SHAFIUR RAHMAN, J.---Leave to appeal was granted under.
Article 212(3) of the Constitution "to examine the question of law of public importance in view of following decisions of this Court:-- "(i) Civil Appeals Nos.106 of 1984 and 775 of 1984 Nasir Ahmed v. The Secretary, Ministry of Information, Government of Pakistan and others, dated 24-10-1988.
' Fayyaz Ali Khan v. Government of West Pakistan through the Secretary of Transport Development and others 1971 SCM R 454."
2. The factual background of the case in which the question of law has come up for examination has been taken note of by the Service Tribunal in the following words:- "The case of the appellant is that he was recruited as a Lower Division Clerk in Radio Pakistan in 1966. On the establishment of Pakistan Broadcasting Corporation under the Pakistan Broadcasting Corporation Act, 1973, his services were transferred to the Corporation on the terms and conditions to which he was entitled before transfer, as laid down under section 12 of the Act, with effect from 20-12-1972 as per Gazette Notification No,SRO.414(1)/74, dated 27-3-1974. He was appointed as an Assistant on regular basis on 19-7-1973. The respondents 5 to 11 were holding the post of Assistant on purely ad hoc basis at the time of establishment of the Corporation. However, they were shown above the appellant in the provisional seniority list circulated in the year 1975. The appellant's name was mentioned at Sr. No,
37. He made representation dated 7-2-1975 for placing his name in the Seniority list at S.N.6. During the pendency of his representation, the respondents 5 to 11 were promoted as Superintendents/Assistant Administrative Officers during the period from 1979 to 1981.
The appellant made representation for rectification of his seniority position with consequential benefits. He was promoted as Admn. Officer on merit in 1981. In pursuance of his representation dated 7-2-1975, his seniority as Assistant was revised and his name was placed in between the names of Muhammad Amin and Ghulam Muhammad on the basis of his regular appointment as Assistant with effect from 19-7-1973 and the decision was communicated to him under Memo.
Dated 25-5-1986. In the meanwhile, the respondents 5 to 9 had a joint representation for regularisation of their ad hoc appointments with effect from 20-12-1972, but their representation was turned down as per Memo. Dated 26/28-5-1986. On 22-5-1986, respondents 5 to 8 were promoted as Administration Officers and one post was left vacant until the representation of the appellant for redetermination of his seniority was decided. On the rejection of the representations of the respondents 5 to 9 for regularization of their ad hoc appointments and acceptance of the representation of the appellant in respect of his seniority, as aforesaid, the respondents 5 to 9 filed a civil suit in the Court of Civil Judge, Islamabad to challenge the order dated 26-5-1986 whereby their representations for regularisation of their ad hoc appointments were rejected. The appellant made representation for giving him consequential benefits by virtue of the revision of his seniority, but to no avail. The respondents 5 to 9 made a joint representation to the Secretary, Information and. Broadcasting, and the Secretary, Establishment Division, with the result that the order dated 25-5-1986 whereunder the appellant's representation for seniority was accepted, was set aside as per Memo. Dated 22-3-1987. The appellant made several representations against the decision and the matter was reported even to the concerned Minister, but without fruitful result. Promotion cases of the appellant and the respondents 9 and 11 were placed before the Selection Board in 1987. The appellant and the respondents. 10 to 11 were approved for promotion as Admn. Officer and such order was issued on 16-4-1984. The promotion of respondent No,9 was deferred. The respondent No,10 .Was declared unfit and he was superseded. Nevertheless, the respondent No,10 was promoted subsequently and also was given seniority over the appellant. The appellant therefore, filed writ petition before the Lahore High Court, Rawalpindi Bench against the order dated 22-3- 1987. He withdrew the writ petition on 11-1-1989. He presented, in this Tribunal on 23-1-1989 the same memo. Of writ petition by making necessary corrections as to make it as an appeal under section 4 of the Service Tribunals Act, 1973."
3. The Pakistan Broadcasting Corporation (hereinafter referred to as the Corporation) as well as the respondents resisting the appeal before the Service Tribunal objected to its competence and maintainability on the ground that section 12 of the Corporation Act, 1973 had the effect of transferring en bloc employees of the Federal Government serving in connection with the affairs of the Department of the Government of Pakistan headed by the Director-General Radio Pakistan to the Corporation and after such transfer without the option of such employees they ceased to be civil servants, and became the employees of the Corporation. This preliminary objection was attended to by the Tribunal first. It came to the conclusion that only Information Service employees engaged in Broadcasting were given an option to become employees of the Corporation or not. All others were transferred en bloc.And after such transfer they became employees of the Corporation, a distinct entity and lost their character and status as civil servants. This conclusion drawn by the Tribunal was reinforced by its own interpretation of the judgment given by this Court in the case of Nasir Ahmed (Civil Appeal No,106/1984).
' Finding that the appellant was not a civil servant, the merits of his claim were not gone into and his appeal was rejected observing that it was not competent.
4. The appellant appeared in person to argue his appeal and relied on the decision of this Court in the case of Nasir Ahmed (Civil Appeal No,106/84, decided on 24-10-1988) and in the case of Fayyaz All Khan (1971 SCM R 454). He also referred to the provisions of various other Corporation Laws in order to show that where it was intended to change the status of a civil servant an express provision as was made in respect of the Information Service Officers had to be made.
5. The learned Deputy Attorney-General (Ch.Ijaz Ahmed) on the other hand maintained that such a statutory transfer en bloc of all employees engaged in broadcasting to Radio Pakistan had the effect of terminating their status as a civil servant and making them employees of the Corporation.
Hence, according to him, they could not approach the Tribunal for relief of the sort sought by the appellant.
6. We have examined the legal effect of our decision in the case of Nasir Ahmed (Civil Appeal No,106/1984) first. It had to be noted while interpreting that decision that it dealt with an Information Service Officer who had been given statutory option to go over to the Corporation and in that case he lost the character as an Information Service Officer of the Federal Government. The option in that case had been exercised. The status had been altered. However, in respect of others, the following observations were made and are extremely relevant:-- "The word 'transfer' in subsection (1) of section 12 does not have the consequence of rendering a civil servant an employee of the Corporation unless the provisions of subsections (2) and (3) of section 12 of the Act are complied with namely the civil servant opts for service in the Corporation in which case he ceases to be member of the Information Service of Pakistan. It is only in this case that there is a reverence of the service as a civil servant and in no other case."
7. Section 12 of the Corporation Act provides as hereunder:-- "12. Transfer of Radio Pakistan Servants to the Corporation.--(1) Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service the Federal Government, may, subject to the provisions of subsection (2) and (3) transfer persons in the service of Pakistan and serving in connection with the affairs of the department of the Government of Pakistan headed by the Director-General, Radio Pakistan, hereinafter referred to as Radio Pakistan, immediately before the commencement of this Act, including persons on deputation to other organisations in Pakistan or abroad to the Corporation on the same terms and conditions to which they were entitled immediately before such commencement.
(2) Notwithstanding anything in subsection (1) only such members of the Information Service of Pakistan serving Radio Pakistan immediately before the commencement of this Act shall be transferred to the Corporation as opted for service in the Corporation.
(3) The persons transferred to the Corporation under sub-section (2) shall, on such transfer, cease to be members of the Information Service of Pakistan.
(4) The terms and conditions of service of the members of the Information Service of Pakistan transferred to the Corporation under subsection (2) shall not be altered by the Corporation to their disadvantage.
(5) No person in the service of Pakistan who is transferred to the Corporation under subsection (1) shall, notwithstanding anything contained in any law for the time being in force, be entitled to any compensation because of such transfer."
8. Two features of this section had to be noted. The first is that the word used for such employees as belonged to the category of the appellant is "transfer" alone, and the second is that such transfer is "on the same terms and conditions to which they were entitled immediately before such commencement". In Civil Servants Act, 1973, which soon followed a similar statutory provision was made by section 10, which reads as hereunder: "10. Posting and transfer.--Every civil servant shall be liable to serve anywhere within or outside Pakistan, in any post under the Federal Government, or any Provincial Government or local authority, or a corporation or body set up or established by any such Government: ' Provided that nothing contained in this section shall apply to a civil servant recruited specifically to serve in a particular area or region: ' Provided further that, where a civil servant is required to serve in a post outside his service or cadre, his terms and conditions of service, as to his pay shall not be less favourable than those to which he would have been entitled if he had not been so required to serve."
' Here, as an incidence of posting and transfer every civil servant has been made liable to serve amongst others the "Corporation or a body set up or established by any such Government". This does not imply that such transfer amounts to change of status of the civil servant. He remains a civil servant nevertheless.
9. The protection of the terms and conditions is actually substantial reproduction of second proviso enacted in section 10 of the Civil Servants Act.
10. In the case of Fayyaz .Ali Khan (1971 SCM R 454) exactly the same question had come up before this Court for consideration and the following decision was made:-- "There have been several organizational changes brought about by various legislations but none of them has provided that a person who was employed by the Government in the Provincial Transport Service was to be considered as an employee of Road Transport Board or Road Transport Corporation. In these circumstances, it is quite clear that the status of the appellant continued to be as that of an employee of a Government service and he is entitled to the constitutional. Protection guaranteed in the Constitution of 1962."
11. Subsection (5) of section 12 quoted above which has been taken note of in Abdul Hameed Azmi etc. v. Pakistan Broadcasting Corporation etc. 1980 PLC (C.S.) 674 relates to the admissibility of deputation alllowance etc. Which would have been admissible to employees sent for working on a post not in the service cadre or group for which they were employeed as civil servants. Similarly, the statutory provision of accepting pension and gratuity liability up to 19-12-1972 is not determinative of their status because, after they had gone on statutory deputation without deputation allowance, the borrowing department was to contribute to both these funds.
12. We are, therefore, clear that neither on the basis of the two decisions referred to in para. 1 of the judgment nor on the grounds taken note of in the case of Abdul Hameed Azmi (1980 PLC (C.S.) 674, the status of the appellant can be taken to have altered on such statutory transfer unless something more express was said in the Act itself. In the circumstances, we accept the appeal, set aside the judgment of the Service Tribunal and remand the case to the Tribunal for decision on merits. In doing so, the Tribunal will keep the fact in view that this case is pending since long and requires urgent disposal.