' SALEEM AKHTAR, J.--- This judgment will dispose of both these appeals as common questions of fact and law are involved and leave was granted under Article 212 (3) of the Constitution in view of the conflicting decisions of the Federal Service Tribunal and the Punjab Service Tribunal on the question of jurisdiction over these and similar employees.
2. The appellants in both these appeals started their career as employees of the Punjab Family Planning Board. On 30-12-1976 the Government of Pakistan by an office memorandum decided to federalise the Population Planning Prorgramme in Pakistan under the direct administration of the Federal Government and governmentalised the services of population planning personnel.
Consequently, the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (XIV of 1981) was promulgated on 11-5-1981 by the Govermpent of Pakistan.
In accordance with the provisions of section 3 of Ordinance XIV of 1981 the appellants in both the appeals after obtaining clearance from the Federal Public Service Commission, obtained the status of a civil servant. The appellants in both the appeals were appointed to Grade 17 post under the Population Division w.e.f, 10-11-1981 by notification dated 3-6-1982 issued by the Population Division, Government of Pakistan. On 2-8-1983 Transfer of Population Welfare Programme (Field Activities)
Ordinance XIX of 1983, was promulgated by the Government of Pakistan to provide statutory cover for the transfer of field activities of the population welfare programme under the Population Welfare Department to the Provincial Governments for their speedy implementation and exercising effective supervision and control on matters connected therewith or ancillary thereto. The services of both the appellants were transferred to the Province of Punjab and they stood transferred to field activities of the Population Welfare Programme. By letter dated 26-5-1986 the Population Welfare Programme of the Government of Punjab circulated a provincial seniority list of officers of Population Welfare Programme in Grades B-16 and B-17 and invited objections, if any, to this seniority list, which were to be submitted. Within a fortnight. Both the appellants submitted their representations against the provincial seniority list but the same were rejected on 3-11-1987 as time-arred. They submitted their petitions to the Secretary, Population Welfare Programme, Government of Punjab, requesting that no promotions be made until the issue relating to their seniority was finally decided. As no reply was received both the appellants filed appeals before the Federal Service Tribunal praying that the impugned seniority list issued by the Government of Punjab be declared to be invalid and unlawful as the Government of Punjab did not have the power to determine the inter se seniority of Federal Government servants serving under the Government of Punjab. The Tribunal dismissed both the appeals holding that the appellants were employees of the Provincial Government and should approach the Punjab Service Tribunal. While coming to this conclusion the Tribunal relied upon a judgment of its Full Bench, which was quoted in extenso in the impugned judgment: While granting leave it was noted that there was conflict of decision on the same point between the Federal Service Tribunal on the one hand and the Punjab Service Tribunal and the Balochistan Service Tribunal on the other and the latter have held that such employees are employees of the Federal Government and they have no jurisdiction in the matter.
3. The main contention of the learned counsel for the appellants is that in view of the provisions of Ordinance XIV of 1981 and the Ordinance XIX of 1983 both the appellants are civil servants of the Federal Government and their services have been transferred to the Provincial Government, but they continue to enjoy the status of being the civil servants of the Federal Government. The history of the Population Welfare Planning Programme has been thoroughly discussed in the Federal Government of Pakistan v. Riaz Ahmad Baig (1984 SCM R 759) and it is not necessary to dilate upon this aspect of the case. There can be no dispute that both the appellants are civil servants and by mere transfer to the Punjab Government they could not cease to enjoy the status of civil servants of the Federal Government. The Population Welfare Programme (Field Actitivities) was transferred by Ordinance XIX of 1983 relevant provisions of which are reproduced as follows:-- "4. Transfer of field activities to the Provincial Governments. ---(1) The field activities of the Population Welfare Programme shall stand transferred to the Provincial Governments.
(2) The Federal Government shall determine as to whether a particular activity is a field activity within the meaning of this Ordinance.
5. Powers. Functions and responsibilites of the Provincial Governments.--
(1) Upon the transfer of field activities of the Population Welfare Programme to the Provincial Govenments, all powers and functions of the Federal Government in respect of field activities shall, subject to the other provisions of this Ordinance, vest in the Provincial Governments.
(2) The Provincial Governments shall supply to the Federal Government such returns, statistics and information as may be required for monitoring, evaluation and research.
(3) The Provincial Governments shall closely collaborate with the Federal Government in respect of the functions of the Federal Goverment referred to in subsection (1) of section 6 and activities which are identified by the Federal Government as Federal functions.
6.Functions of the Federal Government. Etc. ---(1) The Federal Government shall continue to perform all functions pertaining to National Policy, Planning and Coordination, Information, Training, Supplies, Monitoring and Evaluation, Research and Foreign Assistance.
Explanation.---In this subsection, "Information" includes "Education" and "Communication" components of the Population Welfare Programme.
(2) In the performance of their functions relating to field activities, the Provincial Governments shall be guided by such guidelines and instructions on questions of policy as may be laid down and given, from time to time by the Federal Government, which shall be the sole judge as to whether a question is a question of policy.
7.Transfer of other activities to the Pronvinces. ---The working of the field activities of the Population Welfare Programme shall be reviewed by the Federal Government from time to time and the Federal Government may transfer to the Provincial Governments such other activities of the Programme as it may specify to be field activities.
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 services 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.
10. Financing of the Population Welfare Programme.- --(1) The financial liability of the Federal Government in respect of field activities shall be limited to the extent of the approved projects and financial grants shall be provided to the Provincial Governments through the Development Budget of the Population Welfare Division.
(2) The grants provided to the Provincial Governments for specific approved projects shall not be transferred by them to other projects or for any other purpose.
(3) The Provincial Governments shall maintain complete and accurate account and other record in respect of the Population Welfare Programme in such manner and form as may be specified by the Federal Government in consultation with the Auditor-General of Pakistan, provided that separate accounts shall be maintained for the Head Office and for each organization, unit or project.
(4) The accounts shall be audited by the Auditor-General of Pakistan.
12. Power to make rules.---(1) The Federal Government may, by notification in the official Gazette, make rules for the purpose of giving effect to all or any of the provisions of this Ordinance.
(2) The Provincial Governments may, for the purpose of carrying out the field activities of the Population Welfare Programme, make rules with the prior approval of the Federal Government."
It is an admitted position that both the appellants were recruited by the Board and were transferred to the Province of Punjab and they are covered by section 8(1)(b). Before their transfer they had attained the status of a civil servant w.e.f 11-5-1981. Reference can be made to Lutfi Siddiqui v. Secretary, Establishment Division (1991 SCM R 125), Federal Government of Pakistan v. Riaz Ahmad Baig (1984 SCM R 759) and Federation of Pakistan and another v. Ali Asghar Khan (1988 SCM R 1175). Therefore, they being civil servants of the Federal Government were transferred to the Provincial Government but at no stage they were declared by the Ordinance or otherwise to become the employees of the Provincial Government or civil servants of the Provincial Government.
From the aforesaid provisions of the Ordinance it is clear that although the field activities of the Population Welfare Programme were transferred to the respective Provincial Governments, the entire control, finances and framing of rules were under the control of the Federal Government.
Section 3 (c) defines 'field activities' and while enumerating 8 such activities clause (ix) includes in it any other activity of the Population Welfare Programme that the Federal Government may specify. Therefore, even the specification of field activities is within the control and jurisdiction of the Federal Government. As provided by section 5, the powers, functions and responsibilities of the Provincial Governments in respect of field activities of the Population Welfare Programme is subject to provisions of the Ordinance. The Provincial Governments are required to supply the Federal Government returns, statistics and information as may be required for monitoring, evaluation and research. Similarly, the Provincial Governments are required to closly collaborate with the Federal Government in respect of the functions of the Federal Government relating to activities which are identified by the Federal Government as federal functions which have been specified in section 6.
Under this section the Federal Government shall continue to perform all functions relating to national policy, planning and coordination, information, training, supplies, monitoring and evaluation, research and foreign assistance. The guidelines on questions of policy for the performance of the functions by the Provincial Governments are to be issued by the Federal Government. The Federal Government has the power to review from time to time the working of the field activities of the Population Welfare Programme and can transfer to the Provincial Government any field activity specified by it. In order to carry out the functions and activities transferred to the Provincial Government the employees of the Federal Government who were engaged in such departments were also transferred and the procedure for the transfer was provided in section 8.
The financial liability of the Federal Government in respect of field activities was also provided by section 10. The Provincial. Government is required to maintain complete and accurate account and other record in respect of Population Welfare Programme in the manner provided and specified by the Federal Government in consultation with the Auditor-General of Pakistan. The accounts maintained shall be audited by the Auditor-General of Pakistan. The rule-making power in respect of the field activities of the Population Welfare Programme is vested in the Federal Government and the Provincial Governments are authorised to make rules with the prior approval of the Federal Government.
4. From these provisions it is obvious that the Federal Government had transferred field activities of the Population Welfare Programme to be performed by the Provincial Governments. The Provincial Governments are thus required to perform such of the functions and affairs of the Federal Government as were provided for under the Ordinance. The employees of the Federal Government transferred under the Ordinance of 1983 were to serve with the Provincial Government relating to that part of the field activities which were transferred by the Federal Government. In these circumstances, they remained the employees of the Federal Government and did not lose their status of being a civil servant of the Federal Government. By mere transfer under the provisions of the Ordinance of 1983 they could not be treated as employees or the civil servants of the Provincial Government. Article 146 of the Constitution provides that the Federal Government with the consent of the Government of a Province may entrust either conditionally or unconditionally to that Government functions in relation to any matter to which the executive authority of the Federation extends. The Province or officers or authorities who are conferred with powers under the Article shall be paid by the Federation as agreed and in case of disagreement determination is to be made by an arbitrator appointed 'by the Chief Justice of Pakistan. This also demonstrates that the transfer by the Federal Government to the Provincial Government of any activities and its civil servants for performance of such duty with the Province does not lead to the conclusion that the officers discharging their duties in relation to the transferred activities became the civil servants of the Provincial Government. We are, therefore, of the view that both the appellants continue to be the civil servants of the Federal Government and the Federal Service Tribunal has the jurisdiction to entertain and decide their appeals. The appeals are allowed and the case is remanded to the Federal Service Tribunal to decide the same on merits.