JUDGMENT TANVIR BASHIR ANSARI, J,~ This Civil Revision seeks to challenge the concurrent judgments and decrees of the learned District Judge, Bahawalnagar dated 2.10.1988 and that of the learned Civil Judge dated 26.9.1987 by which the suit of respondent No. 1 claiming seniority as against the petitioner was decreed.
2. The facts are that MushtacJ Ahmad/respondent No. 1 filed a suit for declaration that he is senior to the petitioner/defendant on account of his prior appointment as school teacher on 16.9.1952. His claim was denied by the petitioner/defendant on the ground that the petitioner was a civil servant and that as such the Civil Court has no jurisdiction in respect of the terms and conditions of his service. He also contended that as the respondent/plaintiff was granted ]AV scale on 16.8.1957 whereas the petitioner/defendant obtained the said scale earlier on 3.7.1954, the petitioner/defendant would rank senior to the respondent.
3. From the pleadings of the parties, the following issues were framed:- ISSUES:-
(1) Whether this Court lacks jurisdiction to try this suit? OPD (2) Whether the plaintiff has no cause of action? OPD (3) Whether the plaintiff has come to the Court with unclean hands? OPD (4) Whether the defendants are entitled to recover special costs U/S. 35-A, CPC. If so, to what amount? OPD (5)
Whether the plaintiff is senior to defendant? OPP (6) Whether the impugned order dated 27.8.1977 is illegal, void and ineffective qua the rights of the plaintiff for the reasons stated in the plaint? OPP (6-A) Whether the suit is liable to be dismissed under the provisions of Section 11 of the CPC? OPD-3 and 4.
(6-B) Whether the suit is time-barred? OPD-3 and 4.
(6-C) Whether the plaintiff is not entitled to any relief in view of P.O. No. 4 of the written statement filed by defendants Nos, 3 and 4? OPD-3 and 4.
(6-D) Whether the suit is bad for non-joinder of necessary parties? OPD-3 and 4.
(7) Relief.
4. The learned Trial Court after recording evidence found that as the respondent/plaintiff did not belong to the Local Council Service, he was not a civil servant and that the Civil Court had the necessary jurisdiction. Upon issue No. 5, the learned Trial Court relied upon Exh.P 14 amongst other evidence to come to the conclusion that as the respondent/defendant was admittedly appointed on 16.9.1952, he would rank senior to the petitioner/defendant who was inducted into service later on 1.5.1957, Consequent upon the findings on issue No. 5, issues Nos. 2, 3 and 4 were accordingly decided in favour of the respondent/plaintiff. Upon issue No. 6, it was held that the grant of selection grade to the petitioner/defendant from 1.7.1965 was in violation of Exh.PI 4. The impugned order dated 27.8.1977 by virtue of which the petitioner # was granted selection grade i.e.f. 1.7.1985 was declared to be Illegal. After holding issues Nos. 6-A to 6-D also in favour of the respondent/plaintiff, the learned Trial Court decreed his suit on 26.9.1987.
5. Feeling aggrieved, the petitioner preferred an appeal which was dismissed vide judgment and decree dated 2.10.1988 passed by the learned District judge, Bahawalnagar. The learned Appellate Court attended to the question of jurisdiction and found that the employees of Municipal Committee are not civil servants and that the assumption of jurisdiction by the learned Trial Court was correct. Upon merits, it was held that the respondent was inducted into service in 1952 while the petitioner/defendant was recruited as a teacher later. As the date of appointment of the respondent was earlier in time, he was found to be entitled to count seniority over the petitioner.
Regarding the grant of selection grade, the matter was left to the departmental authorities to determine it by itself.
6. In this Civil Revision, the main attack has been made-up on the jurisdiction of the Civil Court to entertain matters relating to the terms and conditions of service of municipal service. Relying upon Exh.D 15, a letter dated 11.12.1971 from the Secretary, Government of Punjab, Finance Department to the Accountant General Punjab, Lahore wherein pensionary benefits under the Civil Services Pension Rules, 1963 and Revised Pension Rules, 1967 were admitted to the employees of the Local Bodies and also relying upon Exh.D 19, a copy of memo, dated 30.1.1960 from the Director of Education Lahore Region, Lahore to the Inspector of Schools, Bahawalpur Division, Bahawalpur where it was contained that all teachers appointed before integration may be treated as Government servants, the learned counsel for the petitioner submitted that as the respondent was a Government servant, the Civil Court has no jurisdiction. He also relied upon the Section 36 of the Bahawalpur State Municipal Act, 1943 to contend that the provisions of the Bahawalpur State Civil Service Regulations relating to salary, leave, pensions, travelling allowances and retirement for the time being in force relating to the conduct of the Government servants shall apply to the municipal employees. The argument is that after the application of the said Rules and Regulations, the respondent/plaintiff has acquired the status of a civil servant, in this connection, learned, counsel for the petitioner relied upon the cases of Govt, of West Pakistan v. Fida Muhammad Khan.(PL1) 1960 SC 45), Govt, of West Pakistan v. Mr Fateh Ullah Khan (PLD 1960 SC 105), Province of West Pakistan v.
Muhammad Akhtar Qureshi and others (PLD 1962 SC 428) and Manzur Ahmad and others v. Ch. Muhammad Ishaq and others (PLD 1964 SC 17) to contend that the terms and conditions admissible immediately before the prescribed datq of integration would continue to apply thereafter.
7. On the other hand, learned Assistant Advocate General Punjab contended that vide Punjab Municipal (West Pakistan Amendment) Act, VIII of 1957 promulgated on 28.2.1957, the Punjab Municipal Act of 1911 was extended to Bahawalnagar, Bahawalpur and Rahimyarkhan alongwith other Districts. More importantly, it was contended that the Bahawalpur "State Municipal Act, 1943 relied upon by the petitioner stood repealed vide Section 4 of the Act VII of 1957. The learned Law Officer further contended that the subsequent promulgation of the Municipal Administration Ordinance, 1960 and Local Government Ordinance, 1979 was consistent with regard to the status of a municipal servant. Reference was made to the West Pakistan Municipal Committee Service Rules, 1969 to state that under Rule 5 thereof, appointments to the various posts in a service shall be made by the authorities specified in this behalf in the West Pakistan Municipal Committees (Business) Rules, 1-960, on the recommendation of the Service Board concerned. Linder Rule 6 ibid, for every Municipal Committee, there shall be a Service Board. Vide Rule 7 ibid, all persons who were in the service of the Municipal Committee immediately before coming into force of the said Rules shail stand absorbed in the service of such Municipal Committee in the class and grade previously held by him. He placed reliance on the case of Dr. Abdul Hafeez v. Chairman, Municipal Corporation, Lahore and others (PLD 1967 Lah. 1251) to argue that the words "holds a civil post in connection with the affairs of a Province" do not include servants of Municipal Committees who have been held not to be civil servants. According to him, the Appointing Authority in respect of the municipal employees is the Municipal Committee itself which may appoint municipal servants in accordance with the Municipal Committee Service Rules. Such an employee is not an employee of Provincial Government as he is neither appointed nor is deemed to hold a civil post in connection with the affairs of the Province.
8. Arguments heard. Record perused.
9. After the repeal of Bahawalpur State Municipal Act, 1943 by Section 4 of the Punjab Municipal (West Pakistan Amendment) Act, 1957, the Act of 1943 is not in the field and no reliance can be placed upon the same by the learned counsel for the petitioner. Further, according to the aforesaid Act of 1957, the Punjab Municipal Act, 1911, which was in force at that time was extended t6 the territories of Bahawalpur, Bahawalnagar and Rahimyarkhan and the municipal servants in all such territories shall be governed by the provisions of the Punjab Municipal Act, 1911, Municipal Administration Ordinance, 1960 and the Local Government Ordinance, 1979. It is only a person belonging to the Local Council Service who is deemed to be a civil servant for the purposes of Service Tribunals Act. Admittedly, the respondent/plaintiff or the petitioner himself do not belong to the Local Council Service and thus, cannot be said to be civil servant.
10. The submission of the learned Law Officer that the appointing authority in respect of a municipal servant is the relevant Municipal Committee itself and that thus, is not a civil servant, has considerable force. A Municipal Committee is constituted under the relevant Municipal Law i.e. Punjab Municipal Act, 1911, Municipal Administration Ordinance, 1960 and Local Government Ordinance, 1979. A Municipal Committee thus, constituted functions as a body corporate having a perpetual succession. In the eye of law, it is an independent and more or less autonomous entity distinct and separate from the Government. It does not function as a department of the Government. Their employees are not appointed by the Provincial Government. 'Reliance placed, upon the cases of Govt, of West Pakistan v. Fida Muhammad Khan (supra), Govt, of West Pakistan v.
Mr. Fateh Ullah Khan (supra), Province of West Pakistan v. ..Muhammad Akhtar Qureshi (supra) and Manzur Ahmad v. Ch. M. Ishaq (supra) by the learned counsel for the petitioner is not apt. In all the for cases cited in this behalf, the cases of only those employees are found relevant who were servants of the Crown immediately before 10.8.1955 under the provisions of the Establishment of West Pakistan Act, 1955. Any person who was not a civil servant before the prescribed period could not obviously claim such a status thereafter. The reliance placed by the learned counsel for the petitioner on Exh.D 15 and Exh.D 19 is also not correct. The criteria to determine the status of a servant as to whether or not he falls within the definition of a civil servant is not met by the production of such-document.
11. As far as it relates to the merits of the cases, suffice it to say that both the learned lower Courts came to a concurrent finding of fact that as the respondent/plaintiff was inducted into service earlier in point of time -as compared to the petitioner, he was entitled to claims seniority as against the petitioner. No mis-reading or non-reading of evidence has been pointed out. There is no legal infirmity in the judgments of the learned lower Courts. The Civil Revision has no merit and is hereby dismissed. The parties to bear their on costs.