1. ABDUL KADIR SHAIKH, J.---This petition arises out of the following facts and circumstances:-- The Government of Pakistan in order to organise the affairs of and aid to the refugees from Afghanistan after the Soviet invasion in 1979, created an establishment by the name of Afghan Refugees Organisation in Pakistan, with a branch in Baluchistan. The status of the employees of the said Organisation remained uncertain for some time, and it was clarified under Memorandum No.F.2(2)-AR.III/SI, dated 4th March 1982. Issued by the States and Frontier Regions Division, which reads as under:-- "Subject: STATUS OF AFGHAN REFUGEES ORGANIZATION AND PERSONS EMPLOYED THERETO.
2. Continuation this Division's Memo No.1,(2) AR.II1/82; dated the 21 February; 1982 on the above subject.
(2) The question of status of the employees of the Afghan Refugees Orgnization has been examined in consultation with Establishment Division and the position is as follows:
(a) According to Article 140(1) of the 1973 Constitution which has been retained in the Provincial Constitution Order 1981, the Federal Government may; with the consent of the Government of a Province; entrust; conditionally or unconditionally; to that Government; or to its Officers; functions in relation to any matter to which the executive authority of the Federation extends. The matter of admission or migration of Afghan Refugees into Pakistan; and their maintenance until they return to their country is a matter to which the executive authority of the Federation extends.
(b) There can be three categories of employees serving in the Afghan Reguees Organization set up for the purpose:st
(i) Federal civil servants on temporary transfer from Province; and
(ii) Provincial Civil Servants on deputation from the Province; and
(iii) Persons appointed by provincial Government or other various competent authorities in the Afghan Organization on behalf of the Federal Government; to posts created in the Organization and paid from Federal Budget.
(c) The persons mentioned in (i) & (ii) will continue to be Federal civil servants or Provincial civil servants; as the case may be; and governed by the rules.
(3) It is requested that the matter may kindly be considered by the Government of Baluchistan, in the light of above position for taking further necessary action."
3. Subsequently under letter dated 6th June 1982 the Secretary, Home and Tourism Department was declared to be the Head of the Department in respect of Afghan Refugees Organisation in Baluchistan. This letter reads as under:-- From "The Section Officer, States and F.R. Division, ISLAMABAD.
4. To The Deputy Accountant-General, Incharge, Sub-Offices of the AGPR, QUETTA.
5. Islamabad, the 6th June, 1982.
6. Subject: DECLARATION OF SECRETARY, HOME AND T.A. AND TOURISM DEPARTMENT, GOVERNMENT OF BALOCHISTAN AS HEAD OF DEPARTMENT IN RESPECT OF AFGHAN REFUGEES ORGANIZATION IN BALOCHISTAN.
7. Sir, I am directed to convey the sanction of the President to the Secretary, Home T.A. And Tourism Department, Government of Baluchistan, Quetta being declared as Head of Department in respect of Afghan Refugees Organization in Baluchistan in terms of S.H.F.(10).
(2) This sanction is being issued with the concurrence of Ministry of Finance (Regulation Wing)
8. Islamabad vide their U.O.No.D.819-8.2.82, dated the 24th May, 1982.
9. Your obedient servant, S. ALI JAWAD NAQVI Section Officer."
10. Afterwards, on the recommendation of the Selection/Recruiting Committee for the staff of Baluchistan appointed the respondent as Refugee Village Administrator in Grade-16 on 28-1-1981.
11. During the course of his employment, a notice dated 21st July, 1988 was issued to respondent to show cause why disciplinary action, which may amount to his dismissal from service, should not be taken against him for the reason that he had failed to deposit the sale proceeds of packing materials of his camp for the period from May and June 1988, and had also remained absent from duty without leave for certain period of time, On receipt of the aforesaid notice, respondent deposited a sum of Rs.14,868 on 10th August 1988, being the sale proceeds of the packing material under his control, and made a reply dated 11th August 1988 to the show-cause notice denying the charges levelled against him. Thereafter disciplinary proceedings were taken against respondent and his services were terminated by the Additional Commissioner, Afghan Refugees Organisation, Baluchistan, Quetta by the order dated 3rd December 1988. Respondent filed a departmental appeal against this order which was heard and decided by the Additional Chief Secretary (Home) and Tribal Affairs Department who, however, took the view that both the charges were not of grievous nature and taking a lenient view, substituted the order of respondent's termination from service into reversion to the next lower grade i.e. Of an Assistant in Grade-11. Respondent then filed an appeal to the Baluchistan Service Tribunal. According to the judgment of the Service Tribunal learned counsel appearing for the appellant before the Tribunal urged "the crucial point in this case" that the appellant (respondent herein) having been appointed initially in Grade-16 by the Government of Baluchistan, vide Notification No.218--AR/80(E&B), dated 28-1-1981, could not be reverted to a lower Grade-11 of an Assistant/Accountant as a result of penalty imposed upon him under the Baluchistan Civil Servants (E&D) Rules, 1983."
12. The Service Tribunal referred to section 12. Of Baluchistan Civil Servants Act, 1974 which reads as under:-- "A civil servant appointed to a higher post or grade ad hoc or on temporary or officiating basis shall be liable to reversion to his lower post or grade without notice."
13. The Service Tribunal taking notice of the language of the above provision of law took the view that since the respondent "was appointed substantively, and not on ad hoc or temporary basis, thus, the Competent Authority i.e. The Additional Chief Secretary (Home) Baluchistan could not revert him from Grade-16 to Grade-11 and that too arbitrarily".
14. It was mainly on the aforesaid ground that respondent's appeal succeeded with the result that the impugned orders passed against the respondent were held as illegal, being in contravention of section 12 of Baluchistan Civil Servants Act, 1974 and were set aside and respondent was reinstated retrospectively with all back benefits under the Rules.
15. According to the case set up by the learned Advocate-General appearing for the appellants before us, a preliminary objection was raised before the Service Tribunal which reads as under:-- "The Afghan Refugees Organization is under the control of Federal Government and under the Constitution; the Federal Government has established the Federal Service Tribunal to decide such case. Therefore the appellant has no lawful right to submit his grievances before this Honourable Tribunal. As such this Honourable Tribunal has no jurisdiction to consider this appeal which may kingly be dismissed."
16. It appears from the impugned judgment of the Service Tribunal that this objection was not noticed, and this is a first plea that was raised by the learned Advocate General in support of the appeal among other several submissions advanced by him.
17. Mr. M. Aslam Chishti learned counsel for the respondent on the other hand, submits that respondent having been appointed by the Provincial Government of Baluchistan is an employee of the Province, and not the Federation, and, therefore, the Baluchistan Service Tribunal was competent to entertain, deal with and decide the appeal.
18. After having heard the learned counsel we feel that from the Memorandum dated 4th March 1982 and the letter dated 6th June 1982 reproduced above, the respondent may well be an employee of the Federation, and if this position is correct, then the question is whether Baluchistan Service Tribunal was competent to entertain and decide the appeal of the respondent. We, however, do not feel it appropriate to decide this question, which is essentially a jurisdictional question of the Service Tribunal which had passed the impugned judgment, and, moreover the decision on this question is likely to affect a large number of employees working in the Organisation. We, therefore, deem it fit and proper to remand the case to the Service Tribunal to decide the jurisdictional question raised by the learned Advocate-General and all other submissions that may be made on behalf of the parties. On this view of the ease this appeal is allowed, with the result that the impugned judgment of the Service Tribunal is set aside, and the case is remanded to the Service Tribunal for fresh decision in the light of the observations made above.
19. The parties are left to bear their own costs.