1. ' RAJA AFRASIAB KHAN, J.---The respondent herein, Malik Pervaiz Akhtar was appointed teacher in P.A.F. Model Inter College, Sargodha with effect from 21st of August, 1986 by the competent Authority. He was charge-sheeted on the ground that he had levelled wild allegations against the Principal and the two lady teachers of the College without any basis. He, however, denied the allegations by submitting his explanation on 9-6-1994. On 11th of June, 1994, his case was taken up by the Managing Committee. It did not hear the respondent and on 14-6-1994 terminated his services on disciplinary ground under para. 33 of the Manual of P.A.F. Schools and Colleges. The respondent challenged his termination letter dated 14-6-1994 through departmental appeal before Air Vice-Marshal on 27-6-1994 and without awaiting its result, he approached the Federal Service Tribunal through appeal on 20th of September, 1994. On 23rd of November, 1994, the appeal was heard and accepted by the Tribunal. The said judgment was assailed by the appellants through Petition for Leave to Appeal No,1305-L of 1994 which was converted into appeal and allowed. The case was remanded to the Tribunal for fresh decision after hearing the parties vide judgment dated 17-5-1995. The Tribunal accepted the appeal of the respondent on 31st of October, 1995 and in consequence, the termination order of the respondent was set aside. Leave to appeal was granted to consider the contention that the respondent was not a civil servant and as such, could not invoke the jurisdiction of the Federal Service Tribunal. Learned counsel appearing on behalf of the appellants has submitted that there was nothing on record to show that the respondent was a civil servant inasmuch as he was appointed as teacher in the P.A.F. Model Inter- College, Sargodha. The institution is being run exclusively on the self-financing scheme as has been proved on record The argument is that the P.A.F. Model Inter-College, Sargodha, is not being owned and run by the Pakistan Air Force inasmuch as its running expenses are not being met by the Federal Government of Pakistan.
2. .Learned counsel for the respondent has argued that he is a civil servant whithin the meaning of section 2(1)(b) of the Civil Servants Act, 1973. Learned counsel has also drawn our attention to clause 1 of Chapter 10 of the Manual of P.A.F. Schools and Colleges which shows that the institution is self-financing inasmuch as it is continuously being run on the basis of money generated by the College itself.
2. 3.We have heard the learned counsel for the parties at some length. We have also gone through the record with their assistance. The Tribunal observed:-- "The respondents have raised objection that the appellant is not a civil servant and the Service Tribunal has no jurisdiction to hear the appeal. After giving anxious consideration to the submissions of the parties and going through the record, we find that the appellant was appointed as a Teacher in P.A.F. Model School, Sargodha vide appointment letter dated 19-8-1986. It is apparent from the copy of letter on the file that this appointment letter was issued by the Pakistan Air Force, Sargodha under the signature of Squadron Leader M. Khalid Pervaiz. As such the appellant is a civilian employee of Pakistan Air Force appointed as the Teacher in PAF Modern School (Later on named P.A.F. Model Inter-College), Sargodha. These educational institutions (schools/colleges) are functioning under the administrative control of different bases/formations of Pakistan Air Force. They are overall controlled by the Directorate of Education, Rear Air Headquarters, Peshawar. Every School/College has a Managing Committee consisting of uniform officers of P.A.F. Supervised by the representative of the Ministry of Defence. As per appellant's counsel, funds are also provided by the Ministry of Defence. He brought to our notice during the course of arguments that in 1994 a sum of Rs,4 lacs was budgeted to the college by the Ministry of Defence. All these facts were not denied by the respondents. Therefore, it is not correct to say that the Colleges/Schools of Pakistan Air force are private bodies. We also find that according to terms and conditions of employees applicable to P.A.F. Schools/Colleges, they have adopted the same terms and conditions, e.g. Pay Scales/Qualification of Teaching Staff, retirement/pension benefits etc. Which are more or less the same as are applicable to employees of Government educational Institutions. In these circumstances, we are of the opinion that the appellant is a civil servant and can invoke the jurisdiction of this Tribunal. We get support of our view by a decision of this Tribunal in Appeal No, 8(L) of 1995 (Muhammad Hussain v. Pakistan Air Force etc.). The appellant was also employed in Air Base Inter-College, Sargodha and in that case the objection with regard to civil servant was not raised by the respondents neither the judgment was challenged before the Supreme Court, which attained finality.
4. On merits we come to the conclusion that appellant was condemned unheard. Appellant was not provided opportunity of cross-examination. He was not supplied copy of the inquiry report and no final show-cause notice was issued to him. In the absence of providing copy of inquiry report, chance to cross-examination/personal hearing, issuance of final show-cause notice, he was deprived of the opportunity to persuade his employer that the did not deserve the extreme penalty of termination of service. As such the whole proceedings taken against the appellant suffer from legal infirmities and are void a initio. Therefore, in the interest of justice, we accept the appeal and set aside the impugned order dated 14-6-1994 and reinstate the appellant in service with all consequential benefits.'
3. ' The above demonstrates that the respondent was not afforded an opportunity of being heard. He was not given the copy of the inquiry report. Similarly, no copy of final show-cause notice was issued to him to enable him to rebut the allegations leveled against him. The Tribunal has held that the appellant has adopted the terms and conditions regarding pay scales/qualifications of the members of teaching staff and their retirement/pension benefits etc. Which are more or less, applicable to the employees of the Government Educational Institutions. On the basis of this fact, the Tribunal concluded that the respondent was a civil servant and as such, could invoke the jurisdiction of the Tribunal for the redress of his grievance. Reliance has been placed by the Tribunal on the decision in Appeal No,8-L of 1995 (Muhammad Hussain v. P.A.F. Etc.) holding that Muhammad Hussain is a civil servant which decision has not been assailed before the Supreme Court. It has attained finality for all intents and purposes. Mian Tariq Mahmood, the learned Deputy Attorney-General for Pakistan has appeared on behalf of the Federation of Pakistan in compliance with the notice issued to him. He has taken the position that the respondent is a civil servant inasmuch as his appeal before the Tribunal was competent. To support his contention, he has relied upon section 2(1)(b) of the Civil Servants Act, 1973 whereby "civil servant" has been defined. It reads as follows:-- "2. Definitions.--(1) In this Act unless there is anything repugnant in the subject or context,-- (a)
(b) civil servant' means a person who is a member of an All-Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker' or ' workman' as defined in the Factories Act, 1934 (XXXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);" (Underlining is ours).
4. ' Learned counsel has also relied upon the rule laid down in University of Baloshistan v. Saeed M.
5. Khan (1986 SCM R 1063), Mrs. M.N. Arshad etc. v. Miss Naeema Khan etc. (PLD 1990 SC 612), Tanvir Iqbal Siddiqui v. The Principal, O.P.F. Girls College, Islamabad (1994 SCM R 958) and Force Commander, A.S.F. v. Haji M. Rashid and another (1996 SCM R 1614). In our considered view, the definition of civil servant does include the case of the respondent inasmuch as the post which he is holding is connected with the defence on the face of it. This has not been denied by the appellant that the P.A.F. Model Inter-College, Sargodha is being controlled and run by the P.A.F. The Chairman of the Managing Committee of the College is headed by a sitting Wing Commander of the Air Force. Similarly, other members of the Managing Committee are the sitting high Officers of P.A.F.
6. The contention that all the necessary financial benefits which are being drawn by the Federal Government Employees, are being drawn by the members of the staff of the appellant has not been disputed by the appellant. It is, therefore, clear that the facts and circumstances of the case in hand do indicate that the post of the respondent is connected with the defence as has been mentioned in the definition of civil servant. The rule laid down in Mrs. M.N. Arshad's case, PLD 1990 SC 612 (supra) fully applies to the facts and circumstances of this case which is to the following effect:-- "A perusal of the above-quoted definition of the terms "civil servant" indicates that it includes a person, who is (i) a member of All Pakistan Services or (ii) is a civil servant of the Federation or (iii) holds a civil post in connection with the affairs of the Federation including any such post connected with defence but does not include the persons mentioned in sub-clauses (i) to (iii) to the above clause (b), whereas the above-quoted section 5 provides that the appointment to the above three categories of the persons shall be made in the prescribed manner by the President or by a person authorised by the President in that behalf. It may also be pointed out that the above- quoted section 7 of the Ordinance provides that the tests and examinations for recruitment of the above three categories of persons referred to in the above clause (b) and section 5 of the Act are to be conducted as may be prescribed by rules made under section 10 of the Ordinance. We may observe that the learned Advocate Supreme Court has not been able to point out any rules requiring the junior teachers to appear in the Federal Public Service Commission Examination. In any case this is not the point in issue. The controversy is, as to whether respondent No,1 falls in any of the above three categories of persons, who have been defined as civil servants. Admittedly the Federation has established inter alia the college in Islamabad, which is the capital of the Federation. This has been done in the discharge of its Constitutional and/or statutory obligation as a State. In the capital of the Federation, the Federal Government discharges dual functions, namely, of the Federal Government and of the Provincial Government. In the above background, it cannot be denied that respondent No,1 holds a civil post in connection with the affairs of the Federation. The Tribunal has dilated upon the above question exhaustively and has pointed out the factum that the schools and colleges were constructed by the Federation and even annual budget is provided by the Federation."
7. In other words, all the employees (the teachers) in Islamabad Colleges for Boys have been held to be civil servants. The case in hand is surely at par with that of the referred case. Islamabad College for Boys is being run by the Federal Government while P.A.F. Model Inter-College, Sargodha is being owned, controlled and run by Pakistan Air Force an integral part of the Armed Forces of Pakistan. In short, it is held that the post being held by the respondent is connected with defence, and as such strictly comes within the definition of civil servant. In this view of the matter, respectfully following the above quoted rule, the judgment of the Tribunal is not open to any valid and legal objections.
8. This being the position, there is no, substance in this appeal which is hereby dismissed with no order as to costs.
9. ' MUKHTAR AHMAD JUNEJO, J.--I have gone through the judgment authored by my learned brother Raja Afrasiab Khan, J. Proposed to be delivered in this Appeal No,914 of 1996. I have been unable to agree with my learned brother in respect of the conclusion as well as reasons for the same.
10. Admittedly respondent Malik Muhammad Pervaiz Akhtar was appointed as teacher in P.A.F. Modern School, Sargodha, under an order which was issued, no doubt, by M. Khalid Pervaiz, the then Squadron Leader P.A.F. He issued said order, in his capacity as Secretary, Board of Governors, P.A.F.
11. Modern School, Sargodha. The letter dated 14-6-1994 by which services of the respondent were terminated, shows that it was the Managing Committee of the P.A.F. Modern School, Sargodha, which decided to terminate his services. Although the letter of termination dated 14-6-1994 was signed by Group Captain Zulfiqar Haider, but he did so as Chairman of the Managing Committee.
12. When the respondent invoked jurisdiction of the Federal Service Tribuanl against termination of his services, the appellants, took stand in clear terms, that the respondent was not a ' civil servant' as defined under Civil Servants Act, 1973 and that P.A.F. Model Inter-College was managed and run by Managing Committee and that it was a private body and that the pay of the employees was given from the funds of the college. Giving brief history of the P.A.F. Model Inter-College, the appellants stated in an annexure to the written statement before the Tribunal that P.A.F. Model Inter-College was self-financing institution dependent upon funds collected from the students and was being run by a Governing Body and having a Managing Committee. The Tribunal took the respondent to be a civil servant merely on the ground that the letter about his appointment was issed by Squadron Leader M. Khalid Pervaiz. Such view was misconceived because Squadron Leader M.
13. Khalid Pervaiz, while signing the letter of appointment has mentioned his designation as Secretary, Board of Governors, P.A.F. Modern School, Sargodha. The Tribunal has also misconceived the fact that the P.A.F. Modern School, subsequently named as P.A.F. Modern Inter-College, was functioning under the administrative control of different bases/formations of P.A.F., while conceding that every school/college has a Managing Committee consisting of informed officers of P.A.F.
14. ' The appellants produced before the Tribunal a printed Air Force Manual No,54-2. It deals with functioning of P.A.F. Schools and Colleges. It is mentioned in para. 1 of Chapter 10 that P.A.F. Schools and Colleges ar self-financing institutions dependent upon funds collected thr ugh tuition fee and allied charges. Para. 2 of Chapter 10 says that the school/college funds are part of base non-public funds but separate from P.S.I. Fund and should be treated as such for accounting purposes. All this shows that P.A.F. Schools/Colleges are not part of Pakistan Air Force although indirectly controlled by said service.
15. ' My learned brother has rightly referred to the definition of 'civil servant' given in clause (b) of section 2 of Civil Servants Act, 1973. But he has taken note only of the words "post in connection with the affairs of the Federation, including any such post connected with defence" appearing in clause
(b) of section 2 of said Act. Before being covered by the term "Civil Servant" the respondent is required to hold a "civil post" which may be connected with the affairs of the Federation or defence.
16. Since P.A.F. Schools and colleges are governed by certain independent bodies, the teachers in said schools and colleges cannot be considered to be holding the civil posts. Even a person holding a civil post in connection with affairs of Federation but being paid from contingencies, is not a civil servant as per sub-clause (ii) below clause (b) of section 2 of Civil Servant Act. The respondent is being paid his salary from the fees collected from the student. The respondent is not being paid salary from the national exchequer. Looked from any angle, the respondent is not a "civil servant".
17. ' My !Earned brother has relied on the case of Mrs. M.N. Arshad and others v. Miss Naeema Khan and others (PLD 1990 SC 612) which is distinguishable from the instant case. In the cited case the teachers appointed by the Federal Government in a college established by the Federal Government. Were held to he holding civil posts in connection with the affairs of the Federation.
18. Similar situation does not exist in the instant case where the P.A.F. Schools and Colleges are not under the administrative control of the Federal Government, as they have their own Boards of Governors and Managing Committees.
19. ' For the foregoing reasons, I am of the clear view that the respondent is not covered by the definition of "civil servant" as given in the Civil Servants Act and consequently, this appeal requires to be accepted and the judgment of the Service Tribunal deserves to be dismissed.
20. ORDER OF THE COURT ' By majority view this appeal is dismissed with no order as to costs.