FEDERATION OF PAKISTAN Versus ALI ASGHAR KHAN

1. SHAFIUR RAHMAN, J .‑‑Leave to appeal was granted to the Federation of Pakistan under Article 212(3) of the Constitution, to, examine whether prior to his dismissal from service on 22‑11‑1981 the respondent had not ceased to be a civil servant from 11‑5‑1981 and on that account the Service Tribunal had no jurisdiction to entertain his appeal.

2. The respondent, Ali Asghar Khan, joined the service of the Family Planning Board on the 17th of June, 1965 as a Family Planning Officer w.e.f. 3‑7‑1965, On the dissolution of the Province of the West Pakistan, he became an employee of the Family Planning Board of the Province of Punjab. The Family Planning Board was abolished by the Governor of the Punjab by a notification dated 2‑4‑1977. Simultaneously, with the abolition of this, the Government of Pakistan in the Ministry of Health and Population Planning, issued an appointment letter dated 22nd of July, 1977 It is reproduced in extenso as hereunder:‑

3. "Subject: Appointment under Population Planning Division.

4. Consequent on the abolition, with effect from the afternoon of 30th April, 1977, of the Population Planning Council and all the posts sanctioned under it from time to time, you are appointed in Grade 18 in the Revised National Pay Scale under the Population. Planning Division, Government of Pakistan, with effect from the afternoon of 30th April, 1977.

2. You must communicate your acceptance in the proforma attached. If you do not communicate your acceptance of this appointment within a period of seven days of communication of this order, it will be presumed that the appointment is not acceptable to you.

3. The service rendered by you under the former Population Planning Council will be taken into account for purposes of fixation of pay and grant of leave.

4. This appointment is made on temporary basis and is subject to such changes as may become necessary and are effected as a result of the new structure and organization which the Government may sanction for the Population Planning Programme.

5. You will be subject to the rules and regulations applicable to temporary Government employees."

5. In the year 1981, Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (No.XIV) of 1981, (hereinafter referred to as the Ordinance) came to be enforced. As was required by section 4 of the Ordinance, the case of all such employees was required to be referred to the. Federal Public Service Commission for their regular absorption and appointment. Before that happened, the respondent was suspended on 6‑10‑1980. A charge‑sheet with statement of allegations was issued to him. A departmental inquiry was held into his conduct and he was dismissed from service on 22‑11‑1981. When a reference was made to the Federal Public Service Commission under the Ordinance, he was not recommended for appointment as a civil servant. This happened on 26‑8‑1981. The respondent challenged before the Service Tribunal the dismissal from service as also the refusal of the Government to appoint him in service on the recommendation of the Public Service Commission.

6. The grounds on which the action of the appellants was challenged, in the very words of the respondent as appearing in the written statement filed in this Court, were as follows:‑

7. "(i) The respondent is not covered by provisions of the Ordinance in any way because he was already a civil servant and fully covered by the Civil Servants Act, 1973 (LXXI of 1973). He was accordingly proceeded against under the Government Servants (Efficiency & Discipline) Rules, 1973. The Ordinance, 1981 is applicable to those employees who were originally appointed by the Council or Provincial Boards on or after 30‑4‑1977 because their appointments suffered from a taint and they were not in any way Civil Servants.

8. "(ii) Respondent was accordingly appointed as a Civil Servant alongwith others by letter dated 02‑7‑1977 issued by Government of Pakistan. The respondent enjoyed the status of a Civil Servant till his dismissal from service on 22‑11‑1981. His reference before the FPSC was a futile exercise and was a result of grave maladministration on the part of concerned agencies including the FPSC."

9. As regards his dismissal order, before the Tribunal he had taken up the ground that the charge‑sheet mentioned no penalty which was to be imposed and a copy of the inquiry report was not supplied to him and that the show‑cause notice in terms required under the law, was not given to him.

10. The respondent has also requested before us that as he is not in a position to defend his legal rights, he has prayed by an application dated 18‑2‑1988 that one of his colleagues Syed Ghulam Raza may be allowed to appear before the Court and defend his case as his Attorney. Syed Ghulam Raza, who appeared and argued on behalf of the respondent was appellant in a different appeal before us (C.P.S.L.A. No.646 of 1983) and followed by a Review Petition (C .R .P. No.27‑R of 1984) which was twice heard and decided on 9th March, 1986 and 28th of June, 1986.

11. The Service Tribunal upheld the claim of the respondent to be a civil servant on the basis of its own decision in Riaz Ahmad Baig v. Secretary, Population Division reported as 1983 P L C (C.S.) 536. The Tribunal held that the suspension of the respondent had not been legally approved and ordered after 5‑1‑1981 and further that the defect in the charge‑sheet and absence of show‑cause notice vitiated the departmental order of his dismissal. The Tribunal, therefore, ordered that the respondent will be deemed to be reinstated in service on 6‑1‑1981 and that he shall be paid his full pay and allowances prior to the notification of his dismissal.

12. The appellant in this case wants us to follow the law laid down by the five judges in the case of Federation of Pakistan v. Riaz Ahmad Baig (1984 S C M R 759) and hold that the appeal before the Tribunal was itself incompetent. On merits it is contended that if the respondent is not found to be governed by Civil Servants Act and the rules framed thereunder, then the protection sought for by him namely, the disclosure of the penalty, the copy of the inquiry report and the extension of the suspension by competent authority will all disappear and he will be entitled to only what the principles of natural justice demand, namely, the disclosure of allegations to him and an opportunity to show cause against it. The first suspension order having been passed by a competent authority without any limit of time, will continue to hold the field, the rules framed being not attracted stricto senso.

13. The question, whether the Ordinance had the effect of alterin the status of employees like the respondent, was considered by this Court in the case of Riaz Ahmed Baig. This was the question specifically raised in that case. The Ordinance also made a provision on this subject in section 4 that notwithstanding anything contained in the Federal Public Service Commission Ordinance, 1977 and the rules framed thereunder or the Civil Servants Act, 1973 and the rules made thereunder, reference was to be made to the Federal Public Service Commission and further that it is only when recommendations were received from the Commission in conformity with section 4 that the employees appointed under subsection (1) of section 3 shall be deemed to be the Civil Servants within the meaning of Civil Servants Act. That decision of the Court holds the field and applies to the case of the respondent and he will not be taken to be a civil servant because he was not appointed in terms of section 3(1) of the Ordinance. An effort has been made to draw strength from the decision of the Service Tribunal in the case of Mian Muhammad Shafa v. Secretary, Population Division, Islamabad and 2 others (1986 P L C (C.S.) 1) Examining our judgment, in Riaz Ahmad's case, the Tribunal held as follows: ‑

14. "The above observation made in the judgment in our view, is to the effect that the employees of the Population Planning Programme before clearance from the Federal Public Service Commission were temporary employees, and as such, temporary civil servants, and their services could be regularised by such law and rules which may be made henceforth. This Tribunal has jurisdiction in respect of civil servants whether ad hoc, temporary or regular. The appellant, in our opinion, before clearance from the Commission was a temporary or ad hoc civil servant and he could become a regular civil servant under the 1981 Ordinance only if he got clearance from the Commission thereunder. Since our jurisdiction, as already observed, extends to ad hoc and temporary civil servants as well, we have every jurisdiction to entertain this appeal."

15. The case set up by the respondent before the Service Tribunal as well as before us that he was a civil servant even before his services were governmentalised at the Federal level by the appointment letter dated 2‑7‑1977. The letter had not the effect of making him a civil servant but .of making him a Federal Government civil servant as against his being earlier in provincial government civil servant. It is futile, therefore, according to him, to contend that this letter had the effect of making him a civil servant. The second ground taken up by the respondent which it appears was not taken up at any earlier stage, in such proceedings, is that para. No.4 of the appointment letter caters for a situation already contained in section 12‑A of the Civil Servants Act of 1973 and for that, strength is drawn from another appeal in respect of a colleague of the respondent namely, Civil Appeal No.712 of 1984, in which such an action was taken against the employee covered by this letter notwithstanding the fact that there were the provisions of the Ordinance effectively covering such employees. The third ground and the fourth are all those which have been considered by this Court in the case of Riaz Ahmed Baig, namely, that the Ordinance does not deal with the respondent or the officers of his category but was intended to cover only a restricted class of officers and functionaries who had been appointed by the Board and the Council during the interregnum. Further, that the references to the Public Service Commission were not required in his case and the action could not be taken under the Ordinance to terminate his employment. Independently of these, it is contended that the respondent was proceeded against departmentally, and his continued suspension as well as the dismissal order was for the reasons demonstrated before the Service Tribunal and incorporated in its judgment, untenable. Finally, the respondent has lied heavily on the latest judgment of the Service Tribunal in the Muhammad Shafa, the relevant portion of which has reproduced.

16. The contents of the letter dated 2_ 7‑1977 have been considered by this Court alongwith the provisions of the Ordinance and it has been held that their induction into the temporary service was on terms and conditions one of which was that it was subject to such changes as may become necessary and are effected as a result of the new structure and organization which the Government may sanction for the Population Planning Programme. The restructuring and the re‑organization and the appointment of persons in the Population Planning Programme thereafter followed under the Ordinance. The Tribunal's view in the case of Muhammad Shafa that the persons of the category of respondent were temporary employees before this Ordinance was correct but not so that they continued to be civil servants even after the promulgation of the Ordinance. What the Tribunal has concluded could have been the result if the non‑obstante clause contained in section 4 and the deeming clause contained in section 3 subsection (2) of the Ordinance were not there. In view o these two express provisions of the most pre‑emptory nature coupled with reservation contained in the appointment letter it is established beyond any measure of doubt that after the coming into force of the Ordinance only those appointed under section 3(1) of the Ordinance could be deemed to be civil servants and the others notwithstanding the fact that they had been the civil servants earlier were relegated to the position of the employees of the Federal Government not falling in the category of civil servants or ceasing to be civil servants as such. It is clear that such employees could not strictly speaking stave recourse to the Tribunal for getting their rights in service established. As regards the contention that para.4 of the appointment letter refers to a situation covered by the Act, namely section 12‑A, it has to be noticed that in the first place para. 4 does not so limit itself, secondly, the provisions of law are not required to be incorporated in letters of appointment because they hold the field and apply to a situation not on account of such incorporation but independently of it.

17. Coming to the departmental proceedings and the order of dismissal if the situation that emerges is that the respondent had' ceased to be a civil servant after the promulgation of the Ordinance and the rules with regard to discipline and efficiency were applicable to him not on the strength of the statute but by reference only then its observations in all its detail could not be claimed by the respondent. What he could claim as an employee of the Government not being a civil servant was that principles of natural justice should have been observed in dealing with him. As the order of dismissal has a stigma attached to it, the action taken against the respondent has to be treated as a penal order. He was disclosed the grounds on which such action was to be taken. He was provided with an opportunity of showing cause against the charges levelled against him. An inquiry was held into his conduct on the charges. It was thereafter that the dismissal order was passed. All this shows that the requirements of natural justice were fully observed, though the rules applicable to the civil servants as such may not have been meticulously observed, he having ceased to be a civil servant. Similarly, as regards the suspension, the order of suspension was without limit of time. A limit is sought to be imposed on the strength of certain circulars which govern the suspension of civil servants and not strictly so of employees who have ceased to be civil servants. The relief against suspension would also be for the same reasons not available.

18. The respondent and his attorney have referred to a number of decisions and orders, in order to bring out the fact that the, dealing of the Government with regard to the officers of his category" has not been consistent, that the Tribunal has at times entertained the grievances and this Court has declined to grant leave to appeal against the decisions of the Federal Service Tribunal, thereby according to him approving a jurisdiction which according to judgment of this Court in Riaz Ahmed Baig's case was not possessed by the Tribunal. Similarly, it has been contended that when the employees approached the High Courts they were told that the relief lay before the Tribunal and their Writ Petitions were held incompetent on that account. No doubt from the large number of documents that have been placed on record, there are grounds for the respondent to form that opinion. At the same time, it has to be noticed that reorganization and re structuring of a large department, previously provincial in character, was being taken at the federal level. Special laws have been framed containing compulsory and pre‑emptory provisions governing the situation. The employees themselves had been engaged over a long period organizing resistance, and desisting from appearing in the examination held under the Ordinance. It was in this background that a number of them went to various forums seeking relief and all the judgments and orders do not appear to be consistent inter se. All the same, in interpreting and applying law, this Court will certainly consider the views taken by other Courts and authorities but it will not be bound by their conclusions.

19. In the circumstances, this appeal is allowed, the judgment of the Service Tribunal is set aside as being without jurisdiction and of no legal effect. The appeal filed by the respondent before the Tribunal, shall on that account stand dismissed. No order as to costs.

20. M.B.A./F44/S Appeal allowed.