Find a Lawyer

Civil Appeal No. 301 of 1985, decided on 13th October, 1986.

(On appeal from the judgment of the Punjab Service Tribunal, dated 18‑10‑1984, in Appeal No. 493/838 of 1983).

‑‑‑Art. 212(3)‑‑Civil Servants Act (LXXI of 1973), S.13(ii)‑‑Provisional t Constitution Order (1 of 1981), Art.13‑‑Punjab Service Tribunals Act (IX of 1974), S.4‑‑Leave to appeal granted to consider whether Punjab Service Tribunals had jurisdiction to set aside order passed by President of Pakistan under S.13(ii), Civil Servants Act in view of bar contained in Art.13, Provisional Constitution Order, 1981 and whether delay in filing appeal could properly be condoned by Tribunal in circumstances of case.

‑‑‑‑S. 4‑‑Limitation Act (IX of 1908), Arts. 5 & 14‑‑Appeal‑‑Limitation‑ Condonation of delay‑‑Employee of Provincial Government while serving Federal Government retired from service by order passed by President of Pakistan‑‑Such employee pursuing his remedy by means of appeal before Federal Service Tribunal in good faith‑‑Provincial Service Tribunal having taken into consideration explanation for delay exercising its discretion to condone the same‑‑No illegality or perversity, held, was found in exercise of discretionary power vesting in Tribunal‑ Exercise of such jurisdiction was not open to exception in circumstances.

Muhammad Hasham Khan v. The Chairman, Baluchistan Service Tribunal and others P L D 1983 SC 262 ref.

‑‑‑S. 13(ii)‑‑Punjab Civil Servants Act (VIII of 1974), S.12‑‑‑Punjab Service Tribunals Act (IX of 1974), S. 4‑‑Provisional Constitution Order (1 of 1981), Arts. 13 & 15‑‑Establishment Manual, Vol. I. Chap. IX‑ Estacode (1983 Edn.), Chap. III, Part. II, p. 217‑‑Words 'deputation' and 'lien'‑‑Interpretation‑‑Civil servant being a confirmed employee of Provincial Government and having a lien on permanent post in Province serving under Federal Government to be considered a 'deputationist' with Federal Government Authority competent to pass orders of retirement of such civil servant was Provincial Government under S.12, Punjab Civil Servants Act and powers conferred on Federal Government under S.13, Civil Servants Act. could not be invoked in such a case Words 'competent authority'‑‑Interpretation‑‑Protection from challenge under Art.13, Provisional Constitution Order, 1981 extends to orders of competent authority‑‑No authority of Federal Government was competent to exercise powers under S.13(ii) of Civil Servants Act, 1973 in respect of such civil servant‑‑Provisions of Art. 15(2) of Provisional Constitution Order, 1981 only protects orders made in exercise of powers derived from President's Orders or Orders of Martial Law Authorities and not orders passed in exercise of statutory authority under Civil Servants Act, 1973‑‑Order of retirement in respect of such civil servant passed by President of Pakistan under S.13(ii) of Civil Servants Act, 1973, held, were not immune from challenge before Service Tribunal on ground of In competency.

Islamic Republic of Pakistan v. Israrul Haq and others P L D 1981 SC 531 ref.

Nazar Muhammad Khan v. Pakistan P L D 1986 Kar. 516 distinguished.

‑‑‑ Ouster clause in a statute excluding jurisdiction of Court to be strictly construed‑‑Order suffering from legal infirmity, particularly in domain of competency, cannot enjoy protection of statute from challenge.

An ouster clause in a statute which excludes the jurisdiction of Court is to be strictly construed. The orders of statutory authorities which have been given immunity from challenge must, before being held sacrosanct, be shown to have been passed strictly in accordance with the requirements of the statute. An order suffering from legal infirmity, particularly in the domain of competency, therefore, cannot enjoy the protection, of the statute from challenge.

Nawaz Abbasi, Asstt. A.‑G. (Pb.) and Rao Muhammad Yusuf Khan, Advocate‑on‑Record for Appellant.

Mujabeer Rehman, Advocate Supreme Court and Gulzar Hussain, Advocate‑on‑Record for Respondents.

Date of hearing: 13th October, 1986.

This is an appeal by leave of this Court from the judgment of the Punjab Service Tribunal, Lahore, dated 18th October, 1984, whereby the appeal of the respondent Mr. M. Ikramul Haq, was accepted and the order of his premature retirement from Government service was set aside.

2. Respondent Ikramul Haq started his career as a civil servant by initially joining service in the Education Department of the Government of the Punjab on 28th March, 1951 as a Lecturer and after being promoted in due course was confirmed in Grade‑19 in the year 1972. Subsequently on 12th October, 1973, he Was selected and appointed in the Foreign Affairs Group Government of Pakistan, in Grade‑19 through Lateral Entry Competitive Examination. After completing the required training he was posted abroad and in December, 1975, he was transferred to Foreign Affairs Ministry, Islamabad. His case was examined and cleared under section 12‑A, Civil Servants Act, 1973, by the High Powered Review Board, in June, 1978. However, vide Notification, dated 15th November, 1980, in purported exercise of powers conferred by clause (ii) of section 13 of the Civil Servants Act, 1973, the President of Pakistan was pleased to direct in the public interest the retirement from service of the respondent with effect from 16th November, 1980. The respondent sought review of the aforesaid order of his premature retirement by means of review petition on 11th December, 1980, but having failed to receive a reply within the statutory period of 90 days, on 9th March, 1981, he preferred an appeal against the order of retirement before the Federal Service Tribunal.

3. At the hearing of the appeal the Federal Service Tribunal itself raised the question of maintainability of the appeal as a preliminary question. The respondent sought to challenge the validity of the order of his retirement on two grounds. Firstly he contended that his case having been reviewed under section 12‑A of the Civil Servants Act and approved by the competent authority, the order of his retirement under section 13(ii) was mala fide in law amounting to colourable exercise of jurisdiction and the other ground urged by him was that the power conferred under section 13(ii) was not competently exercised as the respondent had not completed 25 years of service qualifying for pension and other retirement benefits under the Federal Government.

4. Learned Tribunal took up the preliminary question of maintainability of the appeal and did not go into the questions raised touching the merits of the case. As regards the preliminary question, it was urged before the learned Tribunal that as the respondent was admittedly holding a substantive post in Grade‑19 in the service of the province of Punjab at the time of his induction in the service of Federal Government and his lien was still maintained, his position qua the Government of Pakistan was that of a deputations, with the result that he was not a civil servant within the meaning of section 2(1) (b) of the Civil Servant Act and hence he cannot invoke the jurisdiction of Federal Service Tribunal. The majority opinion of the learned Members of the Tribunal was that the respondent was a deputations being a confirmed employee of provincial Government and having a lien on a permanent post in the provincial service. One learned Member of the Tribunal dissented with this opinion and held that as the element of borrowing and lending was missing in this case, the respondent could not be held to be a deputationists. The learned Chairman while expressing the opinion of the majority summed up their view in the following words:‑

"To sum up the above discussion, I am of the opinion that though the term 'deputation' has not been defined in the two relevant statutes, the same being technical term has to be understood in the sense in which it was understood by the authorities dealing with the service matters. The office memorandum, referred to above, clearly lays down the guideline for determining the status of a person as a 'deputationist' . The appellant being a confirmed employee of the Provincial Government and having a lien on the permanent post in the Province, would remain a 'deputationist' with the Federal Government as long as he is not confirmed under the Federal Government, and his lien in the Provincial Government is not terminated or unless he reverts to the Province. Though the respondent Government does not admit that the appellant has a lien in the Province, nevertheless, they have not been able to satisfy us that the appellant who admittedly was confirmed in the Provincial Government agreed to the termination of his lien under that Government. In spite of being asked, no evidence was produced before us to show that the appellant who admittedly was confirmed under the Provincial Government, lost his lien in accordance with the rules of service applicable in this respect.

In view of what has been stated above, I am of the opinion that the appellant being on deputation from the Province to the Federation, is not a 'civil servant', and as such, he cannot invoke the jurisdiction of this Tribunal. The result is that we dismiss this appeal for want of jurisdiction, leaving it for the appellant to approach the appropriate forum for remedying the wrong done to him. The Federal Government can also undo the wrong, if it so desires, by rescinding the order of retirement of the appellant and by reverting him to the Province, leaving it to the Governor to pass such order as deems fit "

5. Accordingly the Federal Service Tribunal dismissed the appeal for want of jurisdiction. vide order, dated 5th September, 1983. No one challenged this decision of the Federal Service Tribunal. The respondent acting upon the findings and observations of the Federal Service Tribunal, filed an appeal before the Punjab Service Tribunal, Lahore, and contended that as he had not been confirmed against any post under the Federal Government, he continued to retain his lien against a permanent post which he held substantively in the Provincial Government. His further contention was that in terms of Part I of the Establishment Division Letter No. 1/8/73/AFC, dated 20th November, 1973, it was necessary to obtain his consent for termination of his lien in respect of the post permanently held by him in the Punjab Province and as no such consent was obtained from him, he continued to hold lien against the post in his parent department, with the result that he is a civil servant under the Punjab Government. On this premise the respondent contended that being an employee of the Provincial Government the powers exercisable under section 13(ii) of the Civil Servants Act could competently be exercised by that Government and not by any authority of the Federal Government. In such a situation the Federal Government at the most could only revert the respondent to his parent department in the Provincial Government.

6. The Federal Government, which was also impleaded in this appeal, took up the position that the respondent was a civil servant in the Federal Government and was retired in due exercise of power by the President and consequently the Punjab Service Tribunal had no jurisdiction to adjudicate upon the matter. It seems no objection to these jurisdiction of the Provincial Service Tribunal was taken by the Punjab Government. The respondents (The Federal and Punjab Governments), however, raised the question of limitation and opposed the prayer of the respondent for condonation of delay. The learned Service Tribunal held that, as the respondent was prosecuting another proceeding, namely, the appeal filed before the Federal Service Tribunal, with due diligence under the bona fide impression that the impugned order of retirement passed by the President was appealable before that forum, the principles of section 14, Limitation Act could be invoked in seeking condonation of delay. Accordingly the delay in filing the appeal was condoned. As td the legality of the impugned order of retirement from service, the learned Tribunal agreeing with the finding of the Federal Service Tribunal that the respondent was a deputationist not having been confirmed against any post in the service of Federal Government held that 'the order of President and thus, void ab initio'.

7. Against the aforesaid judgment of the learned Tribunal leave to appeal was granted to the Province of Punjab, to consider the question whether the Punjab Service Tribunal had jurisdiction to set aside the order passed by the President under section 13(ii) of the Civil Servants Act, in view of the bar contained in Article 13 of the Provisional Constitution Order, 1981, and also whether delay in filing appeal could properly be condoned by the Tribunal in the circumstances of the case. Learned Assistant Advocate‑General, Punjab, has addressed us on these questions of law while pressing this appeal. He concedes that the appeal before the Federal Service Tribunal was filed within time which was disposed of on 5th September, 1983. Thereafter, the appeal before the Punjab Service Tribunal was presented on 13th October, 1983. Therefore, according to him there was four days delay if the time spent in prosecuting the appeal before the Federal Service Tribunal is excluded. But he emphatically contends that the provisions of section 14, Limitation Act are not applicable and as such the benefit of exclusion of the period spent in prosecuting the appeal before the Federal Service Tribunal could not be given. The question whether the principles underlying section 14 of the Limitation Act could be made applicable while considering an application for condonation of delay under section 5, Limitation Act in an appeal before a Service Tribunal was considered in Muhammad Hasham Khan v. The Chairman Baluchistan Service Tribunal and others P L D 1983 SC 262 and it was held that the underlying principles of section 14 would not ordinarily be excluded in such a case. We feel that the respondent was pursuing his remedy by means of an appeal before the Federal Service Tribunal in good faith. The order was passed against him by the President of Pakistan while he was serving the Federal Government. However, when the Federal Service Tribunal held that the respondent was holding a substantive appointment by virtue of his lien under the Punjab Government, and hence was a civil servant under the Punjab Civil Servants Act, he had to file an appeal before the Punjab Service Tribunal. Indeed he had submitted a petition for leave to appeal against the order of the Federal Service Tribunal, vide Civil Petition No. 623‑R of 1983, and simultaneously submitted an appeal before the Punjab Service Tribunal. Subsequently he withdrew the petition from this Court on 4th March, 1984, in order to pursue his remedy before the Punjab Service , Tribunal. In his application for condonation of delay the respondent had explained that he was at Lahore when the Federal Service Tribunal decided his appeal and the intimation of the judgment was received by him on 13th September, 1983. He then applied for certified copies of judgment and appeal along with annexures which were supplied to him on 12th October, 1983. On the next day he presented the appeal before the Punjab Service Tribunal. The learned Service Tribunal having taken into consideration the explanation for the delay exercised its discretion to condone the delay. We find no illegality or perversity in the exercise of the discretionary power vesting in the Tribunal and, therefore, find that the exercise of jurisdiction is not open to exception.

8. Having disposed of the question of limitation, the next point for determination is whether the Service Tribunal was right in holding that the impugned order of retirement from service against the respondent not competently passed and was, therefore, without legal effect.

In support of the said impugned order the learned Assistant Advocate General, advanced a two‑fold contention. Firstly he submitted that the President was the competent authority in regard to premature retirement of the respondent even if he is deemed to be a civil servant in the service of the Punjab Government, in any was a bar to entertaining any challenge to an order of retirement before the Service Tribunal. His second argument was that in any event the order of retirement passed by the President was protected under Article 15 of the Provisional Constitution Order so that it could not be called in question before any authority. It is an admitted position before us that the respondent was not confirmed in service under the Federal Government and also that he was a confirmed employee of the Punjab Government having a lien on the post he held substantively'. These facts are also admitted on the record. In the written statement filed before the Punjab Service Tribunal on behalf of the Federal Government, vide paragraph 4 it was averred that the respondent was an officiating civil servant in the Federal Government and, vide paragraph 8 it was further admitted that he was not confirmed. Similarly the Government of Punjab in its parawise comments categorically admitted that the lien of the respondent was not terminated by the Provincial Government during the period of his service with the Federal Government. With these facts being established on the record and not contested before us it could not but be held that the respondent was a deputationist with the Federal Government. The Federal Service Tribunal has referred to the Establishment Manual Volume I, Chapter IX, to demonstrate that the departmental authorities in accordance with the practice in vogue have defined a 'deputationist' to be a Government servant who is appointed or transferred through the process of selection to a post in a department or service altogether different from the one to which he permanently belongs. Such a Government servant continues to enjoy this status so long as he holds the new post in an officiating or a temporary capacity but ceases to be regarded as such either on confirmation in the new post or on reversion to his substantive post. The departmental interpretation referred to by the said Tribunal as having the effect of statutory rule has still being retained, as is evident from the Estacode (1983 Edition) in Chapter III, Part II at page 217. This Court has also accepted the aforesaid definition of the term 'deputation' in Islamic Republic of Pakistan v. Israrul Haq and others P L D 1981 SC 531. So far as lien is concerned the Fundamental Rules (vide Compilation of the Fundamental Rules and Supplementary Rules Volume I by Hamid Ali) define 'lien' as under:‑

"'Lien' means the title of a Government servant to hold substantively, either immediately or on the termination of a period or periods of absence, a permanent post including a tenure post, to which he has been appointed substantively."

In view of the meaning and scope of the terms 'deputation' and 'lien'. the matter does not remain within the realm of controversy that the respondent was substantively the holder of a post under the Punjab Government. It, therefore, follows that the authority competent to pass an order of retirement in his case was the Government of Punjab as contemplated by section 12 of the Punjab Civil Servants Act, 1974. The powers conferred under section 13 of the Civil Servants Act (LXXI of 1973) could not be invoked in respect of the respondent as the terms and conditions of his service under the Provincial Government were not regulated by the said Act. However, the learned Assistant Advocate General sought to support the impugned order by invoking the provisions of Article 13 of the Provisional Constitution Order. Article 13 reads as follows: ‑

"Bar of jurisdiction in respect of order of retirement of civil servant.‑‑ (i) Where a person in the service o Pakistan has been or is retired from service under the orders of the competent authority after he has completed twenty‑five years of service qualifying for pension of other retirement benefits, no Court or Tribunal, including the Supreme Court, a High Court and a Service Tribunal, shall have any jurisdiction to entertain any proceedings calling in question the validity of the orders of the competent authority on any ground whatsoever and any such proceedings pending before any such Court or Tribunal immediately before the commencement of this Order shall abate forthwith.

(2)

The plain reading of the aforesaid provisions makes it clear that protection from challenge has been extended to orders of retirement by competent authority. The words 'competent authority' are the crucial words of the statute, which govern the operation of the barring provisions of this Article. The principle is well‑recognised that an ouster clause in a statute which excludes the jurisdiction of Court is to be strictly construed. It is well‑settled that the orders of statutory authorities which have been given immunity from challenge, must before being held sacrosanct be shown to have been passed strictly in accordance with the requirements of the statute. An order suffering from legal infirmity, particularly in the domain of competency, therefore, cannot enjoy the protection of the statute from challenge. Accordingly when the Federal Government itself has conceded that the respondent was not a confirmed employee under the Government of Pakistan, the consequence was that no authority of the Federal Government was competent to exercise powers under section 13(ii) of the Civil Servants Act in respect of him. Such an order lacks the quality of being an order of the competent authority to attract the barring provisions of Article 13. There is also nothing in this Article to support the argument of the learned Assistant Advocate‑General that by virtue of its provisions of the President became the competent authority for purposes of retirement in respect of Civil Servants under the Provincial Governments. The other argument is equally devoid of force. Article 15 (2) of the Provisional Constitution order does not protect orders passed in exercise of statutory authority like the one in question before us. This provision only protects orders made in exercise of powers derived from any President's Orders or Orders of the Martial Law Authorities. Case of Nazar Muhammad Khan v. Pakistan P L D 1986 Kar. 516 does not support the argument of the learned Assistant Advocate‑General, because in that case the order of termination of service was passed under Martial Law Regulation 52 and, therefore, the learned Judges held that it was not liable to be called in question by virtue of Article 15(2) of the Provisional Constitution Order, 1981. The impugned order of the departmental authority before us by it very purport and substance was passed in exercise of clause (ii) of section 13 of the Civil Servants Act, 1973. Such an order is not immune from challenge before the) Service Tribunal on the ground of incompetency.

9. The contentions advanced in support of this appeal are accordingly untenable.

10. In the result this appeal fails and is dismissed with no order as to costs.

S.Q. Appeal dismissed.

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.