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Petitioner: REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD VS Respondent: WALI MUHAMMAD
1997 P L C (C
1997 P L C (C.S.) 137
[Supreme Court of Pakistan]
Present: Saiduzzaman Siddiqui, Fazal Karim and Mukhtar Ahmed Junejo, JJ
REGISTRAR, SUPREME COURT OF PAKISTAN, ISLAMABAD
versus
Qazi WALI MUHAMMAD
Civil Appeal No. 744 of 1995, decided on 8th November, 1995.
(On appeal from the judgment of Federal Service Tribunal, Camp Officer, Karachi, dated 10‑7‑1994 passed in Appeal No. 261 (K)/93).
Per Saiduzzaman Siddiqui, J.; Fazal Karim and Mukhtar Ahmed Junejo, JJ. agreeing‑‑‑
(a) Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982‑‑
‑‑‑‑R. 4‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Constitution of Pakistan (1973), Art.212(3)-‑‑Removal from service of employee of Supreme Court by the Chief Justice of Supreme Court‑‑‑Validity‑‑‑Leave to appeal was granted to consider as to whether view taken by the Federal Service Tribunal that persons serving in the Supreme Court of Pakistan were civil servants and thus a dispute relating to the terms and conditions of service of such persons was amenable to the jurisdiction of Service Tribunal, was in consonance with law.
(b) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 208 & 212‑‑‑Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, R.4‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Service Tribunals Act (LXX of 1973), S.2(a)‑‑ Officers and servants of Supreme Court of Pakistan are not servants falling within the category of "civil servants" as defined in Civil Servants Act, 1973, S.2(1)(b) and Service Tribunals Act, 1973, S.2(a)‑‑‑Legislature having not been given any role to determine the terms and conditions of the officers and servants employed in the establishment of the Supreme Court, it was not open to the Service Tribunal to treat such servants and officers as civil servants and assume jurisdiction in the appeal filed by civil servant against the order of Chief Justice of Supreme Court of Pakistan‑‑‑Person in "service of Pakistan" cannot be classed as a "civil servant" as well, as defined in Civil Servants Act, 1973 merely for the reason that he is in service of Pakistan‑‑ Service Tribunal established in pursuance of Art.212 of the Constitution of Pakistan has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a "civil servant" as defined under the Civil Servants Act, ,1973 and as such jurisdiction of service Tribunal could not be extended to any other category.
Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375 rel.
(c) Constitution of Pakistan (1973)---
---Arts. 260(1) & 212-‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b) Expressions "service of Pakistan" Occurring in Art.260(1) of the Constitution of Pakistan (1873) and "civil servants" in S.2(1)(b) of Civil Servants Act, 1973 are not synonymous‑‑‑Distinction illustrated‑ of being in "service of Pakistan" merely for that reason, cannot be classed as a "civil servant" as well, as defined in Civil Servants Act, 1973‑‑‑Jurisdiction of Service' Tribunal coot be extended to such category of persons "in service Pakistan".‑‑[Civil service].
The two expressions 'service of Pakistan' and civil servants' are not synonymous. Service of Pakistan is defined in Article 260 of the Constitution as meaning, any service, post or office in connection with the affairs of Federation or a Province, This expression also includes an All Pakistan Service and service in the Armed Forces or any other service declared under an Act of the Parliament or a Provincial Assembly as Service of Pakistan. The terms ' civil servant' is defined in the Civil Servants Act, 1973 as a person, who is a member of an All Pakistan Service or of a civil service of the Federation or a person holding a civil post in connection with the affairs of Federation, including a civil post connected with the defence. However, a person on deputation to the Federation from any province or other authority, a person who is employed on a contract or on work‑charge basis who is paid from contingencies and a person who is ' worker' or workman' as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923, are expressly excluded from the category of 'Civil servant'. On a careful examination of the definitions of 'Service of Pakistan' as given in Article 260 of the Constitution and the 'civil servant' as mentioned in the Civil Servants Act, 1973, it would appear that the two expressions are not synonymous. The expression ' Service of Pakistan' used in Article 260 of the Constitution has a much wider connotation than the term civil servant' employed in the Civil Servants Act. While a ' Civil servant' is included in the expression 'service of Pakistan', the vice versa is not true. 'Civil servant' as defined in the Civil Servants Act, 1973 is just a category of service of Pakistan mentioned in Article 260 of the Constitution. To illustrate the point, it is stated that members of Armed Forces though fall in the category of 'service of Pakistan' but they are not civil servants within the meaning of Civil Servants Act and the Service Tribunals Act.
A person may be in the service of Pakistan but for that reason he cannot be classed as a 'civil servant' as well, as defined in the Civil Servants Act. The Service Tribunal established in pursuance of Article 212 of the Constitution has been conferred exclusive jurisdiction only in respect of the dispute relating to terms and conditions of the service of a 'civil servant' as defined under the Civil Servants Act, 1973 and as such the jurisdiction of the Tribunal could not be extended to any other category.
(d) Constitution of Pakistan (1973)
‑‑‑‑Art. 208‑‑‑Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, R.4‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Service Tribunals Act (LXX of 1973), S.2(a)‑‑ Removal from service of employee of Supreme Court by the Chief Justice ‑‑ Validity‑‑‑Supreme Court had framed rules under Art. 208, Constitution of Pakistan which govern the terms and conditions of appointment of officers and servants of the Court‑‑‑Employee was appointed as Record and Reference Officer in the Supreme Court under the said Rules as such service of employee was not governed under any Act of Parliament passed under Art. 240 of the Constitution of Pakistan and terms and conditions of his service were refit gated under the Rules directly framed in pursuance of Art. 208 of the Constitution of Pakistan‑‑‑Such employee, therefore, could not fall in the category of "civil servant" as defined in the Civil Servants Act, 1973 and appeal of the employee against order of his removal from service by the Chief Justice was not cognizable by the Service Tribunal.
Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375 rel.
(e) Constitution of Pakistan (1973)‑
‑‑‑‑Art. 208‑‑‑Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, R.11‑‑‑Rule of the Supreme Court (Appointment of Officers and Servants and Tetras and Conditions of Service) Rules, 1982 which bars any appeal against the penalty which may be imposed by the Chief Justice of Supreme Court on the employee of the Supreme Court does not conform to the rules of Islamic dispensation of justice and law barring right of appeal to an aggrieved person is repugnant to the Injunctions of Islam‑‑‑Supreme Court, in circumstances, recommended that R.11 of the Rules may be amended suitably to bring same in accordance with the law declared by Supreme Court in Federation of Pakistan v. Public at Large PLD 1988 SC 202 and Pakistan through Secretary, Ministry of Defence v. The General Public PLD 1989 SC 6.
Abbas v. Hon'ble Chief Justice 1993 SCMR 715 and Hadi Bux v. Government of Sindh PLD 1994 SC 532 ref.
Per Fazal Karim, J,; agreeing with Mukhtar Ahmed Junejo, J.‑‑‑
(f) Constitution of Pakistan (1973)‑‑‑ .
‑‑‑‑Preamble‑‑‑Constitution of Pakistan is a Federal Constitution and provides for a federal structure‑‑‑Though there is no strict adherence to the concept of separation of powers in the Constitution, which is a well‑known fundamental political principle, yet, there can be discerned the vesting of the legislative, the executive and the judicial powers in three organs‑‑‑From such separation is derived the doctrine that certain functions, because of their essential nature, may properly be exercised by only a particular branch of Government; that such function cannot be delegated to an other branch; and that one department may not interfere with another by usurping its powers or by supervising their exercise,.
American Constitutional Law by A. Thomas Mason and Willam M. Beaney, Fourth Edn., p. 55; McCulloch v. Maryland 17 U.S. (4 Wheat), 316, 4 L.Ed. 579; Hinds v. The Queen (1977) AC 195 and X Ltd. v. Morgan‑Grampian (Publishers) Ltd. (1991) 1 AC 1 ref.
(g) Interpretation of Constitution‑‑‑
‑‑‑‑Solution of a problem arising from a provision of the Constitution‑‑ Principles‑‑‑Problem that a provision in the Constitution raises cannot be solved by the Courts confining its attention to that specific provision‑‑‑In seeking to interpret that provision, it is necessary not only to keep that specific provision in mind but also necessary implications arising from its subject‑matter end the structure of the Constitution, including the concept of separation of powers which involves the independence of each organ of the other organs.
(h) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Arts. 208 & 212‑‑‑Civil Servants Act (LXXI of 1973), S.2(l)(b)‑‑ Service Tribunals Act (LXX of 1973), S.2(1)‑‑‑Interpretation and scope of Art. 208, Constitution of Pakistan (1973)‑‑‑Parliament has no legislative role to play in respect of the officers and servants specially dealt with by Art.208 of the Constitution of Pakistan‑‑‑Provisions of Civil Servants Act, 1973 and Service Tribunals Act, 1973, therefore, have no application to the servants and officers of the Supreme Court, the Federal Shariat Court and High Court and such employees are not civil servants.
Article 208 occurs in Part VII of the Constitution. This Part deals with judicature and contains provisions for the method of appointment and security of the tenure of the members of the judiciary, which are designed to assure to them a degree of independence from the two branches of Government. The expression 'Judicial Power' which is essentially a Constitutional concept and is to be contrasted with legislative and executive powers of the State has not been used in Constitution of Pakistan. But whether 'it is a written Constitution or not, if these is a trichotomy of sovereign powers between the executive, the legislative and the judiciary, as it is in Constitution of Pakistan, "then ex necessitate rei, from the nature of things the judicial power must be vested in the judiciary". There can therefore, be no doubt that it is the Constitutional concept. 'Judicial Power' with which Part VII of the Constitution deals and that Article 208 of the Constitution is a part of the scheme which was designed to assure to the judiciary a degree of independence from the other two branches of Government. By that Article, the Supreme Court, the Federal Shariat Court with the approval of the President, and. a High Court, with the approval of the Governor concerned, have been empowered to make rules "providing for the appointment by the Court of officers and servants of the Court and for their terms and conditions of employment". That the Parliament and the Executive may not even indirectly interfere with the Court's power under Article 208, the administrative expenses, including the remuneration payable to the officers and servants of the Supreme Court, are, by Article 81 of the Constitution, charged upon the Federal Consolidated Fund, end the administrative expenses, including the remuneration payable to the officers and servants of the High Courts by Article 121 charged upon the Provincial Consolidated Fund. This special provision granting power to the Supreme Court, the Federal Shariat Court and the High Courts to make law for the appointment of their officers and servants and the terms and conditions for their employment is to be contrasted with the Articles of the Constitution such as Articles 87, 221 and 240 of the Constitution. Article 87, by its clause (2), empowers the Parliament to make law for regulating the recruitment and the conditions of service of persons appointed to the Secretarial Staff of either House of Parliament; and until a law is so made by the Parliament; empowers by its clause (3) the Speaker or, as the case may be, the Chairman, with the approval of the President, to make rules regulating the recruitment, and the conditions of service of persons appointed to the Secretarial Staff of the National Assembly or the Senate.
Article 241 allowed the rules and order in force immediately before the commencing day to continue in force and to be amended from time to time by the Federal Government or, as the case may be, the Provincial Government, "until the Legislature makes a law under Article 240". It will be noticed that the powers granted to the Parliament and the Provincial Assemblies to make law for the appointment and terms and conditions of services of persons in the service of Pakistan is "subject to the Constitution".
The Constitutional scheme, then, is that there are two broad categories of officers and servants of the State; the first category and that includes that generality of persons in the services of the Federation and the Provinces is dealt with by Article 240; as regards them, the power to make law has been granted to the Parliament; the second category is of those office servants in respect of whom, the Parliament and the Provincial Assemblies have no legislative power. While there is no doubt that the Parliament and the Provincial Assemblies are supreme in the sphere of the powers granted to them by Articles as such Articles 87, 221 and 240 of the Constitution, there is equally no doubt that the Parliament has no legislative role to play in respect of the officers and servants specially dealt with by Article 208 of the Constitution.
Now, the Civil Servants Act, 1973, was obviously enacted in exercise of the power vested in the Parliament by Article 240 of the Constitution. And as the presumption is that the Parliament did not, in making that law, exceed its powers, it does not, and was not intended to apply to the officers and servants of the Courts. The Service Tribunals Act, 1973, which was indeed enacted under Article 212 of the Constitution, also applies to 'civil servants' as that expression is defined in the Civil Servants Act, 1973, namely a person who is, or has been. a civil servant within the meaning of the Civil Servants Act, 1973. It must follow inevitably that both these enactments have no application to the servants and officers of the Supreme Court, the Federal Shariat Court and the High Courts, and that they are not 'civil servants'.
State v. Zia‑ur‑Rehman PLD 1973 SC 49 Fuji Foundation's case PLD 1983 SC 455 ref.
(i) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 201‑‑‑Judgment of High Court proceedings on the supposition is not the same thing as deciding a question of law and enunciating a principle of law within meaning of Art. 201 of the Constitution of Pakistan.
(j) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 208‑‑‑Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982, R.4‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Service Tribunals Act (LXX of 1973), S.2(a)‑‑ Removal from service of employee of Supreme Court of Pakistan by Chief Justice of Supreme Court under R.4, Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 was challenged before Service Tribunal‑‑‑Validity‑‑‑Held, conclusion reached by Service Tribunal which made the decision of the Chief Justice of Supreme Court, albeit in his administrative capacity, yet within the sphere of the enumerated powers of the Supreme Court, subject to review by Service Tribunal was not only Constitutionally dangerous, it also flew in the face of common sense.
Per Mukhtar Ahmed Junejo, J.; agreeing with Saiduzzaman Siddiqui, J.‑‑‑
(k) Constitution of Pakistan (1973)‑---
‑‑‑‑Arts. 208, 240 & 212‑‑‑Delegation of authority to different functionaries to legislate or frame rules on certain subjects survey:
(l) Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 260(1)‑‑‑Civil Servants Act (LXXI of 1973), S.2(1)(b)‑‑‑Serve Tribunals Act (LXX .of 1973), S.2(a)‑‑‑"Service of Pakistan"‑‑‑Definition Definition of 'service of Pakistan' given under Art. 260(1), Constitution of Pakistan is wider than the definition of 'civil servant' given in the Civil Servants Act, 1973, S.2(1)(b) and Service Tribunals Act (LXX of 1973), S.2(a) which shows that in spite of a person being in the 'service of Pakistan he cannot move the Service Tribunal unless he is a civil servant' as defined in both the Acts.
Abbas v. Hon'ble Chief Justice 1993 SCMR 715; Hadi Bux v. Government of Sindh PLD 1994 SC 532 and Government of Punjab v. Mubarak Ali Khan PLD 1993 SC 375 ref.
Farooq H. Naek, Dy. A.‑G. Pak. and Raja Abdul Ghafoor Advocate‑on‑Record for Appellant.
Respondent in person.
Date of hearing : 17th October, 1995.
JUDGMENT
SAIDUZZAMAN SIDDIQUI, J.‑‑The above appeal with the leave of this Court is filed by the Registrar, Supreme Court of Pakistan to call in question the order of Federal Service Tribunal dated 10‑7‑1994 whereby the learned Tribunal allowed service appeal of respondent and reinstated him in service.
The facts relevant for decision of the above appeal are, that respondent was appointed as Research and Reference Officer (BPS.18) in Supreme Court of Pakistan on 26‑7‑1984. He was removed from service by the Hon'ble Chief Justice of Pakistan by order dated 1‑9‑1993 as a result of disciplinary proceedings initiated against him under Rule 4 of the Supreme Court (Appointment of Officers and Servants and Terms and Conditions of Service) Rules, 1982 (hereinafter to be called as the 'Rules' only). The respondent filed a review petition against the order-dated 1‑9‑1993 before the Hon'ble Chief Justice of Pakistan, under Rule 11 of the Rules but the same was rejected on 9‑11‑1993. The respondent thereafter preferred a service appeal before Federal Service Tribunal, Islamabad, under section 4 of the Service Tribunals Act, 1973 (hereinafter to be referred as 'the Act' only) which was allowed on merits after overruling the preliminary objection raised in the appeal to the jurisdiction of the Tribunal to entertain appeal in respect of the employees of the Supreme Court of Pakistan, by order dated 10‑7‑1994. Leave was granted in the above appeal to consider the question: Whether the view taken by the Federal Service Tribunal that persons serving in the Supreme Court of Pakistan are 'Civil Servants' and thus a dispute relating to the terms and conditions of service of such persons is amenable to the jurisdiction of Service Tribunal, is in consonance with law.
The learned Deputy Attorney‑General, in support of the appeal contended that employees of the Supreme Court do not fall within the category of 'Civil Servants' as defined in section 2(1) (b) of the Civil Servants Act, 1973 as the terms and conditions of their services are governed and regulated by the Rules which were framed under the Rule‑making power conferred on the Supreme Court of Pakistan by virtue of Article 208 of the ' Constitution of Islamic Republic of Pakistan (hereinafter to be referred as the 'Constitution' only), and not under any Act of Majlis‑e‑Shoora as contemplated under Article 240 of the Constitution. In support of his contention the learned Deputy Attorney‑General relied on the case of Government of Punjab v. Mubarak Ali Khan (PLD 1993 SC 375).
The respondent, who appeared in person, on the other hand, contended that mere fact that the service of respondent was regulated under the Rules framed by the Supreme Court of Pakistan under Article 208 of the Constitution was not enough to lead to the conclusion that the respondent was not covered by the definition of Civil Servant as given in the Civil Servants Act, 1973. It is contended by the respondent that the employees of Supreme Court hold posts in connection with the affairs of the Federation and as such a dispute concerning the terms and conditions of their service will be amenable to the jurisdiction of Service Tribunal constituted under Article 212 of the Constitution to deal exclusively with the disputes relating to the terms and conditions of service of a Civil Servant. In support of his above contention the respondent relied on the cases of Abbas v. Hon'ble Chief Justice (1993 SCMR 715) and Hadi Bux v. Government of Sindh (PLD 1994 SC 532).
The learned Service Tribunal in arriving at the conclusion that respondent was a civil servant within the meaning of Civil Servants Act, 1973 and as such the appeal filed by him against the order of Chief Justice of Pakistan removing him from service, was maintainable before the Tribunal, mainly relied on the observations of this Court in the case of Hadi Bux (supra) which also considered the two earlier decisions of this Court reported as Abbas v. Hon'ble Chief Justice (supra) and Government of Punjab v. Mubarik Ali Khan (supra). Since the sheet‑anchor of the argument of respondent in the present appeal in the decision of this Court in Hadi Bux' case (supra) we would like to examine the facts of this case in some detail.
In Hadi Bux's case, supra, the appellant was appointed as Additional Secretary in the Provincial Assembly of Sindh w.e.f. 19‑12‑1989 on the basis of the recommendations of the Selection Committee by notification dated 24‑2‑1990. On completion of his probationary period, the appellant's appointment was confirmed on 13‑6‑1990. The services of the appellant were terminated by the Speaker of Sindh Assembly by order dated 12‑8‑1991. This order of the Speaker of Sindh Assembly was challenged by the appellant in a service appeal before the Sindh Service Tribunal which was dismissed on the ground that he was either a member of civil services of the Province nor he was holding any civil post in connection with the affairs of the Province. In appeal against the order of Sindh Service Tribunal, this Court held that the appellant was a civil servant within the meaning of Sindh Civil Servants Act, 1973 as he was holding a civil post in connection with affairs of the Province. The two earlier decisions of this Court reported as Abbas v. Hon'ble Chief Justice and Government of Punjab v. Mubarik Ali Khan supra, were referred in the judgment in Hadi Bux's case, supra, in support of the conclusion that the appellant in Hadi Bux's case, supra, was a person holding the post in connection with the affairs of the Province of Sindh. We may mention here that in Abbas's case the appellant was held to be a civil servant as it was found that the High Court Establishment Rules were deemed to have been framed under section 26 of the Sindh Civil Servants Act in view of Article 241 of the Constitution. For that reason it was held that the violation of the terms and conditions of service was justifiable before the Service Tribunal constituted under, the Sindh Service Tribunals Act, 1973. In Hadi Bux's case, supra, the ratio laid down by this Court in treating the appellant in that case as civil servant was, that the terms and conditions of the, services of the appellant in that case were governed by rules framed under Civil Servants Act which stood incorporated in the rules framed by the Speaker of Sindh Assembly by reference. It is, therefore, quite clear that both in Hadi Bux's case as well as in Abbas's case supra, this Court reached the conclusion that the services of the appellants in both the above‑referred cases were governed under the rules which were framed or deemed to have been framed under the Civil Servants Act and as such the dispute relating to the terms and conditions of their services was amenable to the jurisdiction of the Service Tribunal established under the Sindh Service Tribunals Act, 1973. No doubt in the judgment in Hadi Bux's case, supra, reference was also made to the case of Government of Punjab v. Mubarik Ali Khan, supra, but this reference was made in the context that in Mubarik Ali Khan's case, supra, also the respondents were found to be the persons employed in connection with the affairs of the Province. The ratio in Mubarik Ali Khan's case, supra, however, unequivocally laid down that persons employed in the Provincial High Courts were not civil servants for the purpose of Civil Servants Act and the Service Tribunals Act. This ratio in Mubarik Ali Khan's cash supra, has not been dissented so far in any other subsequent…
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