1. SAIDUZZAMAN SIDDIQUI, J.--The above appeal with the leave of this Court is filed by the Registrar, Supreme Court of Pakistan to call in question the order of Federal Service Tribunal dated 10-7-1994 whereby the learned Tribunal allowed service appeal of respondent and reinstated him in service.
2. The facts relevant for decision of the above appeal are, that respondent was appointed as Research and Reference Officer (BPS.18) in Supreme Court of Pakistan on 26-7-1984. He was removed from service by the Hon'ble Chief Justice of Pakistan by order dated 1-9-1993 as a result of disciplinary proceedings initiated against him under Rule 4 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 (hereinafter to be called as the 'Rules' only). The respondent filed a review petition against the order-dated 1-9-1993 before the Hon'ble Chief Justice of Pakistan, under Rule 11 of the Rules but the same was rejected on 9-11- 1993. The respondent thereafter preferred a service appeal before Federal Service Tribunal, Islamabad, under section 4 of the Service Tribunals Act, 1973 (hereinafter to be referred as 'the Act' only) which was allowed on merits after overruling the preliminary objection raised in the appeal to the jurisdiction of the Tribunal to entertain appeal in respect of the employees of the Supreme Court of Pakistan, by order dated 10-7-1994. Leave was granted in the above appeal to consider the question: Whether the view taken by the Federal Service Tribunal that persons serving in the Supreme Court of Pakistan are 'Civil Servants' and thus a dispute relating to the terms and conditions of service of such persons is amenable to the jurisdiction of Service Tribunal, is in consonance with law.
3. The learned Deputy Attorney-General, in support of the appeal contended that employees of the Supreme Court do not fall within the category of 'Civil Servants' as defined in section 2(1) (b) of the Civil Servants Act, 1973 as the terms and conditions of their services are governed and regulated by the Rules which were framed under the Rule-making power conferred on the Supreme Court of Pakistan by virtue of Article 208 of the ' Constitution of Islamic Republic of Pakistan (hereinafter to be referred as the 'Constitution' only), and not under any Act of Majlis-e-Shoora as contemplated under Article 240 of the Constitution. In support of his contention the learned Deputy Attorney- General relied on the case of Government of Punjab v. Mubarak Ali Khan (PLD 1993 SC 375).
4. The respondent, who appeared in person, on the other hand, contended that mere fact that the service of respondent was regulated under the Rules framed by the Supreme Court of Pakistan under Article 208 of the Constitution was not enough to lead to the conclusion that the respondent was not covered by the definition of Civil Servant as given in the Civil Servants Act, 1973. It is contended by the respondent that the employees of Supreme Court hold posts in connection with the affairs of the Federation and as such a dispute concerning the terms and conditions of their service will be amenable to the jurisdiction of Service Tribunal constituted under Article 212 of the Constitution to deal exclusively with the disputes relating to the terms and conditions of service of a Civil Servant. In support of his above contention the respondent relied on the cases of Abbas v.
5. Hon'ble Chief Justice (1993 SCM R 715) and Hadi Bux v. Government of Sind (PLD 1994 SC 532).
6. The learned Service Tribunal in arriving at the conclusion that respondent was a civil servant within the meaning of Civil Servants Act, 1973 and as such the appeal filed by him against the order of Chief Justice of Pakistan removing him from service, was maintainable before the Tribunal, mainly relied on the observations of this Court in the case of Hadi Bux (supra) which also considered the to earlier decisions of this Court reported as Abbas v. Hon'ble Chief Justice (supra) and Government of Punjab v. Mubarik Ali Khan (supra). Since the sheet-anchor of the argument of respondent in the present appeal in the decision of this Court in Hadi Bux' case (supra) we would like to examine the facts of this case in some detail.
7. In Hadi Bux's case, supra, the appellant was appointed as Additional Secretary in the Provincial Assembly of Sind w.e.f. 19-12-1989 on the basis of the recommendations of the Selection Committee by notification dated 24-2-1990. On completion of his probationary period, the appellant's appointment was confirmed on 13-6-1990. The services of the appellant were terminated by the Speaker of Sind Assembly by order dated 12-8-1991. This order of the Speaker of Sind Assembly was challenged by the appellant in a service appeal before the Sind Service Tribunal which was dismissed on the ground that he was either a member of civil services of the Province nor he was holding any civil post in connection with the affairs of the Province. In appeal against the order of Sind Service Tribunal, this Court held that the appellant was a civil servant within the meaning of Sind Civil Servants Act, 1973 as he was holding a civil post in connection with affairs of the Province.
8. The to earlier decisions of this Court reported as Abbas v. Hon'ble Chief Justice and Government of Punjab v. Mubarik Ali Khan supra, were referred in the judgment in Hadi Bux's case, supra, in support of the conclusion that the appellant in Hadi Bux's case, supra, was a person holding the post in connection with the affairs of the Province of Sind. We may mention here that in Abbas's case the appellant was held to be a civil servant as it was found that the High Court Establishment Rules were deemed to have been framed under section 26 of the Sind Civil Servants Act in view of Article 241 of the Constitution. For that reason it was held that the violation of the terms and conditions of service was justifiable before the Service Tribunal constituted under, the Sind Service Tribunals Act, 1973. In Hadi Bux's case, supra, the ratio laid down by this Court in treating the appellant in that case as civil servant was, that the terms and conditions of the, services of the appellant in that case were governed by rules framed under Civil Servants Act which stood incorporated in the rules framed by the Speaker of Sind Assembly by reference. It is, therefore, quite clear that both in Hadi Bux's case as well as in Abbas's case supra, this Court reached the conclusion that the services of the appellants in both the above-referred cases were governed under the rules which were framed or deemed to have been framed under the Civil Servants Act and as such the dispute relating to the terms and conditions of their services was amenable to the jurisdiction of the Service Tribunal established under the Sind Service Tribunals Act, 1973. No doubt in the judgment in Hadi Bux's case, supra, reference was also made to the case of Government of Punjab v. Mubarik Ali Khan, supra, but this reference was made in the context that in Mubarik Ali Khan's case, supra, also the respondents were found to be the persons employed in connection with the affairs of the Province.
9. The ratio in Mubarik Ali Khan's case, supra, however, unequivocally laid down that persons employed in the Provincial High Courts were not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act. This ratio in Mubarik Ali Khan's cash supra, has not been dissented so far in any other subsequent judgment of this Court. We may also mention here that Mubarik Ali Khan's case, supra w,4s decided by a Bench of this Court which consisted of 5 learned Judges while Abbas's case and Hadi Bux's case, supra, were decided by the Benches of this Court which consisted of only 3 learned Judges of this Court in each case. It is also pertinent to point out here, that in Abbas's case, supra, this Court refused to go into the question, whether the employees of the Sind High Court were civil servants or not within the meaning of Sind Civil Servants Act for the reasons that the appellant had himself chosen for invoke the jurisdiction of the Tribunal in that case and that the leave was not granted on this point. We reproduce here, with respect, the following observations of the Court in Abbas's case, supra, which appear at page 723 of the report:- - "18. As regards the penultimate submission, we would not undertake an examination of it because the Tribunal has not recorded any finding on it. Besides, the appellant having himself invoked the jurisdiction of the Service Tribunal cannot be permitted to express doubts about it. Additionally, it is not a question on which leave to appeal has been granted under Article 212(3) of the Constitution."
10. The status of persons employed in the Provincial High Courts, Federal Shariat Court and the Supreme Court of Pakistan and whose terms and conditions were governed under the rules framed by virtue of Article 208 of the Constitution directly arose in the case of Government of Punjab v.
11. Mubarik Ali Khan, supra, and the view taken by the High Court in that case that the employees of the Provincial High Court, Lahore, do not fall within the category of civil servants as defined in the Civil Servants Act was approved by this Court as follows:-- "The view taken by the High Court that the employees of the Provincial High Courts are not civil servants for the purpose of Civil Servants Act and Service Tribunals Act is correct."
12. It was also observed by this Court in Mubarik's case, supra, that the B Legislature, was not given any role to determine the terms and conditions of the employees including their remunerations and this exclusionary rule was found in conformity with the concept of independence of judiciary as enshrined in the Constitution. The following observations were made by this Court in paragraph 15 of the judgment in Mubarik's case to highlight the point:-- "15. In the context of the Constitutional provisions reproduced above, it is clear that in the matter of the officers and servants employed in the establishment of the Supreme Court of Pakistan and the High Courts the Legislature had not been given any role to determine the terms and conditions of the employees which of course would include their remuneration also. Such an exclusionary role was attributed to the requirement of maintaining the independence of judiciary in the case of Supreme Court Employees' Welfare Association v. Union of India and others (AIR 1990 SC 334). In exercise of this or its predecessor provision both the Supreme Court and the High Courts have framed Rules. Rules 17 and 22 of these Rules in respect of the High Courts are as under:-- '17. Members of the High Court Establishment shall be entitled to pay (including special pay) and allowances as fixed by the Chief Justice, from the to the, with the approval of the Governor to these rules.
22. In respect of salaries, allowances, leave or pension; the members of the Establishment shall be governed by the Civil Service Rules (Punjab) as amended from the to the'. "
13. In view of the above categorical finding of this Court in the case of Government of Punjab v.
14. Mubarik Ali Khan, supra, holding the employees of Provincial High Courts not falling within the category of civil servants as defined, in the Civil Servants Act and the Service Tribunals Act, it was not open to the Service Tribunal to treat the respondent as a civil servant and assume jurisdiction in the appeal filed by him against the order of Hon'ble Chief Justice of Pakistan. The learned Service Tribunal while holding the respondent as civil servant within the meaning of Civil Servants Act, 1973 completely overlooked the specific observations of this Court reproduced above in the case of Government of Punjab v. Mubarik Ali Khan, supra.
15. We would like to mention here that from the trend of arguments at the bar it appeared that the to expressions 'service of Pakistan' and 'Civil Servants' were treated as synonymous. This in our opinion is not so. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province. This expression also includes an All Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly as Service of Pakistan. The terms 'Civil Servant' is defined in the Civil Servants Act, 1973 as a person, who is a member of an All Pakistan Service or of a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any Province or other authority, a person who is employed on a contract or on work-charge basis who is paid from contingencies and a person who is 'worker' or 'workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, are expressly excluded from the category of 'Civil Servant'. On a careful examination of the definitions of 'Service of Pakistan' as given in Article 260 of the Constitution and the 'Civil Servant' as mentioned in the Civil Servants Act, 1973, it would appear that the to expressions are not synonymous. The expression ' service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term 'Civil Servant' employed in the Civil Servants Act. While a 'Civil Servant' is included in the expression 'service of Pakistan', the vice versa is not true. 'Civil Servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, we may mention here that members of Armed Forces though fall in the category of 'service of Pakistan' but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act. The scope of expression 'service of Pakistan' and Civil Servants' came up for consideration before this Court in the case of Syeda Abida Hussain v.
16. Tribunal for N.A.69 (PLD 1994 SC 60). In that case the petitioner was disqualified from contesting the general elections of 1993 on the ground that she was a person who held the office of profit in the Service of Pakistan. It was contended by the petitioner in that case that she was appointed as an Ambassador on contract for to years and as a person employed on contract was specifically excluded from the definition of civil servant the petitioner could not be disqualified. The contention was repelled by this Court in the above case as follows:-- "6. It is difficult to subscribe to the contention of the learned counsel. The expression 'service of Pakistan' has been defined in Article 260(1) of the Constitution. It reads as follows:--- 'Service of Pakistan' means 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 a service of Pakistan by or under Act of Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Minister of State, Chief Minister, Provincial Minister, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or Member of a Law Commission, Chairman or Member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Advisor to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister or Member of a House or a Provincial Assembly';"
17. Learned counsel for the petitioner rightly concedes that the post of an Ambassador a post in connection with the affairs of the Federation. It will be seen that the definition does not take notice of the manner in which a post in connection with the affairs of the Federation or a Province may be filled. Thus, so far as the inclusion of a post in the service of Pakistan is concerned, it is immaterial whether the holder thereof has come to occupy it through a special contract or in accordance with the recruitment rules framed under the Civil Servants Act; consequently, the mere fact that a person is not a civil servant within the meaning of the Civil Servants Act would not put him beyond the pale of the said Constitutional definition. The contention that the case of the petitioner was covered by sub-clause (n) ibid, is entirely. Misconceived as ex facie it does not apply to situations where the relationship of master and servant exists between the parties. Here the petitioner was a whole the employee of the Government and except for matters which were specifically provided in the letter of appointment she was governed by the ordinary rules of service applicable to the civil servants. It may perhaps be of interest to mention here that these rules were framed in pursuance of the provisions of Article 240 ibid. Thus, the assertion on her behalf that while serving as an Ambassador she could not be treated as one in the service of Pakistan merely because her appointment to the post owed its origin to a special contract cannot be accepted. Admittedly, a period of to years has not passed since she relinquished charge of the said post. Therefore, she has been rightly held to be suffering from the disqualification laid down in clause (k) ibid. We find no merit in this petition. It is hereby dismissed."
18. From the above discussion, it is quite clear that a person may be in the service of Pakistan but for that reason he cannot be classed as a Civil Servant' as well, as defined in the Civil Servants Act. The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a 'Civil Servant' as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category.
19. In the case before us, it is not disputed that the Supreme Court of Pakistan has framed the Rules under Article 208 of the Constitution which governed the terms and conditions of appointment of officers and servants of the Supreme Court of Pakistan. It is also not disputed that the respondent in the case was appointed as Research and Reference Officer in the Supreme Court of Pakistan under these Rules. Since the service of the respondent was not governed under any Act of Majlis-e- Shoora passed under Article 240 of the Constitution and terms and conditions of his service were regulated under the Rules directly framed in pursuance of Article 208 of the Constitution, he could not fall in the category of a civil servant as defined in the Civil Servants Act, 1973 in view of the rule laid down in the case of Government of Punjab v. Mubarik Ali Khan, supra. Consequently, the appeal of respondent which related to the terms and conditions of his service was not cognizable by the Federal Service Tribunal. The appeal is, accordingly, If accepted and the order passed by the Service Tribunal is set aside.
20. Before parting with the case, we would however, like to mention here that Rule 11 of the Rules bars any appeal against the penalty which may be imposed by the Hon'ble Chief Justice of Pakistan on the employees of the Supreme Court. This rule, in our view, does not conform to the law laid down by the Shariat Appellate Bench of this Court in the case of Federation of Pakistan v. Public at Large (PLD 1988 SC 202) and Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1989 SC 6) wherein it was declared that under the Islamic dispensation of justice at least one right of appeal must be provided to an aggrieved person and that the law barring such right to an aggrieved person is repugnant to the Injunctions of Islam. We would, accordingly, recommend that the provisions of Rule 11 of the Rules may be amended suitably to bring it in accordance with the aforesaid decision. The appeal stands disposed of with those observations.
21. (Sd.)
22. Saiduzzaman Siddiqui, J.
23. (Sd.)
24. Mukhtar Ahmed Junejo, J.
25. I agree with the conclusion but has appended my note.
26. (Sd.)
27. Mukhtar Ahmed Junejo, J.
28. I respectfully agree, but have added my a note.
29. (Sd.)
30. Fazal Karim, J.
31. FAZAL KARIM, J.--I respectfully agree. My justification for this note is the outstanding public importance of the question, which touches the independence of judiciary in the context of the maintenance of the rule of law.
2. Our Constitution is a Federal Constitution and provides for a Federal structure. Though there is no strict adherence to the concept of separation of powers, which is a well-known fundamental political principle in many modern democracies, yet, there can be discerned the vesting of the legislative, the executive and the judicial powers in three separate organs. And, as in America, from this separation "is derived the doctrine that certain functions, because of their essential nature, may properly be exercised by only a particular branch of Government; that such functions cannot be delegated to any other branch; and that one department may not interfere with another by usurping its powers or by supervising their exercise". (American Constitutional Law by A. Thomas Mason and William M. Beaney, Fourth' Edition, p.55). In the words of the great Chief Justice Marshall in "McCulloch v. Maryland" (17 U.S. (4 Wheat), 316, 4 L.Ed. 579). "This Government is acknowledged by all, to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem to apparent; that principle is now universally admitted". From McCulloch also emerges the principle that within the sphere of its enumerated powers each organ of Government is supreme. Even the Constitutions on the 'Westminster model' which is a convenient term used to describe Constitutions which have their origin in an Act of Parliament at Westminster or an Order in Council, deal, as does our Constitution, under separate Chapter headings with the Legislature, the executive and the judicature. As was said by Lord Diplock in 'Hinds v. The Queen' (1977 AC 195, 212) these Constitutions "embody what is in substance an agreement reached between representatives of the various shades of political opinion in the State as to the structure of the organs of Government through which the plenitude of the sovereign power of the State is to be exercised in future. All of them were negotiated as well as drafted by persons natured in the tradition of that branch of the common law of England that is concerned with public law and familiar in particular with the basic concept of separation of legislative, executive and judicial power as it had been developed in the unwritten Constitution of the United Kingdom". Thus, in the sense that the legislative, the executive and the judicial power are vested in three separate organs, the basic concept of separation of powers is recognised even in the unwritten Constitution of the United Kingdom. How jealously the Courts in England now regard their judicial power and the independence of judiciary can be judged from a recent case "X Ltd. v. Morgan-Grampian (Publishers) Ltd. (1991) 1 AC 1. When that case was in the Court of Appeal, Lord Donaldson M.R. Said: "Any widespread refusal to obey the orders of the Courts is a threat to the authority of the Courts which is not anytheless such a threat, because it is coupled with an acceptance that there will be a penalty to be paid. This is important in terms of the public interest, but what is much more important is that it is also a threat to the authority of Parliament, whose servants are the Courts".
32. But when the case reached the House of Lords, Lord Bridge was quick to dispel the impression that the words 'whose servants are the Courts' were likely to create by observing: "The maintenance of the rule of law is in every way as important in a free society as the democratic-franchise. In our society the rule of law rests upon to in foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen's Courts in interpreting and applying the law."
3. It is a settled principle of Constitutional interpretation, that the problem that a provision in the Constitution raises cannot be solved by the Court's confining its attention to that specific provision.
33. In seeking to interpret that provision, it is necessary not only to keep that specific provision in mind but also the necessary implications arising from its subject-matter and the structure of the Constitution, including the concept of separation of powers which involves the independence of each organ of the other organs.
4. Article 208 occurs in Part VII of the Constitution. This Part deals with judicature and contains provisions for the method of appointment and security of the tenure of the members of the Judiciary which are designed to assure to them a degree of independence from the, to branches of Government. Unlike the American and Australian Constitutions, the expression Judicial Power' which is essentially a Constitutional concept and is to be contrasted with legislative and executive powers of the State has not been used in our Constitution. But whether it is a written Constitution or not, if there is a trichotomy of sovereign powers between the executive, the legislative and the judiciary, as it is in our Constitution, "then ex necessitate rei; from the nature of things the judicial power must be vested in the judiciary". (State v. Zia-ur-Rehman PLD 1973 SC 49, 69; Fauji Foundation case PLD 1983 SC 455, 635"). There can therefore, be no doubt that it is the Constitutional concept 'Judicial Power'-with which Part VII of the Constitution deals and that Article 208 of the Constitution is a part of the scheme which was designed to assure to the judiciary a degree of independence from the other to branches of Government. By that Article, the Supreme Court, the Federal Shariat Court with the approval of the President, and a High Court, with the approval of the Governor concerned, I have been empowered to make rules "providing for the appointment by the Court of Officers and servants of the Court and for their terms and conditions of employment". That the Parliament and the Executive may not even indirectly interfere with the Court's power under Article 208, the administrative expenses, including the remuneration payable to the officers and servants of the Supreme Court, are, by Article 81 of the Constitution, charged upon the Federal Consolidated Fund, and the administrative expenses, including the remuneration payable to the officers and servants of the High Courts are by Article 121 charged upon the Provincial Consolidated Fund. This special provision granting power to the Supreme Court, the Federal Shariat Court and the High Courts to make law for the appointment of their officers and servants and the terms and condition's for their employment is to be contrasted with the Articles of the Constitution such as Articles 87, 221 and 240 of the Constitution. Article 87, by its clause (2), empowers the Parliament to make law for regulating the recruitment and the conditions of service of persons appointed to the Secretarial Staff of either House of Parliament; and until a law is so made by the Parliament; empowered by its clause (3) the Speaker or, as the case may be, the Chairman, with the approval of the President, to make rules regulating the recruitment, and the conditions 'of service of persons appointed to the Secretariat Staff of the National Assembly or the Senate. Article 221 reads: "Until Majlis-e-Shoora (Parliament) by law otherwise provides, the (Election) Commissioner may, with the approval of the President, make rules providing for the appointment by the Commissioner of officers and servants to be employed in connection with the functions of the Commissioner or an Election Commission and for their terms and conditions of employment."
34. Article 240 which occurs in Chapter I of Services of Part X11--Miscellaneous of the Constitution runs as follows: "Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined--
(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All-Pakistan Services, by or under Act of Majlis-e-Shoora (Parliament); and
(b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. "
35. Article 241 allowed the rules and order in force immediately before the commencing day to continue in force and to be amended from the to the by the Federal 'Government or, as the case may be, the Provincial Government, "until the Legislature makes a law under Article 240". It will be noticed that the powers granted to the Parliament and the Provincial Assemblies to make law for the appointment and terms and conditions of services of persons in the service of Pakistan is "subject to the Constitution".
5. The Constitutional scheme, then, is that there are to broad categories of officers and servants of the State: the first category and that includes that generality of persons in the services of the Federation and the Provinces is dealt with by Article 240; as regards them, the power to make lave has been granted to the Parliament; the second category is of those office servants in respect of whom, the Parliament and the Provincial Assemblies have no legislative power. While there is no doubt that the Parliament and the Provincial Assemblies are supreme in the sphere of the powers granted to them by Articles as such Articles 87, 221 and 240 of the Constitution, there is equally no doubt that the Parliament has no legislative role to play in respect of the officers and servants specially dealt with by Article 208 of the Constitution.
6. Now, the Civil Servants Act, 1973, was obviously enacted in exercise of the power vested in the Parliament by Article 240 of the Constitution. And as the presumption is that the Parliament did not, in making that law, exceed its powers, it does not, and was not intended to, apply to the officers and servants of the Courts. The Service Tribunals Act, 1973, which was indeed enacted under Article 212 of the Constitution, also applies to 'Civil Servants' as that expression is defined in the Civil Servants Act, 1973, namely a person who is, or has been, a Civil Servant within the meaning of the Civil Servants Act, 1973. It must follow inevitably that both these enactments have no application to the servants and officers of the Supreme Court, the Federal Shariat Court and the High Courts, are not 'Civil Servants'.
7. As has been shown in the judgment of my learned Saiduzzaman Siddiqui, J., in relying upon "Government of the Mubarik Ali Khan" (PLD 1993 SC 575), the learned Member of the Tribunal missed its ratio decidendi namely that the servants and officers of the Courts are not Civil Servants. As regards Abbas case (1993 SCM R 715) that indeed concerned the employees of Sind High Court Establishment but as is plainly clear from the observations in para. 18 of the judgment of this Court, the question whether the servants and the officers of the High Court were Civil Servant was not allowed to be raised and was not decided. The remaining discussion in that judgment obviously proceeded on the supposition that the servants and officers of the High Court were civil servants but a supposition is not the same thing as deciding a question of law and enunciating a principle of law within the meaning of Article 201 of the Constitution. As regards Hadi Khan case (PLD 1994 SC 532), it was a case of an employee of .The Sind Provincial Assembly; it has been seen above that in respect of the employees of the Parliament and the Provincial Assemblies, the power to make law vests in the Parliament or, as the case may be, in the Provincial Assemblies.
8. It must be held, therefore, that the conclusion reached by the Tribunal, which makes the decision of the Chief Justice of Pakistan, albeit in his administrative capacity, yet within the sphere of the enumerated powers of the Supreme Court, subject to review by the Service Tribunal is not only Constitutionally dangerous, it also flies in the face of common sense.
36. (Sd. )
37. (Fazal Karim, J.).
38. MUKHTAR AHMED JUNEJO, J.--I have gone through the draft Judgment authored by my learned brother Saiduzzaman Siddiqui, J. And I agree with him that this appeal requires to be accepted.
39. However, I wish to add this note of mine to the main judgment.
40. The facts have been clearly mentioned in the leading judgment, and I need not reiterate the same.
41. It is worthy to note that inter alia there are three Articles in the Constitution of the Islamic Republic of Pakistan (hereinafter mentioned as the Constitution) which delegate the authority to different functionaries to legislate or frame Rules on certain subjects. Article 240 of the Constitution delegates to the Majlis-e-Shoora (Parliament) the power to pass an Act determining appointments to the service of Pakistan and the terms and conditions of service of persons in the service of Pakistan. Similar delegation of powers to frame an Act determining the appointments to the services of a Province and the conditions of service of persons in such service has been made to each of the concerned Provincial Assemblies. It is in pursuance of Article 240 of the Constitution that the Majlis-e-Shoora (Parliament) legislated Civil Servants Act, 1973. Another provision dealing with delegation of powers is Article 208 of the Constitution, which inter alia empowers the Supreme Court of. Pakistan to make rules with approval of the President providing for the appointment by the Supreme Court of officers and servants of the said Court and for their terms and conditions of employment. Similar powers have been vested in the Federal Shariat Court in respect of its officers and servants and to each of the High Courts in respect of its officers and servants. It is in pursuance of Article 208 that the Supreme Court of Pakistan has framed "Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982". This implies that the persons for whom the Rules are to be framed under Article 208 of the Constitution are excluded from the category of persons in respect of whom the Acts determining terms and conditions of service are to be legislated under Article 240. This position appears clear like daylight and there does not appear to be overlapping or inconsistency of any sort.
42. The third provision in the Constitution about delegation of powers is given under Article 212. Article 2 1 2(1) of the Constitution empowers appropriate Legislature to provide by an Act the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters inter alia relating to the terms and conditions of persons who are or have been in service of Pakistan, including disciplinary matters. It is in pursuance of this Article that the Majlis-e-Shoora enacted Service Tribunals Act, 1973. It may be noted that Article 208 of the Constitution did not provide for establishment of any Administrative Court or Tribunal to exercise exclusive jurisdiction in respect of matters relating to terms and conditions of the persons who are covered by Article 208 of the Constitution. It may also be noted that opening words of Article 212(1) of the Constitution are "Notwithstanding anything hereinbefore contained". These words negativate any provision in the preceding Articles including Article 208, if inconsistent with any provision contained in Article 212(1). Article 212(1) delegates powers to the Majlis-e-Shoora (Parliament) to enact law providing for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of the matters mentioned in clauses (a), (b) and (c) below sub-Article (1) of Article 212. Nowhere in sub-Article (1) of Article 212 of the Constitution, the word "civil servant" was used. However, the Majlis-e-Shoora in its wisdom chose to use the word "civil servant" and restricted right of a person in the service of Pakistan to invoke jurisdiction of the Service Tribunal only when he was covered by the definition of 'Civil Servant' given in the Civil Servants Act. There is no cavil with the view that definition of service of Pakistan given under Article 260 of the Constitution is wider than the definition of civil servant given in the Civil Servants Act, 1973 and in clause (a) below section 2 of Service Tribunals Act. This shows that in spite of a person being in the service of Pakistan, he cannot move the Service Tribunal unless he is a civil servant as defined under said Act.
43. A somewhat similar situation arose in the case of Abbas (1993 SCM R 715) where case of a High Court employee was turned down by the Sind Service Tribunal on the ground of lack of jurisdiction and when the matter came to this Court in appeal, a learned Bench of this Court declined to undertake an examination of the point on the ground that the Tribunal had not recorded any finding on it. However, the case was remanded to the Sind Service Tribunal with an observation that the High Court Establishment Rules would be deemed to be rules framed under the Sind Civil Servants Act and it was held that any violation of such rules is justifiable before the Service Tribunal. In the case of Hadi Bux (PLD 1994 Supreme Court 532) an employee of Provincial Assembly of Sind was held to be holding a civil post in connection with affairs of the Province, although he was governed by Sind Assembly Secretariat (Recruitment) Rules, 1974 framed under Article 87(3) read with Article 127 of the Constitution. In said case of Hadi Bux the view taken was that the rules framed under Sind Civil Servants Act had been incorporated in the rules framed under Article 87(3) read with Article 127 of the Constitution and consequently the reasoning adopted in the case of Abbas (1993 SCM R 715) could be pressed into service in the case of Hadi Bux.
44. In the case of Government of Punjab v. Mubarik Ali Khan (PLD 1993 Supreme Court 375) decided by a learned Bench of five Judges of this Court note was taken of a case of Manzoor Hussain and others decided by the Lahore High Court where the view taken was that officers and servants of the High Court do not fall within the ambit of expression "civil servant" as occurring in section 2(b) of the Punjab Civil Servants Act. Said judgment came before this Court twice but at no stage the question of jurisdiction was adverted to directly or indirectly, as observed in the case of Mubarik Ali Khan. The question of jurisdiction was not adverted to in depth in the case of Mubarik Ali Khan but it was observed that the view taken by the High Court that the employees of the Provincial High Courts are not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act is correct. In view of such weighty observations there is no scope for further discussion of this matter and following said view we have to hold that the Service Tribunal had no jurisdiction to entertain appeal of the respondent.