1. Ishtiaq Ahmed, Member.--The captioned appeals and review petitions are being taken to adjudicate upon the objection of jurisdiction which has been raised by the respondents of the main appeal i,e, Frontier Corps.
2. 2.The learned counsel for the respondents/ Frontier Corps argues that the organization is being governed/regulated under Frontier Corps Ordinance, 1959. It has its own statutory rules, therefore, in view of the law laid down by the Hon'ble Supreme Court in famous Mubeen us Salem's case the member of the Frontier Corps cannot be rated as civil servants. The Hon'ble Supreme Court explicitly held that members of any statutory organization having its own statutory rules cannot be treated as civil servant. They have to seek their remedies under Article 199 of the Constitution.
3. Reliance has been placed on 2013 SCM R 1707 and 2015 SCM R 1040. Learned counsel has also pointed out Section 26 which empowered Central Government to make the rules, by notifying the same in the Gazettle.
4. 3.Learned counsel, namely M/s. Waseemuddin Khattak and Waheed Iftikhar, while articulating their arguments have also pressed into service Sections 2(b) and 5(c) of the Army Act. It is submitted that the member of para military force like Frontier Corps are working in aid of the Pakistan Army and, therefore, the provisions of Army Act are applicable in their cases. Reference has also been made to a Notification No, 4852/325/PSIA/4484/D-2(A)/71, dated 23.11.1971 whereby the members of the Frontier Corps are deemed to be on active service, within the meaning of the Army Act, thus stand culled out from definition of civil servant and also the jurisdiction of this Tribunal. They are not civil servants. The reliance has been placed on 2005 SCM R 1767 to embellish their arguments.
5. 4.The learned counsel added that the Frontier Corps is being regulated on the pattern of Pakistan Army. The officers, performing their service in the Frontier Corps, belong to Army. The ranks in the lower formation are also on the paradigm of Pakistan Army. That in the case of Frontier Constabulary, the Hon;ble Supreme Court, in its judgment quoted as 2015 SCM R 1040 laid down that members of that organization were not to be treated as the civil servants. On the other hand, Frontier Corps is almost more akin to the setup of Pak. Army, as compared to the Frontier Constabulary, therefore, naturally, the members of the Frontier Corps are also not to be categorized as civil servants.
6. 5.It has also been stated that the question of jurisdiction is of primary importance and before proceeding further in any case, the controversy of jurisdiction is resolved first and that such objection can be raised at any time during the proceedings of any case. The learned counsel argue that even at the stage of review petition, the question of jurisdiction cannot be dubbed as irrelevant.
7. 6.Exercising their right of reply, M/s. Qabaor Ahmed Khattak, Misbahullah Khan, Shabbir Ahmed Nasir and Mumtaz Ahmed, the learned counsel for the appellants contend that the members of the Frontier Corps are civil servants and that this Tribunal has already declared so, in its judgments in appeals Nos.279 & 280(P)CS/2005 decided on 11.1.2012. That the Hon;ble Supreme Court held in its order dated 31.10.2011 passed in CAs Nos.1041 & 1042/2011 that the members of the Frontier Corps are civil servants and the judgment of this Tribunal, to the contrary, was set aside. Reliance has also been placed on 2012 SCM R 1700 and 2004 SCM R 1397 also to solidify their arguments.
8. 7.It is further conLended that the Frontier Corps is being fed from Federal Budget like the Rangers, ICT and Levies etc. Ministry of Interior is controlling the affairs all these organizations. Frontier Corps is not under the administrative control of Ministry of Defence or the Pakistan Army rather it is attached and subordinate department of the Ministry of Interior. Learned counsel has also referred to Section 7 of the Frontier Corps Ordinance whereby it was made clear that Superintendence Command and control of the Frontier Corps were vested in the Central Government and that it will be subject to the directions of the Deputy Commissioner and the Political Agent. That the Rules of Business also did not spell out any room for ouster Of jurisdiction of this Tribunal. Army Act cannot be over-stretched to be made applicable in this case.
9. 8.Mr. Arshad Ahmed Awan, Advocate in Appeal No, 1270(R)CS/2015 has stated that the appellant is a member of the Frontier Corps, having been included amongst such employees are other than under Section 5 of the Ordinance, the civil servants working in Frontier Corps. They are noncombatants. They were regularized in January, 2012 by the Cabinet Sub-Committee and Government Servants (E&D) Rules, 1973 are applicable in their cases. That the Frontier Corps has statutoi rules and thus its employees are civil servants.
10. 9.Learned counsel has also drawn our attention to the departmental appeal of the appellant in Appeal No, 1270(R)CS/2015 and submits that the Appellate Authority also took stock of the situation and directed that the matter of the appellant be decided in view of the provisions of Government Servants (E&D) Rules, 1973 and it was also categorically observed that the five persons named in that order were civil servants. It was so discussed in the matter of Wali Ayaz Khan and Sohail Asghar.
11. 10.Similar contentions were made in appeals Nos.12(Q)CS/2015, 1289 & 1290(R)CS/2015.
12. 11.We have given careful consideration to the facts and circumstances of the case and also perused the record in the light of the arguments, canvassed before us, from both the sides.
13. 12.The learned counsel for the respondents/ Frontier Corps mainly banked on the judgments of the Hon'ble Supreme Court reported as 2013 SCM R 1707, 2015 SCM R 1040 & 2005 SCM R 1767. On the other hand, the judgment of the Hon'ble Supreme Court reported as 2004 SCM R 1397 and the order passed in CPs Nos.1983, 1984 of 2009 on 31.10.2011 emphatically declared that members of the Frontier Corps are civil servants, in terms of Section 2(b) of Civil Servants Act and they were not falling under the provisions of Section 2A (since repealed of the Service Tribunal Act). The observation is categorical. The Hon'ble Supreme Court decided this matter in 2011. By that time the judgment of Mubeen us Salam case had been delivered, followed by series of other judgments on the subject, to interpret and explain the matter further. The Hon'ble Supreme Court in the order on CPs Nos.1983 & 1984/2009 had made a clear-cut observation that the case of Frontier Corps was not falling under Section 2A (since repealed of Service Triunals Act). It was re-enforcement of the judgment, passed by the Hon'ble Supreme Court cited as 2004 SCM R 1397 when Section 2A of the Service Tribunal Act was still intact. It is thus abundantly clear that repealed Section 2A of Service Tribunals act was in place or not, Frontier Corps was not affected there by and for limited purpose, on the parable of Pakistan Rangers, the members of. Frontier Corps are to be treated as civil servants and thus amenable to the jurisdiction of this Tribunal. In 2004 SCM R 1397, the Hon'ble Supreme Court has also considered the matter of the Frontier Corps in juxta-position with the Pakistan Rangers: Both are governed under the statutes enacted in 1959. It was declared by the Hon'ble Supreme Court that members of the Frontier Corps were governed under the Frontier Corps Ordinance, 1959 and for limited purpose, status of the civil servant was given to them so that they might have remedy for the their grievances in the Service Tribunal as was the case of Pakistan Rangers.
14. 13.It matters little that some officers of Pakistan Army are inducted in Frontier Corps as I.G./Commandant etc. because the same pattern has also been in vogue in Pakistan Rangers and there is no controversy about the jurisdiction of this Tribunal, in the matter of members of Pakistan Rangers. So far as the notification of 1971, is concerned, there is nothing on the record to suggest that the members of the Frontier Corps were performing their duties along with the Pakistan Army in that area. No such order has been placed before us, The Frontier Corps has not been included in the list, in corporate in the said letter.
15. 14.In view what has been stated above, we are constrained to hold that the jurisdiction of this Tribunal is not ousted in the matter of the captioned lis and the proceedings, in all the cases, will be undertaken in accordance with law.
15. The arguments in the review petitions will be heard on 28.3.2017 and the remaining appeals, at the stage of preliminary hearing, pre-admission hearings, filing of objections and regular hearings be fixed for 11.4.2017. Notices accordingly.