2023 PLP (C (PLC(CS)N)

AAMER FAROOQ, J.

The facts relevant, for the present controversy, were mentioned in detail in judgment of this Court deciding instant writ petition on 18.01.2019, hence are borrowed from there and are as follows:-

2. The facts, in brief; are that the petitioners are employees of National Assembly. In this regards petitioner No.1 is working as Deputy Secretary National Assembly Secretariat, Islamabad. He had government accommodation and was living with his wife and children. He contracted 2nd marriage with petitioner No.2, who also is an employee of National Assembly Secretariat, Islamabad and was allotted government accommodation independently. In this behalf the government accommodation allotted to petitioner No.1 was on hiring basis and the rent was paid by the employer, however, the government accommodation of petitioner No.2 was through Estate Office. The disciplinary action was Initiated against the petitioners on the basks that they concealed the matter and got allotted second house which could not have been done. In this behalf an explanation was sought on 26.8.2014 and subsequently the petitioners were charge sheeted on 11.5.2015. Inquiry proceedings were held and twice the inquiry officer recommended his opinion, however, the same was apparently discarded and the third inquiry as such de novo was ordered to be initiated against the petitioners".

2. Through the instant petition, the petitioners assail the decision of denovo inquiry and the disciplinary proceedings as well as seek direction for restoration of hiring facility and amendment in Accommodation Allocation Rules, 2002 (the Rules) in light of decision of Hon'ble Federal Shariat Court in case reported as 'Professor Kazim Hussain and Others v. Government of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others' (PLD 2013 Federal Shariat Court 18). The instant petition was decided by this Court vide judgment dated 18.01.2019, whereby initiation of denovo inquiry, by the respondents, was held to be without lawful authority, whereas the relief, to the extent of direction to the respondents for amendment in the Rules, was declined. Both the parties assailed the said judgment by way of Civil Petitions for Leave to Appeal before the august apex Court (Civil Petitions Nos.738 and 1439/2019), which were decided by the Hon'ble Supreme Court vide order dated 08.03.2021, whereby judgment dated 18.01.2019 was set aside with consent of learned counsel for parties and matter was remanded to this Court to decide the question of jurisdiction first and then merits, if need be. It is also pertinent to observe that Hon'ble Supreme Court observed that the matter should be decided within three months from the date of receipt of order.

3. In view of referred background of the case, learned counsel for the respondents, at the very outset, objected to the maintainability of writ petition. In this behalf, it was submitted that terms and conditions of service of petitioners are governed through National Assembly Secretariat Employees Act, 2018, which came in existence on 27.02.2018. It was contended that employees of National Assembly Secretariat are regarded as civil servants. Learned counsel took the Court through section 2(1)(c)(d) & (i) of the referred Act. He also drew attention of the Court towards section 5 as well as section 23 ibid. It was contended that since the petitioners are civil servants and the Act of 2018 specifically provides availing of remedy before learned Federal Service Tribunal, hence instant petition is not maintainable. In support of his contentions, learned counsel placed reliance on case reported as 'Muhammad Azam Davi and others v. Speaker Balochistan Provincial Assembly and others' (2010 SCMR 1886), order dated 07.11.2017 in Civil Appeals Nos.1679 to 1681 of 2014, the decision of Hon'ble Supreme Court in case reported as 'Ali Azhar Khan Baluch v. The Province of Sindh' (2015 SCMR 456) as well as order of this Court dated 16.04.2019 in W.P. Nos.673, 759 and 883 of 2019.

4. Responding to the contentions of learned counsel for the respondents, learned counsel for the petitioners inter alia contended that instant petition is maintainable inasmuch as the petitioners are not civil servants and it is trite law that denovo proceedings cannot be initiated unless there are specific reasons for the same. It was contended that petitioners are husband and wife; both are working in National Assembly Secretariat and prior to marriage, had been allotted government accommodation hence are entitled to retain the same in the said capacity. It was contended that Hon'ble Federal Shariat Court in case reported `Professor Kazim Hussain and Others v. Government of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others' (PLD 2013 Federal Shariat Court 18), directed the Federal Government to amend the Rules to cater the situation, in which, the petitioners fall; it was further added that fresh charge sheet and the decision of denovo inquiry are based on mala fide, hence not tenable and the respondents ought to have restored hiring facility earlier granted to the petitioners. It was also contended that in the alternative, this Court may remit the present petition to Federal Service Tribunal.

5. In rebuttal, learned counsel for the respondents submitted that even on merit, petitioners have no case, as it is the prerogative of the respondents to initiate fresh inquiry and reiterated that any grievance, with respect to the hiring facility and/or disciplinary proceedings, ought to be agitated before the learned Federal Service Tribunal.

6. Arguments heard. Record perused.

7. The circumstances leading to the instant petition have been cited hereinabove with brevity in the preceding paragraphs, hence need no reproduction.

8. Since the respondents have questioned the maintainability of instant petition on the basis of jurisdiction of this Court and the august Apex Court has also remanded the matter vide order dated 08.03.2021 for decision on the question of jurisdiction first, hence the referred issue needs to be addressed initially.

9. In order to cater the employees of National Assembly Secretariat, the National Assembly Secretariat Employees Act, 2018 (the Act) was enacted. The preamble of the Act clearly provides that it has been enacted to regulate the recruitment and the conditions of service of persons appointed in the National Assembly Secretariat and to provide for ancillary matters. The 'employee' is defined in section 2(1)(i) of the Act, which reads as follows:- `employee' means a person appointed in the Secretariat, who shall have the status of a civil servant subject to such modifications as the Speaker in consultation with the Finance Committee may make, but does not include:- a) a person who is on deputation to the Secretariat; and b) a person who is employed on contract or work-charged basis or who is paid from contingencies.

10. The definition of 'civil servant' is contained in section 2(1)(d) of the Act, which provides that the words 'civil servant' shall have the same meaning as assigned to it in the Civil Servants Act, 1973.

11. The terms and conditions of service of employees of National Assembly Secretariat are governed under section 5 ibid. The referred provision reads as follows:- "

5. Terms and conditions of service.- (1) The terms and conditions of service of an employee shall be as provided in this Act and the rules. (2) The terms and conditions of service of any person to whom this Act applies shall not be varied to his disadvantage. (3) Subject to this Act and rules, all other terms and conditions of service, including pay, allowances, advances, retirement, deputation, pension, gratuity, provident fund, benevolent fund, group insurance, financial or family assistance packages including in service death, leave or all other rights, perks, privileges, prerogatives, concessions, entitlements, memberships, facilities, including medical, housing, education and all other schemes of the Government, of an employee, notwithstanding any judgment or order of any court, tribunal or a quasi-judicial authority, shall be such as governed by the law, rules, policies, instructions and guidelines for the time being in force and applicable, admissible or enjoyed or available to the civil servants in the corresponding posts or BPS, subject to such modifications, variations or exceptions as may be made by the Speaker with concurrence of the Finance Committee: Provided that, in case of urgency, the Speaker may make such modifications, variations or exceptions in anticipation of the concurrence of the Finance Committee".

12. Section 23 ibid bars the jurisdiction of the courts with respect to employees of National Assembly Secretariat, which reads as follows:- "

23. Jurisdiction barred.- Save as provided wider this Act, the Service Tribunals Act, 1973 (LXX of 1973) or the rules, no order made or proceedings taken under this Act or the rules by the Speaker or any officer authorized by him shall be called in question in any cote and no injunction shall be granted by any court in respect of any decision made or proceedings taken in pursuance of any power conferred by, or under, this Act or the rules".

13. The combined reading of the above provisions, mentioned hereinabove, clearly stipulate that employees of National Assembly Secretariat are 'civil servants' and their terms of service are the same as those of civil servants in the corresponding post or the Basic Pay Scale. In case, any employee has any grievance with respect to terms and conditions of service, he/she shall have the remedy before learned Federal Service Tribunal in light of Federal Service Tribunals Ad, 1973.

14. In case titled 'National Assembly Secretariat through its Speaker; Islamabad and another v. Muhammad Saleem Khan and others' (Civil Appeals Nos.1679 to 1681 of 2014), the Hon'ble Supreme Court set aside the judgment of this Court dated 17.04.2014 and referred the writ petitions of employees of National Assembly Secretariat to learned Federal Service Tribunal. Similarly, in case reported as `Muhammad Azam Davi and others v. Speaker, Balochistan Provincial Assembly and others' (2010 SCMR 1886), the august apex Court, in the following terms, observed that employees of National Assembly Secretariat are civil servants:-- "

21. From a detailed examination of the case-law mentioned in the leave granting orders and that of the case of Chief Election Commissioner of Pakistan v. Miss Nasreen Pervez (ibid), decided recently in the year 2009, we do not find inconsistency in the case-law The principle emerging from these judgments is that the status of the employees of Constitutional bodies as to whether or not they are civil servants for the purpose of being amenable to the jurisdiction of the Service Tribunal depends upon whether or not the Parliament has been conferred power to regulate the terms and conditions of service of such employees. In case the Parliament has been bestowed with such a power, either specifically, like in Articles 87 and 221, or generally as in Article 240, whether or not exercised, the employees of such a body would be civil servants. Applying this principle to the cases before us, Article 87 read with Article 127 of the Constitution expressly enables the Parliament and the Provincial Assemblies, as the case may be, to make laws for regulation of the terms and conditions of service of the employees of the respective Establishments. The employees of such bodies, are, therefore, civil servants".

15. This Court, while relying on the afore-noted judgment of Hon'ble Supreme Court of Pakistan in case titled 'Muhammad Anwar Sial v. National Assembly Secretariat and others' (W.P. No.763-2019), dismissed the petitions declaring employees of National Assembly Secretariat as 'civil servants' and held that they are amenable to jurisdiction of Federal Service Tribunal.

16. In view of above, it is reiterated that petitioners are civil servants and have remedy before learned Federal Service Tribunal created under Service, Tribunals Act, 1973 in light of section 23 ibid; in this behalf, all the prayers made in the instant petition fall within the terms and conditions of service and are covered under sections 5 and 23 of the Act, hence instant petition is not maintainable, as this Court does not have jurisdiction in the matter. I am not inclined to accede to the request of learned counsel for petitioners regarding remitting the matter to federal Service Tribunal, resultantly, instant petition is dismissed.

17. Since instant petition is dismissed on the basis of jurisdiction and maintainability, hence no findings are required on merit. SA/164/Isl. Petition dismissed.