' AKRAM M. MEMON, MEMBER.---Appellants hereinabovehave challenged their termination order dated 13/14-10-1998, which reads as under:-- OFFICE ORDER Subject: TERMINATION OF AD-HOC/TEMPORARY APPOINTMENTS.
' Whereas Article 18 of the Constitution lays down that every citizen shall have the right to enter upon any profession or occupation.
(2) Whereas Article 25 of the Constitution enjoins equality of all citizens before law.
(3) Whereas in terms of new recruitment policy for WAPDA employees circulated in January, 1992, recruitment is to be made on merit by advertising vacancies in the Electronic Media/National Newspapers with 30 days notice.
(4) Whereas Part-II of the Pakistan WAPDA Common Cadre Administrative Posts Service Rules, 1980 prescribes the manner in which initial recruitment to posts should be made.
(5) Whereas merit under the aforesaid rules and fitness forappointment is required to be determined by Selection Board, with reference to the prescribed qualifications, experience, age limits etc.
(6) Whereas the Supreme Court in Human Rights Case No,104 of 1992 has held that the practice of making initial recruitment to posts without publicity and properly advertising the vacancies is violative of Fundamental Rights.
(7) Whereas his appointment was made on ad hoc basis on the recommendation of the then Placement Bureau in 1989 without observing the prescribed procedure. Para 21 of the appointment letter No,AD(E.IB)/07225/46974-78, dated 14-5-1989 issued to Mr. Muhammad Usman states that his appointment was subject to his selection as a result of prescribed competitive examination and interview as and when held. If he could not qualify the examination and interview, 'his services will stand terminated without any notice. Having not come on merit fixed for his region, his services were terminated on 8-7-1990. His services were later restored with effect from 26-12-1993 in pursuance of Cabinet Decision dated 22-11-1993 (Case No,342/1993) without observing the prescribed procedure.
(8) Whereas, I have examined the case of appointment of Mr. ' Muhammad Usman as Assistant Director (Admn.) in the light of the aforesaid provisions of law and have found that it warrants termination in light of authority's policy decision taken in circulation dated 7-10-1998.
(9) Now, therefore, I Brig. Saeed Ahmed Rafi, being the appointing authority hereby order that the appointment of Mr. Muhammad Usman as Assistant Director (Admn.) shall stand terminated with immediate effect being not made in light of WAPDA's Recruitment Policy and relevant service rules."
2. Since all the three appeals are identical in nature, as such, Mr. Mangi has desired us to take up the appeal of appellant M. Usman Memon as leading case.
3. Mr. Abdul Ghafoor. Mangi, learned counsel for the appellants has contended that the appellant after having Master's Degree in Political Science from University of Sindh in 1985 had applied for a post in the year 1989 through Placement Bureau established by the PM Secretariat for providing employment to deserving persons in various departments and the application of the present appellant was recommended and sent to various departments including Water and Power Development Authority (WAPDA). He has contended that on 14-5-1989, the appellant was issued offer letter wherein he was selected for purely temporary and ad hoc appointment for a period of six months to the post of Assistant Director (Admn.) under the WAPDA, subject to his qualifying for prescribed competitive examination and interview as and when held. It was also mentioned in the letter that in case the appellant was not able to qualify the examination and interview, his service would stand terminated without any notice. At the same time, the appellant was required to appear in the written test at Hyderabad Centre and was allotted Roll No.3214. Similar advertisement appeared in national press wherein the said date of submitting applications was mentioned to be 25-10-1989 whereas the appellant was called on to appear in the examination vide letter dated 15- 1-1990. After having passed the written examination, the appellant worked with the respondents when all of sudden his service was terminated on 27-6-1990 as, according to the respondents, the appellant was not selected on merit. He has further contended that in August, 1990 there was change of Government and as per policy of the Cabinet of the new Government all recruitments made under Placement Bureau were set aside and all such incumbents were terminated en bloc.
Such termination orders were challenged by aggrieved persons, who filed number of writ petitions before the Hon'ble Lahore High Court including Writ Petition No.8508 of 1990 and others, where the termination orders were set aside. Aggrieved by the said judgment, Government of Pakistan filed Petition for Leave to Appeal before Hon'ble Supreme Court where leave was granted, but one of the Hon'ble Judge Mr. Justice Abdul Shakurul Salam, had observed that the law is for the welfare of the people and is not intended to harass and deprive them of what they have done unless they were amiss or that was for general good. Subsequently, Government of Pakistan reinstated all those employees, whose services were terminated in similar manner as recommendee of Placement Bureau. He has contended that the appellant was also reinstated in service by the respondent No.2 vide letter dated 12-12-1993, stating therein that the reinstatement was made as per decision of Federal Government. He has contended that the reinstatement order contained the terms and conditions prescribed in the original letter of appointment dated 14-5-1989. Advancing his argument further, he has contended that selection was subject to the result of prescribed competitive examination scheduled to be held on 10-2-1994, but the written test was postponed on the direction of Ministry of Water and Power and WAPDA, as there was ban on all types of recruitment and NOC was required to be obtained from the Establishment Division. However, Ministry of Water and Power granted no objection in the light of O.M. No.13/3/91-D-2, dated 10-7- 1993 issued by the Establishment Division to recruit 18 posts of Assistant Directors (Admn.) B-17, but no examination was conducted, which amounts to waiver and the appellant ought to have been notified as confirmed employee. He has contended that the appeal filed by Government of Pakistan where Leave to appeal was granted was subsequently withdrawn, as such, the judgment of Hon'ble High Court remained in the field, therefore, it was a past and close chapter regarding the appointment of officers made on the recommendations of Placement Bureau and whereafter he has referred to the judgment of this Tribunal of Lahore Bench in Appeal No.153, 165 and 166(L) of 1997 where the prayer of regularization was dismissed, but the respondents were required to initiate action to organize the examination as delay was caused on the part of the respondents which had blocked the chances of further employment of those appellants because of age factor.
Again on 13/14-10-1998 the appellant was terminated on the basis of Human Rights Case No.104 of 1992, which had no relevancy with the facts of the present case, without holding any inquiry or without issuance of show-cause notice. The appellant then filed departmental appeal, which remained unresponded whereafter this appeal.
4. Mr. Mangi has further contended that the termination order is void and has been issued arbitrarily and since it is case of discrimination as after their termination some other incumbents were inducted on ad hoc basis, who were subsequently regularized and in case of other Assistant Directors, who were taken up in 1988 as well as 1994 were regularized, but the present appellant was thrown out without any justification. He has lastly contended that even after the termination of these appellants, fresh appointments have been made without advertisement, as such, the appellant has good case for reinstatement as the respondents have played with their career by terminating them in the first instance and then again they were reinstated after receiving telex of 27-6-1990 whereafter they were finally terminated vide impugned order. In support of his contentions he has placed reliance on the judgment of this Tribunal in Appeal No.80(K) of 1999, Fazal Ahmed Dehri v. HBFC and others. He has further contended that the persons, who were appointed in different departments on the recommendations of Placement Bureau were neither foreigners nor aliens, but they were the citizens of Pakistan and they were taken up by the respondents on the basis of advertisement and after being qualified in the competitive examination, but they were terminated on account of change of Government and this exercise went on whereby they were reinstated, and finally they stood terminated vide impugned order dated 13/14-10-1998. He has contended that the appellants had filed their appeals for regularization before the Lahore Bench of this Tribunal, which, no doubt, were dismissed, with a direction to the respondents for holding examination, but till the time of their termination no examination was held. He has also contended that looking to the period of their service, which they served the respondent it would appear that by now they have become overage and it will not be possible for them to get job in any other department on account of their age factor. He has also contended that the judgment of Hon'ble Supreme Court speaks of illegal termination of different officials of other departments like the present appellants and when all of them were taken back on duty, the case of the present appellants also merits consideration.
5. Mr. Abbas Haider Jafri, learned counsel for the respondent at the very outset has drawn our attention to the Annex-8 filed along with comments and has contended that the appellant was appointed on specific terms and conditions, which are mentioned in the letter of appointment, Annex-A. At the same time, he has referred to paragraph 4 and has contended that, no doubt, appellant was required to submit application along with documents and to appear in written test and interview and that the appellant had qualified the written test, but he couldn't come out on merits reserved for place of his domicile, as such, his service was terminated. He has admitted the fact that the concerned department's Head were advised vide telex message dated 27-6-1990 not to terminate all ad hoc employees including the appellant till further orders and has also admitted the fact of the service of the appellant had been terminated vide order dated 8-7-1990. He has further contended that though the recruitment of the appellant was made on political grounds on the recommendation of Placement Bureau, but his termination was not on political ground, which, in fact, was on account of the fact that he did not come on merit reserved for the place of his domicile. He has contended that the appellant had never approached Hon'ble Lahore High Court nor WAPDA filed any petition for leave to appeal before Hon'ble Supreme Court. He has, however, admitted that the instatement of the appellant was ordered in 1993 on the basis of decision of Cabinet Division on 22-11-1993 and that his reinstatement was not made on the basis of the fact that the appellant had approached Hon'ble Lahore High Court. He has further contended that the appellant was required to qualify the prescribed competitive examination, which was, in fact, scheduled to be held on 10-2-1994, but the same could not be conducted on account of ban imposed by the Ministry of Water and Power, which is still continuing. He has contended that even if the ban would have been lifted, then too, recruitment in the cadre of Assistant Director was not feasible. Because sufficient number of Assistant Directors were declared surplus due to reorganization in WAPDA. He has also contended that No Objection Certificate was received from the Establishment Division for the recruitment of Assistant Directors (Admin) against 18 posts, but considering the reorganization, restructuring and downsizing, the question of recruitment of Assistant Director (Admin) did not rise. He has contended that last termination dated 13/14-10-1998 had taken place on the basis of judgment of Hon'ble Supreme Court in Human Rights Case No.104 of 1992, as it was in violation of Articles 18 and 25 of the Constitution of Islamic Republic of Pakistan.
While giving reference of Estacode in respect of ad hoc appointments against permanent vacant post, he has contended that the recruitment under WAPDA is always made under the WAPDA Service Rules. He has contended that the employees are always appointed after fulfilling the required prescribed procedure whereby they are appointed on probation in the first instance and after completion of probation period, they are made regular but this was not the case of the present appellant. It has been denied that the appellant had served for 10 years continuously as his service was terminated earlier in 1990 and in case he would have applied for similar post, which was advertised in the year 1991, recruitment was finalized against that vacancy in the year 1992. In case the appellant would have applied in the year 1991 he could not have qualified because by that time he would have become overage. Similarly he has contended that when the appellant was reinstated on 23-12-1993 at that time also he was overage. He has contended that there is no question of discrimination as those, who were appointed by the respondents on ad hoc basis, were subsequently regularized As they were not the recommendees of Placement Bureau. Lastly he has contended that since the appellant had not fulfilled the conditions for regularization of his service as mentioned in the letter dated 14-5-1989, his appeal is liable to be dismissed.
6. After hearing the learned counsel appearing for the parties, we have gone through the entire appeal file and so also the judgment in Appeal No.80(K) of 1999, which has been relied upon by Mr. Mangi.
7. It is matter of record that the appellant was selected for purely temporary and ad hoc appointment for a period of six months by the respondents on the recommendation of Placement Bureau subject to his selection as a result of prescribed competitive examination and interview as and when held. Record shows that this letter was issued on 14-5-1989 whereafter on 15-1-1990, the appellant appeared in the competitive examination after being allotted Roll Number and on account of his failure to qualify the interview, the appellant was terminated with effect from 8-7- 1990 vide letter dated 27-6-1990. However, it is surprising to bring it on record that on the same date a telex was sent to all concerned departments of WAPDA, which reads as under:-- "M/O WATER AND POWER IBD TELEX MESSAGE NO.224, 27-6-1990.
FROM: MAJ. GEN. (RETD.) AGHA MANZOOR RAUF, A.S. (WATER) M/O WATER AND POWER, ISLAMABAD.
TO: LT. GEN. (RETD.) ZAHID ALI AKBAR KHAN, CHAIRMAN, WAPDA, WAPDA HOUSE, LAHORE.
NO: 6(2)/90-ADMN.I., DATED 27-6-1990.
SUBJECT: INDUCTION IN SERVICE THROUGH PLACEMENT BUREAU.
REFERENCE YOUR 'LETTER NO.C/90/AD(GEN)1670, DATED 4-4-1990 ON THE SUBJECT (:) THE MINISTER FOR WATER AND POWER HAS DECIDED AS FOLLOWS:-- "WAPDA SHOULD NOT TERMINATE THEIR SERVICES NOW (.) WAPDA MAY PUT THROUGH AN INTENSIVE SPECIALIZED TRAINING COURSE FOR THREE MONTHS AND EVALUATE THEIR PERFORMANCE THROUGHOUT THE TRAINING PERIOD ON A WEEKLY BASIS AND REPORT BACK ON EACH.. OFFICER ON THE BASIS OF THAT EVAUATION(.)"
2. KINDLY IMPLEMENT THE MINISTER'S DECISION AND ACKNOWLEDGE RECEIPT (.)"
(Underlining is ours)
' But the appellant was relieved from his duties. It is pertinent to bring it on record that not only the present appellant but some other officials of different departments were also thrown out on which different Constitutional Petitions were filed and one of those petitions was filed by Sh. Mudassar Ahmed v. Government of Pakistan through Secretary, Establishment Division and others being Writ Petition No.8508 of 1990 heard on 19-5-1991, reported in 1991 PLC (C.S.) 1057 whereby the policy of the Government was deprecated. Against the said decision of Hon'ble High Court of Lahore, Government of Pakistan went in Appeal and Leave to Appeal was granted by Hon'ble Supreme Court on 21-6-1992 as reported in PLD 1992 SC 859. However, as a result of the decision of Hon'ble High Court of Lahore, incumbents, who filed petitions were reinstated and similarly present appellant was also reinstated vide order dated 12-12-1993. The respondents once again informed the appellant vide letter dated 12-1-1994, which reads:- "Reference this office letter No.DE/AD(EOIB)/07238/72783, dated 12-12-1993 .
2. Your services are hereby restored with effect from 23-12-1993 on the terms and conditions prescribed in the original order of your appointment bearing No.AD(E.IB)07225/46974-78, dated 14- 5-1989 on ad hoc basis. This ad hoc appointment will continue initially for a period of six months and subject to selection as a result of prescribed competitive examination (scheduled to be held on 10-2-1994) and interview as and when held. In case you fail to qualify the written examination and interview and also do not come up on merit, your services will stand terminated with immediate effect without any notice.
3. You are therefore, directed to report for duty to General Manager (Training) WAPDA, Lahore against the post of Assistant Director (Training) in his office immediately but not later than 22-1- 1994 otherwise this letter will be treated as withdrawn.
4. No. TA/DA will be admissible."
' The appellant then continuously remained in service, but no examination was conducted, however, he filed an appeal before Lahore Bench being Appeals Nos.153, 165 and 166(L) of 1993 where he along with others had prayed for regularization, but the appeals were dismissed and an observation was made at paragraph 8, which is reproduced for the sake of convenience: "8. Before parting with the case we think it proper to advise the respondent-Authority to initiate action to organize the examination, at the earliest, and finalize the question of appellants' selection and regularization lest the delay, so caused, mars their chances of employment elsewhere because of the age factor should they, we hope not, fail to make the grade here."
' Papers show that instead of conducting the required examination, the respondents terminated the services of the appellant on 13/14-10-1998, which order has already been reproduced above.
From the perusal of the impugned order, it would appear that in ground No.6 mention was made in respect of Human Rights' Case No.104 of 1992, but we are of the view that the case of the appellant doesn't fall within the category, which has been discussed in Abdul Jabbar Memon's case. Even no such mention finds place in the decision of Cabinet Division. The respondents have, on the contrary, not been able to level any sort of allegation that the appellant was lacking qualification or that his qualification was below standard. Record shows that the only allegation against the present appellant is that he was the recommendee of Placement Bureau, as such, he was thrown out from service though in the year 1994 the respondents had required the appellant to appear in the competitive examination, but from 1994 till the date of his termination in the year 1998, no examination was held, which shows that there was no fault on the part of the appellant, therefore, it was a clear case of discrimination, because admittedly some other incumbents about whom the respondents have themselves admitted that they were taken on ad hoc basis, after completing the formalities, were subsequently regularize as they completed their probation period, but in the case of present appellant, he simply went on facing his termination and reinstatement one after the other, which shows that the respondents have simply played with his career, which fact has already been observed by a Bench of this Tribunal in Appeals Nos.153, 165 and 166(L) of 1993.
8. Learned counsel for the appellant while concluding his arguments has placed reliance on Appeal No.80(K) of 1999 (Fazal Muhammad Dahri v. HBFC) where, this tribunal at para 6 of the judgment had held:-
(8) It has rightly been contended by the learned counsel for the respondents the benefits are neither to be protected nor perpetuated by placing reliance on 1999 CLC 2018 Lahore but'at the same time, we cannot ignore the observations of Hon'ble Supreme Court reported in 1996 SCMR 413 where it was held:-- "---R.10(2)---Constitution of Pakistan 1973, Art. 212(3)---Termination of service on ground that appointment of civil servant was irregular---Service Tribunal ordered reinstatement of---Civil servant---Validity---Department's plea was not that civil servant lacked qualification for the post in question-Violation of rules could not be allowed to take benefit of its lapses in order to terminate services of civil servant merely because it had itself committed irregularity in violating procedure governing such appointment---Service Tribunal having reinstated civil servant could not be deemed to have committed any illegality or irregularity---Leave to appeal was refused in circumstances."
' In such a situation, the respondents who had themselves regularized the service of the appellant cannot be allowed to back out by saying that the very appointment of the appellant was illegal.'
' The purposes of reproducing the above portion is that the respondents had initially appointed the appellant in the year 1989 thereafter the appellant stood terminated in the year 1990. Again he was reinstated in the year 1993 and lastly he was terminated in the year 1998, which all was done without issuance of show-cause notice. This shows that it was an exercise, which was based on mala fides on the part of the respondents though some other incumbent were regularized. When the appellant was thrown out without any charge or misconduct, his termination doesn't seem to be justified as the only ground, which has been taken by the respondents is that his appointment was made on the recommendation of Placement Bureau, but nowhere it has come on record that he was lacking qualification or that he was guilty of misconduct.
9. In such circumstances, the order of termination dated 13/14-10-1998, in our view appears to be without any justification as the fault was on the part of the respondents, because they themselves could not conduct the required examination at the relevant and looking to the length of service of the appellant and so also considering the fact that he will not be in a position to apply anywhere else keeping in view of his age factor, we are of the considered opinion that the order of his termination dated 13/14-10-1998 is against the principles of natural justice, therefore, we while allowing the appeal in hand, set aside the impugned order dated 13/14-10-1998 and direct the respondents to reinstate him from the date of his termination i.e. 13/14-10-1998 with all back- benefit, provided he furnishes an affidavit with solid proof that he did not work for gain anywhere for the period he remained out of job.
10. This judgment will mutates mutandis apply to Appeals Nos.103 and 104(K) of 1999 of appellants Abbas Ail and Akhtar Ali.
11. In the circumstances of the case there will be no order as to costs. Parties be informed accordingly.
Appeal allowed accordingly.
2005 PLC (C.S.) 77 [Lahore High Court] Before Maulvi Anwarul Haq, J Brig. (R) MUHAMMAD ARIF versus WAPDA through Chairman, WAPDA House Shahre Quaid-e-Azam, Lahore and another .Writ Petition No.282 of 2001, heard on 3rd March, 2004.
(a) Compulsory Service (Armed Forces) Ordinance (XXIV of 1965)--- ----Ss.2(f) & 9---Service Tribunals Act (LXX of 1973), S.4--Constitution of Pakistan (1973), Art.199-- Constitutional petition--Refusal of employer to reinstate petitioner after rendering compulsory service in Armed Forces Validity-Employee would make application or report to employer within three months of his release from service of Army, but not within three months hetore such release- --Employer had arbitrarily refused petitioner's claim having been made within prescribed time--- Enforcement of provision of Compulsory Service (Armed Forces) Ordinance, 1965 was not a matter pertaining to terms and conditions of service attracting jurisdiction of Service Tribunal--High Court disposed of Constitutional petition with observations that employer, if so advised, would make an application to Manpower Tribunal and would act on its orders to be passed in terms of S.9(3)(a) or
(b) of Compulsory Service (Armed Forces) Ordinance, 1965, and in case of failure of employer to do so, petitioner would stand reinstated in service of employer in terms of S.9(1) w.e.f. The date of institution of Constitutional petition. [pp. 79, 80] A, B, C & D
(b) Compulsory Service (Armed Forces) Ordinance (XXIV of 1965)--- ----S.9---Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan (1973), Art. 199--- Constitutional petition---Maintainability--- Reinstatement of employee after rendering compulsory service in Armed Forces---Enforcement of provision of Compulsory Service (Armed Forces) Ordinance, 1965 was not a matter pertaining to terms and conditions of service attracting jurisdiction of Service Tribunal. [p. 79] C Zaheer Ahmad Qadri for Petitioner. M. Munir Peracha for Respondents. Date of hearing: 3rd March, 2004.
' In this writ petition, filed in this Court, on 11-12-2000, the petitioner states that he was appointed as a Shift Engineer vide order dated 22-10-1965 (Annex: 'C') in WAPDA. He was conscripted and commissioned in Pakistan Army on 13-12-1965 under the provisions of the Compulsory Service (Armed Forces) Ordinance, 1965. In terms of the provisions of the said Ordinance, he was assured by WAPDA vide letter dated 21-7-1969 (Anex: 'D') that officers placed like the petitioner will be taken back in service provided they report within three months of their release from Army. The petitioner was retired and released from Army w.e.f. 14-12-1995.
2. Now it appears that in his anxiety not to miss the Bus, expecting retirement, he approached WAPDA somewhere in the year 1995. WAPDA responded vide letter dated 24-4-1995 (Annex: G') stating that Ex-Defence Forces Officers are re-employed against 10% quota which stands exhausted and as such the petitioner's re-employment in WAPDA is not possible. Thereafter, he started corresponding unilaterally for the said re-employment while still in Army service. On 23-8- 1995 (Annex: 'J') formal orders were issued by the GHQ (MS Branch) declaring that he will be struck off duties w.e.f. 14-12-1995 and granted leave pending retirement under the existing Rules. On receipt of the said letter, he again wrote to the Chairman, WAPDA, on 13-9-1995 (Annex: 'K') informing of the receipt of the said formal orders and requesting for reemployment. He repeatedly wrote letters on the said line to WAPDA, receiving no response. After the said refual he filed an application before The learned Federal Ombudsman on 10-1-1996.WAPDA objected to the jurisdcition of the learned Ombudsma n and the plea taken was that he was called up by the Army while he was probationer with WAPDA and further that the said Ordinance of 1965 stands lapsed upon lifting of emergency. The learned Ombudsman as per findings recorded on 14-11-1996 rejected the case. A review application was also dismissed on 26-11-1996 while the President dismissed the representation on 15-11-2000.
2. Now as against the said plea taken in April, 1995 and then before the learned Ombudsman the plea taken by WAPDA in this Court is that since the petitioner did not apply within three months of his release from the Army, he is not entitled to the benefit of the said provision of the said Ordinance of 1965. Learned counsel for the petitioner contends that it is a matter of record that the petitioner did approach WAPDA and notwithstanding the fact that his re-employment under the said Ordinance of 1965 is assured, he was not employed. Further contends that the word "within" used in the said law is to be construed as both before and after the release. Now the contention of the learned counsel for the respondents is that admittedly no application was filed by the petitioner for re-employment within three months of his release from Army and according to the learned counsel the said provision is to be read as three months after the release. Further contention is that under the said law, WAPDA is entitled to get a finding from the Manpower Tribunal exempting it from the said provision and this can be done by means of an application to be filed within seven days of the application filed by the employee for reemployment.
3. I have examined the pleadings of the parties and several documents placed on the record by the petitioner in the light of the said contentions of the learned counsel for the parties. The facts as stated by me above, are almost admitted. Section 9(1) of the said Compulsory Service (Armed Forces) Ordinance, 1965 is as follows:-- "9. Re-instatement of persons released under the orders of the Board.--(1) Subject to the other provisions of this section, every employer by whom a person was released for service under this Ordinance, in pursuance of a notice served under section 6, shall, on the termination of such service, reinstate such person in the employment from which he was released, and if such reinstatement is less favourable to such person than that to which he would, in the ordinary course, have been entitled, give him such employment as is not so less favourable: ' Provided that the employer shall not be required to so reinstate or employ any person if such person does not apply or report to him for the purpose within three months of his release from service under this Ordinance."
' Now it will be seen that where any person released for the said compulsory services makes an application or a report to the employer for reinstatement within three months of his release from the said service under the Ordinance, the employer shall reinstate him in service favourable to him in the ordinary course according to his entitlement.
5. Now going by the strict letter of the said law, the interpretation being placed by the learned counsel for the respondents appears to be more reasonable i.e. a person has to apply within three months of his release from service and not within three months before his release from service. At the same time, it is but apparent on the face of the record that the petitioner did make a claim and the respondent was conscious of the same while refusing the same in a rather unceremonious manner.
6. Now subsection (2) of the said section 9 gives a right to the employer to file an application with the Manpower Tribunal who is authorized to make any of the orders mentioned in clauses (a) or
(b) of subsection (3) of the said section 9 of the Ordinance of 1965. I may further note here that the learned counsel has raised the question of jurisdiction in terms of the Service Tribunals Act, 1973. To my mind the objection has no force as the matter pertains to enforcement of the provision of said law in terms of the same and not as a term and condition of the service of the petitioner with the respondents.
7. For all that has been discussed above, this writ petition is disposed of in presence of the learned counsel for the parties, with the observation that within seven days from today, the respondent- WAPDA, if so advised, shall make an application before the Manpower Tribunal as defined in section 2(f) of the Compulsory Service (Armed Forces) Ordinance, 1965 and to further act on the orders of the said Tribunal to be passed in terms of section 9(3)(a) or (b) of the said Ordinance. In case the said application is not filed within said seven days commencing today, the petitioner shall stand reinstated in service of the respondents in terms of section 9(1) of the said Ordinance, 1965 w.e.f. The date of institution of this writ petition noted above. No orders as to costs..