1. Four employees of Pakistan Broadcasting Corporation (hereinafter called P. B. C.), namely Messrs Abdul Hameed Azmi, Nisar Ahmed Sheikh, Ghulam Rabbani and Mahmood Ahmad, have filed Appeals No. 78 to 81 (R)/76 against rejection of their representations vide Memo, No. PER-II/II (4)/76, dated 29th March 1976, demanding fixation of their pay in P. B. C. On the strength of presumed entitlement to National Pay Scales enforced with effect from 1st March 1972, vide Notification dated 18th August 1973. Common prayer of these appellants is that they being civil servants, still were entitled to the privilege. Mainstay of the respondents in that appellants were no longer civil servants and hid ceased to be so with effect from the 20th December 1972, on promulgation of Act of 1973 and Notification made under section 12 of the aforementioned Act.
2. Brief admitted facts are that each of the appellant was a gazetted Government servant in the employment of Radio Pakistan on 20th December 1972, when P. B. C. Act XXXII of 1973 was promulgated entitling the Federal Government to transfer such persons to the newly created Corporation on the same terms and conditions, to which they were entitled, immediately before such commencement. Section 12 creating right of transfer has been subject of interpretation on analogy of similar provisions in other enactments. 2t is necessary to give full text of section 12 which runs as under :---- "Transfer of Radio Pakistan servants to the Corporation.-(1) Notwithstanding anything to the contrary in any contract or .Agreement of in the conditions of service, the Federal Government may, subject to the provisions of subsections (2) and (3), transfer persons in the service of Pakistan and serving in connection with the affairs of the Department of the Government of Pakistan headed by the Director --General Radio Pakistan, hereinafter referred to as Radio Pakistan, immediately before the commencement of this Act, including persons on deputation to other organisations in Pakistan or abroad, to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement.
(2) Notwithstanding anything in subsection (1), only such members of the Information Service of Pakistan serving Radio Pakistan immediately before the commencement of this Act shall be transferred to the Corporation as opt for service in the Corporation.
(3) The persons transferred to the Corporation under subsection (2) shall, on such transfer, cease to be members of the Information Service of Pakistan.
(4) The terms and conditions of service of the Members of the Information Service of Pakistan transferred to the Corporation under subsection (2) shall not be altered by the Corporation to their disadvantage.
(5) No person in the service of Pakistan who is transferred to the Corporation under subsection (1) shall, notwithstanding anything contained in any law for the time being in force, be entitled to any compensation because of such transfer."
3. A notification was issued whereby the four appellants alongwith others were transferred to the Corporation. At the time National Pay Scales had not been enforced with respect to gazetted civil servant of the Federal Government. Their enforcement was notified on 18th August 1973, when the appellants were with P. B. C. Out of appellants Mr. A. H. Azmi and Mr. Ghulam Rabbani who were drawing pay in the scale of 700-50-1,500 and Rs. 900-75-1,500 were allowed pay scale of Rs. 1,400- 80-1,960 and Rs. 1,400-80-1,800 as against national pay scale which would have amounted to Rs.
4. 1,000-75-1,750. In the case of Mr. Mahmood Ahmad too, the offered pay was a definite improvement on the national pay scale. Mr. N. A. Sheikh is the only person who has suffered due to his transfer because in his case national pay scale is better than P. B. C. Scale, yet he also gained on existing pay scale of 19th December 1972.
5. Appellants claim dual advantage of National Pay Scale and P. B. C. Scale for reason of character of their employment and transfer to P. B. C. Corporation in consultation with the Finance and Information Divisions of the Federal Government declined to accede to the request and hence this appeal.
6. Principally the respondents rely on present character and status of employment. They consider the appellants to be Corporation employees with no right to approach the Tribunal, or to claim the National Pay Scale. Government has besides questioned entertain ability on the ground of limitation.
7. At the arguments stage disputation was confined to character of employ--ment alone. Counsel for appellants confined himself to the status of appellants as civil servants denying any change therein, for reason of transfer under section 12 of the P. B. C. Act, 1973. He developed his argument of consistent status on the analogy of section 17 of WAPDAI Act. He averred that if transfer from Electricity and Irrigation Department of employee to WAPDA did not change character of the employment, similar presumption should be drawn in the case of transferees to P. B. C. He has also pressed into service 1971 SCMR 454 with regard to Road Transport Corporation employee who was held to have constitutional protection as a government servant. Another ruling cited by him is with respect to Electricity Department employees in service under WAPDA. The citation is PLD 1967 Lah. 976.
8. Unluckily the learned counsel for the appellant has not adverted to two relevant sections i.e. Section 12 of P. B. C. And section 17 unamended of WAPDA Act to substantiate his stand. The neglect, however, has not suffered us to overlook the relevant provisions found mentioned in PLD 1967 Lah.
796. It is given in full and interpreted on page 801 as under :-- The High Court opined that the plain reading of the above provision leaves no manner of doubt that the Government remains the ultimate employer of the petitioner and others similarly placed with him. The section according to the judgment seeks to create liability of an employee to serve the Authority when required to do so. It was distinguishable from the automatic transfer to the authority under force of a statute itself. The learned counsel for the appellant interprets it to mean that if statute itself contemplates transfer, the employee would cease to be civil servant but if something else is to be done to complete the transaction, he would remain a civil servant. He has tried to overlook that under section 12 of P. B. C. Act, a Government's right to transfer was established, Government was created as a delegatee and when provisions of law visualised such a delegation, the moment contemplated right is exercised it shall be deemed to have been under the provisions of the Act itself: Mere delegation will not make it synonymous with liability of service created under WAPDA Act. Other provisions of section 17 similarly distinguished the character of electricity Department transfers from impugned liability. For instance Government retains the powers to regulate administrative and disciplinary action of the authority and terms and conditions of service were to be continued and not varied to the disadvantage of the employee.
9. Section 12 of the P. B. C. Act has different terms in view. All that is said therein, is that terms and conditions applicable to an employee at the time of transfer shall not be varied. District import of the two provisions further adumberated by the Government Notification No. ADSEC/IOW/28-3/69 dated 28th March 1959, does not permit a comparison. WAPDA Act clearly reserves a right in the Government of final authority, no such reservation exists under P. B. C. Act. Divergence of the two enactments on this issue is too evident to be ignored.
10. The other authority 1971 SCMR 454 weighs more heavily against appellant's interpretation. It rather fortifies P. B. C. Stand. Appellants counsel depends on the conclusion that a Government employee serving with Road Transport Corporation was held to retain status but has to notice that there was no transfer order in his case nor was he ever absorbed in the Road Transport Corporation. Consequently there is no parallel between facts of the two cases to justify an assumption. Learned counsel for the respondents Nos. 1 to 3 rightly contends that in converse circumstances of transfer, the character changes altogether to justify rejection of the appeals.
11. There is another ground which inclines us to accept respondent's interpretation. Subsection (5) of section 12 mentions question of compensa--tion. The transfer would not entitle any employee to compensation. It creates a liability without right. Of reversion, yet declines right to compensation which would normally ensue.
12. Another ancillary fact may also weigh against the appellant, It is the statutory rule issued on 27th March 1974, whereby the Government accepted the liability to pension and gratuity up to 19th December 1972 (i.e. a day prior to date of transfer) only, clearly delineating the intent behind transfer. It was a final act whereafter the relationship between employees of Radio Pakistan and the Federal Government ceased to exist. Govern--ment washed off its hands from all liabilities and rights with respect to its former employees. The intent so reflected is clearly distingu--ishable from the provisions of section 17(1) of the WAPDA Ordinance wherein Government retained the right to be final arbiter with respect to employees of Electricity and Irrigation Department transferred to WAPDA. The only conclusion possible, therefore, is that the appellants ceased to be civil servants on 20th day of December 1972. They are no longer civil servants within the meaning of section 2 and have no right to approach the Tribunal.
13. Amendment of section 2, as to persons who nave been civil servants will not avail. The Tribunal will be confined to tights and entitlements as existent on 20th December 1976. Crucial date being determined by a statute (P. B. C. Act). On the said date National Pay Scale with respect to gazetted Government servants had not been enforced, so they were not deprived of any justiciable right; Notification of 18th August 1973, being applicable to persons who were in employment as such on the date of Notification. The appellant not being there they cannot claim National Pay Scale because the only existing civil servants could opt for the privileges.
14. If P. B. C. Has made certain invidious distinction, it is not for us to scrutinize, it being a Corporation. If any .Authority as needed 1971 SCMR 868 can be referred to with advantage. It clutches the point that Corpora--tion employees do not hold any post with respect to the affairs of the Federation.
15. As regards employees of Grades 1 to 5 the answer is very evident. Government has allowed them the National Pay Scale because they were in service of Pakistan at the time when National Pay Scales were enforced with respect to non-gazetted employees. No argument in the premise shall avail.
16. The net conclusion is that appellants are no longer civil servants and not being so on 18th August 1973, were not entitled to National Pay Scales. Therefore, the Corporation was not bound to take into consideration any presumed advantage that should have accused to the appellants. These were not the prevailing terms and conditions available at the tune of transfer and cannot be deemed to have been protected by section 12 of the P. B. C. Act, 1973. The appeals are, therefore, dismissed with costs of Rs. 50 in each case.