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Petitioner: NASIRUDDIN VS Respondent: DIRECTOR-GENERAL, PAKISTAN BROADCASTING CORPORATION, ISLAMABAD
1999 P L C (C
1999 P L C (C. S.) 740
[Federal Service Tribunal]
Present: Abdul Razzaq A. Thahim, Chairman Aftab Ahmed and Roshan Ali Mangi, Members
NASIRUDDIN
Versus
DIRECTOR‑GENERAL, PAKISTAN BROADCASTING CORPORATION, ISLAMABAD and another
Appeal No. 122(R) of 1996, decided on 12th June, 1997.
(a) Service Tribunals Act (LXX of 1973)‑‑‑‑
‑‑‑‑Ss. 2(a) & 4‑‑‑Pakistan Broadcasting Corporation Act (XXXII of 1973), S.12(1‑A) [as added by Pakistan Broadcasting Corporation (Amendment) Act (IV of 1996)]‑‑‑Appeal‑‑‑Competency‑‑‑Claim of civil servant for move‑over in Scale 8 from Scale 7 having been declined, civil servant had challenged matter in appeal filed by him before Service Tribunal‑‑‑Competency of appeal was objected to contending that on coming into force of Pakistan Broadcasting Corporation (Amendment) Act, 1996 situation had changed and under S.12(1‑A) of the amended Act persons transferred to Corporation had ceased to be civil servants in the service of Pakistan and had become employees of Corporation, thus, Service Tribunal had no jurisdiction to adjudicate matter in question in appeal‑‑‑Person was working as a civil servant since 1958 in Radio Pakistan and, subsequently, Radio Pakistan was converted into Corporation in 1972‑‑‑Service of such person was in continuity and on promulgation of various Ordinances, Acts, etc. that situation had not changed‑‑‑Rights of such employee, thus, could not be taken away and Pakistan Broadcasting Corporation (Amendment) Act, 1996 could not operate retrospectively nor terms and conditions and rights of old employees of the Corporation could be changed‑‑‑Employees of Corporation having been serving in connection with the affairs of Federation, Federal Service Tribunal, thus, had jurisdiction to entertain their appeals‑‑‑Appeal filed by civil servant, thus, was maintainable.
1995 PLC (C.S.) 39; 1993 PLC (C.S.) 1443; PLD 1992 SC 144 and 1995 SCMR 1593 ref.
(b) Civil service‑‑‑‑
‑‑‑‑Move‑over‑‑‑Entitlement‑‑‑Claim of civil servant for move‑over in Scale 8 from Scale 7 was rejected on ground that civil servant did not have two 'good' reports which was essential condition for grant of move‑over‑‑ Comparative chart of overall Grading of A.C.Rs. of civil servant produced on record on part of Authority had shown that civil servant had 'average reports for three years and 'good' reports for two years‑‑‑Authority, thus, was wrong to say that civil servant did not have two 'good' reports‑‑ 'Average' reports, however, were no bar to grant of move‑over to civil servant, but 'Average' reports were treated as 'good' for grant of move over‑‑‑Civil servant, thus, was entitled to grant of move‑over from Scale 7 to Scale 8 in circumstances.
PLD 1992 SC 144 and 1994 SCMR 544 ref.
Abdur Rahim Bhatti for Appellant.
Tariq Mahmood Jahangiri for Respondents.
Date of hearing: 20th May, 1996.
JUDGMENT
ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ‑‑‑Appellant Mr. Nasiruddin joined service as LDC in the Radio Pakistan on 3‑3‑1958. While he was working as Assistant, Pakistan Broadcasting Corporation (hereinafter referred to as Corporation) was established by Ordinance in 1972. Presently, he is working as Administrative Manager and his case is that he had reached the maximum of Scale No.7 on 1‑12‑1992 and was due for move‑over in Scale No.8 with effect from 1‑12‑1993 which was declined while others were granted vide order dated 27‑11‑1995. Being aggrieved, he filed departmental appeal on 30‑11‑1995 but the same was rejected vide Memo dated 18‑1‑1996 on the ground that move‑over was not granted as he did not have two good reports which was essential condition for grant of move‑over. He then filed this appeal before this Tribunal under section 4 of the Service Tribunals Act, 1973.
2. The appeal was admitted and notices were issued to the respondent department for comments. The comments have been filed and we have heard the learned counsel for the parties.
3. Mr. Abdul Rahim Bhatti, learned counsel for the appellant submitted that the appellant has no adverse record but the department has arbitrarily deprived him of move‑over. He has also raised the objection about the composition of Move‑Over Committee and referred to the cases reported in 1995 PLC (CS) 39; 1993 PLC (CS) 1443 and PLD 1992 SC 144. He also argued on the question of jurisdiction of the Tribunal raised in the comments and to meet this objection he has referred to 1995 SCMR 1593 wherein Their Lordships have held that employees of Corporation are civil servants and this Tribunal has jurisdiction to entertain their appeals.
4. Mr. Tariq Mahmood Jahangiri, the learned Advocate for Pakistan Broadcasting Corporation raised legal objection of jurisdiction and submitted that on coming into force the Pakistan Broadcasting Corporation (Amendment) Act, 1996, the situation has changed and under section 12(1‑A) ibid the persons transferred to the Corporation under Sub section (1) shall cease to be civil servants in the service of Pakistan and become employees 'of the Corporation and, therefore, this Tribunal has no jurisdiction to adjudicate in the matter and the earlier decision of the Supreme Court is not applicable in this case. On merits, it has been (sic) that the appellant had not two (sic) reports as required under the rules and, therefore, he was not entitled to move‑over.
5. Before we come to the merits, we would like to dispose of the legal objection of jurisdiction first. The appellant is working as a civil servant since 1958 when he started his career as LDC in the Radio Pakistan. Subsequently, Radio Pakistan was converted into a Corporation called as Pakistan Broadcasting Corporation in 1972 but it is a fact that his service is in continuity and on the promulgation of various Ordinances, Acts, etc. the situation has not changed and the terms and conditions of the appellant have not changed and rights cannot be taken away. The Hon'ble Supreme Court in the case reported in 1995 SCMR 1593 (Chairman, Pakistan Broadcasting Corporation v. Nasir Ahmed and others) has held as under:
"The legal position of the employees of the Corporation is not different. The Corporation was established by the Pakistan Broadcasting Corporation Act, 1973 (Act XXXII of 1973). Section 4 constitutes a Board of Directors consisting of Chairman of the Board and not more than seven other Directors, all of whom are to be approved by the Federal Government and hold office during the pleasure of the Government. Section 10(1) enumerates the functions of the Corporation while subsection (2) provides that "in the discharge of its functions and Corporation shall be guided on questions of policy by the instructions, if any, given to it from time to time by the Federal Government while shall be the sole Judge as to whether a question is a question of policy." The Federal Government has full control of Corporation's finances and it can be wound up only by an order of the Federal Government. The Corporation is under Government control which appoints the Chairman and the Directors. No share has been offered to the public nor any director represents the listeners or the public. The Government has monopoly over broadcasting and the listeners have no right to make their choice. Such a Government controlled and regimented Corporation playing an important role in the media of n information is like a department of the Government. The Ministry of Information and Broadcasting is an important Ministry playing effective role in connection with the affairs of the Federation." Therefore, respondent No.1 holding a civil post will be covered by the definition of "Civil servant" as defined in section 2(a) of the Service Tribunals Act, 1973. Thus the Federal Service Tribunal had the jurisdiction to entertain and decide the appeal. We may however observe that although respondent No. l is a civil servant for purposes of invoking the jurisdiction of the Tribunal in view of section 12(1) of the Act the Chairman was competent to pass the impugned order of retirement."
We are of the view that the employees of Corporation are serving in connection with the affairs of the Federation and this Tribunal has got the jurisdiction to entertain their appeals. Similar view was taken by this Tribunal in the earlier Appeal No.457(R)/95 filed by the appellant, and we reiterate the same view. Moreover, the PBC (Amendment) Act, 1996 cannot operate retrospectively and nor the terms and conditions and rights of old employees of the Corporation could be changed.
6. For grant of move‑over from Scale 7 to 8, a person should have earned two 'good' reports during the last five years. The cases for move‑over to PBC Officers from Scale 7 to 9 were considered by a Move‑Over Committee in its meeting held on 11‑10‑1995, but the appellant was not approved for move‑over as he could not earn two good reports or their PERs were preponderantly average. The respondent department along with the comments, has annexed the comparative chart of the Overall Grading of ACRs of the appellant as under:
1
1‑1‑1989 to 31‑12‑1989
Average
2
1‑3‑1990 to 31‑12‑1990
Good
3
1‑1‑1991 to 24‑6‑1991
Good
4
25‑6‑1991 to 31‑12‑1991 .
Good
5
1992 ...
Average
6
1993 ...
Average
As reflected from the above chart, the appellant has three 'Average' reports for the years 1989; 1992 and 1993; and two 'Good' reports for the years 1990 and 1991, therefore, it is wrong to say that he did not have two 'Good' reports. Moreover, it is a settled law that Average reports are no bar to grant of move‑over and average reports are treated as good for grant of move‑over. On this, we refer to judgments of the Hon'ble Supreme Court reported in PLD 1992 SC 144 and 1994 SCMR 544. In view of the authoritative judgments of the Supreme Court, we are of the view that the appellant is entitled to grant of move‑over from Scale 7 to 8, with effect from 1‑12‑1993. The appeal is allowed in the above terms.
H.B.T./189/ST.F. Appeal allowed.