Gul Munawar Khan joined service as Checker of the Lahore Omni Bus Service under the defunct West Pakistan Road Transport Corporation, Lahore, on 10th of June 1958. Sometime after, the post was re-designated as Traffic Assistant. He continued to serve at Lahore till 1968 when he was transferred to Peshawar as Checking Sub-Inspector, under the same Cor--poration. After the disintegration of the Province of West Pakistan in 1970, the North West Frontier Province Road Transport Board (hereinafter referred to as the Board) was formed at Peshawar replacing the West Pakistan Road Transport Corporation in relation to the employees serving in the North-West Frontier Province.
2. On the 10th of March 672 when Gul Munawar Khan was still serving as a Checking Sub-Inspector under the Board at Peshawar, Martial Law Regulation 114 (hereinafter to be called the Regulation) was promulgated during the Martial Law Regime which remained operative during the period from 20th December 1971 to 20th of April 1972. The Regulation purported to authorise the competent authority therein mentioned, which meant the President, but when the President so authorised, the Governor of a Province or any other officer or authority not being inferior in rank to the person against whom the action was proposed to be taken in relation to any person, or class of persons, to dismiss or remove from service or prematurely retire a person in the Civil Service of Pakistan or a Province of Pakistan or a person serving in a Corporation on the grounds set out in the Regulation which need not be reproduced here. Under the provisions of the Regulation, a notification was issued on 13th of March 1972 prematurely retiring a large number of officials under the order of the President.
3. On the 15th of March 1972, Martial Law Regulation 116 was promulgated which gave the right to person dismissed or removed from service or reduced in rank or ordered to be prematurely retired from service under the Regulation, to submit a review petition to the Chief Martial Law Administrator against such order. On 18th of March 1972, the then Governor and Martial Law Administrator of the North-West Frontier Province prematurely retired a large number of officials including Gul Munawar Khan whose name appears at Serial No. 84 of tine List. The order so retiring the officials was published in the Government Gazette, North West Frontier Province, dated 25th March 1972.
4. Feeling aggrieved by the order of his premature retirement under the Regulation, Gul Munawar Khan, like many others, filed a review petition which seems to have been eventually rejected.
Thereupon, he filed a writ petition in the Peshawar High Court, calling in question the legality of the order of his premature retirement. During the pendency of the Writ Petition in the Peshawar High Court, the Governor of the North--west Frontier Province was pleased to make and promulgate the North-West Frontier Province Service Tribunals Ordinance, 1973 (hereinafter to be called the Ordinance). The Ordinance was intended to provide for the establish--ment of Administrative Tribunals to be called the Service Tribunals to exercise exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants and for matters connected therewith or ancillary thereto including some of the disciplinary mutters. It was published in the Government Gazette (Extraordinary), North-West Frontier Province on the 8th January 1974. The Ordinance later on became an Act of the Province N.W. F. P. Act I of 1974 and is called the North-- west Frontier Province Service Tribunals Act, 1974 (hereinafter referred to as the Act) which was published in the Government Gazette (Extra--ordinary) of 28th March 1974. In section 2 (a) of the Act, the expression "civil servant" was defined to mean a person who is a member of a civil service of the Province, or who holds a civil post in connection with the affairs of the Province whereas the term 'Province' was defined to mean the North-West Frontier Province. On the 18th of May 1974, an Ordinance called the North-West Frontier Province Service Tribunals (Amendment) Ordinance, 1974 was published in the Government Gazette (Extraordinary) by which certain amendments including the one relating to the definition of the expression "civil servant" were introduced. By this Ordinance, in section 2 of the Act, for clause (a), the following clause was substituted : "(a) 'civil servant' means a person who is, or has been, a civil servant within the meaning of the North-West Frontier Province Civil Servants Act, 1973 (N.-W. F. P. Act No. XVIII of 1973)." This Ordinance later on became an Act of the Provincial Assembly of the North-West Frontier Province (N.-W. F. P.) Act No. IX of 1974) which was published in the Government Gazette (Extraordinary) of North-West Frontier Province, dated the 6th July, 1974. The expression "civil servant" finds the same defi--nition in the said Act as was given to it in the North-West Frontier Province Service Tribunals (Amendment) Ordinance, 1974.
It may be pointed out here that in the North-West Frontier Province Civil Servants Act, 1974, which was intended to provide for regulating the appointment of persons to, and the terms and conditions of persons in the service of North-West Frontier Province and matters connected there-- with or ancillary thereto, the expression "civil servant" has been defined to mean a person who is a member of a civil service of the Province or who holds a civil post in connection with the affairs of the Province. On 24th of October 1974, the Peshawar High Court passed an order of abatement in respect of the writ petitions filed by the officials of the North-West Frontier Province including Gul Munawar Khan on the ground that in view of the provisions contained in the Act, the only forum available to the officials retired under the Regulation, was the Service Tribunal concerned which, according to the High Court, had exclusive jurisdiction in respect of the matters relating to the terms and conditions of service of civil servants including their removal, and premature retirement, from service. In pur--suance of the order so passed by the High Court, Gul Munawar Khan has come to this Tribunal calling in question the order of this premature retirement under the Regulation. By this order, I propose to dispose of the appeal so filed by him.
5. The question that arises for determination in this appeal is as to whether the appellant who was an employee of the Board at the time of his premature retirement under the Regulation, could be deemed to be a civil servant within the meaning of section 2(a) of the Act as defined in section 2(a) of the North-West Frontier Province Civil Servants Act, 1973.
6. As indicated earlier the expression "civil servant" has been defined to mean a person who is a member of a civil service of the Province, or who holds a civil post in connection with the affairs of the Province. While conceding that the appellant was not member of a civil service of the Province, his learned counsel maintained that the appellant was holding a civil post in connection with the affairs of the Province with the result that this Tribunal had exclusive jurisdiction with regard to the matters relating to the terms and conditions of his service including his premature retirement from service. In asserting that the appellant was holding a civil post in connection with the affairs of the Province, within the meaning of section 2(a) of the Act, his learned counsel has argued that the term "civil post" as used in the Act, was merely to distinguish it from the post connected with the Defence with the result that the post held by an employee of the Board could only be deemed to be a civil post, and cited before me a case of Mr. Muhammad Ahsan Khan v. Government of West Pakistan and others (PLD 1965 Pesh. 224). The facts of this case were that Mr. Muhammad Ahsan Khan appellant of the case, at the relevant time, was employed as a Traffic Manager under the West Pakistan Road Transport Board constituted under sec--tion 43(a) of the Motor Vehicle Act (IV of 1939), and the West Pakistan Road Transport Board Rules, 1958. These Rules empowered the said Board to app--oint officers and servants and prescribe their terms and conditions of appoint-- ment to service including their pay scales. In the case of officers appointed to posts carrying the initial pay of Rs. 250 per mensem and above, the appoint--ments were subject to the prior approval of the West Pakistan Government. As the pay of Mr. Muhammad Ahsan Khan was more than Rs. 250 per mensem, his appointment was subject to the approval of the West Pakistan Government. While deciding this case, it was observed by a Division Bench of the West Pakistan High Court that "in view of the facts that both his appointment and his conditions of service required the prior approval of the Government, he appears to us to be clearly entitled to the same protection as was available by Articles 181-182 of the 1956 Constitution to all persons holding civil posts in connection with the affairs of the Province. This authority, in my view, cannot hold good in so far as the case now before me is concerned, for two reasons. Firstly this authority came up for consi--deration before their Lordships in Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (PLD 1967 Lah. 1251), where their Lordships were pleased to observe that "whatever the true legal position under section 43(a) of the Motor Vehicles Act, 1939 and the Rules framed thereunder, it is evident that attention of the learned Judges deciding that case was not drawn to Muhammad Ali v. Commissioner, Lahore Division, Lahore and others (1962 P SCR 173), in which their Lordships of the Supreme Court cited with approval the following passage from Sharif Hussain v. Deputy Commissioner, Lahore (PLD 1957 Lah.1060).
"After considering the relevant provisions of the Act, it seems to us that the Executive Officer is an employee of the Committee, although in certain contingenies, he may be appointed by the Provincial Govern--ment or suspended or removed from his office by them and is subject to their supervisory jurisdiction like the (committee itself. But this does not destroy the relationship of the employer or employee, that obviously subsists between the Committee and the Executive Officer.
Apparently, the position is that even when Government appoints Executive Officers they do so for the benefit of the Committee who is to be the pay-master."
7. It will be seen that in the said case, according to their Lordships of the Supreme Court, an employee of the Committee, although in certain contingencies he may be appointed by the Provincial Government, or suspended or removed from his office by them, is nevertheless an employee of the Committee who is his pay-master. In other words, such an employee could not be considered to be a civil servant within the strict sense of the word. Following this authority, their Lordships in the case of Dr. Abdul Hafeez held that no doubt, a Municipal Committee performs some of the functions which are connected with the affairs of a Province, but this is far from holding that as such the servant of a Municipal Committee should be regarded as holding a civil post in connection with the affairs of the Centre or a Province, for the purposes of Article 177 of the Constitution, and that he is primarily a servant of, and subordinate to the Municipal Committee and in serving in the capacity, he is directly responsible and answerable to the Committee in the performance of its functions, and the fact that in its turn the Municipal Committee may be answerable to Government in certain respects of the affairs entrusted to it or connected with the affairs of the welfare of the State, can at best mean that a servant of a Municipal Committee is performing those functions connected with the affairs of the State in a remoter sense only, and not within the contemplation of Articles 176-177, While enunciating this principle, their Lordships also referred to, and relied on Chairman, East Pakistan Industrial Development Corporation, Dacca and another v. Rustam Ali and another (PLD 1966 SC 848) where the Supreme Court has observed that it could not be contended that the safeguards provided for public servants under the Constitution could be availed of as of legal right by the respondent Rustam Ali, who was an employee of the East Pakistan Industrial Development Corporation set up under the Provincial Industrial Development Corporation (East Pakistan) Ordinance (XXXVI of 1962) to promote industrial development in the Province, and affairs with which the State was vitally connected. This, in my opinion, is equally true of a Road Transport Board established for the purpose of the public which within its scope performs function of a public nature akin to, and connected with the affairs of a Province and is to regulate and control the Road Transport under its charge but this would be far from holding that as such, the servant, employee of the Road Transport Board should be regarded as holding a civil post in connection with the affairs of the Province --Secondly, even if it be assumed for the sake of arguments that the authority reported in Mr. Muhammad Ahsan Khan's case was to be followed on its own facts, it could not even then apply to the case now before me for the short and good reason that the initial pay of the post of Mr. Muhammad Ahsan Khan was more than Rs. 250 per mensem and in the case of officers appointed to a post carrying initial pay of Rs. 2: U per mensem and above, the appointment was subject to the prior approval of the Government whereas in the case now before me, the post of Mr. Gul Munawar Khan appellant, at the relevant time, did neither carry an initial pay Rs. 250 or above nor was his appointment as Checking Sub-Inspector subject to the prior approval of the Government. In view of this position, the observations made, and the decision given, in Mr. Muhammad Ahsan Khan's case cannot be made applicable to the case now before me.
8. The learned counsel for the appellant has also sought to support his contention by reference to a decision of the West Pakistan High Court in the case of Wali Muhammad v. General Manager, Electricity, WAPDA, Lahore and others (PLD 1964 Pesh, 167), where it was observed that "the authority (WAPDA) is a person performing functions in connection with the affairs of the Province with the result that a writ could issue under the jurisdiction conferred on the High Court by Article 98 of the Constitution."
9. Without going into merits of the authority so reported with regard to the principle enunciated therein, having reference to the legal status of the employees serving under WAPDA to approach a Court of Law in the event of the violation of their terms and conditions of service, I would like to point out that the facts of the reported authority appears to be entirely different from the facts of the case now before me with the result that even if the reported authority otherwise holds good, it can have no application to the present case. Although the facts of the said case are not sufficiently clear yet what appears is that Wali Muhammad petitioner of that case was, at the relevant time, serving as Stock Verifier under the Director, Electricity. WAPDA, Lahore, and was initially a Government servant having joined service on 6th of July 1946 as Assistant Store Keeper under the Electricity Department of old North-West Frontier Province. In this way, he was initially a Government servant entitled to pensionary benefits. Apart from this, the WAPDA under which he was serving at the relevant time was also manned largely by persons who were previously serving under Government. Gul Munawar Khan appellant of the present case, however, did not join service as an employee of a Government Department but was initially an employee of the West Pakistan Road Transport Corporation, and was, at the relevant time, serving under the Board, and these Bodies were not manned by persons previously serving under the Government.
He was also not entitled to pensionary benefits. It will thus be seen that the said reported authority has certain distinctive features which are not existing in the present case, and cannot, therefore, be pressed in aid to support the conviction that Gul Munawar Khan appellant, at the time of his premature retirement, was holding a post in connection with the affairs of the Province.
10. Apart from what has been stated above, I would like to point out that there can be no two opinions about the fact that in the provincial field, a person who is a member of a civil service of the Province, or who, except as a member of an All-Pakistan Service, holds a civil post in connection with the affairs of the Province, shall hold office during the pleasure of the Governor. In the case of such employees, the terms an conditions of service are prescribed by the Rules made by the Governor of by a person authorised by the Governor in that behalf. From this, is necessarily follows that the competent authority in the case of Provincial Services and posts, is the Governor or a person authorised by him in that behalf. These are the attributes attached to a civil post which distinguish it from an ordinary post in the administration of the Statutory Corporations and other Bodies like the Road Transport Bard where terms arid conditions of service of the employees are not determined by the Governor or by a person authorised by him. The Road Transport Board, it may be pointed out, is separate from the Provincial Government and does not function as a Department of the Government The competent authority in the case of Gul Munawar Khan appellant being the Board and not Governor or any person authorised by him, I am of the view that he could not be considered to be holding a civil post in connection with the affairs of the Province, much less could he be regarded as a member of a civil service of the Province, within the meaning of clause (b) off section 2 of the Act so as to have the right to approach this Tribunal As such, this Tribunal has no jurisdiction to proceed with the present appeal.
11. For the foregoing reasons I dismiss this appeal in limine as being beyond the jurisdiction of this Tribunal.