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Appeal No. LHR‑262 of )981‑Pb., decided on 28th April, 1982.

‑‑‑ S. 2 (n) and Sched. II f cl. (xxviii)‑Ticket Examiners of Punjab Road Transport oar‑‑Workmen‑Not civil servants Cannot claim superannuation age of 60 years fixed for civil servants Retirement made on age; of 55 years under Rules of Punjab Road Transport Board upheld‑Decision of Labour Court that Ticket Examiners of Punjab R4iad Transport Board could be benefited by provisions of Punjab Civil Servants Act, 1974 set aside by Labour Appellate Tribunal‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38.

1971 S C M R 454 distinguished.

Muhammad Saleem Khan for Appellant.

Muhammad Zaman Qureshi for Respondents.

Date of hearing: 24th April, 1982.

As the facts and law points involved in the two appeals are the same, they are being disposed of together through this single judgment.

2. The facts are that Muhammad Nawaz and Muhammad Akbar respondents were appointed by the Provincial Controller of Transport, Government of Punjab as conductors in 1951. In April, 1952 PRTB came into existence by the amendment of Motor Vehicles Ordinance and the services of the two respondents were transferred to PRTB alongwith the whole establishment. Since then the respondents had been serving under the PRTB: and getting promotions. Finally they were promoted as Ticket Examiners. They were retired from service, according to the PRTB rules, under which the age of retirements was 55 years. The respondents challenged the order of retirement in their grievance petitions made under section 25‑A of the Industrial Relations Ordinance, 1969 on the ground that since they were appointed as Government servants, they were governed by those rules by which Go vernment servants are governed, according to which, the age of superannua ti6n was sixty years. The petitions were opposed by the appellant. The learned trial Judge relying upon 1971 S C M R 454 held that the respondent continued to be the employees of the Government and, therefore, the age of retirement was sixty years. The learned lower Court at the same time decided that the respondents were not civil servants as they were included in the definition of worker defined in the Workmen's Compensation Act and thus the Labour Court was compe tent to hear this case.

3. The learned counsel for the respondents has argued that the respondents are entitled to the same rights which civil servants have under' the Constitution of 1962. There is no provision in the Constitu tion of 1962 that the age of retirement would be 55 years or 60 years. There is no such provision even in the Constitution of 1973. The age of superannuation is given in section 12 of the Civil Servants Act, 1974 but this section would help only those employees who are civil servants and since; according to the finding of the learned lower Court and even according to the learned counsel for the respondents, the respondents are not civil servants, by no stretch of imagination they can claim the age of superannuation of 60 years. According to the definition of workman given in section 2 (n) read with Schedule II, clause (xxviii) of the Work men's Compensation Act, drivers, cleaners, conductors and checkers are included in the definition of workman. Checkers and Ticket Examiner is one and' the same and thus the respondents are covered by the definition of workman given in the Workmen's Compensation Act and are excluded from the definition of civil servant. Learned counsel for the respondents has pot been able to show any other provision of law under which, the age of superannuation of the Government servants may be of 60 years. Since the respondents are not, covered by the definition of civil servant they cannot take benefit of Civil Servants Act, in which the age of superannuation of a civil servant is given as 60 years. Learned counsel for the respondents in support of his argument that the respondents can take benefit of the Civil Servants Act has relied upon 1971 S C M R 454. The authority is distinguishable, because it has not been said that the age of superannuation of the Government servants would be according to the provisions of Civil Servant Act even though the incumbent concerned is not a governed by the said Act. The observations made are only these that an employee of Road Transport Corporation continues to enjoy the protection of guarantee regarding service insured to Government servants by the Constitution. The Constitution does not lay down any rule to the effect that the age of superannuation of Government servants or civil servants will be sixty years. If the respondents wanted to take benefit of the Civil Servants Act, they should have gone to the Services Tribunal but I am afraid since they are covered by the definition of 'workman' given in the Workmen's Compensation Act, the Services Tribunal would have refused to remedy their grievance on the ground of lack of jurisdiction. When the respondents are not covered by the, definition of civil servant' given in the Civil Servants Act, according to, the provisions of which, they want to take benefit, there is no right"4 guaranteed to them and the Labour Court wrongly held that they could be benefited by, the Civil Servants Act.

4. Learned counsel for the respondents has said that the points raised by the learned counsel for the appellant are neither given in the written statement, nor in the memorandum of appeals. From the very beginning the appellant is contesting the claim of the respondents that their age of superannuation is sixty years, therefore, no new point has been argued which may not have been covered by the pleadings or by the memorandum of appeal.

5. As a result of the observations made above, I accept the two appeals and setting aside the impugned decision of the learned lower Court, 'dismiss the grievance petitions of the respondents. .

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