner does or does not fall within the definition of civil servant, it is to be ascertained if he served under the Federal Government only as a deputationist. Deputation of a Government employee involves his transfer from one Department to another Department of the same Government or from one government to another Government or from Government to any Autonomous or other Body or Institution. Thus it is an arrangement whereby one Department of Government or Government itself agrees to lend and another Department of the same Government or another Government or Autonomous or other Body or Institution agrees to borrow the services of the employee concerned on certain conditions mutually acceptable to both the lending and borrowing authorities. When the Government employee is deputed to serve under the borrowing authority, he continues to be borne on service cadre of the lending authority until he is permanently absorbed in the service of the borrowing authority and upon his such absorption his further association with the lending authority stand severed and his lien on the post of the latter authority is terminated. However, during the period of deputation of the Government employee, the lending authority retains the power to recall him if it is so desired. Likewise the borrowing authority enjoys such power to repatriate the deputationist employee to his parent department or Government. For the purpose of examining the case of the petitioner in the light, of above criteria we have to see if the petitioner's appointment to the Federal post was in pursuance of any mutual agreement between the two Governments and if so on what terms and conditions the Provincial Government of Sind agreed to lend and the Federal Government agreed to borrow the services of the petitioner. Of course the order of the petitioner's appointment to the post of the Federal Government has been placed on record (vide Annexure 'A' at page 21) but the petitioner has not produced any order of the Provincial Government whereby he was relieved to join the service of the Federal Government. In absence of the relieving order, it is difficult to know the terms and conditions of the petitioner's release from the Provincial Government. However, the stand taken in the counter-affidavit filed on behalf of the Provincial Government is that on joining the Federal Service, the petitioner ceased to be the employee of the Provincial Government. In any case the Provincial Government does not recognize that the petitioner was deputed by the said Government to serve under the Federal Government. On the other hand the appointment order whereby the petitioner, on his selection by the Federal Public Service Commission, was appointed as Assistant] Director (foodgrains) is couched in the following words: "Government of Pakistan" Directorate General of Food Karachi the 10th February, 1967 Notification No. DGF-7 (2)/66/El.-Consequent on the recommendation of the Central Public Service Commission, the following officers are appointed temporarily as Assistant Director (Foodgrains), Directorate General of Food, Karachi, until further orders, with effect from the dates noted against each: (1) Mr. Hamza Bin A. Kadir 22-12-1966 (Forenoon) Technical Officer. (2) Mr. Muhammad Bux Sheikh, 26-12-1966 (Forenoon) Assistant Food Controller, Government of West Pakistan, Food Department, Hyderabad. (3) Mr. Abu Syed Khan, 21-12-1966 (Forenoon) Assistant Manager and Grading Officer. They will be on probation for a period of one year extendible by order either before or after its termination, by a further period not exceeding six months provided that, if no order has been made by the day following the termination of either of the aforementioned probationary period, the appointment shall be deemed to be held until further orders. (Sd.) (Z. A. Qidwai), Deputy Director (Adorn.)." In the above order there is no mention of the petitioner having been deputed to serve under the Federal Government, On the contrary it shows that consequent upon his selection through competitive examination held by the Federal Public Service Commission, the petitioner was appointed as Assistant Director Food, as a direct recruit. There is no indication in the above order that the petitioner had applied for the said post through proper channel or that his ultimate appointment to the post, had the blessings of the Provincial Government. In these circumstances, Provincial Government had obviously no power to ask for his repatriation to his original provincial post should the said Government so desire. Even if such demand was raised by the Provincial Government, the petitioner could not be held to be bound to make the compliance because his appointment to the Federal post was not in pursuance of any arrangement between the two Governments but was the result of petitioner's own free will and choice. Therefore, he could not be compelled to return to his original post of 'D' grade under the Provincial Government against his wishes. For above reasons we are of the view that the petitioner on joining the Federal Service in the above circumstances would not be deemed to be on deputation to the Federal Government. Obviously his appointment to the Federal Post was made by initial recruitment on recommendations of the Federal Public Service Commission. This was strictly in accordance with the provisions of the Act. Thus on entering service of Federal Government the petitioner became civil servant subject to service discipline as regulated by the Act and the rules made thereunder. It would appear that the impugned orders were passed in exercise of powers conferred by section 13 (u) of the Act. At this stage we would also like to refer to the case of Abdul Bari cited by the learned Additional Advocate-General. In the said case also premature retirement under section 13 (if) of the Act was the target of the attack. After detailed examination of the issue involved in the case, the Full Bench of this Court ruled as under: "The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. It seems to us, therefore, that the Legislature could not have excluded an order of retirement under section 13 (ii) from the purview of the Service Tribunal to examine and such an order would apparently fall within the main provisions of section 4 of the Service Tribunals Act, 1973 which provides for a right of appeal by an aggrieved civil servant against any final order made by a departmental authority in respect of any of the terms and conditions of his service." It appears that the above reported case is . . . . on all fours with the instant case. As pointed out above the petitioner was a civil servant at the time of passing of the impugned orders and the said orders were in respect of the terms and conditions of the petitioner's service. Accordingly in view of the dictum laid down in the above authority, the only forum for challenging the impugned orders is Service Tribunal. Ash provided in Article 212 (1) of the Constitution, the said Tribunal alone has exclusive jurisdiction in the matters relating to terms and conditions of service. It is open to the petitioner to raise all such contentions as he' has raised in this petition before that forum. For above reasons this Court has no jurisdiction in the case and as such the petition is dismissed with no orders as to costs. A. A. Petition dismissed.