1984 PLP (C (PLC(CS))

MUHAMMAD IRSHAD KHAN (MEMBER).‑The appellant's case, in brief, is that he joined the Department of Civil Aviation as Assistant Aerodrome Officer and was confirmed as such with effect from 16th September, 1969. Subsequently having been selected by the Federal Public Service Commis sion for the post of Aerodrome Officer (Security) he was appointed to Grade‑

17. Thereafter he was promoted to the post of Assistant Director (Security) in Grade‑18 with effect from 27th July, 1976. It was intimated to him by the Force Commander, Airport Security Force, vide his letter dated the 7th of September, 1981 that the Secretary‑General Defence, in purported exercise of his powers conferred by paragraph 4 (1) read with paragraph 11 of Martial Law Regulation 52, was pleased to dismiss him from service.

2. Aggrieved thereby the appellant filed a review petition dated the 3rd of October, 1981 and as intimated to him vide Ministry of Defence letter, dated the 7th of October, 1981 the Federal Government considered his review petition but upheld his dismissal order. He then filed the present appeal.

3. To challenge the impugned order the learned counsel for the appel lant raised several grounds of facts and law including that M.L.R. 52 under which the impugned order is purported to have been passed, did not apply to the facts and circumstances of his case, inasmuch as the said M.L.R. ex pressly applies to the employees of Pakistan International Airlines Corpora tion and the employees of the Airport Security Force whereas the appellant is a confirmed employee of the Civil Aviation Department on temporary deputation to the Airport Security Force. It was contended that he was never confirmed on a post in the Airport Security Force in terms of rule 13 of the Airport Security Force Service Rules, 1978, and as such he was a temporary hand in the Airport Security Force and continued to be regular and permanent employee of the Civil Aviation Department. On behalf of the respondent‑department this contention was controverted but nothing has been shown to us in rebuttal of the appellant's contention, while the documents annexed to the memo of appeal, clearly show that he (the appellant) was a confirmed hand of the Civil Aviation Department and he was never confirmed in the Airport Security Force. That being so we are inclined to agree with the appellant that he could not be dealt with under M.L.R. 52 because under para. 4 of the said M.L.R. only the employees of the Pakistan International Airlines Corporation or members or officers of the Airport Security Force can be reduced in rank, retired, removed or dis missed from service. Since the appellant continued to remain an employee of the Civil Aviation Department provisions of M.L.R. 52 could not be validly availed in his case. The impugned order thus turns out to be incompetent and without jurisdiction.

4. The learned counsel for the respondent‑department, however, vehemently argued that the present appeal is not maintainable in view of the provision of para. 1 of M.L.R-52, which reads as under: ‑ "

1. This Regulation shall come into force at once and shall have effect, notwithstanding anything contained in the Pakistan Essential Services (Maintenance) Act, 192 (LIII of 1952), the Pakistan Inter national Airlines Corporation Act, 1956 (XIX of 1956), the Industrial Relations Ordinance, 1969 (XXIII of 1969), the Airports Security Force Act, 1975 (LXXVII of 1975), or rules or regulations made thereunder or any other law, Martial Law Regulation or Martial Law Order for the time being in force or any decision or award given or judgment passed at any time by Court, Tribunal or other authority, including the Supreme Court and a High Court." A plain reading of the above would clearly show that the said provision is not an ouster clause but only declares that the Regulation shall have effect, notwithstanding anything‑contained in any other law for the time being; in force or any decision, award or judgment of any Court, Tribunal or other authority including the Supreme Court and a High Court. It follows, therefore, that the overriding effect and immunity has been given to the provisions of the Regulation and not to the orders passed thereunder if some law makes such order subject to appeal before any forum.

5. Be that as it may, this Tribunal derivers its jurisdiction to hear appeals in the matters relating to the terms and conditions of a civil servant from Article 212 of the Constitution, which forms part of the Pro visional Constitution Order, 1981. In our view, therefore, short of either amending the Constitution or inserting a provision in the Provisional Cons titution Order, 1981, no law including a Martial Law Regulation, could divest this Tribunal of the jurisdiction to hear appeals in the matters relat ing to the terms and conditions of the civil servants. It may be mentioned that when it was so intended in the matters relating to premature retirement of the civil servants, the jurisdiction of this Tribunal was ousted by making a specific provision in Article 13 of the Provisional Constitution Order, 1981.

6. Without prejudice to our above finding it may be pertinently added that even the language of paragraph 1 did not intend to oust the jurisdiction of this Tribunal, otherwise, alongwith the Supreme Court of Pakistan and the High Court, Service Tribunal, would have been specifi cally named as was done in Article 13 of the Provisional Constitution Order, 1981. In any case, immunity can be claimed under paragraph 1 of M.L.R. 52 only in respect of an order, which must be an order made by accordance with the Regulation in its relevant provision. Thus, even the bar of jurisdiction created by paragraph 1 is limited to orders and actions, which are, in substance, made in accordance with M.L.R. 52 and, are covered thereunder. Thus, viewing the matter from any angle we are left in no doubt that the present appeal is maintainable and this Tribunal has jurisdiction to adjudicate upon the same.

7. In view of the foregoing, we‑declare that the impugned order was made without lawful authority and was, therefore, of no effect. The appeal is accordingly accepted with the direction that the appellant shall be re‑in‑) stated into service with all back benefits.

8. No order as to costs. A.B Appeal accepted.