1. ABDUL QADEER CHAUDHARY (CHAIRMAN).------The appellant was appointed as A. S. I. On 1-1- 1952, was promoted as Sub-Inspector on 1-10-1955 and then as Inspector on 13-6-1966, in which capacity he was confirmed on 15-10-1970. The appellant thereafter was promoted as D. S. P. On 29- 8-1970 and after having served for about 3 years, was promoted as S. P., Anti-Corruption on 12th March, 1974.
2. The appellant was posted as S. P., Anti-Corruption on the 12th March, 1974, subsequent whereto his services were transferred to the Federal Government and he was posted as Deputy Director, F. I. A., Quetta on 11th July, 1975, from where he was transferred to Hyderabad by order dated 1-10-1975. The appellant was then posted as Assistant Director, Intelligence, Quetta, on 15-12-1975, thereafter his services were transferred to the Pro--vincial Government and he was posted as Officer on Special Duty on 7th January, 1976.
3. While being posted as O. S. D., the appellant was served with a show-- cause notice on 16-10-1976 by the Federal Government the respondent No. 2 alleging that he is responsible of having built large property, was running a bus in the name of his father and for the stated grounds it was alleged that he was considered to be a corrupt officer, guilty of misconduct under Government Servants (Efficiency and Discipline) Rules of 1973 and the appellant as such was called upon to show cause why a major penalty be not imposed on him.
4. The appellant submitted a reply, belying all the allegations made against him. However, without any further proceedings in the matter, the President of Pakistan by notification dated 26th January, 1977 purporting to act as under rule 3 of the Government Servants (Efficiency and Discipline) Rules of 1973, compulsorily retired the appellant from service w. e. f. 27th January, 1977. Consequent to the orders made by the President of Pakistan, the Government of Baluchistan, the respondent No. 1, passed a further order on 29th January, 1977 retiring the appellant.
5. The appellant filed a Review Petition both to the respondent No. 1, as also, to the President of Pakistan. Hence this appeal.
6. A preliminary objection was taken by the learned Assistant Advocate --General that the appeal filed by the appellant is not competent in this Tribunal as the appellant is an employee of Federal Government and he has been retired by the Federal Government, therefore the appeal lies to the Service Tribunal constituted by the President for the members of "All Pakistan Service". The question is to be decided whether the appellant is a member of a Civil Service of the Province or an employee of Central Government. It is the contention of the respondent, that the appellant was a Superintendent of Police at the time of his retirement and belonged to the police group of the All Pakistan Unified graces and was thus a Civil Servant of the Federation.
7. The definition of Civil Servant as given in section 2 (b), Civil Servants Act, 1973 is as under :---- "Civil Servant" means a person who is a member of an All Pakistan Service or of a Civil Service of 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 ...........................
8. The definition of Civil Servant as given in section (2)(b) of the Baluchis--tan Civil Servants, Act, 1973 is as under :- " `Civil Servants' 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 Province ......................
9. The learned Assistant Advocate-General has referred to the notifica--tion dated 14-9-1973 issued by the President of Pakistan, which reads as under :- "S. R. O. 1307(1)/73.-In exercise of the powers conferred by section 25 of the Civil Servants Ordinance, 1973 (XIV of 1973) the President is pleased to make the following rules :--
(1) These rules may be called the All Pakistani Services (Change in Nomenclature) Rules, 1973 and shall come into force at once.
(2) These rules apply to all members of the Civil Service of Pakistan and the Police Service of Pakistan.
(3) Notwithstanding anything contained in any Rules, order, resolution or instruction, the names of the Civil Service of Pakistan and the Police Service of Pakistan are, with immediate effect changed to All Pakistan Unified Grades and all references to Civil Service of Pakistan and Police Service of Pakistan in any rule, order, resolution or instruction shall be construed as references to All Pakistan Unified Grades.
(4) All persons who, immediately before the coming into force of these rules, were members of the Civil Service of Pakistan or the Police Service of Pakistan are appointed, in their existing posts, to all Pakistan Unified Grades."
10. This notification has only changed the nomenclature of Civil Service of Pakistan and the Police Service of Pakistan and those services are thereafter named as All Pakistan Unified Grades'. It is an admitted position that the appellant's initial recruitment was that of an A. S. I., made by the Provincial Government. He was promoted as S. P. By the Provincial Government of Baluchistan. No law or rule has been shown to us that after promotion to the rank of S. P. The appellant by operation of law become the Civil Servant of the Federation.
11. The learned Assistant Advocate-General then referred to Office Memorandum issued by the Establishment Division on 31st May, 1975, the relevant part of which is reproduced below:- GOVERNMENT OF PAKISTAN CABINET SECRETARY (Establishment Division)
12. No. 3/2/75-ACR, Rawalpindi, the 31st May, 1973.
13. OFFICE MEMORANDUM Subject :--Administrative Reforms Police Group.
14. In continuation of the Establishment Division O. M. No. 2/2/75-ACR, dated 21-2-1975, it has been decided to constitute another occupational group called the police group which will comprise all Police Posts in Grade 17 and above, viz. A. S. P., S. P., D. I.-G., Additional I.-G. (specified in the schedule of the cadre strength of the former P. S. P. Now called all Pakistan Unified Grades) as may be revised from tune to time.
2. The police Group will be under the Administrative control of the Establishment Division and will function within the following framework of rules and procedure.
3. Grade 17.-Recruitments to the posts of in Grade 17 (Assistant Superintendents of Police) will continue to be made through the F. P. S. C. As hitherto. On selection by the F. P. S. C. The probationers will be given integrated training at the Academy for Administrative Training, Lahore, Those allocated to the Police Group will be posted to the Provinces and given farther specialised training at the Police Training College Sihala.
4. Grade 18 and above.-Officiating appointments to Grade 18 were hither-- to made by the Provincial Governments. As already decided in the case of the District Management Group, all appointments to Grade 18 will hence--forth be made by the Federal Government.
5. Appointments to posts in Grade 18 will be made by promotion of officers of Grade 17 of the police group and also of Grade 17 officers of the Provincial Police of the rank of D. S. P. Of requisite service and experience who are recommended by the provincial Governments. Selection for appointment to posts in Grade 18 and above will be made on the recommendations of the Central Selection Board.
15. This notification also does not help the respondent. First of all it has not been stated under what provisions of law this notification has been issued and secondly it only means that all appointments to Grade 18 will henceforth be made by the Federal Government. The recommendation would be made by Provincial Governments and selection would be made by the Central Selec--tion Board. It also provides that the police group will be under the adminis--trative control of the Establishment Division. Neither the words Administra--tive Control' has been defined, nor it has been established that this `control' also includes, the dismissal or retirement of a Police Officer.
16. To reach a correct conclusion, one has to study the provisions of the Constitution. The "Law and Order" problem is primarily the concern of the Provincial Government.
17. This subject does not find its-police anywhere in the Federal Legislature List (Fourth Schedule of the Constitution). Item No. 40 of Fourth Schedule makes the position more clear, that the police is a Provincial subject. Item No. 40 reads as under :- "Extension of the powers and jurisdiction of members of a police force belonging to any province to any area in another Province, but not so as to enable the the police of one Province without the, consent of the Government of that Province extension of the powers and jurisdiction of members of a police force belonging to any Province to railway areas outside that Province."
18. Federal Law has been defined in Article 260(1) of the Constitution "Federal Law" means a law made by or under the authority of Parliament.
19. In the same Article `Service of Pakistan' 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 Parliament or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, etc., etc. . . . . ."
20. As observed earlier the office of the appellant has no connection with the affairs of Federation. But it has connection with the affairs of a Province. The service particulars of the appellant as given above also show that the appellant was treated as a Provincial Servant. At the time of his retire-- ment he was serving in the Province.
21. Article 240 of the Constitution provides that the appointments to and conditions of service of persons of Pakistan shall be determined in the case of the Services of Federation and posts in connection with the affairs of he Federation by or under Act of Parliament and in the case of the ser--vices of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
22. The service of the appellant has no connection with the affairs of the Federation but it definitely includes in the services of a Province, as laid down in the provisions of the Constitution.
23. On 26-11-1969 the President of Pakistan framed the Police Service of Pakistan (Composition and Cadre) Rules (Notification No. S. R. O. 2169 (K)/69, dated 26th November, 1969), whereby every member of the service shall be shown to belong to one of the two Provincial Cadres to which he shall continue to belong throughout the entire period of his service. Accord--ing to this notification the post of S. P. Is a cadre post mentioned in the schedule of the notification.
24. According to this notification also, the appellant belonged to the Provin--cial cadre.
25. Much stress has been laid on the notification dated 14-9-1973. But the effect of notification dated 14-9-1973 is only that the appellant after his promotion as S. P. Became a member of All Pakistan Unified Grade. No other intention can be deduced from this noti--fication.
26. The learned counsel for the appellant has referred to a reported Judgment of a S. B. Of this Court (Criminal Revision 8 of 1976) wherein it has been held that the Superintendent of Police, Special Branch, is an employee of the Provincial Government and he has no concern with the Central Government.
27. The crux of the matter is that as the appellant belonged to the service of a Province therefore this Tribunal has the jurisdiction to entertain and adjudicate the appeal of the appellant. As the appellant has been retired by the President of Pakistan, who was not competent to pass the order of retire--ment, assailed in this appeal, and the Governor of Baluchistan has not take any independent action of his own in accordance with law and only follow the order of the President, therefore the action of the President and consequent Notification of the Government of Baluchistan dated 29th January, 1977 are not sustainable in law and they are hereby set aside. The order of retirement of the appellant is ultra vires. The appeal is allowed in the above terms, with no order as to costs.