2000 PLP (C (PLC(CS))

"(1) To enquire into the case of retirement of service of Haji Muhammad Soomro Medical Officer, Balochistan Residential College, Loralai as per requirement of E & D Rules; complete and submit its findings alongwith recommendations in the matter to Education Department within one month from the date of issuing of this notification. " Accordingly, Committee furnished its recommendations with observations that the Officer being not fit to work with the present arrangement of the Balochistan Residential College, Loralai, therefore, suggested his posting somewhere else. Consequent to above findings of the Committee show‑cause notice was given to the petitioner and vide notification, dated 21‑8‑1998 issued by the Government of Balochistan Education Department, he was compulsorily retired. For the sake of convenience contents of the notification are reproduced hereinabelow:‑‑ . "With the prior approval of the competent Authority the Government of Balochistan Education Department is pleased to compulsorily retire Dr. Haji Muhammad Soomro, Medical Officer, Balochistan Residential College from service with immediate effect. He shall, however, be allowed all the benefits he is entitled to." Petitioner submitted appeal to the Secretary Board of Governors Balochistan Residential College, Loralai on 10‑9‑1998 and perhaps as he could not get reply, therefore, he presented instant petition on 16‑12‑1998. At the hearing of petition we posed a question to Mr. M.A. Chishti learned counsel for petitioner as to how instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan is maintainable on two scores‑‑ "If the petitioner was in the service of Balochistan Residential College, Loralai which is being run under the Balochistan Model Residential Secondary School Ordinance, 1983 and if statutory rules, regulations to control the affairs of services of the employees of the Residential College have not been framed, whether petitioner's service will not be governed under the principle of master and servant as it has been held by honourable Supreme Court in the case of 'Principal, Cadet College, Kohat and others v. Muhammad Shoaib Qureshi (PLD 1984 SC 170) and if there is a statutory regulation framed under the Ordinance and the petitioner is engaged in the affairs of the Province of Balochistan he had no remedy before the Provincial Service Tribunal and then instant petition is not barred under Article 212 of the Constitution of Islamic Republic of Pakistan." On the other hand Professor Saeed Ahmed, Advocate contended that petitioner is engaged in the affairs of Province of Balochistan through Education Department, therefore, he has a remedy before the Provincial Service Tribunal constituted under the Service Tribunals Act, 1974. Learned counsel for petitioner frankly conceded that as under the Ordinance of 1983 Competent Authority has framed service conduct regulations known as "The Model Residential Public School Regulation, 1988", therefore, principle of master and servant shall not be applicable on the instant case. As such in view of admission of the petitioner's counsel we are inclined to accept that as there are statutory service and conduct regulations to govern the service affairs of the employees of Balochistan Residential College, therefore, principle enunciated by Honourable Supreme Court in the judgment of Principal, Cadet College, Kohat and another v Muhammad Shoaib Qureshi, would not be applicable. It may be noted that in this judgment honourable Supreme Court provided following guidelines to decline to entertain a Constitutional petition for the purpose of enforcing the rules, regulations which have got no statutory backing:‑‑ "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body in which he is employed, has issued for its internal use, any violation thereof will not, normally be enforced through a writ petition." In view of the above guidelines the question arises whether in presence of statutory rules, regulations and their violation the petitioner can invoke jurisdiction of this Court under Article 199 or he should approach Provincial Service Tribunal for redressal of his grievances. To attend this proposition it would be appropriate to reproduce herein below definition of civil servant as defined in Balochistan Civil Servants Act, 1974:‑‑ 'Civil servant' means a person who is a member of a Civil Service of the Province of Balochistan or who holds a civil post in connection with the affairs of the province, but does not include‑‑ (i) a person who is on deputation to the Province from the Federation or from any province or other authority; or (ii) a person who is employed on contract; or on work‑charged basis, or who is paid from contingencies; or (iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)." As far as the above definition is concerned it being exhaustive in its nature persuades us to hold that any member of the Civil Service of Provincial Government who is engaged in the affairs of Province, is entitled to claim himself in the Civil Service of the Province, and if there is any violation of the terms and conditions of his service in view of Article 212 of the Constitution of Islamic Republic of Pakistan, he can invoke the jurisdiction of Provincial Service Tribunal. At this juncture we would like to point out that despite of enquiry from Mr. M.A. Chishti learned counsel for petitioner that what was the status of the petitioner in Provincial Government of Residential College Loralai, he reluctantly answered that he was public servant. This answer does not seem to be satisfactory because expression "public servant" is not known to civil service laws under which the service of different types of members of the Civil Service is governed. However, such expression is familiarly recognised under section 21 of P.P.C which of course is not applicable on the instant case. Obviously this definition is applicable for the limited purpose as it has been prescribed under P.P.C. read with section 18 of the Ordinance, therefore, the contention of learned counsel to the extent that petitioner is a public servant is not accepted. Mr. M.A. Chishti learned counsel, however, relied on the judgment of "University of Balochistan through Registrar v. Saeed Muhammad Khan and others" (1986 SCMR 1063). In this case the respondents invoked jurisdiction of Balochistan Service Tribunal for determination of seniority. The University of Balochistan raised objection on maintainability of the appeal before the Service Tribunal, but objection was overruled as such the University of Balochistan filed appeal before Honourable Supreme court which was accepted holding that respondent is not a civil servant, therefore, he cannot invoke the jurisdiction of Balochistan Service Tribunal. Honourable Supreme Court while forming the opinion against respondent considered the definition of civil servant reproduced hereinabove coupled with the following facts:‑‑ . (1) That such appointments shall be made in the prescribed manner by the Government of Balochistan or by a person authorised by it in that behalf; (2) that every such civil servant shall hold office during pleasure of the Government of Balochistan; (3) that the terms and conditions of service of a civil servant shall be as provided in this Act and the Rules; Because respondent was not fulfilling the above conditions therefore, he was not held to be civil servant. With reference to be employees of University of Balochistan it was held that its Vice‑Chancellor was his appointing authority and none of the authorities acted as delegatee of the Balochistan Government while employing or regulating the terms and conditions of the service of respondents, therefore, he cannot be declared as civil servant for the purpose of Civil Servants Act and for that reason he was not entitled to seek redress from the Service Tribunal under section 4 of the Balochistan Civil Servant Act. In our opinion in view of the definition of Civil Servant reproduced hereinabove the same test has to be applied as it has been observed hereinabove that the affairs of Balochistan Residential College are controlled by a statute known as the "Balochistan Model Residential Secondary Schools Ordinance, 1983". As per the mandate of section 20 of the Ordinance the Board of Governors of Schools has been authorised subject to approval of the Government to frame regulations including in respect of employment, tenure of service, terms and conditions of the office and servants appointed by the Board. Admittedly vide appointment letter, dated 22‑3‑1992 petitioner was appointed as Medical Officer in Model Residential Public School, Loralai consequent upon the approval of the Chairman, Board of Governors. It may be seen that in the appointment order, it was categorically mentioned that his services will be governed by the E&D Rules of the Government of Balochistan and regulations as provided by the Board of Governors Model Residential Public School, Loralai. From perusal of the appointment letter it is clear that appointment of the petitioner was not made, by the Government of Balochistan or by a person authorised by it in that behalf and the petitioner was not supposed to hold office within the pleasure of the Government of Balochistan. Inasmuch as his terms and conditions of service were not the same which are available to the civil servants under the Balochistan Civil Servants Act and the Rules. Thus applying the test laid down by Honourable Supreme Court in the case of University of Balochistan, on the case in hand we are inclined to hold that petitioner is not a civil servant, therefore, in view of the principle laid down in the case of "Principal, Kohat Cadet College", for violation if any, the statutory regulation governing his service, can maintain a Constitutional petition under Article 199 of the Constitution instead of invoking the jurisdiction of Provincial Service Tribunal. For the foregoing reasons we are inclined to hold that instant petition is maintainable, as such office is directed to fix this case for regular hearing on merits for a date in office after two weeks. H.B.T./16/Q Petition held maintainable.