FEDERATION OF PAKISTAN Versus MUHAMMAD AZAM JAVAID

1. SHAFIUR RAHMAN, J.‑‑ One hundred sixteen Civil Appeals and one Civil Petition for Leave to Appeal, all involving ex‑personnel of defunct Federal Security Force, have come up for disposal as they all raise common questions of law.

2. The Federal Security Force was established by Act XL of 1973. By its section 3 the Federal Government was to "constitute and maintain a force to be called Federal Security Force". By section 8 "The superintendence of and command and control over the Force" was to "vest in the Federal Government". By section 10, "the officers and members of the Force" were "entitled to all the privileges which a member of the police force constituted under the Police Act (V of 1861) has under sections 42 and 43 of that Act, section 125 of the Evidence Act (I of 1872) and any other ejectment for the time being in force". The respondents in 114 appeals filed by Federation, one other appellant and a petitioner, in all 116 employees involved in these matters, all belonged to the Federal Security Force and held various ranks.

3. On the 30th November, 1977, was promulgated the Federal Security Force (Repeal) Ordinance (XLIV of 1977) which is reproduced hereunder‑

(1) Short title and commencement.‑‑(1) This Ordinance may be called the Federal Security Force (Repeal) Ordinance, 1977.

(2) It shall come into force on the first day of December, 1977.

(2) Repeal of Act (XL of 1973).‑‑(1) The Federal Security Force Act (XL of 1973), hereinafter referred to as the Act, is hereby repealed.

(2) Upon the repeal of the Act.‑‑

(a) all rights, properties, assets, debts, liabilities and obligations of the Federal Security Force shall be the rights, properties, assets, debts, liabilities and obligations of the Federal Government:

(b) any contracts made by the Federal Security Force before such repeal shall be deemed to have been made by the Federal Government:

(c) all suits and other legal proceedings instituted by or against the Federal Security Force before such repeal shall be deemed to be suits and proceedings instituted by or against the Federal Government and may be proceeded or dealt with accordingly;

(d) no suit; prosecution or other legal proceeding shall lie against any person or the Government for anything in good faith done under the Act or any rule, regulation or order made, or notification issued, thereunder and

(e) no suit or other legal proceeding shall be against the Government for any damage caused by anything in good faith done under the Act or any rule, regulation or order made, or notification issued, thereunder."

4. The question of personnel of Federal Security Force after its abolition was taken up and the following order of the C . M . L . A . governs the situation. It is reproduced in extenso as it has a material bearing‑

"COS TO CMLA

24. I have discussed the case with the C . M. L . A . who has been pleased to give the following orders:‑

(a) The Federal Security Force (F.S.F.) will be disbanded and the Ordinance issued to the effect. Federal Guard will not be constituted.

(b) Protection of Federal Government Institutions, Installation Embassies, Key points etc., be provided by the Police Force of the respective Province. For this purpose additional recruitment of manpower for the Provincial Police be assessed by the Interior Ministry and authorised. The Federal Government shall pay the cost of protection arrangements to the respective Province accordingly.

(c) Disposal of manpower will be as follows:‑

(1) All‑ personnel seconded to F.S.F. will revert to parent department.

(2) Services of all undesirable officers and members of F.S.F. as given in para.5 ante be terminated as per existing procedure. A list of such personnel will be submitted for the approval of the C.M.L.A. as soon as possible. Persons involved in criminal cases will be transferred to supernumerary establishments as advised by F.I.A. pending their cases.

(3) Contract of the employed personnel will be terminated in accordance with the terms of the contract.

(4) All other personnel will be transferred to the following Organisations to meet the shortage of their manpower:‑

(a) Coast Guard.

(b) Frontier Constabulary.

(c) Rangers.

(d) C.A.F. North.

(e) C.A.F. South.

(f) Airport Security Force.

(g) Police of the 4 Provinces.

(5) Contingency staff i.e. Dhobis, Barbars, Cooks, Sweepers and Water carrier etc., be also disposed of as per policy contained in para. (4) if they so desire. However efforts will be made to absorb them locally.

(d) Disposal of Arms and Ammunition will be as follows:‑

(1) All ranks proceedings to other Forces as para.24 d (4) will carry their personal weapons rifles and pistols with them in case calibre of weapon of receiving force is similar to F . S . F .

(2) Deficiency of weapons of Coast Guards, Frontier Constabulary Rangers, C . A . F Airport Security Force and Provincial Police be made up.

(3) Balance should be offered to the Army.

(4) All left over weapons be deposited with the Army.

(5) Ammunition will also be disposed of as per above policy.

(e) All Miscellaneous Equipments as given in the Annexure (K) will be transferred to the Army.

(f) All transport will be transferred to the Army on book debit payment.

(g) Horses be transferred to the Provincial Police of all Provinces.

(h) Accommodation occupied by F.S.F. will be offered to Army through respective Corps. Hqars. Accommodation not required by the Army will be handed over to the Civil department under respective HQ. M.L.A.

25. Completion of the disbandment and transfer of manpower transport weapons and equipment etc., will be completed by 30‑11‑1977. Secretary Interior will submit a report by 5th December, 1977 for information of C.M.L.A."

5. All the employees involved in these appeals and petition belong to the category 4(c), that is those transferred to the Rangers.

6. Ministry of Interior issued their transfer orders to the Pakistan Rangers. It was also specified that the "personnel transferred will claim their transfer T.A. etc. from the Pakistan Rangers". It was also indicated that "they have been paid upto November, 30, 1977 and may be taken on strength with effect from December, 1st, 1977". In 1978 the question' of their terms and conditions of service in the Pakistan Rangers became a matter of controversy and the Ministry of Interior clarified it in following words on 14‑6‑1978‑‑

7. "The matter was referred to the F . S . F . Cell of this Division who has stated that the receiving agencies where F.S.F. personnel had gone have to adjust these personnel to their own rules /conditions of service. Ex‑F.S.F. personnel have not been given any terms and conditions by the Ministry of Interior when they were transferred to other organisations."

8. At about the same time that this' clarification was sent in June, 1978 the Ministry of Interior referred the question to the Law Division which sent its opinion which was expressed by. the Ministry of Interior in its. letter dated 14‑9‑1979 in the following words‑‑ "the Law Division has held that:‑

(a) On repeal of the F.S.F. Act (XL of 1973) by the Federal Security Force (Repeal) Ordinance 1977, the F.S.F. stood disbanded and as consequence thereof the services of the Ex‑F.S.F. personnel were terminated. The orders of transfer of the personnel to other organisations and departments would actually amount to fresh order of appointment.

(b) Since no provision of safeguarding the rights of the members of F.S.F. on disbandment of the force has been made in the F.S.F. (Repeal Ord. 1977) (Ord. No. XLIV of 1977), the Federal Government is under no legal obligation to absorb them in any other organisation or departments after the disbandment of the force.

9. In the light of ruling given by the Law Division the F.S.F. personnel are not entitled to the protection of rule 10 of the Civil Servants Act 1973."

10. A summary was put up to the President and it is reproduced in extenso as hereunder with the orders of the. President in the margin‑

"SUMARY FOR THE PRESIDENT

11. ' Subject: Disbandment of F.S.F.‑ Disposal of surplus F.S.F. Staff.

12. On the disbandment of F.S.F. with effect from 1‑12‑1977, about 12,100 personnel were rendered surplus. Under orders of the C. M. L. A . this Ministry was able to absorb all the Constables and a fair number of supervisory ' staff in the Pakistan Rangers, Coast Guards, F.C. Baluchistan, Provincial Police Forces, Airport Security Force etc. However, upto January, 1978, a total of 1517 members of the Supervisory staff of all ranks posted to Police Forces and the Rangers remained unabsorbed. The C.M.L.A. was pleased to direct that efforts should be made to absorb them in the normal wastage and they may be retained till the close of financial year 1977‑78. By July, 1978, the number of surplus staff was reduced to 743 and the C . M . L. A . was pleased to approve their continuance upto 31‑5‑1979. The present number of unabsorbed surplus supervisory staff with the Police Forces and Pakistan Rangers is 479 (Annex I): They have been paid their salariesupto 31‑5‑1979 by the Federal Government.

13. "Discharge them."

2. The D.G. Rangers considers their retention in service highly detrimental to the interest of the State and has advised against holding such personnel on supernumerary strength without any hope of further absorption/ adjustment as it is seriously affecting the morale of others whose rights are threatened by outsiders coming with very short service and low standards of proficiency. According to Director‑General, Pakistan Rangers, no further adjustment of Ex‑F.S.F. personnel is possible in his organization and he recommends that they may be discharged after due notice.

(3) The Ministry of Finance to whom the matter was referred for their views are of the opinion that the services of the surplus staff may be terminated after due notice (Annexure II).

(4) However, this Ministry feels that on humanitarian considerations and in view of our commitment not to throw them out of service they may continue for another year i.e. upto 31‑5‑1980.

(5) Financial implications of the proposal in paragraph (4) will be approximately Rs.25 lacs as per details given below:

14. "This case must be (a) Surplus Supervisory Staff Rs.23,50,000 decided one way or (b) Special Cell (created in the other by the Ministry of winding up

15. December, 1979. affairs). 1,50,000

16. Sd/‑ 18/7"

17. __________________

18. Secy. Interior Total Rs.25,00,000

19. __________________

(6) Approval of the President is solicited to the proposal in paragraph 4.

(7) The Minister for Interior has seen the summary.

20. Sd/‑ Roedad Khan

21. Secretary

22. COS to the President CMLA's Sectt., Rawalpindi.

23. M/O Interior U.O. No.S/1/??‑FSF(I), dt. 12‑7‑79

8. We may either absorb or discharge them on the merits of each case by 31 Dec. 79 at the latest.

24. Sd‑ 14/7"

25. President

26. The Ministry of Interior thereafter issued a directive dated 1‑9‑1979 to concerned authorities as hereunder:‑‑

27. "I am directed to state that the question of continuance or otherwise of the remaining supervisory staff of defunct FSF, has been placed before the President/ CMLA. In accordance with tree directive of the President/CMLA the remaining supervisory personnel should be absorbed/ discharged without any further delay. In case those who cannot be absorbed they may be discharged after due notice from the service.

28. The absorption/ discharge of such personnel should be completed by the end of Oct. 1979 as the Federal Government will not pay, pay and allowances for this staff after that date."

29. There followed in consequence a notice of termination to each of the affected employees. A specimen of the notice is hereunder:‑‑

"NOTICE OF TERMINATION OF SERVICE

1. You were enlisted in defunct Federal Security Force under defunct FSF Act, 1973 (XL of 1973).

2. The above mentioned FSF Act was repealed vide Ordinance No. XLIV of 1977 and in consequence of this repeal your services stood terminated w.e.f. 30 Nov. 1977 (afternoon). However, you were transferred to Pakistan Rangers to be paid against supernumerary posts created purely for this purpose and to be absorbed in Pakistan Rangers on availability of vacancies,

3. As per direction of Federal Government received under Ministry of Interior No.14‑18/78‑FSF‑I dated 01 Sep. 1979 all Ex‑FSF personnel including you held against supernumerary posts, who have not been absorbed in Pakistan Rangers, are to be discharged from service.

4. In compliance of the above order, you are hereby given notice that you (No.4515 Rank Inspr Name Muhammad Azam Javed) will be discharged from service w.e.f. 15 2 Oct. 19

30. Their services were in fact terminated.

31. Gilaf Khan, the appellant, not only kept on representing the department but also filed a Constitutional Petition in the High Court which was dismissed on 14‑10‑1979 as incompetent. On 25‑8‑82 he filed an appeal before the Service Tribunal claiming therein that "an appeal against the order was made before the Director General Pakistan Rangers, which was rejected on 23‑5‑1982."

32. The Service Tribunal by an order dated 5‑9‑1983 rejected his appeal observing hereunder:‑‑

33. "We have gone through the record of the case and we find that in fact no reply to the appeal was sent to the appellant, and the letter of 24th May, 1982 is also not an order of rejection of the appellant's appeal, but is a copy of the letter addressed by the Pakistan Rangers headquarters to a Section Officer of the Ministry of Interior. Even if we take this letter to be the reply, the present appeal having been filed about three months after this letter, is still barred by limitation. The appellant has been extremely negligent in pursuing his remedy before the proper forum, and there are no good reasons for condoning the laches. The appeal is, therefore, dismissed as time‑barred, with costs, which shall be realised by forfeiting the security deposit."

34. He personally argued his case and contended that such a summary discharge order was violative of provisions of Civil Servant, Act, that his appeal was within time from the date of the final order communicated to him and that the order of the Tribunal was extremely arbitrary and discriminatory as in number of other identical cases, as a matter of fact worse than that of the appellant, the Tribunal did not apply the bar of limitation.

35. Ashiq Muhammad Khan Lodhi, petitioner in Civil Petition 558 of 1982 was also first transferred to the Pakistan Rangers and then his services were terminated w.e.f. 15‑10‑1979 vide notice of discharge dated 16‑9‑1979. He appealed on 10‑10‑1979 against this order and failing to get a reply, he appealed to the Service Tribunal on 14‑11‑1979. The Service Tribunal consolidated his appeal with that of others and disposed of them all by a common order holding that "the departmental remedy provided by law was not exhausted by the appellants before filing the present appeals. This should be done now".

36. The petitioner seeks leave against this order on the ground that the reason given by the Tribunal was in any case not applicable to him as he had satisfied the requirement of law before coming to the Service Tribunal.

37. All the other employees, against whom the Federation is the appellant, after being so discharged from the Pakistan Rangers, filed Constitutional petitions in the High Court which were dismissed as incompetent. Then 117 separate appeals were filed before the Service Tribunal. A preliminary objection about their competency was raised on the ground that they had not exhausted the departmental remedy. This objection prevailed as appears from the following operative order of the Tribunal dated 23‑2‑1982‑‑

38. "As stated above, the departmental remedy provided by law was not exhausted by the appellants before filing the present appeals. This should be done.

39. As the appeals have been pending before this Tribunal for a considerable length of time, we recommend that condonation of the delay in the appeals to the next higher authority may be considered favourably.

40. The appellants may come up again in appeal, if necessary, after exhausting the departmental remedy.

41. With the above observations, the appeal is disposed of."

42. These respondents soon thereafter filed departmental representations in 1982 and failing to get a response instituted once again their appeals before the Service Tribunal on 19‑7‑82.

43. In its written ‑statements the Federation took up the pleas that 'these employees had no cause of action, that they had no legal right to be retained in service, that they were neither absorbed nor head any right to be absorbed and that they did not submit their departmental appeals through proper channel as required under Rule i(3) of the Civil Servants (Appeal) Rules, 1977.

44. On merits the following pleas were taken‑‑

(i) "On disbandment of FSF, the personnel of the Force were not transferred to different Departments and Organisations. However, to mitigate their sufferings and on humanitarian grounds efforts were made to get them absorbed as far as possible, in different Organisations, and for this purpose 123888 men were allocated to various Organisations for absorption. 8605 persons reported to such Organisations."

(ii) "For want of vacancy in the Pakistan Rangers, he was placed on supernumerary strength and was paid by the Federal Government through supplementary grant. As no vacancy of his equivalent grades became available his services were eventually terminated as the Government could not keep them on supernumerary strength for an indefinite period."

(iii) "'Transfer' of the appellant to Pakistan Rangers was in consequence of termination of his services in the defunct FSF on its disbandment and was not a 'Transfer' in the normal course of service or within the meaning of Section 10 of the Civil Servants Act, 1973."

(iv) "The service of all the employees of FSF came to an end with the disbandment of the Force.

45. The provisions of section 11(2) of the Civil Servants Act, 1973 are not attracted in this case."

46. The Service Tribunal by its impugned judgment dated 30‑10‑1984 game to the following conclusions‑‑

(i) "It is apparent from this letter that the posting of the officers mentioned was neither on deputation nor an ad hoc arrangement nor an adjustment against a supernumerary post but a permanent absorption in the Pakistan Rangers The CMLA's directive is very clear that after the disposal of undesirable persons including those involved in criminal cases, all other personnel would be transferred to other organizations to meet the shortage of their manpower. The Ministry of Interior, who were fully aware of the requirements of each organisation and the extent of their shortage, had decided on the number of persons to be transferred to each organization, in implementation of the decision of the CMLA. Had there been any doubt, on the point, they would not have transferred these persons without any conditions or reservations. Nor would they have insisted that these persons were still in service and, therefore, final payment of their G.P. Fund could not be made. It is, therefore, an afterthought to suggest that these persons had not been absorbed in the Pakistan Rangers by the time they were removed from service. The Rangers organization itself treated them as having been absorbed in implementation of the CMLA's decision."

(ii) "The appellant and others, who were not only taken on the strength of the Force but also given their regimental numbers, had served the Force for about 2 years and could not but be treated as members of the Force."

(iii) "So far as we can see, the directive of the President, as contained in the Ministry's letter of 1st Sep., 1979, if correctly interpreted, does not modify or rescind his earlier directive as reported by the COS to the President on 1st of Nov. 1977. The new directive relates to those who had not been absorbed in any organization. The Appellant and many others along with him had been absorbed and there could be no going back on that. Therefore, they could not be discharged merely because, for some reason or the other, whose validity or reasonableness has not been explained, the Rangers organization did not like to keep these persons."

(iv) "If at all, it was impossible to find jobs for these persons the principle laid down in the proviso to Section 11(2) should have been followed, instead of the arbitrary manner resorted in the impugned order."

47. On these findings the appeals were allowed and an order of their re‑instatement in service with effect from the date of termination alongwith consequential benefits was granted to them. A condition as hereunder was imposed‑‑

48. "Arrears of pay and allowances can be paid to him only if it is established that he was not gainfully employed elsewhere during the said period or that if he was so employed, the emoluments received by him were less than the arrears due to him, in which case the arrears payable to him shall be only to the extent of the difference."

49. Mr. Sajjad Ahmed Sipra, the learned 43eputy Attorney General, took up the following grounds for challenging the impugned order of the Service Tribunal:‑‑

(i) The respondents had not before approaching the Service Tribunal exhausted the departmental remedy which they were required to do by section 4 of Service Tribunal Act. As their services were terminated under the orders of the President only a review petition addressed to the President under first proviso to these rules was competent. Besides, they addressed the wrong quarters, by addressing the Director General, Pakistan Rangers.

(ii) Their service appeals were hopelessly time‑barred. The first service appeal and the departmental representation followed by service appeals afresh were all filed more than two and a half years after the impugned orders were passed. There was no ground, none whatsoever available to justify the condonation of delay nor was it in fact ever condoned.

(iii) The effect of Repeal of Act XL of 1973 by Ordinance Rio. XLIV of 1977 was to do away with the Force and all the posts that existed and none occupying or holding the post prior to its repeal, could have any claim whatsoever for being provided for in the arrangements that followed. The provision that was made to that effect was purely on humanitarian grounds as noted by the Law Department in its advice and did not create any right such as could have been en-force-able in law through the Tribunal.

(iv) The order of the C . M. L. A . recorded by the COS, who was authorised to record it did not confer any right on the personnel of dissolved Federal Security Force. It only provided for absorption in order to meet the shortage in various specified agencies of the Government. As the Rangers could not absorb the respondents their discharge was termination in accordance with law, incapable of violating any of the rights of the respondents.

(v) The orders of the discharge of the respondents were passed by equally competent authority, namely the C.M.L.A., and are protected.

50. So far as the question of limitation is concerned and of exhausting the departmental remedies prescribed under the law, the Tribunal dealt with it, in the following words:‑‑

51. "We have given our thought to the technical objection raised above but are unable to accept it, for the reason that, although the representation was made directly to the appellate authority and not through the head of the Pakistan Rangers under whom the Appellant was serving before the termination of his service, in our opinion, this cannot constitute a reason for treating ‑‑y,, the departmental appeal as invalid. The Tribunal has consistently taken the view that, whenever a civil servant makes a departmental appeal or representation or application for review of a departmental order, if such representation is made to the wrong quarters, it is the duty of the authority receiving the application or representation to forward it to the proper authority. In this case, if the representation had been wrongly sent directly to the appellate authority, it was the duty of the appellate authority to send it down to the original authority who passed the impugned order, for processing it according to the rules. In view' of this, we repel the preliminary objection and proceed to discuss the case on merits."

52. Section 29 of the Limitation Act provides for such a situation that the provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as and to the extent to which they are not expressly excluded by such special or local law. There being no modification or prohibition in Service Tribunals Act, the provisions of section 5 of the Limitation Act and in particular section 14 shall get attracted. The view taken by the Tribunal, about the appeal having been preferred to the wrong quarters in the same heirarchy we endorse the view taken that it being the designated authority and only channel for appeal having not been followed, it is a rectifiable irregularity and could be corrected by sending the appeal to the appropriate quarters for its comments. We find that the view taken by the Service Tribunal is correct. For this reason, the view taken by the Service Tribunal in the case of Ghilaf Khan and Ashiq Muhammad Khan Lodhi, would not be quite inconsistent with the view taken in the other similar cases and as the whole question is being reconsidered on merits, at this stage it would not be proper to D non‑suit these two appeals only on the ground of their claim being barred by limitation. Hence we convert Petition (No.558 of 1982) of Ashiq Muhammad Khan Lodhi, into an appeal and also deal with the appeal of Ghilaf Khan, on merits alongwith others.

53. The Repeal of the Federal Security Force Act could indeed have the effect of dissolving the entire Force rendering the incumbents of the posts or at least a large number of them surplus to the Organization but there, the principles which should have been followed are clearly spelt out in section 11(2) in the following words:‑‑

54. "Where, on the abolition of a post or reduction in the number of posts in a cadre or grade, the services of a civil servant are required to be terminated, the person whose services are terminated shall ordinarily be the ‑one who is the most junior in such cadre or grade."

55. It has not been demonstrated either in the Summary submitted, orders obtained or in the discharge orders passed, that a compliance with these provisions was ever intended or accomplished. This fact alone makes the entire exercise violative of the law on the subject.

56. The C.M.L.A. having not proceeded under subsection (2) of section 11 and on the contrary ordering the absorption of all such employees in various agencies in fact continued their appointment; whether this was done on humanitarian grounds or in recognition of certain rights, is immaterial as long as the basis was in public interest. The nothings leading to the discharge orders suggest that this category of employees was taken as not yet absorbed in the Rangers but the Tribunal has recorded a finding of fact that they had been fully absorbed and integrated in the Rangers. The fact that the budget is prepared on year to year basis for their pay, is not material nor can it distinguish them from others because such an arrangement was only to give effect to an unforeseen eventuality.

57. In the order that was obtained with regard to the discharge of these employees and also in obtaining the opinion of the Law Department, the previous orders passed by the CMLA on the subject were not fully noticed, attended to and its effect determined. The result was that these employees were taken as still awaiting absorption or adjustments and on that account their discharge from service was obtained. There was no realization of the fact that they stood absorbed under the orders of the competent authority earlier passed, and that order was beyond recall unless fresh acceptable grounds were forthcoming. Such an order of the competent Authority had the effect or creating vested rights in view of the decision of this Court in Mukhtar Ahmad & 37 others v. Government of West Pakistan through Secretary Food & Agriculture and another P L D 1971 S C 846.

58. The result of the above discussion is that the appeals of the Federation are dismissed and those of Ghilaf Khan and Ashiq Muhammad Khan Lodhi are allowed declaring the orders of discharge to be without lawful authority. The orders in all cases shall be subject to condition imposed by the Service Tribunal in the impugned judgment about their entitlement to arrears of pay etc.

59. M.I./F‑52/S Order accordingly.