2011 PLP (C (PLC(CS))

NASIR-UL-MULK, J.

The appellants are employed as Teachers in P.A.F. College, Islamabad. They have filed these appeals by leave of the Court, against the judgment of the Federal Service Tribunal dated 27-11-2004, whereby their appeals, praying for the grant of benefits and facilities admissible to civil servants, were dismissed. As these appeals arise from a common judgment of the Tribunal, involving the same question of law they are decided by a single judgment.

2. To appreciate the question of law involved in these appeals, it is important to refer to the litigation initiated by one, Malik Muhammad Pervaiz Akhtar, a teacher of P.A.F. Model Inter-College, Sargodha, whose services were terminated in the year 1994 by the Managing Committee of the College on the ground of indiscipline. He assailed his termination through an appeal before the Federal Service Tribunal. The Tribunal accepted the appeal, and set aside termination of his service. The Managing Committee approached this Court and leave to appeal was granted to consider whether Malik Muhammad Pervez Akhtar was a civil servant. By a majority of 2 to 1, the Court declared the respondent to be a civil servant within the meaning of section 2(1)(b) of the Civil Servants Act, 1973, as he held a post in "connection with the defence". The appeal was dismissed. The case is reported as Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akhtar (1997 SCMR 1957). A review petition by the Managing Committee also failed.

3. Encouraged by the findings in Malik Muhammad Pervaiz Akhtar's case (ibid), the present appellants, also employed in a P.A.F: educational institution, made a representation to the Management that in view of the pronouncement by this Court, they be declared as civil servants and accordingly granted all the benefits and facilities, admissible to civil servants under the law and the Rules. Getting no response from the College administration, the appellants filed appeals before the Federal Service Tribunal. The College administration disputed the appellants' claim to be civil servants. By the impugned judgment, the Tribunal declared the appellants civil servants, not only on account of pronouncement made in Malik Muhammad Pervaiz Akhtar's case (ibid), but also on the ground that the appellants were deemed to be civil servants within the meaning of section 2-A of the Service Tribunal Act, as the P.A.F. College, Islamabad, was controlled by Pakistan Air Force. However, while holding the appellants' appeals maintainable, they were declined relief by the Tribunal on the ground that they were governed by the terms and conditions laid down in A.F.M. (Air Force Manual) No.54.2 and not by the Government Rules and Regulations relating to civil servants.

43. The appellants were granted leave to appeal on 21-6-2005 to examine: (i) Whether or not the teachers/ employees of PAF Educational Institutions managed by the Managing Committee or bodies are civil servants under section 2(1)(b) of the Civil Servants Act or for the purpose of section 2-A of the Service Tribunal Act, 1973? (ii) Whether employees/Teachers of PAF Educational Institutions can invoke the jurisdiction of the Tribunal as well as of this Court under Article 212 (3) of the Constitution of Islamic Republic of Pakistan. (iii) The question of validity and wires of section 2-A of the Service Tribunal Act, 1973, on the touchstone of Article 212 and other provisions of the Constitution of Islamic Republic of Pakistan".

4. After leave was granted in the present case, a large number of other petitions were filed, challenging the vires of section 2-A of the Service Tribunals Act. Leave to appeal was granted in all those eases. The appeals were decided in the ease titled Muhammad Mubeen-us-Salam and others v. Federation of Pakistan (PLD 2006 SC 602). Section 2-A of the Service Tribunal Act was partially declared ultra vires Articles 240 and 260 of the Constitution. A number of directions were given in the operative part of the judgment regarding pending cases. These orders and directions were further clarified in the case of Muhammad Idrees v. Agricultural Development Bank of Pakistan (PLD 2007 SC 681). Of relevance to the present appeals is the last portion of Para 34 of the judgment in Muhammad Mubeen-us-Salam's case (ibid) which is reproduced as under: "The above view has been reaffirmed in Saeed Rabbani v. Director-General Leather Industry Development Organization (PLD 1994 SC 123), Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCMR 1593), Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572) and Managing Committee, PAF v. Muhammad Pervaiz Akhtar (1997 SCMR 1977). It may be noted that in last mentioned case, the teachers of PAF Model Inter-College were declared to be 'civil servants' and with the majority opinion; the appeal filed by Managing Committee, PAF Model Inter-College was dismissed. Implications/reflections of the ratio decidendi of this case shall be examined in depth at a later stage while disposing of Civil Appeals, which pertains to School Teachers of PAF. " The underlining of the last four lines was made in the judgment itself for emphasis. It is in view of this direction that the present appeals have been separately heard on their on merits with a particular emphasis on examination in depth of the principle laid down in the ease of Managing Committee P.A.F. Model Inter-College Sargodha v. Malik Muhammad Pervaiz Akthar (ibid).

5. In the leave granting order, reproduced above, three questions were formulated: Question No.(i) has two parts, both relating to the status of the appellants as civil servants; under section 2(1)(b) of the Civil Servants Act and under section 2-A of the Service Tribunals Act. The second part of the question has already been resolved in Mubeen-us-Salam's case (ibid), as section 2-A of the Service Tribunals Act has been struck down as unconstitutional. This leaves us with the question whether the appellants are civil servants within the meaning of section 2(1)(b) of the Civil Servants Act, 1973, as held by the majority in Malik Muhammad Pervaiz Akhtar's case (ibid).

6. Section 2(1)(b) of the Civil Servants Act, 19'73 (hereinafter referred to section 2(1)(b)) reads as under "

2. Definitions.

(1) In this Act unless there is anything repugnant in the subject or context,

(a) (b) '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 the 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) 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 (XXXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923)"

7. In the majority judgment in Malik Muhammad Pervaiz Akhtar's case (ibid) the respondent, a teacher, in P.A.F. Model Inter-College, Sargodha, was held to be civil servant on the ground that, "The case in hand is surely at par with that of the referred case. Islamabad College for Boys is being run by the Federal Government while P.A.F. Model Inter-College, Sargodha, is being owned, controlled and run by Pakistan Air Force in integral part of the armed forces of Pakistan. In short, it is held that the post being held by the respondent is connected with defence, and as such strictly comes within the definition of civil servant". The Court relied upon the case of Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC

612. In the dissenting judgment Mukhtar Ahmad Junejo, J, was of the view that, "Before being covered by the term 'civil servant' the respondent is required to hold a 'civil post' which may be connected with the affairs of the Federation or defence. Since P.A.F. Schools and Colleges are governed by certain independent bodies, the teachers in said schools and colleges cannot be considered to be holding the 'civil servant'. Even a person holding a civil post in connection with affairs of Federation but being paid from contingencies, is not a 'civil servant' as per sub-clause (ii) below clause (h) of section 2 of the Civil Servants . Act. The respondent is being paid his salary from the fees, collected from the students. The respondent is not being paid salary from the national exchequer. Looked from any angle, the respondent is not a 'civil servant'.

8. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court, appearing for the appellants, again relied upon the case of Malik Muhammad Pervaiz Akhtar's case (ibid) and submitted that once employees of the Institutes run by P.A.F. have been declared to be civil servants, the matter should be considered concluded and not be reopened. He also placed reliance upon the principle laid down in Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (ibid). The learned counsel drew our attention to various provisions of the Air Force Manual (A.F.M. 54-2), the basic document providing guidelines for the formation and running of P.A.F. schools/colleges, in order to demonstrate that the P.A.F. schools and colleges so set up are under the direct control and supervision of the Pakistan Air Force (P.A.F.). Elaborating his argument, the learned counsel, in particular, referred to the issuance of the Manual by the Air Vice Marshal, being pattern-in-chief and the Chairman of the Board of Governor of P.A.F. schools and colleges. Reference was made to composition of the Managing Committee for each college headed by an officer of P.A.F., the supervisory powers of the Air Headquarters over the Managing Committee in exercising its powers of appointment of employees of the institutions, their other terms and conditions of service, including dismissal and discharge. The learned counsel further referred to Chapter No.6 of A.F.M. No. 54-2 to point out that the employees of the P.A.F. Institutions have been granted pay scales of civil servants and similar provisions have been made regarding their age of retirement and pensionary benefits. He maintained that the P.A.F. Institutions are integral part of the Pakistan Air Force and therefore its employees are to be considered as civil servants as they hold posts in connection with the defence (Air Force).

9. On the question as to whether the appellants hold 'civil post' as mentioned in section 2(1)(b), the learned counsel submitted that it had been consistently held by the Courts in Pakistan as well as in India that the term is used to distinguish it from a military post. He, therefore, argued that all government posts, not held by the military, are to be considered as 'civil posts'.

10. The learned counsel pointed out that the test for determining whether a person holds a civil post is whether relationship of master and servant has been established between him and the government under which he serves. He maintained that in the light of the terms and conditions of the service of the employees and overall control of P.A.F. over the said employees, the relationship of master and servant stands established between them. On this subject, the learned counsel placed reliance on Yusaf Ali Khan v. The Province of Punjab (PLD 1949 Lah. 219), Federation of Pakistan v. Shamsul Huda (PLD 1957 Dacca 148), S. Mohan Singh v. Patiala and East Punjab States Union (AIR 1954 Pepsu 136), R. Christopher v. Executive Engineer (AIR 1966 Allahabad 97), State of Uttar Pradesh v. Audh Narian Singh (AIR 1965 SC 360) and Pakistan International Airline Corporation v. Tanweer-ur-Rehman 'PLD 2010 SC 676).

11. The legal points raised in these appeals depend much upon the status of the Institution, where the appellants are serving and their relationship with it. P.A.F. College, Islamabad, where the appellants are employed, is one of a number of similar educational institutions, set up by the Pakistan Air Force, initially for providing education to the children of the personnel of the Air Force and later opening it to civilians. We have not been provided with any instrument setting up the P.A.F. College, Islamabad. However, it is a common ground that all P.A.F. Schools-and Colleges are now regulated by an Air Force Manual (A.F.M. 54-2) dated 17-5-1992. The declared object of the Manual is to standardize the functions of such Institutions, while acknowledging their independence. The Manual covers all aspects of the running of these Institutions, including administration, academics and terms and conditions of service of their employees, Each school or college is to have a Board of Governors. Para-2 of Chapter No.1 of the Manual confers the functions and administrative control of every Institution on a Managing Committee constituted under Para-3, which amongst Air Force officers include representatives of the parents of the students. Para-1 of Chapter No. X of the Manual declares that each P.A.F. School or College is a self-financing institution, dependent upon funds collected as tuitions fees and allied charges. The next para clarifies that the funds of the school/ college are non-public funds, for the purpose of accounting. The Chairman of the 'Managing Committee has been conferred the responsibility of all financial organization and administrative matters of an institution. The powers of appointment of employees in a PAF. Institution, their confirmation and promotion as well as their dismissal and discharge have also been conferred on the Managing Committee. The terms and conditions of service of employees are laid down in Chapter No.VII of the Manual. While declaring in Para-1 of the said Chapter that the one objects of the Manual was to attain standardization of the terms and conditions of service of the employees of the P.A.F. Institutions, it acknowledges the variation in such terms as each Institution was a separate and distinct employer. The independent entity of each institution is further reflected in Para-14 of the same Chapter, stating that since each of the P.A.F. Institution "being under the administrative control of respective Managing Committee there is no provision for transfer of the employees from one P.A.F. Institution to another". Elaborate provisions are also made in the same Chapter, regarding power of the Managing Committee to terminate or dismiss an employee for misconduct. Para-41 enjoins upon every new employee of an Institution to furnish an undertaking in writing to follow the Regulations in the Manual in letter and spirit. The letter of appointment of the appellants, appended with these appeals, shows that they have furnished such undertakings. Furthermore the letters of appointment have been issued by the Principal of the College.

12. The above narration of different provisions of the Manual demonstrates that the P.A.F. Inter-College, Islamabad, or for that matter, other similar institutions, though initially set up by Pakistan Air Force, are functioning independently and not as an integral part of the Air Force. The Air Force may have some say in the running of these institutions, however, they are functioning under the administrative control of the Managing Committee. For its running, it raises its own funds. The Manual as well as the 'Statement of the College Funds' shows that they do not receive any public grants or contributions from the Air Force or the Federal Government. The Appointing Authority of the appellants as well as the Authority empowered to remove them from service is the Managing Committee of the Institution. The appellants are not even employees of the entire network of P.A.F. Schools and Colleges as they are not liable to be transferred to another institution in the network. The Air Force as such has no power either to appoint or f remove the employees of P.A.F. Institutions. So also the Federal Government has not been assigned any role in the functioning of the Institution. All this goes to show that P.A.F. Inter-College, Islamabad, is by all standards a private institution. We have also taken note that the Regulations incorporated in the Manual are non-statutory and are in the nature of administrative instructions for the running and functioning of the P.A.F. Institutions. These have been made binding upon the appellants by their undertaking furnished by them at the time of their appointment.

13. Two conclusions emerge from above discussion. Firstly, that P.A.F. Inter-College, Islamabad, is neither part of the Pakistan Air Force nor of the Federal Government. And secondly, that the appellants being employees of the said Institution, their relationship with it is that of master and servant.

14. The learned Attorney-General for Pakistan, referring to the definition of the 'Civil Servant' in section 2(1)(b), submitted that the 'civil post' mentioned therein means a post duly sanctioned in accordance with the Rules. He brought to OUT notice the Rules for 'System of Financial Control and Budgeting' issued by the Finance Division, Government of Pakistan. He referred to Para-II(A)(v), laying down procedure to be adopted for the creation of the posts in the Federal Government. The learned Attorney General for Pakistan contended that 'civil post connected with the defence' can only be created through the said Financial System. That the posts held by the appellants were not created in the manner so provided.

15. In view of our aforementioned discussion, we tend to agree with the learned Attorney General that as the posts held by the appellants were created under the Institution's own Regulations and not in the manner posts in the Government Departments are created.

16. Furthermore the phrase 'civil post' connected with the Defence appearing in section 2(1)(b) refers to posts provided for in Rules of Business 1973. Schedule-II of the Rules provides for distribution of the business among the various Divisions of the Federal Government. Defence Division' includes 'Civilian employees paid from the Defence estimates'. Such are the employees, who hold 'civil post' in connection with the Defence. The minority opinion of Mukhtar Ahmad Junejo, J.took note of this fact while holding that the respondent in the case of Malik Muhammad Pervaiz Akhtar (ibid) was not holding a 'civil post' connected with the affairs of the Federation or the Defence. He observed that in the majority judgment, note was not taken of the word 'civil' but the respondent was declared civil servant simply on the ground that he held a 'post' in connection with the affairs of the Defence. We find that the majority judgment, delivered by Raja Afrasiab Khan, J, was largely influenced by principle in Mrs. M.N. Arshad v. Miss Naeema Khan (ibid). With due respect, that case turned on its own facts. Teachers of O.P.F. Girls College, Islamabad, were declared civil servants, holding posts in connection with the Federation on the ground that the Federal Government, which had set up the school, performed functions of the Federal as well as Provincial Government within the Islamabad Federal Territory. The Federal Government had not only set up, but was financing, controlling and running the O.P.F. Girls College. On the other hand we have already held, that the P.A.F. Institutions are not part of the Pakistan Air Force but are private institutions run by their own Managing 'Committees, notwithstanding that personnel of the Pakistan Air Force are included in the Managing Committees. We find ourselves in agreement with the minority view in Malik Muhammad Pervaiz Akhtar's case (ibid) that the post held by the appellants before us are not 'civil posts' within the meaning of section 2(1)(b) of the Civil Servants Act, 1973 as they are neither connected with the Defence nor the Federal Government. They were created by the Institution where the appellants are serving in accordance with its own Regulations.

17. The case-law cited by Mr. Muhammad Akrant Sheikh, Senior Advocate Supreme Court, for the definition of 'civil post' would not be of much relevance to the facts of the present cases in view of our conclusions drawn in Para-12 above. We agree with the learned counsel that 'civil post' has not been defined in any statute, though mentioned in a number of statutes, starting from Government of India Act, 1935. We also find that in the case law cited by the learned counsel, 'civil post' has been described as post other than the military posts. Further that in order to establish that a person holds a 'civil post' in any Department of the Government, the relationship of master and servant must be established between the two. However, we have already found that the appellants are neither employees of the Federal Government nor the Pakistan Air Force. They are employees of the P.A.F. Inter College, Islamabad, and it is of that Institution that they are servants.

18. In conclusion, while disagreeing with respect, with the majority judgment in Malik Muhammad Pervaiz Akhtar's case (ibid) and agreeing with the minority view, we hold that the appellants are not civil servants, as they do not hold any post in connection with the Federation or the Defence within the meaning of section 2(1)(b) of the Civil Servants Act, 1973. The Federal Service Tribunal had, while holding the appellants to be civil servants, dismissed their appeals on the ground that they were not entitled to the benefits accorded to the civil servants under the law. In view of our determination, we also reverse the finding of the Tribunal regarding the status of the appellants. Thus the very appeals filed by the appellants before the Tribunal were not maintainable. These appeals are therefore, dismissed with no order as to costs. S.A.K./M-84/SC Appeals dismissed.