1984 PLP 37 (SCMR)

ZAFFAR HUSSAIN MIRZA, J.‑This petition for special leave to appeal under Article 212(3) is directed against order dated 8‑i1‑1982 passed by the Federal Services Tribunal, Islamabad whereby the appeal filed .by the petitioner under section 4 of the Service Tribunals Act, 1973 was dismissed as incompetent on the ground that the petitioner was not a civil servant within the meaning of the provisions of the said Act.

2. Since short point of law was involved in this case, this Court by an order dated 15‑3‑1983 issued notice to the respondents that this petition may be heard, converted into an appeal and disposed of accordingly. In consequences to the notice issued by this Court learned Deputy Attorney‑General is also present. Since the impugned order of the Service Tribunal proceeds on a preliminary point of law, it is not necessary to state the facts in detail. It is sufficient to state that the petitioner was serving as an Assistant in the Vertebrate Post Control Center, Agricultural Research Council, Karachi on 28‑10‑1978 when disciplinary proceedings were taken against him which culminated in the order of his removal from service on 16‑12‑1978 as per the order of the Deputy Secretary (Administration), Pakistan Agricultural Research Council, Islamabad. The petitioner seems to have filed a departmental appeal from the above‑said order. Pending the disposal of the departmental appeal he sent some communications to the relevant authorities purporting to incorporate his resignation from service although his contention is that this was done as a mark of protest and more importantly that it was withdrawn on 6‑6‑1979. Be that as it may the appeal of the petitioner was disposed of by order dated 10‑6‑1979 whereby it was decided `as a special case by the Chairman, P. A. R. C. that the punishment for removal from service awarded to him under Government Servants (Efficiency and Discipline) Rules, 1973 should be converted into acceptance of his resignation tendered by him earlier".

3. Aggrieved by the aforesaid order the petitioner filed an appeal before the Service Tribunal which was disposed of by the impugned order in this petition. The learned Tribunal has taken the view that since the petitioner was an employee of the Pakistan Agricultural Research Council which was constituted under the Pakistan Agricultural Research Council Ordinance, 1981 (hereinafter to be referred to as the Ordinance) and which is a body corporate the petitioner cannot be held to be a civil servant in the civil service of the Federation or holding a civil post in connection with the affairs of the Federation.

4. With the assistance of the learned Deputy Attorney‑Central we have perused the provisions of the Ordinance and we find that immediately before the establishment of the Pakistan Agricultural Research Council, were some civil servants employed in the Attached Department portion of the Directorate‑General of the council and serving under the council. Section 16. of the Ordinance provides that such civil servants shall also stand transferred to, and become the employees of the Council However, such persons were given the right to opt not to be transferred :o the service of the Council and in such a case the employee concerned was entitled, as far as possible to be provided a suitable post elsewhere by the Federal Government. The view that has prevailed with the learned Tribunal proceeds on the basis that by the establishment of the council under the provisions of the Ordinance, the petitioner ipso facto stands transferred and would become employee of the Council. In other words if he was a civil servant immediately before commencement of the Ordinance he would cease to be such civil servant and would become the employee of the Council. However, on a perusal of section 16 and other provisions of the Ordinance, we find that the view taken by the learned Tribunal is not in accordance with law. It is important to note that the Ordinance has come into force after the order impugned before the Service Tribunal was passed on 10‑6‑1979. The important question to consider was, therefore, whether on the aforesaid date the petitioner was a member, of a civil service or holding a civil post in connection with the affairs of the Federation. If it is found that he was in such service or holding such a post then he could not ipso facto on the establishment of the Council, be deemed to be an employee of the Council. This is because he having been removed from service prior to the commencement of the Ordinance could not possibly have exercised his option to remain in Government service if he was a civil servant at the relevant time. Without conceding that the petitioner was a civil servant on the aforesaid date, the learned Deputy Attorney‑General agrees that the crucial question of the status of the petitioner on the relevant date of his removal from service, has not been adverted to or considered by the learned Tribunal.

5. After hearing the petitioner in person and the learned Deputy Attorney‑General, we have formed the opinion that the view taken by the Tribunal cannot be sustained in absence of the decision as to the status, of the petitioner on the date of his removal. We, therefore, convert this petition into an appeal and allow the same. In the result the order of the Service Tribunal dated 8‑11‑1982 is set aside and the case is remanded to the Tribunal for a fresh decision in the light of this judgment. S. Q.??????????????????????????????????????????????????????????????????????????????????????? Appeal allowed.