SHAH ABDUR RASHID (CHAIRMAN).-Mohammad Ashfaq Mallal, was serving as Election Officer in the Election Commission of Pakistan when he was charge-sheeted and then after enquiry removed from service by order dated 12th March, 1976, of the Chief Election Commissioner purporting to have been made under rule 3 of the Govern--ment Servants (Efficiency and Discipline) Rules, 1973.
The charge against the appellant was that he made bogus T. A. Claim for staying in the hotel whereas in fact he never stayed in the Hotel and the receipt for the amount produced by him was not genuine. His appeal against the order of removal from service was also dismissed and the decision was commu--nicated to him on 12th March, 1976. Against this order Mohammad Ashfaq Mallal has come up in appeal before us tinder section 4 of the Service Tribunals Act, 1973.
2. The learned counsel for the respondent Chief Election commis--sioner has raised a preliminary objection with regard to the jurisdiction of this Tribunal to entertain the appeal on the ground that the terms and conditions of the appellant are not governed by the Civil Servants Act, 1973, and therefore the Tribunal which has been set up under the Service Tribunals Act, 1973, cannot adjudicate in respect of the emplo--yees of the Election Commission.
3. We have heard the learned counsel for the appellant as also the learned counsel for the respondent on the point of jurisdiction. A few decisions were cited at the bar by the learned counsel for the respondent which are :--- PLD 1969 SC 210: PLD 1966 SC 445 and PLD 1966 SC 848.
4. The learned counsel for the appellant on the other hand referred to the following cases:-- PLD 1966 Lah. 1031; PLD 1976 SC 244; PLD 1974 SC 146; PLD 1973 Lah. 188 and PLD 1973 Lah. 425
5. On going through these cases I find that none of them has any relevany whatsoever with the specific question of jurisdiction of the Tribunal or of any similar authority in respect of the employees of the Election Commission or for that matter of any institution set up under the Constitution, I refrain from discussing the facts of these cases as this will unnecessarily encumber this order without giving any assistance in answering the question under consideration.
6. The employees of the Election Commission do come within the definition of Article 260 of the Constitution defining the term "Service of Pakistan" inasmuch as they are serving in connection with the affairs of the Federation. The question whether the Civil Servants Act, 1973, and the Service Tribunals Act, 1973, are applicable to the employees of the Election Commission, however, falls under a different heading. Article 240 lays down that subject to the Constitution the appointments to and the conditions of service of the persons in the Service of Pakistan shall, in case of service of Federation, 6e determined by or under an Act of Parliament. If this was the only provision then perhaps the Civil Servants Act, 1973, which was made under Article 240 could have been extended to the employees of the Election Commission. But Article 221 oaf the Constitution lays down that the terms and conditions of employ--ment of the officers and servants of the Election Commission shall be regulated by rules made by the Commissioner with the approval of the President unless Parliament by law otherwise provides specifically with regard to terms and conditions of the officers and servants of the Election Commission. The law made in connection with other persons in the service of Pakistan shall not extend to those officers and servants.It is clear from the language of the Article 221 that the Parliament is under no obligation to make law with regard to the appointments and terms and conditions of officers and servants of the Commission whereas under Article 240 the appointments to and the conditions of persons in the Service of Pakistan are to be determined by or under an act of Parlia--ment. It is a general rule of interpretation of statutes that where there is a specific provision in any law that specific provision will be applicable and give way to any general provision on the same subject. In the present case Article 221 is a special provision relating to those persons in the service of Pakistan who are employed as officers and servants of the Election Commission. The law made under Article 240 would not, therefore, extend to the officers and servants of the Election Commission for which the Parliament may in its discretion make separate law laying down their terms and conditions and method of appointment.
Since no law has been made by the Parliament, the terms and conditions of the officers and servants of the Election Commission are to be regulated day the rules made by the Commission with the approval of the President, In this view of the matter neither Civil Servants Act, 1973 not the Service Tribunals Act, 1973, is applicable to the employees of the Election Commission.
7. The learned counsel for the appellant has however argued that the respondent is estopped from taking the plea of jurisdiction inasmu ch as the action against the appellant was taken under the Government Servants (Efficiency and Discipline) Rules, 1973, which .Ire made under the Civil Servants Act, 1973, for dealing with the matter of the Civil Servants. This contention in our view has little substance. Firstly because there can be no estoppel against law and secondly because under the rules made by the Election Commissioner in rule 4 (2) it is provided broadly that the terms and conditions of service of officers and servants of the Commission Secretariat shall be the same as applicable to the corresponding posts in the Central Secretariat and the persons appointed, thereto. The action under the Government Servants (Efficiency and Discipline) Rules, 1973, was taken against the appellant because those' rules were impliedly adopted by the Commission by rule 4 (2) of the Election Commission (Officers and Servants) Rules, 1967.
8. The learned counsel four the appellant then pointed out that Notification dated 3rd September, 1970 making some amendment in rules 3, 5, etc. Was made by the President after consultation with the Commissioner and therefore it cannot be said that the officers and servants of the Commission are subject to rule making powers of the (SIC) made by the Parliament the rules can be made by the President it can be well presumed that the Parliament without invoking the provisions of Article 221 makes law with regard to terms and conditions of officers and servants of the Commission. 1n substance the argument was that the Civil Servants Act, 1973, which has been made by the Parliament is applicable to the employees of the Commission also because no exception, has been made and when the President was the rule making authority in respect of persons in the service of Pakistan the rules were made by the President himself for the employees of the Commission. In this contention I find little force inasmuch as when the amendment in the Rules were made in 1970 the Constitution of 1962 has been abrogated and the law available at that tune for making the rules was Electoral Rolls Order, 1969 (P.O. No. 6 of 1969) which has been invoked. After the enactment of 1972 Constitution the position has completely changed and the Chief Election Commissioner has full powers to make the rules with regard to the officers and servants employed by him unless the Parliament specifically chooses to make law for them.
9. In view of what has been said above we are of the opinion that since the Parliament has not made any specific law with regard to the officers and servants of the Election Commission, the appellant is grovened by the rules made by the Commissioner and not by the Civil Servants Act, 1973 or Service Tribunals Act, 1973. This Tribunal, therefore, hasp no jurisdiction to adjudicate in this matter. On this ground alone, the appeal is rejected but no order as to costs is passed.
10. Parties to be informed.