' AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above two appeals (hereinafter referred to as appeal A and appeal B, respectively) as they are directed against a common judgment dated 9-3-1988 passed by the Federal Service Tribunal. Islamabad, hereinafter referred to as the Tribunal, in Appeal No,379(R) of 1986 setting aside the promotion of the appellant in appeal A as the Headmistress with the direction that promotion to the post of the Headmistress in question shall be processed and made afresh in accordance with the rules.
2. The brief facts to be noted are that one, Mrs. Shuja Qazi, retired as the Headmistress of Islamabad College for Boys, hereinafter referred to as the College, on 1-10-1985. Thereupon, respondent No,1 being the seniormost was appointed as an officiating Headmistress of the College on 31-10-1985. Initially the Ministry of Education, Government of Pakistan, advertised the post of the Headmistress for the College in July, 1985, but subsequently upon representation made by the teachers, it was resolved to fill in the above vacancy by promotion. It appears that the Departmental Promotion Committee, comprised of a Joint Secretary/Joint Educational Adviser, Ministry of Education, as its Chairman and the Principals of I.C.G. And I.C.B. As Members, and one Mr. Naeem Ullah Khan, D.EA. (NJ) in the Ministry of Education as the Member/Secretary, interviewed as many as 16 junior teachers including the appellant and respondent No,1. The Committee selected three prospective candidates out of the above 16 junior teachers which included the appellant.
Finally the Chairman of the Board of Governors of the College i.e, the Secretary, Ministry of Education, after interviewing the above three selected candidates, selected the appellant in appeal A. And in consequence thereof, she was appointed as the Headmistress of the College by an order dated 24-7-1986. Aggrieved by the above appointment, respondent No,1 made representation to the 'Chairman, Board of Governors, on 13-8-1986, but the same was declined through a letter dated 29-10-1986. Thereupon, respondent No,1 filed the above appeal, which was allowed by the Tribunal through the impugned judgment in the above terms. In the impugned judgment, the Tribunal has held that respondent No,1 was a civil servant and not an employee of the Board of Governors as the latter did not have a statutory autonomy. It also held that the Departmental Selection Committee was not constituted in terms of Clause 2 of Rule 5 of the Islamabad Model Schools/Colleges (Service) Rules, 1984, as it was short by one Member. It further recorded a finding to the effect that respondent No,1 was the seniormost among the junior teachers. Thereupon, the appellant in appeal A filed appeal A, whereas the Federal Government also felt aggrieved by the above order filed appeal B.
3. In support of appeal B, Mr. Muhammad Afzal Siddiqi, the learned Deputy Attorney-General, and Mr.Bashir Ahmad Ansari, learned A.S.C. For the appellant in appeal A, have made a number of submissions. Their first and foremost submission was that, since respondent No,1 was an - employee of the Board of Governors of the College, and not a civil servant, the Tribunal had no jurisdiction in the matter. In furtherance of the above submission, they invited our attention to a Resolution dated 24-1-1985 passed by the Government of Pakistan, Ministry of Education, resolving inter alia to constitute a Board of Governors for the Model Educational-Institutions in Islamabad, para 10 of which provides that all movable and immovable properties of the institutions shall vest in the Board, whereas para 11 of the same lays down that the Board shall be an institution and shall sue and be sued in its own name. The composition of the Board is provided for in para 3, the Chairman of which is the Secretary of the Ministry of Education, besides having 15 other Members, mostly officials (hereinafter referred to as the Board). On the strength of the above resolution, it was vehemently contended by M/s. Muhammad Afzal Siddiqi and Bashir Ahmad Ansari that the status of respondent No,1 was that of an employee of the Board. The basic question which requires consideration is, as to whether the above Resolution created a juristic body in the form of the Board, which could employ teachers. A juristic body could have been created by incorporation. In order to determine the above issue, we will have to examine the question, as to how a corporate body can be created. If we trace the history of the inception of the Corporations, we find that the corporations originated with the Romans and Greeks and later were introduced into Britain and America. Greeks as early as the time of Solon (638-558 B.C.) permitted the incorporation of associations inter alia for business subject to the condition that their purposes should not be contrary to the general law of the land. The Romans at an earlier date recognised corporations which were introduced by Numa Pompilus, the second legendary King of Rome (715-672 B.C.). In Britain after its conquest, the Romans established corporations and subsequently such bodies were established and recognised by English Law for various purposes, municipal, charitable and purely private on principles adopted basically from the Roman or civil law. In the American colonies various corporations, both public and private, were also created by English kings or parliament.
After the independence of the United States the Corporations have been created only under legislative enactment of the States or of the United States.
4. It may be observed that under the Anglo-Saxon Law, there are two main classes of corporations, namely, Corporations sole and Corporations aggregate. A corporation sole is a body politic having perpetual succession constituted in a single person like a sovereign or some Ministers of the Crown, Government officers or an archbishop, dean, a vicar etc. Who have been created as Corporation sole by name under the relevant statutes, but this is not a common type of corporation. The Corporations aggregate are more common now-a-days. The method of their incorporation in Britain is either by a Royal Charter or by the authority of the Parliament, that is, to say by or by virtue of statute. In this regard, it may be pertinent to refer to paras 1233 and 1245 from the Halsbury's Laws of England, Fourth Edition, Volume 9, which deal with the creation of the Corporations by charter and by statute and which read as follows:- "1233. Right of Crown. -- The Sovereign has, at common law, power to incorporate by charter any number of persons assenting to be incorporated. Formerly the Pope, as well as the Crown, could create corporations by grant, and such corporations were called spiritual corporations of persons dead in law, as for instance an abbot and convent; but now only the Crown can create a corporation by grant, and no other person can prescribe to do it.
' Although a subject cannot create a corporation, the Crown may delegate to a private person the right of declaring of what members a corporation shall consist, their qualification, and in what manner the corporation shall be kept up. Whether this is done by the Crown at the time of the actual creation of the corporation, or is the subject of a subsequent separate declaration, it is equally the act of the Crown. A subject so empowered must act strictly in accordance with the royal grant, otherwise the body so constituted will not be a corporation in reality, but only in reputation."
"1245. Methods of incorporation by statute.- - Corporations created by authority of Parliament may be divided into four classes: (1) corporations directly created by public general Act of Parliament;
(2) corporations created by registration under public general Acts of Parliament authorising the members of a proposed corporation to apply for its incorporation; (3) corporations created by special (namely local or personal) Act of Parliament; and (4) corporations created under authority delegated by Act of Parliament.
' Corporations have been created by public general Act of Parliament to perform a wide variety of functions of a public nature. Such corporations include local Government authorities, the corporations which control the public services and industries, bodies performing various general administrative and advisory functions, and certain bodies performing special functions of a public nature.
' The most important of the statutes which permit duly qualified applicants for corporate status to obtain incorporation by registration is the Companies" Act, 1948. Other statutes apply to the incorporation of building societies, industrial and provident societies, and employers' associations.
' Incorporation by special Act of Parliament. Was formerly much used, particularly for the incorporation of railway and canal companies and other companies providing services of a quasi- public nature. A number of such companies are still in existence but this method of incorporation is now rarely used Certain clauses are, by statute, deemed to be applicable to any corporation incorporated as a Joint Stock Company by special Act since 8th May, 1845, save in so far as expressly varied or excepted by the special Act.
' Creation of corporations by delegated authority is relatively unusual."
5. In Pakistan Corporations are not created by a Royal Charter but they are incorporated either by a statute like the Karachi Port Trust, incorporated under the Karachi Port Trust Act, 1886, or by registration under a statute like companies under the Companies Act or associations under the Societies Act or cooperative societies under the Cooperative Societies Act or a trust under the Trusts Act etc. However, corporations can also be created by an executive order under the authority delegated by an Act of the Parliament. In Pakistan we find such a delegation inter alia in section 3 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 (Act XIII of 1975), which provides that the Federal Government shall constitute a body to be known as the Evacuee Trust Property Board, for the management and disposal of evacuee trust property and that the Board shall be a body corporate by the name aforesaid having perpetual succession and common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and sue and be sued in its name. It is an admitted position that the Resolution has not been passed in pursuance of any such delegated statutory power. In this view of the matter, the Board is neither a corporate body nor a juristic person competent to employ teachers.
Mr.Bashir Ahmad Ansari has invited our attention to the factum that the employees of the Pakistan Broadcasting Corporation, the Pakistan Television Corporation, the WAPDA and the P.I.A. Have been held to be employees of corporate bodies and not civil servants though they are controlled by the Federal Government. This is so, for the reason that the corporate status of the above organisations has been created by virtue of a statute or by virtue of registration as a corporate body under the Companies Act. In this regard reference may be made to the case of (i) Messrs Malik and Haq and another v. Muhammad Sham sul Islam Chowdhury, and two others PLD 1961 SC 531; (ii) Zainul Abidin v. Multan Central Co-operative Bank Limited, Multan PLD 1966 SC 445; (iii) The Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustom Ali and another PLD 1966 SC 848; (iv) Abdul Salam Mehta v. Chairman, Water and Power Development Authority and another 1970 SCM R 40; (v) Lt.-Col. Shujauddin Ahmad v. Oil & Gas Development Corporation 1971 SCM R 566 and (vi) R.T.A. Janjua v. National Shipping Corporation. PLD 1974 SC 146. In the above cases, this Court has held that relationship between a corporation and its employees is that of a master and servant and that no writ petition would be competent against the order of wrongful termination of service or dismissal from the service. However, in the case of The Principal, Cadet College, Kohat and another v. Muhammad Shoab Oureshi PLD 1984 SC 170 and the case of Anwar Hussain v. Agricultural Development Bank of Pakistan and another PLD 1984 SC 194, this Court has taken the view that even an employee of a corporation can maintain a writ petition if there has been a violation of any provision of law or of any statutory rules of service. But, we may observe that the above question is not germane to the point in issue.
6. Then it was urged by Mr.Bashir Ahmad Ansari, learned A.S.C. That even if it is to be held that the Board was not a corporate or juristic person, it would not mean that the respondent No,1 was a civil servant as the respondent does not fall within the ambit of a civil servant as defined in clause (b) of section 2 of the Civil Servants Act, 1973 (hereinafter referred to as the Act), and, secondly, her appointment has not been made in terms of section 5 of the Act read with section 7 of the Federal Public Service Commission Ordinance, 1977 (hereinafter referred to as the Ordinance), which were the mandatory requirements under Article 240 of the Constitution. In this regard, it may be pertinent to observe that the above Article 240 of the Constitution inter alia provides that subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services by or under Act of Parliament. The explanation to the above Article provides that in the Article "All Pakistan Service" means a service common to the Federation and the Provinces which was in existence immediately before the commencing day or which may be created by the Act. In pursuance of the above Article, the Act was enacted by the Parliament. It may be advantageous to reproduce clause (b) of section 2, section 5 of the Act and section 7 of the Ordinance, which read as follows:-
(i) Civil Servants Act, 1973.--"2(b) "civil servant" means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include-
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(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);"
(ii) "5. Appointments- Appointments to an All-Pakistan Service or to a civil service of the Federation or to a civil post in connection with the affairs of the Federation, including any civil post connected with defence shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf."
(iii) "7. Federal Public Service Commission Ordinance. 1977,-- Functions of the Commission, --The functions of the Commission shall be,
(a) to conduct tests and examinations for recruitment of persons other than officers of the Armed Forces of Pakistan to all Pakistan services, the civil services of the Federation and such posts in connection with the affairs of the Federation as may he prescribed by rules made under Section 10, and
(b) to advise the President on matters relating to qualifications for, and methods of recruitment, to the services and posts referred to in clause (a), and other matters which the President may refer to Commission.
Explanation. --In this section, "recruitment" means initial appointment otherwise than by promotion or transfer."
7. A perusal of the above-quoted definition of the term "civil servant" indicates that it includes a person, who is (i) a member of All Pakistan services or (ii) is a civil servant of the Federation or (iii) holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub-clauses (i) to (iii) to the above clause (b), whereas the above-quoted section 5 provides that the appointment to H the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf. It may also be pointed out that the above- quoted section 7 of the Ordinance provides that the tests and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and section 5 of the Act are to be conducted as may be prescribed by rules made under section 10 of the Ordinance. We may observe that the learned A.S.C. Has not been able to point out any rules, requiring the junior teachers to appear in the Federal Public Service Commission examination. In any case this is not the point in issue. The controversy is, as to whether respondent No,1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter alia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of its constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges duel functions namely, of the Federal Government and of I the Provincial Government. In the above background, it cannot be denied that respondent No,1 holds a civil post in connection with the affairs of the Federation. The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation.
8. It was next contended that in view of clause (b) of subsection (1) of section 4 of the Service Tribunals Act, 1973, no appeal lies against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. We may observe that in the present case, the Tribunal has not held that respondent No,1 is entitled to hold or to be promoted to a particular post. The Tribunal has recorded findings of facts to the effect that the Departmental Promotion Committee was not constitued in accordance with the Rules and, therefore, the decision taken by it was not legal and that respondent No,1's case was not properly considered. In our view, the Tribunal has jurisdiction to go into the above questions. We may observe that the Tribunal cannot decide the question of fitness referred to in the above provision of the Service Tribunals Act, but it has jurisdiction, to examine the questions, whether the Departmental Promotion Committee was constituted in accordance with the relevant rules and whether the cases of the civil servants concerned were properly considered in terms thereof.
9. Then it was contended by the learned A.S.C. For the appellants, that in case this Court holds that the Board was not a corporate body, the Islamabad Model Schools and Colleges (Services) Rules, 1984, framed by the Board, of which violation was alleged, had no statutory force and, therefore, could not have been relied upon by the Tribunal. We find that this point was not urged before the Tribunal. However, we may observe that even departmental instructions become enforceable in service matters if they have been continuously and consistently acted upon by the department concerned. The Board after having framed the above rules, cannot plead that it can violate the same with immunity. We may state that a violation of a non-statutory rule cannot be assailed through a constitutional writ petition, but the Tribunal while exercising special jurisdiction in service matters may take cognizance of a breach of a non-statutory rule/instruction if the same has been continuously and consistently acted upon by the department concerned. In any case the Tribunal has not prohibited the Federation to apply, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, while reconsidering the case of promotion in case the aforementioned rules framed by the Board are to be ignored on the ground of not being statutory.
10. It was then contended that respondent No,1 had not raised any plea as to the irregularity in the composition of the Departmental Promotion Committee before it nor it was pleaded in the memo of appeal before the Tribunal. On the other hand, Mr. M.S. Mahboob, learned A.S.C., who appeared for respondent No,1, submitted that such a plea was raised in the memo of appeal. Suffice to observe that in any case the Tribunal has entertained the above plea and has adjudicated upon the same, and by doing so, it has not violated any provision of law or the rules. The learned A.S.C.
For the appellants, was unable to point out that the above finding recorded on the above question of fact is not correct.
' The appeals have, therefore, no merits and the same are dismissed, but there will be no order as to costs.
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