RAO ABDUL JABBAR KHAN, MEMBER-II --- Its an appeal under Section 4 of the PST Act, 1974, against the impugned transfer order dated 07.07.2017 from Lahore to Narowal instituted by the appellant Naveed Alam son of Muhammad Ramzan who is a Junior Clerk in BS-11, in the office of the Ombudsman. The appellant has also filed representation before the Advisor Incahrge office of the Ombudsman, Punjab Regional Office, Jail Road, Lahore, on 10.07.2017. Mandatory period of 90 days has not yet been elapsed but the appellant feeling that there is no other efficacious and speedy remedy but to invoke the jurisdiction of this Tribunal for redressal of his grievance.
2. Notices were issued to the respondents, they appeared and filed their comments and written reply.
3. At the very outset, learned District Attorney, objects that the appeal is not competent before this Tribunal, because, the appellant is not a civil servant in light of the Section 27 of the Punjab Office of the Ombudsman Act, 1997, Act X of 1997.
4.The learned counsel for the appellant replied to the objection of maintainability, refuted the arguments of the learned District Attorney and placed reliance on an unreported judgment, in a Writ Petition No, 436/2015, titled Kashif Rehmat, etc. v. Office of Ombudsman, etc., dated 11.12.2015, in which the one Kashif Rehmat - Petitioner assailed the order dated 06.05.2014 and 19.05.2014 before the Honourable Lahore High Court, Lahore, and the writ petition was converted into representation for the redressal of the grievance. Para No, .5 and the relevant lines are hereby reproduced as under:-- It has been held that respective Service Tribunal, has sufficient powers to look into and decide qua viras/orders/rules/regulations/decisions taken by the department regarding terms & conditions of service of a civil servant. In the case in hand, as the transfer has been assaed which according to them are in violation of powers invested with the Ombudsman qua establishment of District Officer, therefore, this Court has no mandate to interfere in transfer in as it is part of term and condition of service of a civil servant.
Keeping the above in view, learned counsel for the petitioner submits that if the matter is referred to respondent No, 1 to consider the present petition as representation, the grievance can be redressed.
In view of the above, let a copy of this petition alongwith its annexure be remitted to respondent No, 1 who shall treat it as a representation and shall decide the same through a well-reasoned order, after hearing all necessary parities, within a period of eight weeks from the receipt of the certified copy of the orders.
With the above direction this petition is disposed of."
5. Conversely, the learned DA, assisted by the learned Law Officer opposed the contention raised by the counsel for the appellant arguing that the question of civil servant has not been thrashed by the Honourable Lahore High Court, Lahore in the above-cited writ petition, rather the Honourable Lahore High Court, Lahore was pleased to refer the matter to the department on the request of the petitioner in that petition. There is no declaratory verdict in this respect. Further argued that though a Public Servant may be a civil servant but every public servant is not a civil servant and placed reliance on 1984 PLC (CS) 635 - Service Tribunal Punjab and 1983 PLC (CS) 259 - Liaqat Ali Rathoor v. Lahore Development Authority (WASA).
6. I have heard the arguments and perused the relevant record.
7. The institution of the Ombudsman is functioning under the Punjab Office of the Ombudsman Act, 1997 (Act X of 1997). It enjoys the status of "special institution" as reflected in the Punjab Government Rules of Business, 2011. The said law has provided special powers to the respondent No, 2 for selection of his official and officers under Section 20 of the Act ibid and also empowers the Ombudsman to appoint competent persons of integrity as Advisors, Consultants, Fellows, Bailiffs, Interns, Commissioners and Experts as well as Ministerial Staff with or without remuneration to assist him in the discharge of his duties under the Act, ibid.
8. The appellant was initially appointed on contract as a Naib Qasid in BS-1 on 26.07.2001 pursuant to the above provision of the Act ibid. Later on, he was appointed on contract as a Junior Clerk on 26.6.2002 on yearly contract basis which continued to be- extended on each year. His last appointment order was dated 30.11.2015, specifically provided that the appointee was liable to serve anywhere in the Punjab.
The Section 27 of the Act ibid is reproduced for the determination of the question of public and civil servant as under:--- "27 Ombudsman and staff to be public servant The Ombudsman the employees, officers and all other staff of the Office shall be deemed to be public servant within the meaning of Section 21 of the Pakistan Penal Code, 1860.
The Section 21 of the PPC reads as under:--- "Public Servant" The words "public servant" denote a person falling under any of the descriptions hereinafter following namely:-- First [Omitted by Ord. XXXVII of 1981] Second. Every Commissioner Officer in the Military, Naval or Air Force of Pakistan while serving under the Central Government or any Provincial Government; Third. Every Judge; Fourth. Every officer of a Court or Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property, or to execute any judicial process or to administer any oath, or to interpret, or to preserve order in the Court; and every person specially authorized by a Court of Justice to perform any of such duties; Fifth. Every juryman, assessor or member of a panchayat assisting a Court of Justice or public servant; Sixth. Every arbitrator or other person to whom any cause of matter has been referred for decision or report by any Court of Justice, or by any other competent public authority; Seventh. Every person who holds any office by virtue of which he is empowered to place or keep any person in confinement; Eighth. Every officer of the Government whose duty it is, as such officer, to prevent offences, to give information of offences, to bring offenders to justice or to protect the public health, safety, or convenience; Ninth. Every officer whose duty it is, as such officer, to take, received, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue-process, or to investigate, or to report, on any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government or to prevent the infraction of any law for the protection of the pecuniary interests of the Government, and every officer in the service or pay of the Government or remunerated by fees or commission for the performance of any public duty; Tenth. Every officer whose duty it is, as such officer, to take, receive, keep or expand and property, to make any survey or assessm ent or to levy any rate or tax for any secular common purpose of any village, town or district, or to make authenticate or keep any document for the ascertaining of the rights of the people or any village, town or district.
[Eleventh, Every person who holds any office in virtue of which he is empowered to prepare, publish, maintain or revise an electoral roll or to conduct an election or part of an election] Illustration A Municipal Commissioner is a public servant.
Explanation 1. Persons falling under any of the above descriptions are public servants, whether appointed by the Government or not.
Explanation 2. Wherever the words "public servant" they shall be understood of every person who is in actual possession of the situation of a public servant, whatever legal defect there may be in his right to hold that situation.
Explanation 3. The work "election" denotes an election for the purpose of selecting members of any legislative, municipal or other public authority, of whatever character, the method of selection to which is by, or under, any law prescribed as by election.
As per Section 9 of the Punjab Office of the Ombudsman Act, 1997, Act X of 1997 'the jurisdiction, functional powers of the Ombudsman are to entertain any complaint by an aggrieved person on the reference by the Government or the Punjab Assembly or on the motion of the Hon'ble Supreme Court or Hon'ble High Court made during the course of proceedings before it or of his own motion, undertake an investigation into any allegation of mal-administration on the part of any agency or any of its officers or employees provided shall not investigate or inquiry into the matters sub-judice before the Court of competent jurisdiction, or relate to the external affairs of Pakistan or the relation or dealing of Pakistan with any Foreign State or Government or connected with defence of Pakistan i,e, Military, Naval, Air Force.
9. The Punjab Government Rules of Business 2011 carries the first schedule in which the list of departments showing the autonomous bodies and companies and special institution excluding the jurisdiction of this Service Tribunal reflects that the office of the Provincial Ombudsman is a special institution and this Tribunal is a forum non-judice to entertain the matters pertaining to the office of the Provincial Ombudsman.
10. The appellant before this Tribunal is a Junior Clerk within the meaning of the Section 27 of the Punjab Office of the Ombudsman Act, 1997, Act X of 1997. The preamble of the Act ibid is reproduced here for the purpose of clarity.
Preamble---Whereas it is expedient to provide for the appointment of the Provincial Ombudsman for protection of the rights of the people, ensuring adherence to the rule of law, diagnosing, redressing and rectifying any injustice done to a person through maladministration and suppressing corrupt practices.
If provisions of Section 27 of this Act are read conjunctively, with Section 21 of the Pakistan Penal Code, 1860 keeping in view the preamble of the Act would manifest the intention of the legislature to give independence to the office of the Ombudsman of the Punjab. The legislature has provided in-built administrative and independent mechanism in the Act. The Hon'ble Supreme Court of Pakistan has also discussed in 2012 SCM R 307. The matter of a public servant and also discussed Sections 16(2) and 18 of the Sindh Criminal Prosecution Service (Constitution, Functions and Powers) Act, IX of 2009 and discussed in detail. According to the obiter dicta and interpretative analysis of the Hon'ble Supreme Court of Pakistan on the subject (Section 18 of the Act ibid exclude the application of any other law for the time being in force and concluded as under:-- "What we conclude from the plain reading of the provisions of Sections 14 and 18 of the said Act together is that the status of the members of the service is that of a public servant as defined under Section 16(2) of the said Act and they are not civil servants. Secondly, the Civil Servants Act, 1973 and rules framed thereunder would not apply to such members in deviation of the provisions of the said Act."
11. Taking guideline from the above-settled law, in this case Section 27 .of the Ombudsman Act contains that status of the members of the service of the said office is that of the public servant and they are not civil servant. Secondly the Civil Servants Act, 1973 and the rules framed thereunder would not apply to such members, in deviation of the provisions of the said Act. The provisions of the above Section 27 convey and import the meaning that these provisions exclude the applicability of the other laws being non-obstante clause. It is held that:-- Section 27 of this Act is non-obstante clause which exclude the application of all other laws including (sic):
35. In the light of the judgment 1984 PLC (C.S.) 635 it has also been held that status of employees- Held, employees and officers of Lahore Development Authority are public servants but all such public servants are not civil servants within terms of the Punjab Service Tribunal Act and no appeal is competent before Service Tribunal.
Mumtaz Liaqat v. Pakistan through Chairman Islamic Research Institute 198? (sic) PLC (C.S.) 255 and Mumtaz Yousaf v. Pakistan Ordnance Factory, Wah 1977 PLC (C.S.) 96 ref.
13. In a case of similar nature i,e, 1983 PLC (C. S. 259 it was settled:--- "The officers and employees of this Authority have been clothed with the status of the Public Servant within the meaning of Section 21 of the Pakistan Penal Code. It can be said with certainty that all the employees of the L.D.A. may be public servants but it cannot be held that all public servants are civil servants. If the intention of the authority was to declare its employees as servants, it would have used the word civil servant instead of public servants because all the civil servants are public servants. (PLJ 1978 Tr. C. 59, 1977 PLC (C.S.) 96."
14. In view of what has been discussed above, it is held that the appellant being an employee of the office of the Ombudsman, Punjab is a public servant and not a civil servant, so therefore this Tribunal has no jurisdiction to adjudicate upon the matter. Resultantly, the appeal is dismissed being non-maintainable. The remedy lies elsewhere.
15. The relevant staff of this Tribunal in view of Rule 21 of the PST (Procedure) Rules, 1975 is directed to send a copy of this judgment to the competent authority concerned as well as the Chief Secretary of the Punjab within one month from the date of receipt of this order in the concerned branch.