IN THE SUPREME COURT OF PAKISTAN 
 (Appellate Jurisdiction) 
 
 
 
 
PRESENT:  
Mr. Justice Mian Saqib Nisar, HCJ 
 
 
 
Mr. Justice Sh. Azmat Saeed  
 
 
 
Mr. Justice Umar Ata Bandial 
Mr. Justice Ijaz ul Ahsan  
Mr. Justice Sajjad Ali Shah 
 
CIVIL APPEALS NO.521 OF 2015 & 2387, 2388, 2552-2553 OF 2016  
& 
CIVIL PETITIONS NO.3875 OF 2016 & 2418, 2879 OF 2017 & 
CIVIL PETITIONS NO. 2937-2940 & 4287 OF 2017.  
(On appeal from the judgment/order of Peshawar High Court, Peshawar 
dated 28.05.2001 passed in W.P. No.597-P/2013 & judgment dated 
02.12.2015 passed in W.Ps. No.2256-P/2013, 604-P/2014 & judgment dated 
09.06.2015 passed in W.P.1736-P & 3016-P of 2013 & judgment dated 
01.11.2016 passed in W.P.2808 of 2010 & judgment dated 11.05.2017 passed 
in W.P.1512 of 2016 & judgment dated 13.06.2017 passed in W.P. 1666 of 
2014 & judgment dated 21.03.2017 passed in W.P. No.1477-P, 1611-P/2016, 
118-P/2017 & judgment dated 28.09.2017 passed in W.P.1746-P of 2016)  
 
Commandant, Frontier Constabulary,  
Khyber Pakhtoonkhwa, Peshawar & others  
… Appellant/ 
Petitioner 
(in all cases) 
 
 
 
 
 
VERSUS 
Gul Raqib Khan  
…Respondent 
(in CA.521 of 2015) 
 
Javed Khan & others  
…Respondents 
(in CA.2387 of 2016) 
 
Fayyaz & others  
…Respondents 
(in CA.2388 of 2016) 
 
Ex-Havaldar Iza Gul  
…Respondent 
(in CA.2552 of 2016) 
 
Niaz Meen Bad Shah 
…Respondent 
(in CA.2553 of 2016) 
 
Sep. Irfan Ullah and others  
…Respondents 
(in CP.3875 of 2016) 
 
Rehmatullah and others  
…Respondents 
(in CP.2418 of 2017) 
 
Subedar Aslam Khan Afraidi  
…Respondents 
(in CP.2879 of 2017) 
 
 
CA.521/2015, etc.  
2
Sarad Khan & others   
…Respondents 
(in CP.2937 of 2017) 
 
Khaliq Rehman & another  
…Respondents 
(in CP.2938 of 2017) 
 
Nasir Shah & others  
…Respondents 
(in CP.2939 of 2017) 
 
Khalil Khan & others  
…Respondents 
(in CP.2940 of 2017) 
 
Dilawar Shah and another  
…Respondents 
(in CP.4287 of 2017) 
 
 
For the appellant(s)/ 
Petitioner(s) 
(in all cases)  
Mian Shafaqat Jan, ASC.  
Mr. Tariq Aziz, AOR. (in CA.521/2015) 
Syed Rifaqat Hussain Shah, AOR, AOR. (in all 
other cases).  
Mr. Naveed Ahmed, Asstt. Dir. FC.  
 
 
For the respondent  
(in CA.521 of 2015) 
Malik Ghulam Mustafa Kandwal, ASC.  
 
 
For the respondent  
(in CA.2387-2388/2016) 
Mr. Shaukat Ali Yousafzai, ASC.  
 
 
For the respondent  
(in CA.2552-2553/2016) 
Mr. M. Ijaz Khan Sabi, ASC.  
 
 
Respondent No.22 
(in CA.3875 of 2016) 
In-person.  
 
 
Respondent  
(in CP.2418/2017) 
Not represented.  
 
 
For respondents  
(in CA.2879 of 2017) 
Mr. Muhammad Asif, ASC.  
 
 
For the respondents  
(in CP.2937& 2939 of 2017) 
Mr.Dil Muhammad Khan Alizai, ASC.  
 
 
For the respondents  
(in CP.2938 & 2940 of 2017) 
Nemo.  
 
 
Respondents  
(in CP.4287of 2017) 
Not represented.  
 
 
 
Date of hearing  
29.01.2018. 
 
 
* * * * * * *  
 
CA.521/2015, etc.  
3
O R D E R   
  
UMAR ATA BANDIAL, J. – We intend to decide 
these connected appeals and petitions by this judgment as a 
common question of law is involved therein.  
2. 
 
Civil Appeal No. 521 of 2015 & Civil Appeals No. 
2387, 2388, 2552 & 2553 of 2016. – Leave was granted in these 
appeals in order to consider whether the respondents being 
employees of the Frontier Constabulary (“FC”) were civil servants; 
and therefore, the Writ Petitions filed by them before the learned 
Peshawar High Court in relation to the terms and conditions of their 
service were not maintainable on account of the bar contained in 
Article 212 of the Constitution of Islamic Republic of Pakistan 
(“Constitution”).  
3. 
 
The facts of each case differ and so does the nature of 
the service grievance of each respondent. However, their common 
feature is that the respondent in each case had ultimately 
approached the Peshawar High Court in its Constitutional 
jurisdiction for the redressal of his grievance.  
4. 
 
The learned counsel for the parties agree that the 
pivotal judgment of this Court on the subject of the competent 
remedy available to employees of the FC in relation to their service 
grievances is reported as Commandant, Khyber Pakhtunkhwa 
Constabulary  vs.  Muhammad Nasir (2015 SCMR 1040). In that 
judgment, this Court has held as follows: 
CA.521/2015, etc.  
4
 
“8. 
We have heard the learned counsel for the parties 
at length and have perused the record. The appellants are 
not Civil Servants as their terms and conditions of service 
are regulated by the provisions of the North West 
Frontier Constabulary Rules of 1958. The case-law cited 
by the learned Counsel for the appellant is not relevant 
after the judgment of this court in the case of Muhammad 
Mubeen-us-Salam and others  vs.  Federation of Pakistan (PLD 
2006 SC 602), where this Court has held that the status of 
a Civil Servant cannot be conferred on an employee of the 
organization by a deeming clause which has its own 
statutory service Rules. The terms and conditions of 
service of the respondents are regulated by the Act of 
1915 which authorizes the appellants to frame Rules. The 
Rules were framed in 1958 and are duly notified which 
regulates the terms and conditions of service of the 
respondents. The plea of the appellants that the 
Respondents are Civil Servants is without force in view of 
the judgment in the case of Muhammad Mubeen-us-Salam 
and others (supra).  [emphasis supplied]. 
 
5. 
 
The learned counsel for the appellants have urged that 
the ratio decidendi of the judgment pronounced by a larger Bench of 
this Court comprising nine learned Judges in Muhammad Mubeen-
us-Salam and others  vs.  Federation of Pakistan (PLD 2006 SC 602) 
lays down certain tests to ascertain whether an employee of the 
Federation is a civil servant. These have been misapplied in the 
quoted passage to hold that the persons in the employment of the 
FC are not civil servants. Reference has been made to parts of the 
judgment in Muhammad Mubeen-us-Salam’s case ibid wherein the 
jurisdiction of the Federal Service Tribunal is determined on the 
touchstone of three crucial provisions of the Constitution. These are 
Article 212(1)(a), Article 240(a) and Article 260 of the Constitution. 
CA.521/2015, etc.  
5
The definition of the term ‘civil servant’ in Section 2(b) of the Civil 
Servants Act, 1973 (“Act”) has accordingly been interpreted 
pursuant to the said Constitutional provisions. The said Articles of 
the Constitution and the definition given in the Act are reproduced 
hereinbelow: 
 
Article 212(1)(a) of the Constitution: 
212.(1) 
Notwithstanding 
anything 
hereinbefore 
contained the appropriate Legislature may by Act  
provide for the establishment of one or more 
Administrative Courts 
or 
Tribunals 
to 
exercise 
exclusive jurisdiction in respect of:  
(a) matters relating to the terms and conditions 
of persons 2 [who are or have been] in the 
service of Pakistan, including disciplinary 
matters; 
 
 
Article 240(a) of the Constitution: 
240. Subject to the Constitution, the appointments to 
and the conditions of service of persons in the service 
of Pakistan shall be determined −  
(a) in the case of the services of the Federation, 
posts in connection with the affairs of the 
Federation and All Pakistan Services, by or 
under Act of Majlis-e-Shoora (Parliament); and  
(b) … 
 
 
Article 260 of the Constitution: 
260.(1) In the Constitution, unless the context otherwise 
requires, the following expressions have the meaning 
hereby respectively assigned to them, that is to say,−  
 
... 
”service of Pakistan” means any service, post or 
office in connection with the affairs of the 
Federation or of a Province, and includes an 
All-Pakistan Service, service in the Armed 
Forces and any other service declared to be a 
service of Pakistan by or under Act of Majlis-e-
Shoora 
(Parliament) 
or 
of 
a 
Provincial 
Assembly, but does not include service as 
Speaker, Deputy Speaker, Chairman, Deputy 
Chairman, Prime Minister, Federal Minister, 
Minister of State, Chief Minister, Provincial 
Minister, Attorney-General, Advocate-General,  
Parliamentary 
Secretary 
or 
Chairman 
or 
CA.521/2015, etc.  
6
member of a Law Commission, Chairman or 
member of the Council of Islamic Ideology, 
Special Assistant to the Prime Minister, Adviser 
to the Prime Minister, Special Assistant to a 
Chief Minister, Adviser to a Chief Minister or 
member of a House or a Provincial Assembly;” 
 
 
 
Section 2(1)(b) of the Civil Servant Act, 1973: 
“2. Definitions.- (1) In this Act, unless there is anything 
repugnant in the subject or context,--  
 
(a)   … 
(b) “civil servant” means a person who is a 
member of an All-Pakistan Service or of a civil 
service of the Federation, or who holds a civil 
post in connection with the affairs of the 
Federation, including any such post connected 
with defence, but does include: 
(i) a person who is on deputation to the 
Federation 
from 
any 
Province 
or 
other 
authority;  
 
(ii) a person who is employed on contract, or on 
work-charged basis or who is paid from 
contingencies; or  
(iii) a person who is "worker" or "workman" as 
defined in the Factories Act, (XXV of 1934), or 
the Workman's Compensation Act, 1923 (VIII of 
1923): 
 
6. 
 
Three broad tests for establishing the status and 
character of a civil servant emerge from the Constitutional mandate 
of the afore-going Articles. Firstly, under Article 240(a) of the 
Constitution, appointments to and the terms and conditions of 
service of the persons in the “service of Pakistan” are be determined 
by or under Act of Parliament. Secondly, by virtue of Article 260 of 
the Constitution, ‘service of Pakistan’ means any service, post or 
office in connection with the affairs of the Federation. Thirdly, under 
Article 212(1)(a) of the Constitution, the exclusive jurisdiction to 
adjudicate disputes relating to the terms and conditions of persons, 
who are in the service of Pakistan vests in an Administrative 
CA.521/2015, etc.  
7
Tribunal, namely, the Federal Service Tribunal. These tests are 
mentioned in the Muhammad Mubeen-us-Salam case ibid (at 
pp.686-689 of the law report). The definition of the term ‘civil servant’ 
in the Act adopts the Constitutional criteria given in Article 260 
noted above to reiterate that a person who, inter alia, holds a civil 
post “in connection with the affairs of the Federation” including any 
such post connected with defence, to be a civil servant. The larger 
Bench has in this respect taken the logical step to incorporate the 
requirements under Articles 240(a) and 260 of the Constitution as 
the definitional criteria of the term “civil servant” (at p.682 of the law 
report).  
7. 
 
Having noticed the qualifying criteria of a civil servant 
under the law, it is appropriate now to examine the factual matrix of 
the present controversy. The FC was established by the NWFP 
Constabulary  Act, (Act-XIII) of 1915 (“Constabulary Act”). Section 
3 of the Constabulary Act empowers the Federal Government to 
maintain the FC as a force “for the better protection and 
administration of the external frontiers of Pakistan within the limits 
of or adjoining North-West Frontier or any part thereof.” Section 3-A 
of the Constabulary Act authorises the Federal Government to 
employ the FC outside the limits of or adjoining the North-West 
Frontier Province in other parts of Pakistan for the better protection 
and administration of those parts. Section 5(1) of the Act ibid vests 
the Federal Government with power to appoint the Commandant 
and other persons including the District Constabulary Officers or 
CA.521/2015, etc.  
8
Assistant Constabulary Officers of the force in one or more districts. 
Section 6 delegates to the Commandant and District Constabulary 
Officer the power to appoint subordinate officers in the manner 
prescribed by Rules made under the Act. The Federal Government 
exercised its power conferred by Section 21 of the Constabulary Act, 
to frame the NWFP Constabulary Rules, 1958 (“Constabulary 
Rules”), in order to provide the terms and conditions of service of 
the officers and men in the FC.  
8. 
 
It will be observed that the matter of terms and 
conditions of service of the respondent-employees of the FC, are in 
the first place regulated by the Constabulary Act and elaborated 
pursuant thereto by the FC Rules. The provisions made by the 
Constabulary Rules are in furtherance of and in exercise of the 
power conferred by the Constabulary Act. Therefore, the terms and 
conditions of service of the employees of the FC are prescribed in the 
Act and the Rules. The test laid down in Article 240(a) of the 
Constitution requires that the appointment to and the terms and 
conditions of service of posts in connection with the affairs of the 
Federation and of a service of Pakistan shall be determined “by or 
under an Act of” Parliament. The expression “by or under” in Article 
240(a) of the Constitution authorizes the terms and conditions of 
service of a civil servant to be provided both by statute or by 
statutory rules. The provision made in the Constabulary Act and the 
Constabulary Rules, therefore, satisfy the Article 240(a) test. The 
CA.521/2015, etc.  
9
judgment in the Muhammad Mubeen-us-Salam case ibid endorses 
this point of view: 
 
“86. 
…The terms and conditions of service of those 
employees, however, are required to be specified under 
Article 240 of the Constitution by or under Act of the 
Parliament. Thus, the conclusion would be that only 
those persons, who are in the service of Pakistan, as 
discussed hereinabove, and if their terms and 
conditions are governed either by a statute or statutory 
rules, in terms of Article 240 of the Constitution, can 
seek remedy before the Service Tribunals. …” 
 
9. 
 
 The second crucial test of the rule laid down in the 
Mubeen-us-Salam case ibid for a person to qualify as the member of 
a service of Pakistan and therefore as a civil servant, is that the civil 
post he holds must bear connection with the affairs of the 
Federation, including any such post connected with the Defence. 
The respondents were appointed in service pursuant to the 
provisions of the Constabulary Act of 1915 and the Constabulary 
Rules, 1958 framed thereunder. Under Section 3 and Section 3A of 
the Constabulary Act, the respondents, inter alia, perform functions 
for the better protection and administration of the frontiers of 
Pakistan. The performance of such duties and functions is clearly in 
connection with the affairs of the Federation of Pakistan because 
these are rendered to protect the solidarity, integrity and law and 
order in Pakistan.  
10. 
 
A helpful discourse on this aspect of the matter is 
rendered by a judgment reported as Federation of Pakistan   vs.  
CA.521/2015, etc.  
10
Muhammad Nazir (1998 SCMR 1081). In that case, the question in 
issue was whether the employees of Pakistan Rangers fell within the 
definition of “civil servant” and whether the Federal Service 
Tribunal had jurisdiction to entertain appeals from orders passed by 
the Pakistan Rangers Authorities. It was observed by the Court that: 
 
“7.  
… Perusal of these rules clearly shows that they 
are all embracing, and therefore, under the amendment of 
section 1 of the Pakistan Rangers Ordinance, these rules 
would prevail over the Rules of 1973. The Pakistan 
Rangers Ordinance was promulgated to constitute a force 
called the Pakistan Rangers for the protection of and 
maintenance of order in the border areas. Since with 
regard to the status of the members of the force the 
Pakistan Rangers Ordinance is silent, therefore, it can be 
safely said that the employees of the Pakistan Rangers 
will be deemed to be civil servants as they are performing 
duties in connection with affairs of the Federation and 
hence under the Service Tribunals Act, 1973, an appeal by 
a member of the Pakistan Rangers regarding a matter 
relating to terms and conditions of his service is 
competent before the Federal Service Tribunal. …”   
[emphasis supplied] 
 
11. 
 
It follows from the dicta laid down above that the 
protection of the border areas is a sovereign function belonging to 
and performed by the Federation. The same duty is performed 
equally in the present case by the FC not only on the frontiers of 
KPK Province but also by maintaining order in other parts of 
Pakistan. For discharging such functions, the services rendered by 
the FC have direct nexus with the affairs of the Federation. 
Therefore, the reasons given in the Muhammad Nazir case (supra) 
CA.521/2015, etc.  
11
fully apply here as well and we hold that the employees of FC are 
civil servants. Insofar as the question of competent remedy in 
respect of service disputes of FC men is concerned, we hold that in a 
matter relating to the terms and conditions of service of the 
respondent-employees of the FC, an appeal before the Federal 
Service Tribunal is available to them as the exclusive remedy under 
the law. Accordingly, this remedy may be availed by them within 
the statutory period of limitation commencing from the date of 
issuance of certified copy of this judgment. All these appeals filed by 
the appellant-Commandant, FC are accordingly allowed in above 
terms.  
12. 
 
CIVIL PETITIONS NO.3875 OF 2016 &  2418, 2879 
OF 2017 & CIVIL PETITIONS NO.2937 & 4287 OF 2017.– Since 
all these petitions involve the same question of law as discussed 
above, therefore, the same are converted into appeals and allowed in 
above terms.  
13. 
 
CIVIL PETITIONS NO.2938-2940 OF 2017. - These 
three petitions are barred by 58 days. As the substantial question of 
law raised in these petitions is the same as the one raised in the 
above noted appeals which have been allowed; therefore, following 
the dictum laid down by this Court in Mehreen Zaibun Nisa vs.  
Land Commissioner, Multan (PLD 1975 SC 397), we condone the 
delay occasioned in the filing of these petitions. Consequently, we 
CA.521/2015, etc.  
12
also convert these petitions into appeals and allow the same in the 
terms noted in para-11 above.  
 
 
CHIEF JUSTICE 
 
 
JUDGE 
 
 
JUDGE 
 
 
 
JUDGE 
 
 
JUDGE 
Islamabad, 
29.01.2018. 
Irshad Hussain /* 
 
 
APPROVED FOR REPORTING. 
 
 
