' SYED ALLY MADAD SHAH (CHAIRMAN).---The President made following Order No, 18 of 1980, called as the Islamabad Capital Territory (Administration) Order, 1980 (hereinafter referred to as the Order), in respect of exercise of executive authority of the Federation in respect of Islamabad Capital Territory: "THE ISLAMABAD CAPITAL TERRITORY (ADMINISTRATION) ORDER, 1980.
PRESIDENTS ORDER NO. 18 OF 1980 ' In pursuance of the proclamation of the fifth day of July, 1977, read with the Laws (continuance in Force) Order, 1977 (C.M.LA. Order No, 1 of 1977), and in exercise of all powers enabling him in that behalf, the President is pleased to make the following order:--
1. Short title and commencement.---(1) This Order may be called the Islamabad Capital Territory (Administration) Order, 1980.
(2) It shall come into force on the first day of January, 1981.
2. Exercise of executive authority of the Federation. ---The executive authority of the Federation in respect of the Islamabad Capital Territory shall be exercised by the President, either directly or, to such extent as he thinks fit, through an Administrator to be appointed by him.
3. Certain persons to continue to serve in Islamabad Capital Territory---Such persons serving under the Government of the Punjab in, or in connection with the affairs of the Islamabad Capital Territory immediately before the commencement of this Order as may be determined by the Federal Government shall, notwithstanding anything contained in any law or in the terms of their appointment or their conditions of service, continue to serve in, or in connection with the affairs of, the said Territory, until further orders. GENERAL M. ZIA-UL-HAQ President."
' Following proviso was added to Article 2 of the Order under the Islamabad Capital Territory (Administration) (Amendment) Order, 1987: "Provided that the President may, at any time, by order in writing :-
(a) direct that the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to any matter specified in the order shall, subject to such conditions and limitations as may be specified therein, be exercised by such authority established by or under any law as may be so specified; and
(b) transfer the services of any person or class of persons employed in the Islamabad Capital Territory in connection with the matters aforesaid to authority specified in the order under paragraph (a) ".
2. In exercise of the powers conferred under proviso to Article 2 of the Order, the President made following Order dated 1-9-1987, reproduced below:-- "GOVERNMENT OF PAKISTAN MINISTRY OF INTERIOR ' Islamabad, the 1st September, 1987.
' ORDER ' S.R.O. No, 717.---In exercise of the powers conferred by the proviso to Article 2 of the Islamabad Capital Territory (Administration) Order, 1980 (P.O. No, 18 of 1980) the President is pleased to:--
(a) direct that the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to the Departments specified in the table below shall be exercised by the Pakistan Agricultural Research Council: and
(b) transfer the services of all parsons employed in the aforesaid Departments to the Pakistan Agricultural Resarch Council.
TABLE
(i) Agriculture Department.
(ii) Soil Conservation Department.
(iii) Livestock and Dairy Development Department.
(iv) Fisheries Department.
(v) Cooperative Department.
(SD.)
MIRZA KAREEM BAIG DEPUTY SECRETARY."
' The aforesaid order dated 1-9-1987 was rescinded by the Order dated 15-11-1988 which too is reproduced below:-- "Government of Pakistan Ministry of Interior Islamabad, the 15th November, 1988.
' ORDER ' S.R.O.1043(1)/88.---In exercise of the powers conferred by the proviso to Article 2 of the Islamabad Capital Territory (Administration)
Order, 1980 (P.O. No, 18 of 1980), the President is pleased to--
(a) direct that the orders issued under SRO 717(1)/87, dated 1st September, 1987 are hereby rescinded with immediate effect and the executive authority of the Federation in respect of Islamabad Capital Territory in so far as it relates to the Departments specified in the table below shall be exercised by the Administrator, Islamabad Capital Territory; and
(b) transfer the services of all persons employed in the aforesaid Departments to the said Administration.
TABLE
(i) Agriculture Department.
(ii) Soil Conservation Department.
(iii) Livestock and Dairy Development Department.
(iv) Cooperative Department.
(v) Fisheries Department.
(SD.)
FAZAL NAM, DEPUTY SECRETARY."
3. By Memorandum dated 11-7-1988 issued by the Pakistan Agricultural Research Council .
(hereinafter referred to as the PARC), the appellant was appointed as a Soil Conservation Assistant (BPS-17) in the Soil Conservation (ICI') Islamabad Capital Territory. By virtue of the Order dated 15- 11-1988, reproduced above, the appellant stood transferred to serve under the Administrator, Islamabad Capital Territory, under office order dated 30-11-1980. question arose whether the appellant could continue serving in the Soil Conservation Department after transfer of its administrative control to the Administrator, Islamabad Capital Territory. The matter was referred to the Establishment Division. The Establishment Division informed the Interior Division under Office Memorandum dated 3-1-1990 that the appointment of the appellant by the PARC, an autonomous body, against a civil post was not made in accordance with the Rules 6 and 10 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and there was no provision for relaxation of the rules and, therefore, his appointment against a civil post and also his subsequent transfer to Islamabad Capital Territory Administration were irregular and the PARC may be asked to take him back and adjust him in the Council Administration against any BPS-17 post. Accordingly, the appellant was repatriated to the PARC under letter dated 13-1-1990. The PARC did not accept the appellant and they informed the Director (Administration), Islamabad Capital Territory, under letter dated 31-1-1990, that the appellant was appointed as a Soil Conservation Assistant in the Soil Conservation Department by the PARC in exercise of the executive authority delegated to PARC vide SRO No,717(1)1987, dated 1-9-1987 and he stood transferred alongwith the post to the Islamabad Capital Territory. The appellant had made representation dated 16-1-1990 against the order of his repatriation. There was no response to his representation. He preferred Appeal No,85
(R) of 1990 which was dismissed in limine by the Tribunal as it had been filed before the expiry of requisite period of 90 days of making the representation. He then preferred this appeal on 7-5-1990 to seek the following relief: "It is, therefore, respectfully prayed that the appeal may be accepted, the impugned order of repatriation of the appellant may be set aside with all consequential benefits and he may be declared to be employee of the Federal Government under the President's Order."
4. The appellant has assailed the order of his repatriation to the PARC on the grounds that his appointment was made by PARC in exercise of the powers of the executive authority of the Federation delegated there to and by virtue of his transfer to the Islamabad Capital Territory by order of the President It had become a civil servant from the day of his appointment.
5. The respondents have resisted the appeal contending that the appointment of the appellant by the PARC was not in accordance with the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973 and, therefore, he could not be retained in service in the Soil Conservation Department on its transfer to the Islamabad Capital Territory and he had to be repatriated to the PARC for his absorption there.
6. The appeal was argued by Raja Muhammad Asghar Khan, Advocate of the appellant. The respondents were represented by Mr. Muhammad Arshad Khan, Assistant Agricultural Engineer, Soil Conservation Department, ICT and Mr. Ghayyur Abbas, an Assistant of the Establishment Division.
7. The events in the background of the appeal have been stated above. The executive authority of the Federation in respect of Islamabad Capital Territory vested in the President under the Order, as amended. The President in exercise of the powers conferred by the proviso to Article 2 of the Order, directed under order dated 1-9-1987, that the executive authority of the Federation in respect of Islamabad Capital Territory, relating to the Soil Conservation Department and some other Departments, should be exercised by the PARC. It was in exercise of those powers that the PARC made appointment of the appellant against one vacant post of Soil Conservation Assistant (BPS- 17) as per Memo dated 11-7-1988 (Annexure A) which bears out that the appellant's appointment was made on the recommendations of the Departmental Promotion Committee and with prior approval of the competent authority in the council. The order of 1-9-1987 was later rescinded vide order dated 15-11-1988 whereunder it was specifically mentioned that services of all persons employed in the Soil Conservation Department and other departments mentioned therein stood transferred to the Administrator, Islamabad Capital Territory, who was authorised to exercise the executive authority of the Federation in respect of those departments. It follows that the appointment of the appellant was made in the Soil Conservation Department under the executive authority of the Federation exercised by the President through the PARC under the Order (i.e, the Islamabad Capital Territory (Administration) Order 1980). The appointment of the appellant was, therefore, deemed to have been made in accordance with law and his services stood transferred to the Administration of the Islamabad Capital Territory by operation of Presidential Order and he was and is deemed to be a civil servant. The ruling given by the Establishment Division was, therefore, not correct and the impugned order of repatriation of the appellant is set aside. The appellant shall be taken in service in the Soil Conservation Department under the Islamabad Capital Territory Administration, and he shall be entitled to all the back benefits as if he had not been relieved of the job under the impugned order. No order is made for costs.