This order shall also dispose of Writ Petition No. 1581/S of 1983 which involves identical questions.
2. The petitioner who is a grade 16 Officer of the Accounts Department of the Pakistan Railways has been compulsorily retired under section 13 of the Civil Servants Act, 1973, on his completing 25 years of service qualifying him for pension or other retirement benefits vide order dated 2nd February 1980. The same is the case in the other petition. They challenge those orders through the present writ petitions.
3. The learned counsel raised the following points :-
(a) The petitioners are not Civil Servants and, therefore, no order could have been passed against them under section 13 of the Civil Servants Act ;
(b) according to the delegation of powers, the petitioner could be retired only by the Chairman, Railway Board, and not the member, Finance.
4. I have heard the learned counsel for the parties but have come to the conclusion that these petitions have no force and are, therefore, liable to be dismissed. The learned counsel for the petitioners submitted that the 'Railways' was a Provincial subject prior to the Interim Constitution of 1972, and the terms and conditions of the railway employees were being governed vide P. O. 1 of 1970, PLD 1970 Central Statutes 218. Under section 7(3) thereof the railway employees were deemed to be serving in connection with the affairs of the Province as employees of the President.
It is sub--mitted that as the railway employees were a category apart and no specific law has been enacted so far under Article 240, their terms and conditions remain the same in view of Article 241 of the Constitution of 1973. The argument raised is that the Civil Servants Act, 1973, will not apply and compulsory retirement of such an employee could be effected under the existing Government Servants (Efficiency and Discipline) Rules, only.
5. It is to be noted that on the promulgation of the Interim Constitution in 1973, the 'Railway' was made a Federal subject. The same thing was repeated under the 1973 Constitution, vide, Part II of the Fourth Schedule. According to Article 240, the appointment to and the conditions of service of persons in the service of Pakistan shall be determined in the case of posts in connection with the affairs of the Federation, by or under an Act of Parliament. Article 241 provided that all rules and orders in force, immediately before the commencing day, shall so far as consistent, with the provisions of the Constitution, continue in force, until the appropriate Legislature makes a law under Article 240.
6. On 26th September 1973, the Central Legislature enacted the Civil Servants Act 1973. Section 2(1)
(b) defines `civil servant' as under :- " 2(1)(b).-'Civil servant' means a person who is a member of an All --Pakistan Service or of a civil service 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 Workmen's Compensation Act, 1923 (VIII of 1923)."
The short question arising thus is whether the petitioners as railway employees are persons holding posts in connection with the affairs of the Centre?
7. A similar proposition was considered by the Supreme Court in the case of Salahuddin v. Frontier Sugar Mills (PLD 1975 SC 244), with the following observa--tions :- "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. Ordi--narily, these functions would be performed by persons or agencies directly appointed, controlled and financed by the State i.e. By the Federal Government or a Provincial Government . . . . ."
'Thus in view of item I, Part II of the Fourth Schedule to the Constitution and the above judgment, the petitioners are civil servants.
8. It is further to be seen that under Article 70(6) read with Fourth Schedule of the Constitution the Central Legislature is exclusively competent to make laws with regard to Railways. The learned counsel for the peti--tioners submitted that a separate budget is prepared and sanctioned for the B Railways but admitted that the same is passed by the Parliament and the monies earned by the Railways shall form par: of the Federal Consoli--dated Fund as laid down in Article 81 of the Constitution. In this view of the matter also it is quite clear that the railway employees are persons holding civil post in connection with the affairs of the Federation and, there--fore, are to be treated under the Civil Servants Act, 1973.
9. The learned counsel, however, referred to the Fourth Schedule to say that as the `Railways' was included in Part II of the Schedule it shall be governed by Article 154 of the Constitution. This Article only provides that Council of Common Interests shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List, in so far as it is in relation to the affairs of the Federation and shall exercise supervision and control over related institutions. According to Article 153(4) the Council shall be responsible to the Parliament.
10. Article 154 shows that the function of the Council is to formulate and regulate policies with regard to the matters relating to the affairs of the Federa--tion. This Article thus further proves that the petitioners, who are working for the Railways, are performing functions in connection with the affairs of the Federation. Further, a perusal of this Article would show that it only concerns formulation and regulation of the policies and exercise of supervision and control over those institutions. This Article, therefore, has nothing to do with the power of the Parliament to legislate or the executive authority of the Federal Government to deal with its employees.
11. The learned counsel for the petitioners then relied on a judgment of the Sind High Court in Muhammad Akram Butt v. Islamic Republic of Pakistan (PLD 1978 Kar. 90) wherein a Division Bench held that the Civil Servants Act did not apply to the petitioners railway servants who came under the except--tion clause. The plea taken by the petitioners, in that case in para. 3, was that though they were railway servants as defined in the Railway Act, as well as section 2(1)(b) of Civil Servants Act, 1973, yet they had been expressly excluded from that category by sub-clause (iii) of clause (b) of section 2(1) of the said Act. That provision, as reproduced in para 5 above, excludes. Such persons who are covered by the Factories Act, 1934 and Workmen's Compensation Act, 1923. The petitioners in that petition were covered by the exception and so they could not be dealt with as Civil Servants under that Act. It is, however, to be noted that these petitioners specifically conceded that they would be civil servants but for the specific exclusion men--tioned above.
12. The learned counsel for the respondent also referred to two other judgments of this Court. One was given in the case of Akbar Ali v. Senior Administrative Officer Writ Petition No. 472 of 1978. The petitioners in that case were working as Head Clerks, in the Railways. They applied to the authority under the Payment of Wages Act, complaining that the deduc--tions made from their pay were illegal. The authority under the Payment of Wages Act accepted their plea. An appeal by the Railway Authorities succeeded before the Punjab Labour Court who held that the petitioners were governed by the provisions of the Civil Servants Act. The Head Clerks thereafter filed the above writ petition. The question sought to be decided was whether the Authority under the Payment of Wages Act was competent to grant relief to them. The learned Judge held that the peti--tioners were Civil Servants and, therefore, could seek their remedy only before the Service Tribunal which had the exclusive jurisdiction in the matter.
13. The other judgment was given in Muzaffar Abbas Naqvi v. Islamic Republic of Pakistan (PLJ 1979 Lah. 375). That case was also decided by a Single Bench holding Draughtsmen permanently employed in the Railway Headquarter Engineering Department, to be civil servants and not workmen and, there--fore, subject to the jurisdiction of the Service Tribunal.
16. In view of the above discussion it is quite clear that the petitioners are Civil Servants, performing functions in connection with the affairs of the Federation and are not covered by the definition of `workman's in the Workmen's Compensation Act or Factories Act. On the other hand, they are squarely covered by the definition of civil servant' as given in section 2(1)(b) of the Civil Servants Act, 1973. They, therefore, could be compulsorily retired under section 13 of that Act.
15. The next question raised by the learned counsel was sought to be supported on the plea that only the Chairman is the head of the Railway Department and consequently the order of retirement passed by Member Finance was not valid and lawful. The learned counsel for the respondent relied on the Organization Order No. 1 of the West Pakistan Railway Board and referred to para. 7(7) which reads as under :- "7(7).-The Finance Member is the administrative head of Accounts and Finance Establishment, excepting that the administration of Pakistan Railway Accounts Service is vested in the Comptroller and Auditor-- General of Pakistan ; and is technically responsible for the financial and accounting functions and related matters. All matters relating to budget and appropriation accounts are processed jointly by the Vice-Chairman and Finance Member. The latter is assisted by the Senior Budget Officer."
Prima facie, therefore, it is quite clear that the Finance Member was the competent authority in the matter and his orders on that score also cannot be said to be without lawful authority.
16. For the discussion made above, these are not fit cases for being considered and decided under Article 199 because of the bar contained in Article 212 of the Constitution. These petitions in the circumstances are dismissed with no order as to costs. This order shall, however, not bar the petitioners from seeking any relief before the Service Tribunal.