JUSTICE SHAH ABDUR RASHID (CHAIRMAN).-The appellant, Riaz Ahmad Baig, who had once been an employee of the Punjab Family Planning Board, in Grade 17, received the following order of termination of his services dated 8-9-1981, from the Population Division of the Government of Pakistan :--- "In pursuance of section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, the Appointing Authority has been pleased to terminate the services of Mr Riaz A. Baig, Senior Population Officer of the Population Programme under the Population Division with immedi--ate effect."
From this order, an appeal was preferred by the said Riaz Ahmad Baig, and on rejection of the same, he has approached this Tribunal under section 4 of the Service Tribunals Act, 1973.
2. On behalf of the Government respondent, a preliminary objec--tion, with regard to the jurisdiction of the Tribunal, has been taken on the ground that the appellant was never a civil servant, and, therefore, he cannot invoke the jurisdiction of this Tribunal, In this respect, we have heard the arguments of the learned counsel for the parties, and have examined the different Resolutions, orders and laws--- relating to the affairs of the Population Planning Programme. It appears that prior to 1965, the Family Planning Programme as directly operated by the Ministry of Health, but in July, 1965, Family Planning Council of Pakistan was created in the Centre, vide Resolution No. F. 1-2/64-FPC, dated the 30th June, 1965. For the Provinces, the Boards were constituted and the Governor of West Pakistan in this respect issued a Notification No. S: O. VII-9- 15/65, dated the 17th June, 1965. While the Central Minister for Health was the Chairman of the Family Planning Council, the Minister of Health of the Province of West Pakistan was the Chairman of the West Pakistan Family Planning Board. Subsequently, on the dissolution of the Province of West Pakistan, all the four Provinces constituted separate Family Planning Boards. The appellant became an employee of the Family Planning Board of the Province of Punjab. There--after, the Government of Pakistan in 1976, took another decision, which was communicated to all concerned under Office Memorandum No. F. , 104/66/76-Min, dated the 30th December, 1976, issued by the Cabinet Division. By this Office Memorandum, two decisions were taken. They are----
(i) to federalise the Population Planning Programme in Pakistan and its direct administration by the Federal Government ; and
(ii) to governmentalise the services of `the Population Planning personnel.
3. Earlier, when the decision to governmentalise the services of the Population Planning personnel had been taken on 30th December, 1976, the appellant was offered a post under the Federal Government in Grade 17, by letter No. F. 26-3i77-Admn. II, dated the 2nd July, 1977, which he accepted. The learned State Counsel contends that with the revival of the Population Planning Council, the appellant, who had been offered service under the Federal Government in Grade 17 ceased to be a civil servant and again became an employee of the Population Planning Council, and, therefore, unless he is regularly re-appointed under the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (hereinafter called `the Ordinance"), he cannot claim to be a civil servant for the purposes of the Service Tribunals Act; 1973.
4. We are afraid, there is no substance in the arguments of the learned State Counsel. Re- constitution of the Population Planning Council firstly did not amount to reconstitution of the Board, of which the appellant was previously an employee. This re-constitution also did not change the status of the appellant as a civil servant whose service had been federalised and he was offered a post under the Federal Government in Grade 17. Re-constitution of the Population Planning Council was only made for the purpose of the smooth running of the Programme, and did not affect the status of the' employees who had become civil servant either from the Population Planning Council or from the Provincial Boards. It is, therefore, futile to argue that the appellant was not a civil servant, and, therefore, he could not invoke the jurisdiction of this Tribunal. In fact, the very offer of appointment dated 2nd July, 1977 accepted by the appellant made him a civil servant, and unless a law was made to change the status of the appellant, a mere Resolution or, for that matter, any subordinate legislation could not affect the right which vested in the appellant. The true position is that the appellant had become a civil servant and continued so even after the promulgation of the Ordinance, which was intended only to regularise the services of the employees of the Population Planning Council and Board, who had become civil servants, and laid down the procedure in which they could be brought under the regular service. In fact, it did riot lie with the Govern--ment to raise this objection for more than one reason. In Press Note of 2-2-1977, the Government accepted the surplus employees of the Programme as Government servants. By letter dated 28-2-1978, the Federal Public Service Commission expressed the same view. On 4-7-1979, notification was issued to appoint Authorised Officer and Authority, under the Government Servants (Efficiency and Discipline) Rules, 1973, made under the Civil Servants Act, 1973. It is surprising to point out that one of the appellant's colleagues .(Ghulam Sarwar Khan) approached the High Court by way of writ petition, and the Government took up the stand that he being a civil servant, the High Court had no jurisdiction because of the bar placed under Article 212 of the Constitution. How the Government has now taken a different stand is not understandable. The preliminary objection taken by the respondent Department that the appellant cannot invoke the jurisdiction of this Tribunal is, therefore, repelled.
5. The services of the appellant has been terminated under section 6 of the Ordinance, as he had failed to appear before the Federal Public Service Commission when asked to do so in accordance with the requirements of section 4 of the Ordinance. The learned counsel for the appellant had challenged the order of termination on several grounds, but at the time of arguments, he confined his case only to the specific point that the Federal Government could not frame any rules which could disqualify a particular employee of the Population Planning Programme from appearing before the Federal Public Service Commission and that since the rules framed under the Ordinance had the effect of disqualifying the appellant from appearing before the Federal Public Service Commission the whole exercise was illegal, and the appellant had rightly, refused to appear before the Commission, because even if he had appeared, he would not have been selected because he did not fulfil some of the qualifications laid down in the rules and the draft rules, which were made available to him. It is pertinent to note that after the promulgation of the Ordinance, the Government had made draft rules in June, 1981, which were forwarded to the appellant and to each other employee, and thereafter the rules were to be published in the official gazette. The draft rules (excluding the Schedule thereto) for officers of Grade 17 are as under :------ "In exercise of the powers conferred by section 11 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (XIV of -1981), the Federal Government is pleased to make the following rules, namely :- 1.-(1) These rules may be called the Population Programme Employees (Appointment to Posts in Grade 17) Rules, 1981.
(2) They shall come into force at once.
2. (1) The employees who were initially appointed to posts lower than Grade 17 and later promoted to that Grade, hereinafter referred to as promotees, shall, for appointment under these rules, possess not less than three years experience in Grade 16 or equi--valent or in the field and the educational qualifications specified in column 3 of the Schedule to these Rules.
(2) The employees who were initially appointed to posts in Grade 17, hereinafter, referred to as initial appointees, shall, for appointment under these rules, possess not less than three years' professional experience in the relevant field and educational qualifications specified in column 3 of the Schedule to these rules and be not less than twenty years or more than thirty years of age.
3. The Commission shall determine the suitability of the employees on the basis of written examination or interview in accordance with rule 4, below, age limits as specified in sub-rule (2) of rule 2 and the qualifications, experience and nature of duties of the posts prescribed in the Schedule to these rules.
4. The Commission shall hold written examination, and interview ; those who qualify, or, having regard to the nature of posts, interview employees for appointment to such posts, under the Popu- -lation Welfare Planning Programme, as detailed below :"
The rules, which were published in the official gazette (excluding the Schedule), are as under :---- "In exercise of the powers conferred by section 11 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (XIV of 1981), the Federal Government is pleased to make the following rules, namely :-
2. (1) These rules may be called the Population Programme Employees (Appointment to Posts in Grade 17) Rules, 1981.
(2) They shall come into force at once.
2. (1) The employees who were initially appointed to posts lower than Grade 17 and later promoted to that Grade, hereinafter referred to as promotees, shall, for appointment under these rules, possess not less than three years' experience in Grade 16 or eight years', experience in Grade 11 or above in the relevant field and the educational qualifications specified in column 3 of the Schedule to these rules Provided that in the case of posts for which no educational qualifi--cations are specified, the promotees shall be at least Matriculates.
(2) The employees who were initially appointed to posts in Grade 17, hereinafter referred to as initial appointees, shall, for appointment under these rules, possess not less than three years' professional experience in the relevant field and educational qualifications specified in column 3 of the Schedule to these rules and be not less than twenty-five years or more than thirty-five years of age.
3. The Commission shall determine the suitability of the emp--loyees on the basis of written examination or interview in accordance with rule 4, age limits specified in sub-rule (2) of rule 2 and the qualifications, experience and nature of duties of the posts prescribed in the Schedule to these rules.
4. (1) The Commission shall hold written examination, and inter--view those who qualify, or having regard to the nature under the Population Welfare Planning. Programme as detailed below ;".
6. The learned counsel for the appellant has pointed out that the, draft rules 1,' 3 and 4 are ultra vires the Ordinance, and, therefore, the appellant cannot be blamed for failing to appear before the Federal Public Service Commission, inasmuch as, even if he had appeared, he could not have been selected, because he did not come within the age limit prescribed in sub-rule (2) of rule 1 of the draft Rules, and rule 2 of the Rules made on 13th July, 1981, because the limit of age disqualified him from appearing before the Commission. The learned counsel also stated that rules 2, 3 and 4 of the Rules made on 13th July, 1981 an, duly gazetted under SRO No. 797 (1)/81, are also ultra vires the provisions of the Ordinance, and, therefore, the appellant, who was hit by these Rules, was within his right to refuse to appear before the Commission, because even if he had appeared, he could not have been selected.
7. Generally speaking, we are in agreement with the learned counsel for the appellant that providing for age limit or for educational qualifi--cations for appointment to Grade 17 is ultra vires the provisions of the Ordinance, because section 4 thereof envisages the reference of each employee to the Federal Public Service Commission, and the prescribing of age limit and the educational qualifications amounts to screening of the employees by the Government itself, which is not the spirit of the Ordi--nance. The learned counsel for the appellant had also challenged the provision for holding of examination and bifurcating different categories in this respect, namely, by providing interview only for some categories, but we do not think, there is substance in this objection, because there must be some standard for judging the suitability of a person, and if, in the opinion of the Government, the suitability can be judged by interview only, then a rule can be framed to that effect. Likewise, if the suitability of a category of employees cannot be judged, except by holding written test alongwith interview, then any rule to that effect would not be ultra vires the provisions of the Ordinance, which, by itself, does not exclude a particular class of employees from appearing before the Federal Public Service Commission.
8. The result of the above discussions is that Tall rules laying down the educational qualifications and the age limits are ultra vires the provi--sions of the Ordinance, and if any person says that he did not appear because of the clog placed by the rules, he can succeed before us even though a call was sent to him for appearance, because he, being disqualified for appointment, could not expect that he would be selected.
9. It was urged on behalf of the learned counsel for respondents that relaxation in age was granted by ten years. This relaxation by the Government is of no avail, because the rules were never amended, and there was no sufficient time for the candidates to be aware to the relaxation.
10. The examination by the Federal Public Service Commission was to be held on 14-7-1981 (actually held on 22-7-1981). On that date, the appellant was about 41 years old and therefore, he could not qualify for appearance before the Commission. Since ultra vires rules had been framed which amounted to excluding the appellant from appearing before the Commission in accordance with section 4 of the Ordinance, the appellant was justified in not appearing before the Commission.
The order of termination of his service on that ground is, therefore, illegal and is consequently set aside. We are, however, not passing any order for re-instatement of the appellant at this stage, but direct that his case should be referred to the Federal Public Service Commission, and it may be specifically stated that the question of age limit or of educational qualifications provided for in the Rules is ultra vires, and would not apply in the case of the appellant. If the Commission selects him, then the appellant has to be appointed on regular basis, unless his case comes within section 6 of the Ordinance.
11. In case the appellant is appointed on any post in Grade 17 in the Population Planning Division, then he shall have to refund the terminal benefits, if any, which he has received, and shall be entitled to pay and allowances from the date of termination onwards, subject to deduction of any earning which he might have made during the period he was out of service. In this respect, necessary inquiry may be made according to the rules.
12. There shall be no order as to costs.