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Civil Appeal No. 862 of 1984, decided on .29th January, 1986.

Against judgment, dated 3‑6‑1984 of Federal Service Tribunal, Islamabad in Appeal No. 24(R) of 1982).

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Civil Servants Act (LXXI of 1973), S. 14‑‑Leave to appeal granted to examine question whether respondent was not on contract re‑employment after his retirement from Army till date of termination of his re‑employment.

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Civil Servants Act (LXXI of 7973), Ss. 2(1)(b) & 14‑‑Leave to appeal granted to examine as to what was effect of definition of 'civil servant' in Civil Servants Act, 1973 on respondent's service in question; and his grievance before Service Tribunal.

‑‑‑Art. 212(3)‑‑Service Tribunals Act (LXX of 1973), S. 3‑‑Civil Servants Act (LXXI of 1973), Ss .2 (1) (b) & 14‑‑Leave to appeal granted to examine question whether Service Tribunal was competent to re‑open case after its order passed in appeal and what was effect of petitioner's not having challenged same within time in Supreme Court.

‑‑‑S. 3‑‑Civii Servants Act (LXXI of 1973), S. 14‑‑Appeal‑‑Appellant who held post in Army, taking no exception to jurisdiction of Tribunal and conceding part of relief claimed by respondent in appeal and apparently satisfied with decision of Tribunal‑‑Tribunal, on a miscellaneous application by respondent passing a subsequent order with regard to respondent's entitlement of civil pension for service rendered under contract‑‑Appellant, held, could not be allowed to challenge earlier order of Tribunal to which it had submitted whether ground of attack was purely jurisdictional or any other.

‑‑‑S. 3‑‑Service Tribunal‑‑Review‑‑Power of reviewing and reversing its earlier decision, held, was not possessed by Tribunal‑‑Judgment of Tribunal by which it reviewed and reversed its earlier decision declared without jurisdiction and set aside.

‑‑‑S. 14‑‑Contract employment‑‑Pension‑‑Service rendered on contract‑ Does not qualify for pension whatever length of service rendered may be.

Munir A. Shaikh, Deputy Attorney‑General with Ch. Akhtar Ali, Advocate‑on‑Record for Appellants.

Respondent in person.

Date of hearing: 29th January, 1986.

‑The Federation of Pakistan was allowed leave to appeal to examine the following questions of law arising out of the second judgment of the Service Tribunal, dated 3rd of June, 1984

Whether the respondent was not on contract re‑employment after his retirement from the Army till the date of termination of his re‑employment;

What is the effect of the definition of "Civil servant" in the Civil Servants Act, 1973 on respondent's service in question; and his grievance before the Federal Service Tribunal; and,

Whether the Service Tribunal was competent to reopen the case after its order, dated 1‑10‑1983 and what is the effect of the petitioner's not having challenged the same within time in this Court.

The respondent held the rank of Lt.‑Colonel in the Army in1964. Since 1957 he had been seconded for duty in the Inter‑service Intelligence Directorate. A proposal was made to the Government in December, 1964 to arrange his retirement from Army service and to then engage him in a civilian capacity on that very post which he was holding. The proposal as put forward contained the following terms and conditions‑‑

"(a) His pay including pension be fixed in the scale of Rs.2,300‑50 2,500 per month.

(b) To give him career security he should be confirmed in the appointment from the date of his employment as a civilian. The appointment may be redesignated as head J.I. M. (Civilian) instead of C.S.O.‑I (Military/Civil) as presently termed.

(c) Normal terms and conditions of service including age for retirement as applicable to other permanent Class I civilian officers should apply to him."

This proposal remained under consideration of the Government and was finally accepted and the acceptance conveyed, vide letter, dated 20th of April, 1966. There were material modifications. The terms as finally approved and material for the present appeal are as follows:‑‑

"(i)

‑‑He will draw Rs.2,260 p.m. (fixed) including his military pension.

He will hold this post for a period of 10 years, if the officer continues to be useful, Government would consider extending the term of his employment for such period as may take him to 55 years of age.

Anywhere in Pakistan or abroad.

Government accepts no liability to provide residential accommodation, but if it is provided, rent at the rate prescribed rates will be charged under civil rules.

As for Civilian Officers of equivalent status paid from the Defence Services Estimates."

When the post which the respondent was holding was re‑designated as Director he was allowed a Special Pay of Rs.150 p.m. for the same. His term of appointment was extended upto 13‑5‑1982 when he superannuated. In the meantime the National Pay Scales were introduced and he was allowed from 1‑8‑1973 to 31‑5‑1978 the pay in regular National Pay Scale 20. On detecting that the officer was on contract employment on fixed pay it was sought to re‑fix his pay as in the contract and to make recoveries of the over‑payments made to him by fixing him in National Pay Scale 20. Failing to get any appropriate redress within the department, the respondent filed an appeal before the Tribunal on 1‑2‑1982 claiming the following reliefs‑‑

"The impugned orders revising pay fixation of the appellant may be set aside and he may be treated as an officer having been retired from the Army at the young age of 44 years purely in the national interests and employed in a Civilian capacity with a title to all rights under the rules, as a civilian officer including pay and allowances and promotion except that his military pension will be deducted from his pay. It is also prayed that the learned Tribunal may be pleased to declare that the appellant is entitled to draw civil pension for the period he has rendered civil service in the I.S.I. Organisation. It is also requested that the arrears of pay due to him may also be paid."

The Service Tribunal by its first judgment, dated 1‑10‑1983 held that the respondent being a contract employee was not entitled to be fixed and paid in National Pay Scale 20. He was entitled to receive the fixed pay of Rs.2,260 as under the contract and the Special Pay of Rs.150 per month on re‑designation of the post to that of a Director. At the same time it was held that the subsequent enhanced pension was not liable to be absorbed in the contractual pay and the pension of Rs.600 which he was receiving when the contract was entered into had acquired fixity in the matter. At the same time, the Service Tribunal directed that a reference under section 23 of the Civil Servants Act, 1973 be made and the reasons therefore were expressed in the following terms:‑‑

"Before closing, we would also like to point out that the very basis of the fixation of pay on re‑employment of the officer, after his retirement from Military, was faulty, inasmuch as, in spite of the fact that he had been retired in order to avail of his knowledge, experience and ability as an officer of the I.S.I. Directorate, at the comparatively young age of 44 years, it would be unjust and unfair to pin him down to a salary at a fixed amount for rest of his career, i.e. upto superannuation at the age of 60. The non‑acceptance by Government of the recommendations made by the Directorate, I.S.I. in 1966, is clearly unfair and iniquitous and we would recommend that the matter may be placed before the President for Remedial action under section 23 of the Civil Servants Act, 1973. For this purpose, a copy of this order should be sent to the C.O. S. to the President.

As the recovery for over‑payments had already been waived by the Government and the Tribunal was informed of it no orders in respect of it were passed.

A miscellaneous application was filed by the respondent before the Service Tribunal on 26‑10‑1983 complaining that the judgment of the Service Tribunal made "no mention" of his request or prayer for entitlement of civil pension for the service rendered under contract. Another Bench of the Service Tribunal considered by the impugned order that in fact that prayer of the respondent had not been earlier dealt with. It proceeded to decide it and held as follows:‑‑

"The post held by the appellant was equivalent to the rank of Joint Secretary in an organization subordinate to the Federal Government. The petitioner‑appellant, being a cadre post holder, thus stood appointed as a member of All‑Pakistan Unified Grades and consequently became a civil servant within the meaning of and for the purposes of the Civil Servants Act, 1973. According to section 19 of the said Act he shall, therefore, be entitled, on retirement, to pension/gratuity in accordance with the Rules. The appeal in this regard is accepted and it is directed that the appellant‑petitioner should be allowed pension, in accordance with the relevant rules, for the services rendered by him on a civil post."

The contention of the learned Deputy Attorney‑General is that while disposing of the unattended prayer of the respondent by the impugned order the Service Tribunal has not only reviewed the earlier order but in substance reversed it effacing the contract and its effect so far as it regulated the terms and conditions of re‑employment of the respondent. According to the learned Deputy Attorney‑General, once it was found that the re‑employment of the respondent was under a contract of employment he could not qualify as a civil servant on the strength of definition of 'civil servants' contained in clause (b), subsection (i), section 2 of the Civil Servants Act which expressly excluded from the definition of 'civil servant' "a person who is employed on contract or on work‑charged basis or who is paid from contingencies". The relief by an appeal to the Service Tribunal under section 4 of the Service Tribunals Act was restricted to and could be availed of only by a civil servant as defined under the Civil Servants Act. On such statutory provisions, according to the learned Deputy Attorney‑General, the very first appeal before the Tribunal was incompetent and the adjudication was without 'jurisdiction. In any case, even if that decision is now immune from attack, the second decision is more deficient in jurisdiction for no power of review was possessed by the Tribunal and the review has been so substantial as to reverse the earlier decision of the Service Tribunal. It was not a question of merely disposing of a matter which remained unattended in the earlier adjudication, the decision goes much beyond it.

The respondent was not represented before us by a counsel. He personally presented his case and highlighted the facts that there was no written contract executed by him, that the Government took two years to reformulate the terms of the contract and that in any case with the abolition of the post for which he contracted or could be said to have contracted the contract itself came to an end. He was entrusted with the duties of another post and in that context the contract should be taken to have been rescinded by the Government itself when it abolished that post and allowed him an extra allowance of Rs.150 per month for discharging the duties of that other post. He has drawn our attention to the inequities and injustice done to him as his subordinates were getting about twice the pay he was getting while his own had been fixed at a low amount and he has been denied the ordinary benefits flowing for such a long period of re‑employment which extended over fifteen years.

We are quite clear that this appeal by the Federation is not competent against the order of the Service Tribunal, dated 1‑10‑1983. Not only no objection to the jurisdiction of the Service Tribunal was then taken and pressed actually the appellant conceded part of the relief claimed by the respondent in that appeal and was apparently satisfied with the decision. While challenging the order, dated 3‑6‑1984, it cannot be allowed to challenge the earlier decision to which it had submitted, be the ground of attack purely jurisdictional or any other.

So far as the order, dated 3‑6‑1984 is concerned, the objection of the learned Deputy Attorney‑General that it reversed the earlier decision of the Service Tribunal is correct and tenable. In the earlier, order the Service Tribunal had lent fixity to the contract and taken it as the governing instrument of the relationship of the parties with regard to the terms of the employment. By the impugned judgment, the Service Tribunal has reversed the position, relegated the contract, to an oblivion and instead treated the respondent as in civil employment placed in National Pay Scale 20 and allowed not only the pay scale incremental in its nature but also held his service to be qualifying for pension and gratuity and other benefits. Such a power was not possessed by the Tribunal, of reviewing and reversing its earlier decision.

Even on merits, we find that such a position does not emerge from the established facts. In case of contract employment the service rendered on contract does not qualify for pension whatever the length of service rendered may be. Earlier it was provided in para. 352 clause (e) in the following words‑‑

In the following cases no claim to pension is admitted:‑‑

(a) -----------------------------------------

(b) ................................................................

(c) .......................................

(d) ...............................................................

(e) When an officer serves under a covenant which contains no stipulation regarding pension, unless the Government of Pakistan specifically authorizes an officer to count such service towards pension."

525 and 526 provide for military pensioners serving on re‑employment on civil posts.

The Tribunal had by its earlier decision held that the contract held the field notwithstanding the fact that no written contract was executed by the respondent or that the post on which he was re‑employed was designated as Director's post and he was allowed Rs.150 per month as a special pay for holding such a post. That decision holds the field.

We hold that the impugned judgment of the Service Tribunal is without jurisdiction and of no legal effect. This appeal is, therefore, allowed and the impugned judgment is set aside. No order as to costs.

M.Y.H. Appeal allowed.

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