JUSTICE (RTD.) MUNAWAR AU KHAN (CHAIRMAN).- In this appeal, Mr. Hadi Bux has called in question the order of the Speaker, Provincial Assembly, dated 12th August, 1991 whereby his services, as Additional Secretary, were terminated with immediate effect. The appellant's case as described in his memo of the appeal is that following the promotion of Agha Rafique as Secretary, Provincial Assembly, the post of Additional Secretary fell vacant. In pursuance of the powers conferred by rule 8 of the Sindh Assembly (Recruitment) Rules 1974, (hereinafter referred as the Assembly Rules), the Speaker constituted a Special Committee for Selection of suitable person to fill the above vacant post. The appellant who was amongst the candidates for the said post was, on his selection by the said committee, appointed as Additional Secretary w.e.f. 19th December 1989 vide the Provincial Assembly's notification No. PAS/PF-32/89 dated 24th February 1990. On successful completion of his probationary period, the appellant was confirmed in the post, vide the Assembly's another notification dated 13th June, 1990.
2. Although he performed his duties deligently to the entire satisfaction of his superiors, yet his relations with the then Secretary of the Provincial Assembly remained strained for two reasons.
Firstly the Secretary's own man who was also candidate for the post of Additional Secretary was not selected and secondly in the wake of the Secretary's illness some row developed between the two, as the Secretary was reluctant to part with his charge in the appellant's favour. Accordingly before his departure for London on 15-8-1991 for. his treatment, the Secretary dropped a hint to his close quarters that he had succeeded in getting the appellant ousted from service. On hearing such disturbing news, the appellant rushed to High Court and filed writ petition, No. D-969 of 1991.
After the comments were called for by the High Court on his petition, on 22-8-1991, the Advocate General, Sindh placed before the High Court the Provincial Assembly's notification dated 12-8-1991 whereby the services of the appellant had been terminated. Thereupon the petition was withdrawn which was dismissed as such. The appellant then filed departmental appeal to the Governor/Speaker, Provincial Assembly/Chief Minister and after waiting for 90 days' period for decision thereon, he filed the present appeal before this Tribunal on 24-12-1991.
3. We heard Mr. Manzoor Ali Khan representing the appellant at great length and Mr. Habib Rasheed submitted his arguments on behalf of the official respondents. With the assistance of the said learned counsel we also carefully went through the relevant documents.
4. In course of the arguments, the burning issue that emerged between the parties was with regard to jurisdiction of this Tribunal. The respondents' case was that the Service Tribunal had no jurisdiction for two-fold reasons; one, the appellant was not a civil servant and therefore service law and rules, applicable to civil servants did not govern his case; and two, the appellant had been employee of the Provincial Assembly Secretariat which enjoyed independent status under the Constitution, having its own rules as distinguished '"rom the service rules applicable to civil servants. On the other hand, the appellant's learned counsel controverting the above views, attempted to show that the appellant was a civil servant as defined in the Sindh Service Tribunals Act 1973 (herein-after referred as the Tribunals Act). In support of his stand, he liberally quoted from the constitution, besides relying upon certain budget documents and pay bills of the officers of the Assembly Secretariat.
5. In order to assess the efficacy of the learned counsel's respective arguments, we may first of all refer to Section 4 of the Tribunals Act, which deals with the jurisdiction of the Service Tribunal. It would appear from above section that this Tribunal can exercise its jurisdiction on satisfaction of two conditions; namely, first that the aggrieved party is a civil servant and second, that the said party has grievance against the original or appellate departmental order in respect of his terms and conditions of service. As defined in Section 2 of the Tribunals Act, Civil servant means "a person who is or has been a member of the civil service of the province or holds or has held a civil post in connection with the affairs of the province " Relying on this definition, the appellant's learned counsel vehemently argued that while working as Additional Secretary of the Provincial Assembly, the appellant was not only a member of civil service of the province but was also holding a civil post in connection with the affairs of the province. In support of his arguments he referred to Art. 260 of the constitution which inter alia defines "service of Pakistan" to mean "any service, post or office in connection with the affairs of the Federation or of a province, and includes an All Pakistan service, service in the Armed Forces and any other service declared to be service of Pakistan by or under Act of Parliament or of a Provincial Assembly "
No doubt the expression "service of Pakistan" covers a vider field including the service in Armed Forces. Even if the appellant's service which was obviously the service of Provincial Assembly was held to be covered by the expression "service of Pakistan", that reason by itself would not entitle him to be declared as civil servant. In view of the definition of "Service of Pakistan" though every civil servant can be said to be in service of Pakistan yet it is not vice versa. It is a settled law that Autonomous Bodies established by or under the Provincial or Federal Law are said to be working in connection with affairs of a Province, or as the case may be, the Federation. Although the said Bodies are not excluded from the definition of "Service of Pakistan", yet their employees, as has been repeatedly held by superior courts, are not civil servants. Therefore they do not bring their service grievances to the Service Tribunal but agitate the same at other legal forums, competent for their redressal. Therefore we see no relevance of the argument based on the expression "Service of Pakistan" in the appellant's case. The appellant's learned counsel was however of the view that the relevance of the above expression had to be judged in the light of Art. 240(b) of the Constitution. In order to appreciate the learned counsel's view point the said Art. is reproduced as under: "240. subject to the Coastitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined- (a)
(b) in the case of the services of a province, by or under Act of the Provincial Assembly".
It is true that the Sindh Civil Servants Act 1973 (wherein after referred as the said Act) which regulates the terms and conditions of service of civil servants was passed by the Provincial Assembly of Sindh in accordance with the aforesaid Art. But its application was restricted to only civil servants, not to all persons covered by the expression "Service of Pakistan". It was therefore not necessary that the said Act would be applicable to all those who fall within the meaning of "Service of Pakistan". Like employees of Autonomous Bodies, the appellant who wa* the employee of the Provincial Assembly even if held to fall within th^ definition of "Service of Pakistan" yet, as pointed out above, he would not be declared as civil servant on that basis.
At this stage it may be pertinent to refer to Section 3 of the said Act. It reads asunder:- "The terms and conditions of service of a civil servant shall be as provided in this act and the rules".
It is abundantly clear from the above section that whenever reference was made.to terms and conditions of service of any civil servant, it. would relate back to the terms and conditions of his service as has been spelt out in the said Act and the rules. The word "rules" used in Section 3 hereinabove means )*ules framed under the said Act, vide clause (h) of Section 2 (1) of the said Act. In other words the terms and conditions of service provided in any other Act or rules can not be regarded as terms and conditions of service of a civil servant.
6. We way now proceed to* ascertain the status of the Provincial Assembly and its Secretariat. The appellant's learned counsel made frantic efforts to prove from certain documents which he produced before us and which are now part of the case: file, that there was no such thing as Assembly Secretariat with independent status but like other Government Departments, the so called Assembly Secretariat was also a Department described as Assembly Department We have glanced through the said documents relied upon by the learned counsel The documents which related to budget allocations for the Provincial Assembly no doubt carried the words: "Head of Department: Secretary Provindal Assembly Department". In our opinion these words alone can not be taken as basis for determining the status of the Provincial Assembly and its Secretariat.
Moreover the position reflected in the aforesaid documents stands nullified by the Rules of Business and the Constitutional provisions, dause (3) of Art. 139 of the constitution reads as under: "(3) The Governor shall also make rules for the allocation and transaction of the business of the Provincial Government".
We have gone through the Rules of Business made in pursuance of the above provision of the constitution. Sub-rule (1) of rule 3 of these rules states: "there shall be secretariat comprising the Departments specified in column 2 of schedule-I". The perusal of the schedule-! would show that "Assembly Department" is conspicuous by its non-mention in the schedule. Had the Assembly Secretariat been Department like other Departments of the Government: it would have not only been mentioned at the appropriate place in the schedule, but also assigned the necessary subjects like other Departments. Thus under the Rules of Business, Assembly Secretariat is not shown as Department. On the contrary where ever its reference is made in the said rules, it is referred as Assembly Secretariat.
Apart from above, reference may also be made to Articles 87 & 88 of the Constitution, which are reproduced as under: "87. (1) Each House shall have a separate Secretariat: provided that nothing in this clause shall be construed as preventing the creation of posts common to both Houses.
(2) Majlis-e-Shoora (Parliament) may by law regulate the recruitment and the conditions of service of persons appointed to the Secretarial staff of either House.
(3) Until provision is made by (Majlis-e-Shoora (Parliament) under clause (2), the Speaker or, as the case may be, the Chairman may, with the approval of the President, make rules regulating the recruitment and the conditions of service, of persons appointed to the secretarial staff of the National Assembly or the Senate."
88. (1) The expenditure of the National Assembly and the Senate within authorised appropriations shall be controlled by the National Assembly or, as the case may be, the Senate acting on the advice of its Finance Committee.
(2) The Finance Committee shall consist of the Speaker or, as the case may be, the Chairman, the Minister of Finance and such other members as may be elected thereto by the National Assembly or. as the case may be, the Senate.
(3) The Finance Committee may make'rules for regulating its procedure."
By virtue of Art. 127 of the constitution, the provisions contained in uv above two Articles are also applicable to Provincial Assembly Alter y.iioy through these Articles, no doubt is left in our mind that the Provincial Assembly enjoys independent status, having its own separate secretariat. Further that the recruitment and conditions of service of the staff working in the. Assembly Secretariat are to be regulated by a law of the Provincial Assembly and [.'ending make rules for the said purpose.
The independence of the Provincial Assembly has been further guaranteed by the provision that unlike other Govt. Departments, the expenditure incurred on the Assembly and its Secretariat is controlled by the said Assembly itself, though it is required to act in this behalf on the advice of its Finance Committee consisting of the Speaker, Finance Minister and such other members elected by the said Assembly. With such built-in constitutional framework provided for the Provincial Assembly, it could not be argued that the said Assembly or its secretariat would still be subject to any law or rides applicable to other Government Departments or the employees working in those departments.
7. From the above discussion we are convinced that the employees of the Provindal Assembly are not dvil servants as they are neither members of the dvil service of the province nor are they holding .any dvil post in connection with affairs of the province. They are rather members of Assembly service which is obviously distinct from the civil service of the province and are holding posts in cqpnection with affairs of the Provindal Assembly and not in connection with the affairs of the province. As stated above they are governed by their own law and rides. In absence of the Act regulating the recruitment and conditions of service of the Provindal Assembly's employees, the Speaker in exercise of the powers vested in him has framed the Rules known as Sindh Provindal Assembly Secretariat (Recruitment) Rules, 1974 for the said purpose. Accordingly the employees of the Assembly are governed by the said rules rather than by Sindh Civil Servants Act and the rules framed under the said Act.
Having arrived at the above condusions, wfe hold that this Tribunal has no jurisdiction to entertain and decide this appeal which is therefore dismissed with no orders as to costs.
Given under our hand and the seal of this Tribunal this 6th day of October, 1992 at Karachi