2005 S C M R 866
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Javed Iqbal and Abdul Hameed Dogar, JJ
Mrs. MUSHTAR JAHAN—Appellant
PRIME MINISTER OF PAKISTAN and others—Respondents
Civil Appeals Nos.1575 of 2000 and 219 of 2003, decided on 28th December, 2004.
(On appeal from the judgments of the Federal Service Tribunal, Islamabad, dated 16-2-2000 and 5-6-2002 passed in Appeals Nos.54(K) of 1994 and 91(P)/CS of 2001 respectively).
Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614; Gul Muhammad v. Force Commander 1999 SCMR 2935; Fasihuddin v. Khawar Latif Butt 1993 SCMR 1; Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562; Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863; Syed Shahsawar Haider v. The Chief Security Officer, Airport Security Force C.P. No.3025/L of 2000 and Azhar Majeed Khalid v. Force Commander Airport Security Force 2002 SCMR 1135 ref.
Kanwar Mukhtar Ahmed, Advocate Supreme Court and Ahmedullah Farooqi, Advocate-on-Record for Appellant (in Civil Appeal No.1575 of 2000).
Sajjad Ali Shah, Dy. A.-G. and A.A. Siddiqui, Advocate-on-Record for Respondent No.4.
Respondents Nos.1 to 3 and 5: Ex parte.
Appellant in person (in Civil Appeal No.219 of 2003).
Sajjad Ali Shah, Dy. A.-G. and A.S.K. Ghori, Advocate-on-Record for Respondent No.2 (in Civil Appeal No.219 of 2003).
Date of hearing: 28th December, 2004.
JAVED IQBAL, J.— The above captioned appeals with leave of the Court are directed against the judgments dated 16-2-2000 and 5-6-2002 whereby the appeals preferred on behalf of appellants have been dismissed. We intend to dispose of the above captioned appeals by this common judgment as similar questions of law and fact are involved in the appeals arising out of two different judgments passed by the learned Federal Service Tribunal.
2. Leave to appeal was granted in Civil Appeal No.1575 of 2000 vide order, dated 27-11-2000 which is reproduced hereinbelow for ready reference and to appreciate the legal and factual aspects of the controversy:–
“This civil petition for leave to appeal is directed against the judgment, dated 16-2-2000 passed by learned Federal Service Tribunal, whereby the appeal filed by petitioner Mrs. Mushtar Jehan was dismissed on the ground that the said Tribunal has no jurisdiction to hear the appeal in view of section 7-A(4) of Airports Security Force Act, 1975.
(2) We have heard the learned counsel for the parties and gone through the relevant provisions of section 7-A(4) of Airport Security Force Act, 1975.
(3) In Force Commander A.S.F. v. Muhammad Rashid 1996 SCMR 1614, this Court has observed at page 1642:–
“the cumulative effect of the above provisions read with subsection (4) of section 7-A inter alia hereinbelow seems to be that the Service Tribunal has ceased to have jurisdiction in respect of the employee of A.S.F.”
In Gul Muhammad v. Force Commander 1999 SCMR 2935, this Court has observed at page 2938:–
” after addition to subsection (4) in section 7-A, the Service Tribunal has ceased to have jurisdiction in matters of discipline in case of officers of the Airports Security Force if grievance is raised by them in respect of an order passed by any officer of the said Force who is authorized under the Pakistan Army Act, 1952 “
In Fasihuddin v. Khawar Latif Butt 1993 SCMR 1, this Court has observed:–
“There is absolutely no dispute about the fact that in the Airports Security Force there are officers and members who are civilians and have been appointed through Federal Public Service Commission and they are to be treated as holding civil posts in connection with affairs of Federation even if they are serving in the Ministry of Defence and have been subjected to Pakistan Army Act for the purposes of disciplinary proceedings only. If such officer or member is aggrieved against an order in disciplinary proceedings which are taken in hand as departmental proceedings and is dismissed or removed from service, he cannot be shut out from pursuing his remedy in the Federal Service Tribunal on the ground that he is no more a civil servant just because he has been subjected to Pakistan Army Act in disciplinary matters only.”
In Tarab Arif Fatimi v. President of Pakistan PLD 1994 SC 562 this Court, following the views expressed in Fasihuddin v. Khawar Latif Butt 1993 SCMR 1, allowed the appeals and remanded the case to the Tribunal with direction to decide the appeals on merits.
(4) In the above cited judgments of this Court conflicting views have been taken with regard to the jurisdiction of the Federal Service Tribunal in disciplinary matters of the officials of Airports Security Force in view of section 7-A(4) of Airports Security Force Act, 1975. In order to resolve the above controversy, we grant leave to appeal to consider whether in view of the provisions of section 7-A(4) of Airports Security Force Act, 1975, Federal Service Tribunal is completely barred from hearing the appeals of the Airports Security Force personnel?”
3. Leave to appeal in Civil Appeal No.219 of 2003 was granted by means of order, dated 17-2-2003 which is reproduced hereinbelow for ready reference:–
“Learned counsel for the petitioner has called our attention to the case of Mst. Mushtar Jehan v. Honourable Prime Minister of Pakistan and 3 others 2001 SCMR 863 in which leave has been granted to consider whether in view of the provisions of section 7-A(4) of Airports Security Force Act, 1975, jurisdiction of the Service Tribunal is barred.
(2) Leave is also granted in this case. Learned counsel for the appellant when questioned, submitted that the said appeal has not yet been decided. This appeal shall be heard along with the appeal of Mst. Mushtar Jehan (supra).”