MAULVI ANWARUL HAQ, J.-- According to the contents of the writ petition, respondent No. 2 was appointed as a Telephone Operator on 28.5.1995 on temporary basis by the Divisional Engineer (Phones), Mianwali; that this appointment was subject to relaxation of the upper age limit by the competent authority as the said respondent was over age by more than 3 years; that the competent authority did not grant the said relaxation and the services of respondent No. 2 were terminated vide an order dated 12.8.1995 (Annex-A), It is then stated that respondent No. 2 was offered contract appointment which was accepted by him and on the expiry of the said period of contract his services were dispensed with vide an order dated 17.9.1996 (Annex-C); that against the said termination order dated 17.9.1996, respondent No. 2 find a time-barred petition before the Punjab Labour Court at Sargodha which was dismissed as time-barred as well as on merits under Section 2(A) of the Service Tribunal Act, 1973 (Annex-E). The appeal find by respondent No. 2 was allowed by respondent No. 1 vide an order dated 11.5.2000 (Annex-F).
2. The learned counsel for the petitioner contend that the learned respondent No. 1 has acted without lawful authority inasmuch as respondent No. 2 was a civil servant within the meaning of Section 2(A) of the Service Tribunals Act, 1973 and respondent No. 1 had no jurisdiction to hear the appeal or to allow the same. Reliance is placed on PLD 2001 SC 555 (Sui Northern Gas Company Ltd. v. Engr. Naraindas and others), 2000 SCMR 826 (Zahir Ullah and 13 others v. Chairman WAPDA, Lahore and others) as also the case of Syed Aftab Ahmed and others v. K.E.S.C, and others (1999 SCMR 197). Reliance is also placed on the case of G.M. National Bank of Pakistan and others v. Abdul Aziz and others (PLD 2002 SC 346) + (2002 PSC (Cl) 95). The learned counsel for the respondent No. 2, on the other hand, refers to the case of Divisional Engineer Phones, Phones Division, Sukkur and others v. Muhammad Shahid and others (1999 SCMR 1526) as also a judgment of this Court in the case of General Manager, Optical Fibre System Telecomm. Company Ltd., PTC Headquarters, Islamabad and 2 others v. Abdul Rasheed Khan, Member NTRC, Islamabad and another (2000 PLC (C.S.) 180) to urge that respondent No. 2 does not fall within the mischief of the said provision of law.
3. I have gone through the copes of the records appended with this writ petition, with the assistance of the learned counsel for the parties. I find that in petition find by respondent No. 2 before the Punjab Labour Court No. 5, Sargodha it was stated that he was called for test and interview by the petitioners vide an order dated 9.10.1994 and the proceedings were conducted on 15.10.1994 by a Selection Committee comprising 3 officers and he was declared fit to be appointed as Telephone Operator. The orders were issued on 4.12.1994. The case for relaxation of age limit was sent on the recommendation of the Divisional Engineer to the Director who further recommended the case to the General Manager, Faisalabad, It was alleged that the relaxation was granted and it was thereafter that the respondent No. 2 was called upon to resume duties vide an order dated 28.5.1995. It was further stated that the post was of a permanent nature and is still in existence. The grievance made out was that vide an order dated 17.8.1995 the services were terminated 14 days thereafter respondent No. 2 was appointed as a contract employee vide an order dated 31.8.1995 against the same post. The order dated 17.8.1995 was challenged as being illegal and mala fide.
The subsequent termination order dated 17.9.1996 was also challenged on the same grounds with reference to the illegality of the order dated 17.8.1995. A copy of the written statement has not been find. However, from the order of the Labour Court (Annex-E), it appears that the plea taken by the petitioners was that the Pakistan Telecommunication Corporation (PTCL) is owned by the Federal Government and by virtue of Section 2(A) of the Service Tribunals Act, 1973 the Court has no jurisdiction; that respondent No. 2 was a temporary employee subject to relaxation in upper age limit and since the said relaxation was not granted the services were terminated. Acceptance by the respondent No. 2 of the contract appointment was pleaded as estoppal. The evidence was recorded. The Labour Court proceeded to hold that since the relaxation in the upper age limit was not granted the termination order cannot be said to be illegal. The petition was dismissed vide an order dated 17.8.1998. The learned respondent No. 1 proceeded to hold with reference to the case file that respondent No. 2 was appointed against a permanent post and as such could not be summarily dismissed without being afforded an opportunity of hearing. The learned respondent No. 1 particularly took note of the contents of the termination order Annex-A, to hold that no reason was stated therein and certainly it was not stated that the termination is a result of non-relaxation of upper age limit. With reference to evidence on record, the learned Tribunal found that a similar employee, namely, Niaz was given the said relaxation in the age limit. The learned respondent No. 1 failed to see any justification in the act of refusal of relaxation of upper age limit when the respondent No. 2 was similarly placed. The objection based on the said Section 2(A) was met with the reasoning that according to a witness produced by the petitioners the Corporation stood privatized and as such the case did not fall within the ambit of the said provision of law. The appeal was accordingly allowed on 11.5.2000.
4. Coming to the contentions of the learned counsel for the parties. I find that the cases relied upon by the learned counsel for the petitioners pertain to Sui Southern Gas Company Ltd., WAPDA, K.E.S.C, and N.B.P., respectively. Now the judgment being relied upon by the respondent No. 2 pertains to the petitioners Department itself, It is rather interesting to note that in the said case the services of the employees of the petitioners (Telephone Operators like the respondent No. 2) were terminated.
They agitated the departmental remedies and then proceeded to file the appeal before the Federal Service Tribunals. The petitioners Corporation in its term proceeded to raise objection to the jurisdiction of the learned Tribunal. The objection was over ruled and it was held that the Tribunal has the jurisdiction to hear and decide the appeals, It was the petitioners Corporation which went in appeal before the Honourable Supreme Court of Pakistan with a plea that notwithstanding the introduction of Section 2(A) in the Service Tribunals Act, 1974 the said employees are not civil servants. The plea was accepted and the appeal was allowed. I may reproduce here the following experts from the leading opinion of Mr. Justice Saeed-uz-Zaman Siddiqui (As his Lordship then was) at page 1221 of the report:- "The respondents in the above appeals belong to the category of the persons who has been declared as 'civil servant' under Section 2-A of Service Tribunals Act, 1973, for the purposes of availing the remedy before the Service Tribunal. Such persons in the absence of a corresponding amendment in the Civil Servants Act, 1973, cannot automatically become a 'Civil Servant' within the meanings of Civil Servants Act, 1973. It was nobody's case nor it is contended before us by the learned counsel for the respondents, that the respondents service with P.T.C.L, was regulated or governed in accordance with the provisions of Civil Servants Act, 1973. The above cases, it is admitted before us related to the period before introduction of Section 2-A in the Service Tribunals Act in 1997. It is, therefore, quite obvious that if a person was not civil servant within the meanings of Civil Servants Act, he could not avail of the remedy provided under the Service Tribunals Act. The contention of the learned counsel for the appellants that the fact that the employees of organization, authority or corporation 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, has been declared to be in the service of Pakistan and a civil servant by the amendment in Service Tribunals Act, in the year 1 997, goes to show that the status of a person employed in such organization, body, corporation or authority were not treated as that of a Civil Servant before that amendment is not without force. However, this does not apply to those persons who were already enjoying status of civil servant before creation of P.T.C.L, under Ordinance of 1990 and Act of 1991 and their services were transferred to the Corporation. There is a clear provision in Section 9 of Ordinance of 1990 and Act of 1991 that the transfer of employees to the Corporation will be deemed to be on the same terms and in view of the law declared by this Court, their status as civil servant could not be affected. Therefore, apart from the category of persons who were already civil servants and transferred to the Corporation upon coming into being of the Corporation, all other employees who were appointed by the Corporation after the date of its inception shall be deemed to be employes of the Corporation and, therefore, their services will be governed in accordance with the terms and conditions of their appointment."
5. This Court followed the said judgment in the case of General Manager, Optical Fibre System Telecom Company Ltd., PTCL, Headquarters, Islamabad and 2 others v. Abdul Rasheed Khan, Member, NIRC, Islamabad and another (2000 PLC (C.S.) 180). I may state here that in this latter case proceedings before N.I.R.C, were being questioned with reference to the said provision of law.
I, therefore, do hold that the respondent No. 2 is not a civil servant having been employed by the Corporation itself after its inception. The writ is dismissed, leaving the parties to bear their own costs.