1988 PLP (C (PLC(CS))

Thus, the terms and conditions of service contained in the Sind Civil Servants Act and the rules framed there under are the terms and conditions of service of Civil Servants. In other words the terms and conditions of service as provided in any other law such as Public Service Commission Ordinance could not be held as terms and conditions of service of civil servants. In the present appeal we are obviously seized of the premature curtailment of the tenure of the appellant as a Member of the Public Service Commission. This tenure had been fixed under subsection (2 of section 4 of the Public Service Commission Ordinance. As such the said tenure cannot be treated as part and parcel of the terms and conditions of service of civil servants referred to in section 3 of the Sind Civil Servants Act. For the above reasons we are in agreement with the learned Assistant Advocate‑General that this Tribunal is not the appropriate forum where the appellant could agitate for redressal of his grievance. Accordingly we hold that this Tribunal has no jurisdiction to adjudicate upon the issue raised by the appellant. The appeal is dismissed with no order as to costs. DR. A. Q. QAZI (MEMBER).‑‑The facts relating to this case have been briefly but precisely narrated by the learned Chairman and are given in pages 1 and 2 of the main judgment. I should like to frame the issues involved in the appeal which to my mind need resolution: (i) Is. the appellant a Civil Servant within the meaning of the Sind Service Tribunals Act, 1973 (as amended)? (ii) If so, whether by appointment as a Member of Sind Public Service Commission (a separate body regulated by a separate Act) the appellant ceases to be a civil servant with facts, circumstances and history of the case? (iii) Could the tenure of a Member of Public Service Commission be arbitrarily curtailed? (iv) If aggrieved where should he (the Appellant) seek for redress of the grievance. I shall dwell upon these issues systematically and one by one so that I could reach a logical conclusion.

2. Professor Feroze Yousif Khan was working as a Deputy Director College Education (a civil servant working on a civil post) when by a notification dated 26th July, 1982 he was appointed as a Member of Public Service Commission. The order reads as under:‑‑ "In exercise of the powers conferred by Section 3 read with subsections (1) and (2) of Section 4 and subsection (1) of Section 5 of Sind Public Service Commission Ordinance 1978, the Governor of Sind is pleased to appoint Professor Feroze Yousif Khan, Deputy Director Colleges Hyderabad, as a Member of Sind Public Service Commission for a period of 3 years w.e.f the date he takes over the charge of the office." It is indeed very obvious from this speaking order that Professor Feroze Yousif Khan was a civil servant while he was working as a Deputy Director Colleges and was sent on appointment by transfer to Sind Public Service Commission for a specific period of three years which was to terminate on 31st July, 1985. It is to be implied and understood that his transfer and posting was as that of a civil servant. and was done in accordance with Clause 10 of the Sind Civil Servants Act, 1973. Let us now read for convenience and clarity the Preamble of the Sind Service Tribunals Act of 1973. "Preamble: Whereas it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, and for matters connected therewith or ancillary thereto; It is hereby enacted as follows:‑‑

1. Short title, commencement and application.‑‑(1) This Act may be called the Sind Service Tribunals Act, 1973. (2) It shall come into force at once. (3) It applies to all civil servants wherever they may be.

2. Definitions.‑‑In this Act, unless there is anything repugnant in the subject or context‑ (a) civil servant' means a person who, is on has been a member of the Civil Services of the Province of, holds or has held a civil post in connection with affairs of the Province, and for the purpose of any proceeding under this Act includes, a person who has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority, but does not include‑ (i) a person who is on deputation to the Province from federation or any other Province or 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 Workman's Compensation Act, 1923 (VIII of 1923)" It is, therefore, clear from the plain reading of Sind Civil Servants Act, 1973 that the appellant was a civil servant and was on transfer and was appointed for a period of three years in accordance with section 10 of the Sind Civil Servants Act of 1973 and in conformance to Public Service Commission Ordinance of 1978. Now I shall discuss issue No.2; the simple question for me is to ask whether the appellant ceased to be Civil Servant on his appointment to a tenure post as a Member Sind Public Service Commission'. My answer is `No' and I shall reason as follows:‑‑ I have already said above under issue No.1 that Professor Feroze yousif Khan was appointed by transfer under Section 10 of the Sind Civil AC, 1973. This also is the only contention of the respondents in their written statement Though the learned Assistant Advocate‑General has argument that because of his superannuation he seised to be civil servant as argument that cannot be accepted because of the very definition of the `Civil servant as (laid down above). The Public Service Commission Ordinance of 1978, under which the Governor was pleased to appoint the appellant, in accordance with Clause 4, sub clause (2) read with Clause 5 read with sub clauses (1) and (2), are accordingly reproduced for clarity and convenience. "

4. Appointment of Chairman and Members.‑‑(1) The Chairman and Members shall be appointed by the Governor. (2) Subject to subsection (4), the term of office of a Member shall not exceed five years; provided that he may be re‑appointed for another term not exceeding three years. (3) Notwithstanding anything contained in this section, a person holding office as. Chairman or Member, immediately before the coming into force of this Ordinance, shall cease to hold the office on such date as the Governor may direct. (4) A Member shall cease to hold office on attaining the, age of sixty-five years: Provided that the Governor may in the interest of service allow him to continue to hold the office for the un expired portion of the beyond the age of sixty‑eight years, if he is certified by such medical Board as the Governor may constitute in this behalf, to be in a fit state of health. (5) A Member may resign his office by writing under his hand addressed to the Governor:'

5. Terms and conditions of service of Chairman and Members.‑‑‑(1) The terms and conditions of service of the Chairman or Members shall be such as may be determined by the Governor; provided by the terms and conditions shall not be varied to the disadvantage of the chairman or Member during the term of his office. (2) On ceasing to hold office, a Member shall not be eligible for reemployment, in the service of Government or in autonomus corporation or body established by Government by law or otherwise: Provided that nothing contained in this subsection shall apply to a Member who immediately before his appointment as the member, was in service of Pakistan, and has not attained the age of superannuation under the law applicable to him as civil servant In my opinion a civil servant who is on transfer any other civil post of the Province on any specific terms and conditions (which could not be varied to his disadvantage under the protection of the Sindh Civil Servant Act) continues to remain the civil servants particularly so when the law contrary to this has not been laid down in either the Sind Public Service Commission Ordinance of 1978 or Sind Civil Servants Act of 1973. Nothing can take away his right of being designated as a civil servant arbitrarily. There is some case‑law available on this subject. The specific cases that are worth reading and guide are Dr. A.Q.K. Afghan V. Secretary to Government of Pakistan Establishment Division, Rawalpindi (1982 P L C (C.S.) 206) and another Dr. A.Q.K. Afghan V. Secretary Establishment Division Rawalpindi (1982 P L C (C.S.) 214), Dr. A.Q.K. Afghan was appointed as an officer on special duty/ex officio joint Secretary to the Federal Government in Ministry of Education. Thereafter in August, 1973 he was promoted on the post of Additional Secretary in Grade‑21, of the Secretariat group. In February, 1978 he was appointed as a Member Service Tribunal Islamabad in Grade‑21, by subsequent Notification dated 9th February, 1981, he was transferred and later removed: He filed appeal to the Federal Service Tribunal against his transfer and subsequent removal. The Federal Tribunal is regulated by a separate Act (Service Tribunals Act No. 70 of 1973) which is in itself a self‑composed law and speaks about the composition of the' Chairman and Members of the Tribunal and is very similar in comparison ‑to Federal Public Service Commission and for that purpose to Sind Public Service Commission. Dr. A.Q. K. Afghan's case of removal from post of Member of Federal Service Tribunal as well 'as his removal from Government service were agitated first before the Federal Service Tribunal who though did not allow the appeal on merits but did not dismiss the same on the ground of its being incompetent to adjudicate on' matter of his removal from the post of Member Federal Service Tribunal. Later on Dr.A.Q.K. Afghani filed a petition against the orders of the Tribunal to Supreme Court of Pakistan (1984 S C M R 1159), which also disallowed the appeal on merits and held the decision of Federal Service Tribunal as competent and correct. I therefore have no hesitation in holding that the status of the appellant, Professor Fer07C Yousif Khan was that of a civil servant, continued to be that of a civil servant during his stay with the Public Service Commission for a tenure of three years. I have no confusion in my mind as regards this point which has also been the only plea of the respondents, f in their written statement. In view of admission of the department, in view of the reading of Civil Servants Act Clause (1), Clause (2) and‑Clause (10), further read with Clause (1) and Clause (2) of the Sind Service Tribunal Act.1973, and in view of the case law cited above there is no reason for me to be left in any doubt that the appellant was civil servant till his removal and retirement. If this was not the case then at least the appeal of Dr. A.Q.K. Afghan (case‑law cited above), against the removal from the post of Member Federal Service Tribunal could not ' be adjudicated upon or agitated before the Federal Service Tribunal. I shall now revert to 3rd point for determination, i.e., whether the curtailment of period of tenure of Professor Feroze Yousif Khan was curtailed legally. This point has been exhaustively discussed by the learned Chairman in the main body of the judgment and I shall only add the case law reported in P L D 1979 Lahore 324 in support of his (learned Chairman's) arguments. This case deals with curtailment of the tenure of Mr. Alauddin Akhtar, who was appointed for a period of 3 years as Chairman Pakistan Text Book Board which was a statutory period. This tenure had not expired when Mr. Alauddin Akhtar was repatriated to his original, department as Secretary, Board of Technical Education. Justice Shafi‑ur‑Rahman the learned Judge set aside the order and, observed in para‑16 of his decision: "It follows, therefore, that the post of Chairman, Punjab Text book Board is a statutory post, with a fixed statutory tenure of three years which in the cash of the petitioner, has not so far expired. This petition is, therefore, allowed with costs against the respondents and order in so far as it transfers or repatriates the petitioner and the impugned respondent No. 2 on the post, is declared to be without lawful authority and of no legal effect: In view of the above case law cited above I shall also hold the view that the curtailment of the tenure of Professor Feroze Yousif Khan was not legally founded. Finally I shall discuss Issue No.

4. This point can be easily determined in light of the arguments advanced under Issues Nos. ‑ 1, 2 and

3. In order to determine the jurisdiction to adjudicate I shall pose to myself one simple question. To which organisation does he belong? My simple answer is, he is confirmed civil servant and belongs to Governments of Sind. If my answer is this" then a confirmed civil servant of the Government of Sind on 'transfer under Clause No. 10 of the Civil Servants Act of 1973 cannot lose identity even on his transfer to Public Service Commission for a specified period. He, therefore, cannot have any other legal recourse but first to agitate the Service Tribunal which has the exclusive jurisdiction in respect of; "matters relating to the term and conditions of the persons in service of Pakistan including discipline matters", in wake of the Article 212 of the Constitution of Pakistan end this view is held by all "superior Courts of the country." In absence of any regulating clauses in the Sind Public Service Commission Ordinance 1978, or Surd Civil Servants Act 1973, in absence of any case law cited at the bar, in view of the fact that appellant continued to be a civil servant till the date of his Partition (which was subsequent to his superannuation), in view of the fact that Sind Service Tribunals Act Clauses (1), (2) and (4) govern and regulate of hip appeal and in view of case law cited earlier, I hold that the appeal before Sind Service Tribunal was within the jurisdiction of Sind Service Tribunals and the same was competent to adjudicate on all matters relating to the terms an conditions of the service of the appellant. In light of elaborate discussions made and arguments advanced above I shall with utmost respect and regard for the views of the learned chairman and learned Member, record my dissent with the conclusion of the main body of the judgment and shall partly allow the appeal to the extent that I shall declare the order of repatriation of Professor Feroze Yousif Khan and the curtailment of hi" tenure as Member Sind Public Service Commission which was legally to expire on 315t July, 1985 as to be without lawful authority. This appeal is only allowed to this extent and in above terms. S.Q./156/Sr.S Appeal dismissed.