' ABDUL HAMEED DOGAR, J.--- Through this common judgment we intend to dispose of Civil Appeals Nos.1181 and 1182 of 2002 as identical questions of law and fact are involved. These appeals with leave of this Court are directed against the judgment, dated 18-12-2000 passed by learned Federal Service Tribunal, Islamabad (hereinafter referred to as "the Tribunal") whereby Appeal No,563-R/CS of 2000 filed by appellant Imdad Ali Khan and Appeal No,746-R/CS of 2000 filed by appellant Mir Ghias Khan were dismissed on the ground of beyond its territorial jurisdiction.
2. Briefly, stated the facts leading to the filing of Civil Appeal No,1181 of 2002 are that appellant Mir Ghias Khan was appointed as Assistant Executive Engineer (B-17) in the Northern Areas PWD on Ad hoc basis. This post was neither advertised nor he was recommended for regular appointment.
Thereafter, in 1991, Federal Public Service Commission advertised the posts of Assistant Executive Engineers in the 'Northern Areas PWD. In September, 1991 appellant appeared in the examination and was declared successful. Thereafter, on 21st March, 1992 he was appointed as Assistant Executive Engineer on regular basis. The claim of the appellant is that sixteen other candidates who appeared along with him in the interview have been shown senior to him although he is already in service with effect from 11-8-1987. On 4-7-1992 he filed departmental appeal for assigning him seniority with effect from the date of his appointment i,e, 11-8-1987 with all back-benefits but his request was turned down vide order dated 17-10-2000. Feeling aggrieved he filed Appeal No,746- R/CS of 2000 before the learned Tribunal which was turned down vide impugned judgment on the plea that the Northern Areas do not fall within the territorial definition of Pakistan, therefore, the appellant is not employee of the Federal Government within the meaning of Articles 240 and 260 of the Constitution of Islamic Republic of Pakistan, 1973 and also is not civil servant within the ambit of section 2(1)(b) of the Civil Servants Act, 1973.
3. As regards Civil Appeal No,1182 of 2002 appellant Imdad Ali Khan was working as Divisional Forest Officer in the Northern Areas Forest Department, Gilgit. On 24-1-1991 he moved application to the Secretary, Ministry of Kashmir Affairs and Northern Areas, Islamabad, (hereinafter referred to as "KANA Division") for the post of Director Jhunjers, National Park Gilgit in (BPS-19) on the basis of his eligibility and merit including the threshold qualifications. In the meanwhile appellant was allowed move-over from BPS-18 to BPS-19 with retrospective effect from 1-12-1990 but was not promoted.
Appellant agitated his grievance and filed Writ Petition No,326 of 1994 before the learned Peshawar High Court which was disposed of on 16-4-1994 with a direction to KANA Division to dispose of the representation of appellant within two months in accordance with law. In the light of that order, on 5-6-1994 KANA Division directed the Chief Commissioner for initiating the case of appellant for promotion in BPS-19. The Chief Commissioner asked the Conservator of Forest, Gilgit on 22-6-1994 to send proposal for filling up the post of Director K.N.P. (BPS-19) on prescribed forms duly completed in all respects. Finally vide order, dated 11-1-1996 KANA Division promoted one Ghulam Tahir who was, junior to appellant as Director, KNP (BPS-19) Forest Department in the Northern Areas and the appellant was, superseded. Feeling aggrieved from the order, dated 17-1-2000 whereby he was not promoted by the Departmental Promotion Committee, he filed Appeal No,563- R/CS of 2000 before the Tribunal but the same was dismissed vide impugned judgment.
4. Leave to appeal was granted in both the matters by this Court on 9-9-2002 to consider:--- "Whether the status of the petitioners is that of the employees of Federal Government and they fall within the definition of 'civil servant' in terms of section 2(1)(b) of the Civil Servants Act, 1973 to be governed by the service laws of the Federation and can avail the remedy of appeal before the Federal Service Tribunal or they are members of establishment of Northern Areas and being not employees of the Federal Government should approach the civil Court having territorial jurisdiction."
5. We have heard Mr. Fazal Ellahi Siddiqui, learned counsel for appellant in Civil Appeal No,1181 of 2002, Mr. Muhammad Bilal, learned counsel for appellant in Civil Appeal No,1182 of 2002, Ms. Naheeda Mehboob Ellahi, learned Deputy Attorney-General, Messrs Abdul Karim Khan Kundi, Muhammad Munir Peracha and Raja Muhammad Asghar, learned counsel for respondents at length and have gone through the record and proceeding of the case in minute particulars.
6. Mr. Fazal Ellahi Siddiqui, learned counsel for appellant Mir Ghias Khan vehemently contended that the learned Tribunal has seriously erred in holding that appellant is a civil servant of Northern Areas, as such, the learned Tribunal has no jurisdiction to entertain his grievance with regard to the terms and conditions of his service. According to him, appellant did his decree of Bachelor of Science in Civil Engineer in first Division from the University of Engineering and Technology, Lahore, on 2-3-1986 and was appointed by the Government of Pakistan, KANA Division as Assistant Executive Engineer B&R Division BPS-17 in the Northern Areas with effect from 21-3-1992 through Federal Public Service Commission and approved by the competent authority. According to him, his appointment was done by the competent authority viz. Federal Minister, KANA Division on the terms and conditions vide Memorandum No,NA.III-4(13)/86 dated 25th July, 1992 initially for a period of one year on the probation extendable for another period of one year under section 6 of Civil Servants Act, 1973, as such he becomes civil servant within the meaning of Civil Servants Act, 1973. He further argued that appellant was non-suited by the learned Tribunal without advancing any cogent reason simply referring the case of one Muhammad Riaz an employee of Police in Northern Areas, Gilgit. Learned counsel while distinguishing the case of appellant with that of Muhammad Riaz argued that Muhammad Riaz in fact was appointed as Sub-Inspector by Inspector-General of Police Northern Areas, Gilgit. According to him, Muhammad Riaz was neither the employee of the Federal Government nor he was posted by the Federal Government in the Northern Areas being person in service of Pakistan to serve in that area on deputation nor his seniority was determined by the Federal Government which was the main reason which weighed with this Court in Civil Appeal No,48 of 2001 filed by said Muhammad Riaz decided on 11-10-2001. But the appellant is receiving his remuneration from the Federal Government exchequer through Accountant-General of Pakistan.
7. Mr. M. Bilal, learned Senior Advocate Supreme Court for appellant Imdad Ali Khan adopted the arguments advanced by Mr. Fazal Ellahi Siddiqui, learned counsel for appellant Mir Ghias Khan but further added that appellant Imdad Ali Khan is also an employee of Forestry KANA Division, as such, his terms and conditions of service would be governed by Civil Servants (Efficiency and Discipline)
Rules, 1973 being federal employee of Government of Pakistan. According to him, though he was allowed move-over from B-18 to B-19 with retrospective effect from 1-12-1990 but was not promoted, as such, he filed Writ Petition No,3262 of 1994 before the Lahore High Court, Rawalpindi Bench, claiming promotion/seniority which was entertained by the learned High Court and direction was given to the competent authority to dispose of the representation expeditiously vide order, dated 16-1-1994. According to him, it is pertinent to note that the Federal Government was the respondent in that writ petition but did not raise any objection to the issuance of such direction.
Since the appellant was not promoted but one Ghulam Tahir was promoted as Director (B-19) by the competent authority KANA Division with the approval of Prime Minister's Secretariat, Islamabad, who even according to the Office Order dated 11-1-1996, was appointed on probation for one year extendable for another period of one year under section 6 of Civil Servants Act, 1973 and on expiry of said period under section 3, rule 21 of Civil servants (Appointment, Promotion and Transfer) Rules, 1973 the probation period shall be deemed to have been extended for a further period of one year.
To further substantiate the stance, learned counsel for appellant contended that appellant invoked the jurisdiction of the learned Tribunal in Appeal No,271(R) of 1996 which was admitted for regular hearing and after hearing appellant, respondents viz. Chief Executives, Kashmir Affairs and Northern Affairs, Islamabad, Secretary, KANA Division, Islamabad, Secretary, Establishment Division, Islamabad and Ghulam Tahir, Director, KNP, Khanjarb, N.A. Concluded that if the appellant was not found guilty in any disciplinary proceedings then his case for promotion should be considered and original seniority be restored to him. He further argued that appellant's case was also considered by this Court in Civil Petition No,87 of 1997 wherein it was directed to Secretary, KANA Division, Islamabad, to consider his case for promotion. Even contempt application was filed before this Court, which was also entertained. In support of his contention that appellant is civil servant within the meaning of section 2(1)(b) of the Civil Servants Act, 1973, he referred to letter dated 4-2-1997 whereby a charge-sheet was issued against appellant by minister for KANA Division as authorized Officer to proceed under Rule 5(i)(ii) read with Rule 6 of the Government Servants (Efficiency and Discipline) Rules, 1973, and Mr. Naseer Ahmed, Secretary Home Services and General Administration and Department, Northern Areas was appointed as Enquiry Officer and in said inquiry, he was exonerated, therefore, for all intents and purposes, appellant is an employee of Government of Pakistan and is civil servant within the meaning of Civil Servants Act, 1973 and the learned Tribunal has the jurisdiction.
8. On the other hand, Ms. Naheeda Mehboob Elahi, learned Deputy Attorney-General for respondents controverted the above contentions of appellant's counsel and argued that both the appellants being part of Administration of Northern Areas are not employees of the. Federal Government, thus, they are not civil servants within the contemplation of the term as defined in section 2(1)(b) Civil Servants Act, 1973 and Service Tribunals Act, 1973 and could not invoke the jurisdiction of the learned Tribunal established under Article 212(2) of the Constitution of Islamic Republic of Pakistan, 1973. She further submitted that in the light of observations made by this Court in the case of Muhammad Riaz referred (supra), Northern Areas Chief Court, Gilgit, has issued a circular dated 13th June, 2002 by virtue of which the appellants can conveniently approach the Civil Court in the Northern Areas for adjudication of theit disputes relating to the terms and conditions of their service.
9. As mentioned above, the matter of appellant Imdad Ali Khan was admitted by the learned Lahore High Court, Rawalpindi Bench claiming his seniority wherein the petition was admitted and was disposed of with the direction to the respondents, namely, Chief Executives, Kashmir Affairs and Northern Areas, Islamabad, Secretary, KANA Division, Islamabad and also to the Secretary, Establishment Division, Islamabad for considering his case. Thereafter even the learned Tribunal also admitted his case challenging his seniority and did not raise the question of its territorial jurisdiction at that time. Even this Court in Civil Petition No,87 of 1997 also disposed of the petition of the appellant and directed Chief Executives, Kashmir Affairs and Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and Secretary, Establishment Division, Islamabad to consider his case for promotion. Even Criminal Original Petition No,43 of. 1999 filed by appellant before this Court was also entertained and disposed of with the direction to the concerned Authority for taking necessary action. This on the face of it shows that prior to the impugned judgment, the matters pertaining to the terms and conditions of employees in the service of Northern Areas were admitted and dealt with by the learned Lahore High Court, learned Tribunal and also by this Court wherein the respondents, namely, Chief Executives, Kashmir Affairs and Northern Areas, Islamabad, Secretary, KANA Division, Islamabad, and Secretary Establishment Division, Islamabad did not raised any objection regarding its territorial jurisdiction but conceded to the same, as such, now they cannot raise a contrary stance. Even in parawise comments filed in this Court in Civil Petition No,87 of 1997 no such plea regarding territorial jurisdiction has been raised, as such, they are now stopped to raise it. Irrespective of above and from the above narration of facts, it is Clear that when the disciplinary proceedings on account of his involvement in cutting of forest in Chilas Sub- Division were initiated by respondents, namely, Chief Executives, Kashmir Affairs and Northern Areas, Islamabad, Secretary, KANA Division, Islamabad and Secretary Establishment Division, Islamabad, against Imdad Ali Khan appellant, the same were done under the Government Servants (Efficiency and Discipline) Rules, 1973, which makes the status of appellant clear that he was the civil servant within the meaning of section 2(1)(b) of the Civil Servants Act, 1973 and he can competently invoke the jurisdiction of Service Tribunals Act. The case of Muhammad Riaz referred (supra) decided by this Court in Civil Appeal No,48 of 2001 is distinguishable with that of case of appellant as in that case Muhammad Riaz was the member of Police Establishment of Northern Areas which was established by the Administration of the Northern Areas which had its own rules and regulations of service, whereas appellant Mir Ghias Khan was appointed by Government of Pakistan KANA Division in a selection conducted by the Federal Public Service Commission and approved by the competent authority in BPS-17 initially on probation for a period of one year extendable for a further period of one year under section 6 of Civil Servants Act, 1973 and if no order is issued under sub-rule (3) of rule 21 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, on expiry of first year of probation period, the probation shall be deemed to have been extended under sub-rule (3) of rule 21 of the said Rules.
10. To further substantiate, it would be relevant to refer S.R.O. No,1367(I)/98 published on 14-12-1998 whereby posts of Assistant Engineer BS-17 and above are to be appointed by the Chief Executive, KANA Division, Government of Pakistan, under Civil Servants Act, 1973 and under sub-Rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. In Schedule IV, the Administrative Powers of Chief Executive of Northern Areas lies with Minister for KANA Division. In case of appointments of BS-17 and 18 on ad hoc basis would be made by Appointing Authority on the recommendations of the Departmental Committee whereas on regular basis, the appointment in BPS-17 and 18 would be made by the Appointing Authority subject to the recommendations of the Federal Public Service Commission. In case of BPS-19 and above the Appointing Authority is Prime Minister on the recommendations of the Selection Board.
11. From the above resume, we are of the opinion that appellants are civil servants within the meaning of section 2(1)(b) of the Civil Servants Act 1973, as such, the learned Tribunal had the jurisdiction to entertain and decide the matters relating to the terms and conditions of their services. Accordingly, the impugned judgment, dated 18-12-2000 is set aside and both the appeals are allowed with no order as to costs.