' SYED ALLY MADAD SHAH (CHAIRMAN).-- Appellant Sardar Ahad Bakhsh Khan Khitran, an officer in B-18 in the Population Planning Welfare Programme, has preferred this appeal for proper placement in the seniority list circulated in the year 1982 and his appointment to grade 18 with all related benefits and perquisites retrospectively.
2. The appellant's case is that he joined as DPCEO (District Publicity-cum- Enquiry Officer) (Senior Class I, now equivalent to B-18), on 1-6-1967 and continues to be in that grade. He was absorbed in the Population Planning Programme in the year 1977. By virtue of Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981, he became fulfledged Federal civil servant. In the integrated seniority list (issued in the year 1982), his name was placed at S.No,
12. He made representation that he may be placed at S.No,8 instead of S.No,
12. He did not receive any orders. On promulgation of Ordinance No, XIX of 1983 called the Transfer of Population Welfare Programme (Filed Activities) Ordinance, 1983, field activities of the Population Planning Programme were transferred to the Provinces and he was allocated to the Province of Punjab to the detriment of his prospects in service and he was actually superseded by his juniors and he was relegated to a lower position resulting in his moral, social and intellectual degradation. He has alleged that such treatment meted out to him is arbitrary, capricious, obdurate and without any lawful authority and devoid of any legitimate basis and also unIslamic and invidiously discriminatory.##TE#
3. The respondents have resisted the appeal. Their case in the written objections is that the Population Planning Programme was administered by the autonomous Family Planning Council at the Centre and the Family Planning Boards in the Provinces until 30-4-1977, when the entire Programme was federalised and it was again partially defederalised under Ordinance No,XIX of 1983 and the services of the appellant were allocated to the Province of Punjab, where he was originally appointed in the organisation and, therefore, he ceased to be Federal civil servant and he could reckon his seniority vis-a-vis other officers allocated to that Province. They have taken legal objections that the appeal is not only time-barred but it is also not maintainable as the appellant was not a civil servant in the Federal Government as to have invoked jurisdiction of this Tribunal, and secondly that the appeal was filed without availing of the remedy of departmental appeal and the appeal is hit by proviso (a) to section 4 (1) of the Service Tribunal Act, 1973.
4. The learned counsel for the appellant urged at the hearing of the appeal that the appellant became civil servant in the Federal Government under the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 and he continued to hold that status even after the promulgation of Ordinance No, XIX of 1983 and, therefore, his name should have been included in the seniority list of the Federal civil servants and his remedy lay with the Federal Service Tribunal for getting his seniority determined. He placed reliance on the decision of this Tribunal in Appeal No, 92 (R)/80, decided on 4-12-1986; a decision of the Balochistan Service Tribunal in Appeal No, 25/81 decided on 27-3-1988; and a Case No, 278/86 of Service Tribunal. The appellant also made submissions himself and contended that the Population Welfare Programme service could not be provincialised by the Central Government in view of Article 240 of the Constitution.
5. The learned counsel for the respondents gave detailed history of the service of the appellant, briefly narrated hereafter. The appellant was appointed as DPCEO (District Publicity-cum-Enquiry Officer) in 1967 by the West Pakistan Population Planning Board. After dissolution of West Pakistan, the appellant was allocated to the Province of Punjab. He was posted as Vice-Commissioner, Social Security Department, Government of Punjab, and later as Director, Multan Development Authority, from 31-12-1975 to 20-8-1980. Thereafter, he became Manager, Cotton Export Corporation of Pakistan from 4-5-1981 to 4-5-1983 under the orders made by the Ministry of Commerce. He became District Population Officer, Islamabad, on deputation for one year, with the concurrence of the Punjab Government from 31-1-1986 to 15-3-1986 vide Notification dated 19-1-1986 issued by the Population Welfare Division. He was reverted to the Punjab Government with effect from 15-3-1987 as per Notification dated 1-3-1987. He also pointed out that a notification was issued on 4-2-1985 to the effect that the appellant was appointed in B-18 under the Population Welfare Programme with effect from 20-8-1981 until further orders, on having been found suitable for the assignment by the Federal Public Service Commission. The learned counsel reiterated the legal grounds that the appeal was time-barred and was also hit by proviso (a) to section 4(1) of the Service Tribunals Act, 1973 as no departmental appeal was filed, and also that the appellant was not a Federal civil servant and also that the appeal was not directed against any order.
6. The issues involved in this appeal need reference to the history of the Population Welfare Programme. The Programme was introduced in the First Five-Year Plan (1960-65) under the Ministry of Health as the controlling authority. Its set up was enlarged in the Second Five-Year Plan and the Family Planning Council was established in the Centre under Resolution dated 30-6-1965; and the Family Planning Boards were constituted in the Provinces. The Governor of West Pakistan constituted the Family Planning Board vide notification dated 17-6-1965. After the dissolution of West Pakistan and reemergence of the Provinces of Punjab, Sindh, N.-W.F.P. And Balochistan in the year 1970, a separate Family Planning Board was established in each of them. By a Cabinet decision at the Inter-Provincial Conference on 30-12-1977, the administrative control of the Family Planning Council and the Family Planning Boards was placed under the Population Planning Division and such Notification was issued on 1-5-1977 and the Population Planning Council and the Provincial Planning Boards were abolished on 30-4-1977, and thus the entire set up was federalised.
To provide for the re-structuring and re-organising of, and appointment of persons in, the Population Programme, and for matters connected therewith or ancillary thereto, the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (Ordinance No, XIV of 1981) (hereinafter referred to as the Ordinance of 1981), was promulgated on 11-5-1981. It was provided thereunder, inter alia other matters, that only those employees of the Council or a Board could be appointed in the Population Programme under the Population Division, who were found fit to hold a post by the Federal Public Service Commission in case of posts in Grade-18 and above, and by the Departmental Selection Committee in any other case. The employees who were found fit under the aforesaid process, were to be appointed to the respective posts under the Population Programme and they were given the status of the civil servants within the meaning of the Civil Servants Act, 1973. Subsequently, another Ordinance called the Transfer of Population Welfare Programme (Field Activities) Ordinance 1983 (Ordinance No, XIX of 1983) (hereinafter mentioned as the Ordinance of 1983) was promulgated on 2-8-1983 as to provide for transfer of field activities of the Population Welfare Programme under the Population Welfare Division to the Provincial Governments for their speedy implementation and exercising effective supervision and control and for all matters connected therewith or ancillary thereto. It was provided under section 4 thereof that the field activities of the Population Welfare Programme shall stand transferred to the Provincial Government. "Field activites" were specified at clause (c) of section 3 of the said Ordinance. It was provided under section 5 of the Ordinance that upon the transfer of field activities of the Population Welfare Programme to the Provincial Governments all powers and functions of the Federal Government in respect of field activities shall, subject to other provisions of the Ordinance, vest in the Provincial Governments. The Federal Government retained with itself all the functions pertaining to national policy, planning and coordination, information, training, supply, statistics, monitoring and evaluation, research and foreign assistance, as laid down under section 6 of the Ordinance. Following provision was made in respect of the employees under section 8 of the said Ordinance, reproduced below:- "(8) Transfer, etc.. Of employees.-(1) Notwithstanding anything contained in any contract or agreement or in the conditions of service, an employee shall be retained in the Population Welfare Division or transferred to the Provinces as follows:-
(a) an employee who was recruited or appointed by the Council shall be retained in, or, as the case may be, stand transferred to, the Population Welfare Division;
(b) an employee who was recruited by the Board shall be retained in, or, as the case may be, stand transferred to the Province in which he was originally recruited;
(c) an employee who was originally recruited by the Board but subsequently appointed by the Council shall be retained in, or as the case may be, stand transferred to the Population Welfare Division;
(d) an employee shall, if he was recruited for the Population Welfare Division be retained in that Division and, if he was recruited against a post in a Province, stand transferred to the Province of his domicile; and
(e) a female employee who is married or a widow may be allowed the option to be transferred to the Province of the husband's or late husband's domicile: ' Provided that the Provincial Government of the Province in which an employee who is to be so transferred to the Population Welfare Division or to another Province is serving immediately before the commencement of this Ordinance may retain the service of such employee for such period as may be agreed upon between the Provincial Government and the Population Welfare Division or, as the case may be, the Government of the other province to which he is to be transferred: ' Provided further, that the services of an employee, who immediately before the commencement of this Ordinance was working in relation to any of the functions of the Federal Government under the Ordinance, shall be retained by the Federal Government in consultation and with the agreement of the Provincial Government concerned.
(2) Every employee referred to in subsection (1) shall be entitled to the same terms and conditions of service with respect to grade, remuneration, leave and pension to which he was entitled immediately before the commencement of this Ordinance.
(3) Unless otherwise directed by the Provincial Government, all authorities and officers and ministerial staff exercising powers and functions immediately before the date of transfer shall, as from that day, continue to exercise their respective powers and functions.
(4) No employee referred to in subsection (1) shall be entitled to any compensation because of his transfer by virtue of, or under, the provisions of this Ordinance.
' All the rights and privileges, assets and liabilities, debts and obligations of the Federal Government relating to field activities of the Population Welfare Programme subsisting immediately before the commencement of the Ordinance were made the rights, privileges, assets and liabilities, debts and obligations of the Provincial Governments within whose territorial jurisdiction they existed as per section 9 of the said Ordinance.
7. The case of the appellant has to be examined under the aforesaid two Ordinances and the history of the service set up in the Population Welfare Programme, outlined above. The appellant has not disclosed the complete history of his service. The history of his service portrayed by the learned counsel for the respondents, briefly reflected in paragraph 5 ante, is not disputed. The appellant was initially appointed as DPCEO (Distt. Publicity-cum-Enquiry Officer) by the West Pakistan Planning Board in 1967. After the dissolution of West Pakistan and re-establishment of the old Province of the Punjab, Sindh, N.-W.F.P. And Balochistan, the appellant was allocated to the Province of Punjab, he was domiciled of. He enjoyed several ex-cadre jobs from December, 1975 till 1985. However, he succeeded in getting his service under the Population Welfare Programme regularised under the Ordinance of 1981 with effect from 20-8-1981 vide Notification dated 4-2-1985.
He thus became civil servant under the Federal Government with retrospective effect from 20-8- 1981. By virtue of the provisions of the said Ordinance of 1983, he stood allocated to the Government of the Punjab. He was taken on deputation as the District Population Officer, Islamabad with the concurrence of the Punjab Government from 31-1-1986 to 15-3-1987. He was reverted to the Government of the Punjab with effect from 15-3-1987 vide notification dated 1-3-1987. He continues serving in the Population Welfare Programme under the Government of the Punjab. The question of his status, whether he is a civil servant under the Federal Government or under the Provincial Government of the Punjab rests on the interpretation of section 8 of the Ordinance of 1983, reproduced above in paragraph 6 ante. His case is governed by clause (b) which provides that an employee of the Population Welfare Programme who was recruited by the Board, shall serve in the Province in which he was originally recruited and since the appellant was recruited from within the limits of the Province of Punjab, his service stands allocated to that Province. It has, however, been contended that mere transfer of the employees of the Population Welfare Programme to the Provincial Governments will not by itself make them employees of the Provincial Government. The relevant provisions of the Ordinance of 1983 in respect of the transfer of the 'field activities' to the Provincial Governments are projected in paragraph 6 ante. Section 5 of the said Ordinance provides that all powers and functions of the Federal Government in respect of field activities, of course subject to certain limitations, provided under the Ordinance, vest in the Provincial Governments and the powers retained by the Federal Government pertain to national policy, planning and Coordination, information, training, supply, statistics, monitoring and evaluation, research or assistance, as provided under section 6. It is provided under section 9 of the 1983 Ordinance that all rights, privileges, assets and liabilities, debts and obligations for the Federal Government relating to field activities of the Population Welfare Programme subsisting immediately before such commencement shall, as from such commencement, be the rights, privileges, assets, liabilities, debts and obligations of the Provincial Government within whose territorial jurisdiction they exist. Reference may also be made to section 10 of the Ordinance providing that the financial liability of the Federal Government in respect of field activities shall be limited to the extent of the approved projects. Thus the transfer of the field activities of the Population Welfare Programme to the Provincial Governments was absolute and the personnel so transferred to the Provincial Governments became the personnel of the respective Provincial Governments. The appellant was, of course, lucky to have enjoyed important ex-cadre jobs as he became Commissioner, Social Security Department, Government of the Punjab, and later as Directors, Multan Development Authority from 31-12-1975 to 20-8-1980. He then became Manager, Cotton Export Corporation of Pakistan from 4-5-1981 and held that assignment till 4-5-1983. His appointment in the Population Welfare Programme was regularised only on 4-2-1985, although with retrospective effect from 20-8-1981. After regularisation of his service in the Population Welfare Programme, he was appointed as District Population Officer, Islamabad on deputation from the Government of Punjab vide notification dated 19-1-1986. He enjoyed such jobs as an employee of the Punjab Government and yet he claims to be the employee of the Federal Government. Of course, nobody should have cavil to his prosperous career but he stands transferred to the Provincial service under the provisions of the 1983 Ordinance, as discussed above.
8. Prayers in the memo of appeal contained in paragraph 14 are as under:-
(a) Petitioner, after hearing, be ordered to be restored to his proper place, i,e, "No, 8" in the Seniority List.
(b) Petitioner be appointed to "Grade 19" with retrospective effect and accorded all related benefits and perquisites.
(c) Further, different or additional relief be granted that the Honourable Tribunal may deem to be just and equitable.
(d) Costs including full attorney's fees be awarded.
The prayer at clause (a) relates to appellant's placement in the seniority list issued by the Federal Government in the year 1982. It was the time when the appellant was serving in an ex-cadre post as the Manager, Cotton Export Corporation of Pakistan and had not got his service regularised in the Population Welfare Programme under the provisions of 1981 Ordinance. He seems to have remained contended in that job and remained unmindful of his interest in the parent department.
He did not challenge the seniority list at the relevant time. However, by fiction of law, he became civil servant in the Federal Government by virtue of notification dated 4-2-1985 to the effect that his service was regularised under the 1981 Ordinance with efect from 20-8-1981 and he could maintain his appeal against the seniority list, if having merit otherwise, by virtue of definition of the term 'civil servant' contained in clause (a) to section 2 of the Service Tribunals Act, 1973, being a person who is or has been a civil servant within the meaning of the Civil Servants Act, 1973 (LXXI of 1973); but facing the situation of time limit, the learned counsel for the appellant made statement that this prayer was dropped. As regards the prayer at clause (b), the appellant claims appointment to "Grade-19" with retrospective effect and with all related benefits and perquisites. He has not indicated when he became due for promotion/appointment to Grade-19. He ceased to be civil servant of the Federal Government on the promulgation of the 1983 Ordinance, as aforesaid, and he severed all his connections with the Federal Government and he could lodge his claim if any, with the Provincial Government of the Punjab. The reliefs at clauses (c) and (d) of the prayer clause are consequential or incidental to the reliefs claimed at clauses (a) and (b), which he cannot get for the reasons recorded above.
9. The question of limitation raised by the respondents does not subsist in view of the statement by the learned counsel for the appellant at the Bar that the prayer against the seniority list issued in the year 1982 is dropped and so is the position of the objection to the maintainability of the appeal on the ground that no departmental appeal etc. Was filed.
10. For the reasons recorded above, the appeal has no merit and is dismissed. No order is made for costs.