1. WAJIHUDDIN AHMED, J.---The facts of the case, as recorded by the Sindh Service Tribunal, are as under:-- "The case of the appellant, Mr. Ali Gul Shah, which is undoubtedly a case of great hardship, has been described in the memo. of appeal as follows. The appellant joined Government service in 1971 as Sub-Engineer in the Irrigation and Power Department. Three years later in July, 1974, he was appointed as Assistant Engineer (BPS-16) in the People Works Programmed. Then came the Martial Law which replaced the Democratic Regime. Following the promulgation of MLO-55 like many other 'cases, the appellant's appointment was also referred for scrutiny by the relevant Select Committee. After his clearance by the said Committee, his appointment stood regularized vide the Minutes of the Committee's meeting held on 11-7-1978. The appellant continued to work in the capacity of Assistant Engineer (BPS-17) until he was found surplus and on 17th January, 1979, he was referred to the Administrator, Hyderabad Municipal Corporation for absorption in Local Council Service (Engineering Branch). In his letter dated 28th May, 1979, addressed to the Administrator, Hyderabad Municipal Corporation, the Secretary, Local Government Department listed the conditions on which some surplus Engineers of P.W.D. were to be absorbed in the Local Councils Service. The Administrator was further required by the letter to obtain the appellant's consent for the said conditions so that the case of his appointment in the Local Councils Service was finalized.
2. Although the appellant vehemently protested against the arbitrary decision with regard to his absorption in the Local Councils Service yet left with no option he reluctantly accepted the terms and conditions for his appointment in the said service, and consequently he was absorbed in the said service. However, he kept on making representations to various authorities until he was intimated by the letter, dated 19th February, 1992 of the Secretary, Local Government Department that his request for the benefit of the past pay drawn by him in the defunct Rural Development Programme Department was considered and rejected. Dissatisfied with the said order, he filed Constitution PetitiOn No,D-269 of 1992 in High Court but the same was dismissed in limine vide the judgment of High Court dated 28-11-1992.. Since the appellant was declared civil servant by the said judgment he preferred departmental appeal on 9-1-1993 to the Chief Secretary from the order, dated 19th February, 1992 hereinabove. As the said appeal remained undecided for the statutory period of 90 days he approached this Tribunal in the present appeal filed on 12-4-1993."
3. The Tribunal, which the appellant approached in the circumstances detailed above, recorded the under noted observations:- "After careful perusal of the above documentary proof, no doubt was left in our minds that the appellant who started his service career with Government service, was forced by circumstances to reluctantly accept the appointment of Assistant Engineer in Local Councils Service, after he was rendered surplus in the Government Department. Of course the poor man had no choice in the matter. We have all the sympathy with the appellant because we are appalled at his helplessness which in our opinion has been unduly exploited. From the terms and conditions offered to him for his new appointment, the condition at Serial No,1 was so oppressive that it robbed him of not only past service of nearly eight years but also of the salary and other emoluments he had earned during the said period of his service. This was obviously done contrary to basic principles and the longstanding practice in vogue. In such cases of the change in service, at least the last emoluments of the persons involved in the change of service are invariably protected. If any precedent is needed in support of this view, we would like to refer to the revolutionary change reflected by the nationalisation of private schools and colleges. In that case the last emoluments of the teachers coming from private schools and colleges were given due protection. To alleviate the sufferings of the appellant and save him from further litigation, authorities concerned would be well-advised to show their good-will even at this belated stage and redress his grievance at least with regard to his pay, even though the appellant may not be in a position to bring legal pressure on them particularly when he had himself accepted all the conditions of service including the oppressive one referred to above.
4. Following the appellant's absorption in Local Council (now known as Sindh Councils Unified Grades Service), as discussed above, his connection with Government service stood completely severed.
5. His own admission in last line of para. 4 of the memo. of appeal is that the date of his absorption in Local Council Service was 23rd January, 1979. From that date onward he has obviously been performing his funcqons and doing his duties in connection with the Local Council concerned. In return he has been drawing his pay etc. from the said council's funds. As such he has ceased to be a civil servant from the said date. As for his appointment, reference may be made to Sindh Councils Unified Grades Service Rules, 1982 (hereinafter referred as the said rules). As provided in clause (c) of sub-rule (1) of rule 4 of the said rules the Minister in charge is the appointing authority for posts in BPS-17. Thus, the Government functionary continues to be appointing authority of the appellant who is admittedly working as Assistant Engineer (BPS-17). Moreover, from the above date of the appellant's absorption in Local Council's Service he was governed by the Sindh Local Government Ordinance, 1979, and the rules framed thereunder. But as provided in section 3 of the Sindh Civil Servant Act, 1973, the terms and conditions of service of a civil servant shall be as contained in the said Act and the rules framed thereunder. Had the appellant continued to be in service of Government after his absorption in Local Council Service, he would have been considered to be op deputation to the Local Council concerned. In that case the question of treating him as fresh entrant in service and curtailing his pay back to the minimum of the scale (BPS-17) would not have arisen at all. However, the appellant's learned counsel relied upon the judgment of High Court delivered in the Constitution petition filed by the appellant, wherein the appellant was declared as civil servant and Service Tribunal having exclusive. jurisdiction to entertain appeal with regard to the appellant's grievance. In this connection we put a question to the learned counsel if the judgment of the High Court was binding on the Service Tribunal. His reply to the above question was in the negative. Since we are of the view that the appellant is not a civil servant, this Tribunal has no jurisdiction to interfere in his case."
6. Premised on the foregoing observations, the Tribunal while rejecting the plea of limitation still, found the service appeal to be non-maintainable. Against the Tribunal's orders, thus, passed on 28-2-1994, the appellant preferred a leave petition. Per leave granting order, dated 28-8-1994, leave was granted in the following terms:-- "The High Court of Sindh dismissed the Constitution petition of the petitioner for want of jurisdiction on the ground that he is a civil servant and can get the relief only from the Service Tribunal. After the dismissal of his Constitution petition, the petitioner approached the Sindh Service Tribunal. The Sindh Service Tribunal also dismissed the appeal of the petitioner on the ground of lack of jurisdiction for the reason that he was not a civil servant.
2. Leave to appeal is granted to examine as to whether or not the petitioner is a civil servant and the Service Tribunal could grant him the relief prayed for."
7. We would now take up the order of the Sindh High Court, dated 28-11-1992, passed by a Division Bench of that Court, in Constitutional Petition No, D-267 of 1992 (Hyderabad Circuit), whereby the appellant was opined to be a civil servant and his remedy, such as that may have been, to lie exclusively within the jurisdiction of the Sindh Service Tribunal, constituted pursuant to Article 212 of the Constitution. The Division Bench of the High Court, comprising of Mukhtar Ahmed Junejo and Nazim Hussain Siddiqui, JJ. had therein determined the legal position as follows:-- "'Civil servant', as per clause (N of subsection (1) of section 2 of Sindh Civil Servants Act means a person who is member of civil service of the province or holds a civil post in connection with the affairs of the province. Deputationists to the Provincial Government and employees on contract basis or on work-charged basis are excluded from the definition of civil servant as also an employee paid from contingencies. In the present case, the petitioner was appointed by the Government of Sindh, was regularized by Government of Sindh and was directed to be absorbed in service against a post of Assistant Engineer. Such direction was given by the Government of Sindh in Services and General Administration Department to the Local Government Board, Government of Sindh. Although the service of the petitioner was placed at the disposal of Hyderabad Municipal Corporation, but he continued to be employee of the Government of Sindh and for this reason alone the petitioner was communicated the terms and conditions of his employment by the Secretary, Local Bodies etc. Government of Sindh. At no stage of his service the petitioner was appointed by any Municipal Committee or by any Municipal Corporation because he was an employee of the Government of Sindh. In this situation the petitioner is a civil servant as defined by section 2(1)(b) of Sindh Civil Servants Act. Consequently it is held that the petitioner could seek his remedy before Sindh Service Tribunal but not before this Court."
8. Now, as seen, because it was conceded before the Tribunal, when the Tribunal was approached, that the High Court order did not bind the Tribunal, the latter proceeded to return a contrary finding. It is Articles 189 and 201 of the Constitution, which confer binding effect on decisions of the Supreme Court and the High Courts, respectively to the extent any such Court decides a question of law or its decision is based upon or enunciates a principle of law. Relevant to the decision of the Supreme Court the binding effect extends to "all other Courts in Pakistan", whereas relative to a High Court the same effect is achieved as regards "all Courts subordinate" to the High Court concerned. These two Articles of the Constitution run thus: "189 "Decisions of Supreme Court binding on other Courts.---Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other Courts in Pakistan."
9. "201. Decisions of High Court binding on subordinate Courts.-- Subject to Article 189, any decision of a High Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all Courts subordinate to it."
10. In so far as the Supreme Court is concerned, an added effect is provided to its pronouncements by Article 190 of the Constitution, which is reproduced below:-- "190 "Action in aid of Supreme Court.---All executive and judicial authorities throughout Pakistan shall act in aid of the Supreme Court."
11. It will at once be seen that the binding nature of the pronouncements of the superior Courts is Constitutionally limited to the Courts functioning in Pakistan and to the extent visualised by Articles 189 and 201 respectively. The reason is not far to seek namely, that for the concerned Courts it is impermissible to travel beyond or cut across the enunciations of law recorded by the relevant High Court or, where applicable, this Court. This, however, does not imply that the pronouncements of the superior Courts are not entitled to the higher respect if and when such are referred to or relied upon by authorities, whether executive, quasi-judicial or judicial, though not covered by the Constitutional provisions above-referred. It has, therefore, evolved that when a precedent of one High Court is cited even before another High Court, the same has considerable persuasive force.
12. There is yet another aspect too, which is of still greater significance. Such arises in cases where the decision of a superior Court is directly addressed to or has a bearing upon the proceedings before another forum. Within these connotations fell the judgment of the High Court in relation to the Sindh Service Tribunal. It seems to us that even if the Service Tribunal had reservations about the binding nature of the High Court order, as a result whereof the appellant had approached the Tribunal, it should have been only too proper for the Tribunal to have accepted the conclusion of the High Court and proceeded to decide the matter accordingly, the error in the High Court decision, if any, coming to be rectified in this Court if and when the matter was brought here. We, therefore, do not approve the Sindh Service Tribunal having, in effect, dissented from the High Court opinion, which having attained finality bound the Tribunal not because it was a "Court" subordinate to the High Court but because it was a judicial forum directly impacted by the High Court determination.
13. Taking up the main controversy now, there may have been some weight in the High Court observation namely, that the appellant had joined the Local Councils service not in the ordinary course but as a civil servant. He had, thus, been a civil servant. The point of time when the appellant ceased to be a civil servant; if at all, is too blurred to be identified at a particular point of time. In any case, for the purposes of this appeal, during the intervening period, an amendment has come to occupy the field and that is reflected in the Sindh Service Tribunals (Amendment) Act, XXXI of 1994. Such enactment promulgated on 16-1-1995 and made effective forthwith has resulted in the insertion of clause 2(aa) in the Sindh Service Tribunals Act, 1973, which runs thus:-- "(aa) 'Corporation' means a Corporation or Institution set up or established by a Provincial enactment."
14. The reproduced definition clause is followed by the insertion of section 3-E in the same Act and is to the following effect:-- "3-E. Employee of a Corporation be deemed civil servant.---Notwithstanding anything contained in any law, service of Corporation is hereby declared to be the service of the Province and every person holding a post in the Corporation, not being a person who is on deputation to the Corporation shall, for the purposes of this Act, be deemed to be a civil servant."
15. Without going into further details, in Muhammad Ali Makro v. Government of Sindh, C.P.L.A. No, 154-K of 1998, decided on 18-11-1998, a Division Bench of this Court has concluded that Sindh Councils Unified Grades Service is covered by the above insertions and persons .occupying...similar positions as the appellant would now be defined to be civil servants. The insertions, being procedural, would be retrospective.
16. In the circumstances, and the appellant having been found to be a civil servant, this appeal is allowed and the case is remanded back to the Sindh Service Tribunal for determination on merits and according to law. Parties, however, shall bear their own costs.