MENT SAVED ZAHID HUSSAIN, J. -- Judgment dated 19.3.1996 in three connected writ petitions, involving identical points, whereby the same were accepted by a learned Single Judge of this Court, is the subject-matter of these Intra Court Appeals which arise in the under-mentioned circumstances:-
2. Mujahid Major Abdul Majid Bhatti was transferred on 23.1.1994 from 841 Mujahid Training Battalian to 555 Mujahid Battalian. He tiled a representation before the Chief of Army Staff (COAS) which was dismissed on 7.6.1994. He then tiled W.P. No. 7766/94 challenging his transfer order which petition was accepted by a learned Single Judge on 19.3.1996. The said judgment has given rise to I.C.A. No. 135/96. In identical circumstances, W.P. No. 7768/94 was tiled by Mujahid Major Muhammad Shatique challenging his order of transfer which was accepted by a learned Single Judge by the same judgment and I.C.A. No. 137/96 has arisen out of the same. Mujahid Captain Dil Muhammad had also challenged his transfer order by tiling W.P. No. 7767/94 which writ petition was accepted alongwith the above-mentioned writ petitions and I.C.A. No. 136/96 arises out of the same. All the writ petitions were heard together and decided through a common judgment challenged in these appeals. Accordingly, these appeals were also heard together and are being disposed of through this common judgment.
3. Before the learned Single Judge the case of the writ petitioners (the respondents here in these appeals) was that they could not he transferred without their consent from one Unit to another Unit in view of Section 9, read with Rule 13 of the National Guards Act, 1973 and the Rules framed thereunder. An objection was taken by the appellants (the respondents in the writ petitions) that by virtue of Section 18 of the National Guards Act, 1973. The writ petitioners were subjects to The Pakistan Army Act, 1952, therefore, the petitions wee barred in terms of Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973.
4. The learned Single Judge over-ruled the objection as to the competency of the writ petitions by taking the view that:- "Section 2 (c) of the Pakistan Army Act, 1952 states that persons not otherwise subject to the Act become subject if they are on "Active Service" which stands defined in Section 8 (1) of the ibid Act.
Since the petitioners were not engaged in operations against enemy or in military operations against a foreign country, they cannot he deemed to he on "Active Service".
(Paragraph No. 10 of the judgment) He was further of the view that:- "Article 199 (3) of the Constitution of Islamic Republic of Pakistan, 1973 shall not he applicable to the case in hand, as the petitioners are not members of the Armed Forces of Pakistan or subject to any law relating to any of those Forces or subject to any such law at the relevant time."
(Paragraph No. 11 of the judgment)
Taking the above said view, the learned Judge proceeded to accept the petitions that the impugned order "transferring the petitioner to deactivated Unit is declared to he without any lawful authority and of no legal effect". The same is challenged in the appeals.
5. It is contended by the learned Deputy Attorney-General that jurisdiction of the High Court under Article 199 (3) of the Constitution could not be invoked in the matter as. By virtue of Section 18 of the National Guards Act, 1973, the respondents were subject to the Pakistan Army Act, 1952. It is contended that the learned Judge erred in taking the view that despite the application of the Pakistan Army Act, 1952 to the respondents they could not he treated on "Active Service" and; that reliance of the learned Judge on Section 8 (1) of the said Act was misplaced in view of the Notification dated 3.1.1975 issued under Section 7 of the Pakistan Army Act, 1952. It is contended that as the respondents Were subject to the Pakistan Army Act, 1952, the ouster Clause (3) of Arta 199 of the Constitution was attracted and the petitions were barred. He further contends that the respondents were transferred to their parent Battalian, as such, there was no question of their consent for the transfer and; that S. 9 of the National Guards Act, 1973 has not been correctly construed in the context.
6. The learned counsel for the respondents, on the other hand, referring to Articles 243 to 245 of the Constitution contends that the respondents were not members of Pakistan Armed Forces, therefore, Art. 199 (3) of the Constitution was not applicable to them. It is contended that the provisions of Pakistan Army Act, 1952 stood modified by operation of Rule 16, read with Schedule II of the National Guards Rule, 1973, as such, the respondents could not he regarded subject to the provisions of The Pakistan Army Act, 1952 in matters of their terms and conditions of service.
7. In the context of the controversy a brief reference to the relevant provisions of laws may he appropriate to appreciate the object and purpose of constituting Mujahid Force.
8. Section 5 of the National Guards Act, .1973 envisages the Constitution of the Force to be designated "Mujahid Force" to be raised and maintained in accordance with the provisions of the Act. This was not for the first time that such a Force was to be raised and maintained. It appears that a Force designated the "Pakistan National Guards" was constituted, raised and maintained under S. 3 of The Pakistan National Guards Act, 1950. By virtue of S. 12 of the said Act, "Pakistan National, Guards" when doing duty as such officers were subject to the provisions of Pakistan Army Act, 1952 which had taken the place of Indian Army Act, 1911. This Act was, however, repealed and Pakistan Mujahid Force Ordinance, 1965 (Ordinance XXII of 1965) took its place. Its S. 4 envisaged a Force to he designated the "Pakistan Mujahid Force" to he raised and maintained in accordance with the provisions of the Ordinance. By virtue of S. 12 of the Ordinance, the provisions of Pakistan Army Act, 1952 were made applicable to the Force. The National Guards Act, 1973, as mentioned above, constituted "Mujahid Force" by its S. 5 on the repeal of the Ordinance, XXII of 1965. S. 6 empowers the Federal Government or any officer or authority empowered by it in that behalf to constitute one or more Units of the Mujahid Force to he recruited from persons residing in Pakistan and may disband or reconstitute any Unit so constituted. In terms of S. 7 of the Act, Mujahid Force is to consist of the following personnels:- "(a) officers holding commissions in the Force granted by the President;
(b) junior commissioned officers holding commissions in the Force granted by the Chief of the Army Staff;
(c) non-commissioned officers, appointed as such by the respective commanding officers: and
(d) Mujahids."
Section 8 of the Act takes care of the enrolment, whereas, S. 9 deals with the transfers and attachments, that "any person appointed to a Unit may with his consent, he transferred, whether on disbandment of the Unit or otherwise, to another Unit in such manner as may he prescribed". By virtue of S. 15 of the Act every person enrolled in the Mujahid Force or the Janbaz Force is liable to he called up for military training, for which purpose, their command and control shall he regulated according to the orders of the Director General or any authority empowered by him in this behalf. S. 16 of the Act casts a duty and liability to serve in any Unit to which he has been appointed or transferred or is for the time being attached and shall he subject to all rules and regulations.
Whereas, S. 17 of the Act entitles a person enrolled to receive his discharge from the Force on the expiration of the period for which he was enrolled and may also he discharged before the expiration of the period by the prescribed authority subject to such conditions, if any, S. 18 of the Act is of vital importance as it makes Pakistan Army Act, 1952 applicable to every officer and junior commissioned officer when doing duty as such officer or junior commissioned officers. (This provision in view of this revelatory will find mention in the latter part of the judgment in extenso.) S. 39 empowers the Federal Government to make rules for carrying out the purpose of the Act.
9. The National Guards Rules, 1973 were made by the Federal Government in pursuance of S. 39 of the Act. Rule 3 of these Rules deals with the grant of Commission to the retired Army Officers for which the General Headquarter of the Pakistan Army forwards recommendations to the Federal Government. Rule 4 onwards is the procedure for enrolment and appointments. Rule 13 prescribes the procedure for transfers and attachments of Mujahids, on the disbandment of a Unit, whereas, Rule 16 deals with the modification of Pakistan Army Act, 1952 as specified in Schedule II. Reference to Schedule. It shows that Ss. 3 to 6 and 18 to 20 of the Pakistan Army Act, 1952 stand omitted.
10. There seems to he a consistent objective, purpose and policy of the aforesaid enactments to raise and maintain a Force designated the National Guard/Mujahid Force. It is a Semi-Military organization, called in times of emergency or national crises. The respondents also admit its Semi- Military character. The application of Pakistan Army Act, 1952 to the personnels when doing duty as such has also been continuously ensured.
11. In order to appreciate the import, extent and amplitude of clause (3) of Art. 199 of the Constitution reference to the same will he appropriate:- "Art. 199 (3) An order shall not he made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any, miter arising out of his service, or in, respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law."
The clause referred to above was introduced by the Constitution (First Amendment) Act, 1974 to bring in its ambit a person who is "subject to such law" as the original clause (3) was not of such a wide amplitude and was restricted only in its application to the Members of the Armed Forces of Pakistan.
12. S. 18 of the Act which deals with the application of Pakistan Army Act, 1952 and Rule 16 of The National Guards Rules, 1973 which deals with the modification of the Pakistan Army Act, 1952 are reproduced hereunder for perusal:- "The National Guard Act, 1973. Sec. /8. Application of the Pakistan Army Act, 1952 (XXXIX of 1952):--
(1) Subject to the terms and . Conditions of his commission and any order of the prescribed authority made in this behalf, every officer and junior commissioned officer, when doing duty as such officer or junior commissioned officer, shall he subject to the provisions of the Pakistan Army Act, 1952 (XXXIX of 1952), and the rules and regulations made thereunder as if such officer or junior commissioned officer held the same rank in the Pakistan Army as he, for the time being, holds in the Force: Provided that the said Act, rules and regulations shall, in their application to such persons when called out or embodies for service or military service under Section 16 or during training in the Mujahid Force or the Janhaz Force he modified to such extent and in such manner as may he prescribed.
(2) Subject to any order of the prescribed authority made in this behalf, every non-commissioned officer, Mujahid and Janhaz of the Force--
(a) when undergoing training, or
(b) when called out or embodied for service or military service under Section 16, shall he subject to the Pakistan Army Act, 1952 (XXXIX of 1952), and the rules and regulations made thereunder, as if he held the same rank in the Pakistan Army as he, for the time being, holds in the Force: Provided that the said Act, rules and regulations shall, in their application to such non- commissioned officer, Mujahid or Janhaz when embodied for or otherwise undergoing training; he modified to such extent and in such manner as may he prescribed.
(3) Where any person while he is subject to the provisions of the Pakistan Army Act, 1952 (XXXIX of 1952), commits any offence punishable thereunder, he may, notwithstanding that he may have ceased to he so subject, he taken into and kept in custody and tried and punished for such offence in the same manner as he would have been liable to be tried and punished had he not ceased to he so subject."
The National Guards Rules, 1973.
Rule 16. Modification of Pakistan Army Act, ,1952, in its application to the Force:-- (I) For the purposes of Section 18 of the Act, the Director-General shall he the prescribed authority.
(2) The provisions of the Pakistan Army Act, 1952 and the rules made thereunder shall, in their application to the persons commissioned or enrolled under the Act in the Mujahid Force and the Janhaz Force, when called out or embodied for service or military service under Section 16, during .Such service, or when called up for training under Section 15, during such training he modified to the extent and in the manner specified in Schedule II.
The National Guards Rules,1973 Schedule II A. Modification of the Pakistan Army Act, 1952 (XXXIX of 1952).
(1.) The Sections 3 to 6 (inclusive) and 18 to 20 (inclusive) shall he omitted ."
The perusal of Schedule II, shows that Ss. 3 to 6 and 18 to 20 as per item I, stand omitted from the Pakistan Army Act, 1952, in its application to the Force.
13. Reference to S. 7 of the Pakistan Army Act, 1952 will he appropriate as the said provision remains unaltered by Schedule H. It reads as follows:- "7. Power to declare persons to be on active service:-Notwithstanding anything contained in clause
(1) of Sec. 8, the Federal Government may; by notification, direct that any person or class of persons subject to this Act shall, with reference to any area in which they may be serving or with reference to all or any of the provisions of this Act or of any other law for the time being in force, be deemed to he on active service within the meaning of this Act."
S. 8 of the said Act defines "Active Service' as follows:- "In this Act, unless the context otherwise requires, -- (1) "active service", as applied to a person subject to this Act, means the time during which such persons is attached to or, forms part of a force .Which is engaged in operations against an enemy, or is engaged in military Operations in, or is on the line of march to a country or place wholly or partly occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country."
With reference to the above S. 8, the learned Single Judge has taken the view that as the petitioners (respondents here in) were not engaged in operations against enemy or any military operation against the foreign country, they could not he deemed on "active service".
14. The connotation "active service" as envisaged by S. 8 (1) of The Pakistan Army Act, 1952, read with S. 7 of the said Act, whereby the Federal Government has the power to issue a Notification notwithstanding anything contained under S. 8' (1) of the Act to declare any person or class of person to be deemed on "active service" within the meaning of the said Act, came up for consideration in Allah Dittu v. The State (PLD 1976 Lahore 823). A learned Division Bench of this Court came to the conclusion that S. 7 of the Act empowered the Federal Government to declare by Notification any person subject to the Act to be deemed on "active service" within the meaning of that Act. It was observed that operation against the enemy or military operation against a foreign country was not necessary.
15. The notification issued by the Federal Government under S. 7 of the Pakistan Army Act, 1952, referred to in the ahove said judgment is as follows:- "(MINISTRY OF DEFENCE NOTIFICATION NO. 3/75 DATED THE 3RD JANUARY, 1975)
(See Gazette of Pakistan, Par II, dated the 23rd January, 1975, page I)."
16. The ahovesaid notification also came up for consideration before their Lordships of the Supreme Court quite recently in The Federation of Pakistan and two others v. Khumhid Ahmed and others (1999 SCMR 664) and it was held that a person who may not otherwise he covered by the definition of "Active Service" may he deemed to he in "Active Service" by operation of Section 7 of the Act.
Their Lordships reached the following conclusion at page 685 of the report:- "It is, therefore, quite clear that for the purposes of Section 7 (ihid), a person who is subject to the Act may not he engaged in any of the military operation stated in Section 8 (1) of the Act for being treated on "active service". It is enough if the Federal Government by notification directs that such person or class of persons will he deemed to he on "active service" with reference to the area in which they are serving or with reference to any of the provisions of the Act."
It was further observed that:- "In terms of the above notification all persons who are subject to the Act wherever they may he serving, with reference to all the provisions of the Act, are deemed to he on "active service" within the meaning of the Act.. The clear effect of this notification is that all the persons mentioned in clauses (a), (h) and (bb) of sub-section (I) to Section 2 (ihid), are deemed to he on "active service" from the date of the notification."
17. The abovesaid case arose on a writ petition filed by the civilian employees i.e. Lower Division Clerks in the General Headquarters. Their trial by the Field General Court Martial was declared by the High Court as without jurisdiction on writ petitions filed by time and the question had arisen as to the application of the Act when they were not on "active service" as contemplated by Section 8
(1) of the Act. By placing reliance on notification dated 3.1.1975 above, their Lordships came to the conclusion that the respondents would be deemed to he on "active service" under Section 7 of the Act, accordingly, appeals filed by the Federation were accepted. Yet in an other case Mrs. Naheed Maqsood v. The Federation of Pakistan (1999 SCMR 2078) the aforesaid notification dated 3.1.1975, issued by the Federation Government under S. 7 of the Act, it was held at page 2083 as follows:- "We may also refer to Section 7 of the Act which lays down that notwithstanding anything contained in clause (I) of Section 8, the Federal Government may, by notification, direct that any person or class of persons subject to this Act shall with reference to any area in which they may be serving or with reference to all or any of provisions of this Act. Or of any other law for the time being in force, he deemed to he on active service within the meaning of this Act. It will not he out of context to mention that sub-section (1) of Section 8 of the Act defines "active service as applied to a person subject to this Act means the time during which such person is attached to or forms part of a force which is engaged in operations against an enemy, or is engaged in military operations in, or is on the line of march to a country or place wholly or partly, occupied by an enemy, or is attached to or forms part of a force which is in military occupation of a foreign country. It may be pointed out that since above Section 7 contained a non-obstante clause it shall prevail over above Section 8, and thus, the Federal Government, through a notification, can extend the scope of the meaning of the term "active service" as defined in sub-section, (I) of Section 8 of the Act. The same has been done so through the above-quoted notification dated 3.1.1975 by notifying that the persons subject to the Act shall with reference to any area in or outside Pakistan, in which they may he serving and with reference to all the provisions of the said Act, and of any other law for the time being in force he deemed to he on active service."
18. In Muhammad Khursheed Butt v. The Government of Pakistan (PLD 1983 SC 92), the appellant was a civilian employee in the Defence Services and held the post which was included in the General Central Services Class II (Gazetted) had invoked the jurisdiction of the High Court under Art. 98 of the Constitution of Islamic Republic of Pakistan, 1962 challenging his retirement from service. His petition was dismissed by the High Court under Art. 98 (3)(a) of the Constitution. His by the Hon'ble Supreme Court upholding the bar contained in Art. 98 (3)(a) of the Constitution of 1962.
19. In their petitions, the respondents had characterized the "Mujahid Force" as a semi-military body and reference was made to Chapter 10 of Manual of Pakistan Military Law, Vol, I. Thus, they belong to a disciplined force. We cannot brush aside the assertion of the learned Dy. Attorney-General that the respondents had been transferred to their parent Unit and there was no mala fide of any of the appellants.
20. On appreciation of the legal provisions of the relevant laws and the judgments mentioned above; the position that emerges is as follows:-
(i) "By virtue of S. 18 of the National Guards Act, 1973, The Pakistan Army Act, 1952 has been adopted and made applicable to the personnel of Mujahid Force when doing duty as such officers or junior commissioned officers.
(ii) Rule 16 read with Schedule II has modified/omitted Ss. 3 to 6 and 18 to 20 of the Pakistan Army Act, 1952 only. Ss. 2 and 7 of the Pakistan Army Act, 1952 continue to he adopted and applicable in view of S. 18 of the ibid Act. The omission of rest of the provisions of that Act has no effect in the context of this case.
(iii) The Federal Government by issuing a notification under S. 7 of the Act, !952 can declare any person or class of person subject to the said Act on "Active Service", besides the "Active Service" defined in S. 8 of the Act.
(iv) The notification of the Federal Government dated 3.1.1975, issued under S. 7 of the Act, is operative and applicable to the respondents who are thus deemed to he on "active service".
(v) As the respondents were subject to the provisions of the Pakistan Army Act, 1952 (although they are not members of the Armed Forces) the bare contained in Art. 199 (3) of the Constitution was applicable to them.
(vi) The rationale behind Art. 199 (3) of the Constitution appear to be that matters pertaining to the conditions of service or arising out of service of a person who is for the time being subject to any law relating to any of the Force or a person subject to such law are left to he determined within the hierarchy itself, Art. 8 of the Constitution also lends some support to the same.
(vii) The application of clause (3) of Art. 199 of the Constitution is not restricted to the members of the Armed Forces as visualized by Arts. 243 and 244 but also applies to such other persons who are subject to any law relating to any of the Armed Forces.
(viii) S. 9 of the National Guards Act, 1973 does not abridge or take away the power of transfer but gives the person concerned also an option for transfer by exercising his consent. If the matter of transfer is left at the will of the person concerned then the provisions of S. 16 of the Act will become wholly redundant according to which it is the liability of every person to serve in any Unit to which he has been appointed or transferred. .
(ix) Transfer of an employee is generally regarded a matter of exigency of service and the employer is considered to he the best Judge to determine the suitability of a particular person qua the post/duty, in which the Courts very rarely interfere. .
21. In view of the above, we have come to the conclusion that the respondents were personnels of Disciplined Force whose representation against the transfer had been dismissed by the Chief of Army Staff and were subject to the Pakistan Army Act, 1952 at the relevant time. Their petitions were thus not maintainable in view of Art. 199 (3) of the Constitution and that despite S. 9 of the National Guards Act, 1973 they could he transferred without obtaining their consent in view of S. 16 and that the allegation of mala fide had no factual or legal efficacy.
22. In view of the above, we have not been able to persuade ourselves. To concur with the view taken by the learned Single Judge, despite the utmost respect that we have for him, and to agree with him in entertaining and issuing the writ.
We, therefore, accept these appeals and dismiss the writ petitions, filed by the respondents.
No order as to costs.