IN THE SUPREME COURT OF PAKISTAN 
  
 
(Appellate Jurisdiction) 
 
 
 
 
 
 
 
PRESENT: 
 
 
MR. JUSTICE ANWAR ZAHEER JAMALI, CJ 
 
 
 
MR. JUSTICE SH. AZMAT SAEED 
  
 
 
CIVIL APPEALS NOS.06 AND 724 OF 2016  
(On appeal from the judgment of the Federal Service 
Tribunal, Islamabad dated 27.4.2015 passed in Appeal 
No.842(R)CS of 2009 and dated 10.6.2015 passed in 
Appeal No.799(R)CS of 2014) 
 
 
Federation 
of 
Pakistan 
through 
Secretary, Ministry of Foreign Affairs, 
Islamabad and others  
 
 
 … Appellant (s) 
    (in both cases) 
 
Versus 
 
Ali Naseem  
 
 
(in CA No.06/2016) 
 
Abdul Ghafoor Malik and another  
 
(in CA No.724/2016) 
 
… Respondent (s) 
 
For the Petitioner(s) 
: Mr. Nayyab Hassan Gardezi, 
 Standing Counsel 
Raja Abdul Ghafoor, AOR 
Mr. Fayyaz Ahmed, AD (Legal) 
 
  
For the Respondents  
: Hafiz S.A. Rehman, Sr. ASC 
 (in CA No.06/2016) 
 
Mr. Mahmood A. Sheikh, AOR 
(in CA No.724/2016) 
 
  
Date of Hearing 
: 11.07.2016 
  
 
CAs Nos.6-2016 etc 
- 2 - 
JUDGMENT  
 
 
 
SH. AZMAT SAEED, J.- Through this judgment, it 
is proposed to decide Civil Appeals No.06 and 724 of 2016, 
involving common questions of law and facts.  
2.  
 
The brief facts necessary for adjudication of the lis 
at hand are that the Respondents in both the instant Civil 
Appeals were variously employed locally in the Pakistani 
Missions Abroad, whose services were terminated. After 
rejection of the Departmental Appeals filed by the present 
Respondents, both separately invoked the jurisdiction of the 
learned Federal Service Tribunal, Islamabad (FST), wherein 
their respective appeals were accepted by way of the 
impugned judgments. The Appellants unsuccessfully had 
taken up the plea before the learned Tribunal that the 
Respondents were not Civil Servants; hence, they were not 
entitled under the law to file the Appeals before the learned 
FST. 
3. 
 
In Civil Appeal No.6 of 2016, Respondent Ali 
Naseem was apparently employed on 12.8.1991 by the 
Embassy of Pakistan in Paris, France as a Stenotypist and vide 
letter dated 25.09.2000, his services were terminated with 
CAs Nos.6-2016 etc 
- 3 - 
effect from the said date. The said Respondent filed a 
Departmental Appeal, which was eventually rejected on 
16.07.2009, which order was challenged in Appeal before the 
learned FST. The learned FST accepted the Appeal vide 
judgment impugned dated 27.04.2015. Aggrieved, the present 
Appellants filed Civil Petition for Leave to Appeal No.1865 of 
2015 before this Court, wherein Leave to Appeal was granted 
vide Order dated 05.01.2016. Hence, this Civil Appeal.  
4. 
 
Abdul Ghafoor Malik Respondent in Civil Appeal 
No.724 of 2016, was appointed on temporary basis with effect 
from 23.01.1990 as Local Messenger in the Welfare Wing, 
Consulate General of Pakistan, Jeddah, Saudi Arabia. Such 
employment was extended periodically. Having been found 
guilty of misconduct, inefficiency as well as causing “suffering 
to a Pakistani National”, the services of Respondent Abdul 
Ghafoor Malik were terminated vide Office Order dated 
23.11.2014 issued by the Consulate General of Pakistan, 
Jeddah, Saudi Arabia. The Respondent Abdul Ghafoor Malik 
filed a Departmental Appeal, which was rejected on 
30.11.2014. Aggrieved, the said Respondent filed an Appeal 
before the learned FST, which has been allowed vide 
impugned judgment dated 10.6.2015. The present Appellant 
CAs Nos.6-2016 etc 
- 4 - 
challenged the impugned Judgment by filing Civil Petition for 
Leave to Appeal No.2560 of 2015, wherein Leave to Appeal 
was granted vide Order dated 04.03.2016.  
5. 
 
The learned Standing Counsel contended on behalf 
of the Appellants that the Respondents in both the Civil 
Appeals were employed locally abroad in Pakistani Missions 
by the Heads of the said Missions on temporary basis through 
Contracts of Employment subject to the laws of the host 
countries specifically catering for termination upon notice.  
Such appointments are covered by the Financial Management 
at Missions Abroad Volume-II, Chapter - IX Locally Recruited 
Staff and Clause 9.1 thereof refers to Contracts of Employment 
of such Staff, whose services can be terminated upon notice. 
Thus, the nature of the employment of the Respondents was 
squarely covered under Section 2(1)(b)(ii) of the Civil Servants 
Act, 1973, whereby a person employed on contract is excluded 
from the definition of “Civil Servant”, hence in view thereof, 
the Respondents were not Civil Servants for the purposes of 
Civil Servants Act, 1973 and therefore, they were neither Civil 
Servants in terms of Section 2(a) of the Service Tribunals Act,  
1973 nor could invoke the jurisdiction of the learned FST, 
hence, the impugned judgments are without jurisdiction and 
CAs Nos.6-2016 etc 
- 5 - 
liable to be set aside. The learned Standing Counsel drew our 
attention to some judgments of the learned FST, whereby the 
persons locally employed by Pakistani Missions Abroad have 
been held not to be Civil Servants entitled to invoke the 
jurisdiction of the learned FST.  
6. 
 
The 
learned 
counsel 
for 
the 
Respondents 
controverted the contentions raised on behalf of the 
Appellants by contending that the Respondents were 
appointed against sanctioned posts in connection with the 
affairs of the Federation i.e. Ministry of Foreign Affairs. The 
Respondents were appointed for an indefinite period, who 
had served for a considerable period of time, hence, were Civil 
Servants, whose services could not be terminated without 
following the prescribed procedure. In this behalf, he referred 
to Sl. No.2 (Termination of Services of Temporary Government 
Servants) of Estacode (Civil Establishment Code) (Edition 2007 
Vol-I). Hence, it was contended, the Respondents were clothed 
with the legal attribute necessary for invoking the jurisdiction 
of the learned FST for redressal of their grievances. The 
learned counsel also made reference to some judgments of the 
learned FST, whereby, according to him, persons similarly 
CAs Nos.6-2016 etc 
- 6 - 
employed were treated as Civil Servants and held entitled to 
invoke the jurisdiction of the learned FST.   
7. 
 
Heard and the available record perused.  
8. 
 
Section 4 of the Service Tribunals Act, 1973 
provides that any Civil Servant aggrieved of an order may file 
an appeal before the learned FST. Section 2(a) of the said Act 
provides that a Civil Servant is a person who is or has been a 
Civil Servant within the meaning of Section 2(1)(b) of the Civil 
Servants Act, 1973. The term of “Civil Servant” has been 
defined in Section (2)(1)(b) of the Civil Servants Act, 1973, in 
the following terms:- 
“2. 
Definitions.—(1) In this Act, unless 
there is anything repugnant in the subject or 
context,-- 
 
 (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 not 
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 a “worker” 
or “workman” as defined in the 
Factories Act, 1934 (XXV of 1934), 
CAs Nos.6-2016 etc 
- 7 - 
or the Workmen’s Compensation 
Act, 1923 (VIII of 1923); 
 
 
9.  
 
A perusal of the aforesaid provisions makes it clear 
and obvious that a person holding a civil post in connection 
with the affairs of the Federation would be a Civil Servant. 
However, exceptions thereto have been created so as to 
exclude, inter alia, a person, who is employed on contract as is 
apparent from Section 2(1)(b)(ii) of the Civil Servants Act, 1973 
reproduced hereinabove.  
10. 
 
The Respondents in the instant appeals belonged to 
a specific category of employees of the Federation engaged 
and appointed locally in the Pakistani Missions Abroad. The 
appointment of this category of employees is not effected in 
accordance with the standardize procedure provided for 
appointment of Civil Servants under the Civil Servants Act, 
1973 and the Rules framed thereunder, more particularly, the 
Civil Servants (Appointment, Promotion & Transfer) Rules, 
1973. They were not appointed through the Public Service 
Commission or the Selection Boards mentioned therein nor 
thereafter transferred to the Pakistani Diplomatic Missions. 
Such appointees from a separate category of employees 
recruited locally by the Heads of the Missions functioning 
CAs Nos.6-2016 etc 
- 8 - 
outside the Pakistan. The authority of such Heads of Missions 
can be traced to the Financial Management at Missions Abroad  
Chapter IX page 131, more particularly, clause 9.1 thereof, 
which is reproduced hereunder for ease of reference:- 
“Financial Management at Missions Abroad 
Chapter – IX, Page 131 
 
“9.1  
Tenure of Service 
 
9.1.1  
Heads 
of 
Missions 
are 
empowered 
to 
recruit 
staff 
locally 
on 
temporary basis against sanctioned posts. 
Such staff is not eligible for permanent 
employment. Their temporary employment 
should be in accordance with the prevailing 
practice or law of the country concerned. If 
there is no such law governing temporary 
employment the service of local recruits will 
be terminated on a fortnight’s notice on 
either side. The services of such local 
recruits can be terminated by the Head of 
Mission in accordance with the terms of the 
service 
contracts 
signed 
between 
the 
Mission and the employee. [MOFA No.M(11)-
7/31/51, dated 18.08.1952 and No.Rules-
1/6/73, dated 20.06.1973]” 
 
11. 
 
A perusal of the aforesaid instructions reveals that 
the recruitment of local staff by the Heads of Missions is only 
to be effected through Employment Contracts. The Heads of 
Missions do not appear to be authorized to recruit any local 
staff otherwise than on contract.  
12. 
 
The learned counsel for the Respondents was 
unable to show any specific provision for recruitment of local 
staff for Missions Abroad permitting recruitment otherwise 
CAs Nos.6-2016 etc 
- 9 - 
through a contract. However, the learned counsel for the 
Respondents made a Reference to the Estacode Civil 
Establishment Code (Edition 2007) entry titled Termination of 
Services 
of 
Temporary 
Government 
Servants, 
which 
incidentally was relied upon by the learned FST in one of the 
impugned judgment. The same is reproduced herein below for 
ease of reference:- 
Estacode Civil Establishment Code (Edition 
2007) Volume I, Page 458 
 
“Termination of Services of Temporary 
Government Servants 
 
 A 
Civil 
Servant 
is 
not 
necessarily 
in 
temporary employment merely because of a 
statement in the order of appointment that 
his appointment will be purely temporary and 
liable to termination at any time without any 
notice or reasons being assigned. No Civil 
Servant is a temporary employee as long as 
the employment is for an indefinite period or 
against a post which continues to exist for an 
indefinite period. It is extremely difficult to 
attribute to the legislature an intention to 
clothe the authority concerned with arbitrary 
powers of terminating the services of a Civil 
Servant in their discretion without assigning 
any reason. The courts have always been 
reluctant to interpret these provisions in a 
manner as would justify the externment of an 
employee without any justification. 
 
2. 
Further, after the enactment of Civil 
Servants Act, 1973, the services of a Civil 
Servant can either be terminated under 
Section 11 of the Act or under Government 
Servants (E&D) Rules, 1973. It is not possible 
to spell out any power to terminate the 
services of an employee without notice and 
without 
assigning 
any 
reason 
from 
the 
provision of sub section (3) of Section 11 of 
Civil Servants Act, 1973, especially in the 
presence of the provisions of sub-section (1) 
CAs Nos.6-2016 etc 
- 10 - 
thereof regarding termination of service during 
the initial or extended period of probation. If 
an employee has passed through the period of 
probation to the satisfaction of the competent 
authority, he is no longer a temporary 
employee within the meanings of sub-section 
(3) if his employment is for an indefinite period 
or against a post which continues to exist for 
an indefinite period. 
 
3. 
In the light of above advice of the Justice 
Division services of an employee can no more be 
terminated without notice and without assigning 
reason. 
 
 
[Authority.- Extract from Estt. Division 
O.M. No.31/64-86-R-3 dated 20-4-1987].” 
 
13. 
 
We are afraid that the aforesaid entry in the 
Estacode is of no real assistance to the point of view canvassed 
on behalf of the Respondents as the instructions presupposes 
that the Government Servant in question is a Civil Servant 
(and not a contract employee) and primarily, pertains to 
temporary employees and not to persons locally recruited by 
the Heads of Missions outside Pakistan. It reiterates the 
provisions of Civil Servants Act, 1973 whereunder, as has been 
noted above, persons employed on contract do not fall within 
the definition of Civil Servants.  
14. 
 
Abdul Ghaffar Respondent in Civil Appeal No.724 
of 2016 was employed through contract of employment for a 
fixed period, which was extended from time to time. The last 
of such documents of the Consulate General of Pakistan 
CAs Nos.6-2016 etc 
- 11 - 
Jeddah dated 01.1.2014 is available at page 30 of the paper-
book. The relevant portion thereof is reproduced hereunder 
for ease of reference: 
“Employment Contract 
 
Mr. Abdul Ghafoor, a Pakistan national 
appointed as a local-based Messenger at this 
Consulate General on purely temporary / 
contract basis with effect from 23.01.1990. 
His employment contract is hereby renewed 
for another year with effect from 1 January 
2014 
to 
31 
December 
2014. 
His 
appointment is governed under the following 
terms and conditions until further order:- 
 
Pay & 
 Allowances 
He will draw basic pay 
at 
the 
rate 
of 
SR.3,000/- per month. 
In 
addition 
to 
the 
monthly salary, he will 
be entitled to a monthly 
conveyance allowance @ 
SR.400/- (fixed) + Local 
Compensatory 
Allowance @ 15% of 
basic pay. 
 
Leave 
He will be entitled to 
leave in accordance with 
the prevailing rules and 
regulations 
of 
this 
Mission, 
as 
may 
be 
amended from time to 
time. 
 
Other 
Employment 
He will not engage in 
any 
other 
work 
elsewhere for monetary 
or other considerations. 
He will not attend any 
school 
or 
college 
or 
other 
courses 
of 
instruction 
without 
prior permission of the 
Mission. 
 
Discipline/ 
Conduct 
During his employment 
in the Mission, he will 
CAs Nos.6-2016 etc 
- 12 - 
be required to perform 
such duties as officially 
required. 
Refusal 
or 
reluctance to perform 
the duties assigned by 
the reporting officer or 
the Head of Chancery 
will constitute an act of 
misconduct which may 
lead to termination of 
services forthwith. 
 
Non-Disclosure 
He will not publish or 
broadcast 
anything 
pertaining to or having 
bearing on Pakistan’s 
relations 
with 
other 
countries or anything 
relating to the Mission 
or to his work; nor 
divulge any information 
which 
comes 
to 
his 
attention in the Mission, 
during the tenure of his 
contract or even after he 
ceases to be in the 
employment 
of 
this 
Mission. 
 
Termination 
His 
services 
can 
be 
terminated 
by 
either 
side giving one month’s 
notice in writing or one 
month’s salary in lieu 
thereof. 
However, 
his 
services would be liable 
to 
terminate 
immediately, 
without 
any compensation and 
notice, if he is found 
guilty 
of 
misconduct, 
insubordination, 
absence 
from 
duty 
without prior approval, 
serious 
dereliction 
of 
duty, material breach of 
rules and regulations or 
taking undue advantage 
of his position. 
 
Renewal 
The renewal of contract 
will be decided on the 
basis 
of 
achieving 
a 
CAs Nos.6-2016 etc 
- 13 - 
minimum 
score 
of 
“Good” in his annual 
Performance Evaluation 
Reports. 
 
Gratuity 
He will be entitled to 
end-of-service 
gratuity 
@ 15 days for each 
completed 
years 
of 
service, 
subject 
to 
maximum 
of 
Pak. 
Rs.175,000/- 
(or 
as 
amended 
by 
the 
Government of Pakistan 
from time to time) after 
completion of five years 
of service which is the 
minimum 
qualifying 
period of the entitlement 
to gratuity. 
 
This issues with the approval of the 
Head of Mission.” 
 
 
15. 
 
Similar document with respect to other Respondent 
is also on record and its relevant portion reads as follows:- 
 “Reference to your application and your 
interview at this Embassy, you are appointed 
as Stenotypist with effect from 12-8-1991 on 
the following terms and conditions. 
 
1. 
You 
will 
receive 
a 
pay 
of 
FF.4100/- 
per 
mensem 
and 
conveyance allowance. 
 
2. 
You will be on probation for a 
period of three months. If your work is 
not found satisfactory during this 
period your services will be terminated 
forthwith 
without 
any 
notice. 
On 
completion of this period notice for the 
termination of services on either side 
will be fourteen days or salary in lieu 
thereof. In case of dismissal because of 
misdemeanour, 
no 
notice 
will 
be 
necessary. 
 
3. 
No Social security will be paid by 
the Embassy but you will be entitled to 
a Health Insurance Policy paid by the 
CAs Nos.6-2016 etc 
- 14 - 
Embassy should you so desire and 
provided you do not already enjoy 
similar 
facilities 
under 
any 
other 
scheme. 
 
4. 
You will earn leave at two and a 
half days per month which will be 
granted in proportion to the period of 
service rendered. Leave will not be 
carried over from one calendar year to 
another. You will be also entitled to 
seven days of casual leave plus thirteen 
days of medical leave each. The latter 
can 
be 
claimed 
only 
on 
medical 
grounds. 
 
5. 
You will be considered for an 
increase after completion of one year 
service. 
 
6. 
Other conditions of service will be 
according to the rules and regulations 
framed by the Embassy from time to 
time. 
 
7. 
The appointment is being made 
subject to the conditions that you are 
free from any chronic, mental or 
physical disorder and that if such a 
condition came to light subsequently, 
your 
services 
are 
liable 
to 
be 
terminated without any notice. 
 
8. 
You will be entitled to end of 
service gratuity as per rules framed by 
the 
Ministry 
of 
Foreign 
Affairs, 
Government of Pakistan.” 
 
16. 
 
A perusal of the aforesaid documents indicates that 
the same are inconsonance with the Financial Management at 
Missions Abroad reproduced hereinabove. The Respondents 
have 
been 
employed 
locally 
through 
a 
contract 
of 
employment, 
as 
envisaged 
therein 
and 
contained 
a 
termination clause as mentioned in the said instructions, 
CAs Nos.6-2016 etc 
- 15 - 
which is generally alien to the terms and conditions of service 
of Civil Servants regularly appointed.  
17. 
 
An over view of the aforesaid leaves no manner of 
doubt that the Respondents may be holding a civil post in 
connection with the affairs of the Federation, but who were 
not employed on regular basis through the usual procedure as 
prescribed for the appointment of Civil Servants under the 
Civil Servants Act, 1973 and the Rules framed thereunder. 
They are appointed locally by the Heads of the Missions of 
Pakistan abroad purportedly in exercise of the powers 
conferred upon them by the Financial Management at 
Missions Abroad reproduced hereinabove. Such instructions 
only permit appointment of local staff on contract basis. The 
documents evidencing their appointments appear to be 
employment contracts. Thus, it is self evident that the 
Respondents were appointed on Contract basis. Hence, in 
view of Section 2(1)(b)(ii) of the Civil Servants Act, 1973, the 
Respondents were not Civil Servants, therefore, in view of 
Section 4 read with Section 2(1) of the Service Tribunals Act,  
1973 were not entitled to invoke the jurisdiction of the learned 
FST, hence the impugned judgments dated 27.4.2015 and 
CAs Nos.6-2016 etc 
- 16 - 
10.6.2015 are without jurisdiction, therefore,  not sustainable in 
law.  
18. 
 
In view of the above, these appeals are liable to be 
allowed and the impugned Judgments dated 27.4.2015 and 
10.6.2015 are also liable to be set aside.  
19. 
 
These are the reasons of our short order of even 
date, which reads as follows:- 
 “We have heard arguments of Mr. Nayyab 
Hassan Gardezi, learned Standing Counsel on 
behalf of Federation and Hafiz S. A. Rehman, 
learned Sr. ASC for the Respondents. For the 
reasons to be recorded separately, both these 
appeals are allowed and impugned judgments 
are set aside.” 
 
 
 
 
 
 
Chief Justice  
 
 
 
      Judge  
 
Bench-V 
 
 
Islamabad, the 
 
 
11th July, 2016 
‘NOT APPROVED FOR REPORTING’ 
Safdar 
 
 
  
 
