Muhammad Mushtaq Jadoon, Member. Both these appeals having identical point of fact and law are disposed off through this order.
2. Both Petitioners Iftikhar Ahmed and Saif ur Rehman were aggrieved by an impugned order dated 28.03.2019 whereby they were transferred from CB Rawalpindi to Mardan and Bannu, respectively.
The appellant preferred departmental appeal on 29.03.2019 which was not responded to, despite lapse of statutory period of ninety days. The appellant also filed a Misc. Petition for suspension of operation of impugned order dated 28.03.2019, till final disposal of main appeal.
3. Appellant Saif-ul-Rehman was transferred from CB Rawalpindi to CB Bannu the appellant filed service appeal No. 1822 (R)CS/2019, which was dismissed in limine on 19.11.2019. Thereafter the appellant filed service appeal No 1948(R)CS/2019 which was disposed of vide Court order dated 27.11.2019, with the direction to departmental authority to dispose of pending departmental representative in accordance with law. Subsequent the appellant filed. Misc. Petition. During the pendency of Misc. Petition, the respondents issued final order dated 14.02.2020 whereby the departmental appeal was rejected. The appellant filed Misc. Petition for suspension of impugned order dated 09.10.2019
4. In both the cases the respondents in their comments reported that, both, the appellants had already been relieved from the station of their duty i.e. Rawalpindi with the direction to report to their new stations of duty.
5. In case of Iftikhar Ahmed here in after to be referred as (Appellant- I) in his Misc. Petition No. 998/2019 status quo was granted on 05.07.2019 till further order through interlocutory order. In Appellant-I case the, Counsel for the Respondents, Mr. Muhammad Yaqoob and Ch. M. Javed Sarfaraz Assistant Attorney General alongwith departmental representative, on 25.09.2020 raised the objection in regard to maintainability of appeal on the grounds that employees of CB Rawalpindi are not Civil Servants and hence the Service Tribunal lacks jurisdiction. Similarly, Appellant-2 learned counsel Mr. Waqar-ul-Haq raised the issue of maintainability of appeal and jurisdiction of Service Tribunal. The same objection raised during subsequent hearing on 25.09.2020 and 12.11.2020.
6. In both the cases, contrary to norms of judicial proceedings, appellant sought multiple adjournments on various pretexts, which were vehemently opposed by the AAG and the learned Counsel for the respondents. During hearing, on 17.12.2020, cost of 5000 rupees was imposed on appellant for non-appearance despite providing multiple opportunities by the Tribunal. Appellant filed a review petition No 1/2021 and on 18.01.2021 seeking exemption from cost of Rs. 5000/- imposed upon the appellant for his non- appearance. Request was allowed and the order, dated 17.12.2020, whereby Cost of Rs.5000/- was imposed, revoked.
7. In both the appeals, the appellant took the plea that they were recruited against local posts which are non-transferable and prayed to set aside the impugned orders of their transfer from Rawalpindi to Bannu and Mardan. In support of their contentions the Learned Counsel for the appellant relied on CB Act, 1924 and CB Rules 1954 and Section 10 of the Civil Servant Act, 1973.
Under Section 10 every Civil Servant shall be liable to transfer any-where in Pakistan provided that nothing in this section shall apply to a civil servant recruited specially to serve in a particular area or region. In support of their argument the counsel for appellant relied on Service Tribunal judgment in Appeal No. 525 to 538(R)CS/2009 as similar transfer orders were set aside. Tribunal decision was challenged in the Supreme Court of Pakistan and the decision of Service Tribunal was upheld (CP No. 988 to 1003/2010).
8. The respondents, despite objections and reservations about maintainability of appeals on the grounds of lack of jurisdiction of Service Tribunal, offered their comments and contended that DG ML&C is fully empowered to order, transfers local employees. Learned counsels for the Respondents in their parawise comments referrer; to Service Tribunal, judgment in Appeal No. 26(P)CS/2004 dated 29.04.2011 and 2018 SCM R 335 dated 08.03.2021 passed in CP No 283/11 of 2020 and argued that the appeals are not maintainable for want of jurisdiction.
9. Tribunal allowed proceedings despite objections raised by the learned counsels over lack of jurisdiction of Tribunal. On the last date of hearing i.e. 10.11.2021, both the parties argued about the jurisdiction of Tribunal and maintainability of appeals. Learned Counsel for the appellant and the respondents put forward their argument.
10. The learned Counsel for the respondents argued that DG ML&C under Rule 5 of the Pakistan Cantonment Servant Rules, 1954 is competent to transfer any employee from one Cantonment to another. In support of their Contention they relied on 2010 SCM R 1484, and 2018 SCM R 335. Thus the respondents challenged the jurisdiction and also offered comments in regard to merit of the case.
11. It would be pertinent to discuss issue of jurisdiction of Service Tribunal (hereafter to be referred as Tribunal) in the light of Constitution article 212, 240-241, of Constitution of Pakistan, Article 260, Civil Servant Act 1973, The Service Tribunal Act, 1973 and Pakistan Penal Code, 1860, Section 21.
Insertion of Section 2-A in the Service Tribunal Act, 1973 and its repeal in 2010 had led to change in the jurisdiction of Tribunal in regard to taking cognizance of cases of employees not covered under Civil Servant Act, 1973 and Service Tribunal Act 1973. Petitioner as citizen of Pakistan have a constitutional right to have forum for remedy, whatever it might be.
12. Constitutional and legal position: Opening para of article 212 oust jurisdiction of other Courts in service matters as the Administrative Courts and Tribunals to exercise exclusive jurisdiction (emphasis added) in respect of;
(a) matters relating to the terms and condition of persons who are or have been in service of Pakistan including discipline matters;
(b) matters relating to claims arising from tortuous act of Government, or any person in the service of Pakistan, or any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in discharge of his duties as such servant or;
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be energy properly under any law.
13. Sub article 212 (1) opening para contains the sentence, "notwithstanding anything herein before contained". And the framers have used the word, "hereinbefore, with a purpose as article 212 give exclusive jurisdiction to Tribunals, both federal and provincial, to exercise exclusive jurisdiction in respect of service matters. Service Tribunal(s) established in pursuance of Article 212 (1) under Federal and Provincial Acts. Service Tribunal(s) draw their mandate and powers from Article 212(1) and (2). Sub article 2 excludes jurisdiction of all the Courts in any matter to which the jurisdiction of such administrative Court or Tribunal extends. Article 212(1)(a) talks of terms and conditions of persons, who or have been in the Service of Pakistan. So is the preamble of the Civil. Servants Act, 1973, reproduced as under. "An Act to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan. Whereas it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons, in the service of Pakistan, and to provide for matters connected there in or ancillary there to. This objective and preamble of the Civil Servant Act and the Article 212(1) sets much broader scope and jurisdiction of Service Tribunals.
14. Article 240-242 deals with service of Pakistan;
240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined.
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and all-Pakistan Services, by or under Act of (Majlis-e-Shoora (Parliament), and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly.
Explanation. In this Article, "All-Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of (Magis-e-Shoora (Parliament).
241. Until the appropriate Legislature makes a law under Article 240, 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 and may be amended from time to time by the Federal Government or, as the case may be the Provincial Government.
242. (1) (Majlis-e-Shoora (Parliament) in relation to the affairs of the Federation, and the Provincial Assembly of a Province in relation to the affairs of the Province may, by law provide for the establishment and constitution of a Public Service Commission.
(1A) The Chairman of the Public Service Commission constituted in relation to the affairs of the Federation shall be appointed by the President (on the advice of the Prime Minister); (1B) The Chairman of the Public Service Commission constituted in relation to affairs of a Province shall be appointed by the Governor on advice of the Chief Minister).
15. Article 260 Definition "Service of Pakistan"; mean any service, post or office in connection with the affairs of the Federation or of a Province, and includes armed forces and any other service declared to be a service of Pakistan by or under Act of Majlis-e-Shura (Parliament) or of a Provincial Assembly; but does not include service of speaker and other elected representatives.
16. Service of Pakistan, as defined under article 260, is all inclusive in nature, as it includes;
(i) any service, post or office in connection with the affairs of the federation, or of a Province;
(ii) an all Pakistan service,
(iii) service in the Armed Forces and
(iv) Any other service declared to be a service of Pakistan by or under Act of Parliament, and excludes all political officer holders including Attorney General and Advocate General.
Thus any employee, working in connection with the affairs of the federation or of a Province is in the service of Pakistan. Civil Servant has been defined in the Civil Servant Act, 1973, while in the Service Tribunal Act 1973 under Section 2 (a) the Civil Servant has been defined who is. or has been, a Civil Servant within the meaning of Civil servant. Act, 1973. Thus the Service Tribunal Act has relied on the definition of Civil Servant as defined under Section 2(a) of Civil Servant Act, 1973, Thus a Civil Servant, as defined under Section 2 (a) of the Civil Servant Act, 1973 is in the "Service of Pakistan", but not vice versa; because civil Servant as defined in Section 2(a) does not Include other categories of employees including armed forces or falling in the category of "Workman" though they might be holding a post or office in the service of Pakistan but might not be in jurisdiction of Tribunal unless they are separately and specifically defined under, Section 2(a) Civil Servant Act, 1973. In 1997 Section 2-A was added in Service Tribunal Act as "and shall include a person declared to be a Civil Servant under Section 2(A)". Section 2(A) repealed in 2010. The following excluded from the purview of Service Tribunal.
(0 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" as defined in the Factories Act. 1934 or the Workmen Compensation Act, 1923.
While the Service Tribunal Act, 1973, defines the Civil Servant as under.
2 (a) "civil servant" means a person who is, or has been a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973 3(and shall include a person declared to be a civil servant under Section 2A; and).
17, Preamble of the Civil Servant Act, 1973, reproduced below - THE CIVIL SERVANTS ACT, 1973 (ACT NO. LXXI OF 1973 IN ACT To regulate the appointment of persons to, and the terms and conditions of service of persons in, the Service of Pakistan; WHEREAS it is expedient to regulate by law, the appointment of person to, and the terms and conditions of service of persons in, the service of Pakistan, and to provide for matters connected therewith or ancillary thereto;
18. Operation of the Civil Servant Act, 1973, restricted to the "Civil Servant" as defined under Section 2
(b) which means:-
(i) A person who is member of an All Pakistan Service;
(ii) Or of a service of the federation;
(iii) Or who holds a Civil post is connection with the affairs of the federation;
(iv) Including any such post connected with defence.
Thus there are four types of posts within the purview of term "Civil Servant". Terms affairs of Federation has not been defined in service laws but the constitution defines areas and domain of Federation and the provinces and so is federal Legislative List.
This definition is all inclusive with three exclusions.
(a) A person on deputation to federation
(b) A contract employee
(c) A worker or workman.
Hon'ble Supreme Court held in Muhammad Mobeen-ul-Islam & others vs. Federation of Pakistan 2006 PLC (CS) 602 that Section 2A of Service Tribunal (repealed in 2010) is partially ultra-vires of Constitution. It was held, "thus conclusion would be that only those persons, who are in the service of Pakistan, as discussed herein above, and if their terms and conditions are governed either by a statute or statutory rules, in terms of Article 240 of the Constitution, can seeks remedy before Service Tribunal. It can be, therefore, said in other words that as the persons, who are in service of Pakistan but whose terms and conditions of service are not governed by a statute or statutory rules, cannot invoke the jurisdiction of the Federal Service Tribunal".
19. Most of the statutory bodies declare their employees "Public Servants" as defined in Section 21 of Pakistan Penal Code: PPC 14. "Servant of the State:- The words "servant of the State" denote all officers of servants continued, appointed or employed in Pakistan, by or under the authority of the Central Government or any Provincial Government.
PPC21. "Public Servant;. The words "public servant" denote a person falling under any of the descriptions hereinafter following namely: First. (Omitted by ord. mil of 1981.)
Second. Every Commissioned 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 of 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 or 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, receive, 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 expend any property, to make any survey or assessm ent or to levy any rate of 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 of 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.) Inserted by Act 39 of 1920.
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" occur, 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 word "election" denotes an election for the purpose of selecting members for 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.
20. In order to attain status of a 'Civil Servant' it is necessary that a person should be member of 'All Pakistan Service'. Section 5 of the Civil Servant Act, 1973 provides that the appointment to the three categories shall be made in prescribed manner by the President or a person authorized by the President in that behalf. These categories are (a) All Pakistan Service (b) Civil Service of the Federation (C) or a Civil post in connection with the affairs of the federation. While article 260 empowers the legislature to declare any service to be, "Service of Pakistan" by or under an Act of Parliament. It was further held that it does not empower the legislature on the basis of legal fiction by using the expression, "shall be deemed, in Section 2A of Service Tribunal Act. Parliament must demonstrate that such declared service has nexus with the affairs of federation. Unless Service of an employee were !governed by the statutory rules he had no right to invoke jurisdiction !of Service Tribunal.
21. Article 240 states that the appointments to and the condition of service of persons in the Service of Pakistan shall be determined by the Parliament:
(a) in case of the Services of the federation posts (b) in connection with affairs of the federation and (c) All Pakistan Service. In the explanation to Article 240. It has been, further clarified. In this article "All Pakistan Service' means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of Parliament. As held in PLD 2006 SC 602 the Parliament may legislate as per Article 240 and 260 to create an All Pakistan Service or to declare a Service in connection with affairs of the federation instead of broadening the mandate of Service Tribunal through a deeming clause.
22. Autonomous federal institutions are spread all over the country, having thousands of employees. These autonomous bodies are attached to Federal Divisions, some under projects (non statutory) others under statutes, some established as Body Corporate others are created as non corporate autonomous bodies under a statute. Both are given budget as "Single Line" Grant and managed by Board of Directors, Board of Governors, Senate and Syndicate as management bodies. Such authorities, headed by Chief Executive Officers (CEOs) have more financial and administrative powers than a federal Secretary. Recruitment and promotion are made right upto BS.20,21 and all through the management boards. Secretary of the Division, acts as Principal Accounting Officer and thus answerable to Public Accounts Committee.
23. As per principles and parameters set by the Honble Supreme Court of Pakistan. Muhammad Mubeen-ul-Islam vs others (appellant) Federation of Pakistan through Ministry of Defence and other (respondents) PLD 2006 SC602 it was held that expression "Civil Servant, and Service of Pakistan are not anonymous as defined in Section 2 (1) (b) of Civil Servant Act; to attain status of Civil Servant a person must be a member of All Pakistan Service or of a Civil Service of federation or who holds a Civil post in connection with the affairs of federation. There must be warrant under a law i.e. a statute governs appointments and regulate terms and conditions. It was further held that if there is some doubt in respect of a state of the law, Parliament may declare to pass a 'Declatory Act, setting out what the law is. Parliament must demonstrate that such declared service has nexus with the affairs of federation. Based on PLC 2006 SC 602 and 2015 SCM R 1040 (Commandant FC (Appellant) vs Muhammad Wazir (Respondent) it was held that Mubeen-ul-Islam vs the Federation is not relevant to this case. Appellants are not Civil Servants as their terms and Condition are regularized by provisions of FC Rules 1958. But in 2018 SCM R 903 (Commandant FC versus Gul Raqib and others) it was held that functions and performance of duties of Frontier Constabulary are clearly in connection with the affairs of the federation of Pakistan. Judgment rendered in Federation of Pakistan vs Muhammad Nazir (1998 SCM R 1081) was referred and it was held that Pakistan Rangers fall within the definition of Civil Servants as Rangers are performing duties in connection with the affairs of the federation and thus Civil Servants. Any person holding a post in connection with the affairs of federation or a province, is deemed to be a service of Pakistan and will be known or recognized as "civil servant" (2004 PLC (CS) 1466). In regard to statutory rules it was held that, "An employee of a Commercial Organization having no statutory rules is not a civil servant (KLR 2007 Labs serv. Cases 246). While :relying on cited judgments of Hon'ble Supreme Court and based on similarly of functions of CBs, as related to affairs of federation and civil posts connected with defence, establishment under a central statute and appointments made in pursuance of Section 4 and 5 of the Civil Servants Act, 1973, jurisdiction is assumed.
24. Cantonment Boards (CBs) have been established under a central statute, Cantonment Board Act, 1994, Operational and Service matters further elaborated under Federal Rules of Business the administrative Division is Ministry of Defence. Cantonment Boards are established under an Act of Federal government through-out the federation. Administrative officers are selected through Competitive examination of Central Superior Services and they are part of Civil Service of Federation. The role and functions of CBs has close nexus with the affairs of the federation.
Conditions and parameters laid down in article 240, 260, Civil Servant Act Section 2 (b) and Section 5 are not mutually exclusive as word "or' has been used. Existence of one condition such as "a civil post in connection with the affairs of the federation' suffice to bring an employee in the jurisdiction of Service Tribunal. Rangers and Frontier Corp have been established under Federal Statutes. Both the entities, being Civil Armed Forces, are governed under their statutes and rules such as Frontier FC Rules, 1964. The Commanding Officers from the rank of Captain to Major General, are borrowed from the army thus the Commissioned Officers, through performing duties, under Ministry of Interior and State and Frontier Regions, are in the Service of Pakistan but their terms and condition of service are governed under Army Act, 1952. While the services of non-Commissioned Officers are governed under Rangers Act and Frontier Corps Ordinance 1960. Similarly Frontier Constabulary established under FC Act, 1915 and FC Rules, 1958. Despite having own statutes jurisdiction of the Service Tribunal extended to all the three institutions. Thus merely the fact that the services of CBs employees are governed under CB Act, 1924 and CB Rules, 1954 does not restrict and exclude jurisdiction of Service Tribunal. Other such federal entities are Pakistan Post, Railway, Wapda Pakistan Tele communication and Health Services. Another yard stick, and criteria for the civil servants has been laid in Section 5 of the Civil Servants Act, 1973 which states that "Appointments to an All Pakistan Service or a service of the federation or to a civil post in connection with the affairs of the federation or to any civil post connected with defence, shall be made in the prescribed manner by the President or by a person authorized by the President in that behalf. As held by the Hon'ble Supreme Court of Pakistan in PLC 2006 SC 602, that in case of doubt in respect of "a law, Parliament may decide to pass a declaratory act, setting out what the law is. Both the terms 'a Civil post connected with the defence, and a 'Civil Post in connection with the affairs of federation are quite broad. CB falls, both in the domain of affairs of federation and Civil posts connected with the defence. For the reasons stated above we do tend to disagree with the argument of learned counsel for the respondents in regard to jurisdiction of the Service Tribunal.
25. As regard to, this appeal we tend to agree with the learned counsel for the respondent that both the appellants have already been relieved from their station of duty i.e. CB Rawalpindi.
Director General MLSc under Rule 5 of the Pakistan Cantonment Board Service Rules, 1954 is competent to transfer any employee from one Cantonment to another.
26. In the light of argument advanced by both the parties and perusal of record, we do not find sufficient ground to intervene. Both the appeals are dismissed.
27. No cost of service parties be informed.