Through the instant Constitutional petition the petitioner has questioned the legality and the propriety of the order of the Federal Government whereby he has been reverted to his substantive post of Registrar of the Federal Service Tribunal.
2. The facts giving rise to the instant petition and necessary for its disposal and as disclosed by the petitioner in the petition as also in the parawise comments furnished by the Department are that the petitioner joined as Lower Division Clerk on 6-1-1962 in the Ministry of Food and Agriculture; Steno typist in the Islamic Ideology Council on 23-4-1963; P.A. to Special Judge (Central) from 18-1- 1964 to 6-1-1974; P.A. to Special Judge, Customs and Taxation from 7-1-1974 to 10-8-1974; Private Secretary (Grade-16) to Chairman, Service Tribunal, Islamabad on 12-8-1974; Deputy Registrar (BS- 17) on 27-1-1979 and as Registrar on 20-11-1985, which was then in BPS-18. Subsequently, he was appointed as a Member of the said Tribunal vide Notification of the Federal Government issued on 14-2-1995 attached with the instant Constitution petition by way of Annexure 'C'. Through a Notification issued on 27-2-1995 the Federal Government fixed the tenure of the petitioner's post as Member of the Federal Service Tribunal for a period of three years. Copy of the Notification fixing the petitioner's tenure as such is attached with the Constitution petition as Annexure ' E'. Vide Notification issued by the Federal Government on 19-2-1998 the tenure of the petitioner's post as Member was extended with effect from 14-2-1998 for a period of three years. Copy of the Notification extending the tenure as such is attached with the Constitution petition as Annexure 'B'.
Vide Notification 23-2-1998 (Annexure 'A') the petitioner was reverted to his original and substantive post of Registrar, Federal Service Tribunal, whereupon the incumbent of the said office i,e, Registrar Mr. Muhammad Siddique Mashori, was repatriated to his parent department as the two could not be retained against one post. The petitioner feeling aggrieved of the said action of the Federal Government has instituted the instant petition and has questioned his being appointed as Registrar of the Federal Service Tribunal against his substantive post, as aforesaid, through the instant petition.
3. The Constitution petition coming before this Court was admitted to regular hearing by my learned brother Iftikhar Hussain Chaudhry, J., vide his order dated 27-2-1998 on the ground that the orders appointing the petitioner as a Member of the Federal Service Tribunal for a further period of three years had been given effect to and could not have been subsequently recalled.
4. Dr. G.S.Khan Advocate, learned counsel for the petitioner appearing in support of the instant petition has raised the following contentions:--
(i) That the Notification dated 19-2-1998 extending the tenure of appointment of the petitioner as Member of the Federal Service Tribunal for a further period of three years had been given effect to and as such the same could not have been subsequently rescinded and no locus penitential was vested in the Government to recall the same as such;
(ii) that assuming for the sake of argument that the Federal Government was possessed of power as such and could resined the earlier notification, the same could not have been done without any show-cause notice being given to the petitioner or any opportunity of being heard having been afforded to him and that the action of the Government amounted to condemning the petitioner unheard and was as such violate of the principle of natural justice;
(iii) that in any event the power to recall the notification extending the tenure of the petitioner for a further period of three years could have been exercised either by the President or by the Prime Minister but that the President or the Prime Minister was not approached through the Establishment Division for supersession of Notification dated 19-2-1998. .
5. Mian Tariq Mahmood, learned Deputy Attorney-General for Pakistan controverted the aforesaid submissions of the learned counsel for the petitioner and supported the action of the Federal Government and maintained that the Federal Government was possessed of the power to recall the earlier notification. He also denied the right of the petitioner to be given a show-cause notice or his having been condemned unheard. The learned Deputy Attorney-General further maintained that the petitioner was a civil servant and the matter in issue as raised by him before this Court in his Constitution petition related to his terms and conditions as such and that the same being so fell exclusively within the jurisdiction of the Federal Service Tribunal and that this Court in view of the bar contained in Article 212 of the Constitution was not competent to entertain the instant Constitution petition.
6. I have considered and evaluated the, respective submissions of the learned counsel for the parties and perused the record. The main argument of the learned counsel for the petitioner was that it was either the President or the Prime Minister who was competent to recall the notification issued in respect of the petitioner whereby his tenure was extended for a further period of three years but that the President or the Prime Minister had not been approached through the Establishment Division for supersession of the Notification dated 19-2-1998. This contention of the learned counsel for the petitioner raised by him at the Bar finds clearly reflected in para. 9 of the rejoinder filed by him to the comments filed by the respondents-Government in reply to the instant Constitution petition which for facility of reference is reproduced hereunder:-- "From perusal of the comments of both the respondents, it is quite clear that the President or the Prime Minister was not approached through the Establishment Division for supersession of Notification dated 19-2-1998. In this view of the matter the contention of the petitioner that the impugned Notification dated 23-2-1998 was neither passed by the competent Authority nor in the prescribed manner gets added weight for attracting the gracious jurisdiction of this Hon'ble Court."
This stand of the learned counsel for the petitioner in para. 9 of the rejoinder reproduced hereinabove, notwithstanding, when questioned by me during the course of his arguments at the Bar as to who had passed the impugned order, learned counsel plainly conceded that the order had been passed by the Prime Minister. This clear admission by the learned counsel for the petitioner read in conjunction with the stand taken by him in para. 9 of his rejoinder to the comments completely demolishes the case of the petitioner. The fact that the Federal Government proceeded strictly in accordance with law and procured the orders of supersession of the petitioner following the laid down procedure is evident from a perusal of all the notifications issued by the Federal Government on the subject. The first notification in this behalf which needs mention is the Notification dated 14-2-1995 attached with the petition as Annexure 'C'. Through this notification the petitioner was appointed as a Member of the Federal Service Tribunal. The second notification which may be perused in this behalf is the one dated 27-2-1995 whereby his tenure was fixed for a period of three years. This notification is attached as Annexure 'E' to the writ petition.
The third notification is dated 19-2-1998 whereby the petitioner's tenure was extended for a further period of three years and the last notification in the series is the one dated 23-2-1998 whereby he was repatriated to his substantive post of Registrar and the earlier notification issued on 19-2-1998 was superseded. The invalidity and the hollowness of the argument of the learned counsel for the petitioner can be seen by reading the language used and the phraseology employed in all these notifications as also the source from which these notifications emanated. It is not the case of the learned counsel for the petitioner that the notifications issued by the Federal Government on 14-2- 1995 (Annexure 'C'), the one dated 27-2-1995 (Annexure 'E') and the one dated 19-2-1998 (Annexure 'B') were unauthorised or were such as were issued by an authority not competent to issue these notifications. Now if I these notifications were competently issued and the orders thereby passed were issued in the lawful exercise of powers vesting in the Federal Government, then the challenge thrown by him to the notification dated 23-2-1998 which was issued by the same authority which had issued the earlier notifications is wholly devoid of any merit whatever. It shall, thus, be seen that the learned counsel for the petitioner is trying to blow hot and cold in the same breath by accepting the notifications issued by the same authority as valid which are in his favour and by rejecting the notification issued by that very authority as invalid for the reason that the same goes against his interest. The petitioner can ill-afford to wield this argument. As hereinbefore indicated, that all the notifications including the last one dated 23-2-1998 superseding the earlier Notification dated 19-2-1998 were passed in exercise of the same powers and by the same authority. If the argument of the petitioner as to the invalidity and the defectiveness of the Notification dated 23-2- 1998 based upon the incompetence of the authority issuing it is accepted then the net result which shall flow out of this argument as a necessary corollary would be that the earlier Notifications dated 14-2-1995, 27-2-1995 and 19-2-1998 shall also fall to the ground and of necessity and as per the reasoning of the petitioner shall have to be adjudged as illegal and defective as having emanated from the same authority as the one which issued the last notification i,e, 23-2-1998. As aforesaid, it is not the case of the petitioner that the earlier Notifications dated 14-2-1995, 27-2-1995 and 19-2-1998 are defective, unauthorised or issued by the authority not competent to issue the same.
7. The submission of the learned counsel for the petitioner that the petitioner was entitled to be given a show-cause notice before being appointed against his substantive post of Registrar of the Federal Service Tribunal is also to my mind such as does not deserve serious attention for the reason that the petitioner's substantive post was that of the Registrar of the Federal Service Tribunal and the Government in its discretion had appointed him as a Member of the Federal Service Tribunal. His this appointment as a Member of the Federal Service Tribunal was not in recognition of a legal right vesting in him as such. He was appointed for a specified period of time and could have been reverted to his substantive post of Registrar. This reversion was not by way of punishment so as to entitle him to a show-cause notice. This was the post which he actually held and to which he was substantially appointed. If any order is made by reverting him from his substantive post to a lower post, that would be a case perhaps one of punishment calling for a show-cause notice. Such, however, is not the case of the petitioner's appointment as Registrar of the Federal Service Tribunal.
8. There is no force in the contention of the learned counsel for the petitioner that the notification extending the tenure of service of the petitioner as a Member of the Federal Service Tribunal for a further period of three years had been acted upon and could not as such have been recalled subsequently. The fact of the matter is that his first tenure of service as a Member expired on 13-2- 1998 but he did not join his substantive post of Registrar of the Federal Service Tribunal, the expiry of his tenure as a Member with effect from 13-2-1998 notwithstanding. The Federal Government, however, issued a Notification on 19-2-1998 extending his tenure of service for further three years.
The Chairman of the Federal Service Tribunal who was away to Lahore came back to Islamabad in the evening of 21-2-1998 and was apprised of the fact of the extension of the tenure of the petitioner for a further period of three years, 22-2-1998 was Sunday. On 23-2-1998 the Chairman asked the petitioner to proceed to Karachi so as to hold Court there on 24-2-1998. However, after the petitioner had proceeded to Karachi on 23-2-1998 the Federal Government on that very day i,e, 23-2-1998 rescinded the Notification dated 19-2-1998. Thus, the Notification dated 19-2-1998 having been rescinded on 23-2-1998 the petitioner could not legally work as a Member on 24-2-1998 because the Notification dated 19-2-1998 stood rescinded. The petitioner's appointment as Member of the Federal Service Tribunal could be said to have taken effect if he had pursuant to his appointment acted as such or drawn his pay and allowances as such. Now the aforesaid narration of facts would show that he did not act as a Member of the Federal Service Tribunal pursuant to the said notification and on 24-2-1998 when he held the Court and acted as such his authority to do so stood rescinded a day before i,e, 23-2-1998. He, therefore, legally could not act as a Member. It is not the case of the petitioner that he drew any salary or pay as a Member pursuant to the notification issued by the Federal Government. Viewed in this perspective, it cannot be said that the notification issued by the Federal Government had been acted upon and could not be rescinded subsequently.
9. The maintainability of the instant Constitution petition can be questioned from yet another stand point. The petitioner is a civil servant and the dispute as raised by him in the instant petition is such as relates to the terms and conditions of his service as such servant. Such a dispute, it has now been set at rest by a preponderance of judicial decisions on the subject by the Hon'ble Supreme Court in a number of judgments, cannot be brought before the High Court in view of the clear bar contained in Article 212 of the Constitution. Reference in this behalf can be made to Miss Rukhsana Ijaz v. Secretary Education, Punjab and others 1997 SCM R 167; Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCM R 169) and Rafique Ahmad Chaudhry v.
10.The dispute in all these cases hereinbefore referred related to the transfer of civil servants. The said question relates as it did, to the terms and conditions of the civil servants, was held to be beyond the jurisdiction of the High Court and consequently the orders issued by the High Court entertaining the petitions with regard to the said questions of transfer were struck down by the Hon'ble Supreme Court. The petitioner's case is squarely covered by the aforesaid decision of the Supreme Court and the instant Constitution petition cannot be maintained before this Court.
11.Before parting with the judgment on this point, I cannot help noticing an averment made by the learned counsel for the petitioner in the Constitution petition to wriggle out of this possible objection as to the ouster of jurisdiction of this Court by and at the instance of the respondent- Government. Learned counsel for the petitioner in para. 3 of the Constitution petition has averred that the petitioner is not challenging his terms and conditions of service of his previous post as Registrar, Federal Service Tribunal, which post according to section 3 of the Civil Servants Act, 1973 is governed by the provisions of Civil Servants Act, 1973 read with the Rules made thereunder and that the petitioner is exclusively challenging his terms and conditions of service as Member, Federal Service Tribunal. By dint of this averment in the Constitution petition the petitioner purported to show that on becoming the Member of the Federal Service Tribunal he ceased to be a civil servant.
His this contention, however, is belied by the provisions of Rule 9 of the Federal Service Tribunal Chairman and Members Rules, 1983. For facility of reference the said rule 9 is reproduced hereunder:-- "If a Government servant is appointed as Member, he shall be entitled to the same salary, allowances and privileges as are admissible to him as a Government servant: Provided that a Government servant who is promoted to a higher grade after his appointment as member shall be entitled, from the date of such promotion, to the salary, allowances and privileges admissible to him in the higher grade."
A perusal of Rule 9 of the aforesaid Rules reproduced hereinabove would show that a Government servant can be appointed as a Member and on his appointment as such he shall continue to draw the same pay and allowances as he was drawing prior to his appointment as such. It is nowhere laid down in these rules that a person on being appointed as Member shall ceased to be a Government servant. When such is the position of the service of the petitioner, his case relatable, as aforesaid, it is to the terms and conditions of his service falls clearly out of the jurisdiction of this Court and the instant Constitution petition is incompetent and wholly misconceived.
12.The fact that the petitioner in spite of his appointment as Member, Federal Service Tribunal, is not eclipsed of his status as a civil servant can be explained in yet another way. Under Article 100 of the Constitution of the Islamic Republic of Pakistan, the President of Pakistan has the power to appoint a person as Attorney-General for Pakistan who is qualified to be the Judge of the Supreme Court. This equality of status between the Attorney-General and a Judge of the Supreme Court is only symbolic. Notwithstanding his appointment as Attorney-General, the incumbent of the said office cannot be termed as a Judge of the Supreme Court of Pakistan nor can he claim the pay and privileges of the Judge of the Supreme Court. On the same analogy, a Government servant on being appointed as a member of the Federal Service Tribunal, by virtue of the judicial functions that he performs, does not cease to possess his character and status as a civil servant which he enjoyed prior to his appointment as such.
13. As a natural corollary to the aforesaid discussion I see no merit in the instant Constitution petition which is dismissed as such leaving the parties to bear their own costs. The petitioner may if he feels so advised seek redress of his grievance before the Federal Service Tribunal.