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Civil Appeal No. K‑32 of 1975, decided on 15th January, 1986.

(Against the judgment of the Baluchistan Service Tribunal, Quetta, dated 5‑2‑1978, in Appeal No. 20 of 1977).

‑‑‑Art. 212(3)‑‑Baluchistan Civil Servants Act (IX of 1974), S. 2(1) (b)‑‑Baluchistan Service Tribunals Act (V of 1974), S. 4‑‑Leave granted to examine whether an employee of University of Baluchistan was a civil servant and entitled as such to maintain an appeal in respect of terms and conditions of his service under Act (V of 1974).

‑‑‑S. 2(1)(b)‑‑Civil servant‑‑Employee of Baluchistan University‑‑Status of‑‑Respondent formerly in service of Baluchistan Province accepted fresh appointment with Baluchistan University on purely temporary basis‑‑Respondent claimed seniority and filed appeal before Service Tribunal which was accepted‑‑Petition for leave to appeal‑‑Contention that respondent could not claim to be a civil servant because he neither belonged to civil service of province nor held a civil post in connection with affairs of Province‑‑Held, prescribed conditions of civil servant not being satisfied in respondent's case he was not a civil servant and could not get his grievance redressed by filing appeal under S. 4 of. Service Tribunals Act (V of 1974)‑‑Decision of Service Tribunal being without jurisdiction, set aside and appeal accepted.

P L D 1965 S C 90 ref.

Usman Ghani Rashid, Advocate Supreme Court and M.I. Memon, Advocate‑on‑Record (absent) for Appellant.

Respondents Nos. 3, 5 and 6: Ex parte.

Date of hearing: 15th January, 1986.

‑Leave to appeal was granted to the University of Baluchistan under Article 212(3) of the Constitution to examine whether the Baluchistan Service Tribunal had correctly held that an employee of the University of Baluchistan was a civil servant and entitled as such to maintain an appeal in respect of terms and conditions of his service under the Baluchistan Service Tribunal Act, 1974.

2. The respondent No. 1 was earlier to his employment with the appellant in, the service of the Province of Baluchistan and it appears that he sought and obtained a fresh appointment with the appellant vide appointment order, dated 5‑12‑1972. The peculiar features of this appointment were that it was expressed to be on a purely temporary post created for six months by the Vice‑Chancellor. His employment was purely temporary terminable on a week's notice. He was to be governed by 'such rules and orders governing leave etc. as may be issued by the University. It was made clear in the letter of appointment that "he should consider that he has not been appointed on deputation". In course of time, the respondent No. 1 and the other respondents were promoted as Superintendents. A question of their seniority inter se arose. The respondent No. 1 claimed seniority over the other respondents though in the seniority list he was shown junior. When his representations to the Vice‑Chancellor were of no avail to him, he filed an appeal on 22‑8‑1977 before the Baluchistan Service Tribunal under section 4 of the Baluchistan Service Tribunal Act. The appellant raised an objection that respondent No. 1 was not a civil servant under the civil servants Act and the Baluchistan Service Tribunal Act was not applicable to him and that the Service Tribunal had no jurisdiction in the matter. It was rejected by the Tribunal by holding as follows:‑

"Subsection (3) of section 3 of the Baluchistan University Ordinance, 1972 provides that the University shall be body corporate. Such body has been held by the Supreme Court in PLD 1965 S C 90 as statutory body constituted by the Government in connection with the affairs of the Province. This would naturally imply that an employee of the University is a person engaged in connection with the affairs of the Province. He will, therefore, fall within the definition of a "civil servants" as provided in section 2(a) of the Baluchistan Civil Services Tribunal Act. The Tribunal has jurisdiction to entertain appeals in respect of all matters relating to terms and conditions of service of civil servants of the Province under section 3 of the Baluchistan Civil Servants Act. We are, therefore, of the view that the Tribunal has jurisdiction to entertain this appeal as it has been filed by a civil servant. The preliminary objection is, therefore, disallowed."

3. The learned counsel for the appellant contended that respondent No. 1 could not claim to be a civil servant for he neither belonged to the civil service of the Province of Baluchistan nor held a civil post. The University of Baluchistan a statutory body may be discharging functions connected with the affairs of Province for the purposes of Article 199 of the Constitution but it does not imply that the respondent No. 1 an employee thereof necessarily holds a civil post on that account. All persons working in connection with the affairs of the Province irrespective of their employer and the conditions governing their employment do not necessarily belong to a service or hold a civil post.

The respondent No. 1 invoked the procedure prescribed in section 4 of the Baluchistan Service Tribunals Act, 1974 for the redress of his service grievance pertaining to seniority as Superintendent. Such a procedure is available to a civil servant as defined in the Baluchistan Civil Servants Act, 1974. The definition provided is a person who is a "member of civil service of the Province of Baluchistan or who holds a civil post in connection with the affairs of the Province". The further provisions in the Act are that such appointments "shall be made in the proscribed manner by the Government of Baluchistan or by person authorized by it in that behalf" and that every such civil servant" shall hold office during the pleasure of the Government of Baluchistan" and that the terms and conditions of service of a civil servant shall be as provided in this Act and the rules". None of these conditions were satisfied in the case of the respondent No. 1 as he was not appointed by the Government of Baluchistan or its delegate. He did not hold the office at the pleasure of the Government of Balushistan and his terms and conditions of service were not regulated by the Civil Servants Act and the rules framed there under. He was an employee of the University. His terms and conditions of service were regulated by the rules framed by the University. The vice‑Chancellor was his Appointing Authority. None of these authorities acted as delegate of the Baluchistan Government while employing or regulating the terms and conditions of the service of the respondent. He cannot, therefore, be held to be a civil servant for the purposes of Civil Servants Act and for that reason he was not entitled to seek redress from the Tribunal under section 4 of the Tribunals Act.

4. This legal position was, it appears, made known to the respondent No. 1 well before he instituted the proceedings. For example, in his representation, dated 6‑4‑1976 he claimed that "his services were transferred from Industries Department to the University as Accounts Assistant in December 1972". He was told by the letter, dated 3‑4‑1977 in the following terms:‑

"The record reveals that you were appointed as a fresh candidate and not on deputation, as mentioned vide para. 9 of your appointment order. Had this condition not been acceptable to you, you should have made representation against the same. Since nothing was heard from your side during the last 31 years, therefore, your request cannot be considered at this stage. Moreover, your attention is invited to your application, dated 4‑12‑1972, wherein you have yourself committed that you will resign from the Industries Department if you are allowed starting salary of Rs.435 p.m. Since your request was duly acceded and you were allowed to draw Rs.435 p.m., therefore, the question of continuation of service does not arise in view of your own commitment."

5. In the second representation that he addressed after receiving this reply on 16‑4‑1976 he submitted to this position by mentioning as follows:‑

"It is correct that the undersigned was appointed afresh on the start basic salary of Rs.435 p.m. previously drawn by the applicant, but the applicant has been agitating for the determination of seniority inter se among the officials appointed/ promoted in the grade of Superintendent subsequent to the applicant's taking over the charge of Superintendent since 29‑11‑1973 without any break or reversion or any adverse remarks."

6. In this background of factual and legal position the respondent could not claim to be treated as civil servant was in fact not a civil servant and he could not, therefore, get his grievance redressed by filing an appeal under section 4 of the Tribunals Act. The decision of the Tribunal is without jurisdiction. This appeal is accepted, the judgment of the Tribunal is set aside and the appeal of the respondent No. 1 before the Service Tribunal is dismissed as incompetent. No order as to costs as the respondent has not turned up to contest the proceedings and was proceeded ex parte.

M.I. Appeal accepted.

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