MUHAMMAD KHURSHID KHAN (CHAIRMAN).-By this order, we propose to dispose of to appeals filed by Mr. Karamatullah Khan as registered at Nos. 228 and 229 of 1974. Since common questions of law and fact arise in them, they are being disposed of together.
2. The facts out of which these appeals arise, shortly are, that Mr. Karamatullah Khan (Appellant) joined the Education Department of the old North-West Frontier Province on 5th of May, 1929, as B A.B.T. In the Senior Assistant Master's Grade. In June, 1935, serving in the Education Department, be proceeded on leave ex-India for to years and got the Diploma in Education from Leeds University (England) in 1937, and Master of Education Degree (High Class) from the same University in 1938.
On return from England, he was appointed as Head Master in a Government High School. On 14th of November 1945 he was sent on deputation to Islamia College, Peshawar, as Professor and Chairman of the Department of Education. He was, however, recalled from deputation on 21st of November 1947 on his purely temporary promotion to Class II in connection with the leave arrangement of one Shaikh Fasih-ud-Din and was appointed as Personal Assistant to the then Director of Public Instruction. In June 1963, while holding the post of Divisional Inspector of Schools in W. P. E. S. I. Dera Ismail Khan, he was transferred in the same capacity to Southern Division, Karachi, and held this position till the date of his retirement from Govern--ment service on 1st of April, 1968.
3. After his retirement from Government Service, Mr. Karamatullah Khan put forth his claim for arrears of pay alleging that his appointment on deputation to Islamia College, Peshawar, was for an indefinite period and that he having been re-called prematurely from that college suffered financial loss, as detailed in Annexure No. 1, with the result that he was legally entitled to recover the same from the Government. He also claimed that in view of the increase in pay, as worked out by him, there would be proportionate increase in his pension and on that count, be was also entitled to the arrears of pension. The representations made by him in this behalf did not find favour with the Provincial Government and were consequently rejected. Thereupon, he instituted to civil suits in the Court of Senior Civil Judge, Peshawar, on the 3rd of May, and 13th of June, 1973 which were registered at No. 153/1 and 173/1 respectively.
4. During the pendency of the to civil suits referred to above, which in fact are still pending in the Court of Senior Civil Judge, Peshawar, 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, as its preamble would show, was intended to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, and for matters connected therewith or ancillary thereto. It was published in the Government Gazette (Extraordinary), North-West Frontier Province on the 8th January 1974. In section 2(a) of the Ordinance, the expression "civil servant" has been defined to mean a person who is a member of a Civil Service of the Province, or who bolds a civil post in connection with the affairs of the Province whereas the term "Province" was defined to mean the North-West Frontier Province. The Ordinance later on became an Act of the Provincial Assembly of the North-West Frontier Province (N.-W.F.P. Act No. I of 1974 and is called the North-West Frontier Province Service Tribunals Act, 1974, (hereinafter referred to as the Act). It was published in the Government Gazette Extraordinary of 2gth March 1974. The expressions "civil servant" and "Province" find the same definitions in the Act as were given in the Ordinance. On the 18th of May 1974 an Ordinance called 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. In this Ordinance, the expression "civil servant" was defined to mean a person who is, or bas been a civil servant, within the meaning of the North-West Frontier Province Civil Servants Act, 1973. It will not be out of place to point out here that the Civil Servants Act received the assent of the Governor of the Province on the 11th of November 1973. Before that, it was in the form of an Ordinance known as North-West Frontier Province Civil Servants Ordinance, 1973. This piece of legislation was intended to provide for regulating the appointment of persons to, and the terms and conditions of service of persons, in the service of the North-West Frontier Province, and matters connected therewith or ancillary thereto. In the Civil Servants Act, 1973, 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 the expression "Province" has been defined to mean the North-West Frontier Province.
5. As stated earlier, the to civil suits instituted by Mr. Karamatullah Khan in the Court of Senior Civil Judge, Peshawar are still pending. No order for abatement seems to have been passed by the Civil Court so far Without waiting for any such order, Mr. Karamatullah Khan moved this Tribunal for the grant of relief against the Government of North-West Frontier Province by means of to appeals which are being disposed of by this order. The grounds set out for the grant of relief in the appeals are the same as were contained in his representations to the Provincial Govern--ment as well in the plaints of the to civil suits.
6. It is an admitted position that the Province of West Pakistan came into being on the integration of Baluchistan, North-West Frontier Province, Punjab and Sind, into One Unit, in the year 1955, and it continued to function till June 30, 1970, and with effect from 1st of July 1970 it was disintegrated whereupon four Provinces, namely, Baluchistan, North-West Frontier Province, Punjab and Sind were constituted. The appellant, as indicated earlier, retired from Government service on April 1, 1968, when the Province of West Pakistan was still in existence. In the circumstances, the point which indeed is of vital importance and requires determination in the appeals now before us is as to whether the meaning of the expression `'civil servant" can legitimately be extended so as to include in that expression a person like the appellant who has never been a civil servant of the Government of North-West Frontier Province after the disintegration of the Province of West Pakistan.
7. Before we proceed to consider this point, we would like to point out that as an important question of law involving the interpretation of some of the provisions of the Act was to be considered and adjudicated upon by this Tribunal, the Provincial Government was issued a notice to present its point of view for consideration before the Tribunal, either through the Advocate --General, or through any other Law Officer deemed fit for the purpose. It so appears that the Assistant Advocate-General, North-West Frontier Province, was asked by the Government to represent it before the Tribunal, in response to which he appeared before the Tribunal on 24th August 1974. He however, did not appear on the next date of hearing. I e., 21st September 1974, to which date the appeals were adjourned for arguments. The result, there--fore, was that on the later date, the appellant was heard and the appeals were then fixed for orders. From this, it will be seen that no legal assistance was rendered to the Tribunal by, or on behalf of the Provincial Government. Even the appellant himself did not advance any argument in support of his being a civil servant within the meaning of the relevant provisions of the Act, and instead came forward with the contention that he could not be deemed to be a civil- servant, with the result that we did not have the benefit of hearing any arguments in support of the opposite point of view. This could not, however, deter us from examining the matter even from the other point of view.
8. At this juncture, it would not be out of place to point out that in the initial stages of these appeals the appellant's contention was that he could move, and did actually move this Tribunal, under section 8 of the Act. But when confronted with the situation that the benefit of section 8 could be taken by those persons only whose suits, appeals or applications regarding any matter within the jurisdiction of Service Tribunal abated and that the civil suits instituted by him were still pending in the civil Court, the appellant came forward with an application that the appeals should proceed under amended section 4 of the Act which entitles a civil servant, aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of service, to prefer an appeal to the Service Tribunal, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal whichever is later. In view of the importance of the legal question involved as also being conscious of the fact that some of the Courts were proceeding to pass orders of abatement even in the cases of those civil servants who actually retired from Government services long before the disintegration of the Province of West Pakistan, we decided to proceed with the decision of question involved.
9. Reverting now to the legal issue involved in these appeals it may be stated that after having considered the factual aspect of the matter as also after having examined the legal position on the point, we are of the opinion that the expression "civil servant" as used in the North-West Frontier Province Service Tribunals (Amendment) Act, 1974 and defined in section 2(h) of the North-West Frontier Province Civil Servants Act, 1973, cannot be extended so as to include in that expression the appellant who has never been a civil servant of the Government of North-West Province after the disintegration of the Province of West Pakistan. There is no doubt that the words "or has been a civil servant" have been used in clause (a) of section 2 of the North-West Frontier Province Service Tribunals (Amendment) Act, 1974, with reference to the expression "civil servant" but at the same the, the meaning of the expression has been confined to the one given in the North-West Frontier Province Civil Servants Act, 1973. In the, latter Act, 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 post in connection with affairs of West Pakistan, while the expression ' Province" has been defined to mean the North- West Frontier Province. In the said Act, the words "or has been a civil servant" are conspicuous by their absence. In the circumstances, there can be no room for doubt about the fact that the North- West Frontier Province Civil Servants Act, 1973, was intended to regulate the appointment of persons, to and the terms and conditions of service of persons in, the service of the North-West Frontier Province and this fact also finds support from its preamble. It is pertinent to note that even in this Act, the expression "Province" has been confined to the North-West Frontier Province. It may be, although before us it was not, urged that the expression "Province" had not only reference to the North-West Frontier Province formed on the disintegration of the Province of West Pakistan but I have also reference to the Province of North-West Frontier which was in existence before the establishment of the Province of West Pakistan. Such an argument, in the existing circumstances, would, in our view, amount to putting the cart before the horse, in that if the Legislature intended to give this extended meaning 'to the said expression, they would have certainly given more comprehensive definition to it, wider in scope, so as to cover the area comprised in North-West Frontier Province before the integration of the Province of West Pakistan into One Unit. In that event the Legislature would have also defined the expression so as to cover the period intervening between the integration of the Provinces of West Pakistan into One Unit, and the disintegration of the Province of West Pakistan because during this period the Province of North-West Frontier was undoubtedly not in existence. Apart from this, some of the areas now forming part of the North- West Frontier Province did not actually form part of the Province of North-West Frontier before the establishment of the Province of West Pakistan, and while placing the interpretation upon the expression in question, this fact also cannot be lost sight of. At this stage, a reference to certain provisions of the Province of West Pakistan (Dissolution) Order, 1970 (hereinafter referred to as the Order), which appear to us to be relevant, as also material, to the point in issue may be useful. In the introductory part of the Order it has been stated in most unequivocal words that the Province of West Pakistan would be dissolved and in its place new provinces would come into being and for the purpose of making provision in the legal framework for elections to the Provincial Assemblies and delineation of constituencies of such elections, it is necessary to provide for the dissolution of the Province of West Pakistan and constitution of new provinces in its place. In the definition clause, "new province" has been defined to mean a province constituted under the Order. Then section 4 of the Order provides that as from the appointed day (which came to be 1st of July 1970), the Province of West Pakistan, as it existed immediately before that day, shall cease to exit and there shall be constituted in its place four provinces to be known respectively as (a) Baluchistan (b) the North- West Frontier Province, (c) the Punjab and (d) Sind, the Centrally Administered Areas of the Islamabad Capital Territory, Centrally Administered Tribal Areas, and that the territories of the new provinces and the Centrally Administered Areas shall be as set out in the Schedule. Section 5 of the Order also refers to the administration of new provinces. From all these provisions, it will be seen that the reference is to the constitution, of new Provinces, and not to the restoration or revival of the provinces existing before the establishment of the Province of West Pakistan. This was quite natural for the reason that some of areas not forming part of some of the provinces did not form their part before the integration of the provinces of West Pakistan into One Unit and for this reason, the mere restoration or revival of old provinces would have not achieved the desired object. The dictionary meaning of the word "constitute" as given in the Concise Oxford Dictionary is "appoint, establish, found, give legal form to, frame, form, make up". This meaning would clearly show that the word "constituted" as used in the Order, can have nothing common with the term "restoration" Moreover, the words ''shall be constituted", as used in the Order with reference to the new provinces connote future tense and not past tense. If the author of the Order aimed at the restoration of the old provinces in the form in which they existed before the establishment of the Province of West Pakistan, he would have never used the words "shall be constituted" and "new provinces". In the event of the restoration of the old provinces, the word "restore" or some other word or term indicating the same meaning or conveying the same sense, would have been used. The fact that no such word or term was used goes to show that the Order aimed at the constitution of new provinces which could not be tantamount to the restoration of the provinces existing before the integration of the Province of West Pakistan Into One Unit. Taking all these facts and circumstances into consideration, we feel no hesitation in arriving at the conclusion that the meaning of the expression "civil servant" cannot be extended so as to include in that expression the appellant who retired before the constitution of the new Province of North-West Frontier in pursuance of the provisions contained in the Order. These observations shall not, however, be taken to have reference to section 10(2) of the Act which appear to be an independent provision and relates to the transfer of appeals pending before the Tribunal constituted under the North-West Frontier Province Civil Services (Appellate Tribunals) Ordinance, 1971 to the Service Tribunal established under the Act, as for deciding the to appeals now before, we did not at all feel the necessity of examining the legal position with respect to the appeals pending before the North-West Frontier Province Civil Services (Appellate Tribunals) which had originally been instituted under the provisions of the West Pakistan Civil Services (Appellate Tribunals) Ordinance, 1969 (West Pakistan Ordinance No. XXVIII of 1969), and stood transferred to the North-West Services Appellate Tribunal, in pursuance of clause (3) of section 18 of the North-West Frontier Province Civil Service (Appellate Tribunals) Ordi--nance, 1971.
10. In view of what has been stated above. It is manifest that the Service Tribunal is not in a position to proceed with these appeals. The result, therefore, is that the appeals fail and are hereby dismissed in limine.
We, however, make no order as to costs.