1988 PLC(CS) 763

1. MUNAWAR ALI KHAN (CHAIRMAN).‑‑ The appellant namely Professor Feroze Yousif Khan was working as Deputy Director, Colleges, Hyderabad when he was appointed as Member of Sind Public Service

2. Commission for a period of three years vide order of Governor of Sind dated 26th July, 1982. As he joined his new assignment on 1st August, 1982 the tenure of his said appointment was due to expire on 31st July, 1985. However, by Governor's order dated 20‑9‑1984 the appellant's membership of the Public Service Commission was terminated and he was repatriated to Education and Culture Department. Being dissatisfied with his repatriation, he filed review application but with no result. Thereafter, he came to this Tribunal in the present appeal. His prayer is that the impugned notification be declared as illegal and inoperative, as having been issued mala fide and without jurisdiction. He has further prayed that he be declared to continue as Member of the Commission until 31st July, 1985 with all benefits due to him on such continuation.

3. We heard the arguments of the learned counsel for both the parties and also referred to all documents relevant for disposal of the appeal.

4. The thrust of the arguments of the learned counsel for the appellant was on the premature termination of the appellant's tenure as Member of Public Service Commission. He contended that since the appellant was appointed for a fixed period, it could not be cut short without any cogent reason. On the other hand the stand taken by the learned Assistant Advocate‑General was that the appellant being a Government employee, he could be recalled even before the expiry of his term for which he was appointed as a Member of the Commission.

5. The notification dated 26th July, 1982 by which the appellant was appointed as a Member of Public Service Commission reads as under:‑‑

6. "In exercise of the powers conferred by section 3 read with subsections (1) and (2) of Section 4 and sub‑section (1) of section 5 of the Sind Public Service Commission Ordinance 1978, the Governor of Sind is pleased to appoint Professor Feroze Yousif Khan, Deputy Director, Colleges, Hyderabad as a Member of the Sind Public Service Commission for 3 years with effect from the date he takes over charge of the office:"

7. It would appear from the text of the notification hereinabove that the appointment of the appellant as member of the Commission was made under section 3 read with subsections (1) and (2) of section 4 and subsection (1) of section 5 of the Sind Public Service Commission Ordinance 1978 (hereinafter referred to as the Public Service Commission Ordinance). Subsection (2) of, Section 4 which deals with tenure of appointment of a Member, reads as under:‑‑

8. "(2). Subject to subsection (4), the term .of office of a Member shall not exceed 5 years; provided that he may be reappointed for another term not exceeding 3 years."

9. The above provision clearly shows that although appointment as Member of the Commission could not be made for more than 5 years at a time, one could be appointed for lesser period,. as has been done in the case of appellant who was appointed for three years. However, the material point for our A consideration is whether the appointment once made for the specified. period, could not be curtailed. In this connection reference maybe made to subsection (1) of section 5 of the Public Service Commission Ordinance, which is as follows:

10. "The terms and conditions of service of the Chairman or Member shall be such as may be determined by the Government; provided that the terms and conditions shall not be varied to the disadvantage of the Chairman or Member during the term of his office."

11. After perusal of the proviso following the above sub‑section we are left in no doubt that appellant's fixed tenure of three years as Member of the Commission which forms a part of the terms and conditions of his appointment as Member within the meaning of the said subsection, could not be varied to his disadvantage. In other words the fixed tenure of three years for which the appellant was appointed to serve as Member of the Commission could not be arbitrarily cut short. Such curtailment, in our opinion, was tentamount to appellant's removal in terms of section 6 of the Public 'Service Commission Ordinance. If the appellant was intended to be removed; it was incumbent on the authorities concerned to follow the procedure laid down in the said section. 6 for removal of the Chairman and the Members of the Commission. It is an admitted position that appellant was recalled from the Public Service Commission in total disregard of the requirements of the said section.

12. The only explanation that has been furnished by the respondents in the written statement, in defence of the‑ appellant's premature recall is that he being an employee of the Government could be recalled even before expiry of his fixed tenure for which he was appointed as a Member of the Commission. As stated above the terms and conditions of appointment of Chairman and Members of the Public .Service Commission, which of course include the tenure. of their appointment, are, protected by proviso to subsection (1) of section 5 of the Public Service Commission Ordinance. We were not shown any other provision in the said Ordinance which ‑ debars the employees of Government appointed as Chairman or Members of the Commission from the benefit of the said proviso. We are therefore not impressed by the argument that in case of Government employees, the fixed tenure of appointment could be disturbed prematurely or in that context other terms and conditions of service could be varied to the h disadvantage of the appointees. Moreover, the appellant having attained the age of superannuation on 2‑9‑1984, about 18 days prior to the issuance of the impugned order dated 20‑9‑1984, he stood retired from Government service and as such the question of his repatriation to Government Department, Education and Culture at that stage did not arise.

13. As has been discussed in the foregoing paragraphs the appellant seems to have a good case on merits. Despite that the learned Assistant Advocate General contended (fiat the present appeal Was liable to be dismissed on the legal ground that this Tribunal has no jurisdiction to hear this appeal. His argument emanates from section 4 of the ‑Sind Service Tribunals Act; .1973 (hereinafter referred to as the Sind Service Tribunals Act). The learned AAG submitted that since the mandatory requirement of the above section was not‑ satisfied inasmuch as that the present appeal has neither been filed by a civil servant nor is it in respect of terms and conditions of service of civil servant, this Tribunal has absolutely no jurisdiction to hear and decide the present appeal.

14. With a view to understand the arguments of the learned AAG we may reproduce hereunder section 4 of the Service Tribunals Act:

15. "4. Any civil servant aggrieved by any final order whether original or appellate made by departmental authority in respect of terms and conditions of his service may within 30 days of the communication Of such order to him prefer an appeal to the Tribunal having jurisdiction in the matter."

16. It is clear that in order to bring an appeal within four corners of the above section, it is. necessary to show that the appeal has been filed by a civil servant and further it is in respect of terms and conditions of service of civil servant. No doubt the appellant was a civil servant prior to, his appointment as a Member of Sind Public Service Commission as he was then holding the post of Deputy Director, Colleges, Hyderabad. The question is if he retained his position as civil servant even after his appointment as Member of the Public Service Commission.

17. Sind Public Service Commission is a Statutory Body created and governed by its own law and rules. It was established by the Public Service Commission Ordinance which also provides for composition of the commission, appointment and removal of its Chairman and Members, their terms and conditions of service including the tenure of their appointment etc. In this way the Public‑ Service Commission is an independent Body governed by the law and rules totally different from the law and rules applicable to civil servant. It cannot be placed at par with other independent institutions such as WAPDA etc. 1t may not be out of way to point out here that WAPDA had to amend its law in order to declare its employees as civil servants for certain purposes. But no such provision is available in the Public Service Commission Ordinance. We are therefore of the view that Chairman and Members of the Public Service Commission are not civil servants. The appellant has filed this appeal not as Deputy Director but as Member of the Public Service Commission. Accordingly he could not be held as civil servant for the purpose of filing the present appeal.

18. Assuming for the sake of argument that the appellant retained his identity as civil servant even after his appointment as Member of the Public Service Commission, still he could not be held to have filed this appeal in respect of terms and conditions of service of civil servants. Terms and conditions of service of civil servant are specified in section 3 of the Sind Civil Servants Act 1973 (hereinafter referred to as the Sind Civil Servants Act). It reads as under:

19. "3. The terms and conditions of service of a Civil Servant shall be as provided in this Act and the rules:"

20. Thus, the terms and conditions of service contained in the Sind Civil Servants Act and the rules framed there under are the terms and conditions of service of Civil Servants. In other words the terms and conditions of service as provided in any other law such as Public Service Commission Ordinance could not be held as terms and conditions of service of civil servants. In the present appeal we are obviously seized of the premature curtailment of the tenure of the appellant as a Member of the Public Service Commission. This tenure had been fixed under subsection (2 of section 4 of the Public Service Commission Ordinance. As such the said tenure cannot be treated as part and parcel of the terms and conditions of service of civil servants referred to in section 3 of the Sind Civil Servants Act.

21. For the above reasons we are in agreement with the learned Assistant Advocate‑General that this Tribunal is not the appropriate forum where the appellant could agitate for redressal of his grievance. Accordingly we hold that this Tribunal has no jurisdiction to adjudicate upon the issue raised by the appellant. The appeal is dismissed with no order as to costs.

22. APPEAL No. 10 OF 1985

23. DR. A. Q. QAZI (MEMBER).‑‑ The facts relating to this case have been briefly but precisely narrated by the learned Chairman and are given in pages 1 and 2 of the main judgment. I should like to frame the issues involved in the appeal which to my mind need resolution:

(i) Is. the appellant a Civil Servant within the meaning of the Sind Service Tribunals Act, 1973 (as amended)?

(ii) If so, whether by appointment as a Member of Sind Public Service Commission (a separate body regulated by a separate Act) the appellant ceases to be a civil servant with facts, circumstances and history of the case?

(iii) Could the tenure of a Member of Public Service Commission be arbitrarily curtailed?

(iv) If aggrieved where should he (the Appellant) seek for redress of the grievance.

24. I shall dwell upon these issues systematically and one by one so that I could reach a logical conclusion.

2. Professor Feroze Yousif Khan was working as a Deputy Director College Education (a civil servant working on a civil post) when by a notification dated 26th July, 1982 he was appointed as a Member of Public Service Commission. The order reads as under:‑‑

25. "In exercise of the powers conferred by Section 3 read with subsections (1) and (2) of Section 4 and subsection (1) of Section 5 of Sind Public Service Commission Ordinance 1978, the Governor of Sind is pleased to appoint Professor Feroze Yousif Khan, Deputy Director Colleges Hyderabad, as a Member of Sind Public Service Commission for a period of 3 years w.e.f the date he takes over the charge of the office."

26. It is indeed very obvious from this speaking order that Professor Feroze Yousif Khan was a civil servant while he was working as a Deputy Director Colleges and was sent on appointment by transfer to Sind Public Service Commission for a specific period of three years which was to terminate on 31st July, 1985. It is to be implied and understood that his transfer and posting was as that of a civil servant. and was done in accordance with Clause 10 of the Sind Civil Servants Act, 1973. Let us now read for convenience and clarity the Preamble of the Sind Service Tribunals Act of 1973.

27. "Preamble: Whereas it is expedient to provide for the establishment of Administrative Tribunals, to be called Service Tribunals, to exercise exclusive jurisdiction in respect of matters relating to the terms and conditions of service of Civil Servants, and for matters connected therewith or ancillary thereto;

28. It is hereby enacted as follows:‑‑

1. Short title, commencement and application. ‑‑(1) This Act may be called the Sind Service Tribunals Act, 1973.

(2) It shall come into force at once.

(3) It applies to all civil servants wherever they may be.

2. Definitions. ‑‑In this Act, unless there is anything repugnant in the subject or context‑

(a) civil servant' means a person who, is on has been a member of the Civil Services of the Province of, holds or has held a civil post in connection with affairs of the Province, and for the purpose of any proceeding under this Act includes, a person who has been dismissed, discharged, removed or retired from such service or post as a consequence of the order of the departmental authority, but does not include‑

(i) a person who is on deputation to the Province from federation or any other Province or authority; or

(ii) A person who is employed on contract, or on work charged basis, or who is paid from contingencies; or

(iii) A person who is a `worker' or workman as defined in the Factories Act, 1934 (XXV of 1934), or the Workman's Compensation Act, 1923 (VIII of 1923)"

29. It is, therefore, clear from the plain reading of Sind Civil Servants Act, 1973 that the appellant was a civil servant and was on transfer and was appointed for a period of three years in accordance with section 10 of the Sind Civil Servants Act of 1973 and in conformance to Public Service Commission Ordinance of 1978.

30. Now I shall discuss issue No.2; the simple question for me is to ask whether the appellant ceased to be Civil Servant on his appointment to a tenure post as a Member Sind Public Service Commission'. My answer is `No' and I shall reason as follows:‑‑

31. I have already said above under issue No.1 that Professor Feroze yousif Khan was appointed by transfer under Section 10 of the Sind Civil AC, 1973. This also is the only contention of the respondents in their written statement Though the learned Assistant Advocate‑General has argument that because of his superannuation he seised to be civil servant as argument that cannot be accepted because of the very definition of the `Civil servant as (laid down above). The Public Service Commission Ordinance of 1978, under which the Governor was pleased to appoint the appellant, in accordance with Clause 4, sub clause (2) read with Clause 5 read with sub clauses (1) and (2), are accordingly reproduced for clarity and convenience.

32. "4. Appointment of Chairman and Members .‑‑(1) The Chairman and Members shall be appointed by the Governor.

(2) Subject to subsection (4), the term of office of a Member shall not exceed five years; provided that he may be re‑appointed for another term not exceeding three years.

(3) Notwithstanding anything contained in this section, a person holding office as. Chairman or Member, immediately before the coming into force of this Ordinance, shall cease to hold the office on such date as the Governor may direct.

(4) A Member shall cease to hold office on attaining the, age of sixty-five years:

33. Provided that the Governor may in the interest of service allow him to continue to hold the office for the un expired portion of the beyond the age of sixty‑eight years, if he is certified by such medical Board as the Governor may constitute in this behalf, to be in a fit state of health.

(5) A Member may resign his office by writing under his hand addressed to the Governor:'

5. Terms and conditions of service of Chairman and Members.‑‑‑(1) The terms and conditions of service of the Chairman or Members shall be such as may be determined by the Governor; provided by the terms and conditions shall not be varied to the disadvantage of the chairman or Member during the term of his office.

(2) On ceasing to hold office, a Member shall not be eligible for reemployment, in the service of Government or in autonomus corporation or body established by Government by law or otherwise:

34. Provided that nothing contained in this subsection shall apply to a Member who immediately before his appointment as the member, was in service of Pakistan, and has not attained the age of superannuation under the law applicable to him as civil servant

35. In my opinion a civil servant who is on transfer any other civil post of the Province on any specific terms and conditions (which could not be varied to his disadvantage under the protection of the Sindh Civil Servant Act) continues to remain the civil servants particularly so when the law contrary to this has not been laid down in either the Sind Public Service Commission Ordinance of 1978 or Sind Civil Servants Act of 1973. Nothing can take away his right of being designated as a civil servant arbitrarily.

36. There is some case‑law available on this subject. The specific cases that are worth reading and guide are Dr. A.Q.K. Afghan V. Secretary to Government of Pakistan Establishment Division, Rawalpindi (1982 P L C (C.S.) 206) and another Dr. A.Q.K. Afghan V. Secretary Establishment Division Rawalpindi (1982 P L C (C.S.) 214), Dr. A.Q.K. Afghan was appointed as an officer on special duty/ex officio joint Secretary to the Federal Government in Ministry of Education. Thereafter in August, 1973 he was promoted on the post of Additional Secretary in Grade‑21, of the Secretariat group. In February, 1978 he was appointed as a Member Service Tribunal Islamabad in Grade‑21, by subsequent Notification dated 9th February, 1981, he was transferred and later removed: He filed appeal to the Federal Service Tribunal against his transfer and subsequent removal. The Federal Tribunal is regulated by a separate Act (Service Tribunals Act No. 70 of 1973) which is in itself a self‑composed law and speaks about the composition of the' Chairman and Members of the Tribunal and is very similar in comparison ‑to Federal Public Service Commission and for that purpose to Sind Public Service Commission. Dr. A.Q. K. Afghan's case of removal from post of Member of Federal Service Tribunal as well 'as his removal from Government service were agitated first before the Federal Service Tribunal who though did not allow the appeal on merits but did not dismiss the same on the ground of its being incompetent to adjudicate on' matter of his removal from the post of Member Federal Service Tribunal. Later on Dr.A.Q.K. Afghani filed a petition against the orders of the Tribunal to Supreme Court of Pakistan (1984 S C M R 1159), which also disallowed the appeal on merits and held the decision of Federal Service Tribunal as competent and correct. I therefore have no hesitation in holding that the status of the appellant, Professor Fer07C Yousif Khan was that of a civil servant, continued to be that of a civil servant during his stay with the Public Service Commission for a tenure of three years. I have no confusion in my mind as regards this point which has also been the only plea of the respondents, f in their written statement. In view of admission of the department, in view of the reading of Civil Servants Act Clause (1), Clause (2) and‑Clause (10), further read with Clause (1) and Clause (2) of the Sind Service Tribunal Act.1973, and in view of the case law cited above there is no reason for me to be left in any doubt that the appellant was civil servant till his removal and retirement. If this was not the case then at least the appeal of Dr. A.Q.K. Afghan (case‑law cited above), against the removal from the post of Member Federal Service Tribunal could not ' be adjudicated upon or agitated before the Federal Service Tribunal.

37. I shall now revert to 3rd point for determination, i.e., whether the curtailment of period of tenure of Professor Feroze Yousif Khan was curtailed legally. This point has been exhaustively discussed by the learned Chairman in the main body of the judgment and I shall only add the case law reported in P L D 1979 Lahore 324 in support of his (learned Chairman's) arguments. This case deals with curtailment of the tenure of Mr. Alauddin Akhtar, who was appointed for a period of 3 years as Chairman Pakistan Text Book Board which was a statutory period. This tenure had not expired when Mr. Alauddin Akhtar was repatriated to his original, department as Secretary, Board of Technical Education. Justice Shafi‑ur‑Rahman the learned Judge set aside the order and, observed in para‑16 of his decision:

38. "It follows, therefore, that the post of Chairman, Punjab Text book Board is a statutory post, with a fixed statutory tenure of three years which in the cash of the petitioner, has not so far expired. This petition is, therefore, allowed with costs against the respondents and order in so far as it transfers or repatriates the petitioner and the impugned respondent No. 2 on the post, is declared to be without lawful authority and of no legal effect:

39. In view of the above case law cited above I shall also hold the view that the curtailment of the tenure of Professor Feroze Yousif Khan was not legally founded.

40. Finally I shall discuss Issue No. 4. This point can be easily determined in light of the arguments advanced under Issues Nos. ‑ 1, 2 and 3. In order to determine the jurisdiction to adjudicate I shall pose to myself one simple question. To which organisation does he belong? My simple answer is, he is confirmed civil servant and belongs to Governments of Sind. If my answer is this" then a confirmed civil servant of the Government of Sind on 'transfer under Clause No. 10 of the Civil Servants Act of 1973 cannot lose identity even on his transfer to Public Service Commission for a specified period. He, therefore, cannot have any other legal recourse but first to agitate the Service Tribunal which has the exclusive jurisdiction in respect of; "matters relating to the term and conditions of the persons in service of Pakistan including discipline matters", in wake of the Article 212 of the Constitution of Pakistan end this view is held by all "superior Courts of the country." In absence of any regulating clauses in the Sind Public Service Commission Ordinance 1978, or Surd Civil Servants Act 1973, in absence of any case law cited at the bar, in view of the fact that appellant continued to be a civil servant till the date of his Partition (which was subsequent to his superannuation), in view of the fact that Sind Service Tribunals Act Clauses (1), (2) and (4) govern and regulate of hip appeal and in view of case law cited earlier, I hold that the appeal before Sind Service Tribunal was within the jurisdiction of Sind Service Tribunals and the same was competent to adjudicate on all matters relating to the terms an conditions of the service of the appellant.

41. In light of elaborate discussions made and arguments advanced above I shall with utmost respect and regard for the views of the learned chairman and learned Member, record my dissent with the conclusion of the main body of the judgment and shall partly allow the appeal to the extent that I shall declare the order of repatriation of Professor Feroze Yousif Khan and the curtailment of hi" tenure as Member Sind Public Service Commission which was legally to expire on 315t July, 1985 as to be without lawful authority. This appeal is only allowed to this extent and in above terms.

42. S.Q./156/Sr.S

43. Appeal dismissed.