1994 PLP (C (PLC(CS))

‑‑‑‑Ss. 2(a) & 4‑‑‑Civil Servants Act (LXXI of 1973), S. 2(a)‑‑‑Employees of Election Commission‑‑‑Status‑‑‑Employee who retired as Provincial Election Commissioner and had preferred appeal before Service Tribunal for payment of arrears of pensionary benefits, was not a "civil servant" for purpose of invoking jurisdiction of Service Tribunal and was not amenable to its jurisdiction. JUDGMENT ABDUL RAZZAQ A. THAHIM (CHAIRMAN): ‑‑Appellant, Mr. Inayatullah, retired as Provincial Election Commissioner, Punjab (BPS‑20) with effect from 8‑7‑1976 on attaining the age of superannuation. He has preferred this appeal for payment of arrears of pensionary benefits as raised from time to time since 1976.

2. Before we go into merits of this appeal we have to determine the status of the appellant whether he is civil servant and amenable to our jurisdiction.

3. We have heard Mr. Hafeezul Haq, learned counsel for the appellant at length. He has argued that the terms and conditions of Civil Servants Act, 1973 are applicable to him, therefore, this Tribunal has jurisdiction.

4. This controversial issue came up before the Full Bench of this Tribunal in the case of Muhammad Ashfaq Mallal v. Chief Election Commissioner, Islamabad in Appeal No. 40(R) of 1976. The question was examined at length and finally this Tribunal dismissed appeal on the point of jurisdiction and observed as under:‑‑ "The learned counsel for the appellant then pointed out that Notification, dated 3rd September, 1970 making some amendment in rules 3, 5 etc. was made by the President after consultation with the Commissioner and therefore it cannot be said that the officers and servants of the Commission are subject to rule‑making powers of the Commissioner alone. His contention is that if in the absence of law made by the Parliament the rules can be made by the President it can be well‑presumed that the Parliament without invoking the provisions of Article 221 makes law with regard to terms and conditions of officers and servants of the Commission. In substance the argument was that the Civil Servants Act, 1973 which has been made by the Parliament is applicable to the 'employees of the Commission also because no exception has been made and when the President was the rule‑making authority in respect of persons in the service of Pakistan the rules were made by the President himself for the employees of the Commission. In this contention I find little force inasmuch as when the amendment in the Rules was made in 1970 the Constitution of 1962 had been abrogated and the law available at that time for making the rules was Electoral Rolls Orders, 1969 (P.O. No.? of 1969) which had been invoked. After the enactment of 1972 Constitution the position has completely changed and the Chief Election Commissioner has full powers to make the rules with regard to the officers and servants employed by him unless the Parliament specifically chooses to make law for them. In view of what has been said above we are of the opinion that since the Parliament has not made any specific law with regard to the officers and servants of the Election Commission, the appellant is governed by the rules made by the Commissioner and not by the Civil Servants Act, 1973 or Service Tribunals Act, 1973. This Tribunal, therefore, has no jurisdiction to adjudicate in this matter. On this ground alone, the appeal is rejected but no order as to costs is passed."

5. For the reasons already given by this Tribunal in the aforesaid paragraphs, we also agree that the appellant is not a civil servant for purpose of invoking jurisdiction of this Tribunal, and is not amenable to the jurisdiction of this Tribunal. The appeal is accordingly dismissed. H.B.T./871/SrF??????????????????????????????????????????????????????????????????????? ?????????? Appeal dismissed.