' MUHAMMAD NAWAZ ABBASI, J.---This appeal under Article 212 (3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment dated 5-5-2003 passed by the Federal Service Tribunal, Islamabad whereby the appeal filed by the appellant, an employee of National Institute of Science and Technology Education, an Organization set up by the Ministry of Education, Government of Pakistan, wherein he sought declaration that he was entitled to the payment of pensionary benefits/gratuity admissible to the government servants under the service laws, was dismissed.
2. Leave was granted in this appeal vide order dated 17-6-2005 as under:-- "Leave to appeal is granted inter alia to determine:--
(i) As to whether petitioner was a civil servant for the purpose of claiming pensionary benefits etc.?
(ii) As to whether the petitioner has been discriminated because one of the employees of same department Muhammad Aslam Ch. Director Research and Evaluation has been given pensionary benefits? And (iii)What would be the effect of the judgments of this Court reported in (i) Saeed Rabani v. Director General Leather Industry Development Organization and another (PLD 1994 SC 123); (ii) C.As. Nos.
1704 to 1715 of 2003 and (iii) C.A. No,2 of 1996?
2. Appeal is to be prepared on the same record with opportunity to parties to file additional documents if need be in accordance with the rules. To be fixed after summer vacations".
3. The facts in small compass in the background giving rise to this appeal are that appellant, initially joined National Education Commission (NEC), in 1987, an institution of M/o Education, established by a Resolution and later on abolition of NEC in 1995, he was absorbed as Director in the institute for promotion of Science, Education and Training (IPSET), set up by a resolution of M/o Education. Subsequently, the institution of IPSET, and Organization of Technical Teaches College (NTTC), also set up by a resolution of the Ministry of Education were merged into National Institute of Science and Technology Education, (NISTE). The appellant with eight years service as Director (B-18) in NEC was absorbed in (IPSET) and thereafter in NISTE in the same grade in 1997 from where, he on attaining the age of superannuation, stood retired from service in 2000 and in this way, he served in the above institutions of the Ministry of Education Government of Pakistan for a total period of about 13 years. The claim of the appellant was that the status of the employees of the above institutions was at par to that of the employees of the Federal Government, therefore, he was entitled to the benefit of pensions and gratuity admissible to the employees of the Federal Government but his claim regarding the pensionary benefits was rejected by the competent authority vide order dated 27-10-2000, whereupon he filed an appeal before the Secretary, M/o Education and pending disposal of the appeal, on the instructions of the concerned Ministry vide letter dated 30-4-2001 he consented for refund of C.P. Fund/gratuity on the assurance given to him for grant of pensionary benefits. However, subsequently, on rejection of the departmental appeal filed by him vide order dated 10-1-2002, on the ground that he had not rendered service qualifying for pension and there was also no pension Scheme for the employees of the Institution of NISTE in the field, he filed appeal before the Federal Service Tribunal which was dismissed on the ground that the employees of (NISTE), and of such other government Organizations, established by way of Resolution, have been awarded the status of civil servant for the limited purpose, by insertion of section 2-A in the Service Tribunals Act, 1973 and in absence of any pension scheme of the employees of these institutions, the appellant could not claim the benefit of pension under the pension scheme of the Government.
4. The learned counsel for the appellant has contended that the, institution in which appellant was employed undoubtedly, was established by a resolution but the status of the employees of this institution in the light of law laid down by this Court would be at par to that of the government employees and they would be deemed to be civil servants not only for the purpose of section 2-A of the Civil Servants Act, 1973 but would also be considered civil servant in terms of section 2(b) of the said Act to claim the benefit of pension and gratuity admissible to the government employees.
The learned counsel placing reliance on Mr. Arshad v. Miss Naeema Khan PLD 1990 SC 612, Saeed Rabbani v. DG. LIDO PLD 1994 SC 123, Dr. Rashid Anwar v. Federation of Pakistan 1996 SCMR 1572, Secretary Ministry of Science and Technology v. Nasrullah 1998 PLC (C.S.) 1033; Nuran Shah Sarhadi v. Chairman, Pakistan Academy of Letters, Islamabad PLJ 2000 Tr.C. (Services 159), has submitted that employees of an institution or organization established by the government by a resolution for discharging functions in connection with the federation, are deemed to be in the service of Pakistan and a person in service of Pakistan by virtue of section 25 of the Civil Servants Act, 1973 may acquire the status of civil servant for all practical purposes including the pensionary benefits on retirement in terms of section 19 of the Civil Servants Act, 1973 read with Civil Service Regulation Nos.361, 371-A, and 474 on the subject.
5. Learned Deputy Attorney General on the other hand has contended that the institutions in question were established by the Resolutions of the Ministry of Education, Government of Pakistan, and the employees of these institutions in the matter of terms and conditions of their service, would be governed by the relevant resolutions and not by the rules and regulations framed under Civil Servants Act, 1973 applicable to the government servants. The learned D.A.-G. Argued that the employees of the organizations, corporations, institutions, or statutory bodies controlled by the.
Federal Government were awarded the status of civil servant by insertion of section 2-A in Service Tribunals Act, 1973, for the limited purpose of providing them remedy of appeal before the Service Tribunal against the order of departmental authorities in respect of their terms and conditions of service being governed by the Service Rules of such organization without treating them at par to the employees of Federal Government for any other purpose or civil servant in terms of section 2(b) of Civil Servants Act, 1973.
6. Article 240 of the Constitution provides that subject to Constitution the appointments to and the conditions of service of persons in the services of Pakistan shall be determined, in the case of the services of the Federation, post in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Parliament. The explanation to this Article says that "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by an Act of Parliament. In pursuance of Article 240 of the Constitution, Civil Servants Act, 1973 was enacted by the Parliament, therefore, it would be appropriate to reproduce the relevant provisions of the said Act for the proper appreciation of the contentions raised by, the learned counsel for the parties in this appeal.
' The expression "civil servant" has been defined in section 2(b) of Civil Servants Act, 1973 as under:- -
(b) "Civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in, connection with the affairs of the Federation, including any such post connected with defence, but does not include-
(i) a person who is on deputation to the Federation from any Province or order authority;
(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)"
Section 5 of the ibid Act deals with the appointment in the Service of Pakistan which provides as under:- "Appointments to an All-Pakistan Service or to a civil Service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf."
7. This Court in Mr. Arshad v. Miss Naeema Khan, PLD 1990 SC 612, (supra), having determined the status of Organizations, Corporations and Institutions has held that such bodies could be created by an executive order or by an instrument under the authority delegated by an Act of Parliament and in the light thereof the essential question requiring determination would be whether the employees of NISTE, an institution set up by the Federal Government by a resolution, are holding the posts in connection with the affairs of federation and were civil servant in terms of section 2(b) of the Civil Servants Act, 1973 or not. The plain answer to the above question, subject to any exception, would be in the negative. However, the above proposition involved in this case was considered by this Court in Saeed Rabbani v. Director General Leather Industry Development Organization and another PLD 1994 SC 123 wherein the controversy was as to whether the employees of Leather Industry financed by the Government of Pakistan under the authority derived from the Constitution and placed under the administrative control of the Ministry of Industries were holding the civil posts or not. It was held that "the employees hold a civil posts in connection with affairs of the Federation". In Muhammad Aslam and 9 others v. Secretary to Government of Pakistan, Ministry of Science and Technology, Islamabad and others 1998 SCMR 1160 it was held that the employees of Pakistan Council of Research in Water Resources set up by Resolutions of the Government were .Civil servants. In Mrs. M.N. Arshad v. Naeema Khan PLD 1990 SC 612 the question of inception of corporations etc., was involved and it was declared that Establishment of College in Islamabad by Federal Government was in the discharge of Constitutional/statutory obligations of the State, therefore, the teachers appointed by Federal Government in the Colleges were holding civil post in connection with the affairs of the Federation. In Dr. Rasheed Anwar v. Federation of Pakistan 1996 SCMR 1572 while determining the question regarding the status of doctors employed in Pakistan Institute of Medical Sciences it was held that doctors employed in the Institution were civil servants and so were the other in other Government hospitals. In Mir Ahmed Khan v. Secretary to Government and others 1997 SCMR 1477 the question regarding the status of employees of Afghan Refugees Corporation as civil servant to claim the benefit of pension was involved. The word 'civil servant' was answered in Civil Appeal No,22(P) of 1988, Commissioner Afghan Refugees, N.-W.F.P.
And others v. Fazal Hakim and vide judgment dated 3-12-1990, it was held by this Court as under:-- "Another ground which was raised during the course of the hearing of the appeal but not noted in the leave granting order was that the respondent could not be treated as a Federal Government employee and had to be dealt with under the Provincial Law being for all purposes governed by the Civil Servants Act of the Province of N.-W.F.P. We find at page 21 of the Service Tribunal's record a determination of the Government of Pakistan, States and Frontier Regions Division, dated 21st March, 1982, wherein it was made clear that the posts were civil in nature, were connected with the affirms of the Federation and were to be paid from the Federal Budget and the employees were to be Federal Government employees, and governed by rules applicable to the Federal Government employees.
' The Federal Service Tribunal itself in Appeal No, 123(R) of 1991 M/s Muhammad Iqbal and Mr. Minollah, held the employees of the Afghan Refugees Organization as civil servants within the meaning of Civil Servants Act, 1973.
' In this view of the matter, the appellant and other employees of the Afghan Refugees Organization are Government Servants and they are entitled to pensionary benefits of their cases are covered by Regulation No,371-A of the Civil Services Regulation which reads:--"
8. The status of employees of Afghan Refugees Organization established by the Government of Pakistan as civil servant was disputed on the ground that since the expenditures on the payment of their salaries etc. Were being borne out by United Nations High Commissioner for Refugees and not Government of Pakistan, therefore they were not civil servants to claim the pensionary benefit available to government servants. The contention was repelled by this Court with the observation that employees of Afghan Refugees organization were civil servant and were entitled to get pension in terms of Regulation CSR 371-A.
9. In the light of statutory provisions and the law laid down by this Court, it is clear that the employees of the institutions of NEC, IPSET and NISTE which was established by the Resolutions of the Federal Government were discharging the functions in connection with the affairs of the federation and may be holding civil posts in terms of Article 240 of the Constitution but may not be ipso facto treated civil servant in terms of section 2(b) of the Civil Servants Act, 1973 for the purpose of the terms and conditions of service at par to the employees of the Federal Government.
10. The Institutions having been set up by the Ministry of Education were under its direct control and the employees of these institutions have been awarded the status of civil servant for the purpose of availing the remedy of appeal before the Service Tribunal in respect of their terms and conditions of service.
11. However, Ministry of Education in the Federal Government vide Notification dated 25-2-2004, issued in pursuance of the judgment of this Court, recognized the employees of NISTE as civil servants in terms of section 2(b) of the Civil Servants Act, 1973 and notwithstanding the fact that the Institution was set up by a resolution under the authority of Federal Government, its employees were awarded the status of civil servant for all intents and purposes and were being treated at par to that of employees of Federal Government without any distinction. The notification referred to above is reproduced hereunder:-- "No, F.35/2002-SE-1. In pursuance of the Supreme Court judgment in Civil Appeals Nos.154 and 155 of 1988, the employees of National Institute of Science and Technical Education (NISTE) Islamabad, an institute which resulted on merger of two defunct resolute bodies namely; National Technical Teachers Training College (NITTC) and Institute for the Promotion of Science Education and Training (IPSET), established vide Resolution No, F.I-4/81-PD (NITTC) dated 10th March, 1982 and Resolution No,F2-/86-SC-1 dated 7th June, 1987, respectively, as amended from time to time, are deemedto be Civil Servants till such time as the future status of National Institute of Science and Technical Education (NISTE), Islamabad is determined in consultation with Management Services Wing of Establishment Division.
(Sd.) (Nasir Ahmad)
Assistant Educational Adviser"
' In consequence thereto the real question requiring determination would be whether in absence of any separate Scheme of pension introduced for the employees of NISTE, the appellant by virtue of the notification referred above, on retirement would be entitled to claim the pensionary benefit under the pension scheme of the Federal Government. The institution having been established by resolution of the Federal Government was placed under the administrative control of the Ministry of Education and was accordingly, managed and financed by the Federal Government. The employees of the institution were also recognized as civil servant by the Ministry vide notification in question for all practical purposes and consequently, they would be entitled to the pensionary benefits under the relevant rules read with Regulation No, 371-A of Civil Service Regulations which provided as under:-- .
"371-A. Notwithstanding, anything contained in Articles 355(b), 361, 368 and 371 of these Regulations, temporary and officiating service in the case of Government servants who retired on or after 1st January, 1949 or who joined service thereafter shall count for pension according to the following rule:
(i) Government servants who have rendered more than five years continuous temporary service shall count. Such service for the purpose of pension or gratuity excluding broken periods of temporary service, if any, rendered previously, and
(ii) Temporary and officiating service followed by confirmation which does not qualify for pension under the rules in this section shall also count for pension or gratuity subject to the exclusion of the broken periods of temporary or officiating service, if any."
12. The Civil Service Regulations may not strict senso be applicable to the employees of all Government controlled bodies, Organizations, Corporations and Institutions rather these Regulations would be applicable either to the civil servants who are governed by Civil Servants Act, 1973 or to the employees of the institution, who have been awarded the status of civil servant in terms of section 2(b) of Civil Servants Act in respect of their terms and conditions of service. The Tribunal in the present case proceedings on the assumption that the employees of statutory bodies or Corporation or Companies incorporated under the Companies Ordinance controlled by the government are not civil servant as envisaged in section 2(b) of Civil Servants Act, 1973, held that appellant was not entitled to claim pensionary benefits admissible to the government servants.
13. The position of the employees of the Institution was different to that of the employees of government controlled organizations who were awarded status of civil servant by virtue of section 2-A of the Service Tribunals Act, 1973 for a limited purposes to provide them the remedy of appeal before the Service Tribunal in respect of their terms and condition of service. The purpose of insertion of section 2-A in the Civil Servants Act, 1973 was to provide a forum to the employees of the government controlled Organizations against the orders passed by the competent authorities in their Organization detrimental to their terms and conditions of service and also reduce the litigation before different forums, therefore the employees of such Organizations were not given the status of civil servant to be treated at par to the employees of the government in the matter of their terms and conditions of service whereas the employees of NISTE were given status of civil servant in terms of section 2(b) of the Civil Servants Act, 1973 by way of special notification issued by the Ministry of Education, Government of Pakistan. In the light of the above distinguishable features of the employees of NISTE to that of the employees of other government controlled organizations, they would be enjoying the status of civil servant for all purposes and would be entitled to claim the pensionary benefit under the pension scheme of Federal Government.
14. The assertion of the respondent that appellant having withdrawn C.P. Fund with interest under C.P. Fund Scheme of NEC, would not be justified to claim the pensionary benefits, has no substance.
The organization was set up by a resolution of the Federal Government and being under direct control of M/o Education, was supposed either to frame its own rules in consonance with the rules framed under Civil Servants Act, 1973 or adopt the rule framed thereunder, therefore notwithstanding the introduction of Scheme of C.P. Fund contribution, the right of pension of the appellant admissible under the rules applicable to the civil servants, subject to the surrender of benefit taken under the C.P. Fund Scheme would remain intact. The learned counsel for the appellant has informed us that the appellant had already consented for return of the amount received by him as C.P. Fund contribution and has also brought to our notice that in similar circumstances, Nuran Shah Sarhadi, an employees of Pakistan Academy of Letters, an Organization established by a Resolution of Ministry of Education, was allowed the pensionary benefits.
15. The learned Deputy Attorney General has not been able to controvert the above legal and factual position or distinguish the case of appellant to that of the employees of Pakistan Academy of Letters referred above.
16. In the light of foregoing discussion, we hold that the pensionary benefits would be admissible to the appellant, under the relevant rules subject to Civil Service Regulation No,371-A referred to above. This appeal is accordingly allowed with no order as to the costs.