1989 PLP 41 (SCMR)

SHAFIUR RAHMAN, J. Leave to appeal was granted to examine they various provisions of the "Corporation Employees (Special Powers) Ordinance, 1978" (hereinafter referred to as the Ordinance), for determining the jurisdiction and the status of the Petitioner, an employee of the Agricultural Development Bank of Pakistan who was removed from service of the Bank w.e.f. 1-6‑1981 by an order dated 2‑11‑1982.

2. The respondent challenged this order of removal from Bank service on various grounds which are not necessary to examine in any greater detail. On the 24th of August, 1983, that petition was dismissed in limine holding that by an order dated 14‑2‑1983 in another matter, the Court had already held that "since by a deeming clause, employees of a Corporation have the same rights of appeal as are conferred on persons, who are in the service of Pakistan in relation to matters concerning their service, the constitutional jurisdiction of the court would be barred by reasons of article 212 of the Constitution."

3. As in a number of other appeals before us the provisions of the Ordinance and the effect on the employees of the Corporation was to be examined, a number of learned counsel were heard on the subject. The professed object of promulgating the Ordinance was "to invest the President with certain powers in respect of persons in Corporation Service". A wide definition was provided of "person in Corporation service" in section 2 of the Ordinance. The power was conferred on the President under section 3 notwithstanding anything contained in any law for the time being in force or in the terms and conditions of service, in order to take action against a person appointed in Corporation service or promoted during the period from 1st day of January, 1972 to the 5th day of July, 1977, a remedy of representation to the President was provided. Section 5 which has been the subject matter of debate provided as follows:‑‑ "Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service, or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil service for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)."

4. Service of Pakistan' has been defined in the Constitution in Article 260 in the following words:‑‑ "Service of Pakistan' means any service, post or office in connection with the affairs of the Federation or a Province, and includes an Ail‑Pakistan Service, Service in the. Armed Forces and any other service declared to be a Service of Pakistan by or under Act of Parliament or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or, Chairman or member of Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or member of a House or a Provincial Assembly." Article 240 of the Constitution provided as follows:‑‑ "Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined‑‑ (a) in the case of the service of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Parliament; and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. Explanation.‑In this Article, "Ail‑Pakistani Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament." Article 241 of the Constitution is as hereunder:‑‑ "Until the appropriate Legislature makes a law under Article 240, all rules and orders in force immediately before the commencing day shall, so far as consistent with the provisions of the Constitution, continue in force and may be amended from time to time by the Federal Government or, as the case may be, the Provincial Government."

5. Being not earlier to the Ordinance, in service of Pakistan, the President could not exercise in respect of such employees any power relating to the terms and conditions of their Service. Declaration by law of "any other service" as service of Pakistan was provided for in Article 260 of the Constitution. This declaration having been made by section 5 of the Ordinance, the President, acquired the power reserved in Article 240, by Section 3 of the Ordinance. Reading section 5 of the Ordinance alongwith the constitutional provisions just reproduced, it follows that in declaring the `person in Corporation service' to be 'in service of Pakistan', power under Article 240 of the Constitution was acquired by tile President for determining their conditions of service. Nothing beyond should be read into that declaration. Next follows in section 5 the deeming provision whereby those employees who have been dealt with under section 3 have en provided a relief/remedy in the Service Tribunal. The deeming clause is available only to those who are proceeded under section 3 of the Ordinance and none else. 'On that view of the matter, as in this case action had not been' taken under the Ordinance, the Petitioner would not be deemed to be a civil servant for the purposes of Civil Servants Act or Service Tribunals Act. Therefore Article 212 of the Constitution was not a bar to the petitioner seeking relief from the High Court, in its constitutional jurisdiction .

6. The questions whether the Petitioner/Appellant was a statutory employee and whether the protection available to him under the law had been denied to him, are questions which will be determined in the first instance by the High Court, Thu appeal is allowed, the judgment of the High Court is set aside and the proceedings are remanded for further proceedings in the matter. No order as to costs. AA./M‑630/S Case remanded.