' TANVIR AHMED KHAN, J.---Leave to appeal is sought against the judgments dated 11-9-2000 and 24-4-2002 whereby the Punjab SerVice Tribunal, Lahore (hereinafter referred to as the Tribunal), dismissed the appeals filed by the petitioners being not maintainable in View of Article 208 of the Constitution of the Islamic Republic of Pakistan, 1973.
2. The facts briefly narrated in Civil Petition No,2666/L of 2000 are that the petitioner Muhammad Siddique joined the Lahore High Court as a Junior Clerk in the year 1981. On a complaint made by one Muhammad lqbal before the Registrar of the High Court that the petitioner was demanding illegal gratification for early fixation of a Writ Petition bearing No,6847 of 1990, a raiding party was constituted and a currency note of Rs,100 denomination duly initialled by the Registrar was given to the complainant for passing on the petitioner. Thereafter the complainant approached the petitioner and paid him the money which was subsequently recovered from his front pocket by the raiding party. He was charge-sheeted and was ultimately removed from service through ah order dated 23-4-1991 passed by the Registrar, Lahore High Court. The petitioner filed a departmental appeal provided under the. Rules and the learned Administrative Judge through his order dated 13- 1-1992 dismissed the same. A further mercy petition preferred before the Hon'ble Chief Justice was also dismissed on 16-2-1992. Thereafter he approached the Tribunal through an appeal, which was dismissed being not maintainable under Article 208 of the Constitution through the impugned order dated 11-9-2000. Hence, this petition for leave to appeal.
3. The brief facts in Civil Petition No,1875/L of 2002 are that the petitioner alongwith others undertook a departmental test on 12-1-1985 to fill up the posts of Assistant under Rule 9(2) of the High Court Establishment Rules. He qualified the test and according to his own showing, he secured fourth position in the merit list. Initially when the test was conducted there were only two vacancies of Assistant but subsequently another vacancy fell vacant. Accordingly, the first three candidates from the merit list were accommodated. The petitioner made a grievance that later on five posts of Assistant fell vacant in Multan and Rawalpindi Benches of the High Court and another test was held region-wise to accommodate the same. However, in spite of the fact that he secured fourth position in the earlier test, he was not accommodated and some other persons were adjusted.
Being aggrieved by this he made a representation before the Registrar who, through an order dated 13-7-1985, rejected the same and asked him to sit in the test. He filed a departmental appeal before the Administrative Judge, which too was rejected through an order dated 4-8-1985. Against the above order, the petitioner filed an appeal before the Tribunal, which has been dismissed through. An order dated 24-4-2002 being not maintainable in view of Article 208 of the.
Constitution. Hence, this petition for leave to appeal.
4. The common question, as argued by the learned counsel for the petitioners, involved in these petitions is, whether the Tribunal has got the jurisdiction in the matter in view of the bar contained in Article 208 of the Constitution.
5. We have considered the contentions advanced by the learned counsel for the parties and have gone through the documents appended with these petitions with their assistance. The crucial question in this case is, whether the employees of the Lahore High Court are civil servants. If the answer is in the affirmative, then the Service Tribunal has got jurisdiction to determine their terms and conditions. The term "civil servant" has been defined in section 2(1) of the Civil Servants Act, 1973 (hereinafter referred to as the Act). Article. 240(b) of the Constitution has provided as under:-- "240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined---
(a) ...............................................
(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."
6. In the above Article the word "civil servant" has not been used. The Constitution makers have purposely used the words "service of Pakistan" which have been defined in Article 260 of the Constitution which means any service, post or office in connection with the affairs of the Federation or of a Province etc. Article 208 of the Constitution provides as under:-- "208. The Supreme Court and the. Federal Shariat Court, with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employments."
7. As already stated, in Article 240 of the Constitution which has given mandate to the Provincial Assembly to make laws qua the terms and conditions of the Provincial employees in the service of Pakistan is subject to the Constitution, meaning thereby, that respecting the employees of the High Court, the Provincial Assembly would not have any jurisdiction to make laws in view of Article 208. In pursuance to Article 240 of the Constitution, Punjab Civil Servants Act has been framed and section 2(1) of the same provides the definition of "civil servant". The expression "service of Pakistan" would be applicable to only those who come within the ambit of section 2(1) of the Act. It can be stated that all civil servants are members of service of Pakistan but all members of service of Pakistan are not civil servant and the provisions of the Civil Servants Act as well as of the Service Tribunals Act would not be attracted to in their cases. In this regard it would be appropriate to first refer to 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 there was a dispute qua the grant of Secretariat Allowance to the employees of the Courts. These employees were held entitled to the grant of the same on the strength of Rule 22 of the High Court Establishment (Appointment and Conditions of Service) Rules as, according to the aforesaid rule, in case of leave, pension etc. It was provided that in respect of salary, allowance, leave or pension, the members of the High Court establishment shall be governed by Punjab Civil Servants Rules as amended from time to time. It was held that on the strength of the adoption by the High Court of the Provincial Government Rules respecting certain matters qua salary and allowances, the employees of the High Court were also entitled to the same. Furthermore, it was held that the same was violative of Article 25 of the Constitution which guarantees equal protection of law to all the citizens. In the above case while deciding the issue of Secretariat Allowance the learned Judges of the High Court came to the conclusion that the employees of the Provincial High Court are not civil servants for the purposes of Civil Servants Act and the Service Tribunals Act. This Court upheld the above view. It would be appropriate at this stage to reproduce the determination of this Court, which is in the following terms.
"In the contest of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Court the legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary in the case of Supreme Court Employees Welfare Association v. Union of India and others (AIR 1990 SC 334). In exercise of this or its predecessor provision both the Supreme Court and the High Court have framed Rules."
8 . The aforesaid case came under consideration in Registrar, Supreme Court of Pakistan, Islamabad v. Qazi Wali Muhammad (1997 SCM R 141) in which this Court also took into consideration the case of Abbas v. Hon'ble Chief Justice (1993 SCM R 715) and Hadi Bakhsh v. Government of Sindh (PLD 1964 SC 532) relied upon by the petitioners. After discussing the above two cases it was held that the ratiq of the case of Mubarik Ali Khan (supra) had unequivocally laid down that the employees of the Provincial High Court were not civil servants. It would be appropriate to reproduce the same which was made after discussing both the above cases:-- "The ratio in Mubarik Ali Khan's case, supra, however, unequivocally laid down that persons employed in the Provincial High Courts were not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act. This ratio in Mubarik Ali Khan's case supra, has not been dissented so far in any other subsequent judgment of this Court. We may also mention here that Mubarik Ali Khan's case, supra was decided by a Bench of this Court which consisted of 5 learned Judges while Abbas's case and Hadi Bux's case, supra, were decided by the Benches of this Court which consisted of only 3 learned Judges of this Court in each case. It is also pertinent to point out here, that in Abbas's case, supra, this Court refused to go into the question, whether the employees of the Sindh High Court were civil servants or not within the meaning of Sindh Civil Servants Act for the reasons that the appellant had himself chosen to invoke the jurisdiction of the Tribunal in that case and that the leave was not granted on this point".
"The status of persons employed in the Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and whose terms and conditions were governed under the rules framed by virtue of Article 208 of the Constitution directly arose in the case of Government of Punjab v.
Mubarik Ali Khan, supra, and the view taken by the High Court in that case that the employees of the Provincial High Court, Lahore, do not fall within the category of civil servants as defined in the Civil Servants Act was approved by this Court as follows:-- ' The view taken by the High Court that the employees of the Provincial High Courts are not civil servants for the purpose of Civil Servants Act and Service Tribunals Act is correct.'
' It was also observed by this Court in Mubarik's case, supra, that the Legislature was not given any role to determine the terms and conditions of the employees including their remunerations and this exclusionary rule was found in conformity with the concept of independence of judiciary as enshrined in the Constitution' ."
9. It is pertinent to mention here that the pari materia Articles were incorporated qua the terms and conditions of the employees of the Courts in 1962 and 1973 Constitutions which are as under:-- "Article 208 of the 1973 Constitution provides as hereunder:-- "208. Officers and servants of Courts.---The Supreme Court and the Federal Shariat Court, with the approval of the President and a High Court, with the approval of the Governor concerned, may make rules providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employments."
14. In the 1962 Constitution, Article 127 dealt with similarly with the same subject, as hereunder:-- "127. Officers and servants of Court.---(1) in this Article, 'Court' means the Supreme Court or a High Court.
(2) A Court may (with the approval of the President in the case of the Supreme Court, and of the Governor. In the case of a High Court) make Rules providing for the appointment by the Court of officers and servant of the Court, and for their terms and conditions of employment."
10. The terms and conditions of the High Court employees are governed by the High Court Establishment (Appointment and Conditions of Service) Rules contained in Chapter 10 of the High Court Rules and Orders, Volume V. Rule 24 of the said Rules provide that an appeal shall lie against an order of the Registrar to the Administrative, Judge in accordance with Schedule II thereof. The above Rules are existing laws which were adopted by the Administration Committee of the Lahore High Court in its meeting held on 7-1-1964. Apart from this, appeal is a substantive right of an employee which is the creation of the statutes and does not confer any right that had never existed. The petitioners in these cases have exhausted the remedy of appeal provided under the High Court Establishment Rules. Admittedly they are not civil servants as such the provisions of Civil Servants Act as well as of Service Tribunals Act would not be attracted to in their case. No illegality, in the circumstances, has been committed by the Tribunal in dismissing their appeals on the point of jurisdiction.
11. The upshot of the above discussions is that both the above petitions are dismissed and leave refused.