Iftikhar Muhammad Chaudhry, C.J.--In Appeals Nos, 792 of 2005 and 148 to 167 and 174 to 178, etc. appellant questioned the judgment dated 27th November 2004, passed by Federal Service Tribunal. Relevant para therefrom reads thus:-- "11. The upshot of the whole discussion is that the appellant is a civil servant in terms of Section 2 (i)
(b) of the Civil Servants Act, 1973 and Section 2-A of the Service Tribunals Act, 1973 and therefore, can invoke the jurisdiction of this Tribunal for redressal of his grievance in respect of his terms and conditions of service. The FST's jurisdiction in the PAF Educational Institutions has been recognized by the Hon'ble Supreme Court in its judgments referred to earlier. The fact that the Appellant is considered as a civil servant for limited purpose for invoking the jurisdiction of this Tribunal, he will not be automatically entitled to all the benefits of rules, regulations which govern the civil servants Appellant shall be governed by the terms and conditions of service as laid down in AFM-540, which he accepted at the time of joining of service and any violation of the terms and conditions contained in the said Manual and if he is adversely affected he can approach the FST for redressal The perusal of the AFM also indicates that some Government rules have been adapted by the PAF for application in these Institutions and now form part of AFM No, 54-2. The employees of these Institutions shall be governed by those adopted Government rules by the Respondents and therefore, the plea of the Appellant is accepted to that extent. All the Government rules and regulations governing civil servant which do not form part of the AFM No, 54-2 cannot be made applicable to him till these are adopted by the PAF Management Committee for these Institutions.
Furthermore, having accepted the terms and conditions of his appointment letter Appellant is estopped from requesting for ipso facto application of Government rules and regulations to him."
2. After hearing parties counsel, leave to appeal was granted, inter alia, to examine following questions:--
(1) Whether or not the teachers/employees of PAF Educational Institutions managed by the Managing Committees or bodies are civil servants under Section 2(1)(b) of the Civil Servants Act, 1973 or for the purpose of Section 2-A of the Service Tribunals Act, 1973?
(2) Whether employees/Teachers of PAF Educational Institution can invoke the jurisdiction of the Tribunal as well as of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan.
(3) The question of validity and vires of Section 2-A of the Service Tribunals Act, 1973 on the touchstone of Article 212 and other provisions of the Constitution of Islamic Republic of Pakistan.
3. It may be noted that above questions, particularly the question cited at Sr. No, 3, was likely to affect a large number of cases of the employees who are deemed to be civil servants under Section 2-A of the Service Tribunal Act, 1973 [herein after referred to as "STA, 1973"], therefore, Constitution of larger bench was considered appropriate and office was directed to club all identical petitions and appeals for disposal by means of an authoritative pronouncement on the subject. Learned Attorney General for Pakistan was also asked to assist the Court, as different Constitutional provisions were likely to come under examination.
4. Learned counsel for the parties argued as follows:--
6. Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that--
(a) Ultimate Constitutional objective is to establish an egalitarian society, and if there was a sufficient public law element, then the concept of master and servant will not be applicable.
(b) Section 2-A of the STA, 1973 should be saved, instead of destroying it as it is well settled that the Court must act in favour of upholding the Constitutionality of a legislation.
Reliance in this behalf has been placed on Gunton v. London Borough of Richmond upon Thames [1980) 3 All ER 577, R v. Civil Service Appeal Board [1988] 3 All ER 686, Inamur Rehman v. Federation of Pakistan (1992 SCMR 563) and Farasat Hussain v. Pakistan National Shipping Corporation (2004 SCMR 1874).
(c) If ultimately, this Court comes to the conclusion that Section 2-A is ultra vires of the Constitution, the judgment being pronounced on its Constitutionality shall be declared to have application prospectively.
(d) This Court is always fully empowered to provide guidelines on the issues to the Federation of Pakistan under the circumstances of the case.
Reliance in this behalf has been placed on Workers of M/s: Rohtas Industries Ltd. v. Rohtas Industries Ltd. (AIR 1990 SC 481)
6. Mr. Naeem Bukhari, learned ASC argued that:--
(i) There is no limitation on the powers of Parliament to declare any service to be the service of Pakistan, therefore, in exercise of these powers, a declaration in terms of Section 2-A of the STA, 1973 has been made accordingly, as a result whereof every person holding a post in a statutory body and Federally controlled and managed organization shall be deemed to be in the service of Pakistan and would be treated as civil servant under the CSA, 1973, for the purpose of availing remedy under the law. In this manner, by reason of a legal fiction, the employees covered by Section 2-A of the STA, 1973 shall be deemed to be civil servants.
Reliance in this behalf has been placed by him upon Mehreen Zaibun Nisa v. Land Commissioner Multan (PLD 1975 SC 397 at 433) and Sirqj Din v. Sardar Khan (1993 SCMR 745 at 749).
(ii) The Legislature was fully conscious that Article 260 of the Constitution excludes certain persons from the definition of `service of Pakistan' but in spite of it, by enacting Section 2-A of the STA 1973, for class of employees holding a post in a statutory authority and Government managed or controlled bodies and Corporations, whose cases are covered under Section 2-A, though excluded from the definition of 'civil servant' by providing a deeming clause indeed for this reason, ignorance is not to be imputed to the Legislature because, wisdom is always expected in favour of the Legislature, which has not to be called in question by the Courts while interpreting the law on the subject.
In this behalf he relied upon Aftab Ahmed v. KE.S.0 (1999 SCMR 197), PIA Corporation v. Koural Channa (1999 PLC (CS) 1539), Divisional Engineer Phones v. Muhammad Shahid (1999 SCMR 1526), Zahir Ullah v. Chairman WAPDA, Lahore (2000 SCMR 826), Anwar Ali Sahto v. Federation of Pakistan (PLD 2002 SC 101), Managing Director, SSGC Ltd. v. Ghulam Abbas (PLD 2003 SC 724).
(iii)In the light of the judgments cited above, Section 2-A of the STA, 1973 is intra vires of the Constitution. However, one aspect appears to have been overlooked e.g. every person, if not holding a post, would be governed by terms of the contract, and the remedy available to such a person would be a suit for damages. Word 'permanent post' has been defined in Section 2(1)(e) of the CSA, 1973.
Reliance is placed on State of Assam u. Kanak Chandra (AIR 1967 SC 884 rel. 886 at pare 10)
(iv)Section 2-A of the STA, 1973 holds the field from 1997 and its constitutionality has never been challenged, therefore, at this belated stage, it would not be appropriate to strike it down.
7. Mr. M.A. Ghani, ASC contended that:--
(a) Section 2-A is applicable to those employees who do not fall within the category of worker or workman.
(b) Article 212 of the Constitution does not cater to protect the validity of Section 2-A of the STA, 1973 and the remedy is independent of Article 212 of the Constitution because Section 2-A of the STA, 1973 itself provides a remedy.
(c) As regards the worker or workman, since Article 212 of the Constitution is not attracted in the case of Section 2-A and if so, Section 2-A is reduced to ordinary piece of legislation, dealing with routine cases of service and employment.
(d) Industrial Relation Ordinance is a special law, dealing with special class of people. Section 2-A of the STA, 1973 to an ordinary piece of legislation, thus the former is to prevail.
(e) Service Tribunal Act is a procedural law whereas Civil Servants Act is a substantive law. Unless corresponding amendment is made in the substantive law i,e, Civil Servants Act, they do not become civil servants and Article 212 of the Constitution would not be applicable.
(f) Under jurisprudence, there are two types of interpretations; one is literalities and the other is centialigus. The Court must accept first interpretation because the legislature has said that what is means in so many words, and second interpretation can be adopted if there is ambiguity.
8. Ch. Muhammad Farooq, ASC adopted the arguments of Mr. M.A. Ghani, ASC.
9. Syed Asif Ali Shah, learned ASC argued that:--
(a) Section 2-A of STA, 1973 is not in derogation of the Constitution, therefore, its constitutionality cannot be objected to.
10. Raja Muhammad Ibrahim Satti, ASC contended that:--
(i) Section 2-A is intra vires of the Constitution.
(ii) This Court cannot examine the vires of any legislation in collateral proceedings.
(iii) No one, either an employee or an employer, has challenged the validity of Section 2-A of the STA, 1973.
(iv)In collateral proceedings, only under Article 8 of the Constitution, this Court can strike down the vires of legislative instrument. Since provision of Section 2-A of the STA, 1973 is a beneficial provision, therefore, it cannot be struck down.
(v) No decision by this Court can affect the petitions and appeals pending before this Court.
11. Mr. Abdul Hafeez Pirzada, learned Sr. ASC contended that:--
(i) Neither any one has challenged the vires of Section 2-A of the STA, 1973 nor amongst both the parties has any one prayed for examination of its constitutionality.
(ii) This Court cannot widen the scope of Article 212 of the Constitution by framing a question to examine the constitutionality of Section 2-A of the STA, 1973.
(iii) This Court does not act in a vacuum. The Court has to take notice of these conditions in which the Society is functioning. That is why it is said that no Constitution is rigid. While dealing with the case, we have to look into the ever changing circumstances of the society.
12. Mr. Tariq Asad, ASC contended that:--
(a) The Court has no power of judicial review to declare any law against the Constitution, unless the test laid down in Article 8 of the Constitution is fulfilled.
13. Mr. Wasim Sajjad, learned Sr. ASC stated that:--
(a) Section 2-A is intra vires of the Constitution.
(b) If the Court has decided to examine the vires of Section 2-A of the STA, 1973, it would also be required to take into consideration the implications of the Removal from Service (Special Powers)
Ordinance, 2000, which covers both the categories of the employees i,e, civil servants and the workers; and this Ordinance has got the Constitutional protection, in view of 17th Amendment of the Constitution.
(c) The definition of 'service of Pakistan' under Article 260 of the Constitution is very wide and generally it is termed as `Government service'.
In his behalf he relied upon Ajit Singh v. State of Punjab (AIR 1970 Haryana 351), Salahuddin v.
Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244), to define the expression i,e, person performing functions in connection with the affairs of the Federation or Province.
(d)Article 260 of the Constitution deals only with one aspect of the service of Pakistan. Article 212 of the Constitution is an independent Article and it deals in respect of matters relating to the terms and conditions of service of the persons, who are or have been in the service of Pakistan, whereas Article 240 of the Constitution deals in respect of the service of the Federation, posts in connection with the affairs of the Federation and All Pakistan Service by or under the Act of [Majlis-e-Shoora (Parliament)). Therefore, the Tribunal can exercise exclusive jurisdiction in respect of the employees whose cases are covered by Section 2-A of the STA 1973, notwithstanding that under Article 240 of the Constitution, their terms and conditions have been prescribed or not.
(e) The Court while interpreting the Constitutional provisions has to keep in mind the social set up of the country.
Reliance in this behalf has been placed by him on M/s. Ellahi Cotton Mills v. Federation of Pakistan (PLD 1997 SC 582) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193).
He also relied upon American Jurisprudence 2nd Edition Vol. 16 Para 86 and the copy of speech of the then Law Minister Khalid Anwar, when Section 2-A was being promulgated.
(f) If the Court comes to the conclusion that Article 2-A of the STA, 1973 is ultra vires of the Constitution following the judgment in the case of L. Chandra Kumar v. Union of India (AIR 1997 SC 1125), it may be held that the earlier judgments passed by the Service Tribunal are valid and within jurisdiction but these can be challenged before the High Court under Article 199 of the Constitution and this Court may transfer pending, petitions for leave to appeal to the respective High Courts for treating them as Constitution Petitions under Article 199 of the Constitution for disposal.
14. Dr. Babar Awan, learned ASC contended as under:--
(i) The Legislature through, Section 2-A of the STA, 1973, has validly declared the status of persons holding a post in statutory Corporations And autonomous bodies as "service of Pakistan" with the intention to protect them from arbitrary exercise of administrative discretion and in conformity with prevalent universal practice of enforcement of rule of law and protection of rights of employees.
(ii) Section 2-A of the STA, 1973 was inserted through an Act of Parliament, therefore, it is a valid enactment.
(iii) Jurisdiction of the Tribunal under Section 2-A of the STA, 1973 is to be judged in conjunction with Section 5 of the STA, 1973.
(iv) Jurisdiction conferred on Tribunal under Section 2-A of the STA, 1973 to adjudicate upon the grievance and claims of the persons, classified therein, does not offend the spirit of the Constitution because it is a Constitutional jurisdiction, by means of which word 'deemed, has been inserted in law, therefore, Section 2-A of the STA, 1973 has to be protected.
(v) A forum of Appeal with the leave of this Court is provided under Article 212(3) of the Constitution, to this Court
(vi) No law can be declared as void under the scheme of the. Constitution, unless it falls within the parameters of Article 8 of the Constitution.
(vii) Article 37(d) of the Constitution provides for promotion of social justice and to ensure inexpensive and expeditious justice to every citizen.
Reliance in this behalf has been placed on The State v. Zia-ur-Rehman (PLD 1973 SC 49) and Hakam Qureshi v. Judges of the Lahore High Court (PLD 1976 SC 713).
(viii) The Federation has not come forward to do something for the poor employees of the Corporations, etc. therefore, instead of striking down Section 2-A of the STA, 1973 as a whole, instructive guidelines and directions, as deemed fit, may be issued to the Federation in view of the judgment of this Court in the case of Khan Asfandyar Wali v. Federation of Pakistan (PLD 2001 SC 607).
(ix)There are a number of laws under which one segment of the society is excluded from the jurisdiction of Special Courts under a particular provision of law. Reference in this behalf can be made to NAB Ordinance, 1999.
15. Mr. Abdul Mujeeb Pirzada, ASC at the very out set pointed out that--
(i) The Federal Government itself is not interested to repeal Section 2-A of the STA 1973, as would be evident from the statement filed on its behalf by the learned Deputy Attorney General.
(ii) Section 2-A of the STA, 1973 is intra vires of the Constitution and it does not violate any of its provisions.
(iii) The principle of master and servant is violative of the injunctions of Islam, Quran, Sunnah and the Objectives Resolution. This principle is also violative of Article 14 of the Constitution being against the dignity of person, security of life and property of the individual employees, guaranteed under Article 9 of the Constitution. This principle is also discriminatory and runs against the provisions of Article 25 of the Constitution, therefore, Article 2-A of STA, 1973 is to be saved in the interest of justice.
(iv) Section 2-A of STA, 1973 has only provided a forum to the employees of Corporation, etc. and their cases have to be decided according to rules and regulations, governing their service, therefore, for this reason, there is no point to discuss as to whether Section 2-A of STA, 1973 is ultra vires of the Constitution or not.
16. Mr. Iftikhar Gillani, learned Sr. ASC contended as follows:--
(a) The class of service under Section 2-A of the STA, 1973 is distinct from civil servants as defined in Section 2(1(b) of the CSA, 1973, therefore, neither they are in the service of Pakistan, nor they are civil servants. This distinction has been highlighted firstly in the case of Noor Mustafa Khuhro v. The Federation of Pakistan (1998 PLC (CS) 1263) and approved in Zahir Ullah (ibid) and Muhammad Nasim Turyali v. Ghulam Sarwar Khan (PLD 2005 SC 570).
(b)Under Article 63 of the Constitution, the Government service and the service of a statutory body has been treated at par and not distinctly, therefore, in view of the judgment in the case of Shahid Nabi Malik v. Chief Election Commissioner (PLD 1997 SC 32), it may be treated as a new specie.
(c) In the case of Zahir Ullah (ibid) it has been held that the employees covered under Section 2-A of the STA, 1973 have attained the status of Government servant by fiction of law, as it also includes the persons appointed on contract basis, etc., therefore, they can avail remedy before the Service Tribunal.
(d) As per the will of the Legislature, the employees of a Corporation have been declared to be holders of post in the service of Pakistan, therefore, whether it is right or wrong decision of the Legislature, the same has to be respected and it cannot be struck down for reasons of jurisdiction, impropriety or expediency.
In this behalf he relied upon Reference by the President [No, 1 of 1957] (PLD 1957 SC (Pak) 219), Kihota Hollohon v. Zachilhu (AIR 1993 SC 412), Pir Sabir Shah v. Shah Muhammad Khan (PLD 1995 SC 66) and Zulfiqar Ali Babu v. Government of the Punjab (PLD 1997 SC 11).
17. Mr. Khalid Anwar, learned Sr. ASC contended that:--
(a) Section 2-A of the STA, 1973 is wholly ultra wires and unenforceable.
(b) As per Article 260 of the Constitution, unless a person is in the service and holding a post, his case does not fall within the definition of "service of Pakistan".
(c)It is a misconception that the Parliament, by means of a deeming clause, can declare that the persons holding a post under any authority or Corporation, body or organization, established by or under the Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has controlling share or interest, to be in service of Pakistan and holder of post under such authority or Corporation, body or organization shall be deemed to be a civil servant for the purpose of this Court, because no such power is available to it under Article 142 of the Constitution.
(d) A declaration could be given for the purpose of STA, 1973 and CSA, 1973 and even for the purpose of the Constitution but not for legislative purposes.
(e) According to Article 240, read with Article 260 of the Constitution, if a person who is in service of Pakistan or has been declared to be in service of Pakistan, his appointment and the terms and conditions of service shall be determined by the Act of Parliament.
(f) Section 2-A of the STA, 1973 has not provided any appeal to the Supreme Court, as appeal with the leave, lies before it if the conditions laid down in Article 212(3) of the Constitution are fulfilled, therefore, if it is concluded that remedy to the persons covered by Section 2-A of the STA, 1973 is before an ordinary statutory Tribunal, their remedy would lie before the High Court under Article 199 of the Constitution, being the only Article in the Constitution to safeguard the fundamental rights, there-under.
(g) Declaration of status of persons under Section 2-A of the STA, 1973 is for the purpose of Article 260 of the Constitution or for the purpose of STA, 1973 or CSA, 1973, therefore, all those persons, who are not holding the post, cannot be declared to be in service of Pakistan for the purpose of treating them to be civil servant under STA, 1973.
(h) Section 5 of the CSA, 1973 deals with the appointment in all Pakistan service or to civil service of the Federation or to a civil post in connection with the affairs of the Federation in the prescribed manner, whereas Sections 6 and 7 of the CSA, 1973 deal with the probation and confirmation of a civil servant, therefore a person who is appointed on contract basis, etc. cannot be deemed to be in regular appointment and cannot be said to hold a post, as such he has no legal entitlement to avail of remedy before the Service Tribunal.
(i) In. Ghulam Abbas case (ibid) [2003 SCMR 734], this Court has held that law of master are -I servant does not apply and in such situation the High Court may be approached by an employee; and if no relief is granted by the High Court, then he may invoke the jurisdiction of this Court under Article 185(3) of the Constitution.
(j) The workers/workmen, in presence of the Industrial Relations Ordinance, 2002 [herein after referred to as "IRO, 2002] cannot avail remedy before the Service Tribunal under Section 2-A of the STA, 1973 because the Labour laws being special law shall prevail, which is meant specially for such category of people, instead of invoking jurisdiction of the Service Tribunal, which is a general law for all intents and purposes.
18. Mr. Makhdoom Ali Khan, learned Attorney General for Pakistan appeared on Court notice and submitted as follows:--
(i) The Court cannot be estopped to examine the constitutionality of Section 2-A of the STA, 1973, at a belated stage because in the earlier judgments cited at the bar, its vires on the touchstone of the Constitution were not examined, therefore, if this Court comes to the conclusion that it is unconstitutional, the same can be declared at as such, notwithstanding the fact that the law has worked for a long time.
Reliance in this behalf has been placed on Mr. Fazlul Quader Chowdhry v. Mr. Muhammad Abdul Haque (PLD 1963 SC 486) and Thomas Cole Contech v. Queen (PLD 1957 PC 112).
(ii)It is not necessary for the Court to wait for an occasion that some one must challenge the constitutionality of a law. The Court can examine the validity/constitutionality of the statutory provision, itself when it comes to its notice or it has been brought into notice by the parties and mere passage of time is not a criteria for the validation of the constitutionality of law.
(iii)In this behalf reliance has been placed by him on Immigration and Naturalization Service v.
Jagdish Rai Chandha (462 US 919 [77 L Ed. 2d 317], Abdullah Khan v. Nisar Muhammad Khan (PLD 1965 SC 690) and Board of Intermediate and Secondary Education v. Salma Afroze (PLD 1992 SC 263).
(iii)If this Court comes, to the conclusion that Section 2-A of. the STA, 1973 is violative of any of the provisions of the Constitution, other than the chapter relating to fundamental rights, then the law is to be struck down and the declaration would be considered retrospective. It will not protect the pending proceedings.
In this behalf he relied upon Ghulam Qadir v. The State (PLD 1959 SC 387), Constitution of Canada by Hog at page 1241 Fundamental Law of Pakistan by A.K. Brohi (page 591).
(iv)If the Court strikes down Section 2-A of the STA, 1973, being contrary to the Constitution, the workers of autonomous bodies, etc. shall avail forum of the Labour Courts and ultimately come to this Court under Article 185(3) of the Constitution. Under this provision, the threshold requirement is much lower than that of Article 212 of the Constitution.
(v)The employees who are in the Corporation service and whose terms and conditions of service are statutory, would be entitled to remedy In the form of a Constitution Petition and the third category, where rules of 'service are not statutory in nature, they can file a suit for recovery of damages. Besides, it is a cardinal principle of legal jurisprudence that mere change of a forum itself does not give rise to any vested right.
Reference. in this behalf can be made to Inamur Rehman (ibid).
(vi)Examining Section 2-A of the STA, 1973 on the touchstone of Articles 212, 240 and 260 of the Constitution, one can conclude that the law under examination has only provided a forum and not the procedure of appointment, etc. therefore, it being contrary to the Constitution deserves to be struck down.
(vii) Article 260 of the Constitution, while defining the expression `service of Pakistan', does not provide that 'any person employed', rather it deals with the persons who are in service of Pakistan, in connection with the affairs of the Federation. The words "affairs of the Federation" have to be interpreted in the sense that there must be some role in the performance of the sovereign functions of the State and in absence of that a person cannot be said to be employee in the affairs of the Federation.
Reference in this behalf can be made to Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244) and Aitchison College v. Muhammad Zubair (PLD 2002 SC 326).
(viii) Definition of 'civil servant' under Section 2(1)(b) of the CSA, 1973 had made number of exclusions, enumerated therein in clauses (i), (ii) and (iii), and this has been done deliberately because the persons of such categories do not fulfill the requirement of 'in the service of Pakistan in connection with the affairs of the Federation', under Article 260.
In this behalf he relied upon Employees' Old Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) and Province of Punjab v. Punjab Labour Appellate' Tribunal (2002 SCMR 836).
(ix) The words employed in Article 260 of the Constitution i,e, "and any other service declared to be service of Pakistan by or under the Act of [Majlis-e-Shoora (Parliament)] are required to be interpreted in the perspective of Article 260 of the Constitution.
While quoting an example whether the Legislature can declare the service of a person in domestic employment to be the service of Pakistan or holding a post or office in connection with the affairs of Federation, he argued that such expression must be read in the context of the Article 260 of the Constitution.
In order to reinforce his above contention, he relied upon Don Basco High School v. The Assistant Director E. O.B.I. (PLD 1989 SC 128), Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), Farooq Ahmed Khan Leghari v. Federation of Pakistan (PLD 1999 SC 57) and Reference No, 2 of 2005 by the President of Pakistan (Hisba) (PLD 2005 SC 873).
(x) This Court in so many cases has made distinction between `service of Pakistan' and 'service of a Corporation' with reference to the provisions of Article 63 of the Constitution. [disqualification of membership of Majlis-e-Shoora (Parliament)].
In support of above contention he relied upon Adil Abdul Jabbar v. Chairman Sindh Labour Appellate Tribunal [2005 PLC (CS) 956].
(xi)A person, in absence of a statute or statutory rules, governing the terms and conditions of his service, is not permitted by the Constitution to approach this Court under Article 212.
He relied upon Muhammad Shahbaz Sharif v. Muhammad Altaf Hussain (PLD 1995 Lahore 541), Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141) and Muhammad Siddique v. Lahore High Court (PLD 2003 SC 885).
(xii) Under a deeming clause, a person covered by Section 2-A of STA, 1973 cannot be declared as civil servant, unless the nexus can be brought within the scope of a civil service and at least it should have some relevancy with the context.
Reference in this behalf can be made to Commissioner of Sales Tax v. Hunza Central Asian Textile and Woollen Mills Ltd. (1999 SCMR 526), Sheikhoo Sugar Mills Ltd. v. Government of Pakistan (2001 SCMR 1376).
19. Malik Muhammad Qayyum, learned ASC contended that:--
(a) Section 2-A does not cover the employees whose terms and conditions are not governed by the statutory provisions of law qua the employees who fall within the definition of civil servant under the CSA, 1973 and those employees whose terms and conditions re regulated by statute, have the remedy before the Service Tribunal and by invoking the jurisdiction of the High Court under Article 199 of the Constitution, therefore, they ought to seek remedy under the Labour Laws.
(b)Section 2-A of the STA, 1973 has conferred jurisdiction upon the Service Tribunal, in respect of matters of the employees covered by it, being a procedural law but such jurisdiction cannot be exercised unless the terms and conditions have been regulated by a statute or statutory rules.
(c)For the purpose of considering a person, covered by Section 2-A of the STA, 1973, falling within the definition of civil servant, it is necessary that conditions laid down under Articles 240 and 260 of the Constitution must exists; firstly it should be a service of Pakistan actually and not by a deeming fiction; secondly, the terms and conditions of such employee must be laid down under the Act of Parliament.
(d)The intention of Legislature in enacting Section 2-A of the STA, 1973 was not to place the employees covered by it at a pedestal higher than that of a civil servant, including those who are employed on contractual basis and allowing remedy to the workers/labourers before the Service Tribunal merely by incorporating a deeming clause therein. In order to reinforce his arguments, he relied upon Mehreen Zaibun Nisa (ibid).
20.Mr. Kamal Azfar, ASC contended that:--
(i) That-the amendment introduced by Section 2-A of the STA, 1973 only relates to the change of forum but they do not alter the terms and conditions of the service of the employees, therefore, the employees whose terms and conditions are not defined by a statutory provision cannot avail of remedy before the Service Tribunal and they must avail of remedy before a forum other than the Service Tribunal.
21.Khawaja Muhammad Farooq, learned ASC argued that:--
(a) Without complying with the provisions of Article 240 of the Constitution, a person cannot be declared to be in the service of Pakistan, therefore, by granting a fictional status under Section 2-A of the STA, 1973, status of a civil servant cannot be granted to State managed Corporations employees, therefore, Section 2-A of the STA, 1973 be declared ultra vires of the Constitution.
(b) Section 2-A of the STA, 1973 also does not qualify. the test laid down under Article 260 of the Constitution with reference to the definition of "service of Pakistan", therefore, for this reason as well, it being a law contrary to the Constitution may not be allowed to hold the field any longer.
(c) Assuming that by means of a declaration, persons covered by Section 2-A are deemed to be in service of Pakistan, for limited purpose, amendment in the definition of civil servant under Section 2(1)(b) of the CSA, 1973 was necessary.
(d) As the terms and conditions of the persons, covered under Section 2-A remained same in view of the law laid down by this Court in this case of Qazi Wali Muhammad (ibid), applicable prior to amendment, they cannot invoke the jurisdiction of Service Tribunal for the redressal of their grievance in view of a deeming clause incorporated therein.
(e) This Court, time and again, has held that where rules of service of Corporation are not statutory, only remedy available to such employees of the Corporation is to claim damages and not reinstatement.
In this behalf he relied upon number of judgments starting from Lahore Central Co-operative Bank Ltd. v. Saif Ullah Shah (PLD 1959 SC 210) and United Bank Ltd. v. Shahmim Ahmed Khan (PLD 1999 SC 990).
22. Ch., Mushtaq Ahmed Khan, learned Sr. ASC contended that:--
(i) Section 2-A of the STA, 1973 is not in consonance with the provisions of Articles 240 and 260 of the Constitution, therefore, for the purpose of filing an appeal before a forum, a person cannot be treated as civil servant under this Section.
(ii)The provisions of Section 2-A of the STA. 1973 are against the principles of State Policy under Article 37 of the Constitution, which caste duty upon the State to provide inexpensive and speedy justice, therefore, clustering of litigation before one Tribunal, which is mostly working in Islamabad has created a lot of problems for the employees who do not fall within the definition of civil servant, therefore, it requires to be declared as ultra vires of the Constitution.
23. Mr. Alamgir, ASC contended that:--
(a) Employees of the Private Companies cannot be considered to be civil servants, therefore, declaration in this behalf is required to be made, otherwise Federal- Service Tribunal has taken up the cases of such employees as well, contrary to law.
24. Mr. Shahid Anwar Bajwa, learned ASC argued that:--
(i) Article 260 of the Constitution talks about three kinds of service; (1) service in connection with the affairs of Federation; (2) service in connection with the affairs of Province; and (3) service declared by the law to be service of Pakistan; but it does not deal with the post or the office for declaring the same to be service of Pakistan, whereas Article 240 of the Constitution deals in respect of categories of the service noted herein above at Nos, (1) and (2), therefore, the Legislature cannot declare a person to be civil servant by introducing a deeming clause. Thus, it being contrary to the Constitution deserves to be struck down.
(ii) First part of Section 2-A of the STA, 1973 declares service to be service of Pakistan and according to its second part, a person holding a post shall be deemed to be civil servant, whereas Article 260 of the Constitution speaks of declaring a service to be a service of Pakistan. Article 260 of the Constitution authorizes Majlis-e-Shoora (Parliament) to declare a service to be service of Pakistan but it does not enjoy any power to declare a post or office in connection with the affairs of Pakistan.
Conversely, Article 240(a) of the Constitution lays down that conditions of service of a person in the service of Pakistan shall be determined in the case of service 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)]. It does not speak in respect of office, therefore, second part of Section 2-A is ultra vires of the Constitution.
5. Raja Muhammad Akram, ASC contended that:--
(a) Section 2-A of the STA, 1973 is intra vires of the Constitution so far it deals with the persons, whose terms and conditions have been laid down by statutory provisions and it is ultra vires in respect of persons who do not enjoy such status.
(b) The Service Tribunal is performing functions of judicial forum and against judgments/orders of the Tribunal, appeal by leave of the Court is competent before this Court, therefore, appointment of its Chairman and the Members should be made with the consent of the Supreme Court of Pakistan to ensure the independence of Tribunal.
(c) STA, 1973 does not lay down the terms and conditions of the Members of the Service Tribunal, therefore, directives be issued to the Federal Government to prescribe their terms and conditions including qualifications for their appointment to the Service Tribunal.
(d) The persons, working in Corporation, as per the provisions of Section 2-A of the STA, 1973, cannot be considered to be civil servants as it would defeat their fundamental right to form association and trade union under Article 17 of the Constitution and consequential benefits arising therefrom in terms of IRO, 2002.
(e) Article 212 of the Constitution provides that the jurisdiction with regard to the matters relating to the terms and conditions of the persons, who are or have been in the service of Pakistan, including disciplinary matters shall exclusively vest in the Tribunal, whereas in the case of worker and the workman, whose terms and conditions are governed under IRO, 2002 cannot be deemed to be a person holding a post under the Authority or Organization as mentioned in Section 2-A. Thus such declaration being void deserves to be declared ultra vires of the Constitution.
(0 So far as the workman or worker are concerned, Labour Laws i,e, IRO, 2002 being a special law, prevails over the general law, as held in I.G. of Police Punjab v. Mushtaq Ahmad Warraich (PLD 1985 SC 159) and Neirnat Ali Goraya v. Jaffar Abbas, Inspector/Sargeant Traffic (1996 SCMR 826).
26. Raja Muhammad Bashir, ASC argued that:--
(i) Section 2-A of the STA, 1973 can be saved by interpreting it in the manner that so far it deals with the persons whose services are regulated by the statutory provisions; they can be deemed to be civil servants, therefore, to their extent it is valid law.
Whereas in respect of others, whose terms and conditions of service are not governed by a statutory provision, it is contrary to the Constitution and deserves to be struck down partially.
27. M/s. Hafiz S.A. Rehman ASC, Barrister Ch. Muhammad Jamil ASC, Ch. Zafar Farooq, ASC, Dr. Sohail Akhtar ASC, Raja Abdul Ghafoor ASC, Qamar-uz-Zaman ASC, Abdul Karim Kundi ASC, M. Bilal Sr. ASC, Ch. Mushtaq Masood ASC, Noor Muhammad Chandia ASC, Mian Abdul Rauf ASC and Raja Sher Muhammad Khan ASC adopted the arguments, advanced by learned Attorney General for Pakistan.
28. Mrs. Naheeda Mehboob Ellahi, learned Deputy Attorney General for Pakistan appeared on behalf of Federation of Pakistan and filed the following statement: "As desired by this Hon'ble Court, the undersigned contacted the Ministry of Law, Justice & Human Rights to seek specific instructions regarding the stand of the Federal Government. I have been instructed to state as follows:--
(i) That the vires of the legislation is a matter of this Hon'ble Court.
(ii) The Federal Government, is however, examining reviewing this legislation in view of the implications that it has given rise to. Sd/- Nahida Mehboob Ellahi, Deputy Attorney General for Pakistan."
29. It would be appropriate to observe that in 1973, the Civil Servants Act, 1973 (Act No, LXXI of 1973)
[herein after referred to as "CSA, , 19731 was promulgated with the following preamble:- "Whereas it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan, and to provide for matters, connected therewith or ancillary thereto;"
Section 2(1)(b) of the CSA, 1973 defines 'civil servant' as under:-- "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 other 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 Workman's Compensation Act, 1923 (VII of 1923).
In the above definition of the civil servant, the expression "All Pakistan Service or of a civil service of Federation" has been included, therefore, Section 5 of CSA, 1973 defines the competent authority for appointment. According to which "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." To meet the requirements of this provision of law, Federal Public Service Commission Ordinance, 1977 was promulgated in pursuance whereof the Commission was authorized to conduct tests and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan, etc. 30.At this juncture it may be observed that in the same year i,e, 1973, the Service Tribunals Act, 1973 (Act LXX of 1973) was promulgated with the following preamble: "Whereas it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of civil servants, and for matters connected therewith or ancillary thereto."
Section 2(a) defines the "civil servant" as follows: "civil servant means a person who is, or has been, a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973); and shall include a person declared to be a civil servant under Section 2(a);"
31.Essentially, the CSA, 1973, containing the definition of "civil servant" was promulgated in pursuance of command of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 [herein after referred to as "the Constitution"], which reads thus:-- "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 services of a Province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly. Explanation.--In this Article, '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 Act of [Majlis-e-Shoora (Parliament)].
32. Obviously, the Administrative Tribunals were constituted under Article 212(1)(a) of the Constitution. An appeal against their orders/judgments with the leave Of the Court has been provided under sub-Article (3). For convenience same is reproduced herein below:-- "212. (1) Notwithstanding anything herein before contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- (a)Matters relating to the terms and conditions of persons who are or have been] in the. service of Pakistan, including disciplinary matters; (b).................................
(c)................................
(2).................................
(3)An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal.
33. Perusal of the above definition of 'civil servant' reproduced earlier indicates that at least three types of persons were excluded from the definition of 'civil servant'; firstly, those who are on deputation to the Federation from any Province or other authority; secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are 'workers' or 'workmen' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923).
34. This Court, right from 1973, when the CSA, 1973. was promulgated, had examined the definition of 'civil servant' in a number of cases, with reference to Section 5 of the CSA, 1973. Reference, however, may be made to the case of Mrs. M.N. Arshad v. Miss Naeem Khan (PLD 1990 SC 612). Relevant para therefrom is reproduced herein below for convenience: "7. A perusal of the above-quoted definition of the term 'civil servant' indicates that it includes a person, who is (i) a member of. All Pakistan services or (ii) is a civil servant of the Federation or (iii) holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub-clauses (i) and (ii) to the above clause (b), whereas the above quoted Section 5 provides that the appointment to the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. It may also be pointed out that the above- quoted Section 7 of the Ordinance provides that the test and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and Section 5 of the Act are to be conducted as may be prescribed by rules made under Section 10 of the Ordinance. We may observe that the learned ASC has not been able to point out any rules, requiring the junior teachers to appear in the Federal Public Service Commission examination. In any case this is not the point in issue. The controversy is, as to whether Respondent No, 1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter cilia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of this Constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges dual functions namely, of the Federal Government and of the Provincial Government. In the above background, it cannot be denied that Respondent No, 1 holds a civil post in connection with the affairs of the Federation. The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation."
The above view has been reaffirmed in Saeed Rabbani v. Director-General Leather Industry Development Organization (PLD 1994 SC 123), Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmad (1995 SCMR 1593), Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572) and Managing Committee, P.A.F. v. Muhammad Pervaiz Akhtar (1997 SCMR 1957). It may be noted that in last mentioned case, the teachers of PAF Model Inter-College were declared to be 'civil servants' and with the majority opinion, the appeal filed by the Managing Committee, PAF Model Inter- College was dismissed. 'implications/reflections of the ratio decidendi of this case shall be examined in depth at a later stage while disposing of Civil Appeals. Which pertains to School Teachers of PAFI.
35. From perusal of the definition of 'civil servant' in Section 2 1)(b) of the CSA, 1973, it emerges that in order to attain the status of a 'civil servant' it is necessary that the person should be member of 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. There may be some employees who fall within the definition of 'civil servant' for the purpose of STA. 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the Federation. Both these expressions are not synonymous, as declared by this Court in the case of Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141). Relevant para therefrom is reproduced herein below: "We would like to mention here that from the trend of arguments at the bar it appeared that two expressions 'service of Pakistan' and `Civil Servants' were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, 'post or office in connection with the affairs of Federation or a Province. This expression also includes an All Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly a Service of Pakistan. The terms 'Civil Servant' is defined in the Civil Servants Act, 1973 as a person, who is a member of an All Pakistan Service or of .a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on a contract or on work-charge basis who is paid from contingencies and a person who is 'worker' or 'workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, are expressly excluded from the category of 'Civil Servant'. On a careful examination of the definitions of 'Service of Pakistan' as given in Article 260 of the Constitution and the 'Civil Servant' as mentioned in Civil Servants Act, 1973, it would appear that the two expressions are not synonymous.
The expression 'service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term 'Civil Servant' employed in the Civil Servants Act. While a `Civil Servant' is included in the expression 'Service of Pakistan', the vice versa is not true. 'Civil Servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, we may mention here that members of Armed Forces though fall in the category of 'Service of Pakistan' but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act. The scope of expression 'service of Pakistan' and 'Civil Servants' came up for consideration before this Court in the case of Syed Abide Hussain u. Tribunal for N.A. 69 (PLD 1994 SC 60). In that case the petitioner was disqualified from contesting the general elections of 1993 on the ground that she was a person who held the office of profit in the Service of Pakistan. It was contended by the petitioner in that case that she was appointed as an Ambassador on contract for two years and as a person employed on contract was specifically excluded from the definition of civil servant the petitioner could not be disqualified. The contention was repelled by this Court in the above case as follow: "6. It is difficult to subscribe to the contention' of the learned counsel. The expression 'service of Pakistan' has been defined in Article 260(1) of the Constitution. It reads as follows:-- 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, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate General, Parliamentary Secretary or Chairman of Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to the Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly;' Learned counsel for the petitioner rightly concedes that the post of an Ambassador is a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus so far as the inclusion of the post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act: consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub-clause (n) ibid, is entirely misconceived as ex-facie it does not apply to situations where the relationship of master and servant exists between the parties. Here the petitioner was a whole time employee of the Government and except for matters, which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provision of Article 240 ibid. Thus, the assertion on her behalf that while serving as an Ambassador she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to a special contract cannot be accepted. Admittedly, a period of two years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k) ibid. We find no merit in this petition. It is hereby dismissed. For the above discussion, it is quite clear that a person may be in the service of Pakistan but for that reason he cannot be classed as a `Civil Servant' as well, as defined in the Civil. Servants Act.
The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a "Civil Servant" as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category."
36. It is important to note that in the above judgments, for all intents and purposes, a person on deputation to the Federation from any Province or other authority, or a person who is employed on contract or work charge basis and is paid from contingencies and a person who is a `worker' or 'workman' as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923 has been expressly excluded from the definition of civil servant as defined in CSA, 1973. It is also important to note that in the judgments noted herein above, none of the employees was on contract or deputation or workman and as their terms and conditions were laid down under Article 260(1) of the Constitution, therefore, they were declared to be `civil servant' Reference at this stage to Syeda Abida Hussain v. Tribunal for N.A. 69, Jhang (PLD 1994 SC 60) would not be out of context. In the case of Qazi Wali Muhammad (ibid), relevant para of which has been reproduced herein above, this case has also been referred. In this case an Ambassador on having qualified both the conditions of service of Pakistan and performing duties in connection with the affairs of the Federation, was found to be a `civil servant'. In fact, both these judgments i,e, Qazi Wali Muhammad
(ibid) and Syeda Abida Hussain (ibid) clearly lay down the criteria for the purpose of treating a person to be a member of 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, etc. 37.Thus, in view of ratio decidendi of the above judgments, it can be held that a worker or a workman as defined in Factories Act, 1934 or the Workmen's Compensation Act, 1923, notwithstanding the fact that the controlling share in the industry vests in the Federal Government. shall not be treated as civil servant. Similarly, persons on contract, even though discharging their functions in connection with the affairs of the Federation and likewise, as well as the deputationists from the Provinces to the Federal Government have not been granted protection of CSA, 1973, therefore; they were excluded from the definition of 'civil servant' and as per terms and conditions of the person of later category, laid down in CSA, 1973 they shall not be entitled to approach the Service Tribunal, established under Article 212 of the Constitution. It may be noted that this Court in the case of Qazi Wali Muhammad (ibid), has crystalized the proposition, leaving no ambiguity in respect of 'civil servant' or other persons, as per Section 2(1)(b)(i), (ii) and (iii) of the CSA, 1973 to avail remedy before the Service Tribunal in respect of their terms and conditions, being in the service of Pakistan, including disciplinary matters, as per the mandate of Article 212(1) of the Constitution.
38.It is important to note that enactment of Section 2-A of the STA, 1973 is not new to statutory regime. In this behalf, presently there are two identical provisions of law, one by Federal Legislature and one by Provincial Legislature of Sindh on the subject, implication of which will be discussed herein below. In pursuance of West Pakistan Water and Power Development Authority (Amendment) Act, 1975, (Ordinance No, LXXXIV of 1975), the West Pakistan Water and Power Development Authority (Amendment) Ordinance XVI of 1975 was amended and Section 17(1-B) of the Pakistan Water and Power Development Authority Act, 1958, was added. For the sake of convenience same is reproduced herein below: "[(1-B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)]."
39.Perusal of Section 17(1-B) indicates that service under the Authority was declared to be service of Pakistan and every person holding a post under the Authority, except those who are on deputation to the Authority from he Province, were deemed to be 'civil servants' for the purpose of STA, 1973. Significance of the amendment is that holder of a post under the Authority was declared to be in the Service of Pakistan. This Court, in the case of WAPDA v. Muhammad Arshad Qureshi (1986 SCMR 18) examined the provisions of Section 17(1-A), (1-B) and (1-C) of the WAPDA Act, 1958 alongwith Sections 4 & 6 of the STA, 1973 (Act LXX of 1973) and held that jurisdiction of the Service Tribunal itself shall not be affected. Again this view was reaffirmed in the case of WAPDA v. Agha Nazim Ali (1986 SCMR 574). Similar view was reiterated in the case of WAPDA v. Javaid Ahmad (1989 SCMR 1068). Subsequent thereto. in the case of Project Director Ghotki, (WAPDA) v. Commissioner.
Workmen's Compensation Authority for the Payment of Wages Act (PLD 1992 SC 451), leave to appeal was granted to examine the question of law "whether the respondents were employees of WAPDA and as such in the service of Pakistan and their grievance, if any, could be redressed by the Service Tribunal and not by the Commissioner Workmen's Compensation and Authority under Payment of Wages Act." In this case, facts were that respondents were appointed as work charge employees in the projects known as 'Salinity, Control and Reclamation Project (SCARP). On completion and successful running of the Project, these were handed over to the Government of Sindh alongwith the staff, which opted for such transfer. The Government of Sindh took them to be fresh appointees, regular in nature, and the WAPDA took the transfer as termination of their appointment with it. In this background, affected employees approached the Commissioner Workmen's Compensation and Authority under the. Payment of Wages Act, claiming gratuity, pay etc. in lieu of earned leave and notice pay. The question of jurisdiction was seriously raised but was repelled and the Authority granted them relief. This order was challenged before the High Court by invoking its Constitutional jurisdiction but without any success as the High Court declined to grant relief. Consequently, the matter came up for consideration before this Court and the proposition was answered as follows: "9. In the position of work charge establishment under the Authority the respondents would undoubtedly be treated as in the service of Pakistan but not everyone in the service of Pakistan is a civil servant for the purposes of the Service Tribunals Act. In the Service Tribunals Act itself and in the Civil Servants Act 'civil servant' has been so defined as to exclude workmen. That apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority. Work charge establishment as such holds no post hence they cannot for the purposes of Service Tribunals Act be treated as civil .servants. In the absence of their being .civil servants, the remedy lay before the forum other than the Service Tribunal. If they fell in the definition of 'workmen' the authorities providing them the redress were the appropriate authorities and there was no exclusion of their jurisdiction in the case."
40.Later on, in the case of WAPDA v. Muhammad Ashraf Naeem' (1997 SCMR 1128) this Court had an occasion to examine whether West Pakistan (Industrial and Commercial Employment) Standing Orders Ordinance, 1968 would be applicable to the employees of WAPDA, notwithstanding the proviso to Section 1(4)(c) of the West Pakistan WAPDA Act, 1958, and the proposition was answered as follows: "9. This provision of law is in two parts. By the first, service under the Authority has been declared to be a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type described shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act. If the respondent stands excluded from the definition of the civil servant as contained in the Civil Servants Act, then the statutory provision made for the civil servants will not apply. In the case in hand, it appears that the respondent is excluded from the definition- of employee under the Workmen's - Compensation Act, 1923 [clause (xix) to Schedule II] whereby persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen's Compensation Act. (underlined by us to supply emphasis).
41.Whereas in the case of Wasim Ahmed Khan v. WAPDA (1997 SCMR 2000), once again the employees of WAPDA, holding post under the Authority, were deemed to be in service of Pakistan, for the purposes of STA, 1973, therefore, it was held that "removal or termination of service of such employee, falling within the mischief of Section 17(1-A) of the Act, could not be called into question under Industrial Relations Ordinance, 1969 or the Essential Services (Maintenance) Act, 1952, or under any law for the time being in force, before any Court, tribunal or commission". In the case of Chairman, WAPDA v. Abdul Hafeez Khan (2000 SCMR 1734), it was ruled by this Court that "every person holding a post under the WAPDA, not being a person who was on deputation to the Authority from any province, was to be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973". Again in the case of Muhammad Ibrahim Mangrio v. Chairman WAPDA (2001 SCMR 848) this Court examined the question as to what is the rationale behind the legislative move in relation to employees of WAPDA in the context of the Constitutional mandate, contained in Articles 260, 240 and 212 of the Constitution" and answer to the query was that "it is an admitted position that the provisions contained in Section 17(1-B) ',bid) are tantamount to making the declaration by the Legislature to the effect that the petitioners were in the 'service of Pakistan and deemed to be civil servants for the purposes of Section 4 of the Service Tribunals Act (No, LXX of 1973).
42. Now it would be appropriate to note that earlier to promulgation of Section 2-A of the STA, 1973, by a legal fiction, Legislature similarly conferred status of 'civil servant' upon the employees of Corporation, etc. by means of Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No, XIII of 1978). Sections 3 and 5, being relevant are reproduced herein below for convenience sake:-- "3. Notwithstanding anything contained in any law for the time being force, or in the terms and conditions of service, a person in Corporation service appointed or promoted during the period from the first day of January, 1972, to the fifth day of July, 1977, may be removed from service or reverted to his lower post or grade, as the case may be, without notice, by the President, or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct.
5. Service of a Corporation is hereby declared to be service of Pakistan and every person in Corporation service who is removed from service or reverted to a lower post or grade, under this Ordinance, not being a person who is on deputation to a Corporation from any Province, shall be deemed to be a civil servant for the purpose of the Service Tribunals Act, 1973."
43. It may be noted that action against the employees of a. Corporation was not intended to be taken generously but only in respect of those who were inducted into service from the first day of January, 1972 to the fifth day of July 1977, and were to be removed from service or reverted to lower post or grade, as the case may be, without notice, by the President or a person authorized by him in this behalf, on such date as the President, or as the case may be, the person so authorized may, in the public interest, direct. In order to provide remedy to such like persons, they were deemed to be 'civil servants' for the purpose of STA, 1973. It appears that said Ordinance was promulgated for limited purposes, therefore, had not covered the cases of all those employees, who were in the Corporation service or institutions, set up, established, managed or controlled by the Federal Government. [Section 2 of the Ordinance No, XIII of 1978]. The implication of Sections 3 and 5 of the Ordinance No, XIII of 1978 were examined by this Court in the cases of Mahood Khan v. Agricultural Development Bank of Pakistan (1989 SCMR 41) and Mehdi Khan v. Islamic Republic of Pakistan (1989 SCMR 345). For reference sake, relevant para from the case of Mahood Khan (ibid) is reproduced herein below: "5. Being not earlier to the Ordinance, in service of Pakistan, the President could not exercise in respect of such employees any power relating to the terms and conditions of their Service.
Declaration by law of any other service" as declaration having been made by Section 5 of the Ordinance, the President acquired the power reserved in Article 240, by Section 3 of the Ordinance.
Reading Section 5 of the Ordinance, alongwith the Constitutional provisions just reproduced, it follows that in declaring the person in Corporation service' to be. In service of Pakistan', power under Article 240 of the Constitution was acquired by the President for determining their conditions of service. Nothing beyond should be read into that declaration. Next follows in Section 5 of the deeming provision whereby those employees who have been dealt with under Section 3 have been provided relief/remedy in the Service Tribunal. The deeming clause is available only to those who are proceeded under Section $ of the Ordinance and none else. On that view of the matter, as in this case action had not been taken under the Ordinance, the petitioner would not be deemed to be a civil servant for the purposes of Civil Servants Act or Service Tribunals Act. Therefore, Article 212 of the Constitution was not a bar to the petitioner seeking relief from the High Court, in its Constitutional jurisdiction."
44.Likewise, in the case of Mehdi Khan (ibid), it was concluded that where an action is not taken under Section 3 of the Ordinance, the employees of the Corporation and those institutions controlled by the Government continue to be governed by their own terms and conditions as provided by or under any law or regulation. Therefore, Article 212 of the Constitution is not an impediment for them to seek relief from the High . Court if they feel aggrieved by an illegal order of removal or dismissal or imposition of any other penalty by or under any law or regulation.
45.The Provincial Legislature of Sindh incorporated Section 3-E of the Sindh Service Tribunals Act, 1973, declaring "notwithstanding anything contained in any law, service of Corporation, to be the service of the Province and every person holding post in the Corporation, not being a person who is on deputation to the Corporation, shall, for the purpose of this Act, be deemed to be a civil servant".
46.The above legislative history furnishes proof that by making declaration, Legislature is competent to declare an employee, under any Authority, Corporation, Body or Organization established by or under the Federal Law, to be in the service of Pakistan, if he holds a post or office in connection with the affairs of the Federation or of a Province. Emphasis has been laid on the words "post in connection with the affairs of the Federation" as commonly used in Articles 240 and 260 of the Constitution, with reference to appointment to service of Pakistan and conditions of service, and the definition of service of Pakistan.
47. Now in view of above discussion, it becomes necessary to examine relevant provisions of the Constitution, in pursuance of which Service Tribunals are established. In this behalf, Article 212(1)(a) of the Constitution confers authority upon the appropriate Legislature to establish Administrative Courts and Tribunals. For convenience same is reproduced herein below:
112. (1) Notwithstanding anything herein before contained the appropriate Legislature may by Act provide for the estabfishmert of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of-- (a)matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters; (b)...........................
(c)..........................
48. At this juncture, it may be noted that under Article 323-A of the Constitution of India, the Administrative Tribunals are established. The above said Article reads as under: "323-A. Administrative Tribunals.--(1) Parliament may, by law, provide for the adjudication or trial by Administrative Tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government."
49. It may be pertinent to note that in the above provision of the Constitution of India, the word "post" has been used significantly. Now the stage is ready to examine the question of validity and vices of Section 2-A of the STA, 1973 on the touchstone of Article 212 and other provisions of the Constitution. Section 2-A of the STA, 1973 is reproduced herein below: "2-A. Service under certain Corporations, etc. to be service of Pakistan.--Service under authority, Corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, Corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
50.A plain reading of above definition indicates that this provision has impliedly included in the definition of civil servant, such persons, who stand excluded by means of clauses (0, (ii) and (iii) of Section 2(1)(b) of the CSA, 1973. It may be recalled that there are a number of persons who are serving as deputationists, contingency staff as well as workmen in connection with the affairs of the Federation of Pakistan who could not otherwise avail remedy for the redressal of their grievance before the Service Tribunal but by enacting Section 2-A in STA, 1973, persons working under any authority, Corporation, body or organization established by or under a Federal Law, etc. have been made eligible to seek remedy before the Service Tribunal, notwithstanding the fact whether they are workers, workmen, permanent or temporary, holding a post on contract, etc. Prima facie, this provision of law, i,e, Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. by providing them remedy before the Service Tribunal because initially in the case of a Corporation/body; etc. if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Article 199 of the Constitution i,e. a remedy which is always considered to be speedy, expeditious and in-expensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers and the workmen were eligible to seek remedy before the local Labour Courts, functioning under the new dispensation of Industrial Relations Ordinance 2002, at the Divisional level with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution.
51.We have heard parties counsel at length and examined their respective contentions thoroughly while taking into consideration the law and the judgments cited at the bar on the subject. Essentially, it would be just, fair and appropriate to examine the preliminary objections raised by learned counsel M/s. Abdul Hafeez pirzada, Sr. ASC, Raja Muhammad Ibrahim Satti, ASC and others to the jurisdiction of this Court to examine the constitutionality of Section 2-A of the STA, 1973.
52.In this behalf it may be noted that this Court, in exercise of Constitutional Jurisdiction conferred upon it under various provisions of the Constitution, including Articles 184, 185, 186, 187(1) and 212(3), enjoys enormous power of judicial review. Besides, it is well settled by this time F that being the apex Court, it has also been vested with inherent powers .to regulate its own authority of judicial review, in as much as, that in Zafar Ali Shah v. Pervaiz-Musharraf, Chief Executive of Pakistan (PLD 2000 SC.869), it-has been held by the full Court that "so long as the. Superior Courts 'exist they shall continue to exercise powers and functions within the domain of their jurisdiction and shall also continue to exercise power of judicial review in respect of any law or provision of law which comes for examination before the Superior Courts." Argument by one of the learned counsel that in the absence of violation of any of the fundamental rights, guaranteed by the Constitution, Section 2-A of the STA, 1973 can be struck down only if in derogation of Article 8 of the Constitution and there is no other specific provision in the Constitution, authorizing this Court to exercise powers in this behalf is untenable on the face of it. A reference to the case of Mr. Fazlul Qader Chowdhry abid) would indicate that "Superior Courts have inherent duty, together with the appurtenant power, to ascertain and enforce the provisions of the Constitution in any case coming before them." In the case of AM. Khan Leghari v. Government of Pakistan (PLD 1967 Lahore 227), it has been emphasized that " in cases of conflict between the supreme law of the Constitution and an enactment it is the duty of the Superior Courts as its protectors and defenders to declare the enactment in question as invalid to the extent of its repugnancy with the Constitutional provision in the absence of any bar either express or implied." Similarly, in Messrs Electric Lamp Manufacturers of Pakistan Ltd. v. The Government of Pakistan (1989 PTD 42), it has been held that "the Parliament in England is sovereign in the real sense and it is not subject to any constraints as in England there is no written Constitution, whereas in Pakistan the Parliament is subject to constraints contemplated by the Constitution in accordance with the procedure provided therein, but so long as it is not amended the Parliament has to act within its four corners; so a statute or any of its provisions can be struck down on the ground of being ultra vires of the Constitution." Likewise, in the case of Fauji Foundation v. Shamimur Rehman (PLD 1983 SC 457), it is held that " when a Court, which is a creature of the Constitution itself, examines the vires of an Act, its powers are limited to examine the legislative competence or such other limitations as are in the Constitution; and while declaring a legislative instrument as void, "it is not because the judicial power is superior in degree or dignity to the legislative power" but because it enforces the Constitution as a paramount law either where a legislative instrument is in conflict with the Constitutional provision so as to give effect to it or where the Legislature fails to keep within its Constitutional limits." In the case of Liaqat Hussain v.
Federation of Pakistan (PLD 1999 SC 504), the conclusion was that "Court cannot strike down a statute on the ground of mala fides, but the same can be struck down on the ground that it is violative of a Constitutional provision. In Collector of Customs and others v. Sheikh Spinning Mills ( 1999 SCMR 1402), this Court struck down the imposition of pre-shipment inspection service charge under the Customs Act, 1969 as unconstitutional, which of course was not based on any fundamental rights. Relevant para reads as under:-- "Considering the case from all angles, although the Federal Legislature is competent to legislate for the imposition of fees within the meaning of Entry 54, in the Federal Legislative List, Fourth Schedule to the Constitution, but again as already discussed herein before, one has to see what is the nature of the legislation and whether the same could have been legislated within the ambit of the powers of the Federal Legislature. No doubt, legislation can be made to impose fee in respect of any of the matters in the Federal Legislative List, but definitely not for pre-inspection, the benefit of which has to go to the companies appointed to carry out the inspection and not to the payees of the fees.
The imposition of such fee is not in lieu of services to be rendered for the benefit of its payees.... For the foregoing reasons, we are of the view that the imposition of service charge as imposed under Section 18-B of the Act towards the pre-shipment inspection is ultra vires of the powers of the Federal Legislature."
53.Likewise, in the case of Zaman Cement Company (Pvt.) Ltd. v. Central Board of Revenue and others (2002 SCMR 312) this Court observed that "the function of the judiciary is not to question the wisdom of Legislature in making a particular law nor it can refuse to enforce it even if the result of it be to nullify its own decisions provided that law is competently made; its vires can only be challenged being violative of any of the provisions of the Constitution and not on the ground that it nullifies the judgment of the Superior Courts." In this judgment the use of expression `any' has widened the jurisdiction of the Court and extended it to the extent of the violation of the any of the provisions of the Constitution including fundamental rights. Similarly in Ghulam Mustafa Ansari v.
Government of Punjab (2004 SCMR 1903) it was held that "ordinarily it is not for us to question the wisdom of the Legislature merely on the ground that a provision of law may work some inconvenience or hardship in the case of some persons, unless it be violative of a Constitutional provision including the fundamental rights."
54.Adverting to the submission by Mr. Tariq Asad, ASC that Supreme Court of India has been vested with the powers to declare any law unconstitutional under Article 131-A of Indian Constitution, whereas no such powers have been conferred upon this Court under the Constitution except the powers under Article 8 of the Constitution, which are subject to violation of fundamental rights.
55.It may be pointed out that Article 131-A was inserted in the Constitution of India by means of .42nd Amendment but later on omitted by 43rd Amendment of the Constitution. However, fact remains that prior to the amendment and even now the Supreme Court of India had been examining the constitutionality of , different laws and has declared them unconstitutional.
Reference in this behalf may be made to Mafatlal Industries Ltd. v. Union of India (1997) 5 SCC 536.
In this judgment, Section 11-B of the Central Excise and Salt Act, 1944 was struck down as being violative of Article 265 of the Constitution. Reference may also be made to Marbury v. Madison [(1803 2 Law Ed. 60 (73)], which was relied upon and approved in Saiyyid Abul A'la Maudoodi v. The Gout. of West Pakistan (PLD 1964 SC 673).
56.It may be observed that in the Constitution of United States, there is no express provision, empowering the Supreme ,Court of United States to invalidate a statute. Nevertheless, in the case of Marbury Chief Justice Marshall observed that it is, emphatically, the province and duty of the judicial department to say what the law is; those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; So if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case; this of the very essence of judicial duty; if then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act, must govern the case to which they both apply."
57.The principle laid down in Marbury case (ibid) has been followed invariably by the Courts of different jurisdictions. Reference in this behalf may also be made to the case of Australian Communist Party v. The Commonwealth [83 CLR 1 (1950-51)]. It is also to be noted that although in the Australian Constitution as well, there is no express provision, authorizing the High Court (which is the highest Court of the country) to strike down a statute, yet a number of laws have been struck down by the said Court being contrary to Constitutional provisions, essentially on the basis that Constitution being the highest law every statute must conform to its parameters and where it fails to do so, it must be held repugnant to the Constitution and struck down. The Supreme Court of India expressed similar view in the case of Supreme Court Advocates-on-Record Association v.
Union of India (AIR 1994 SC 268). Relevant para therefrom is reproduced herein below: "The Constitution of India which we have given to ourselves is the fundamental law of the land.
The Judiciary, under the Constitution, is designed to be an intermediary body between the people on the one side and the Executive on the other. It belongs to the Judiciary to ascertain the meaning of the Constitutional provisions and the laws enacted by the Legislature. In order to keep the Executive/Legislature within the limits assigned to their authority under the Constitution, the interpretation of laws is the proper and peculiar province of the Judiciary. Constitution is the "will" of the people whereas the statutory laws are the creation of the Legislature who are the elected representatives of the people. Where the will of the legislators--declared in the statutes--stands in position to that of the people--declared in the Constitution--the will of the people must prevail. The Constitution of India provides for an elected President, House of People is elected. The State Legislators are elected. Supreme Court Judges are not elected, they are appointed under the Constitution. So are other High Court Judges. Yet the Constitution gives unelected Judges a power- -called judicial review under which they may nullify unconstitutional acts of the Executive and of the elected representatives of the people assembled in the Parliament and the State Legislatures.
This conclusion does not suppose that the Judiciary is superior to the Legislature. It only supposes that the power of the people--embodied in the Constitution--is superior to both.
It may also be emphasized that in the Indian jurisdiction as well, learned Supreme Court struck down a statute where there was no question of violation of fundamental rights. Reference in this behalf may be made to Sundararamier & Co. v. State of Andhra Pradesh (AIR 1958 SC 468).
Relevant para therefrom is also reproduced herein below for convenience: "Now, in considering the question as to the effect of unconstitutionality of a statute, it is necessary to remember that unconstitutionality might arise either because the law is in respect of a matter not within the competence of the Legislature, or because the matter itself being within its competence, its provisions offend some Constitutional restrictions. In a Federal Constitution where legislative powers are distributed between different bodies, the competence of the Legislature to enact a particular law must depend upon whether the topic of that legislation has been assigned by the Constitution Act to the Legislature."
58.Thus, foregoing discussion leads us to conclude that this Court is competent to examine the vires of a statute, if it has been promulgated in derogation of any of the provisions of the Constitution, apart from Article 8 of the Constitution.
59. Mr. Naeem Bukhari, learned ASC objected to the maintainability of the proceedings on the premise that Section 2-A of the STA, 1973 was promulgated as far back as 10th June 1997 by means of Service Tribunals Amendment (Act No, XVII) of 1997, and it worked successfully, therefore, at this belated stage, it cannot be struck down.
60.Learned Attorney General opposed the arguments and stated that laches cannot be pleaded when a question of constitutionality of a law has been raised.
61.It is a factual position that since the promulgation of Section 2-A of the STA, 1973 its constitutionality never came under attack. However, in the instant case as noted in the paras supra, on examining the pleadings of the parties, it became necessary to examine its constitutionality. This Court in the case of Fazlul Quader Chowdhry (ibid) has held that "In any event, on questions relating to the constitutionality of actions the ground of laches cannot prevail, for there, can be no estoppel against the Constitution and an act which is unconstitutional cannot become Constitutional by lapse of time, nor can it vest anyone with any kind of legal right to benefit from such an unconstitutional act." Similarly in the case of Attorney General of Australia v.
The Queen Boilermakers' Society of Australia (PLD 1957 Privy Council 115), identical question was examined and it was held as under:-- "It is, therefore, asked, and no one can doubt that it is a formidable question, why for a quarter of a century no litigant has attacked the validity of this obviously illegitimate union. Why in Alexander's case itself was no challenge made? How came it that in a series of cases, which are enumerated in the majority and the dissentient judgments it was assumed without question that the provisions now impugned were valid?
It is clear from the majority judgment that the learned Chief Justice and the Judges who shared his opinion were heavily pressed by this consideration. It cannot be otherwise. Yet they were impelled to their conclusion by the clear conviction that consistently with the Constitution the validity of the impugned provisions could not be sustained. Whether the result would have been different if their validity had previously been judicially determined after full argument directed to the precise question and had not rested on judicial dicta and common assumption it is not for their Lordships to say. Upon a question of the applicability of the doctrine of stare decisis to matters of far- reaching Constitutional importance, they would imperatively require the assistance of the High Court itself. But here no such question arises. Whatever the reason may be, just as there was a patent invalidity in the original Act which for a number of years went unchallenged, so for a greater number of years an invalidity which to their Lordships as to the majority of the High Court has been convincingly demonstrated, has been disregarded. Such clear conviction must find express in the appropriate judgment."
62.Learned Attorney General also relied upon Immigration and Naturalization Service (ibid) and stated that Supreme Court of United States of America struck down the power of legislative veto even through grant of such powers had become common over a span of several decades.
63.Thus, it is concluded that this Court cannot be refrained from examining the constitutionality of a law because of lapse of time, therefore, notwithstanding any objection, if the constitutionality of a law is under challenge, its vires can be examined despite the fact that it had remained on-the statute book for a considerable time.
64.Preliminary objection raised in Paragraph No, 51 has already been attended to above. However, it may be observed that whenever there is a pure question of law, it can be raised at any time, either by the party or taken up by the Court itself, and the duty to decide in accordance with law cannot be avoided on an untenable alibi (of not having been raised by a party) i,e, ignorance of a litigant or his counsel because this duty flows from the Constitution. Reference in this behalf may be made to the cases of Abdullah Khan (ibid) and Board of Intermediate and Secondary Education (ibid). In the last mentioned case, it was observed as follows: "A Judge must know the adage that a Judge must wear all the laws of the country on the sleeve of his robe and failure of the counsel to properly advise him is not a complete excuse in the matter."
65.In addition to above, perusal of Article 212(3) of the Constitution reveals that it casts duty upon the Court to specify as to whether a substantial question of law of public importance is involved, before leave to appeal is granted. Thus, it would mean that the leave can be granted only if this Court is satisfied to examine a particular aspect of the case, including the question of constitutionality of a substantive law on the basis whereof case has arisen for adjudication. In the case of Muhammad Hashim Khan v. Province of Balochistan (PLD 1976 Quetta 59), it was held that "the Tribunal under Section 5 of the said Act is deemed to be a Civil Court for the urpose of deciding any appeal before it with all the powers under the Code of Civil Procedure; as any other Civil Court or Tribunal, to our mind, will have jurisdiction to examine whether or not a law is void by reason of its conflict with the Fundamental Rights or is otherwise ultra vires or that the order made is mala fide." This Court approved this view of the High Court of Balochistan in the case of Iqan Ahmad Khurram v. Government of Pakistan (PLD 1980 SC 153). Upon careful. perusal of both these judgments, one can safely conclude that under Section 5 of the STA, 1973, the Service Tribunal is competent to adjudge the validity of a statute, therefore, the Supreme Court while granting leave to appeal under Article 212(3) of the Constitution, being an appellate forum, cannot logically be denied the same power as an appeal is always considered to be continuation of the original proceedings. In this behalf we are fortified by the judgment in the case of F.A. Khan v. Government of Pakistan (PLD 1964 SC 520), wherein it has been held that:-- (i) When an appeal is filed, the matter becomes sub-judice and is re-heard by the Appellate Court, which does not act merely as the Court of error;
(ii) After, there has been an appeal even though, an Appellate Court simply affirms the order of Original Court the only decree or order in existence is the order of the Appellate Court;
(iii) The Original and appellate proceedings are steps in one proceedings."
66. This Court had an opportunity to examine identical proposition in the case of Pir Sabir Shah's case (ibid), wherein it has been held that the doctrine that there is distinction between judicial review and appellate jurisdiction in the sense that questions of vires belong to the former and not to the latter jurisdiction is a judicially evolved doctrine, and like all judicially evolved doctrines, it is, and ought to be, flexible and capable of new application; the distinction should not be regarded as something "engraved on tablets of stone; Foster case serves as an example in which that doctrine was effectively exploded." High Court of Sindh in the case of Nazrul Hassan Siddiqui v. Federation of Pakistan (2000 PLC (CS) 189), after having surveyed the judgments on the point concluded that "the Federal Service Tribunal had the jurisdiction to determine the vires of a statute." That being the case, the Supreme Court certainly would have jurisdiction to determine the vires of a statute in exercise of its jurisdiction under Article 212(3) of the Constitution.
67. It is important to note that in the cases, pertaining to WAPDA, particularly Project Director Ghotki, (WAPDA) (ibid), it was specifically held that "that apart, for the purposes of the Service Tribunals Act only such of the employees of the WAPDA could be treated as civil servants who were holding a post under the Authority and as Work charge employees hold no post hence they cannot for the purposes of Service Tribunals Act be treated as civil servants. (emphasis provided); and finality it was concluded that "in the absence of their being civil servants, the remedy lay before the forum, other than the Service Tribunal."
68. The ratio decidendi of the judgments, discussed above, lays down following two basic propositions, for the purpose of ascertaining as to whether a person is in the service of Pakistan:--
(a) A declaration must exist that he shall be deemed to be in the service of Pakistan.
(b) Such person must hold a post or office in connection with the affairs of the Federation or of a Province and includes in all Pakistan Service.
69. The view taken in the above judgments, giving rise to above proposition, was reiterated in the cases of WAPDA v. Muhammad Ashraf Naeem (ibid), Wasim Ahmed Khan (ibid), Chairman, WAPDA v. Abdul Hafeez Khan (ibid) and Muhammad Ibrahim Mangrio (ibid). In these judgments, the proposition under discussion namely, as to whether by means of a deeming clause a person can be declared to be in the service of Pakistan for the purposes of Article 260 of the Constitution, had not been examined. In this behalf it may be noted that according to Article 260 of the Constitution, the Legislature is empowered to declare any service to be service of Pakistan by or under an Act of Majlis-e-Shoora [Parliament]. This Constitutional provision nevertheless does not empower the Legislature to declare any person to be in the service of Pakistan, on the basis of a legal fiction. The Legislature by using the expression "shall be deemed" has allowed to enjoy the status of civil servant, even to those persons who were excluded from its definition in terms of Section 2(1)(b) of the CSA, 1973, which also includes a person, who is a contract employee as interpreted by this Court in the case of Aftab Ahmed (ibid) followed in Zahir Ullah's case (ibid) . Relevant para from the last mentioned judgment is reproduced herein below for convenience: "The above view taken by the learned Tribunal does not appear to be correct as Section 2-A which was inserted in the Service Tribunals Act, 1973 by its own force, created a class of Government servants by fiction, for the purpose of allowing them to avail remedy of appeal before the learned Service Tribunal. Section 2-A ibid while providing that the service under an authority, Corporation, body or organization established by or under a Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share of interest is declared to be the service of Pakistan and every person holding a post under such Corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act, does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workmen. We are, therefore, of the view that as the appellants were covered by the provisions of Section 2-A for the purposes of availing remedy before the Service Tribunal. The fact that they were employed in the organization/Corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of in Corporation of Section 2-A of the Service Tribunals Act, 1973. Accordingly, the above appeals are allowed, the order of the learned Service Tribunal is set aside and the cases are remanded to the learned Service Tribunal with the direction to decide the same afresh in the light of above observations. There will, however, be no order as to costs."
70. Learned Attorney General pointed out that if this principle is accepted then the persons, working in the Government controlled Corporation, either on deputation or on contract basis or in the capacity of worker or workman, shall enjoy the status of the civil servant on account of the legal fiction because no such declaration is required to be made in their favour, as they are already working in the Government departments.
71.In view of above position, we are of the opinion that Article 260 of the Constitution does not mandate to Legislature to declare any person to be in the service of Pakistan, and by deeming clause to be a civil servant for the purpose of STA, 1973. We have minutely examined the earlier judgments on the point, particularly the cases of WAPDA employees, discussed above, as well as the judgment in the case of Qazi Wali Muhammad (ibid), to come to the conclusion that a person can be declared to be in service of Pakistan but not necessarily a civil servant, in terms of CSA, 1973.
It was further observed in Ashraf Naeem (ibid) that "if the respondent stands excluded from the definition of civil servant as contained in Civil Servants Act, then the statutory provision made for the civil servants will not apply and' such persons connected with the generation, transformation and supply of electricity are to be treated as workmen for the purposes of Workmen's Compensation Act." Reference in this behalf has already been made to a number of judgments.
This Court in another case i,e, Divisional Engineer Phones (ibid) also examine this proposition and concluded as under: "The respondents in their appeals belong to the category of the person who has been declared as civil servant under Section 2-A of the Service Tribunals Act, 1973, for the purpose of availing the remedy before the Service Tribunal, such persons in the absence of a corresponding amendment in the Civil Servants Act, 1973 cannot automatically become the civil servants, within the meaning of Civil Servants Act, 1973."
72.As a result of above conclusion, the appeals filed by Divisional Engineer Phones were accepted for the reason that the respondents who were admittedly appointed after creation of the Corporation, did not enjoy the status of civil servant, therefore, they could not avail the remedy in respect of disputes, relating to their terms and conditions of service before the Service Tribunal established under the Service Tribunal Act, 1973. This view has been approved in the case of Koural Channa (ibid).
73.Undoubtedly the proposition laid down in the above judgments was very important from the jurisprudential point of view but subsequent thereto liberal view was followed by this Court, allowing a person to continue to avail remedy under Section 2-A of the STA, 1973 because of the fact that its constitutionality had never been examined, otherwise, this proposition being more logical and convincing is bound to be followed subsequently in the judgments delivered from time to time. At this juncture, reference to the case of Qazi Wali Muhammad (ibid) would not be out of context, wherein this Court while examining the status of employees of the Supreme Court has held that "the expression 'service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term `civil servant' employed in the Civil Servants Act; while the 'civil servant' is included in the expression 'service in Pakistan', the vice versa is not true; `civil servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution." It was further observed that "to illustrate the point, it is stated that members of Armed Forces though fall in the category of 'service of Pakistan' but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunal Act.
74.It is equally important to observe that under Article 260 of the Constitution, a person can be declared to be in the service of Pakistan if his duties have a nexus with the affairs of the Federation, meaning thereby that a person who is playing an active role in the performance of sovereign functions of the State and exercises public powers can legitimately claim to be in the service Pakistan. Undoubtedly the Parliament can declare any service to be service of Pakistan but subject to the condition that such declaration should not be based on a legal fiction, as done in the instant case, whereby through a deeming clause, a person of a Government controlled Corporation in terms of Section 2-A of the STA, 1973 has been declared to be in the service of Pakistan and for such reason he shall be deemed to be a civil servant. Secondly, conditions under Article 260 of the Constitution with regard to having nexus/connection with the affairs of the Federation of Pakistan have not been fulfilled. According to "Understanding Statutes" by S.M. Zafar 2nd Edition page 101, the purpose of importing a deeming clause is to impose an artificial construction of a word or phrase that would not otherwise prevail and sometimes it is to make the construction certain." It has been further observed by the learned jurist that "if the deeming provision is invalid, all the ancillary provisions fall to the ground alongwith it; and if the later Act is entirely dependent upon the continuing existence and validity of the earlier Act, which is held to be unconstitutional and has no legal existence the provisions of the later Act are incapable of enforcement." It is important to note that two important concepts have been introduced by the learned author in the construction of the provision creating a statutory fiction, namely; "statutory fiction should be carried to its logical conclusion as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another (PLD 1988 SC 163) but the fiction cannot be extended beyond the language of the section by which it is created or by importing another fiction," therefore, to find out a solution, it has been observed that "principle of harmonization shall be attracted" and ultimately it was held that ''the impact of deeming clause could be curtailed if it produces a disgraceful result."
75.This Court had an occasion to examine the effect of a deeming clause in the case of Mehreen Zaibun Nisa (ibid), wherein the effect of a deeming clause in light of the earlier judgments was summed up as follows:--
(i) When a statute contemplates that a state of affairs should be deemed to have existed, it clearly proceeds on the assumption that in fact it did not exist at the relevant time but by a legal fiction we are to assume as if it did exist.
(ii) Where a statute says that you must imagine the state of affairs, it does not say that having done so you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.
(iii)At the same time, it cannot be denied that the Court has to determine the limits within which and the purposes for which the Legislature has created the fiction.
(iv)When a statute enacts that something shall be deemed to have been done which in fact and in truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."
76. As pointed out herein above that on promulgation of Section 2-A of the STA, 1973, the persons employed in the Government controlled Corporations, were never treated to be in the service of Pakistan, therefore, they were not allowed to enjoy the status of a civil servant. But now, by means of a legal fiction, such status has been conferred upon them notwithstanding the fact that statedly their cases are not covered by the definition of "civil servant" and on account of this legal fiction a discrimination has been created between the persons, who have been excluded from the definition of civil servant as per Section 2(1)(b) of the CSA, 1973 whereas the persons in the employment of Government controlled Corporations, either created by or under a statute, most of them incorporated under the Companies Ordinance, 1984, have been declared to be in the service of Pakistan and deemed to be civil servants. Thus, it has created a classification which does not seem to be reasonable. As per the X second principle, noted herein above, a deeming clause only permits to imagine a particular state of affairs but it does not mean that such imagination can be allowed to be overwhelmed, when it comes to the inevitable corollaries of that state of affairs, therefore, merely on the basis of imagination, status of a person cannot be converted, without ensuring compliance of the basic requirements. As in the case in hand, merely on the basis of a deeming clause, if a person is treated to be a civil servant, it has also to be examined whether remaining conditions, provided under the CSA, 1973 have been a fulfilled, particularly, as to whether, while making appointments, provisions of Section 5 of the CSA, 1973 have been complied with or not, according to which the 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 the defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. Inevitable corollary consequent upon this provision of law and the conclusion would be that those persons, who are working in the Government controlled Corporations etc. and have been appointed in a prescribed manner, would be deemed to be in the service of Pakistan and if their status is declared to be a civil servant, only then they would be entitled to enjoy the benefits of Section 2-A of the STA, 1973, whereas the persons other than those, like persons employed on contract basis, deputationist, worker or workman, under different statues, whose appointment has not taken place in the prescribed manner, shall not be deemed to be civil servants and merely on the basis of fiction their status cannot be enhanced essentially, in majority of cases, they have not been appointed under any statutory provision and it is also not clear as to whether their appointment had taken place under lawful authority and such Authority had exercised its discretion fairly and in good faith or there was any mala fide etc. In majority of such Corporations, the appointments are made by the functionaries who themselves have not been appointed under any statutory provision because of creation of Corporation by the Memorandum and Article of Association, duly registered with the Securities and Exchange Commission of Pakistan under the Companies Ordinance, 1984.
As far as third principle, noted herein above, is concerned, the Court is required to determine the limits within which and the purpose for which the Legislature has created the fiction. Before its promulgation, a debate had also taken place in the Parliament, extracts whereof have been placed on record. A perusal whereof indicates that the objects of enacting Section 2-A was to facilitate the persons working in Government controlled Corporations in order to provide them adequate and efficacious remedy for the redressal of their grievance. But, in our considered opinion promulgation of Section 2-A of the STA, 1973 has not advanced the cause of the employees working in the Corporations, particularly where statutory backing is not available to them. Although this law was promulgated on 10th June 1997 and thereafter the Courts took sufficient time in interpreting its provisions, initially at the High Court level, subsequently before the Service Tribunal and finally before this Court but in none of the judgments, its vires were examined. However, keeping in view the socio-economic conditions, prevailing in the country, it seems that even by promulgation of Section 2-A of the STA, 1973, the said object has not been achieved. In this behalf, it may be noted that the persons who fall within the category of worker or workman, have more efficacious, adequate and speedy remedy before the Labour Court, headed by a District Judge and appeal before the High Court under the IRO, 2002 and after exhausting remedy before the High Court, a petition for leave to appeal is competent before this Court under Article 185(31 of the Constitution, the scope whereof is broader than the provisions of Article 212(3) of the Constitution, where leave can only be granted if a substantial question of law of public importance is involved. As far as the other category of the contract employees and work charged employees are concerned, they can avail the remedy of claiming compensation before the Civil Courts, functioning all over the country.
Similar would be the position of deputationists if aggrieved by an order relating to terms and conditions of service. Comparing to it, the remedy provided under Section 2-A of the STA, 1973 is more cumbersome, harsh and expensive. Moreover, it is a fact that a large number of cases have piled up before the Federal Service Tribunal, which, eventually, would take a long time in disposal and thereafter, aggrieved party, challenging the decision, with the result that the dispute shall remain pending for a considerable period, before higher forum: It may also be noted that the persons covered under Section 2-A of the STA, 1973 have been deprived of a right of appeal because earlier the view was that after exhausting departmental remedy, such persons can file appeal before the Service Tribunal but after the judgment in Ghulam Abbas's case (ibid) an aggrieved person can directly approach the Service Tribunal for redressal of his grievance whereas it has been held by this Court that under the Islamic system of dispensation of justice, as a matter of right, one appeal should be made available. Reference in this behalf can be made to the cases Pakistan v. General Public (PLD 1989 SC 6), Chenab Cement v. Banking Tribunals (PLD 1996 Lahore 672) and Arshad Mehmood v. Government of Punjab (PLD 2005 SC 193), laying down that a statute Y which does not provide at least one appeal is unreasonable and can be struck down. Therefore, for this reason as well, Section 2-A of the STA, 1973 seems to be unconstitutional.
77. We may also point out here that reference to the Parliamentary debate, which took place before the promulgation of Section 2-A of the STA, 1973, is not of much help because such debates can be referred to when there is any ambiguity in the statute under discussion. In this behalf reference may be made to the judgment in A&B Food Industries Ltd. v. Commissioner of Income Tax/Sales Tax (1992 SCMR 663). In the case of Pir Sabir Shah (ibid), it has been observed that ''the question of constitutionality of a law, or to put it differently, whether a law is intra vires or ultra vires Z does not depend upon consideration of jurisprudence or of policy; it depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-Constitutional law by which the Parliament purports to exercise that authority."
So far as the fourth principle is concerned, it is not attracted in the instant case because after promulgation of Section 2-A of the STA, 1973, the persons working in the Government controlled Corporations, are being treated to be in the service of Pakistan and due to this reason, they are being treated as civil servant for the purpose of STA, 1973. The purpose for which the status of civil servant was given to them has already been discussed herein above.
78. Learned counsel appearing in support of constitutionality of Section 2-A failed to produce any material to persuade us that on the basis of any statute or by means of any other statutory instrument, these persons shall be deemed to be in the service of Pakistan, therefore, they can enjoy, by means of a legal fiction, the status. of a civil servant. In this context reference to the case of Saeed Rabbani (ibid) may be made, wherein this Court, after having discussed the relevant instrument like Rules of Business, etc. held that "it is the duty and responsibility of the Federal Government to organize, constitute and develop Federal agencies and institutions for research, professional or technical training or for promotion of special studies; Leather Industry Development Organization is engaged in performing such duties; as this institution is promoting industrial activity and special studies in industrial fields. It falls under Item No, 5 of the Industries Division as provided by the Rules of Business; therefore, as the appellant is employed with LIDO, he holds a civil post in connection with the affairs of the Federation and he is thus covered by Section 2(1)(b) of the Civil Servants Act, 1973." It may be noted. that in this very judgment, another question came up for consideration i,e, with reference to the status of the employees of LIDO, which was answered in view of the judgment in the case of Mrs. M.N. Arshad (ibid), wherein it was held as follows: "In Pakistan Corporations are not created by a Royal Charter but they are incorporated either by a statute like the Karachi Port Trust incorporated under the Karachi Port Trust Act, 1886, or by registration under a statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a trust under the Trust Act, etc. However, Corporations can also be created by an executive order under the authority delegated by an Act of Parliament. In Pakistan, we find such a delegation inter alia in Section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), which provides that the Federal Government shall constitute a body to be known as the Evacuee Trust Property Board, for the management and disposal of evacuee trust property and that the Board shall be a body corporate by the name aforesaid having perpetual succession and common seal, with power to acquire, hold and dispose of property both movable and immovable, and to contract and sue and be sued in its name. It is an admitted position that the Resolution has not been passed in pursuance of any such delegated statutory power. In this view of the matter, the Board is neither a corporate body nor a juristic person competent to employ teachers. Mr. Bashir Ahmed Ansari has invited our attention to the factum that the employees of the Pakistan Broadcasting Corporation, the Pakistan Television Corporation, the WAPDA and the PIA have been held to be employees of corporate bodies and not civil servants though they are controlled by the Federal Government. This is so, for the reason that the corporate status of the above Organization has been created by virtue of a statute or by virtue of registration as a corporate body under the Companies Act.
79.At this juncture it may also be observed that Article 260 of the Constitution has conferred authority upon the Parliament to declare any other service to be the service of Pakistan under an Act of Parliament. The words "declared" used therein is of much significance. In view of its importance, it has to be seen as to whether there was any doubt or difficulty in the definition of civil servant under Section 2-A of the STA, 1973, which persuaded the Legislature to make a declaration that the persons working in the Government controlled Corporations, etc. shall be declared to be in the service of Pakistan and incumbents, therefore, shall be deemed to be civil :servants. In case, there is some doubt in respect of a state of the law, Parliament may decide to pass a declaratory Act, setting out what the law is. ["Understanding Statute" by S.M. Zafar Second Edition (Page 287)].
Essentially on the plain reading of the definition of the civil servant, both under Section 2-A of the STA, 1973 and Section 2(1)(b) of the CSA, 1973, there was absolutely no doubt. In this behalf the Parliament had also not identified any doubt as would be evident from the Parliamentary debates, which took place at the time of promulgation of Section 2-A of the STA, 1973. A declaration, however, has not been made to clarify any doubt rather by introducing a legal fiction, the persons working in Government controlled Corporations, etc. have been made civil servants for the purpose of Article 260 of the Constitution. The language employed by the Constitution, authorizing the Parliament to declare any other service as service of Pakistan, only confer authority to make a solid declaration in respect of any such service, instead of bringing it into the folds of service of Pakistan by introducing a legal fiction.
80.Now turning towards the second limb of the argument i,e, as to whether the persons working in the Government controlled Corporations, etc. in terms of Section 2-A of the STA, 1973 are performing their functions in connection with the affairs of the Federation, being one of the most important condition for attaining the status of being in the service of Pakistan. In this behalf, a criteria has been laid down in the case of Saeed Rabbani (ibid). Similarly, in the case of Salahuddin (ibid), it was held as under: "Now what is meant by the phrase "performing functions in connection with the affairs of the Federation or a Province." It is clear that the reference is to governmental or state functions, involving, in one form or.another, an element of exercise of public power. The functions may be the traditional police functions of the State, involving the maintenance of law and order and other regulatory activities; or they may comprise functions pertaining to economic development, social welfare, education, public utility services and other State enterprises of an industrial or commercial nature. Ordinarily, these functions would be performed by persons or the Federal Government or a Provincial Government. However, in recent years, there has been manifest a growing tendency on the part of Governments to create statutory Corporations for undertaking many such functions, particularly in the industrial and commercial spheres, in belief that free from the inhibiting effect of red-tapism, these semi-autonomous bodies may prove more effective, flexible and also profitable.
Inevitably, Government retains effective control over their functioning by appointing the heads and other senior officers of these Corporations, by regulating their composition and procedures by appropriate statutes, and by finding funds for financing their activities. Examples of such statutory Corporations are the National Bank of Pakistan, the West Pakistan Water and Power Development Authority, the National Shipping Corporation, the Agricultural Development Bank of Pakistan and the large number of Universities functioning under their respective statutes. On account of their common attributes, as mentioned in the preceding paragraph, they have all been regarded as persons performing functions in connection with the affairs of the Federation or a Province.
However, private organizations or persons, as distinguished from Government or semi-Government agencies and functionaries cannot be regarded as persons performing functions in connection with the affairs of the Federation or a Province simply for the reason that their activities happen to be regularized by laws made by the State. Accordingly, a joint-stock company, incorporated under the Companies Act, for the purpose of carrying on commercial or industrial activity for the benefit of its shareholders, cannot be regarded as a person performing State functions, just for the reason that its functioning is regulated by law or that the distribution of its manufactured products is subject to Government control in the public interest. The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then the person including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not."
This view has also been reiterated in the Aitchison College (ibid).
81.Mr. Wasim Sajjad, learned Sr. ASC while relying upon the case of Salahuddin (ibid), argued that statutory Corporations are the same as the Government itself, therefore, their employees are to be treated at par with each other.
82.Argument advanced by him is not acceptable because the ratio decidendi of the judgment is that to determine as to whether a person is holding a post or office in connection with the affairs of the Federation, an element of sovereign authority and exercise of public power is essential to bring an employee or service within the scope of the words "affairs of the Federation". Thus it is concluded that the Parliament cannot enact a law declaring any other service to be the service of Pakistan by or under any Act, without demonstrating that such declared service has nexus with the affairs of the Federation. In fact, the framers of the Constitution have restricted the power of the Parliament to declare any service to be service of Pakistan by placing an embargo that such person should also hold a post or office in connection with the affairs of the Federation. Unless this condition is fulfilled, ever service cannot be declared by the Parliament to be service of Pakistan. In a number of judgments, this Court, in respect of statutory Corporations and Bodies owned or controlled by the Government, has held that such Corporations or Bodies are distinct and different from the Government and their employees are not ipso facto in the service of Pakistan. Reference in this behalf to the case, of Printing Corporation of Pakistan v. Province of Sindh (1985 CLC 1486), would not be out of context, wherein it was held that "workers working the petitioner company drawing up to Rs, 1000/- in terms of the definition of 'worker' given in the Ordinance can be said to be in service of State; they are in fact in service of the petitioner Company. As pointed out herein above the company has the power to employ any person under the Memorandum of Association; the mere fact that the Federal Government has totally subscribed 'A' class shares and appoints the Directors or that it issues directives from time to time will not change the status of the petitioner workers into the status of service in State; the concept of 'person in the service of the State' is a very old concept and in fact is now akin to the phrase "persons in the service of Pakistan"; in this regard reference may be made to Articles 242 and 275 of the Constitution, 1973; it has been consistently held by the Supreme Court that the employees of Corporations established by the Federal Government are not in service of Pakistan." To arrive at this conclusion, reference was made to Chairman East Pakistan Industrial Development Corporation, Dacca v. Rustam Ali (PLD 1966 SC 848), Abdul Salam Mehta v. Chairman Water and Power Development Authority (1970 SCMR 40), Shahid Khalil v. Pakistan International Airlines Corporation Karachi (1971 SCMR 568), Shujauddin Ahmad v. Oil and Gas Development Corporation (1971 SCMR 566) and R.T.H. Janjua v. National Shipping Corporation (PLD 1974 SC 146). The judgment in the case of Printing Corporation of Pakistan (ibid) came up under consideration before this Court in the case of Printing Corporation of Pakistan v. Province of Sindh (PLD 1990 SC 452), wherein it was held that "the fact that the part of the capital has been subscribed by the Government does not, in any manner, establish that the Federal Government controls the affairs of the appellant and the workers of the appellant are in the service of the State; similarly, if the Government has provided working capital, it would be a loan to the appellant, which has to be repaid; therefore, it cannot be said by any reason or logic that by doing so the Federal Government controls the affairs of the appellant or the workers of the appellant could be considered to be in the service of the State." It was further held that "merely by the fact that the Government owns 60 per cent share capital or the 'A' class ordinary shareholders representing the Government of Pakistan can appoint Directors including the Chairman, the Managing Director and the Finance Director, would not establish that the affairs of the Corporation are controlled by the Government."
83.This Court, while interpreting the Constitutional provisions, in the case of Don Basco High School (ibid), has held that it is well established rule of construction of statute that general terms following particular ones apply only to such persons or things as are Ejusdem Generis with those comprehended in the language of the Legislature. Reliance in this behalf has also been placed on R.V. Cleworth (1864) 4.B & S. 927. Relevant para therefrom is reproduced herein below: "In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended."
84.In the case of Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324), it was observed that "the 'general words cannot be construed in isolation but the same are to be construed in the context in which, they are employed; in other words, their colour and contents are derived from their context." Likewise, in the case of Farooq Ahmed Khan Leghari (ibid), similar observations were made. Similarly, in this very context, while disposing of Presidential Reference No, 2 of 2005 (PLD 2005 SC 873), it was observed that "general words cannot be construed in isolation but the same are to be construed in the context in which they are employed. In another judgment in the case of Adil Abdul Jabbar (ibid), High Court of Sindh observed that "it also needs to be kept in view that the Service Tribunals Act is a law enacted under Article 212 of the Constitution and though the Parliament is competent to declare a person to be in the service of Pakistan, such person, must perform an element of public duty; we fail to comprehend how a clerk of a private Stock Exchange could be deemed to be performing such public service."
85. Article 63 of the Constitution creates a disqualification for a candidate for the membership of Parliament if he is in the service of any statutory body or body, owned or controlled by the Government or in which the Government has controlling share or interest but status of such person is different, if he is in service of Government controlled Corporation and has been declared to be in the service of Pakistan. The 'service of Pakistan' is a broader expression which itself covers the 'service of any body, owned or controlled by the Government or in which the Government has a controlling share or interest'. This expression would not have been used as it would have been redundant in this Article because it is well settled that redundancy cannot be attributed to a Constitutional provision. Reference in this behalf may be made to the case of Shahid Nabi Malik
(ibid) and Reference No, 2 of 2005 (ibid). Therefore, both the expressions are to be considered distinctly with reference to the context, relating to the matter under discussion. It is established rule of interpretation that where the Legislature has used two different words in legislation, they must be given different meanings. Even if the words appear to be synonymous or akin to one another they should be assigned different meanings to avoid making one or the other legislative expression redundant. Reference may be made to State v. Zia-ur-Rehman (PLD 1973 SC 49) and Raja Maula Dad Khan v. West Pakistan Bar Council (PLD 1975 SC 469). From the principle highlighted herein above and as discussed in these two judgments, it is abundantly clear that Legislature, under Article 63 of the Constitution, by using the expressions 'service of Pakistan' and 'service of any statutory body or any body, owned or controlled by the Government or the Government has controlling share or interest' in it had identified the consequences, which would ultimately result in disqualification of a candidate in terms of clause (k) of Article 63(1) of the Constitution. Comparing this Article with Article 212(1)(a), expression 'service of Pakistan' has been employed and it does not make any reference to 'service of any statutory body or any body, owned or controlled by the Government or in which the Government has controlling share or interest'. Thus only those persons who are covered within the definition of 'service of Pakistan' in terms of Article 212(1)(a) of the Constitution, can invoke the jurisdiction of Tribunal, otherwise when the Constitution framers have used the expression 'service of any statutory body or any body, owned or controlled by the Government or in which the Government was controlling share or interest' alongwith the expression `service of Pakistan' may have used it. This distinction is presumed to be in the knowledge of the Constitution framers in view of the earlier judgment of this Court in the case of Chairman East Pakistan Industrial Development Corporation, Dacca (ibid), wherein it has been held that "employees of statutory Corporations are not the Government servants." Similarly in the case of Fazlul Quader Chowhdry (ibid), it has been held that "between amendment and adaptation there is a clear distinction and this distinction had already been the subject of discussion in judgments of Courts before this Constitution was framed; the framer of the Constitution is presumed to have been well aware of the distinction which had been accepted by the Courts; when he used the word 'adaptation', therefore, and omitted the word `amendment' in Article 224(3), there can be little doubt that he did so deliberately; the Legislature is by presumption an ideal person and has full knowledge of the state of case law, at least the important part of it."
86. It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of Section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323-A of the Constitution of India, which reads as under: '323A. (1). Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government. (emphasis provided)
Thus, with reference to above Article of the Constitution of India, the argument put forward by Mr. Iftikhar Gillani, learned Sr. ASC that Section 2-A creates a new and distinct class of Government servants, which is neither covered by the definition. of 'civil servant' nor by the definition of `service of Pakistan', seems to be correct. Therefore, Tor this reason alone Section 2-A of the STA, 1973 becomes ultra wires of the Constitution because the employees of Government controlled Corporations etc. are not covered by the definition of 'service of Pakistan' as provided under Article 260 of the Constitution nor their cases can be taken up under Article 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Article 212(1)
(a) of the Constitution because under this provision of the Constitution, administrative' tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of Pakistan. The terms and conditions of service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of Pakistan, as discussed herein above, and if their terms and conditions are governed either by a statute or statutory rules, in terms of Article 240 of the Constitution can seek remedy before the Service Tribunals. It can be, therefore, said in other words that as the persons, who are in service of Pakistan but whose terms and conditions of service are not governed by a statute or statutory rules, cannot invoke the jurisdiction of the Federal Service Tribunal. In this behalf in Mehboob Khan
(ibid) it was observed that "it was for the first time in 1973 that it was decided to regulate the terms and conditions of the Civil Servants through a statute and to set up Administrative or Service Tribunals to adjudicate the matters in respect of the terms and conditions of Civil Servants; and to achieve this object Articles 212 and 240 were introduced in the present Constitution; this was followed by promulgation of Civil Servants Act, 1973 to regulate the appointment and providing for terms and conditions of the persons in service of Pakistan; simultaneously Service Tribunals Act, 1973 was introduced; the result was that jurisdiction of all Courts excluding this Court in respect of the terms and conditions of service of the Civil Servants was excluded." In this very judgment it was further observed that "according to this Article [240], the terms and conditions of the persons in service of Pakistan were to be determined by or under Act of Parliament while conditions of persons in service of Provinces were to be governed by or under Act of Provincial Assembly; this was the natural consequence of Article 212 because earlier the civil servants were enjoying Constitutional guarantees; the same having been excluded from the purview of the Constitution, the Parliament in pursuance of this Article proceeded to promulgate Civil Servants Act LXXI of 1973; similarly the Provinces also promulgated the Provincial Civil Servants Acts; these statutes provided the superstructure while for disciplinary matters and procedure thereof Rules were promulgated at different levels." Reference at this stage to the case of Muhammad Shahbaz Sharif would not be out of context, wherein it has been held that "it is true that a person may not be a civil servant within the meaning of Civil Servants Act, 1973 but may be in the service of Pakistan as is the case with an Ambassador; however, the fact remains that in such cases also appointments to and terms and conditions of offices are determined by or under the Act of appropriate legislature or by rules framed pursuant to Article 240 of the Constitution which is not so in respect of holders of Constitutional offices; apart from the fact that Syeda Abida Hussain's case did not deal with the holder of Constitutional office and is, therefore, clearly distinguishable, on a closer analysis of the said judgment, it will be seen that one of the reason for holding that Syeda Abida Hussain was in service of Pakistan as an Ambassador was that she was governed by Rules of Service applicable to civil servants framed pursuant to Article 240 of the Constitution; similarly, the case of Mahboob Khan and 242 others v. Government of Pakistan through Secretary, Ministry of Railways, Islamabad and 5 others (1991 PLC (CS) 415) has no relevance nor does it advance the case of the petitioner; moreover in that case also it was observed that the terms and conditions of person in service of Pakistan were to be determined by or under the Act of the Parliament or the Provincial Assembly as mandated by Article 240 of the Constitution, which shows that the determining factor as to whether or not a person is in the service of Pakistan, is as to whether his terms and conditions are determined by law made under Article 240 of the Constitution."
Similarly in Qazi Wali Muhammad's case it has been held that the Federal Service Tribunal has no jurisdiction in cases where the terms and conditions of service of an employee in question are not or cannot be determined in terms of Article 240 of the Constitution. This view was followed by this Court in the case of Muhammad Siddique (ibid).
87.It may be noted that under Section 2-A of the STA, the Legislature has not declared the service of a person in the Government controlled organization to be the 'service in connection with the affairs of the Federation'. It may also be noted that under Article 240 of the Constitution `service of Pakistan' means "any service, post or office in connection with the affairs of the Federation."
Essentially, when a person is not holding a post in connection with the affairs of the Federation or of a Province, he would not be entitled to claim himself to be in the service of Pakistan, as discussed herein above. Likewise, there is yet another important condition i,e, he must hold a post or office in connection with the affairs of Pakistan.
88.Mr. Naeem Bukhari, learned ASC candidly conceded that if a person is not holding a post in connection with affairs of State, he would be governed by a contract and the remedy lies in damages. In this behalf it may be noted that word 'permanent post' as defined in Section 2(1)(e) of the CSA, 1973 means 'a post sanctioned without limit of time.' In the case of State of Assam v. Kanak Chandra (AIR 1967 SC 884), wherein with reference to Articles 309 and 310 of the Constitution of India, the 'post' has been defined as follows: "10. In the context of Arts. 309, 310 and 311, a post denotes an office. A person who holds a civil post under a State holds 'office' during the pleasure of the Governor of the State, except as expressly provided by the Constitution, see Art. 310. A post under the State is an office or a position to which duties in connection with the affairs of the State are attached, an office or a position to which a person is appointed and which may exist apart from and independently of the holder of the post.
Article 310(2) contemplates that a post may be abolished and a person holding a post may be required to vacate the post, and it emphasizes the idea of a post existing apart from the holder of the post. A post may be created before the appointment or simultaneously with it. A post is an employment, but every employment is not a post.. A post under the State means a post under the administrative control of the State. The State may create or abolish the post and may regulate the conditions of service of persons appointed to the post."
89.In view of the criteria laid down in the above judgment, as well as the definition of 'permanent post', it is concluded that the persons working in the Government controlled Corporations would not be deemed to be holding a post under Section 2-A of the STA, 1973 unless there is warrant under law i,e, that a statute governs appointments and regulates terms and conditions. In this context reference may be made to the employees, who are working on contract basis or are on deputation or fall within the definition of worker or workman, but cannot be considered to be holders of the post, in order to fulfill the requirement of Article 260 of the Constitution, according to which a person will be in the service of Pakistan, if he is holding a post or office in connection with the affairs of the Federation. Similarly, Article 240(a) of the Constitution speaks in respect of services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services. In order to make out a case for the purpose of hearing before a Service Tribunal, a person falling within the scope of Section 2-A of the STA, 1973, is required to hold a post, otherwise, in absence of such mandatory condition, he would not be deemed to be in service of Pakistan.
Therefore, the Service Tribunal would have no jurisdiction to grant him relief 90.Mr. M.A. Ghani, learned ASC contended that Civil Servants Act is a substantive law which creates rights and duties whereas Service Tribunals Act is a procedural law and the persons whose cases are covered under Section 2-A of the STA, 1973 are seeking remedy under the substantive law. So long as CSA, 1973 is not amended, incorporating the category of the persons falling within the mischief of Section 2-A of the STA, they cannot claim relief. Reliance in this behalf has also been placed by him on Divisional Engineer Phones (ibid).
91.This argument has already been discussed herein above, therefore, need not be repeated.
92.Malik Abdul Qayyum, learned ASC while supporting the arguments of learned Attorney General for Pakistan argued that the efforts should be made to save the enactment instead of destroying it, therefore, he contended that by harmonizing the provisions of Section 2-A of the STA, 1973, it may be declared that the employees of the Government controlled Corporations, whose terms and conditions have been determined by means of a statute, in terms of Article 240 of the Constitution, would be considered to be civil servants, provided they can show that a post or office is -held by them; secondly, the employees whose terms and conditions are not governed by a Statute but they are discharging their functions in connection with the affairs of the Federation, they can invoke the jurisdiction of the High Court under Article 199 of the Constitution for the redressal of their grievance; thirdly, the persons who are not covered under these two categories, they may be left to avail the remedy subject to their terms and conditions and; fourth category of the persons shall have the remedy before the forums provided by the labour laws.
93.Mr. Kamal Azfar, learned ASC has rightly contended that Section 2-A of the STA, 1973 only relates to change of forum but does not alter the terms and conditions of the employees, as according to him, there are Corporations who have statutory rules for the purpose of governing the affairs of their employees and some of the Corporations have got only Regulations, therefore, according to him out of both the categories, the one who fulfilled the requirement of Articles 240 and 260 of the Constitution shall have remedy before the Service Tribunal, constituted under Article 212 of the Constitution and the others may approach to the High Court or the Labour Court as the case may be.
94.The contention of Khawaja Muhammad Farooq, ASC seems to be correct that if the terms and conditions of an employee have not been determined under Article 240 of the Constitution, then they cannot seek remedy before the Service Tribunal and Section 2-A of the STA, 1973 would not be of any help to them. He further emphasized that if there are no statutory rules for governing the terms and conditions of the employees of a Corporation, they have to seek remedy by way of filing a suit for damages as this law is still holding the field. Reliance in this behalf has been placed by him on Lahore Central Co-operative Bank Ltd. Saif Ullah Shah (PLD 1959 SC 210) and Ms. Zeba Mumtaz u. First Women Bank Ltd. (PLD 1999 SC 1106).
95.Likewise the argument put forward by Ch. Mushtaq Ahmed Khan learned ASC that clustering of litigation before one Tribunal is against the principle of policy enshrined under Article 37 of the Constitution, therefore, merely for the purpose of providing a forum the employees of Government controlled Corporation/Authority cannot be considered in the service of Pakistan, is also found with force and substance.
96. Mr. Shahid Anwar Bajwa, learned ASC has also advanced convincing argument that according to Article 260 of the Constitution, the Parliament is competent to declare any service to be the service of Pakistan, subject to the condition that terms and conditions of such service shall be governed by a statute or statutory rules, under Article 240 of the Constitution and if it is not possible for the law giver to lay down the terms and conditions of the service under Article 260 of the Constitution, such service cannot be declared to be service of Pakistan. Therefore, according to him, the employees of those statutory Corporations or bodies, who do not fulfill these two tests, cannot be considered to be in the service of Pakistan nor civil servant for the purpose of availing remedy before an administrative tribunal, constituted under Article 212 of the Constitution. His argument seems to be convincing that the first part of Section 2-A of the STA, 1973, whereby the service of a statutory Corporation has been declared to be the service of Pakistan, seems to be in accordance with the Constitution subject to Articles 240 and 260 of the Constitution but second part is ultra vires of the Constitution because post or office cannot be declared to be the service of Pakistan. Since such persons do not hold any post in connection with the affairs of the Federation, they cannot be deemed to be civil servants.
97.Similarly, Raja Muhammad Akram. learned ASC was right in saying that workers or workmen, whose cases are covered under the IRO, 2002, cannot be declared to be in the service of Pakistan for the purpose of invoking the jurisdiction of the Service Tribunal because their appointment had not taken place by virtue of the terms and conditions laid down by the Legislature under Article 240 of the Constitution nor such persons shall be deemed to be civil servants because they are not holding a permanent post for the purpose of discharging their functions in connection with the affairs of the Federation.
98.Mr. Wasim Sajjad, learned Sr. ASC contended that while examining the vires of Section 2-A of the STA, 1973, it would be appropriate if the Court keeps in mind the social set up of the country, in view of the observation in the case of Arshad Mehmood (ibid) and M/s. Ellahi Cotton Mills (ibid), therefore, if the status of a civil servant is conferred upon a person, covered under Section 2-A. of the STA, 1973, it must be kept intact as held earlier in the case of Farid Ahmed v. Karachi Shipyard and Engineering Works Ltd. (PLD 1983 Karachi 576), Nisar Ahmed v. Secretary Ministry of Information (1984 PLC (CS) 372) and Printing Corporation of Pakistan v. Province of Sindh (1990 PLC (CS) 176).
99.Above argument, while making reference to the Constitutional provisions, discussed herein above, has no force. It may also be noted that in the judgments cited by the learned counsel, vires of Section 5 of the Corporation Employees (Special Powers) Ordinance, 1978 (Ordinance No, XIII of 1978) were not examined, therefore, merely for the reason that Legislature has declared the service of a Government controlled Corporation/Authority to be service of Pakistan and such person is holding the post in connection with the affairs of Pakistan, is not acceptable. However, in view of the principle of taking into consideration the -social set up of the country, attempt should be made to extend the benefit of Section 2-A of the STA, 1973 to some of the persons, whose cases are protected by the Constitutional provisions i,e, Articles 240 and 260 of the Constitution.
100. Learned counsel also contended that following the case of L. Chandra Kumar (ibid), if this Court comes to the conclusion that the provisions of Section 2-A of the STA, 1973 are ultra vires of the Constitution then, it may be held that the judgments delivered by the Service Tribunal are with jurisdiction but they can be challenged before the High Court under Article 199 of the Constitution. or recommendations be made to the Government that against the decision of the Service Tribunal, a right of appeal be given to such employees before the High Court for the purpose of disposing of the cases and; lastly any other appropriate direction, which deemed appropriate by this Court, be issued in this behalf.
101. Syed Iftikhar Hussain Gillani learned Sr. ASC also stated that instead of striking down Section 2-A of the STA, 1973, it may be interpreted in such a way that the law should be saved and intention of the Legislature can be ascertained. Indeed, Court should refrain from entering into technicalities.
He has placed reliance on Reference by the President No, .1 of 1957 (ibid), Pir Sabir Shah (ibid) and Zulfiqar Ali Baba (ibld). Relevant para from the case of Pir Sabir. Shah (ibid) is reproduced herein below for convenience: "27. The question of the constitutionality of a law, or to put it differently, whether a law is intro vires or ultra vires does not depend upon consideration of jurisprudence or of policy. It depends simply on examining the language of the Constitution and of comparing the legislative authority conferred on the Parliament with the provisions of the sub-Constitutional law by which the Parliament purports to exercise that authority."
102. We have examined the arguments put forward in this context and we are quite in agreement with Syed Iftikhar Hussain Gillani, learned ASC that efforts should be made to save the law by excluding those portions which appear to be contrary to any Constitutional provision.
103. Dr. Babar Awan, learned ASC also vehemently argued that as Section 2-A of the STA, 1973 has been enacted through an Act of Parliament, therefore, the same should be saved.
104. There can be no cavil with the proposition but the exception is that if any Act of the Parliament is found to be in derogation of any provision of the Constitution, it would not be allowed to hold the field because of the mandate of Constitution, which is supreme for all intents and purposes.
105. Argument by Raja Muhammad Bashir, learned ASC seems to be convincing that there are many employees of statutory Corporations whose terms and conditions of service are regulated by statutory rules, therefore, they would fall within the domain of Section 2-A of the STA, 1973, whereas the Government controlled Corporations, which have got no statutory backing nor any statutory rules governing the terms and conditions of service of their employees, they would not fall within the mischief of Section 2-A of the STA, 1973. Such persons have remedy before the Civil Courts and thirdly as far as the workers or workmen are concerned, can have recourse to the Labour Court. which is now a days being headed by a District & Sessions Judge, therefore. Section 2-A may not be declared ultra vires of the Constitution, in entirety.
106. Mr. Muhammad Akram Sheikh, learned Sr. ASC contended that undoubtedly a category of the persons not covered under the definition of civil servant stands excluded from the definition of the civil servant, has been declared to be civil servant by virtue of Section 2-A of the STA, 1973 but it should not be treated as a discrimination in view of the judgment in the case of Inamur Rehman
(ibid) because so far, no argument has been advanced that due to this discrimination, injustice has been caused to some of the persons. He further stated that if at all this Court declares Article 2-A of the STA, 1973 ultra vires of the Constitution, in respect of those employees whose service conditions are not protected by statutory provisions, they would be governed by the rule of master and servant, a phenomena which has already undergone radical changes, because the intent of the Constitution is to establish an egalitarian society, where all citizens are equal and there should be no concept of master and servant between and employee and employer. Reference in this behalf has been made by him to R v. Civil Service Appeal Board [1988] 3 All E.R. 686 and Gunton v.
London Borough of Richmond upon Thames [1980] 3 All E.R. 577.
107. In this behalf it may be noted that in Farasat Hussain's case (ibid), while placing reliance on Zahir Ullah's case, it was held that the concept of master and servant has undergone a radical change during the last couple of years mainly due to insertion of Section 2-A in Service Tribunals Act, 1973". It may be noted that in the said judgment as well, this Court had not examined the vires of Section 2-A of the STA, 1973, therefore, the argument of the learned counsel that this phenomena cannot be reintroduced, has no substance because if Section 2-A is declared to be unconstitutional then position prior to its insertion shall revive. So far as the judgments from other jurisdictions, relied upon by the learned counsel are concerned, relevance of the same also depends upon the conclusion, which shall be drawn in respect of constitutionality of Section 2-A of the STA, 1973.
108. The threadbare discussion on the subject persuades us to hold:-
1. Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under Section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
2. Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under Section 2(1)(b) of the CSA, 1973.
3. The cases of the employees under Section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in Section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not cover by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of Section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, which ever is earlier.
(e) The Service Tribunal shall decide pending cases under Section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause 'c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.