' QAZI MUHAMMAD HUSSAIN SIDDIQUI (MEMBER).--- By this single common order we shall dispose of the above listed miscellaneous petitions as these are based on common question of fact and law.
2. The petitioner/appellants were employees of Pakistan International Airlines Corporation P.I.A.C.
The petitioners/appellants at Serial Nos.5 and 6 were compulsorily retired from service whereas petitioners/appellants at Serial Nos.3 and 4 was dismissed from service under Removal from Service (Special Powers) Ordinance, 2000, whereas no law as mentioned for compulsory retirement of petitioners/appellants at Serial Nos.l and 2. The petitioners/appellants filed above mentioned appeals before this Tribunal under section 4 read with section 2-A of Service Tribunals Act, 1973 for setting aside the impugned orders and reinstating them in service. The appeals were admitted for hearing but in view of Supreme Court judgment dated 27-6-2006 in Civil Appeals Nos.792 to 816 of 2005 etc. Of Muhammad Mubeenul Islam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others reported in 2006 PLD SC 602, all the six appeals abated. Such information of abatement of appeals was given to the petitioners/ appellants individually by the Assistant Registrar of the Tribunal.
3. Now, the petitioners/appellants have filed the above listed miscellaneous petitions on the ground that their appeals have not abated by the judgment of the Honourable Supreme Court of Pakistan and requested that these be disposed of on merits after regular hearing.
4. We have heard the learned counsel for the parties.
5. The learned counsel for the appellants has argued as under:--
(i) That as per judgment of the Honourable Supreme Court dated 27-6-2006, section 2-A of the Service Tribunals Act, 1973 is partially ultra vires of provisions of Articles 240 and 260 of the Constitution, as such, the service of petitioners/appellants being service of Pakistan under Article 260 of the Constitution, they are civil servants, entitled to seek remedy from the Federal Service Tribunal.
(ii) That the petitioners/appellants have vested right under section 10 of the Removal from Service (Special Powers) Ordinance, 2000 to seek remedy from Service Tribunal against the impugned orders under the said Ordinance.
(iii) That the service under Corporation (P.I.A.C.) has been declared under section 4 of Chief Executive's Order No,6 of 2001 to be service of Pakistan and every person holding a post under the Corporation (except a deputationist) shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973; that right of appeal before the Service. Tribunal under Service Tribunals Act, 1973 has also been provided to the aggrieved person under the said Order of the Chief Executive No,6 of 2001. The learned counsel for the petitioners/appellants vehemently argued that Chief Executive's Order No,6 has acquired validity under Article 270-AA of the Constitution of Pakistan hence the petitioners/appellants have a vested right to seek remedy before the Service Tribunal under section 4 of the said Order No,6 of 2001.
6. The learned counsel for the respondents has contended that the question of service of Pakistan has been exhaustively dealt with by the Honourable Supreme Court in its judgment, dated 27-6- 2006 referred to above; that in view of said judgment employees Of commercial organizations like P.I.A.C. Having no Statutory Rules as required under Article 240 of the Constitution of Pakistan, cannot be treated as civil servants by deeming clause on legal fiction under section 2-A of the Service Tribunals Act, 1973; that the appellants are not civil servants as defined in section 2(1)(b) of the Service Tribunals Act, 1973, hence their appeals have been abated; that as per para.108 of the Supreme Court judgment, dated 27-6-2006, the petitioners/appellants shall have no remedy before the Tribunal functioning under Article 212 of the Constitution. He elaborated the matter by stating that under Article 212 of the Constitution Service Tribunal was created to exercise exclusive jurisdiction, inter alia, in respect of the matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan including, disciplinary matters; that by inducting section 2-A in the Service Tribunals Act, the service of the employees of certain Corporation was also declared to be service of Pakistan, hence such employees were given right to seek remedy from the Service Tribunal; that by introducing section 2-A in the Service Tribunals Act, 1973 the door of Service Tribunal was also opened for the employees of Corporation but the door of Service Tribunal was closed to the employees of Corporation by the Honourable Supreme Court by holding section 2-A ultra vires partially, leaving a scope for disposal of the pending appeals of the employees of Corporation having Statutory Rules of terms and conditions of their service; that the petitioners/appellants being employees of P.I.A.C. which is a commercial organization having no Statutory Rules of their service, have been barred from knocking the doors of the Service Tribunal for remedy and their pending cases also cannot be disposed of by the Tribunal for want of Statutory Rules of Service.
7. About Removal from Service (Special Powers) Ordinance, 2000, learned counsel for the respondents has stated that it was in the capacity of civil servant under section 2-A of Service Tribunals Act, 1973 that the petitioners/appellants were given the right of appeal before the Service Tribunal under section 10 of the said Ordinance but (the learned counsel argued) the status of civil servant given to them under section 2-A of the Service Tribunals Act, 1973 has since been taken away, the door of Service Tribunal closed against them, cannot be reopened by Removal from Service (Special Powers) Ordinance, 2000, which is a legislation subordinate to the Constitution.
8. While rebutting the arguments of the learned counsel for the petitioners/appellants regarding status of the petitioners/appellants of civil servant under the Chief Executive's Order No,6 of 2001 the learned counsel for the respondents has not denied its validity, under Article 270AA of the Constitution of Pakistan but he has contended that such validity amounts to condonation of the acts done under the said order. He has argued that such validity is not for acts coram non judice, mala fide, ultra vires of the provisions of the Constitution; that since the status of civil servant given to the employees of Corporation under section 2-A was ultra vires as per judgment of the Honourable Supreme Court dated 27-6-2006, the status of civil servant given, to the employees of P.I.A.C. Under Chief Executive's Order No,6 of 2001 shall also be treated to be ultra vires in terms of judgment of the Honourable Supreme Court inasmuch as the language of 'section 2-A. And section 4 of the Chief Executive Order No,6 of 2001 is identical with each other. The learned counsel argued that the language of section 2-A of the Service Tribunals Act, 1973,and Article 4 of the said Order No,6 of 2001 being same, by necessary implication, the status of civil servant given to the employees of P.I.A.C.. By Chief Executive Order No,6 of 2001 has become redundant, therefore, the petitioners/appellants whose services had not been dispensed with under Executive Order No,6 of 2001, are barred from approaching the Service Tribunal for relief against the orders impugned in their appeals. In support of his arguments, besides the Supreme Court judgment, dated 27-6-2006 the learned counsel for the respondents has relied on Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence, Government of Pakistan and others 2006 PLD SC 602, Mrs. Anisa Rehman v. P.I.A.C. And others 1994 SCMR 2232, Raziuddin v. Chairman, P.I.A.C. PLD 1992 SC 531, Pakistan International Airlines Corporation (P.I.A.C.) through Chairman and others v. Nasir Jamal Malik and others 2001 SCMR 934, Abdul Hafeez Abbasi and others v. Managing Director, Pakistan International Airlines Corporation, Karachi and others 2002 SCMR 1034, Miss Benazir Bhotto v. Federation of Pakistan and another PLD 1988 SC 416, Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26, Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445, Khan Asfandyar Wali and others v. Federation of Pakistan through Cabinet Division, Islamabad and others PLD 2001 SC 607, A. George v. Pakistan International Airlines Corporation PLD 1971 Lah. 748, Muhammad Yusuf Shah v. Pakistan International Airlines Corporation PLD 1981 SC 224 and Iftikhar Ahmad v. The Muslim Commercial Bank Ltd. And another PLD 1984 Lah.
69.
9. We have carefully considered the above arguments of both sides and perused the authorities, which deal with the status of employees being civil servant or not, statutory rules and the powers of the superior courts and Tribunals to declare any legislation ultra vires. Section 2A of the Service Tribunals Act 1973 as well as the relevant portions of the judgment of the Honourable Supreme Court dated 27-6-2006 are reproduced as under:- "2-A. Service under certain corporations, etc. To be service of Pakistan.--- Service under any 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"
Paras.108 and 109 of the Honourable Supreme Courts' judgment.
108. The threadbare discussion on the subject persuades us to hold:--
(1) Section 2-A of the S.T.A., 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 C.S.A., 1973, and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the S.T.A., 1973 cannot be enforced in the absence of amendment in the definition of civil servant under section 2(1)(b) of the C.S.A., 1973.
(3) The cases of the employees under section 2-A, S.T.A., 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the C.S.A., 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, miscellaneous 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 an employer, pending before this Court against the judgment of the Service Tribunal, not covered 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 S.T.A., 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 bare 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, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the S.T.A., 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."
10. A perusal of the above mentioned paragraphs of the judgment of the Honourable Supreme Court clearly show that an employee of a Commercial Organization like P.I.A.C. Having no statutory rules is not a civil servant as defined under section 2(1)(b) of Civil Servants Act, 1973. The appellants/petitioners had filed their appeals as civil servants under section 2A, but their such position has been demolished in view of the judgment of the Honourable Supreme Court and they are definitely not civil servants under section 2(1)(b). It is correct that section 2A of the Service Tribunals Act, 1973 is partially held ultra vires but the P.I.A.C. Having no statutory rules, its employees cannot be treated as civil servant and for that reason their pending cases could not be disposed of by this Tribunal as the same stand abated.
11. So far as the appeal under section 10 of the Removal from Service (Special Powers) Ordinance, 2000 is concerned, such appeals had also been filed by appellants/petitioners in their capacity as civil servants under section 2A of the Service Tribunals Act, 1973, but their such position having been done away with, they cannot approach the Service Tribunal for remedy as under Article 212 the Service Tribunal has exclusive jurisdiction in respect of the terms and conditions of civil servants only as defined under section 2(1)(b) of the Civil Servants Act, 1973. The learned counsel for the respondents has rightly stated that the door of the Tribunal closed by the Honourable Supreme Court under the constitutional provisions of Articles 240 and 260, cannot be reopened by a subordinate legislation like Removal from Service (Special Powers) Ordinance, 2000.
12. Reverting to the status of the employees of the P.I.A.C. And that of a civil servant under Chief Executives' Order No,6 of 2001 and the right of appeal of such civil servants before the Service Tribunal, it will be advantageous to reproduce the relevant Article 4 of the said Order:-- "4. Service under Corporation to be service of Pakistan.--- Service under the Corporation is hereby declared to be the Service of Pakistan and every person holding a post under the Corporation, not being a person who is on deputation to the Corporation, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973). Any person aggrieved by an order, made under Article 3 of this Order, may, within thirty days of the order, prefer appeal to the Service Tribunal established under the said Act and the provisions of that Act shall, mutatis mutandis, apply."
' A comparison of above Article 4 of the Chief Executive's Order No,6 of 2001 with section 2-A of the Service Tribunals Act, 1973 shows that the language of both of these are identical in all material particulars, therefore, we agree with the learned counsel for the respondents that by necessary implication, the status of the employees of the P.I.A.C. With their right of appeal before the Service Tribunal has been rendered redundant. We are at a loss to understand how Article 4 of the Chief Executive's Order No,6 of 2001 override the judgment of the Nine Honourable Judges of the Supreme Court striking down section 2-A as being ultra vires of the Constitution.
13. It may be pointed out here that the Honourable Supreme Court has, in view of its judgment, dated 27-6-2006, dismissed the Civil Petition No,434 of 2006 (Managing Director P.I.A.C. And others v. Dr. Bashir Ahmad and others) vide order, dated 15-8-2006 and Civil Petition No,189 of 2006 (Managing Director/Chief Executive, P.I.A., Karachi v. Waqar Masood Syed and others) vide order dated 18-8-2006.
14. In the above view of the matter, we cannot grant the request of the appellants/petitioners to continue with the proceedings of their appeals on merits. These appeals already stand abated in view of the judgment of the Honourable Supreme Court. The miscellaneous petitions are, therefore, dismissed, but with no order as to costs.
15. Parties be informed accordingly.