2000 Y L R 494

[Lahore]
Before M. Javed Buttar and Syed Zahid Hussain, JJ
DIRECTOR---GENERAL, NATIONAL
GUARDS and 2, others---Appellants
versus
MUJAHID MAJOR ABDUL MAJID BHATTI---Respondent
Intra-Court Appeal No. 135 of 1996 in Writ Petition No. 7766 of 1994, decided on 16th
November, 1999.
(a) National Guards Act (LXI of 1973)---
----S.7---Pakistan Army Act (XXXIX of 1952), S.8(1)---Term "active service"---Scope---
Federal Government, under the provisions of S.7, National Guards Act, 1973, was empowered to
declare by notification any person subject to National Guards Act, 1973, to be deemed on "active
service" within the meaning of the Act---Operation against the enemy pr military operation
against a foreign country was not necessary for the application of term "active service".
Allah Ditta v. The State PLD 1976 Lah. 823 fol.
(b) National Guards Act (LXI of 1973)---
----Ss.9 & 16---National Guards Rules, 1973, R.13---Constitution of Pakistan (1973), Art.l99(3)-
--Intra-Court appeal---Transfer of the petitioners without obtaining their consent---Objection to
the maintainability of the Constitutional petition was raised in view of Art.199(3) of the
Constitution as the petitioners were personnels of Disciplined Force and were subject to
Pakistan Army Act, 1952---High Court repelled the objection and declared the transfers of the
petitioners as illegal and the Constitutional petitions were allowed---Validity--- Petitioners were
personnels of Disciplined Force and representations against their transfers had been dismissed
by the Chief of Army Staff as such the petitioners were subject to Pakistan Army Act, 1952 at
the relevant time and Constitutional petition was not maintainable in view of Art.199(3) of the
Constitution--Despite S.9, National Guards Act, 1973, the petitioners could be transferred
without obtaining their consent in view of S.16 of National Guards Act, 1973---Allegation of
mala fides had no factual or legal force--Order of High Court entertaining the Constitutional
petition was not upheld and Constitutional petitions were dismissed accepting Intra-Court
Appeal in circumstances.
The Federation of Pakistan and 2 others v. Khurshid Ahmed and others 1999 SCMR 664; Mrs.
Naheed Maqsood v. The Federation of Pakistan 1999 SCMR 2078 and Muhammad Khursheed
Butt v. The Government of Pakistan PLD 1983 SC 92 ref.
Sher Zaman Khan, Dy. Attorney-General for Appellants.
Mian Khan Bhatti for Respondents.
Date of hearing: 19th October, 1999.
JUDGMENT
SAYED ZAHID HUSSAIN, J.--Judgment dated 19-3-1996 in three connected writ petitions,
involving identical points, whereby the same were accepted by a learned Single Judge of this
Court, is the subject-matter of these Intra-Court Appeals which arise in the under mentioned
circumstances:---
2. Mujahid Major Abdul Majid Bhatti was transferred on 23-1-1994 from 841 11Cjahid Training
Battalian to 555 Mujahid Battalian. He filed a representation before the Chief of Army Staff
(COAS) which was dismissed on 7-6-1994. He then filed Writ Petition No.7766 of 1994
challenging his transfer order which petition was accepted by a learned Single Judge on 19-3-
1996. The said judgment has given rise to. I.C.A. No. 135 of 1996. In identical circumstances,
Writ Petition No.7768 of 1994 was filed by Mujahid Major Muhammad Shafique challenging his
order of transfer which was accepted by a learned Single Judge by the same judgment and I.C.A.
No.137 of 1996 has arisen out of the same. Mujahid Captain Dil Muhammad had also challenged
his transfer order by filing Writ Petition No.7767 of 1994 which writ petition was accepted
alongwith the abovementioned writ petitions and I.C.A. No. 136 of 1996 arises out of the same.
All the writ petitions were heard together and decided through a common judgment challenged in
these appeals. Accordingly, these appeals were also heard together and are being disposed of
through this common judgment.
3. Before the learned Single Judge the case of the writ petitioners (the respondents herein these
appeals) was that they could not be transferred without their consent from one Unit to another
Unit in view of section 9, read with Rule 13 of the National Guards Act, 1973 and the Rules
framed thereunder. An objection was taken by the appellants (the respondents in the writ
petitions) that by virtue of section 18 of the National Guards Act, 1973. The writ petitioners were
subject to the Pakistan Army Act, 1952, therefore, the petitions were barred in terms of Article
199(3) of the Constitution of the Islamic Republic of Pakistan, 1973.
4. The learned Single Judge overruled the objection as to the competency of the writ petitions by
taking the view that:--
"Section 2(c) of the Pakistan Army Act, 1952 states that persons not otherwise subject to
the Act become subject if they are on Active Service which stands defined in section 8(1)
of the ibid. Act. Since the petitioners were not engaged in operations against enemy or in
military operations against a foreign country, they cannot be deemed to be on Active
Service."
(Paragraph No. 10 of the judgment)
He was further of the view that:--
"Article 199(3) of the Constitution of Islamic Republic of Pakistan, 1973 shall not be
applicable to the case in hand, as the petitioners are not members of the Armed Forces of
Pakistan or subject to any law relating to any of those Forces or subject to any such law at
the relevant time. "
(Paragraph No. 11 of the judgment).
Taking the above said view, the learned Judge proceeded to accept the petitions that the
impugned order "transferring the petitioner to deactivated Unit is declared to be without any
lawful authority and of no legal effect." The same is challenged in the appeals.
5. It is contended by the learned Deputy Attorney-General that jurisdiction of the High Court
under Article 199(3) of the Constitution could not be invoked in the matter as by virtue of
section 18 of the National Guards Act, 1973 the respondents were subject to the Pakistan Army
Act, 1952. It is contended that the learned Judge erred in taking the view that despite the
application of the Pakistan Army Act, 1952 to the respondents they could not be treated on
"Active Service" and that reliance of the learned Judge on section 8(1) of the said Act was
misplaced in view of the Notification, dated 3-1-1975 issued under section 7 of the Pakistan
Army Act, 1952. It is contended that as the respondents were subject to the Pakistan Army Act,
1952, the ouster clause (3) of Article 199 of the Constitution was attracted and the petitions were
barred. He further contends that the respondents were transferred to their parent Buttalian, as
such, there was no question of their consent for the transfer and that section 9 of the National
Guards Act, 1973 has not been correctly construed in the context.
6. The learned counsel for the respondents, on the other hand, referring to Articles 243 to 245 of
the Constitution contends that the respondents were not members of Pakistan Armed Forces,
therefore, Article 199(3) of the Constitution was not applicable to them. It is contended that the
provisions of Pakistan Army Act, 1952 stood modified by operation of Rule 16, read with
Schedule II of the National Guards Rule, 1973, as such, the respondents could not be regarded
subject to the provisions of the Pakistan Army Act, 1952 in matters of their terms and conditions
of service.
7. In the context of the controversy a brief reference to the relevant provisions of laws may be
appropriate to appreciate the object and purpose of constituting Mujahid Force.
8. Section 5 of the National Guards Act, 1973 envisaged the Constitution of a Force to be
designated "Mujahid Force" to be raised and maintained in accordance with the provisions of the
Act. This was not for the first time that such a Force was to be raised and maintained. It appears
that a Force designated the "Pakistan National Guards" was constituted, raised and maintained
under section 3 of the Pakistan National Guards Act, 1950. By virtue of section 12 of the said
Act, "Pakistan National Guards" when doing duty as such officers were subject to the provisions
of Pakistan Army Act, 1952 which had taken the place of Indian Army Act, 1911. This Act was,
however, repealed and Pakistan Mujahid Force Ordinance, 1965 (Ordinance XXII of 1965) took
its place. Its section 4 envisaged a Force to be designated the "Pakistan Mujahid Force" to be
raised and maintained in accordance with the provisions of the Ordinance. By virtue of section
12 of the Ordinance, the provisions of Pakistan Army Act, 1952 were made applicable to the
Force. The National Guards Act, 1973, as mentioned above, constituted "Mujahid Force" by its
section 5 on the repeal of the Ordinance, XXII of 1965. Section 6 empowers the Federal
Government or any officer or authority empowered by it in that behalf to constitute one or more
Units of the Mujahid Force to be recruited from persons residing in Pakistan and may disband or
reconstitute any Unit so constituted. In terms of section 7 of the Act, Mujahid Force is to consist
of the following personnels:---
"(a) Officers holding commissions in the Force granted by the President-
(b) Junior commissioned officers holding commissions in the Force granted by the Chief
of the Army Staff;
(c) non-commissioned officers, appointed as such by the respective commanding officers;
and
(d) Mujahids. "
Section 8 of the Act takes care of the enrollment, whereas, section 9 deals with the transfers and
attachments, that "any person appointed to. a Unit may with his consent, be transferred, whether
on disbandment of the Unit or otherwise, to another Unit in such manner as may be prescribed;".
By virtue of section 15 of the Act every person enrolled in the Mujahid Force or the Janbaz
Force is liable to be called up for military training, for which purpose, their command and
control shall be regulated according to the orders of the Director-General or any authority
empowered by him in this behalf. Section 16 of the Act casts a duty and liability to serve in any
Unit to which he has been appointed or transferred or is for the time being attached and shall be
subject to all rules and regulations. Whereas, section 17 of the Act entitles a person enrolled to
receive his discharge from the Force on the expiration of the period for which he was enrolled
and may also be discharged before the expiration of the period by the prescribed authority
subject to such conditions, if any. Section 18 of the Act is of vital importance as it makes
Pakistan Army Act, 1952 applicable to every officer and junior commissioned officer when
doing duty as such officer or junior commissioned officer. (This provision in view of its
relevancy will find mention in the latter part of the judgment in extenso). Section 39 empowers
the Federal Government to make rules for carrying out the purpose of the Act.
9. The National Guards Rules, 1973 were made by the Federal Government in pursuance of
section 39 of the Act. Rule 3 of these ...rules deals with the grant of Commission to the retired
Army Officers for which the General Headquarter of the Pakistan Army forwards
recommendations to the 'Federal Government. Rule 4 onwards is the procedure for enrolment,
and appointments. Rule 13 prescribes the procedure for transfers and attachments of Mujahids,
on the disbandment of a Unit, whereas, Rule 16 deals with the modification of Pakistan Army
Act, 1952 as specified in Schedule 11. Reference to Schedule, it shows that sections 3 to 6 and
18 to 20 of the Pakistan Army Act, 1952 stand omitted.
10. There seems to be a consistent objective, purpose and policy of the aforesaid enactments to
raise and maintain a Force designated the National Guards/Mujahid Force. It is a Semi-Military
organization, called in times of emergency or, national crises. The respondents also admit its
Semi-Military character. The application ~of Pakistan Army Act, 1952 to the personnels when
doing duty as such has also been continuously ensured.
11. In order to appreciate the import, extent and amplitude of clause (3) of Article 199 of the
Constitution reference to the same will be appropriate: ---
"Article 199(3).
An order shall not be made under clause (1) on application made by or in relation to a
person who is a member of the Armed Forces of Pakistan, or who is for the time being
subject to any law relating to any of those Forces, in respect of his terms and conditions
of service, in respect of any, matter arising out of his service, or in, respect of any action
taken in relation to him as a member of the Armed Forces of Pakistan or as a person
subject to such law."
The clause referred to above was introduced by the Constitution (First Amendment) Act, 1974 to
bring in its ambit a person who is "subject to such law" as the original clause (3) was not of such
wide amplitude and was restricted only in its application to the Members of the Armed Forces of
Pakistan.
12. Section 18 of the Act which deals with the application of Pakistan Army Act, 1952 and Rule
16 of the National Guards Rules, 1973 which deals with the modification of the Pakistan Army
Act, 1952 are reproduced hereunder for perusal: ---
"The National Guards Act. 1973.
Section 18. Application of the Pakistan Army Act, 1952 (XXXIX of 1952):
(1) Subject to the terms and conditions of his commission and any order of the prescribed
authority made in this behalf, every officer and junior commissioned officer, when doing
duty as such officer or junior commissioned officer, shall be subject to the provisions of
the Pakistan Army Act, 1952 (XXXIX of 1952), and the rules and regulations made
there-under as if such officer or junior commissioned officer held the same rank in the
Pakistan Army as he, for the time being, holds in the Force;
Provided that the said Act, rules and regulations shall in their application to such persons
when called out or embodied for service or military service under section 16 or during
training in the Mujahid Force or the Janbaz Force be modified to such extent and in such
manner as may b. prescribed.
(2) Subject to any order of the prescribed authority made in this behalf, every non-
commissioned officer, Mujahid and Janbaz of the Force---
(a) when undergoing training, or
(b) when called out or embodied for service or military service under section 16, shall be
subject to .the Pakistan Army Act, 1952 (XXXIX of 1952), and the rules and regulations
made thereunder; as if he held the same rank in the Pakistan Army as he, for the time
being, holds in the Force;
Provided that the said Act, rules and regulations shall, in their application to such non-
commissioned officer, Mujahid or Janbaz when embodied for or otherwise undergoing
training, be modified to such extent and such manner as may be prescribed
(3) Where any person while he is subject to the provisions of the Pakistan y Army Act,
1952 (XXXIX of 1952), commits any offence punishable thereunder, he may,
notwithstanding that he may have ceased to be so subject, be taken into and kept in
custody and tried and punished for such offence in the same manner as he would have
been liable to be tried and punished had he not ceased to be so subject."
The National Guards Rules, 1973. Rule 16. Modification of Pakistan Army Act, 1952, in its
application to the Force: For the purposes of section 18 of the Act, the Director-General shall be
the prescribed authority. The provisions of the Pakistan Army Act, 1952 and the rules made
thereunder shall, in their application to the persons commissioned or enrolled under the Act in
the Mujahid Force and the Janbaz Force, when called out or embodied for service or military
service under section 16, during such service, or when called up for training under section 15,
during such training be modified to the extent and in the manner specified in Schedule II.
The National Guards Rules, 1973
Schedule II

A. Modification of the Pakistan Army Act, 1952 (XXXIX of 1952).
(1) Sections 3 to 6 (inclusive) and 18 20 (inclusive) shall be omitted."
The perusal of Schedule II shows that sections 3 to 6 and 18 to 20 as per item I, stand omitted
from the Pakistan Army Act, 1952, in its application to the Force.
13. Reference to section 7 of the Pakistan Army Act, 1952 will be appropriated as the said
provision remains unaltered by Schedule II. It reads as follows:-
"7. Power to declare persons to be on active service. ---Notwithstanding anything contained in
clause (1) of section 8, the Federal Government may; by notification, direct that any person or
class of persons subject to this Act shall, with reference to any area in which they may be serving
or with reference to all or any of the provisions of this Act or of any other law for the time being
in force, be deemed to be on active service within the meaning of this Act. "'
Section 8 of the said Act defines "Active Service" as follows:--
"In this Act, unless the context otherwise requires,--(1) "active service", as applied to a person
subject to this Act, means the time during which such persons is attached to or, forms part of a
force which is engaged in operations against an enemy, or is engaged in military operations in, or
is on the line of march to a country or place wholly or partly occupied by an enemy, or is
attached to or forms part of a force which is in military occupation of a foreign country:"
With reference to the above section 8, the learned Single Judge has taken the view that as the
petitioners (respondents herein) were not engaged in operations against enemy or any military
operation against the foreign country, they could not be deemed on "active service".
14. The connotation "active service" as envisaged by section 8(1) of the Pakistan Army Act,
1952, read with section 7 of the said Act, whereby the Federal Government has the power to
issue a Notification notwithstanding anything contained under section 8(1) of the Act to declare
any person or class of person to be deemed on "active service" within the meaning of the said
Act, came up for consideration in Allah Ditta v. The State (PLD 1976 Lahore 823). A learned
Division Bench of this Court came to the conclusion that section 7 of the Act empowered the
Federal Government to declare by Notification any person subject to the Act to be deemed on
"active service" within the meaning of that Act. It was observed that operation against the enemy
or military operation against a foreign country was not necessary.
15. The notification issued by the Federal Government under section 7 of the Pakistan Army Act,
1952, referred to in the above said judgment is as follows:--
(MINISTRY OF DEFENCE
NOTIFICATION N0. 3 OF 1975,
DATED THE 3RD JANUARY, 1975)
In exercise of the powers conferred by section 7 of the Pakistan Army Act, 1952 (XXXIX of
1952) and in supersession of this Ministry's Notification No. 4852/325/PSIA/ 4484/D-2(A) of
1971, dated the 23rd November, 1971, the Federal Government is pleased to direct that persons
subject to the said Act, shall, with reference to any area in or outside Pakistan in which they may
be serving and with reference to all the provisions of the said Act, and of any other law for the
time being in force, be deemed to be on active service within the meaning of that Act.
(See Gazette of Pakistan, Part 11 dated the 23rd January, 1975 page I).
16. The above said notification also came up for consideration before their lordships of the
Supreme Court quite recently in the Federation of Pakistan and two others v. Khurshid Ahmed
and others (1999 SCMR 664) and it was held that a person who may not otherwise be covered by
the definition of "Active Service" may be deemed to be in "Active Service" by operation of
section 7 of the Act. Their lordships reached the following conclusion at page 685 of the report:--
"It is, therefore, quite clear that for the purposes of section 7 (ibid), a person who is
subject to the Act may not be engaged in any of the military operations stated in section
8(1) of the Act for being treated on 'active service'. It is enough if the Federal
Government by notification directs, that such person or class of persons will be deemed
to be on 'active service' with reference to the area in which they are serving or with
reference to any of the provisions of the Act."
It was further observed that:---
"In terms of the above notification all persons who are subject to the Act wherever they
may be serving, with reference to all the provisions of the Act, are deemed to be on '
active service' within the meaning of the Act. The clear effect of this notification is that
all the persons mentioned in clauses (a), (b) and (bb) of subsection (1) to section 2(ibid),
are deemed to be on "active service" from the date of the notification. "
17. The above said case arose on a writ petition filed by the civilian employees i.e Lower
Division Clerks in the General Headquarters. Their trial by the Field General Court Martial was
declared by the High Court as without jurisdiction on writ petitions filed by them and the
question had arisen as to the application of the Act when they were not on "active service" as
contemplated by section 8(1) of the Act. By placing reliance on notification, dated 3-1-1975
above, their lordships came to the conclusion that the respondents would be deemed to be on
"active service" under section 7 of the Act, accordingly, appeals filed by the Federation were
accepted. Yet in an other case Mrs. Naheed. Maqsood v. The Federation of Pakistan (1999
SCMR 2078) the aforesaid notification, dated 3-1-1975, issued by the Federal Government under
section 7 of the Act, it was held at page 2083 as follows:---
"We may also refers to section 7 of the Act which lays down that notwithstanding
anything contained in clause (1) of section 8, the Federal Government may, by
notification, direct that any person or class of persons subject to this Act shall with
reference to any area in which they may be serving or with reference to all or any of
provisions of this Act or of any other law for the time being in force, be deemed to be on
active service within the meaning of this Act. It will not be out of context to mention that
subsection (1) of section 8 of the Act defines "active service" as applied to a person
subject to this Act means the time during which such person is attached to or forms part
of a force which is engaged in operations against an enemy, or is engaged in military
operations in, or is on the line of march to a country or place wholly or partly occupied
by an enemy, or is attached to or forms part of a force which is in military occupation of a
foreign country. It may be pointed out that since above section 7 contained a non-
obstante clause it shall prevail over above section 8, and thus, the Federal Government,
through a notification, can extend the scope of the meaning of the term active service' as
defined in subsection (1) of section 8 of the Act. The same has been done so through the
above quoted notification, dated 3-1-1975 by notifying that the persons subject to the Act
shall with reference to any area in or outside Pakistan, in which they may be serving and
with reference to all the provisions of the said Act, and of any other law for the time
being in force be deemed to be on active service."
18. In Muhammad Khursheed Butt v. The Government of Pakistan (PLD 1983 SC 92), the
appellant was a civilian employee in the Defence Services and held the post which was included
in the General Central Services Class 11 (Gazetted) had invoked the jurisdiction of the High
Court under Article 98 of the Constitution of Islamic Republic of Pakistan, 1962 challenging his
retirement from service. His petition was dismissed by the High Court under Article 98(3)(a) of
the Constitution. His appeal was dismissed by the Hon'ble Supreme Court upholding the bar
contained in Article 98(3)(a) of the Constitution of 1962.
19. In their petitions, the respondents had characterized the "Mujahid Force" as a semi-military
body and reference was made to Chapter 10 of Manual of Pakistan Military Law, Vol. I. Thus,
they belong to a disciplined force. We cannot brush aside the assertion of the learned Deputy
Attorney General that the respondents had been transferred to their parent Unit and there was no
mala fide of any of the appellants.
20. On appreciation of the legal provisions of the relevant laws and the judgment mentioned
above, the position that emerges is as follows:--
(i) "By virtue of section 18 of the National Guards Act, 1973, the Pakistan Army Act,
1952 has been adopted and made applicable to the personnel of Mujahid Force when
doing duty as such officers or junior commissioned officers.
(ii) Rule 16, read with Schedule II has modified/omitted sections 3 to 6 and 18 to 20 of
the Pakistan Army Act, 1952 only. Sections 2 and 7 of the Pakistan Army Act, 1952
continue to be adopted and applicable in view of section 18 of the ibid. Act. The omission
of rest of the provisions of that Act has no effect in the context of this case.
(iii) The Federal Government by issuing a notification under section 7 of the Act, 1952
can declare any person or class of person subject to the said Act on 'Active Service',
besides the Active Service defined in section 8 of the Act.
(iv) The notification of the Federal Government, dated 3-1-1975, issued under section 7
of the Act, is operative and applicable to the respondents who are, thus, deemed to be on
active service.
(v) As the respondents were subject to the provisions of the Pakistan Army Act, 1952,
(although they are not members of the Armed Forces) the bar contained in Article 199(3)
of the Constitution was applicable to them.
(vi) The rationale behind Article 199(3) of the Constitution appear to be that matters
pertaining to the conditions of service or arising out of service of a person who is for the
time being subject to any law relating to any of the Force or a person subject to such law
are left to be determined within the hierarchy itself. Article 8 of the Constitution also
lends some support to the same.
(vii) The application of clause (3) of Article 199 of the Constitution is not restricted to
the members of the Armed Forces as visualized by Articles 243 and 244 but also applies
to such other persons who are subject to any law relating to any of the Armed Forces.
(viii) Section 9 of .the National Guards Act, 1973 does not abridge or take away the
power of transfer but gives the person concerned also an option for transfer by exercising
his consent. If the matter of transfer is left at the will of the person concerned then the
provisions of section 16 of the Act will become wholly redundant according to which it is
the liability of every person to serve in any Unit to which he has been appointed or
transferred.
(ix) Transfer of an employee is generally regarded a matter of exigency of service and
the employer is considered to be the best Judge to determine the suitability of a particular
person qua the post/duty, in which the Courts very rarely interfere.
21. In view of the above, we have come to the conclusion that the respondents were personnels
of Disciplined Force whose representation against the transfer had been dismissed by the Chief
of Army Staff and were subject to the Pakistan Army Act, 1952 at the relevant time. Their
petitions were, thus, not maintainable in view of Article 199(3) of the Constitution and that
despite section 9 of the National Guards Act, 1973 they could be transferred without obtaining
their consent in view of section 16 and that the allegation of mala fide had no factual or legal
efficacy.
22. In view of the above, we have not been able to pursuade ourselves to concur with the view
taken by the learned Single Judge, despite the utmost respect that we have for him, and to agree
with him in entertaining and issuing the writ.
We, therefore, accept these appeals and dismiss the writ petitions, filed by the respondents.
No order as to costs.
Q.M.H./M.A.K./D-27/L
Appeals allowed.