2001 PLP (C (PLC(CS))

2. We have listened to the arguments of the learned counsel for the appellant at the preliminary stage of hearing. A similar case was decided by larger Bench of this Tribunal at Islamabad in Appeal No.542-R of 1997 (Mr. Tabrez Hussain Swera v. KESC) wherein it was held that since cause of action had accrued to the appellant by the impugned order, dated 26-3-1997 when he was not a civil servant, therefore, he cannot challenge the said order in the Service Tribunal. While concurring with the said judgment of a larger Bench of this Tribunal we reiterate and add the following few points:- (a) The amending Act of 1997. was enforced at once i.e. Immediately and with prospective effect. It was not retrospective in operation to A include a cause of action having arisen in March, 1997 when the appellant was not declared as civil servant. (b) Section 6 of the Act provides for the abatement of only those cases which falls within the jurisdiction of this Tribunal. The matters prior to 10-6-1997 of the employees of autonomous bodies etc. did 8 not fall within the jurisdiction of this Tribunal, and therefore, section 6 would not be attracted for the abatement of any proceedings before any other Courts. (c) The reference to various precedents regarding retrospective application of the- amending Act as was made at the time of hearing of this case and several others of similar nature, but such precedents are distinguishable for the reasons that; firstly in those cases the amendment was made in the Act of the Institutions where such employees were working, and therefore, such amendment became vested right of the employees and hence it could be applied retrospectively, whereas in the present case the amendment was not incorporated in the statutes governing the terms and conditions of service of employees in various corporations etc. But the amendment was incorporated in the Service Tribunals Act and thus, by a fiction of law the employees of such bodies, who were otherwise not the civil servants, were deemed to be civil servants for the Service Tribunals Act. Hence the fiction of law and the deeming clause merely provides a forum for future and not in retrospective. The amendment incorporated in the WAPDA Act or the PIAC Act had the effect of determination of terms and conditions of service of the employees of the said two Institutions, whereas by the amending Act of 1997 the terms and conditions of employees of various autonomous bodies etc. have not been changed. Secondly, in the said earlier precedent the questions of service appeal under section 6 by the employer or department was in issue or the comparative prospects of appeals under section 4 and section 6 of the Act were agitated. The issue of retrospective application of a deeming clause and that too by a fiction of law was not agitated or adjudicated upon. (d) The concept of Administrative Courts and Tribunals was introduced in the Constitution, of Pakistan for the first time in 1973. The civil servants were already performing the functions even prior to that Constitution, and therefore, various matters pertaining to their terms and conditions of service pending in various Courts. Thus, with the creation of specialised Tribunal, it was provided that the suits, appeals and other proceedings before other forum except the Supreme Court shall stand abated with the establishment of the Service Tribunal. Whereas the employees of autonomous bodies and corporations etc. were not functioning as civil servants prior to 10-6-1997 and their declaration as civil servants and the establishment of a Tribunal for them was simultaneous by the amending Act. Hence there was no occasion for an employee of such bodies to have filed any suit or appeal etc. in his capacity as civil servant which may be held as abated by the establishment of a Tribunal for them. (e) The relationship between the 'employees and their employer Department in the autonomous bodies was that of a servant and a master upto 9th of June, 1997 or that of a worker and an employer and various Courts had the jurisdiction to take cognizance of such matters. (f) The Service Tribunal was established exclusively for the redressal of the Service grievance of the civil servants and it could not interfere in the relationship of mater and servant etc. With effect from 10th of June, 1997 the employees of such bodies had become civil servants and the cause of action arising on or after the said date would fall- within the jurisdiction of this Tribunal. Article 212 provides that:-- "The appropriate Legislature may by Act provide for the establishment of. Administrative Tribunal to exercise exclusive jurisdiction in respect of

matters relating w the terms and conditions of persons (who are or have been) in the service of Pakistan, ..." and that:- ..all proceedings in respect of any matter to which the jurisdiction of such Administrative Tribunal extends ...which may be pending before such Courts immediately before the establishment of the Administrative Tribunal, shall abate on such establishment".

3. Thus, the Administrative Tribunal was to be created for those persons who were either in the service of Pakistan or had been in the service of Pakistan and the jurisdiction of the Tribunal extend to only such matters The appellant was neither in the service of Pakistan on 26-3-1997 or at any date prior to 10--6-1997 nor he had been in the service of Pakistan during the said period, therefore, the jurisdiction of this Tribunal does not extend to such matters and consequently Article 212 would not apply to any suit, appeal or proceedings filed by any employee of the autonomous body pertaining to the matter accruing on a date prior to 10-6-1997 when he was not in the service of Pakistan and hence we are of the opinion that the apprehension of the appellant that his suit is likely abated is ill-founded.

4. For the foregoing discussion, we dismiss this appeal in limine. H.B.T./248-ST-F Appeal dismissed.