21/02/2025
P L D 2006 Supreme Court 602
Present: Iftikhar Muhammad Chaudhry, C. J., Rana Bhagwandas, Javed Iqbal, Abdul Hameed Dogar, Faqir Muhammad Khokhar, Mian Shakirullah Jan, M. Javed Buttar Tassaduq Hussain Jillani and Syed Jamshed Ali, JJ
MUHAMMAD MUBEEN-US-SALAM and others--- Versus FEDERATION OF PAKISTAN
Questions for determination:
(1) Whether or not the teachers/employees of PAF Educational Institutions managed by the Managing Committees or bodies are civil servants under section 2(1)(b) of the Civil Servants Act, 1973 or for the purpose of section 2-A of the Service Tribunals Act, 1973?
(2) Whether employees/Teachers of PAF Educational Institution can invoke the jurisdiction of the Tribunal as well as of this Court under Article 212(3) of the Constitution of Islamic Republic of Pakistan?
(3) The question of validity and vires of section 2-A of the Service Tribunals Act, 1973 on the touchstone of Article 212 and other provisions of the Constitution of Islamic Republic of Pakistan.
Essentially, the CSA, 1973, containing the definition of "civil servant" was promulgated in pursuance of command of Article 240 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as "the Constitution"], which reads thus:---
"240. Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined –
(a) in the case of the services of the federation, posts in connection with the affairs of the Federation and Ali-Pakistan Services, by or under Act of [Majlis-e-Shoora (Parliament)]; and
(b) in the case of services of a Province and posts in connection with the affairs of a province, by or under Act of the Provincial Assembly.
Explanation.--In this Article, "All Pakistan Service" means a service common to the Federation and the Provinces, which was in existence immediately before the commencing day or which may be created by Act of [Majlis-e-Shoora (Parliament)].
Obviously, the Administrative Tribunals were constituted under Article 212 (1)(a) of the Constitution. An appeal against their orders/judgments with the leave of the Court has been provided under sub-Article (3). For convenience same is reproduced herein below:--
"212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of
(a) Matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
Perusal of the definition of `civil servant' indicates that at least three types of persons were excluded from the definition of `civil servant';
firstly, those who are on deputation to the Federation from any Province or other authority;
secondly, who are employed on contract, or on work-charged basis or who are paid from contingencies; and thirdly who are `workers' or `workmen' as defined in the Factories Act, 1934, or the Workmen's Compensation Act, 1923
From perusal of the definition of `civil servant' in section 2(1)(b) of the CSA, 1973, it emerges that in order to attain the status of a `civil servant' it is necessary that the person should be member of All Pakistan Service or of a civil service of the Federation, or who holds a civil post in connection with the affairs of the Federation. There may be some employees who fall within the definition of `civil servant' for the purpose of STA, 1973 but do not enjoy the status of All Pakistan Service or of a civil service of the Federation. Both these expressions are not synonymous, as declared by this Court in the case of Registrar, Supreme Court of Pakistan v. Wali Muhammad (1997 SCMR 141).
it is quite clear that 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.
It is important to note that enactment of section 2-A of the STA, 1973 is not new to statutory regime. In this behalf, presently there are two identical provisions of law, one by Federal Legislature and one by Provincial Legislature of Sindh on the subject, implication of which will be discussed hereinbelow.
In pursuance of West Pakistan Water and Power Development Authority (Amendment) Act, 1975, the West Pakistan Water and Power Development Authority (Amendment) Ordinance XVI of 1975 was amended and section 17(1-B) of the Pakistan Water and Power Development Authority Act, 1958, was added. For the sake of convenience same is reproduced hereinbelow:--
"[(1-B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973).]"
Significance of the amendment is that holder of a post under the Authority was declared to be in the Service of Pakistan. This furnishes proof that by making declaration, Legislature is competent to declare an employee, under any Authority, Corporation, Body or Organization established by or under the Federal law, to be in the service of Pakistan, if he holds a post or office in connection with the affairs of the Federation or of a Province.
"2-A. Service under certain Corporations, etc. to be service of Pakistan.---Service under any authority, Corporation, body or organization established by or under a Federal law or which is owned or controlled by the Federal Government or in which the Federal Government has a controlling share or interest is f hereby declared to be service of Pakistan and every person holding a post under such authority, Corporation, body or organization shall be deemed to be a civil servant for the purposes of this Act."
this provision has impliedly included in the definition of civil servant, such persons, who stand excluded by means of clauses (i), (ii) and (iii) of section 2(1)(b) of the CSA, 1973. It may be recalled that there are a number of persons who are serving as deputationists, contingency staff as well as workmen in connection with the affairs of the Federation of Pakistan who could not otherwise avail remedy for the redressal of their grievance before the Service Tribunal but by enacting section 2-A in STA, 1973, persons working under any authority, Corporation, body or organization established by or under a Federal law, etc, have been made eligible to seek remedy before service tribunal.
Section 2-A of the STA, 1973 has not advanced the cause of employees of Corporations, etc. by providing them remedy before the Service Tribunal because initially in the case of a Corporation/body, etc. if it has statutory backing, and rules are framed thereunder, its employees other than the workers, used to invoke the jurisdiction of the High Court under Article 199 of the Constitution i.e. a remedy which is always considered to be speedy, expeditious and inexpensive; whereas the employees governed by the relationship of master and servant rule used to approach the Civil Court for the redressal of their grievance while workers and the workmen were eligible to seek remedy before the local Labour Courts with a right of appeal before the respective High Courts and appeal under Article 185(2) or a petition for leave to appeal under Article 185(3) of the Constitution before this Court, under which this Court enjoys vast jurisdiction, as compared to limited jurisdiction under Article 212(3) of the Constitution.
In the Constitution of United States there is no express provision, empowering the Supreme Court of United States to invalidate a statute. Nevertheless, in the case of Marbury (ibid), Chief Justice Marshall observed that "it is, emphatically, the province and duty of the judicial department to say what the law is; those who apply the rule to particular cases, must of necessity expound and interpret that rule; if two laws conflict with each other, the Courts must decide on the operation of each; so if a law be in opposition to the Constitution; if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution; or conformably to the Constitution, disregarding the law; the Court must determine which of these conflicting rules governs the case; this is of the very essence of judicial duty; if then, the Courts are to regard the Constitution, and the Constitution is superior to any ordinary Act of the Legislature, the Constitution and not such ordinary Act, must govern the case to which they both apply".
The principle laid down in Marbury case (ibid) has been followed invariably by the Courts of different jurisdictions. Reference in this behalf may also be made to the case of Australian Communist Party v. The Commonwealth 183 CLR 1 (1950-51)]. It is also to be noted that although in the Australian Constitution as well, there is no express provision, authorizing the High Court (which is the highest court of the country) to strike down a statute, yet a number of laws have been struck down by the said Court being contrary to constitutional provisions, essentially on the basis that Constitution being the highest law every statute must conform to its parameters and where it fails to do so, it must be held repugnant to the Constitution and struck down. The Supreme Court of India expressed similar view.
Thus, foregoing discussion leads us to conclude that this Court is competent to examine the vires of a statute, if it has been promulgated in derogation of any of the provisions of the Constitution, apart from Article 8 of the Constitution.
Under section 5 of tile STA, 1973, the Service Tribunal is competent to adjudge the validity of a Statute, therefore, the Supreme Court while granting leave to appeal under Article 212(3) of the Constitution, being an appellate forum, cannot logically be denied the same power as an appeal is always considered to be continuation of the original proceedings.
if 2-A is accepted then the persons, working in the Government controlled Corporation, either on deputation or on contract basis or in the capacity of worker or workman, shall enjoy the status of the civil servant on account of the legal fiction because no such declaration is required to be made in their favour, as they are already working in the Government departments.
In view of above position, we are of the opinion that Article 260 of the Constitution does not mandate to Legislature to declare any person to be in the service of Pakistan, and by deeming clause to be a civil servant for the purpose of STA, 1973. We come to the conclusion that a person can be declared to be in service of Pakistan but not necessarily a civil servant, in terms of CSA, 1973.
It is equally important to observe that under Article 260 of the Constitution, a person can be declared to be in the service of Pakistan if his duties have a nexus with the affairs of the Federation, meaning thereby that a person who is playing an active role in the performance of sovereign functions of the State and exercises public powers can legitimately claim to be in the service of Pakistan. Undoubtedly the Parliament can declare any service to be service of Pakistan but subject to the condition that such declaration should not be based on a legal fiction, as done in the instant case, whereby through a deeming clause, a person of a Government controlled Corporation in terms of section 2-A of the STA, 1973 has been declared to be in the service of Pakistan and for such reason he shall be deemed to be a civil servant. Secondly, conditions under Article 260 of the Constitution with regard to having nexus/connection with the affairs of the Federation of Pakistan have not been fulfilled.
The primary test must always be whether the functions entrusted to the organization or person concerned are indeed functions of the State involving some exercise of sovereign or public power; whether the control of the organization vests in a substantial manner in the hands of Government; and whether the bulk of the funds is provided by the State. If these conditions are fulfilled, then tine person including a body politic or body corporate, may indeed be regarded as a person performing functions in connection with the affairs of the Federation or a Province; otherwise not.
"statutory fiction should be carried to its logical conclusion as held in Muhammad Yasin v. Sheikh Ghulam Murtaza and another (PLD 1988 SC 163) but the fiction cannot be extended beyond the language of the section by which it is created or by importing another fiction," therefore, to find out a solution, it has been observed that "principle of harmonization shall be attracted" and ultimately it was held that "the impact of deeming clause could be curtailed if it produces a disgraceful result."
Constitution have restricted the power of the Parliament to declare any service to be service of Pakistan by placing an embargo that such person should also hold a post or office in connection with the affairs of the Federation. Unless this condition is fulfilled, every service cannot be declared by the Parliament to be service of Pakistan.
It is important to note that intention of the framer of the Constitution had never been to provide a forum of the Service Tribunal to the employees of the Government controlled Corporations, in terms of section 2-A of the STA, 1973. Had it been so, it could have incorporated the same in Article 212(1)(a) of the Constitution as provided under Article 323A of the Constitution of India, which reads as under:-- "323A. (1). Parliament may, by law, provide for the adjudication or trial by administrative tribunals of disputes and complaints with respect to recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India or of any Corporation owned or controlled by the Government.
section 2-A creates a new and distinct class of Government servants, which is neither covered by the definition of `civil servant' nor by the definition of `service of Pakistan', seems to be correct. Therefore, for this reason alone section 2-A of the STA, 1973 becomes ultra vires of the Constitution because the employees of Government controlled Corporations etc. are not covered by the definition of `service of Pakistan' as provided under Article 260 of the Constitution nor their cases can be taken up under Article 212(1)(a) of the Constitution, as such the Federal Service Tribunal has no jurisdiction to grant them relief in terms of Article 212(1)(a) of the Constitution because under this provision of the Constitution, administrative tribunals are set up for the purpose of exercising jurisdiction in respect of the terms and conditions of service of those persons, who are in the service of Pakistan. The terms and conditions of' service of those employees, however, are required to be specified under Article 240 of the Constitution by or under Act of the Parliament. Thus, the conclusion would be that only those persons, who are in the service of Pakistan, as discussed hereinabove, and if their terms and conditions are governed either by a statute or statutory rules, in terms of Article 240 of the Constitution, can seek remedy before the Service Tribunals.
It may be noted that under section 2-A of the STA, the Legislature has not declared the service of a person in the Government controlled organization to be the `service in connection with the affairs of the Federation'. It may also be noted that under Article 240 of the Constitution `service of Pakistan' means "any service, post or office in connection with the affairs of the Federation."
It is concluded that the persons working in the Government controlled Corporations would not be deemed to be holding a post under section 2-A of the STA, 1973 unless there is warrant under law i.e. that a statute governs appointments and regulates terms and conditions.
In order to make out a case for the purpose of hearing before a Service Tribunal, it person falling within the scope of Section 2-A of the STA, 1973, is required to hold a post, otherwise, in absence of such mandatory condition, he would not be deemed to be in service of Pakistan. Therefore, the Service Tribunal would have no jurisdiction to grant him relief.
It is declared that the employees of the Government controlled Corporations, whose terms and conditions have been determined by means of a statute, in terms of Article 240 of the Constitution, would be considered to be civil servants, provided they can show that a post or office is held by them; secondly, the employees whose terms and conditions are not governed by a Statute but they are discharging their functions in connection with the affairs of the Federation, they can invoke the jurisdiction of the High Court under Article 199 of the Constitution for the redressal of their grievance; thirdly, the persons who are not covered under these two categories, they may be left to avail the remedy subject to their terms and conditions and; fourth category of the persons shall have the remedy before the forums provided by the labour laws.
first part of section 2-A of the STA, 1973, whereby the service of a statutory Corporation has been declared to be the service of Pakistan, seems to be in accordance with the Constitution subject to Articles 240 and 260 of the Constitution but second part is ultra vires of the Constitution because post or office cannot be declared to be the service of Pakistan. Since such persons do not hold any post in connection with the affairs of the Federation, they cannot be deemed to be civil servants.
108. The threadbare discussion on the subject persuades us to hold:---
(1) Section 2-A of the STA, 1973 is, partially, ultra vires of Articles 240 and 260 of the Constitution, to the extent of the category of employees, whose terms and conditions of service have not been determined by the Federal Legislature and by a deeming clause they cannot be treated civil servants as defined under section 2(1)(b) of the CSA, 1973 and they are not engaged in the affairs of the Federation.
(2) Section 2-A of the STA, 1973 cannot be enforced in the absence of amendment in the definition of the civil servant under section 2(1) (b) of the CSA, 1973.
(3) The cases of the employees under, section 2-A, STA, 1973, who do not fall within the definition of civil servant as defined in section 2(1)(b) of the CSA, shall have no remedy before the Service Tribunal, functioning under Article 212 of the Constitution and they would be free to avail appropriate remedy.
109. Now the question is as to what would be the effect of this judgment on the cases pending before this Court and Federal Service Tribunal. In this behalf it may be noted that following the rule of past and closed transactions, laid down in the case of Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445), it is directed as follows:--
(a) The cases which have been decided finally by this Court in exercise of jurisdiction under Article 212(3) of the Constitution shall not be opened and if any Review Petition, Misc. Application or Contempt Application, filed against the judgment is pending, it shall be heard independently and shall not be affected by the ratio of this judgment.
(b) The proceedings instituted either by an employee or by the an employer, pending before this Court, against the judgment of the Service Tribunal, not covered by category (a) before this Court or the Service Tribunal shall stand abated, leaving the parties to avail remedy prevailing prior to promulgation of section 2-A of the STA, 1973.
(c) The cases or proceedings which are not protected or covered by this judgment shall be deemed to have abated and the aggrieved person may approach the competent forums for redressal of their grievances within a period of 90 days and the bar of limitation provided by the respective laws, shall not operate against them till the expiry of stipulated period.
(d) The cases in which the order of Service Tribunal has been implemented shall remain intact for a period of 90 days or till the filing of appropriate proceedings, whichever is earlier.
(e) The Service Tribunal shall decide pending cases under section 2-A of the STA, 1973 in view of the above observations. However, if any of the cases is covered by clause `c' (ibid), a period of 90 days shall be allowed to aggrieved party to approach the competent forum for the redressal of its grievance.
