JEHANZEB KHAN vs WATER AND POWER DEVELOPMENT AUTHORITY THROUGH IT S CHAIRMAN

1. FAKHRUDDIN G. EBRAHIM, J.-This is an appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan (1973) from an order dated 17-9-1978 passed by the N. W. F. P. Service Tribunal Peshawar, dismissing the appeal of the appellant as incompetent.

2. Briefly the facts are that the appellant was appointed as Assistant Engineer against a permanent post in Electricity Department under the then Government of West Pakistan on 3-4-1957. In 1958 the West Pakistan Water and Power Development Authority (hereinafter called the Authority) was established under the West Pakistan Water and Power Development Authority Act (XXXI of 1958). In exercise of the powers conferred by section 17 of the Act, the then Governor of West Pakistan by Notification No. A. D. S. E. C. I. C. W. 28-3/59 dated 28-5-1959 directed that all persons serving in whatever capacity in the Electricity Department of West Pakistan shall stand transferred for service under the Authority on and from 1-4-1959. Accordingly, the service of the appellant also stood transferred to the Authority. While in the service of the Authority, the appellant was on 21-5-1964 promoted to Class I. On the dissolution of Province of West Pakistan the Authority establish--ed under the West Pakistan Water and Power Development Authority Act, 1958 continued to function under the said Act subject to the modifications made by Article 12 of the President's Order No. 1 of 1970. Thereafter the appellant was promoted as Superintending Engineer Electricity, Tarbela, on 13- 8-1970 and some time later, on 2-4-1973 was appointed as Director of REPCO (Raw1pindi Electric Power Company). That while serving with the Authority the appellant received the impugned order dated 17-9-1976 whereby the Authority in the purported exercise of powers under subsection (I-A) of section 17 of the West Pakistan WAPDA Amendment Act, 1975 decided to retire the appellant from service with immediate effect on payment of 30 days' pay in lieu of 30 days' notice. On this appellant filed an appeal representa--tion before the Government of West Pakistan against his compulsory retirement to which the reply given was that appellant may file a review petition in the matter to the Authority or he may file an appeal to the Service Tribunal. The appellant then filed an appeal before the Service Tribunal, Islamabad, against his retirement which was dismissed as not entertainable with the following observation :- "Not being a Civil Servant, as defined in section 2(b) (i) of the Civil Servants Act, 1973 read with section 2(a) of the Service Tribunals Act, 1973 and the fact that section 17 (1-B) of Act LXXXIV of 1975 does not include a person on deputation to the Authority from any Province the petition is not entertainable under section 4 (i) of the Service Tribunals Act, 1973."

3. In these circumstances, the appellant was obliged to file an appeal against his compulsory retirement before the Service Tribunal. N.-W. F. P. Peshawar, which was, however, rejected on the ground that the service under the WAPDA bad been declared to be service of Pakistan and, therefore, amenable to jurisdiction of the Federal Service Tribunal Act, 1973. The conclusion, therefore, was that the appellant was not a Civil Servant within the meanings of section 2(b) of the N: W. F. P. Civil Servants Act, 1973 read with section 2 (a) of the N.-W. F. P. Service Tribunals Act, 1974, and therefor, the matter was outside the purview of the Provincial Tribunal. Leave was granted by this Court vide order dated 8-1-1979 to examine the correctness of the impugned decision of the N: W. F. P. Tribunal.

4. Mr. Shahzad Jahangir, the learned counsel for the appellant as well as Mr. S. M. Zafar, the learned counsel for the Authority pointed out that as a result of the subsequent change in the law, it was unnecessary to go into the reasons which persuaded the Provincial Service Tribunal to hold that the appellant was not amenable to its jurisdiction. The learned counsel firstly invited our attention to Employees of the Pakistan Water and Power Develop--ment Authority (Allocation to Provinces)

5. Order, 1979 (President's Order 24 of 1979) section 2 of which reads as follows :-- "2. Allocation of employees of Pakistan Water and Power Development Authority to Provinces.-All persons serving in connection with the affairs of the Government of West Pakistan in the Electricity and Irrigation Department who were required to serve under the Pakistan Water and Power Development Authority under subsection (1) of sec--tion 17 of the Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act XXXI of 1958), are allocated to the Provinces where they were serving at the time of the creation of the Province of West Pakistan or, if they were appointed by the Government of West Pakistan after the creation of that Province, to the Provinces of their permanent residence."

6. Our attention was also invited to WAPDA Amendment Ordinance, 1979 (LXXII of 1979) amending section 17 of the WAPDA Act No. XXXI of 1958 by which, inter alia, Explanations I and II to section 17(1- A) were added and shall be deemed always to have been so added. The amended section 17 (1-A) with which we are concerned now reads as follow :- "17. Employment of officers and servants.-(1) The Authority may from time to time employ such Officers and servants, or appoint such experts or consultants, as it may consider necessary for theperformance of its functions, on such terms and conditions as it maydeem fit.

7. (1-A) Notwithstanding anything contained in subsection (1) or any )rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or service --under the Authority may, at any time, retire or remove from its service any person without assigning any reason, after giving him not less the thirty days' notice or pay for the period by which such notice for short of thirty days.

8. Explanation _For the purpose of this subsection, any person employ by, or serving under the Authority includes a person referred to in the provisos to subsection (1).

9. Explanation II-Any person referred to in the provisos to subsection (1) who is removed or retired from service by the Authority under this subsection shall stand reverted to the Province to which he is allocated under the Province of West Pakistan (Dissolution) Order, 1970 (P. O. NO1OF A970 The appellant on the date of dissolution of West Pakistan was serving at-Tarbela. He is also a permanent resident of N.-W. F. P. It will, therefore, follow that on his compulsory retirement from service, by the Authority, h will stand reverted to the N.W. F. P. Under the aforesaid amended law. A The appellant thus will be deemed to be a Civil Servant of the N.-W. F. P. And he may, therefore, report to that Government and it is up to him to persue his remedy before the Provincial Tribunal of N.-W. F. P. As a Civil Servant of that Province under the N.-W. F. P. Service Tribunals Act, 1974.

10. This appeal is, therefore, disposed of as aforesaid, but in the circum--stances, there will be no order as to costs.