' Through this Constitutional petition, the petitioner has prayed for setting aside of order dated 4-4- 1997 of respondent No.2, whereby the seniority of respondent No.3 has [been changed permanently from serial number 156 of the seniority list to serial number 8-A and the same may be declared unlawful and of no legal effect. It is further prayed that promotion order dated 22-4-1997 whereby respondent No.3 has been promoted to post of Ticket Collector, Grade-II may also be declared illegal and of no legal effect.
2. Brief facts of the case are that the petitioner was appointed as TCR (Ticket Collector Railway) on ad hoc basis on 6-7-1986. Thereafter, the Selection Board confirmed him to the said post after he passed the examination for the appointment. The petitioner qualified T-7(b) course from Walton Training School, Lahore in jSeptember, 1987 and Notification to that effect was issued by Pakistan Railway in February, 1988 and the petitioner was promoted to TCR Grade-II on 2-12-1993. On the other hand, respondent No.3 was appointed as Lower Division Clerk in Pakistan Railway vide appointment Letter No.220-E/344-A/P-I dated 17-12-1979 on ad hoc basis. However, he was confirmed as Lower Division Clerk in 1988. Respondent No.3 had been working in Electrical Engineering Department of Pakistan Railways as Lower Division Clerk (LDC), when on 28-2-1989 he was relieved from his Branch and was directed to report to the Station Superintendent, Lahore for practical training in the cadres of TCR vide Letter No.402-W/3-III(WE) dated 28-2-1989. Later on designation of respondent No.3 was changed to TCR vide order dated 15-8-1989. He was asked to complete training and qualify T-7(B) course from Walton Training School, Lahore and he qualified the said course and he was posted on R/List (Relieving List) temporarily by respondent No.2 vide Order No.941-E/l 10- (P.I) and the name of respondent No.3 appeared at serial No.4 of the said letter amongst junior most TCRs in June, 1994. Seniority list of TCRs was issued by respondent No.l. In the month of August, 1996 respondent No.2 vide notice Letter No.724-E/4/2343-ACM, required all the staff mentioned in serial Nos.9 to 155 of the seniority list to show cause as to why respondent No.3 may not be placed at serial number 8-A of the Seniority List. Joint reply to above mentioned show-cause notice was filed. Vide order dated 4-4-1997 the objections raised by the petitioner and others were rejected and respondent No.3 was placed at serial No.8-A of the seniority, list. Thereafter respondent No.3 was promoted as TCR Grade-II vide order dated 22-4-1997 and his name was placed for approval for promotion in Grade-Ill vide order dated 28-5-1997. Hence this Constitutional petition.
3. The learned counsel for petitioner contends that Section VI of the Pakistan Railways Personnel Manual, provides Seniority Rules and according to rule 601(i) the seniority of staff in initial appointment made as a result of Selection Boards was to be reckoned according to order of merit assigned to them by the Selection Board. The learned counsel further contends that under rule 601(ii) the relative seniority of men in a grade or class shall be reckoned from the date each was confirmed in the grade or class. It is contended that respondent No,3 was appointed as LDC in 1979 and was confirmed in that class/grade by the Selection Board in 1988 and the ad hoc period of service of respondent No,3 and his confirmation in that class in 1988 is of no avail to him towards calculation of seniority in the grade/class of. TCR in view of above cited rules. It is further contended that rule 601(5)(a) of the said Manual is of vital importance as it provides that when a transfer/change of designation or category is made at the request of railway servant, it is open to him to accept or refuse such transfer, he shall count his seniority in the new post from the date of his transfer to that post irrespective of rate of pay drawn by him. It is further submitted that respondent No,3 had been working in Electrical Engineering Department as Lower Division Clerk
(LDC) till 28-2-1989 when for the first time -he was relieved for practical training in the cadre of TCR. His designation was changed to TCR on his own request on 15-8-1989, therefore, period of his service as LDC cannot be counted towards seniority in the grade/class of TCR from the date of change of designation i,e, 15-8-1989. It is further contended that respondent No,3 was supposed to pass Course T-7(B) from the Walton Training School and qualifying T-7(B) course is another factor which effects seniority and respondent No,3 qualified this course in April, 1991 while the petitioner qualified T-7(B) in 1987, therefore, the petitioner is senior to respondent No,3. It is further contended that the change in seniority list has adversely affected the petitioner and deprived him from his further promotion in next grade.
4. The learned counsel appearing on behalf of Railway Department has contended that the petitioner was TCR and is a civil servant thus due to bar contained in Article 212 of the Constitution, this petition is not maintainable. It is further contended that the decision of Ombudsman has been implemented where respondent No,3 had filed petition and it was directed that respondent No,3 be granted seniority from the date he was appointed as LDC.
5. Respondent No,3 was served in person, but he did not enter appearance, hence he is proceeded ex parte.
6. In reply to this question regarding maintainability of writ petition, the learned counsel for petitioner has relied upon judgment reported in case Mst. Nargis Nazir v. Divisional Superintendent, Pakistan Railways Multan (1992 PLC 58), in which Special Ticket Examiner of Railway was declared as workman within the meaning of Workmen's Compensation Act, 1923 and not a civil servant within the meaning of Civil Servants Act. It is further contended that the petitioner could not approach Labour Court due to MOD and has no remedy except to invoke the Constitutional jurisdiction of this Court by filing this petition.
7. I have heard the arguments of the learned counsel for parties and perused the documents attached with these writ petitions. The first pivotal question, which requires to be decided before making decision on merit is that whether section 2-A of the Service Tribunals Act is applicable to the petitioners or not and that whether after induction of section 2-A in 1999 all the employees including work charge employees or employees on contract basis are civil servant and can approach to the Service Tribunal in the matters relating to the terms and conditions of their service.
Preliminary objection raised by the learned counsel for respondents is that the petitioners were employees on temporary basis and they can approach to the Service Tribunal for redressal of their grievance. I have considered the arguments of the learned counsel for parties. The consistent view taken by the Supreme Court of Pakistan after induction of section 2-A in Service Tribunals Act is that all the employees working on contract or on workcharge basis and temporary employees are civil servants for the limited purpose to approach the Service Tribunal for redressal of their grievance. I am fortified by the view taken by august Supreme Court in Zaheer Ullah and 13 others v.
Chairman WAPDA, Lahore (2000 SCMR 826), wherein it has been decided that section 2-A which was inserted in the Service Tribunals Act, 1973, by its own force, created a class of Government Servants by fiction, for the purpose of allowing them to avail remedy of appeal before the Service Tribunal. Section 2-A while providing that the service under any authority, corporation, body or organization established by or under the Federal Law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlli g share of interest is declared to be the service of Pakistan and every person holding a post under such corporation or organization shall be deemed to be a civil servant for the purpose of Service Tribunals Act does not make any differentiation between the employees working in such organization either as regular employees or contract employees or workman. Employees though not falling in the definition given in section 2(b) of Civil Servants Act, 1973, were covered by the provisions of section 2-A for the purpose of availing remedy before the Service Tribunal. The fact that persons were employed in the organization/corporation on contract basis, could not disentitle them to the remedy of appeal which became available to them on account of incorporation of section 2-A in the Service Tirbunals Act, 1973.
8. Hon'ble Supreme Court of Pakistan in case G.M. National Bank of Pakistan and others v. Abdul Aziz and others (2002 PLC (C.S.) 18) has gone to the extent that if the petition, appeal or writ petition before the High Court, were pending relating to the matter of employees before induction of section 2-A in the Service Tribunals Act, the aggrieved party can approach to the Service Tribunal without any discrimination whether the party was civil servant or employer. Therefore, section 6 of the Service Tribunals Act, 1973 would override section 4 of the Service Tribunal Act, 1973 and being a special remedy created as a consequence of abatement of proceedings, the appeal should have been entertained by the Service Tribunal. In this case Supreme Court of Pakistan has held that if the matter was decided by the Labour Court and the appeal was pending before Labour Appellate Tribunal, by insertion of section 2-A in the Service Tribunals Act, 1973 the appeal before Labour Appellate Tribunal had abated and tee matter was taken to Service Tribunal. The appeal before the Tribunal was dismissed for lack of jurisdiction on the ground that the appeal before the Tribunal would be an appeal against judgment of Labour Court. It was held that effect of section 2-A of the Service Tribunals Act, 1973 stood abated. It is further held Service Tribunal alone had the exclusive jurisdiction to examine the grievance of such persons. This judgment is complete answer to the arguments of the learned counsel for petitioner that even after induction of section 2-A in the Service Tribunals Act still he is excluded from the definition of civil servant given in section 4(1-B) and the case falls in exception as he is a worker. In the said judgment Supreme Court has held that even the workers who had filed petition before the Labour Court which was. Decided and the appeal pending before Labour Appellate Tribunal was abated as the persons who are workers are covered by section 2-A (ibid) and shall have only remedy before the Service Tribunal. In such circumstances, the arguments of the learned counsel for petitioner that the petitioner was exempted is not tenable and has not been accepted by the Supreme Court of Pakistan in the above referred case.
9. Similar view was taken in Syed Aftab Ahmad and others v. K.E.S.C. And others (1999 SCMR 197) at page 200 B and C and it was held that under section 2-A of the Service Tribunals Act all the employees can go to the Service Tribunal relating to the matter of terms and conditions of service.
Needless to add that the Hon'ble Supreme Court in Malik Mumtaz Ahmad and others v. Federal Service Tribunal (2000 SCMR 832) has held that section 2-A is applicable with retrospective effect.
10. In view of what has been discussed above, this writ petition is not maintainable and is dismissed. However, before parting with this judgment, I direct the respondents to decide the application of petitioner within 60 days, if tiled before them within seven days from receipt of copy of this judgment, which will enable him to seek his remedy before relevant forum.