1. ' SHAFI-UR-REHMAN, J.-The appellant, formerly a civilian employee in the Defence Services, was granted leave to appeal to examine whether his constitutional petition was barred in view of the provisions contained in Article 98(3)(a) of the Constitution of 1962, notwithstanding the fact that he was holding a post which was included in the General Central Service Class II (gazetted) and was a civilian employee.
2. ' The appellant was recruited in 1931 as a cooly in Military Engineering service. After rendering intermittent service as a coolly, he was appointed a draftsman non-regular and temporary w. e. f.
3. 16-3-1938. He was promoted as Surveyor Assistant Overseer grade-1 w. e. f. 1-7-1947. In 1955 he was selected as an Assistant Engineer and in 1962 promoted to the Class-II gazette service. In 1965 when he was working as Assistant Garrison Engineer (B & under the Defence Ministry at Lahore he was retired in exercise of powers conferred by rule 7 of the Civilian Employees in Defence Service (Further Usefulness in Service) Rules, 1964 w. e. f. 11-8-1965 with the usual benefits of leave, pension, etc. Admissible to him.. The appellant invoked the constitutional jurisdiction of the High Court for challenging his retirement. The learned Judges in the High Court dismissed the writ petition on the ground that the appellant was enrolled in the Army and had been allocated an army number (8460379) and under Article 98(3)(a) of the Constitution of 1962 relief could not be granted in the constitutional jurisdiction to a person in the Defence Services notwithstanding the fact that he was governed by the Civil Services Regulations.
4. ' The learned counsel for the appellant contended that once the appellant established that he belonged to an All Pakistan Civil Service, then notwithstanding the fact that he was rendering services "in connection with defence" he could claim the constitutional protection in the matter of retirement before reaching the age of superannuation. For establishing that the appellant belonged to an All Pakistan Civil Service he placed reliance on Gazette Notification (Ministry of Defence No, 860/55 dated 14-10-1955) whereby "The civilian posts under the Ministry of Defence shown in Schedule 11 shall be included in the General Central Services Class II gazetted". Schedule II under the heading Military Engineer Services listed at No, 11 the post of "Asstt. Engineer (B&R/E&M)" the post which the appellant held. Reliance was then placed on a number of decisions of this Court.
5. For example in the case of Ghairat Hayat v. Federation of Pakistan requiring interpretation and application of sections 235, 238 and 240 of the Government of India Act, 1935, the following observations were referred to- ' What has to be determined in this case is whether the appellant was a member of a Civil Service or held a civil post under the Crown for the purposes of subsection (3) of section 240 of the Govt. Of India Act and the answer to this question in the state of the record must clearly be in the negative.
6. The appellant was an employee of the Ordnance Department which is an important Military Department and there is nothing to indicate that that Organization either employs persons' on civil posts or borrows the services of members of any civil service and that the appellant belonged to any such service.
7. ' In the case of S. A. H. Bokhary interpretation and application of Articles 180 and 181 of the Constitution of 1956 was involved and the following observations made were relied upon by the learned counsel for the appellant- "Difficulties of this character could be avoided by interpreting the two Articles 180 and 181 of the late Constitution so as to protect persons who occupy civil posts or belong to a Civil Service under the State, even though the posts they hold for the time being may be connected with defence."
8. ' The following observations made in case of Pakistan v. Muhammad Ayub were also relied upon- "Of course if he became a member of a Central Service the result would be that whatever the post he was holding he would be entitled to the protection of Article 181 because that Article is applicable to all members of the Services mentioned therein."
9. ' Finally, the following observations made in the case of Amjad Ali Mirza were relied upon by the appellant- "The subsequent replacement of the Civil Service (Classification Control and Appeal) Rules, 1961 and the consequential re-designation of the respondent as a member of the Defence Services (Civilian Class I) did not make the slightest difference."
10. ' The learned counsel for the appellant considered on all fours the decision of the Lahore High Court in Mr. G. Hasan v. Government of Pakistan because in that case as well action was taken under Civilian Employees in Defence Services (Further Usefulness in Service) Rules, 1;64. The constitutional protection was in that case not denied to the civilian employee.
11. ' In reply the learned counsel for the respondent has contended that the bar of Article 98 (3) (a) was for the first time taken note of and given effect to in the impugned judgment. In no other case cited at the bar by the learned counsel for the appellant, was this provisions of the Constitution interpreted or applied. An objection based on it was taken in the case of M. G. Hasan but it was not pressed. The leave to appeal in this case was granted only to examine the bar imposed by this constitutional provision. He further contended that it has always been the case of the appellant that he was a civilian employee in the Defence Services of Pakistan. The rules invoked by him so mention. The nature of duties and the service (M. E. S.) to which he belonged all unmistakably indicate that he was a civilian belonging to the Defence Services. The constitutional prohibition must, therefore, be given full and uncontrolled effect.
12. ' There are two views of the case of the appellant. The order which was impugned in the constitutional petition showed that the appellant was holder of Army No, 8460379 and that the action taken against him was not under the Army Act but under Civilian Employees in Defence1 2 3 4 5 Services (Further Usefulness in Service) Rules, 1964. In his concise statement the appellant took up the plea that 'Allotment of number is not the sole criteria to determine whether a person is the member of Defence Services or not. Numbers' were allotted because M. E. S. Before partition was a very vast Organization due to the Second World War and it was felt necessary to allot numbers to its members for the correct maintenance of service records and emoluments which could accrue to its members."
13. The Indian Army Act, 1911 which at the time of enrolment of the appellant was in the field provided in section 2(1)(b) and section 2(2) as follows- "2(1) The following persons shall be subject to this Act, namely :- (a)
(b) Persons enrolled under this Act (c)
(2) Every person subject to this Act under subsection (1), clause (a) or (b) shall remain so subject until duly retired, discharged, cashiered/removed or dismissed from service."
14. ' This provision was continued in Army Act, 1952.
15. ' The enrolment of the appellant under the Army Act brought him under Military discipline and while so enrolled he had to be treated as in Defence Service.
16. The Defence Ministry notification dated 14th October, 1955 relied upon by the appellant, no doubt created General Central Service Class I and General Central Service Class II so as to include civilian posts under the Ministry of Defence. The post held by the appellant in M. E. S. Was one such for post which was included in the General Central Service Class II (gazette). These services were reclassified and redesigned and Rules were reframed for such reclassified and redesigned service.
17. This happened by S. R.
0. 59(R) A dated 25th July, 1961 issued pursuant to Proclamation of the seventh day of October, 1958 by the President. By rule 3 the General Central Service Class II was redesigned as Defence Services (Civilian) Class II. In it were included persons holding a post connected with Defence and paid from the Defence Services Estimates, other than those subject to the Pakistan Army Act, 1952, the Pakistan Navy (Discipline) Act, 1934 and the Pakistan Air Force Act, 1953, who were in the whole time employment of the Central Government under the Ministry of Defence," the exceptions being not relevant. On appellant's own pleas he became a member of the Defence Services (Civilian) Class II.
18. ' The bar enforced and pleaded against him is of Article 98(3)(a) of the Constitution which is reproduced hereunder - "(3) An order shall not be made under clause (2) of this article.
(a) On application made by or in relation to a person in the Defence Services of Pakistan in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Defence Services of Pakistan."
19. ' The expression Defence Services of Pakistan in its generic sense would mean not only service in Defence Forces but all employment in Defence Forces and Services connected with, ancillary or incidental to the tasks performed by the defence forces or requiring performance of duties on which the effective functioning of the defence forces in times of peace and war depends. Military Engineering Service to which the appellant admittedly belonged would on this view certainly be a Defence Service. The constitutional petition by the appellant being relatable to terms and conditions of service was barred by Article 98(3)(a) and its dismissal by the High Court was unexceptionable. This appeal has no merits, fails and is hereby dismissed leaving the parties to their own costs. PLD 1960 SC 227 PLD 1961 SC 605 PLD 1965 SC 6611 2 3