' ZAFFAR HUSSAIN MIRZA, J.-This appeal by special leave arises out of the judgment of the Service Tribunal, Punjab, dated 4-3-1979 by which the appellant's appeal was dismissed in limine on the preliminary ground that the Tribunal had no jurisdiction to entertain the appeal as the appellant was not a civil servant.
2. Leave to appeal was granted to consider the following two questions :-
(i) whether in the facts and circumstances of this case the appellant was a Government servant and, therefore, could only be removed from the service under the law applicable to the employees of the Provincial Government.
(ii) whether the Service Tribunal was wrong to hold that when the appellant agreed to opt for pension owing to his service having been placed under the Board of Governors of the College, he ceased to be a Government servant, notwithstanding the effect of the subsequent notification issued by the Government in May, 1963, to the effect that he shall be deemed to be continuously, in service as a Government servant uninterruptedly with effect from 1-7-1962.
3. Briefly the facts of this case are that the appellant joined as a clerk in service of the then Government of Punjab in the year 1944 and was posted on the staff of the Lawrence College, Ghoragali, subsequently named as Pine Hills College. On 30-6-1962 in view the promulgation of West Pakistan Government Educational and Training Institutions Ordinance, 1960, the employees of the Lawrence College who were admittedly until then Government servants were transferred to serve under the administrative control of a Board of Governors. As a result of this change services of the appellant stood transferred as an employee of the Board. However, in disciplinary matters the Board was not competent to dismiss or remove from service or reduce in rank, any of the employees but could only initiate proceedings and refer the case to the appointing authority for further action.
4. By a subsequent Notification No, SO(SI)-4/103-62, dated 15-9-1962, the then Government of West Pakistan abolished the cadre of the said College with the result that the aforesaid protection given to the employees in regard to disciplinary matters was also withdrawn, with effect from 1-7-1962. At this stage under the same notification the employees of the College were required to execute and in fact executed agreements in acceptance of the posts offered to them by the Board of Governors and further that they would not claim any compensation for loss of service under the Government.
On reconsideration of the matter, however, the Government in May, 1965, deleted from the above notification dated 15-9-1962, the said provision and in implementation thereof, the Principal of the College informed the appellant vide letter dated 18-11-1965 "that the Governor has been pleased to cancel this paragraph it means that the Government cadre at this College had continued uninterrupted and you continue to be a Government servant on deputation to the Board of Governors of this college on the terms and conditions laid down in Government of the West Pakistan Education Department Notification No, SO (School) 22/25-63, dated 7th May, 1965".
5. Subsequent to aforesaid change in policy the post of Bursar fell vacant in the college which was claimed by the appellant, but as his claim was not accepted, he filed a civil suit against the respondent for establishing his rights. During the pendency of this suit, the Principal of the College charge-sheeted the appellant and eventually an inquiry committee was appointed which proceeded against the appellant ex parte and found him guilty. On the report of the inquiry committee the appellant's services were terminated by an order dated 9-1-1978. Being aggrieved by this order the appellant filed an appeal before the Service Tribunal which was dismissed as per the impugned order mentioned above.
6. Now incoming to the conclusion that the appellant was not a civil servant, the learned Tribunal took into consideration the fact that as a result of the abolition of the cadre of the College with effect from 1-10-1962 the appellant had accepted retirement from Government service and started drawing pension and that he had in fact exercised the option, given to the employees, in 1962, to serve under the Board. On the basis of these facts the Tribunal came to the conclusion that the appellant ceased to be an employee of the Government, Further, reference was made in this connection to the fact that when the status of the Government servants working in the College was restored, the appellant already stood retired from Government service and he never moved for restoration of his old status. This he did much later in 1977 when he had already lost the right of being restored to Government service much before in 1969.
7. Now the West Pakistan Government Educational and Training Institutions Ordinance, 1960, was promulgated for the purpose of establishing Boards of Governors for some Government Educational and Training Institutions in the then West Pakistan Province for the efficient management and control thereof. The Ordinance provided that a Board of Governors established thereunder shall be a body corporate and its members were to be appointed by the Govern or of West Pakistan. The Board was vested with full powers to administer and manage the institution, including the powers of recruitment and determination of the terms and conditions of service of the Principal and other members of the staff. As regards the existing members of service section 9 of the Ordinance provided as under : "Transitional provisions regarding staff-Any person serving, in connection with the affairs of the Province, in an institution in any capacity immediately before the day notified under subsection (2) of section 1, hereinafter referred to as the "said day", may be transferred by Government for service under the Board on such terms and conditions as Government may determine : provided that such terms and conditions shall not be less favourable than those admissible to him under Government ; provided further that no such person shall be dismissed, removed from service or reduced in rank by an authority subordinate to that by which he was appointed."
' Under section 17 of this Ordinance the Government was authorised to make rules, inter alia providing for the terms and conditions on which Government servants may be transferred to the Boards. In pursuance of powers under section 9 and section 17 (2) (a) of the aforesaid Ordinance the Government of West Pakistan issued rules called the West Pakistan Government Servants (Service under the Board of Governors of Educational Institutions) Rules, 1965. Rule 2 of these rules reads as under : "A Government servant to whom these rules apply shall on transfer for service under the Board of Governors continue to be a Government servant and be deemed to be on deputation to Board provided that he shall not be entitled to any deputation allowance."
8. Thus from the perusal of the aforesaid provisions it is clear that persons who were already in Government service and were transferred to serve under the Boards established under the aforesaid Ordinance, enjoyed statutory guarantees to retain their status as Government servants and their terms and conditions of service were not to be less favourable than those admissible to them under the Government at the time of their transfer. Also such persons were not liable to be dismissed, removed or reduced in rank by an authority subordinate to that by which they were appointed.
9. Now the admitted position is that prior to the so-called abolition of the Lawrence College cadre with effect from 1-10-1962 the appellant enjoyed the status of a Government servant but with effect from that date his cadre having been abolished, his service under the Government was purported to be terminated. Admittedly the employees were allowed to draw their pension thereafter and notwithstanding that, the cadre was restored, with the result that the status of the employees as Government servants was also restored. Learned counsel for the appellant has placed before us certain documents which indicate that after restoration of the cadre steps were taken to recover the amount drawn by the employees towards their compensatory pension/gratuity.
10. It is contended, in the circumstances, that upon the restoration of the cadre the appellant's status as a Government servant was restored by operation of law and was not dependent upon anything to be done by him.
11. After hearing the learned counsel for the parties at some length we find great force in this submission. It seems to us that para. 2 (i) of the Government of West Pakistan Education Department Memorandum No, SO (SI) 4-103162, dated 15-9-1962, whereby the Lawrence College cadre was abolished with effect from 1-10-1962 and the existing staff was granted pension etc. Was issued in contravention of the provisions of section 9 of the aforesaid Ordinance and realising this legal infirmity, upon the issuance of the West Pakistan Government Servants (Service under the Boards of Governors of Education Institutions) Rules on 7-5-1965, simultaneously the Government cancelled paragraph (i) of the Notification dated 15-9-1962. The effect was that the cadre was restored and similarly all service rights of the employees including the status as Government servant was also restored. Even otherwise on the material placed before us we find that the statutory guarantees extended to the Government servants could not be taken away by a notification by the Government. Learned counsel appearing for the respondents was unable to show to us any provision of law or rules whereby the employees who were restored in Government service were required to apply for grant of such status. We are, therefore, unable to agree with the view taken by the learned Tribunal that since the appellant did not move for restoration of his status, he ceased to be a Government servant. Further, the fact that the appellant was drawing pension is also immaterial vis-a-vis his status as a Government servant as the recovery of the amounts received by him is a separate matter. The appellant was, therefore, a civil servant and his appeal was not liable to be dismissed as incompetent in law. He would not like to decide any other question in the present proceedings.
12. In the result this appeal is allowed and the case is remanded to the Service Tribunal for disposal of the appeal on merits. Costs of this appeal shall be borne by the respondents.