WATER AND POWER DEVELOPMENT AUTHORITY vs IRTIQA RASOOL HASHMI And Another

ZAFFAR HUSSAIN MIRZA, J.--This is an appeal by leave from the judgment of the Federal Service Tribunal, camp at Karachi, dated 18th September, 1984, whereby the appeal filed by the respondent No. 1 was accepted and it was directed that he be allowed pensionary and other retirement benefits.

2.Briefly the facts are that while the respondent was in the service of Water and Power Development Authority (WAPDA) as Assistant Accountant in the office of the Resident Representative, WAPDA, he was removed from service in exercise of powers vesting in the Authority under section 17(1-A) of the WAPDA Act, 1958, vide order dated 2 June, 1977. The respondent sought to challenge the order of his removal from service before the Service Tribunal unsuccessfully and his petition for leave to appeal was also dismissed by this Court. The order with regard to his removal from service thus having attained finality, the respondent applied to the WAPDA for the grant of pension. His case was processed for this purpose but vide Director (Administration) letter, dated 4th August, 1982, the respondent was informed that in accordance with the notification, dated 28th June, 1982, the WAPDA employees removed under section 17(1-A) of the WAPDA Act are not entitled to pensionary benefits. The respondent challenged this decision by means of the departmental representation urging that the aforesaid notification did not govern his case but his claim was turned down on 2nd November, 1982. Then he filed an appeal before the Court of Federal Service Tribunal which was accepted as already stated.nd

3. Now the WAPDA is competent under section 18 of the WAPDA Act, 1958, to prescribe the terms and condition of service of its officers and servants. The admitted position is that the WAPDA promulgated the Pension Rules in 1977, known as the Pakistan WAPDA Pension Rules, 1977. Rule 7, Chapter I of the said rules lays down the general conditions governing entitlement to pension.

Before 1982, clause (iv) of rule 7 was in the following terms: "Rule 7(iv).--No pension may be granted to WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension."

The question whether WAPDA employees who are retired or removed from service under section 17(1-A) of WAPDA Act were eligible for pension was raised and was decided by the WAPDA as reflected in the office order, dated 25th July, 1979 which reads as follows:-- "A question has arisen whether or not WAPDA employees and Government Servants of Electricity Department who are retired or removed from service under section 17(1-A) of WAPDA Act, 1958, are eligible for pension, gratuity and B . P . Fund Contribution, etc. The Authority has decided that WAPDA employees as well as Government Servants of Electricity Department who have been retired or are removed from service under section 17(1-A) of WAPDA Act, 1958, should for the purpose of grant of pension, gratuity, payment of authority's own share of contribution towards, B.P. Fund etc. Be governed by the normal terms and conditions applicable to them under the relevant rules and the fact of their having been retired or removed from service under section 17(1-A) would not by itself, be taken as a bar to their post-retirement entitlements.

(Sd. )

(Muhammad Siddiq), Director Finance (R&I)

WAPDA."

However, WAPDA purported to amend rule 7 of the Pension Rules by means of a notification, dated 28th June, 1982. As the WAPDA relied solely upon this notification to refuse pensionary benefits to the respondent it will be of advantage to set it out in extenso:-- "No.F.B&F/37-9/Vo1.XV/7877-8077, dated 28-6-1982.

NOTIFICATION Subject: Pakistan WAPDA Pension Rules, 1977.

"No pension may be granted to a WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency, or removed by order under section 17(1-A) of WAPDA Act, but if he deserves special consideration, he may be granted a compassionate allowance not exceeding 2/3rd of the pension which would have been admissible to him if he had retired on invalid pension."

(Sd.)

Tajammul Hussain, Manager, Finance (Coordination), WAPDA."

It would, therefore, appear that before the purported amendment of rule 7 employees who were retired or removed under section 17(1-A) were entitled to all the pensionary benefits normally available to WAPDA employees. These benefits were denied only in the case of employees who were dismissed, or removed for misconduct, corruption, subversive activities or inefficiency. But by insertion of the words "or removed by order under section 17(1-A) of the WAPDA Act even employees against whom no disciplinary action by way of punishment was taken were sought to be placed in the same category of persons not entitled to pensionary benefits. Before the Tribunal the contention of the WAPDA was that the 1982 amendment in rule 7 affected the case of the respondent (who was removed on 2nd June, 1977) because the amendment was made by adding the aforesaid words retrospectively. Reference in this connection was made to the words "ab initio".

The learned Service Tribunal rejected the contention of the WAPDA and rightly so on the ground that executive orders cannot be given retrospective operation which powers can only be enjoyed by the Legislature. Even rule-making power which is by way of statutory grant does not possess this quality unless conferred by the statute, which is of rare occurrence. Section 18 of the WAPDA Act does not grant such authority to the WAPDA to, alter or change the service rules touching the terms and conditions of employees with retrospective operation so as to rob them of vested rights already accrued in their favour.

4. We also agree with the findings of the learned Service Tribunal that office order, dated 25th July, 1979, reproduced above, has all the characteristics of statutory rules as postulated by this Court in Pakistan v. Sheikh Abdul Hamid PLD 1961 SC 105 and The Province of West Pakistan v. Din Muhammad and others PLD 1964 SC 21. In any case it aids in the interpretation of the existing rule before its amendment as a contemporaneous interpretation of the rule and practice at an authoritative level.

5. Learned counsel for the appellant only repeated his argument that the language of the amending notification, dated 28th June, 1982, is sufficient to give retrospective operation to the amendment excluding the benefit of pension in the case of respondent No. 1. However, for reasons already given this is an untenable argument and is accordingly repelled. We are clearly of the opinion that by virtue of all existing rules respondent No. 1 on his removal from service under section 17(1-A) of the WAPDA Act in 1977, acquired a vested right to the pensionary benefits of which he could not be deprived by a subsequent notification issued 8y the WAPDA.

6. Learned counsel for the appellant made a half-hearted attempt to urge that respondent No. 1 cannot lay a claim to pension without complying with the procedure provided in the Pensions Act, 1871. We are unable to see how the provisions of the said Act are attracted in the present case. In any case this point was not raised before the Service Tribunal or even in the petition filed in this Court. This contention, therefore, cannot be entertained at this stage.

7. In the result this appeal fails and is accordingly dismissed, with costs.