IFTIKHAR MUHAMMAD CHAUDHARY, C.J. -- Petitioner Dr. Haji Muhammad Soomro, ex-Medical Officer Baluchistan Residential College, Loralai has instituted instant Constitutional petition to claim following relief against Principal, Baluchistan Residential College, Loralai, Government of Baluchistan through Secretary Secondary School and Colleges Education, Civil Secretariat and Board of Governors Baluchistan Residential College, Loralai through its Secretary/Director of Education:- "It is prayed that in consideration of above Honourable Court may he pleased to: (a) To decide that impugned notification of compulsory retirement dated 21.8.1998 is ultra vires and has been passed without lawful authority;
(b) Petitioner continues to he Medical Officer on the rolls of Baluchistan Residential. College, Loralai and is entitled to he re-instated with hack benefits;
(c) To issue appropriate directions both mandatory and prohibitory to give effect to the declaration as prayed for in Clauses (a) and (h) above;
(d) Costs of petition are also claimed."
2. Prior to filing of instant petition, petitioner instituted C.P. No. 10/1995 which was disposed of vide judgment dated 25.4.1996 whereby directions were issued to the competent forum of Government of Baluchistan to dispose off representation filed by him in accordance with law within a period of 30 days, relevant Para therefrom for convenience is reproduced hereinbelow:- "We are therefore, inclined to direct that representation made by the petitioner on 31.8.1994 to Government of Baluchistan which was also endorsed to Minister for Education as well as Secretary Education shall he treated as pending and to be disposed of by the competent thrum in accordance with law within a period of 30 days after receipt of copy of this judgment. The petitioner is also directed to approach Secretary Education and furnish a copy of representation on 31.8.1994 for placing the same before Board of Governors/competent authority for disposal in accordance with Rules and Regulation.
The petition is disposed off accordingly."
It so happened that on remand of the case the Government of Baluchistan Education Department vide Notification No, 7-5/94-E-SO (D)/1572-87, dated 21.1.1997 re-instated to petitioner in service and a committee was constituted headed by Commissioner Zhob Division; Divisional Director Education, Director 'Health Services Zhoh and Director Development Zhoh to enquire into the following items in terms of the reference of the committee:-
(1) To enquire into the case of retirement of service of Hail Muhammad Soomro, Medical Officer, Baluchistan Residential College, Loralai as per requirement- of E&D Rules; complete and submit its findings alongwith recommendations, in the matter to Education Department within one month from the date of issuing of this notification."
Accordingly Committee furnished its recommendations with observations that the Officer being not fit to work with the present arrangement of the Baluchistan Residental College, Loralai, therefore, suggested his posting some where else. Consequent to above findings of the Committee show-cause notice was given to the petitioner and vide notification dated 21.8.1998 issued by the Government of Baluchistan Education Department, he was compulsorily retired. For the sake of convenience contents of the notification are reproduced hereinbelow:.- "With the prior approval of the competent authority the Government of Baluchistan Education Department is pleased to compulsorily. Retire Dr. Haji Muhammad Soomro, Medical Officer, .Baluchistan Residential College from service with immediate effect. He shall, however, he allowed all the benefits he is entitled to.
Petitioner submitted appeal to the Secretary Board of Governors Baluchistan Residential College, Loralai on 10.9.1998 and perhaps as he could not get reply, therefore, he presented instant petition on 16.12.1998.
3. At the hearing of petition we posed a question to Mr. M.A.
Chishti learned counsel for petitioner as to how instant petition under Article 199 of the Constitution of Islamic Republic of Pakistan is maintainable on two scores:- "If the petitioner was in the service of Baluchistan Residential College, Loralai which is being run under the Baluchistan Model Residential Secondary School Ordinance, 1983 and if statutory rules, regulations to control the affairs of services of the employees of the Residential College have not been framed, Whether petitioner's service will not he governed under the principles of master and servant, as it has been held by Honourable Supreme Court in the case of "Principal Cadet College Kohut and others Vs. Muhammad Shoab Qureshi"
(PLD 1984 SC 170) and if there is a statutory regulation framed under the Ordinance and the petitioner is engaged in the affairs of the Province of Baluchistan he had no remedy before the Provincial Service Tribunal and then instant petition is not barred under Article 122 of the Constitution of Islamic Republic of Pakistan."
On the other hand Professor Saeed Ahmad, Advocate contended that petitioner is engaged in the affairs of Province of Baluchistan through Education Department, therefore, he has a remedy before the Provincial Service Tribunal constituted under the Service Tribunals .Act, 1974.
4. Learned counsel for petitioner frankly conceded that as under the Ordinance of 1983 competent authority have framed service conduct regulations known as "The Model Residential Public School Regulation, 1988", therefore principles of master and servant shall not be applicable in the instant case. As such in view of admission of the petitioner's counsel we are inclined to accept that as there are statutory service and conduct regulations to govern the service affairs of the employees of Baluchistan Residential College, therefore, principle enunciated by Honourable Supreme Court in the judgment of Principle Cadet College Kohat and another Vs. Muhammad Shoab Qureshi, would not be applicable. It may be noted that in this judgment Honourable Supreme Court provided following. Guidelines to decline to entertain a Constitutional petition for the purpose of enforcing the rules, regulations which have got no statutory backing:- "It is, therefore, evident that where the conditions of service of an employee of a statutory body are governed by statutory rules, any action prejudicial taken against him in derogation or in violation of the said rules can be set aside by a writ petition. However, where his terms and conditions are not governed by statutory rules but only by regulations, instructions or directions, which the institution or body in which he is employed, has issued for its internal use, any violation thereof will not, normally be enforced through a writ petition."
5. In view of the above guidelines the question arises whether in presence of statutory rules, regulations and their violation the petitioner can invoke jurisdiction of this Court under Article 199 or he should approach Provincial Service Tribunal for redressal of his grievances. To attend this proposition it would he appropriate to reproduce hereinbelow definition of civil servant as defined in Baluchistan Civil Servants Act, 1974:- "Civil Servant" means a person who is a member of a civil service of the Province of Baluchistan or who holds a civil post in connection with the affairs of the Province, but does not include-
(i) a person who is on deputation to the Province of from the Federation or from any Province or other authority; or
(ii) a person who is employed on contract; or an 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 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923)."
As far as the above definition is concerned it being exhaustive in its nature persuades us to hold that any member of the Civil Service of Provincial Government who is engaged in the affairs of Province, is entitled to claim himself in the civil service of the Province, and if there is any violation of the terms and conditions of his service in view of Article 122 of the Constitution of Islamic Republic of Pakistan, he can invoke the jurisdiction of Provincial Service Tribunal. At this juncture we would like to point out that despite of enquiry from Mr. M.A. Chishti learned counsel for petitioner that what was the status of the petitioner in Provincial Government of in Residential College, Loralai, he reluctantly answered that he was public servant. This answer does not seem to be satisfactory because expression "publicservant" is not known. To civil services laws under which the service of different types of members of the Civil Service is governed. However, such expression is familiarly recognised under Section 21 of PPC which of course is not applicable on the instant case. Obviously this definition is applicable for the limited purpose as it has been prescribed under PPC read with Section 18 of the Ordinance, therefore, the contention of learned counsel to the extent that petitioner is a public servant is not accepted.
6. , Mr. M.A. Chishti learned counsel, however, relied on the judgment of "University of Baluchistan through Registrar Vs. Saeed Muhammad Khan and others" (1986 SCM R 1063). In this case the respondents invoked jurisdiction of Baluchistan Service Tribunal for determination of seniority. The University of Baluchistan raised objection on maintainability of the appeal before the Service Tribunal, but objection was over ruled as such the University of Baluchistan filed appeal before Honourable Supreme Court which accepted holding that respondent is not a civil servant, therefore, he cannot invoke the jurisdiction of Baluchistan Service Tribunal. Honourable Supreme Court while forming the opinion against respondent considered the definition of civil servant reproduced hereinabove coupled with the following facts:-
(I) That such appointments-shall he made in the prescribed manner by the Government of Baluchistan or by a person authorised by it in that behalf;
(2) That every such civil servant shall hold office during pleasure of the Government of Baluchistan;
(3) That the terms and conditions of service of a civil servant shall he as provided in this Act and the rules.
Because respondent was not fulfilling the above conditions therefore, he was not held to he civil servant. With reference to be employees of University of .Baluchistan it was held that its Vice- Chancellor was his appointing authority and none of this authorities acted as delegates of the Baluchistan Government while employing or regulating the terms and conditions of the service of respondent, therefore, he cannot he declared as Civil servant for the purpose of Civil Servants Act and for the reason he was not entitled to seek redress from the Service Tribunal under Section 4 of the Baluchistan Civil Servants Act. In our opinion in view of the definition of Civil Servant reproduced hereinabove the same test has to he applied as it has been observed hereinabove that the affairs of Baluchistan Residential College are controller by a statute known as the "Baluchistan Model Residential Secondary Schools Ordinance, 1983".
7. As per the mandate of Section 2 of the Ordinance the Board of Governors of Schools has been authorised subject to approval of the Government to frame regulations including in respect of employment, tenure of service, terms and conditions of the office and servants appointed by the Board. Admittedly vide appointment letter dated 22.3.1992 petitioner was appointed as Medical Officer in Model Residential Public School, Loralai consequent upon the approval of the Chairman Board of Governors.
8.- It may he seen that in the appointment order, it was categorically mentioned that his services will be governed by the E&D Rules of the Government of Baluchistan and regulations as provided by the Board of Governors Model Residential Public School, Loralai. From perusal of the appointment letter it is clear that appointment of the petitioner was not made by the Government of Baluchistan or by a person authorised by it in that behalf and the petitioner was not supposed to hold office during the pleasure of the Government of Baluchistan. In as much as his terms and conditions of service were not the same which are available to the Civil Servants under the Baluchistan Civil Servants Act and the Rules. Thus, applying the test laid down by Honourable Supreme Court in the case of University of Baluchistan, on the case in hand we are inclined to hold that petitioner is not a civil servant, therefore, in view of the principle laid down in the case of "Principal Kohat Cadet College", for violation if any, the statutory regulation governing his service, can maintain a Constitutional Petition, under Article 199 of the Constitution instead of invoking the jurisdiction of Provincial Service Tribunal.
9. For the foregoing reasons we are inclined to hold that instant petition is maintainable, as such office is directed to fix this case for Regular Hearing on merits for a date in office after two weeks.