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Civil Revision No. 644 of 1982, decided on 3rd May, 1983.

‑S. 2 (1) (b)‑Civil servant on deputation‑Employee of Government of Punjab sent on deputation to Punjab Arts Council an organisation under administrative control of Punjab Government‑Employee, held, on deputation from one department of Provincial Government to another authority under same Government and exception provided in cl. (b) of subsection (l) of S. 2 not attracted in circumstances Employee holding lien over a civil post in his parent department during period of deputation is a civil servant and civil Court has no jurisdiction to adjudicate upon dispute arising out of terms and conditions of service of such employee.

Muhammad Rashid Malik for Petitioner

Tanvir Ahmed Khan, A. A.‑G. for Respondents Nos. 1, 2, 4 and 6.

Masud Javid for Respondent No. 3.

Date of hearing : 14th March, 1983. .

The petitioner by means of C. M. No. 5666‑82 has prayed for an interim relief against respondents Nos. 3 and 5. The decision of this applica tion will have bearing on the disposal of the revision petition; it is, therefore considered expedient to decide the revision petition alongwith this application. .

2This revision petition under section 115, C. . .arises out of the order, dated 26th April, 1982 of the learned Additional District Judge, Lahore whereby he dismissed petitioner's appeal against the order, dated 8th February, 1982 of learned Civil Judge, Lahore who had returned the plaint to the petitioner for its presentation before the competent forum,

3. The petitioner instituted a suit for declaration to the effect that the order of his removal from service, dated 18th January, 1982 of respondent No. 1 is illegal and having been passed without lawful authority. He prayed as a consequential relief against the respondents that he be restored to his status as Administrative Officer with the borrowing agency till the settlement of his leave case and permit hire to hand over the charge and return back to the parent department.

4. The petitioner was a provincial employee in the Irrigation and Power Department of the Government of Punjab. He was sent on deputation by the Secretary, Government of Punjab, Irrigation any Power Department, Lahore vide his order, dated 17th February, 1976 with Punjab Arts Council as Administrative Officer for a period of three years. After the expiry of the period of his deputa tion the Secretary, Services, General Administration and Information

Department (respondent No. 6) on the request of the parent department of the petitioner vide his order, dated 11th November 1979 repatriated the petitioner to the Irrigation and Power Department. The aforementioned order was implemented on 27th February 1980 with the concurrence of the Governor of Punjab. The petitioner did not join his parent department and consequently proceedings under the Efficiency and Discipline Rules, 1975 were taken against him, which resulted in his removal from service. He thereafter instituted the above‑mentioned suit for declaration in the Civil Court, which was returned to him and appeal against the same failed before the learned lower appellate Court. Hence this petition.

5. Learned counsel for the petitioner contended that the Civil Court returned the plaint on an erroneous assumption of fact that the petitioner is civil servant. He stated that the petitioner being on deputation with the Punjab Arts Council, was not a civil servant and his case is covered under an exception to sub‑para. (i) (o) of section 2 of the Punjab Civil Servants Act, VIII of 1974. The petitioner did not relinquish his charge on 27th February, 1980 when his substitute had joined the Punjab Arts Council and proceeded on leave. He is still on deputation with the Punjab Arts Council.

6. Mi. Tanvir Ahmad Khan, learned Assistant Advocate‑General appeared on behalf of respondents Nos. 1, 2, 4 to 6 on 14th February, 1983 and sought adjournment to have a consistent stand on behalf of the Provincial Government as he visualised difference of opinion between the two heads of the Departments represented by him. He has submitted that the petitioner is a civil servant and the dispute raised in the instant suit arises out of the terms and conditions of his service; the civil Court has no jurisdiction in the matter and his suit was rightly returned to him for presentation before the Punjab Service Tribunal.

7. Mr. Masud Javed, learned counsel for the respondent No. 3 stated that the petitioner is a civil servant and that he was relieved of his duties from the Punjab Arts Council on 27th February, 1980. He did not join his parent department since then and disciplinary action was taken by his parent department. He supported the learned Assistant Advocate‑General on the point that the Civil Court has no jurisdiction to try the petitioner's suit.

8. Learned counsel for the parties have brought to the notice of this Court that the petitioner's order of removal from service has been set aside by the Secretary, Irrigation and Power Department, as such, his grievance against that order has already been redressed.

9. The main question which falls for determination in this case is as to whether the petitioner was a civil servant at the relevant tithe, if so, whether the civil Court had the jurisdiction to try his suit or not. In order to appreciate this point the perusal of clause (b) of subsection (1) of section 2 of the Punjab Civil Servants Act, 1974 ; relevant to the extent is necessary and the same is reproduced hereunder :‑‑

"2. Definitions:‑In this Act, unless there is anything repugnant in the subject or context,‑‑

(a) ... ... ... ... ...

(b) "civil servant" means a person who is a member of a civil service 3 of the Province or who holds a civil post in connection with the affairs of the Province, but do include‑

(i) a person who is on deputation to the province from the Federation or any other Province or authority,"

Admittedly the petitioner being a n employee of the Government of Punjab was sent on deputation by the Secretary to the Government of Punjab, Irrigation and Power Department _o Punjab Arts Council which is and the administrative control of the Secretary to the Government of Punjab, Information, Culture and Tourism Department. He was, therefore, on deputation from one department of the Provincial Government to another authority under the administrative control of the same Government. The exception provided in clause (b) of subsection (1) of section 2 of the Punjab Civil Servants. Act, 1974 is not attracted in the circumstances of the case. The exception covers the case of a person who is on deputation to a Province A from the Federation or any other Province or authority. The petitioner holds post in his parent department and he had a lien over that post in the parent department during the period he remained on deputation with the Punjab Arts Council. It is, therefore, clear that the petitioner held a civil post in connection with the affairs of the Province as such he being a civil servant, the Civil Court had no jurisdiction to adjudicate upon they dispute arising out of the terms and conditions of his service. The suit was rightly returned to the petitioner and no exception can be taken against the impugned orders passed by the learned lower Court in the matter.

10. The petitioner, if so advised, may rejoin his parent department which cannot insist his joining on his repatriation and expiry of his period of deputation and moreso for the stand taken by the department before the Civil Court to the effect that the petitioner stood repatriated w.e.f. 27th February 1980 to his parent office and that he deliberately absented himself from duty thereafter.

11. As regards his claim for medical leave, etc. the matter can be decided by the Provincial Government and in case his grievance is not redressed in accordance with law he may approach the competent forum for such relief.

12. Subject to the observations made above this petition is dismissed with no order as to costs.

M. Y. H. Petition dismissed.

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