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Service Appeal No. 240 of 1983, decided on 23rd July, 1986

‑‑‑Ss. 2(b) & 4‑‑Term "civil servants", connotation of‑‑Staff of Auqaf Department not maintained out of consolidated fund could not be deemed to be "civil servants"‑‑Only such persons, held, would be "civil servants" for purpose of Service Tribunals Act, who performed functions or, hold any post in connection with affairs of Azad Jammu and Kashmir Government‑‑Nature of duty of Auqaf organization was not such that same could be termed as business in connection with affairs of Government‑‑Appeal by an employee of Auqaf Department would not be maintainable before Tribunal in view of bar of S. 4 of Service Tribunals Act, 1975.

Khawaja Muhammad Saeed for Appellant.

Raja Muhammad Hanif Khan for Respondents.

Date of hearing: 23rd July, 1986.

.‑‑The appellant has assailed the orders of respondent No.l, dated 12‑9‑1983, thereby the appeal of the appellant, against the order passed by Chief Administrator Auqaf on 7‑7‑1983 was upheld. The facts of this case briefly are that the appellant was suspended from duty on 11‑4‑1983 by Chief-man

Administrator Aukaf and he was charge‑sheeted vide No. 2440 dated 18‑6‑1983. Subsequently, he was removed from the service vide order No.285659 of 1983, dated 7‑7‑1983, by the Chief Administrator Aukaf. He preferred an appeal, against the order dated 7‑7‑1983 before the Secretary Aukaf and the appeal was rejected by the Secretary Aukaf on 12‑9‑1983. A review petition was also submitted to the Secretary Auqaf, which was accepted by him on 14‑4‑1983, and the removal of the appellant from the service was set aside. He was re‑instated to service, but the period from the date of suspension to the date of rejoining service was ordered to be treated as leave without pay.

2. The present appeal had been preferred against the order dated 7‑7‑1973 and 12‑9‑1983, whereby the appellant was removed from service. On 7‑10‑1985 an application was moved by the learned counsel for the appellant for an amendment to challenge the deprivation of pay for the period, the appellant remained out of service on account of suspension and removal. Objections to this application were also filed by the learned counsel for the respondent. During the process of the case, the Court observed that the question of maintainability of the appeal before the Tribunal should be first determined, so the counsel for the parties were heard on the points:‑

(a) Whether the appellant is a civil servant within the meaning of clause (b) of section 2 of Service Tribunal Act, 1975

(b) Whether the appeal was maintainable before the Tribunal, if he is not a civil servant

3. We heard the arguments of the learned counsel and perused the record. It is an admitted fact that the staff of the Auqaf Department is not maintained out of the consolidated fund of Azad Jammu and Kashmir. The pay and other emoluments of the staff of this organisation are paid out of the Auqaf fund, which is not a part of the budget of Azad Jammu and Kashmir State. In the Rules of Business of Azad Government of the State of Jammu and Kashmir, the Auqaf Department has although been enlisted in the administrative departments, yet at the end of the list, there is a note relating to this department that it is an attached department, for the administrative and financial purpose only, otherwise it is not an organ of the Government, but independent body.

4. Clause 'b' of section 2, of Service Tribunal Act, 1975, is reproduced below:‑

"2 ..

(a) .

(b) 'Civil servant' means a person who is or who has been a member of a civil services of the Azad Jammu and Kashmir in connection with the affairs of the Government or who holds or has held a civil post in connection with the affairs of the Government but does not include:‑

(i) a person who is or who has been on deputation to the Azad Jammu and Kashmir from the Federation or any other Province of Pakistan or authority;

(ii) a person who is or has been employed on contractor on work‑charged basis, or who is or has been paid frog, contingencies; or

(iii) a person who is or has been a worker 'or' workman' as defined in the Factories Act, 1934 (XXV of 1934) or the Workmen's Compensation Act, 1923 (VIII of 1923) as in force in Azad Jammu and Kashmir."

The plain reading of the above provision of section 2, of Service Tribunal Act, 1975 shows that only such persons are civil servants, for the purpoe of Service Tribunal Act, who perform functions or held any post in connection with the affairs of Azad Jammu and Kashmir Government. The nature of duty of Aukaf Organisation is not such that it can be termed as a business in connection with the affairs of the Government of Azad Jammu and Kashmir, may it be the duty towards Azad Jammu and Kashmir State hold that employees of the Aukaf Department are not the civil servant within the meaning of Service Tribunal Act, 1975. In Pakistan, Water and Power Development Authority is also a semi‑Government Organisation, but in the relevant law, provision under section 17 was made to declare its employees as the civil servants for the purpose of Service Tribunal Act. No such provisions are made in Azad Kashmir for the Aukaf Department employees.

4. Since section 4, of the Service Tribunal Act confers a right of appeal only on the civil servants and definition of the civil servant is also given in the same Act, which does not cover the employees of Aukaf Department, we have, therefore, no option but to hold that the present appeal, by appellant, who is an employee of the Aukaf Department Organisation is not maintainable before this Tribunal.

5. In view of our finding about the maintainability of the appeal, vie do not deem it proper to determine the other points, in issue, in this appeal.

6. For the foregoing reasons, the appeal is dismissed with no order as to the costs.

A.A. Appeal dismissed.

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