KHAN ZADA Versus DIRECTOR-GENERAL, DIRECTORATE OF PLANNING, GOVERNMENT OF PAKISTAN

1. (MEMBER).‑‑ The appellant has objected to the following order:‑‑

2. "F.No. 12(1)/81 (Admn.)

GOVERNMENT OF PAKISTAN

3. DIRECTORATE OF POPULATION, N.‑W.F.P.,

4. POST OFFICE BOX. NO. 235

5. Peshawar, the 8th September, 1981,

OFFICE ORDER

6. In pursuance of section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 the service of Khan Zada, Population Officer (Grade‑16) of the Population Programme are hereby terminated with immediate effect.

7. The terminal benefits as admissible under the rules will be paid to him after ensuring that he has properly handed‑over the charge of his post."

8. It has been stated by the counsel for the appellant that the appellant joined the service of the then Swat State on 1‑12‑1966 as Family Planning Officer. Further that Swat State was merged with the then Province of West Pakistan by West Pakistan Regulation No.1 of 1969 and the appellant became a Provincial Civil Servant by Clause 4 of the said

9. Regulation which reads as under:‑

10. "4. (1) All persons who immediately before the commencement of this Regulation, were holding any civil post or office, including a post or office in the forces charged with maintenance of public order under the administration of any of the specified territories shall as from such commencement be deemed to be persons serving under the Government of West Pakistan.

(2) Notwithstanding any thing to the contrary contained in any law, rule, order or instruction for the time being in force or in the condition of service of persons referred to in clause (1), the Provincial Government may determine the terms and conditions of service to be applicable to them."

11. It has been pointed out that by clause 4(2), the Provincial Government was to determine the terms and conditions of service of the employees of erstwhile Swat State. It has been stated that later the Government of N.W.F.P., issued an order on 1‑7‑1970 by which the employees of Family Planning Organisation of the former Swat State were absorbed in the Provincial Government and thus the appellant became a regular Provincial Civil Servant in the Population Planning Programme of N.W.F.P. Further that later the Population Planning was taken over by the Federal Government and the appellant became employee of the Population Planning under Government of Pakistan. It has further been stated that on the promulgation of Population Welfare Planning Programme (Appointment & Termination of Service) Ordinance XIV of 1981, the Federal Government framed rules under section 11 of the Ordinance XIV of 1981 and by Rules 3 and 4 provided for written test or interview for ascertaining suitability of the employees. Accordingly all the employees serving in Grades 16 and 17 under the Population Planning Division were required to take the test/interview of the Federal Public Service Commission for ascertaining their suitability for retention in service. It has been pointed out that the appellant being the ex‑State of Swat employee and having been absorbed as such on regular basis, objected to the examination/interview by the Federal Public Service Commission and he also filed (Writ Petition No. 282 and 379 of 1981) challenging the validity of the respondent's action as far as the appellant was concerned, but the Writ Petition was finally heard on 12‑10‑1986 and dismissed under a consolidated judgment of even date. It has been urged that the appellant being primarily civil servant under Government of Pakistan is entitled to seek redress before the Federal Service Tribunal.

2. The counsel for the appellant has stated that the appellant having a special status could not be subjected to any further examination by the FPSC. Also that in any case even if found unfit or unsuitable, his "service could not be terminated and at least he could be reverted to his original position in view of later part of para.4 of letter of NWFP Government dated 1‑7‑1970 which reads as under:

12. "4. The equation of jobs as shown in the Annexure to this letter is purely notional. No employee of the former States would be automatically appointed to the equivalent post in the Provincial Government or get the pay scales of the post to which his post has been equated unless he satisfies the minimum educational and other qualifications prescribed for that post in the Provincial Government. If any employee does not fulfil these conditions, he shall continue on his existing emoluments and terms and conditions of service till retired or otherwise disposed off under those rules."

13. It has also been stated that the Provincial Government had at the relevant time relaxed all the service rules pertaining to the determination of eligibility of the ex -State employees to the different posts under the Provincial Government, absorbing all the State employees against equivalent posts and dealing with the appellant's case differently is tentamount to discrimination and the impugned action is void on this count as well. On the question of limitation the counsel for the appellant has stated that the order terminating his service was passed on 8‑9‑1981, but a Writ Petition before the Peshawar High Court was submitted before the passing of order terminating his service. It has been stated that the appellant has been pursuing his cause diligently and soon after rejection of the writ petition, submitted the appeal to the Tribunal. It has been stated that delay in filing the appeal may be condoned for which an application for condonation of delay has been submitted.

3. The learned counsel for respondents Nos. 1 and 2 has opposed the appeal. It has been stated that the appellant was never appointed under the provisions of the Civil Servants Act, 1973 and the rules made thereunder and he is, therefore, not a civil servant and cannot be deemed to be a civil servant unless and until he is inducted in the Population Programme under section 3 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981. Decision of Supreme Court of Pakistan in Federation of Pakistan v. Riaz Ahmad Beg 1984 S C M R 759 has been cited in support of this contention. The decision of the Tribunal in case of Muhammad Saleem in Appeal No. 290(R) of 1984 has also been cited. It has further been stated that after the merger of Swat State the appellant was absorbed in West Pakistan Family Planning Board and latter by N.W.F.P. Family Planning Board as Family Planning Officer at par with his counterparts who had been employed on temporary basis and their service could be terminated at any time. It has further been stated that the appellant did not submit and appeal to the Federal Service Tribunal but submitted an appeal to the Peshawar High Court as he was not a civil servant. It has also been pointed out that the Peshawar High Court by its order No. C.M. 375/81, dated 20‑2‑1981 ordered the appellant to appear in the examination of F.P.S.C., but he did not do so. Further that the Peshawar High Court by its order dated 12‑10‑1986 dismissed the Writ Petition of the appellant.

4. The counsel for respondents Nos.1 and 2 has further stated that para.12 of Government of N.W.F.P letter dated 1‑7‑1970 reads as under:‑

14. "12. All employees of the ex‑States, who are covered by this scheme, and are to be absorbed in the Provincial Government cadres/services shall be given an option to remain on their existing emoluments or to elect the new pay scales and the new terms and conditions of service including pension applicable to the Provincial Government cadres/services. This option will have to be exercised within one month of the issue of this order. Option once exercised shall be final."

15. It has been pointed out that the appellant had exercised the option to be governed by the terms and conditions applicable to the Provincial Government employees who were then temporary. The appellant was, therefore, a temporary employee of the N.W.F.P. Government and could not now claim a contrary status. It has also been stated that the order terminating the service of the appellant was passed on 8‑9‑1981 and the appeal submitted to the Tribunal on 30‑11‑1986 is also hopelessly time barred. The learned counsel for Respondent No.3 has also reiterated these arguments.

5. We have considered the arguments advanced by both sides. The appellant was not a civil servant and the appeal submitted by him to the Tribunal is incompetent. It is, therefore, dismissed. ..

6. The appeal is dismissed as above. There will be no order as to costs. C Parties should be informed accordingly.

16. SYED ALLY MADAD SHAH (CHAIRMAN).‑‑ I agree that the appeal should be dismissed but reasons have to be recorded there for. The facts of the case are sufficiently stated in the judgment initiated by the learned Member Mr. Rasheed‑ud‑Din Arshad. The appellant was initially appointed as a Family Planning Officer in the former Swat State on 1‑12‑1966. By virtue of the Dir, Chitral and Swat (Administration) Regulation, 1969 (hereinafter referred to as the Regulation), all the persons who, immediately before the commencement of the Regulation, were holding any civil post or office including the post or office in the Forces charged with maintenance of public order under the Administration of any of the specified territories, were deemed to be the persons serving under the then Government of West Pakistan with effect from the commencement of the Regulation and terms and conditions of their service were to be determined by the Provincial Government (paragraph 4 of the Regulation). On dissolution of the Province of West Pakistan and revival of the Provinces, which were earlier merged into the Province of West Pakistan, with effect from 1st July, 1970 the territory of the former State of Swat became a part of the territory of the established Province of North‑West Forontier. The Governor of the North‑West Frontier Province issued an Order, in exercise of powers contained in clause 4 read with clause 3 of the Regulation, whereby the whole‑tinge and permanent employees of ex‑State of Swat, "Dir and Chitral were integrated with and absorbed in the Provincial government cadres/services; while part‑time employees of those States were excluded from the scheme laid down for the absorption of the employees of those States, with effect from 1st July, 1970, and the posts held by them in the former States were equated with the posts in the corresponding cadres/services of the Provincial Governments as per Annexure to the Order. Pursuant to the said order, the appellant stood absorbed in the corresponding posts in the Family Planning Organisation of the Province of North‑West Frontier with effect from 1st July, 1970 and he was to be treated at par with the other employees of the said Family Planning Organisation. The introduction of the Family Planning Programme and its structure and changes in its organisation and service set‑up have been fully described in the judgment of the Supreme Court in the case of Federation of Pakistan and another v. Riaz Ahmad Baig and another, reported in 1984 S C M R at page 759. It would be worth‑while to reproduce herein below the relevant paragraphs 2, 3, 4, 5 and 6 of the judgment:‑

17. "(2) The background of the case is that the Government of Pakistan had embarked upon a programme called the "Family Planning Programme". By resolution dated 30‑6‑1965, the Government of Pakistan constituted Pakistan Family Planning Council with immediate effect for (i) the overall implementation of the Family Planning Scheme, (ii) assessment and evaluation of the Family Planning activities in the Provinces, (iii) research and (iv) advice to Central Government on Family Planning. The Council was authorised to employ, on such terms and conditions, officers and employees as it considered necessary. A fund was also constituted known as the "Pakistan Family Planning Council Fund" to be utilised by the council to meet the charges in connection with its functions under the resolution, including payment of salary and other remuneration to its officers, employees, experts and consultants. The Fund consisted of (i) grants made by the Central Government including foreign assistance, (ii) grants made by the bodies, (iii) donations from the general public, (iv) sale proceeds of movable and immovable property and receipts for the services rendered, and (v) other sums receivable by the Council. By a separate notification, dated 17‑6‑19X5, the Governor of West Pakistan constituted for that Province a Family Planning Board which was to be responsible for the implementation of the Family Planning Scheme in the province and to perform all administrative functions connected therewith.

(3) In pursuance of these decisions, the ex‑employees and others were employed to work in the Programme. Upon the dissolution of the West Pakistan Province in 1970, the employees came under their respective new Provinces. On 12‑3‑1973, the Programme was re‑named as "Population Planning Programme." On 30‑12‑1976, the Government of Pakistan by an office memorandum conveyed its decision to (i) "Federalise" the Population Planning Programme in Pakistan and its direct administration by the Federal Government and (ii) "Governmentalise" the services of the Population Planning personnel. According to the memorandum, the administrative control of the Population Planning Programme including it personnel stood transferred "from the respective Provincial Governments to the Population Planning Division" with immediate effect and the procedure relating to Government servants was made applicable to these employees as well. By letter dated 11‑3‑1977 the employees of the Programme were made subject to "all procedure, rules, regulations etc. applicable to Government servants with effect from 30th December, 1976." As a necessary consequence of these decisions, the Provincial boards were abolished (the Punjab Board was abolished on 2‑4‑1977) and the Pakistan Population Planning Council on 30‑4‑1977. Although the decision to Federalise the Programme and Governmentalise the services of its personnel had been taken on 30‑12‑1976 and the Provincial Boards and the Pakistan Population Planning Council stood abolished on 2‑4‑1977 and 30‑4‑1977, respectively, no formal appointment of the employees was made until 2‑7‑1977, on which date the Government of Pakistan, Ministry of Health and Population Planning (Population Planning Division), issued a letter appointing the said employees "under" the Population Planning Division with effect from 30‑4‑1977. The appointment was (1) on a temporary basis subject to the rules and regulations applicable to temporary employees, (2) "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 and (3) subject to the acceptance by the employees. The employees accepted the offer and were appointed in terms of the said letter, dated 2‑7‑1977. On 24‑9‑1978 the Government by a resolution, which was in supersession of the earlier resolution, dated 30‑4‑1977 and in modification of the resolution of 30‑6‑1965, revived the Council with effect from 1‑5‑1977 and until further orders and prescribed its composition and terms of reference etc. However, there was no specific mention of the employees or their control. According to the learned Deputy Attorney‑General, and nothing to the contrary has been shown, the employees continued to be paid throughout from the Council's Fund.

(4) As already mentioned, the appointment of the employees in pursuance of letter dated 2‑7‑1977 had been subject to such changes as may become necessary and as a result of the new structure and organization which the Government may sanction. Accordingly, the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance (XIV of 1981) hereinafter called the Ordinance) was promulgated on 11‑5‑1981 with immediate effect in order "to provide for the re‑structure and re‑organization of, and appointment of persons in, the Population Programme ..."the employee was defined to mean" an employee of the Council or a Board appointed on temporary or ad hoc basis in the Population Programme on or after the 30th April, 1977, and paid from the Pakistan Family Planning Council Fund or the Provincial Population Planning Board Fund". By section 3 of the Ordinance, and employee could be appointed to a post in the Programme under the Population Division on the recommendation of the Commission or as the case may be the Departmental Selection Committee and an employee so appointed would be deemed to be a civil servant within the meaning of the Civil Servants Act (LXX of 1973). Section 4 dealt with the procedure for reference of the case of the employees to the Federal Public Service Commission and submission of report by the Commission to the appointing authority in regard to his fitness to hold the post to which he had been appointed or any other post in an equivalent Grade. By section 5, the eligibility for appointment to the posts under the Programme was restricted only to the employees and persons on deputation with the Council or a Board, provided they possessed " such qualification and experience as may be prescribed", and it was only when suitable employees and such persons were not available that the vacant posts,, were to be filled in accordance with the procedure laid down for the purpose in the Civil Servants Act. If an employee could not be selected for appointment under section 3 or be appointed for want of a vacancy, his service could be terminated under section 6 of the Ordinance as amended by Ordinance XXI of 1981.

(5) Section 11 of the Ordinance empowered the Federal Government to make rules for carrying out the purpose of the Ordinance. Rules were accordingly framed anti notified in July 1981 for appointment to Grades 16 and 17, prescribing age, experience and educational qualifications. For Grade‑16, the age prescribed was 22 to 32 and experience of not less than five years in Grade 11 and above or ten years in Grade‑7 and above. For Grade‑17, the age was 25 to 35 and the experience of not less than three years in the relevant field. For the technical posts specified in the Rules, the Commission was to conduct only interview while for the non -technical posts both written test and interview were to be held. By letter dated 7‑7‑1981, the maximum age was made relaxable by ten years "up to the age of 55 years" in case of an employee having two years completed service at his credit.

(6) The employees were to appear before the Commission on 22‑7‑1981. Some appeared and upon being found suitable were appointed in terms of the Ordinance. But the ex‑employees who are before us refused to appear before the Commission with the result that their services were terminated under section 6 of the Ordinance by order dated 8‑9‑1981. It was against this order of termination of service that the ex‑employees had gone in appeal before the Tribunal."

18. The legal aspect of the case is extensively discussed in the said judgment of the Supreme Court at paragraphs 15, 16 and 17, reproduced below:

19. "15. The admitted position is that the ex‑employees had been working under the Population Planning Programme and were being paid from the Fund of the Council or the Provincial Boards until 30‑12‑1976 when the Government decided to federalise the Programme and to Governmentalise the services of its personnel. The decision was, however, in the nature of a policy and had yet to be implemented by issue of formal letters of appointment. In the meantime, all that was done by the letter of 30‑12‑1976 was to transfer the administrative control of the Population Planning Programme including its personnel to the Population Planning Division. No formal letter of appointment was issued until 2‑7‑1977 and although in the meantime the Council and the Boards were abolished, the employees continued to be paid from the Fund. On 2‑7‑1977, the employees were offered appointment under the Population Planning Division retrospectively from 30‑4‑1977.This offer was subject to their acceptance of the terms and conditions set forth in the letter of offer with the stipulation that if they failed to communicate their acceptance within seven days, they would be presumed not to accept the offer. Their appointment, therefore, under the Population Planning Division was upon their express acceptance of the terms and conditions mentioned in that letter. The appointment so made was on a temporary basis and that is important "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." What would be the structure and organization for the Population Planning Programme was for the Government to decide. There was no commitment in the letter of appointment, dated 2‑7‑1977 that the employees would become, by the acceptance of the letter itself, civil servants. The fact that the procedure relating to Government servants was made applicable to the employees by the office memorandum, dated 30‑12‑1976, or that the employees were made subject to rules and regulations applicable to temporary Government employees by the letter dated 2‑7‑1977, would not per se make them civil servants. The Government, therefore, was competent to provide for such structure and organization as was stipulated in the letter and the appointment of the employees would be subject to such changes as may become necessary or may result from the same. The preamble of the Ordinance clearly shows that it had been framed to provide the structure and organisation stipulated in the letter of appointment. 1t is, therefore, not open to the employees to argue that while they had accepted the letter of appointment dated 2‑7‑1977, they would not be governed by the Ordinance. Their contention in that regard is, therefore, totally untenable and is rejected.

(16) The Ordinance applies to an "employee" defined under section 2(f) and means "an employee of the Council or a Board appointed on temporary or ad hoc basis in the Population Programme on or after the 30th April, 1977 and paid from the Pakistan Family Planning Council Fund or the Provincial Population Planning Board Fund:" The term "Population Programme" means, as clarified in section 2(g), "the population Planning Programme referred to in the former Population Planning Division:" The ex‑employees before us who had been paid from the Fund of the Council or the Board and had been appointed in the Population Programme with effect from 30‑4‑1977 clearly came within the definition of the term "employee" under section 2(f). That being so, the Ordinance by virtue of its section 10 shall have effect notwithstanding anything contained in any other law for the time being in force.

(17) The cases of the employees were to be referred to the Commission under sections 3 and 4 before formally appointing them under the Ordinance and only after they had been so appointed that they would acquire the status of civil servant within the meaning of Civil Servants Act, 1973. The argument advanced on behalf of the ex‑employees that they had already become civil servants and their case was not referable to the Commission, has, therefore, no weight. The question whether to consult the Commission or not, even if the provision in this regard were only directory in nature, is for the Government to decide and it is not for the employee to urge as a matter of right that the provision be ignored and such consultation be dispensed with. In the instant cases, however, the Ordinance does expressly provide for a reference to the Commission and empowers the appointing authority to appoint an employee in Grade‑16 or above "on the recommendation of the Commission" in accordance with section 4. Where the question of suitability of an employee for his employment is to be adjudged, consultation with the Commission is all the more desirable and it will be futile to expect the Service Tribunal or this Court to direct the Government not to consult the Commission."

20. The appellant was in the category of those employees who refused to appear before the Federal Public Service Commission for regularisation of his service and, therefore, he made himself liable to termination of his service as per section 6 of the Population Welfare Planning Programme (Appointment and Termination of Service) Ordinance, 1981 (hereinafter referred to as the Ordinance). On his failing to get his service regularised under the Ordinance, he did not attain the status of a civil servant within the meaning of Civil Servants Act, 1973. It was, however, urged on behalf of the appellant that since he was a regular employee of the former State of Swat, he had become regular employee of the Provincial Government on merger of the service of the former State under the Regulation and, therefore, he did not need to get his service regularised under the Ordinance. As already stated above, by virtue of paragraph 4 of the Regulation, the persons who were holding, immediately before the commencement of the Regulation, any civil post or office, were deemed to be in the service of the Provincial Government and by the order of the Governor of the North‑West Frontier Province they were to be absorbed in the provincial Government service in the corresponding department/organisation. The appellant, therefore, stood absorbed in the Family Planning Organisation and was subject and entitled to the terms and conditions which were applicable to the employees of the Family Planning Organisation and he had to go along with the changes brought about in the organisation and its service set up. This very plea he had agitated in the Writ Petition No. 379 of 1981 in the Peshawar High Court and it was held that he was governed by the provisions of the Ordinance and on his refusing to get his service regularised under the provisions of the Ordinance, he had ceased to be in the service of the Government. Since the appellant preferred not to undergo the trial prescribed under the Ordinance, he could not become civil servant and invited termination of his service. Thus, there is no merit in appeal on facts as well as on law, and is dismissed, with no order as to costs.

21. M.Y.H./545/Sr.F Appeal dismissed.