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1994 P L C (C.S.) 951

 

[Supreme Court of Pakistan]

 

Present: Ajmal Mian, Sajjad Ali Shah and Saleem Akhtar, JJ

 

Syed TARAB ARIF FATIMI

 

Versus

 

PRESIDENT OF PAKISTAN and others.

 

Civil Appeals Nos. 670 & 683 of 1992, decided on 22nd March, 1994.

Appellant in person (in CA. No. 670 of 1992).

 

Shahudul Haq, Advocate Supreme Court, AA. Siddiqi, Advocate‑on Record for Respondents Nos. 7 and 8 (in CA. No. 670 of 19921)

 

KA. Wehab, Advocate‑on‑Record for Respondent No. 5 (in CA. No. 670 of 1992):

 

Nemo for Respondents Nos. 1 to 4, 6, 9 to 13 (in CA. No. 670 of 1992).

 

Fakhruddin G. Ebrahim, Attorney‑General on Court Notice (in CA. No. 670 of 1992).

 

Appellant in person (in CA. No. 683 of 1992).

 

Nemo for Respondent (in CA. No. 683 of 1992)

 

Date of hearing: 22nd March 1994.

 

JUDGMENT

 

AJMAL MIAN, J.‑‑‑The above two Civil Appeals Nos. 670 and 683 of 1992 are with the leave of this Court against the judgments dated 25‑4‑1992 and 31‑5‑1992 passed by the learned Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos. 184(K)/1988 and 124(K)/1991 fled by` the present two appellants in the above two appeals against the order of retirement and termination of service, dismissing the same on the ground that their above appeals were not competent before the Tribunal as they were not civil servants. Leave to appeal was granted in view of the judgment of this Court in the case of Faseehuddin v. Khawar Latif Butt and others 1993 SCMR 1, in which it has been held that the officers and members of Airports Security Forces remained civil servants in spite of the amendments made in the Airports Security Force Act, 1975 (hereinafter referred to as the Act) Act, 1975 (1‑XXVII of 1975), hereinafter referred to as the Act by Airports Security Force (Amendment) Ordinance, 1984 (XXV of 1984), hereinafter referred to as the .Amending Ordinance.

 

2. It appears that on 27‑11‑1993, Airports Security Force (Amendment) Ordinance, 1993, was promulgated whereby following subsection (4) was added to section 7‑A of the Act:‑‑

 

“Notwithstanding anything contained in any other law for the time being in force, except the authorities specified in subsections (1) and (2) of section 7F, no other authority, tribunal or Court shall have jurisdiction to vary, modify, alter, annul, set aside, revise or review any order passed ‘by any officer of the Force, authorized under the Pakistan Army Act, 1952 (XXXIX of 1952),”

 

3. We had issued notice to the learned Attorney‑General to assist the Court on the question as to the effect of the above amendment in the Act. In response to the above notice, Mr. Fakhruddin G. Ebrahim, learned Attorney General has put in appearance today. His argument was that Legislature was competent to take away the jurisdiction of the Tribunal or of the Court in service matters by the above amendment. However, he candidly conceded that the above amendment cannot operate retrospectively. It is not necessary for us in the present case to examine the vires of the above amendment as it is an admitted position that in the present appeals, the Tribunal declined to exercise jurisdiction when above subsection (4) of section 7‑A of the Act was not on the Statute Book. In this view of the matter, the ratio of the judgment of this Court in the case of Faseehuddin v. Khawar Latif Butt and others (supra) is very much applicable to the above two appeals.

 

Mr. Shahudul Haq, learned Standing Counsel who appeared for official respondents, is unable to show that the above incorporated subsection (4) to section 7A was applicable to the present cases.

 

4. We would, therefore, allow the above two appeals and set aside the Tribunal’s above judgments and would remand the case to the Tribunal with the direction to decide the above appeals on merits. However, there would be no order to costs.

 

M.BA./T‑97/S Appeals allowed.

 

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