' FAQIR MUHAMMAL: KHOKHAR, The respondent-Brig. (Retd.) Muhammad Arif was initially appointed as Shift Engineer in WAPDA, on probation vide order, dated 22-10-1965. On account of state of war between Pakistan and India, he was commissioned in Pakistan Army on 13-12-1965 by way of conscription in terms of provisions of Compulsory Service (Armed Forces) Ordinance, 1965. The respondent got his normal promotions in the Army and retired from service in the rank of Brigadier with effect from 14-12-1995. He approached WAPDA for his re-employment which showed its inability to adjust him on the ground that 10% quota reserved for ex-Defence Forces Personnel already stood exhausted. He filed a complaint before Federal Ombudsman which was rejected on 14-11-1996. The President of Islamic Republic of Pakistan also turned down his representation, by order, dated 15-11-2000. Therefore, he filed Writ Petition No,282 of 2001 which was allowed by a learned Single Judge of the Lahore High Court, Rawalpindi Bench, vide impugned judgment, dated 3-3-2004.
2. The learned counsel for the petitioner-WAPDA submitted that the respondent No,1 failed to report for resumption of duties in the department within three months of his retirement from Army and that even otherwise he was commissioned in the Army while on probation in WAPDA. Therefore, he was not entitled to be repatriated to WAPDA having already, been permanently inducted in the service of Pakistan Army.
3. On the other hand, the learned counsel for the respondent argued that the respondent was justifiably found to be entitled to reinstatement in service of WAPDA on the termination of his service from Army in view of section 9 of the Ordinance, 1965.
4. We have heard the learned counsel for the parties at length and have also perused the available record. On account of war with India on 6th September, 1965, the President of Islamic Republic of Pakistan, issued a proclamation of emergency under clause (1) of Article 30 of the. Constitution of Islamic Republic of Pakistan, 1962. This was followed by Compulsory Service (Armed Forces)
Ordinance No,XIV of 1965, on the next day i,e, 7th of September, 1965. The Ordinance was made applicable to all essential persons who were registered under section 3 of the Essential Persons (Registration) Ordinance, 1948, and also those persons who were notified as such by the Central Government. The Ordinance was also extended to ex-servicemen. By virtue of section 3, every essential person was liable to be called for service under the Ordinance, to serve with any of the Armed Forces as long as his services were required. By section 5, a person, except for service under the Ordinance, would be deemed to have been commissioned, appointed or enrolled and would become subject to the law of the Armed Forces and would remain so subject until retired, released, discharged, removed or dismissed from service and would be paid such pension or gratuity as might be prescribed on the termination of his service. As provided by section 7, a person called up for service under the Ordinance could be granted commission in the Armed Forces subject to such conditions as might be prescribed. Section 9 of the. Ordinance provided that subject to other provisions of the Ordinance, every employer by whom a person was released from service under the Ordinance, would reinstate such person on the termination of such service in the employment from which he was released and if such reinstatement was less favourable to such person than that to which he would, in the ordinary course, have been entitled, gave him such employment as was not so less favourable provided that the employer would not be required to reinstate of employ any person if such person did not apply or report to him for the purpose within three months of his release from service under the Ordinance. It would be seen that the Ordinance of 1965, was a temporary legislation which ceased to have effect on the revocation of emergency on 7th February, 1969 in terms of clause (7) of Article 30 (ibid) (see Pakistan Code), Volume X (as modified up to 30th September, 1990, page. Xiv). Admittedly, the petitioner proceeded on normal retirement with effect from 14-12-1995. Therefore, he could not be said to have been released from service under section 9(1) of the Ordinance of 1965. We may observe that again on 2nd September, 1971, the Compulsory Service (Armed Forces) Ordinance, 1971, was promulgated in pursuance of the proclamation of Martial Law on 25th Day of March, 1969, read with Provisional Constitution Order as security of Pakistan was threatened by the events which were taking place in the erstwhile East Pakistan (now Bangladesh). For all practical purposes and legal consequences, the respondent could no longer be considered to be governed by the Ordinance of 1965. He had been permanently inducted into Pakistan Army from where he retired as a Brigadier. The question of his repatriation to WAPDA would not arise at all. The impugned judgment of the Lahore High Court is not sustainable at law.
5. For the foregoing reasons, this petition is converted into appeal and the same is allowed.
Consequently, the impugned judgment, dated 3-3-2004 passed by the Lahore High Court, Lahore, Rawalpindi Bench is set aside. The Writ Petition No,282 of 2001 of the respondent shall stand dismissed. There shall be no order as to costs.