PROVINCE OF PUNJAB through Secretary Punjab Emergency Service Department, Lahore Versus MUHAMMAD KHALIL

AYESHA A. MALIK, J.--- The Petitioners have impugned the order of the Punjab Service Tribunal (Service Tribunal) dated 07.06.2023 whereby the appeal filed by the Respondent was partially allowed. The Respondent is a rescue driver with the Punjab Emergency Service (the Emergency Service) against whom disciplinary proceedings were taken which were set aside by the Service Tribunal with a direction to hold a regular inquiry and decide the matter afresh.

2. The issue raised by the Petitioners is with respect to the status of its employees and the jurisdiction of the Service Tribunal. Precisely, the question being whether the employees of the Emergency Service are civil servants and whether the Service Tribunal has jurisdiction in matters related to the terms and conditions of their service. The Petitioners argue that employees of the Emergency Service are not civil servants, rather, they are public servants as they work for an independent statutory body established under the Punjab Emergency Service Act, 2006 (Act of 2006) . The Act of 2006 was amended by way of the Punjab Emergency Service (Amendment) Act, 2021 (2021 Amendment) pursuant to which the Emergency Service became an independent administrative department of the Government of Punjab (Government) , which they argue does not make it a typical government department as it is not reflected in First Schedule of the Rules of Business 1 and further that the 2021 Amendment does not take away its independent statutory character in terms of its legal structure and matters related to employment. They also rely on the Punjab Emergency Service Leave, Efficiency and Discipline Rules 2007 (2007 Rules) and the Punjab Emergency Service (Appointment and Conditions of Service) Regulations, 2022 (Regulations) which govern the appointment process, the terms and conditions of service and disciplinary proceedings of the employees of the Emergency Service arguing that their employees are not governed under the Punjab Civil Servants Act, 1974 (Act of 1974) or the Rules made thereunder.

3. The Respondent on the other hand relies on Section 4(2) of the Act of 2006 which originally provided that the Emergency Service shall be a body corporate which can sue and be sued in its own name, however, subsequent to the 2021 Amendment, its legal status changed to an independent administrative department of the Government . The argument is that as a consequence of the 2021 Amendment, employees of the Emergency Service are civil servants and they are entitled to seek recourse before the Service Tribunal. In this context, the counsel relied upon the impugned order arguing that the exercise of jurisdiction by the Service Tribunal falls within the mandate of the law.

4. The Act of 2006 established the Emergency Service to deal with emergencies. Essentially, the Emergency Service was created to provide a coordinated emergency response system for Punjab with a range of rescue services including ambulance, fire, motorbike, water and floods, height and animal rescue services. Through the emergency helpline, 1122 , the Emergency Service provides citizens with access to rapid emergency assistance which includes medical assistance. In addition to emergency response, the Emergency Service also undertakes disaster preparedness, community and building safety, and awareness and training programs. On its promulgation, Section 4(2) of the Act of 2006 provided that the Service shall be a body corporate having perpetual succession and a common seal with power to enter into contract, acquire, hold and dispose of the property, and may by its name sue or be sued . Hence, it was an independent legal entity which could undertake disciplinary action and terminate the services of its employees under the 2007 Rules. At the time of its creation in 2006, the Emergency Service was originally listed as an autonomous body of the Government, in the First Schedule of the Rules of Business under the control of the Home Department. On 22.03.2017 2 , it was placed in the First Schedule as an autonomous body under the Services and General Administration Department and the Home Department. Subsequently, on 31.12.2018 3 , the Emergency Service was again placed under the Home Department as an autonomous body in the First Schedule and was removed from under the Services and General Administration Department in both the First and Second Schedules. By virtue of the 2021 Amendment, Section 4(2) was amended such that it now provides that the Emergency Service shall be an independent administrative department of the Government . Correspondingly, an amendment was also made to the Rules of Business on 23.06.2021 4 where the Emergency Service was omitted from the First Schedule of the Rules of Business and was no longer shown as an autonomous body, and was likewise, omitted from the Second Schedule of the Rules of Business where it previously fell under the Home Department. As a result, the Emergency Service is no longer under any secretariat under the Rules of Business. The question therefore arises as to what changed in terms of the legal character of the Emergency Service with the 2021 Amendment when the legislature altered the legal entity of the Emergency Service from body corporate to an independent administrative department of the Government ?

5. In terms of the provisions of the Act of 2006, the Emergency Service was established pursuant to Section 4(1) and its powers and functions are provided in Section 5 of the Act of 2006. Section 6 of the Act of 2006 provides for the constitution of the Punjab Emergency Council comprising the Chief Minister as Chairman together with senior officials of the Provincial Government and other representatives. The managing body is the Punjab Emergency Council which is headed by the Chief Minister and its functions are provided for in Section 7 of the Act of 2006. Section 9 of the Act of 2006 provides for the office of the Director General of the Service who is responsible for the day-to-day affairs of the administration of the Emergency Service and he may in terms of the Regulations, appoint, post and transfer any of the employees working in the Emergency Service. Section 13 of the Act of 2006 provides for the appointment of Rescuers who in terms of the said Section are to retire at the age of 50 years. Section 14 of the Act of 2006 establishes an Emergency Service Academy for training the members of the Emergency Service and Section 15 of the Act of 2006 establishes the Emergency Service Funds, which is funded through grants provided by the Federal and Provincial Governments, as well as donations and contributions and it is monitored by the Punjab Emergency Council. Section 16 of the Act of 2006 further provides that members of the police and other organizations shall act in aid of the Emergency Service in the discharge of its statutory functions. Section 17 of the Act of 2006 confers operational powers upon emergency officers and rescuers to take necessary measures in emergency situations for the protection of life and property. Section 21 of the Act of 2006 provides that all members of the Emergency Service shall be public servants within the meaning of Section 21 of the Pakistan Penal Code, 1860 (P.P.C.) . The statutory scheme under the Act of 2006, for the employees of the Emergency Service, prescribes, the appointing authorities for the Emergency Service and the retirement ages for Rescuers and employees who are not Rescuers; under Section 13(4) of the Act of 2006 the retirement age of a Rescuer is 50 years, whereas Rule 12(ii) of the Regulations provides that employees other than rescuers shall retire at the age of 55 years. The 2007 Rules provide for matters related to performance, leave and discipline meaning that the Emergency Service operates under a statutory framework with its own organizational and service structure. Furthermore, Section 27 of the Act of 2006 requires the Punjab Emergency Council to frame regulations on matters that are necessary to carry out the purposes of the Act. Therefore, in terms of the Act of 2006, prior to the 2021 Amendment, the Emergency Service operated as an independent body corporate created under the Act of 2006 where it exercised control over its internal administration, including the management of its employees and their training through the framework established by the Act of 2006. Importantly the employees were declared to be public servants which provision was not changed by the 2021 Amendment. Essentially the 2021 Amendment did not change the statutory framework of the Emergency Service for the purposes of its administration and management and for the purposes of regulating its employees. What changed was its legal form from body corporate to an independent department of the Government. Hence the question that arises is whether the 2021 Amendment changed the status of the employees of the Emergency Service from public servant to civil servant so as to give jurisdiction to the Service Tribunal?

6. The Respondent s claim that the change in the legal status of the Emergency Service by virtue of the 2021 Amendment to Section 4(2) of the Act of 2006 reflects the intent of the Government to declare the Emergency Service as a government department and so its employees by necessary implication become civil servants and the Service Tribunal has jurisdiction. We examined this argument in great detail with the assistance of all the counsel. The executive function of the Government is to regulate how it is to conduct its business and organize its structure of governance. The Rules of Business regulate the allocation and transaction of business of the Government of Punjab. It provides for an Attached Department 5 , Autonomous Body 6 and a Department 7 which is a self-contained administrative unit in the secretariat. There are also Special Institutions referred to in the Rules of Business. All these forms of departments are listed in the First Schedule, which not only prescribes the form of the department, but also the allocation of business and the secretariat under which it falls. The Second Schedule, then, goes on to describe the business of each of the departments, and the Fourth Schedule provides for such appointment, transfer and posting which require the approval of the Chief Minister. We find there is no concept under the Rules of Business for an independent administrative department of the Government which means that such a department is not placed under any existing secretariat and so it operates outside the direct control of any ministry or secretariat, making it distinguishable from an Attached Department or from Autonomous Bodies, and it is not a Special Institution either. This is evident from the fact that the entry of the Emergency Service in the First Schedule of the Rules of Business was omitted in 2021, hence it was no longer shown as an autonomous body, and was likewise, omitted from the Second Schedule of the Rules of Business where it previously fell under the Home Department. Consequently, the Emergency Service now operates as a statutory department of the Government, functioning independently, outside of the ordinary departmental structure of governance under the Rules of Business. We consider that it is best described as a legislatively created department of the Government which is independent in its functioning yet is to some extent controlled by the Government. In essence it has been given a specific public function, which it is to administer and manage within its own statutory framework keeping it independent from the routine departmental control and officialdom of the Government. It can also be described as an instrumentality of the Government, created by a statute, independent in its functions as it regulates and manages itself including its finances which is used at the discretion of its managing body.

7. This unique form of governance in our opinion, emerges on account of the specialized functions of the Emergency Service, which provides rescue services in 37 districts and tehsils 8 across the Province of Punjab. According to its statutory scheme under the Act of 2006, the Emergency Service performs a range of rescue services in the interest of public safety, protection of life and property during emergencies and disasters. These services include the prevention and preparedness for prompt response to emergencies. The Act of 2006 provides for a Director General who manages the day-to-day administration of the Emergency Service, and further provides for the constitution of District Emergency Boards which aid coordination and support in managing emergencies across Punjab. Given the nature of these functions and the powers exercised by the Emergency Service, the independent department framework allows the Emergency Service to perform this specialized public function with operational autonomy and institutional continuity while at the same time allowing the Government to retain some element of control and accountability over a specialized emergency and disaster response function which is part of the Government s obligation to safeguard life and public safety. The 2021 Amendment, therefore simply took away its corporate entity status and instead made it an independent statutory department. While, in our opinion, the larger question here is whether the legislature can create a department of the government, given that this function falls within the domain of the executive under the Rules of Business, however as this issue is not before us, we proceed to answer the questions raised before us.

8. The first question is whether the status of the employees of the Emergency Service is that of a civil servant or of a public servant. A civil servant is defined in Section 2(b) of the Act of 1974 to mean a person who is a member of the civil service of the Province or who holds a civil post in connection with the affairs of the Province, but does not include (i) a person who is on deputation to the province from the Federation or any other Province or Authority; (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 or the Workmen s Compensation Act, 1923 . The Act of 1974 prescribes the terms and conditions of civil servants regulating all terms and conditions such as appointment and termination, tenure, promotion, posting, transfer, discipline and retirement. The Act of 1974 also provides for making of rules to carry out the purposes of the Act pursuant to which the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, the Punjab Civil Servants (Efficiency and Discipline) Rules, 1999, the Punjab Civil Services Pension Rules, 1955 and (Revised) Punjab Leave Rules, 1981, amongst others, have been made. Conversely, the term public servant is not defined anywhere, except for Section 21 of the P.P.C. which amplifies the broader import of the term when it comes to the imposition of criminal liability. Section 21 of the P.P.C. highlights a wide range of categories of persons who may be treated as public servants, including persons performing duties in connection with public administration or those entrusted with public authority under various laws. Therefore, the primary difference between a civil servant and a public servant is that a civil servant s terms and conditions of service fall under a distinct legal framework in the form of the relevant civil servant act (Federal or Provincial) and the rules and regulations framed thereunder (Civil Service Framework) whilst a public servant includes persons who perform public duties, exercise authority under law, or are entrusted with functions connected with public administration. Accordingly, it is important to note that while all civil servants are members of the service of Pakistan, all members of the service of Pakistan are not civil servants. This distinction has been clarified by this Court in the Sindh Irrigation and Drainage Authority case. 9 In this case, the statute provided that the officers and employees of the Sindh Irrigation and Drainage Authority (SIDA) shall be deemed to be public servants as stipulated in the Sindh Water Management Ordinance, 2002, within the meaning of Section 21 of the P.P.C. The Court also held that such a statutory declaration confers the status of a public servant on the employees and therefore they are not civil servants. It was also held that a civil servant is one who has been appointed by the competent authority in the prescribed manner under the Civil Service Framework, through the prescribed process of recruitment, and whose terms and conditions of service are governed by the said legal framework. This Court further clarified that the statutory declaration of being public servants only recognizes the public character of the functions performed by the public servant and ensures accountability under the law, it does not render them as civil servants.

9. The distinction between a civil servant and a public servant must also be viewed within the constitutional framework governing the service. Article 240 of the Constitution 1 0 provides that the appointment and conditions of service of persons in the service of Pakistan shall be regulated by or under an Act of Parliament or of the Provincial Assembly. The expression Service of Pakistan is defined under Article 260 of the Constitution to mean any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All-Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under an Act of Parliament or of a Provincial Assembly. Therefore, to be in the service of Pakistan means to be in a service common to the Federation and the Provinces such that in the case of the service of the Federation, posts in connection with the affairs of the Federation, and in the case of a Province, posts in connection with the affairs of a Province. In this context, this Court in the Salahuddin case 1 1 explained that performing functions in connection with the affairs of the Federation or a Province referred to functions involving the exercise of public power which include regulation, public utility services, economic development, education, or other activities undertaken by the State. The consideration of the Court therefore, was, on the nature of the functions performed by the institution. If the functions entrusted to the body were those ordinarily carried out by the State, or were closely connected with the discharge of governmental responsibilities, the institution could fall within the category of bodies performing functions in connection with the affairs of the Federation or a Province. In this context a civil servant is one who is working in connection with the affairs of the Government under its Civil Service Framework and a public servant is one who is working in connection with the affairs of the Government through an instrumentality of the Federal or Provincial Government. The establishment of such instrumentalities enables the State to perform its functions through specialized bodies with public responsibilities designed to operate with a degree of operational flexibility and administrative autonomy that may not be available within the conventional departmental structure of government.

10. It is in this context that this Court has considered whether employees of statutory or corporate bodies working in the service of Pakistan, are civil servants. In the Mubeen-us-Salam case 1 2 the issue before the Court was the constitutional validity of Section 2-A of the Service Tribunals Act, 1973, through which Parliament sought to extend the jurisdiction of Service Tribunals to employees of authorities, corporations and other bodies established by or under federal law or owned or controlled by the Federal Government. In examining this issue, this Court first examined the constitutional meaning of civil servant and determined that the terms service of Pakistan and civil servant are not synonymous. So, while Article 260 of the Constitution refers broadly to service in connection with the affairs of the Federation or a Province, the status of a civil servant is determined under the constitutional scheme such that a civil servant is a person whose appointment and terms and conditions of service are regulated under the civil servants act and the rules framed thereunder. Applying this framework, the Court then examined whether employees of autonomous bodies, statutory corporations or institutions established under federal law could be treated as civil servants and held that such employees are not civil servants. This Court reasoned that the mere fact that such bodies are created by statute, funded by the Government, or subject to their administrative supervision does not render their employees as civil servants. It was for this reason that the Court declared Section 2-A of the Service Tribunals Act, 1973 ultra vires to the extent that it attempted to extend the jurisdiction of Service Tribunals to employees of such bodies. Thus, in terms of the Mubeen-us-Salam case the applicable test that determines the status of a civil servant depends upon whether the employee holds a civil post , legally regulated under the civil service legal framework . Even in recent times and across cases involving universities, banks, and industries, the Court applies the principles consolidated in the Mubeen-us-Salam case. For instance, in the Tufail Hashmi case 1 3 , various petitioners who consisted of employees of Allama Iqbal Open University (AIOU) , SME Bank and Pakistan Steel Mill were subjected to disciplinary proceedings under the Removal from Service (Special Powers) Ordinance, 2000 and challenged the penalties before the Federal Service Tribunal. This Court concluded that only those employees can approach the Service Tribunal who fall within the definition of civil servant and hold posts in connection with the affairs of the Federation. However, since the petitioners who had approached the Service Tribunal for redressal of their grievances were not enjoying the protection of statutory rules, therefore, the Service Tribunal had no jurisdiction to adjudicate upon such matters and the petitioners would be governed by the masterservant principle. Similarly, in the Muhammad Naeem case 1 4 , the question before the Court was whether employees of the National Bank of Pakistan (NBP) could be regarded as civil servants or government servants. The Court held that under Section 3(2) of the NBP Ordinance, 1949, the NBP is a body corporate and constitutes a separate juristic entity. Consequently, its employees are employees of the corporation and are not civil servants. It was further clarified that even where employees of a statutory corporation fall within the definition of public servant for limited purposes under criminal law, such designation does not confer upon them the civil status of government servants or civil servants. Therefore, these decisions make it clear that the question remains whether the employee s appointment and terms of service are governed by the Civil Service Framework under the relevant civil servants laws.

11. A perusal of the record before us shows that in the present case, the Emergency Service is established under the Act of 2006 and employment is regulated under the 2007 Rules and the Regulations. Employees of the Emergency Service are not regulated by the Act of 1974 or any of the Rules made thereunder as there is an independent legal framework which governs the terms and conditions of employment of the employees of the Emergency Service. Furthermore, the Act of 2006 declares the employees to be public servants and not civil servants, which status did not change even after the 2021 Amendment. In such circumstances, where the appointment and terms and conditions of employees in the Emergency Service are regulated under a separate statutory framework and not under the Act of 1974 or the rules framed thereunder, the employees of the Emergency Service cannot be treated as civil servants and therefore do not fall within the jurisdiction of the Tribunal.

12. We are of the opinion that the Tribunal did not accurately examine the question of jurisdiction in light of the statutory framework governing the Emergency Service and the settled principles laid down by this Court. We have also reviewed the interim order passed by the Tribunal dated 01.12.2022 in an application under Order VII Rule 11 Code of Civil Procedure, 1908 which refers to another order dated 10.10.2022 wherein the question of jurisdiction statedly was decided in favour of the Respondent being that by virtue of the 2021 Amendment, the status of the employees of the Emergency Service changed. The impugned order states that the interim orders dated 10.10.2022 and 01.12.2022 were not challenged by the Petitioners, and therefore, attained finality. This is an erroneous finding as the interim orders merged into the final judgment where the Tribunal once again addressed the issue of its jurisdiction by holding that on account of the 2021 Amendment the status of the Emergency Service is that of an independent department, hence the Tribunal has jurisdiction. In this regard, the Punjab Service Tribunals Act, 1974 specifically provides that the Tribunal has jurisdiction over civil servants and an appeal is to be filed by a civil servant. Therefore, the Tribunal erred in finding that the Respondent, being an employee of the Emergency Service, was a civil servant by virtue of the 2021 Amendment.

13. For the reasons recorded above, the employees of the Emergency Service are not civil servants and the Tribunal does not have jurisdiction in matters related to their terms and conditions of service. Jurisdiction being a foundational issue was required to be examined with care and circumspection before assuming authority over the matter. In the absence of such jurisdiction, the proceedings before the Service Tribunal were without lawful basis. Consequently, this Civil Petition is converted into an appeal and is allowed. The impugned order dated 07.06.2023 passed by the Tribunal is set aside.

MH/P-3/SC Appeal allowed.

1 Punjab Government Rules of Business 2011 as amended from time to time (Rules of Business).

2 Notification No. SO(Cab-I)2-24/82(Vol-I), dated 22.03.2017.

3 Notification No. S.O.(Cab-I)2-24/82(Vol-I), dated 31.12.2018 (published in the Punjab Gazette (Extraordinary) dated 18.02.2019).

4 Notification No. S.O.(CAB-I)2-24/82(Vol-II), dated 23.06.2021.

5 Rule 2(b) of the Rules of Business.

6 Rule 2(c) of the Rules of Business.

7 Rule 2(j) of the Rules of Business.

8 Annual Report, Punjab Emergency Service (Rescue 1122): 20 Years of Service.

9 Sindh Irrigation and Drainage Authority v. Government of Sindh (2022 SCMR 595) (Sindh Irrigation and Drainage Authority) .

10 The Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) .

11 Salahuddin v. Frontier Sugar Mills and Distillery Ltd. (PLD 1975 SC 244) (Salahuddin) .

12 Muhammad Mubeen-us-Salam v. Federation of Pakistan (PLD 2006 SC 602) (Mubeen-us-Salam) .

13 Executive Council Allama Iqbal Open University v. M. Tufail Hashmi (2010 SCMR 1484) (Tufail Hashmi) .

14 Muhammad Naeem v. Federation of Pakistan (2023 SCMR 301) (Muhammad Naeem) .