' Instant writ petition has been filed by the Head Clerks and Upper Division Clerks of Pakistan Railway for declaring Notice No,757-E/ Clerical/ACME, dated 26-4-1997 issued by Divisional Personnel Officer, Pakistan, Railway, (respondent No,3), to be illegal, ultra vires, colourable exercise of power, arbitrary, mala fide and violative of fundamental rights of the petitioners:
2. Similarly, W.P. No,1303 of 1997 has been filed by Junior/Senior Electrical Chargemen, whereby they have challenged the notices No,757-E/68/ADV/ACME, dated 5-5-1997, and No,757-E/68/ADV/ ACME, dated 31-5-1997 to be illegal, void and without lawful authority.
3. As both these writ petitions pertain to the same question of law, so these are being disposed of by this single order.
4. Comments of the respondents have been called and brought on record.
5. Arguments have been heard on the point if the petitioners are civil servants within the meaning of section 2-A, of the Civil Servants Act, 1973 or they fall within the purview of section 2-A, of the Service Tribunals Act, 1973 or they are workmen under the Factories Act, 1934.
6. So far as W.P. No,114 of 1997 is concerned, all the petitioners are either lower division clerks or upper division clerks working with Pakistan Railways, Rawalpindi. They being civil servants, as defined in section 2 of the Civil Servants Act, 1973, their case squarely falls within the ambit of section 2-A, of the Service Tribunals Act, 1973 and as such, the instant writ petition 'is not maintainable and the only recourse available to them is to approach the Federal Service Tribunal , for the redressal of their grievance.
7. So far as W.P. No,1303 of 1997 is concerned, it has been vehemently argued by the learned counsel for the petitioners that their case neither falls within the ambit of section 2 of Civil Servants Act, 1973 nor under section 2-A, of the Service Tribunals Act, 1973 and they are workmen under the Factories Act, 1934, as such the instant writ petition is maintainable.
8. In order to appreciate the arguments of the learned counsel for the petitioners, a reference to the definition of Civil Servant is imperative, which has been defined in section 2(b) of Civil Servants Act, 1973 and which reads as follows:--
(2) Definitions.--(1) In this Act, unless there is anything repugnant in the subject or context.--
(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 concerned with defence, but does not include;
(i) 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 "worker" or "workman"as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VII of 1923)".
' Similarly, a "Civil Servant" has also been defined in the Service Tribunals Act, 1973 which after amendment introduced vide Act XVII of 1997, dated 10-6-1997 reads as follows:-- "Section. 2-A. Service under certain corporations, etc. To be service of Pakistan.---Service under any authority, corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is hereby declared to be service of Pakistan and every person holding a post under such authority, corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
9. Contention of the learned counsel is that certain categories of persons have been excluded from the ambit of definition of "civil servant", which have been enumerated in sub-clauses (i), (ii) and
(iii) of section 2(b) of Civil Servants Act, 1973 and the said class of persons has not been included even in the definition of section 2-A, added by Service Tribunals (Amendment) Act, (XVII) of 1997, which became effective from 10-6-1997. His contention is that by inserting section 2-A, to the Service Tribunals Act, 1973, the category of persons excluded in the definition of civil servant given in section 2(b) of Civil Servants Act, 1973, still remain intact. He thus, submits that this being the factually position, the writ petition of the petitioners is maintainable.
10. Conversely, the stand of learned counsel for the respondents is that there is no doubt that certain categories of person have been excluded from the ambit of definition of civil servant as it appears from section 2(b) of Civil Servants Act, 1973. However, with the insertion of section 2-A added by Service Tribunals (Amendment) Act (XVII of 1997), the said exclusion stands evaporated.
He submits that a plain reading of section 2-A of the Service Tribunals. Act clearly shows that every person holding a post under such authority, corporation, body of organization established by or under a Federal Law has become a civil servant for the purposes of this Act (Service Tribunals Act, 1973). Accordingly, the petitioners being employees of Pakistan Railway, are civil servants, as defined in section 2-A of the Service Tribunal Act, 1973. As such they have the only recourse to get their grievance redressed from the Service Tribunal and the writ petition is not maintainable.
11. The only point which requires determination in both these writ petition is, if the petitioners are civil servants, as defined in section 2 (b) of Civil Servants Act, 1973, and if their case falls within the purview of section 2-A, of the Service Tribunals Act, 1973. The definition of civil servant has been given above and similarly section 2-A added by Service Tribunals (Amendment) Act (XVII of 1997) has been reproduced above. A perusal of section 2(b) of Civil Servants Act, 1973 clearly shows that three different categories enumerated in sub-clauses (i)(ii) and (iii) of section 2(b) have been excluded from the purview/definition of civil servant. However, the said exclusion from the ambit of definition of civil servant has been dispensed with in section 2-A, added to the Service Tribunals Act, 1973, as is depicted in the following paragraph.
12. A Perusal of section 2-A clearly shows that it relates to four categories of persons who are the employees of (1) authority (2) corporation (3) body or organization established by or under the Federal Law or which is owned or controlled by the Federal Government (4) or in which the Federal Government has a controlling share of interest. Besides these four categories, section 2-A of the Service Tribunals Act, 1973 further lays down and includes every person holding a post under such authority, corporation, body or organization to be a civil servant for the purposes of this Act. The words "every person" are very important, as by inserting these words employees of four categories mentioned above of whatever status have been included and declared to be civil servants for the purpose of this Act. Admittedly, the petitioners are Junior/Senior clerks and Electrical Chargemen employed in the Pakistan Railways. There is no cavil to this proposition that Pakistan Railways is an organization .Which is controlled by the Federal Government. Thus, .By no stretch of imagination, it can be said that the petitioners stand excluded from the purview of section 2-A added by Service Tribunals (Amendment) Act (XVII of 1997).
13. Since the petitioners have been adjudged to be civil servants, so jurisdiction of the Court stands barred under Article 212. Of the Constitution of Islamic Republic of Pakistan, 1973 even if the orders are considered to be mala fide, as held in Khalid Mahmood Watto v. Government of Punjab and others (1998 SCM R 2280).
14. In the light of facts stated above, it is clear that both the writ petitions are not maintainable.
Accordingly, these are disposed of and petitioners are directed to approach the appropriate Service Tribunal for the redressal of their grievance.