S. ABDUL JABBAR KHAN (CHAIRMAN).-Syed Mushtaq Hussain Bokhari, ex-Superintendent of Police, Pakistan Railway Police, has filed this appeal under section 4 of the Punjab Service Tribunal Act, 1974, in which he has impleaded the Government of the Punjab through the Services, General Administration and Information Department, Lahore, as Respondent.
2. By virtue of this appeal he has prayed that the impugned order dated 5th January, 1980 under section 12 (ii) of the Punjab Civil Servants Act, 1974, be set aside as the same is without jurisdiction and he be reinstat--ed in service with all back benefits.
3. Brief facts of the case are that the appellant was working as Officer of Grade-17, in the Punjab Police Department as D.S.P., Special Branch, Rawalpindi when be was transferred and posted as S. D. P. O./Railways Police, Rawalpindi vide I.G.P. Punjab order No. 4360iEI, dated 22nd February, 1975.
He was however, promoted to the rank of Superintendent of Police (Grade-18) w.e.f. 5th May, 1977 and he continued to serve with the Railway Police under the Ministry of Railways, Rawalpindi till further orders vide Establishment Division notification No. 10/61/76 Police, dated 21st June, 1977. The Governor of the Punjab vide his Notification dated 5th January, 19.80 retired the appellant after he had completed 25 years' service qualifying for pension and other retirement benefits, with immediate effect or with effect from the date of expiry of the Leave Preparatory to Retire--ment admissible to him if such leave is applied for by him within 15 days from the date of this notification and the same is granted to him. The appellant made a representation to the Chief Martial Law Adminis--trator, in which he made a grievance that he was an employee of the Federal Government by virtue of section 5 of Pakistan Railways Act, therefore, the Governor was not competent to retire him under section 12 (ii) of the Punjab Service Tribunal Act, 1974, and the said order of the Governor was wholly without jurisdiction. This represen--tation was forwarded to the Law Division for examination and advice and thereafter the views of the Punjab Government were obtained by the said Law Division. The Provincial Government examined his case and ultimate--ly rejected his plea by observing that as the matter pertains to the jurisdiction of the Provincial Government, he should seek his remedy before the Punjab Service Tribunal, Lahore. Hence this appeal.
4. We have heard the learned counsel for the appellant as well as learned District Attorney assisted by the representative of the Department and have perused the record of this case carefully with their assistance.
5. The mainstay of the appellant's case as impleaded by his counsel is that by virtue of section 5 of Ordinance XLI of 1976, promulgated or 25th October, 1976, followed by an Act No. VII of 1977, promulgated or 9th January, 1977 the services of the.-appellant were federalized and all sorts of connections with Provincial Government stood severed by operation of law. It was further submitted that till 25th October, 1976 the appellant never drew any deputation allowance and was never a Provincial Govern--ment employee. Learned counsel has further submitted that the appellant was promoted to Grade-18 not by the Provincial Government but by the Establishment Division, a fact which shows that he was for all purposes an employee of the Federal Government. It has been further urged that the appellant had unblemished record of service and there was no justification for the Provincial Governor to pass the impugned order.
6. On the other hand learned District Attorney has repelled the stand taken by the learned counsel for the appellant and has submitted that for all intents and purposes, the appellant was a Provincial subject, whose services, were put to the disposal of Railways Department till further order, and his promotion to Grade-18 was only ad hoc in nature, therefore, the impugned order so passed by the Governor, was fully justified and legal.
7. We have given our anxious thought to the arguments advanced by the parties before us and find that the appellant was basically working as D.S.P., Special Branch when he was posted as S.D.P.O.
Railway Police vide Inspector General of Police order dated 22nd February, 1975. We also find that he was promoted to the rank of Superintendent of Police w.e.f. 5th May, 1977 by the Central Government. We have also looked into the seniority list maintained by the Provincial Government/Inspector-General of Police and find his name at serial No. 61. In the remarks column, it is in--dicated that his promotion to Grade-18 was being treated as ad hoc because his seniors, on the select list, were awaiting promotion. We have also looked into the seniority list maintained by the Central Government and do not find the name of the appellant mentioned there, whereas one of his colleagues Mirza Muhammad Anwar Beg, is shown in the said seniority list as having become a Member of the A.P.U.G. Group. While going through the record of this case we find that at one time the Law Division in the Central Government found plea of the appellant as substantive that the Provincial Government was not authority to order retirement of the appel--lant but the case was further examined by the Punjab Government in the light of the opinion of the Law Division and a detailed reply was sent to the Law Division on the above subject. Consequently his case was examined by the Establishment Division that the appellant could only take a recourse from the Provincial Service Tribunal, as he was not an employee of the Federal Government.
8. The main point before us for adjudication is whether by virtue of section 5 of the Ordinance XLI of 1976, promulgated on 25th October, 1976 followed by Act No. VII promulgated on 9th January, 1977 the appellant had become, for all intents and purposes, the employee of the Federal Government or he remained an employee of the Provincial Government. To adjudicate this important point so made out by the -learned counsel for the appellant, the criteria before us, would be whether the appellant who was basically an employee of the Government of Punjab, was absorbed in the A.P.U.G. Group or he was still holding his lien in the Provincial Government. For this purpose we have consulted the record and are satisfied that the name of the appellant, has not been borne, at any time, on the A.P.U.G. Group and his promotion to Grade-l8 was only considered as ad hoc, as his seniors were still awaiting promotion in accordance with their seniority. We have also examined the opinion of the Establishment Division in which it has been held that the appellant had lien with the Provincial Government and conti--nued to be Provincial Police Officer and his promotion to Grade- 1 8 did not bestow upon him any vested right. As unless and until he is absorbed in the A.P.U.G.
Group, he would remain on the strength of Provincial Government. We have also taken into consideration this aspect in our judgment delivered in the case of M's. Muhammad Khan and three others in appeals No.- 529/ 749/80 etc. And have held that unless and until it is proved on the record, that a person although working as Superintendent of Police, had not become Member of A.P.U.G. And he would be treated as a Provincial Government servant, as his appointment would not be substantive in nature but ad hoc for all time to come.
9. In view of the above we hold that the appellant was a Provincial civil servant and the Governor was fully competent to retire him after the completion of 25 years' service.
10. With regard to his plea that he had a very good record of service and the Governor was not justified to pass a retirement order, it would be sufficient to say that the said order of the Governor has now been protected by Article 13-A of the Provisional Constitution Order of 1981, and thus this Tribunal has no jurisdiction to look into the merits of this case, unless it is proved that the order was not made by the competent authority or the person so retired, has not completed 25 years or the order is based on malice. As all the prerequisites are not lacking in the impugned order as the appellant has completed 25 years' service, has been retired by the com--petent authority and no malice has been alleged against the said authority, therefore, the plea of the appellant has no force in this respect at all.
11. The result is, we dismiss the appeal, as being without any merits. There will be no order as to costs. To be communicated to the parties.