P L D 1994 Supreme Court 539 (PLP)

AJMAL MIAN, J.‑‑‑This is an appeal with the leave of this Court against the dismissal judgment of the Sindh Service Tribunal, Karachi, dated 6‑10‑1992 passed in Appeal No. 116 of 1991 filed by the appellant against the termination of his services by the Speaker of the Sindh Provincial Assembly, hereinafter referred to as the Assembly (by his order dated 12‑8‑1991 with immediate effect), on the ground that the appellant was neither a member of the civil service of the Province nor he was holding any civil post in connection with the affairs of the Province. Leave to appeal was granted to consider the question, whether the employees of the Sindh Provincial Assembly Secretariat are civil servants and can approach the Service Tribunal.

2. The brief facts are that the appellant was appointed as Additional Secretary in the Assembly with effect from 19‑12‑1989 on the basis of the recommendation of Selection Committee through notification dated 24‑2‑1990. On successful completion of his probationary period, he was confirmed in the above post by another notification dated 13‑6‑1990. It seems that while he was serving as such, he received the above impugned order, which he inter alia challenged through the above service appeal, which was dismissed for the above reason as stated hereinabove. Thereupon, the appellant filed a petition for leave to appeal, which was granted to consider the above question.

3. The appellant argued the above appeal in person, whereas Mr. Abdul Ghafoor Mangi, learned Additional Advocate‑General represented the respondents. Since the question involved in the present case related to the status of the employees of the Assembly Secretariat, we requested Mr.Sabihuddin Ahmed, learned ASC to appear as amicus curiae.

4. In support of the above appeal, the appellant has urged that the Tribunal was not justified in holding that the appellant's above appeal was not competent. On the other hand, Mr.Abdul Ghafoor Mangi, learned Additional Advocate‑General Sindh, has urged that the Speaker of the Assembly framed the service rules in terms of Clause (3) of Article 87 read with Article 127 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution, and submitted that the employees of the Assembly including the appellant cannot be treated as civil servants or a person holding a civil post in connection with the affairs of the Province. Mr. Sabihuddin Ahmed, learned counsel appearing as amicus curiae, has submitted that the factum that the service rules have been framed by the Speaker of the Assembly under Clause (3) of Article 87 read with Article 127 of the Constitution is not the determining factor as to the status of the employees of the Assembly as the question in issue is, whether the appellant was covered by the definition of "civil servant" given in Clause (a) of section 2 of the Sindh Civil Servants Act, 1973, hereinafter referred to as the Act. His further submission was that in view of the definition of "civil servant" given in the above provision of the Act and the case‑law of the Superior Courts referred to. by him, the appellant is a member in the service of the Province, who holds a civil post in connection with the affairs of the Province.

5. Before dealing with the above contentions, it may be pertinent to refer to the relevant provisions of the Constitution. It may be observed that Article 127 of the Constitution inter alia provides that Articles 8,7 and 88 shall apply to and in relation to a Provincial Assembly or a committee or member thereof or the Provincial Government. It also provides that any reference in those provisions to Majlis‑e‑Shoora (Parliament), a House or the National Assembly shall be read as a reference to the Provincial Assembly. It may further be observed that Clause (1) of Article 87 envisages that each House shall have a separate Secretariat but it has also proviso to the effect that both the Houses may, have common posts. Whereas Clause (2) of the above Article provides that the Parliament ,may by law regulate the recruitment and conditions of service of persons appointed to the secretarial staff of either House. It may also be pointed out that Clause (3) of the above Article empowers the Speaker or as the case may be the Chairman with the approval of the President, may make rules regulating the recruitment and conditions of service of persons appointed to the secretarial staff of the National Assembly or the Senate until provision is made by the Parliament under above Clause (2) of Article 87.

6. In the present case, the Speaker of the Assembly in exercise of the power conferred by above Clause (3) of Article 87 read with Article 127 of the Constitution framed Sindh Assembly Secretariat (Recruitment) Rules, 1974, hereinafter referred to as the Rules. The Rules provide as to the strength of the Secretariat staff, method of recruitment which includes recruitment by promotion, recruitment by transfer and appointment by direct recruitment. The same also provide qualifications for appointment, appointing authority, probationary period etc. However; Rule 13 of the Rules provides as follows:‑‑ "

13. Matters not specifically provided for.‑‑In respect of all other matters including recruitment policy, eligibility for appointment to a post and the rank, status, seniority prospects of promotion, privileges and the conduct and discipline of the employees for which no provision has been made, in these rules, the ,employees shall be governed by such rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the provincial secretariat subject to such' modifications, variations or exceptions, if any, not amounting to amendments, in such rules and orders as the Speaker from time to time by order specify."

7. It may be appropriate at this juncture to refer to Article 240, the definition of the term "service of Pakistan" given in Article 260 of the Constitution and section 3 of the Sindh Civil Servants Act, which read as follows:‑‑ Section 240 of the Constitution: "

240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined‑‑ (a) In the case of the services of the Federation, posts in connection with the affairs of the Federation and All‑Pakistan Services, by or under Act of Majlis‑e‑Shoora (Parliament); and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly." Definition of "Service of Pakistan" given in Article 260: "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All‑Pakistan Service, service in the Armed Forces and any ‑ other service declared to be a service of Pakistan, by or under Act of Majlis‑e‑Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Advocate‑General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly;" Section 3 of Sindh Civil Servants Act. 1973: "Terms and conditions.‑‑The terms and conditions of service of a civil servant shall be as provided in this Act and the rules."

8. It may be noticed that under above Article 240, it has been provided that subject to Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in case of the services of the Federation and posts in connection with the affairs of the Federation and All‑Pakistan Services by or under the Act of the Parliament, whereas in the case of the services of a Province and posts in connection with the affairs of a Province by or under Act of the Provincial Assembly. It also provides that "service of Pakistan" includes post or office inter alia of a Provincial Assembly but does not include Speaker, Deputy Speaker etc. It may be noticed that section 3 of the Sindh Civil Servants Ad lays down that the terms and conditions of service of a civil servant shall be as provided in the said Act and the rules.

9. The reasoning which found favour with the Tribunal seems to be that since the recruitment of the appellant in service of the Assembly has not been made under any Act of the Assembly and as the terms and conditions of his service are not determined by the above Act or the rules framed thereunder as required under Article 240 of the Constitution, the appellant cannot be treated a member of a civil service of the Province or a person who holds a civil post in connection with the affairs of the Province. The above reasoning does not seem to be relevant for the purpose of present controversy. However, in our view, in order to determine, whether the Tribunal has jurisdiction in the matter in hand, we will have to refer to the definition of the term "civil servant" given in Clause (a) of section 2 of the Act, which reads as follows:‑‑ "(a) `civil servant' means a person. who is or has been a member of the Civil Service of the Province or, holds or has held a civil post in connection with the affairs of the Province, and for the purpose of any proceeding under this Act includes a person who is or 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 the 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 Workmen's Compensation Act, 1923 (VIII of 1923):" According to the above definition, a person who is or has been a member of the civil service of the Province or holds or has held a civil post in connection with the affairs of the Province and for the purpose of any proceeding under the Act includes a person who is or has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority but it does not include the persons mentioned in sub‑clauses (i) to (iii). The question for determination is, as to whether the appellant can be said to have held a civil post in connection with the affairs of the Province. In this regard, it may be pertinent to refer to the case of Begum Tahira Fazal Ahmad v. Home Secretary, Government of West Pakistan PLD 1966 Lahore 446, wherein a Division Bench of the erstwhile High Court of West Pakistan while considering the status of a Provincial Minister quoted with approval the following definition of the word "Government" given in the Black's Law Dictionary, Third Edition:‑‑ "The whole class or body of office‑holders or functionaries considered in the aggregate, upon whom devolves the executive, judicial, legislative and administrative business of the State." It cannot be denied that the appellant was holding a civil post and as the meaning of the word "Government" includes legislative functions, the appellant was holding civil post in connection with the affairs of the Province. In this regard reference may be made to a recent judgment of this Court in the case of Abbas v. The Honourable Chief Justice through the Registrar, High Court of Sindh, Karachi and 2 others 1993 SCMR 715, in which the question for consideration before this Court was, whether the appellant who was an employee of the High Court and who was appointed under the High Court Establishment (Appointment and Conditions of Service) Rules was entitled to invoke the jurisdiction of Sindh Service Tribunal under the Act. It was held that by reading section 26 of the Sindh Civil Servants Act and Article 241 of the Constitution together, the High Court Establishment Rules would be deemed to be rules framed under the Act and for that reason any violation of it would be justifiable before the Service Tribunal. Strictly speaking the facts of the above report are distinguishable as in the present case, rules have been framed in 1974 after the enforcement of the Sindh Civil Servants Act and, therefore, the present rules cannot be deemed to be rules framed under the above Act. However, under Rule 13 of the Rules quoted hereinabove, it has been provided that in respect of all other matters, including recruitment policy, eligibility for appointment to a post and the rank, status, seniority, prospects of promotion, privileges and the conduct and discipline of the employees or which no provision has been made in the rules, the employees shall be governed by such rules and orders as are for the time being in force and applicable to the employees holding corresponding posts in the Provincial Secretariat subject to such modifications, variations or exceptions, if any, not amounting to amendment, in such rules and orders as the speaker from time to time by order specify. In view of the above rule it can be said that the rules framed under the Sindh Civil Servants Act have been incorporated in the rules by reference. In this view of the matter, the reasoning adopted in the above case can be pressed into service in the case in hand. Additionally, it may be pointed out that the Act does not provide any precondition that only a civil servant or a person holding civil post in connection with the affairs of the Province, who has been appointed under an Act of the Assembly and whose terms of service have been determined under the Sindh Civil Servants Act, 1973, can invoke the jurisdiction of the Tribunal. If a person is covered by the definition of "civil servant" given in the Act, he can invoke jurisdiction of the Tribunal. Since the appellant holds a civil post in connection with the affairs of the Province, he is covered by the definition of section 2(a) of the Act for the purpose of invoking the jurisdiction of the Tribunal. The question, whether he will be able to get any relief by showing violation of any statutory rules, would be a matter for determination by the Tribunal. It will not be out of context to refer another judgment of this Court in the. case of Government of the .Punjab through Secretary, Finance Department, Lahore v. Mubarik Ali. Khan and 8 others PLD 1993 SC 375, in which this Court while considering the question, whether the employees of the Lahore, Balochistan and Peshawar High Courts were entitled to secretariat allowance, held that the employees of the High Court establishment would fall within the definition of "service of Pakistan" and have been employed in connection with the affairs of the Province. The relevant observation reads as follows:‑‑ "This definition of service of Pakistan' itself divides those included into it into two broad categories i.e., one of those employed in connection with the affairs of the Federation and the other of those employed in connection with the affairs of a Province. Applying this definition, the employees of the High Court establishment would fall within the definition of service of Pakistan and have been taken to be employed in connection with the affairs of a Province." Reference may also be made to the case of Inspector‑General of Police, Punjab, Lahore and others v. Mushtaq Ahmad Qarraich and others (PLD 1985 SC 159), in which it was held that the Police Rules framed under the Police Act, 1861, continued to be applicable in spite of the enactment of the Punjab Civil Servants Act, 1974, and the rules framed thereunder. The case proceeded on the assumption that the Punjab Service Tribunal had jurisdiction in the matter. The upshot of the above discussion is that the appeal is allowed, the case is remanded to the Tribunal to decide the appellant's appeal on merits after notice to the parties. However, there will be no order as to costs. Before parting with they above discussion we may record our appreciation for the service rendered by Mr. Sabihuddin Ahmed, learned ASC, who has appeared as amicus curiae. M.BA./H‑195/S Appeal allowed.