' MUHAMMAD SIDDIQUE FAROOQI (CHAIRMAN).--Mr. Gul Zaman, appellant has challenged the order No, 1356-61 dated 27-11-1983, passed by the President in his capacity as Speaker of the Legislative Assembly. Through the impugned order, the services of the appellant were terminated on the grounds that Azad Jammu and Kashmir Public Service Commission had not approved the appellant, for the post of Editor of Debates. The appellant moved a review petition, before the same authority, which was dismissed on 1-2-1984. The appellant preferred an appeal before the Service Tribunal, which was also dismissed by the Tribunal on 30-1-1986. He went up in appeal, before the Supreme Court, against judgment of the Service Tribunal. The learned Court of appeal remanded back the case, vide its judgment dated 5-1-1987, with the direction that the case may be heard afresh, in light of the observation of that Court.
2. The learned counsel for the parties were heard afresh. The Tribunal had dismissed the appeal on the ground of jurisdiction. It was also remarked that some observations were made by the Tribunal, in an earlier decision in the case of one Abdul Qayyum, an employee of the Assembly, about the legality and propriety of the appointment of Gul Zaman. The Tribunal was otherwise of the opinion that the order of termination of service of the appellant, on the basis of recommendations of the Public Service Commission was illegal, because the Commission had no jurisdiction in the matter.
The question of legality or propriety of orders, under appeal as decided by the Tribunal vide its judgment dated 30-1-1986 stands confirmed by the Supreme Court, in the sense that none of the parties had disputed the same before the Supreme Court, nor this question is sought to be decided again, by this Tribunal. Thus, now it is finally settled that order dated 17-11-1983, whereby the services of Mr.Gul Zaman were terminated was illegal because the order was passed on the basis of recommendation of Public Service Commission, which had no jurisdiction to make any recommendations, regarding the posts in the Assembly Secretariat. The appointment of appellant, as Editor of Debates in Assembly was lawfully made by the speaker and approved by the Selection Committee of the Assembly. The reasons in detail appear in our judgment dated 30-1-1986.
Consequently, the order dated 1-2-1984 passed in review is also illegal. The Supreme Court has made it clear that the decision in the case of Mr.Abdul Qayyum does not stand in the way, in giving a relief to Mr.Gul Zaman, if he is otherwise found to entitled to it. Now, the question of jurisdiction is left for determination, by the Tribunal at this stage.
3. The learned counsel for the appellant, in addition to the oral arguments, also submitted the written arguments. He agitated the following points, for our consideration:-
(a) The preamble of Service Tribunal Act, 1975 shows that this Act was passed for dealing with the matters of persons in the service of Azad Jammu & Kashmir. The word "Government" does not appear in the preamble, therefore the act is applicable to the cases of all the civil servants, working under the Executive, judiciary or the Legislature.
(b)The definition of civil servant given in the Service Tribunal Act, 1975, includes the employees of Assembly because the word "Government" is wider enough to include the Executive, Legislature and judiciary as enuntiated in a case reported PLD 1966 Lah. 446 and also explained by Maxwell etc.
(c) The Service Tribunal Act, 1975 and the Civil Servants Act, 1976 both are dealing with the affairs of the civil servants. The amended definition in the Civil Servants Act, 1976 includes all the civil servants, functioning in connection with the affairs of the State, as against the definition, which existed before the amendment made on 8-12-1983. In order to reconcile the position, the definition of the "Civil Servant" assigned to these words later on, by the Legislature should be adopted. The reference was also made to the observation of the Supreme Court made in its judgment dated 5- 1-1987.
(d) Section 12 of Azad Jammu and Kashmir Legislative Assembly Secretariat Act, 1976 was relied upon by the counsel for the appellant. It was argued that all the laws, relating to the terms and conditions of the Civil Servants of the Government including the rights of appeal have been adopted by the Legislature, in the case of all the employees of the Legislative Assembly Secretariat.
The scope of the Service Tribunal Act 1975, therefore, stands extended to the cases of appeal, by the employees of Assembly Secretariat.
(e) Lastly, the counsel for the appellant argued that in the cases of Abdul Qayyum and Ghulam Ahmad Abbasi, the Tribunal had assumed the jurisdiction, therefore, it would be discriminatory if the jurisdiction is not assumed in this case.
3. The words "civil servant" have been defined in the same Act. The Service Tribunal is the creation of the Service Tribunal Act, 1975. As an institution, created by the Special Act, it cannot traverse beyond the sphere prescribed by the Special Act. The preamble of Act is helpful, only in cases, where there is no other criteria, for ascertaining the intention of the Legislature. If the Legislature has itself laid down the definition, in the Act, the preamble or any outside aid is not to be availed of for discovery of the intention. The relevant provision in the Service Tribunal Act 1975, is reproduced below:-- "2. Definitions.--In this Act, unless there is anything repugnant in the subject or context.--
(a) Chairman, means the Chairman of the Tribunal;
(b) 'Civil Servant' means a person who is or who has been a member of a civil service of the Azad Jammu and Kashmir in connection with the affairs of the Government or who holds or has held a civil post in connection with the affairs of the Government but does not include-- a person who is or who has been on deputation to the Azad Jammu and Kashmir from the Federation or any other province of Pakistan or authority;
(ii) a person who is or has been employed on contract or work-charged basis, or who is or has been paid from contingencies; or
(iii) a person who is or has been a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923) as in force in Azad Jammu and Kashmir;"
The matter rests upon the interpretation of the definition given in the Act itself, which restricts the action of the Tribunal to the cases of the persons, functioning in connection with the affairs of the Government. The relevant provisions as embodied in Civil Servants Act, 1976 are reproduced below:-- "2. . Definitions.- . -(1) In this Act, unless there is anything repugnant in the subject or context:-
(a) 'ad hoc appointment' means appointment of a duly qualified person made otherwise than in accordance with the prescribed method of recruitment, pending recruitment in accordance with such method;
(b) 'Civil servant' means a person who is appointed to any service of the State of Jammu and Kashmir or holds a civil post, in the service of Azad Jammu and Kashmir employed in connection with the affairs of the State but does not include.
(i) a person who is on deputation to the service of Azad Jammu and Kashmir in connection with the affairs of the Government, from the council or the Federation or any Province of Pakistan or authority;
(ii) a person who is employed on contract, or on workcharged basis, or who is paid from contingencies;
(iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934) or the workmen's (Compensation Act, 1923) (VIII of 1923); There are a number of persons, who can be termed as civil servants but their affairs cannot be looked into by the Tribunal. For instance, a person employed on contract or work-charged basis, by the Government and a deputations' are also civil servants. A person employed by a Semi- Government institution or a Corporation is also a civil servant, as he performs many duties in connection with the affairs of the State, but such people are excluded from the purview of the Civil Servants Act, 1976 as well as the Service Tribunal Act, 1975. The definition given in both the Acts is slightly different. A number of categories of civil servants have been clearly excluded, even by the Civil Servants Act, 1976 for the purpose of this Act, although they are otherwise functioning in connection with the affairs of the State. The similar position exists in the Service Tribunal Act, 1975. A number of persons have been also excluded by the definition, laid down in this Act from the category of civil servants. In section 2, after the word 'Definition (1) the words "in this Act" appear in the Civil Servants Act 1976, which signify that the meaning assigned to any word or phrase apply to the extent of this Act. The definitions are thus, not of universal application. The words "unless there is anything repugnant in the subject or context in section 2, makes it even possible to interpret a word or phrase differently than as defined in section 2, if the subject or context so requires. We may add here that even the Civil Servants Act, 1976, in spite of the wider definition of "Civil Servant" being laid therein, would not apply to the employees of the Legislative Secretariat, in the matters provided separately, by the Legislative Assembly Secretariat (Recruitment Terms and Conditions)
Act, 1976. Separate Efficiency and Discipline Rules, Recruitment Rules, Method of appointment, Selection Committee etc. Have been provided for the Legislative Assembly Secretariat. The Public Service Commission, the Azad Kashmir Selection Board have no jurisdiction in the matters, pertaining to that Secretariat. The Assembly Secretariat is creation of the Constitution, as per Art. 30-C, while the Civil Secretariat and all of its attached Departments are the creation of Rules of Business and executive orders of the Government. The definition of "Civil Servant" as given in the Civil Servants Act, 1976, cannot be applied to determine the competency of the proceedings, under Service Tribunal Act, 1975, where the later Act contains a distinct definition. In view of this situation, the Tribunal is not in a position to consider such persons, as Civil Servants for the purpose of its jurisdiction, who are not covered by the definition, laid down in the Service Tribunal Act, 1975. The amended definition, in the Civil Servants Act, even though different, will not extend the scope of the Service Tribunal Act, unless a similar provision is made in this Act, by the Legislative. The Tribunal in its decision dated 30-1-1986 had pointed out an instance, in the matter of employees of WAPDA, in respect of whom, an amendment was made by the Central Legislature, in the WAPDA Act, for extending the scope of Service Tribunal Act to the employees of WAPDA. So long as an express provision is not made, the definition of another Act will not change the position. The civil servants of some other categories have been covered by the definition, adopted on 8-12-1983, only for the purpose of Civil Servants Act, 1976 and not for the purpose of the special Act, exclusively dealing with the appeals, before the Tribunal. We could refer to the Civil Servants Act 1976 and in some cases, the Dictionary meaning of a word or phrase can be adopted but the presence of definition, in section 2(b) has curtailed the scope of our exposition of law on the subject.
4. The learned counsel for the appellant submitted that the word "Government" has been explained to include the Executive, Legislature and the judiciary, in the Black's Law Dictionary. The appellant's counsel contended that the words "affairs of the Government" are wider enough because the Government has been defined as the Government of Azad Jammu and Kashmir in the Service Tribunal Act. According to him, the legislature is a part of the Government. He has relied upon PLD 1966 Lah.
446. The learned counsel supported his contention by refering pages 71 to 74 of the book interpretation of statutes, by Maxwell. The interpretation of Government may in some circumstances include the legislature and the judiciary but the wording of the Service Tribunal Act does not admit of such meaning, for the purposes of this Act. The Secretariat of Assembly and the Government are the creation of Interim Constitution of Azad Jammu and Kashmir. We fall back to the provisions of the Constitution. The Government has been described in section 12(i) as under:-- "12. . The Government.- . -(1) Subject tc this Act, the executive authority of Azad Jammu and Kashmir shall be exercised in the name of the President b; the Government, consisting of the Prime Minister and the Ministers, which shall act through the Prime Minister, who shall be the Chief Executive of Azad Jammu and Kashmir."
The legislature has to make laws, for Azad Jammu and Kashmir, subject to the provisions of section 31, of the Constitution. The business or the field of activities of the Government is distinct than that of the Legislature as per scheme of the Constitution. The consideration of all the factors lead us to conclusion that words "Government Servant" would not include the employees of Legislative Assembly Secretariat. The latter is an independent legal entity. The Government does not have the power to control the function of the Assembly Secretariat. The Speaker as a Head of the Lagislature is authorised to deal with the affairs of the Assembly Secretariat, under the provisions of the Constitution, the Legislative Assembly Rules of procedure and Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment Terms and Conditions) Act, 1976.
5 It was argued by the counsel for the appellant that vide section 12 of Azad Jammu and Kashmir Legislative Assembly Secretariat (Recruitment and Conditions) Act 1976, the scope of the Service Tribunal Act 1975 stands extended to the employees of the Assembly Secretariat. The relevant provision is reproduced below:-- "12. Conditions of service, . etc.--The terms and conditions of service not provided for by this Act, including recruitment policy, rank, status, seniority, promotion, termination of service, conduct, efficiency, discipline, pay, leave, pension, gratuity, provident fund, benevolent fund, group insurance, right of appeal or representation and privileges of an employee, shall be governed by the provisions for the time being in force or any provision made thereafter and applicable to the employees holding corresponding posts in the Government Secretariat, subject or such modifications, veriations or exceptions, if any, as the speaker may, from time to time, by order specify."
' The Tribunal in its judgment, dated 30-1-1986 had expressed that it had no jurisdiction as appellate authority, in the matters of the person, employed in the Assembly Secretariat. The matter has been argued in a different way now, for reconsideration of the question of jurisdiction, which has been remitted to the Tribunal, by the learned Supreme Court. The counsel for the appellant maintained that the construction, put by the Tribunal, to the language of section 12, vide judgment dated 30-1-1986 is very narrow and it deprives the persons concerned, with the affairs of Assembly, from their valuable right of appeal. The learned counsel referred to the word "provisions" used in section 12 and explained that it refers not only to the rules or orders, but includes the enactment, if any, dealing with the right of appeal. According to him, the Service Tribunal Act is not an exception.
The words "right of appeal" used in section 12 are not qualified by using the words "rules". Therefore, it has unlimited scope, even to the extent of the application of Service Tribunal Act. Mr. Manzoor-ul- Hassan Gillani, the learned Advocate-General, representing the respondents, in this case is also of the opinion, that the wording of section 12, does not admit of a limited interpretation. The right of appeal, according to him, has been conferred on the employees of Assembly Secretariat, irrespective of the fact that it is available under the rules or an enactment. The learned Advocate- General also contended that in the matter of jurisdiction, the interpretation should be liberal and beneficial to the subject. Attempt should be made to save the jurisdiction, instead of ousting the same. We have considered the arguments of the learned counsel on the point. It is true that the words "right of appeal" is not qualified by other words, used in this section. The word "provisions" appearing in the same section, in context of right of appeal also includes the enactment, if any, governing the right of appeal, for the employees, holding the corresponding posts, in the Government Secretariat. The aforesaid two factors support the contention of the counsel for the appellant. So far as the exceptions or modifications, which can be made by the Speaker, is concerned, it has been argued that it can be made only in the rules. The Speaker will not be entitled to make exception, in the right of appeal, which has been extended clearly by the provisions of section 12. If the Speaker makes an exception or modification, in the matter of right of appeal, that would be redundant. According to the learned counsel, the reasonable interpretation would be that right of appeal has been conferred by the Legislature and the power of Speaker would extend to other matters and not the appeal. The right of appeal under an enactment, according to him shall not be limited, but will prevail, even if an order is made. The Legislature has extended the right of appeal, through the legislation, even in Pakistan, in some cases. The present provision, according to the learned counsel, is of the same nature, as the amendment in the WAPDA Act, referred earlier in this judgment, although the phraseology used is somewhat different.
The Service Tribunal Act came into force in 1975, whereas the Act under discussion was passed in 1976, therefore, this latter Act has the effect of extending the scope of the earlier Act. The inability of Speaker in abridging a scope of an Act will effect the powers of the Speaker, in doing so and not the rights of the employees of Assembly Secretariat, conferred on them, by the Act. We agree with the contention of the learned counsel and hold that the Service Tribunal has the jurisdiction to entertain the appeals, of the person, employed in the Assembly Secretariat. The present appeal is, therefore, competent. About the legality of the impugned order, the Tribunal made a detailed discussion, in its judgment dated 30-1-1986 and concisely, the matter has been determined in the earlier part of the judgment, that the orders of the respondent, regarding termination of the service of the appellant and the subsequent order, rejecting the review petition, are illegal.
6. As upshot of the above discussion, we set aside the orders of the respondent, passed on 27-11- 1983 and 1-2-1984 and reinstate the appellant, into service, with back benefits, as if he has been in service, throughout. We make no order as to the costs.