1. ' WALI MUHAMMAD KHAN, J.---Mian Mahmood, appellant herein, through leave of the Court, calls in question the judgment, dated 17-7-1990 passed by the Federal Service Tribunal, whereby his appeal was dismissed. The leave granting order is as follows:--- "This is a petition for leave to appeal against the rejection of the petitioner's appeal by the Federal Service Tribunal.
2. ' The facts are that the petitioner, who was serving as Line Superintendent in WAPDA, was removed from service vide order, dated 30-4-1978, under section 17(1-A) of the West Pakistan WAPDA Act, 1958. He challenged his removal before different forums including N.I.R.C. And the High Court. The order passed by the High Court relevant for the purposes of this petition is dated 12-6-1982, whereby his Constitutional petition was dismissed, and he was ultimately relieved of his duty on 7- 7-1982. During the period from 30-4-1978 to 7-7-1982 the petitioner succeeded to remain in service on the basis of the stay orders.
3. ' Having failed to obtain relief from any quarter including this Court, on 15-1-1986 the petitioner moved an application before the Authority for issuance of formal orders of his reinstatement to enable him to get post-retirement benefits in pursuance of Authority's office order No,F.O.
4. (B&F)/37-(Vol-IX/2792-2942, dated 25-7-1979. As this application went unheeded, he filed an appeal before the Federal Service Tribunal, praying for issuance of a direction to the respondent- authority to "notify order of his retirement from service in letter and spirit for his action under section 17(1-A) against the appellant".
5. ' The grant of pension to the employees of WAPDA is governed by Pakistan WAPDA Pension Rules, 1977, of which rule 7 runs as, under:--- "Rule 7(iv).--No pension 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."
6. ' A question arose as to whether or not the WAPDA employees whose services were dispensed with under section 17(1-A) were eligible for pension. A decision in this behalf was taken vide office order dated 25-7-1979. It was on the rectitude to this office order that the petitioner applied to the Authority for grant of pension. The operative part of this order is reproduced below:- "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, G.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 entitlement."
7. ' The concession as to the grant of pension to the employees removed from service under section 17(1-A) was subsequently withdrawn by incorporating an amendment in rule 7 ibid, by means of Notification dated 28-6-1982.
8. ' The reasons which prevailed with the Tribunal in refusing to hold the petitioner ineligible for pension are that in its opinion though the dismissal order was issued on 30-4-1978, but he continued to receive his salary and other benefits up to 7-7-1982, and in the meanwhile Pension Rules were amended; in consequence whereof the employees removed from service under section 17(1-A), ceased to be eligible for grant of pension. In this behalf the Tribunal maintained: "...Under the circumstances, we treat the order of removal as having been passed on 7-7-1982 rather than 30-4-1978; obviously on the ground that he remained in enjoyment of his usual emoluments during all that period."
9. ' The argument influencing the Tribunal's decision is one way of looking at the case, but the other way possibly can be that the operation of the order dated 30-4-1978 remained temporarily suspended under the orders of the Courts of competent jurisdiction and such suspension cannot have the effect of petitioner's removal from service on 7-7-1982 i.e, when he was practically thrown out of the job. In the attending circumstances of the case, a question arises whether or not the petitioner could be denied the benefit of pension granted under office order dated 25-7-1979, on the ground that the order of his removal from service, which was actually made on 30-4-1978, was not implemented till 7-7-1982. We feel that this point needs examination. Leave prayed for is, therefore, granted."
10. ' We have heard the appellant in person; Ch. Ghulam Hasan Gulshan, Advocate, for the respondent; and have perused the record of the case.
11. ' The background of the case is fully described in the leave granting order. The appellant was in the service of the respondent and while holding the job of Line Superintendent Grade-II in the Office of Chief Engineer (E), WAPDA, Lahore, he was removed from service purportedly in exercise of the powers conferred on the Authority under section 17(1-A) of the WAPDA Act, 1958 vide order dated 30-4-1978. His representation, appeal, and petition for leave to appeal though failed but he was able to extend his stay in the department through orders of the judicial forums till 7-7-1982 when he was relieved of his duties after the dismissal of his Constitutional petition on 12-6-1982 and in spite of the removal order of the Authority he continued receiving his emoluments etc. He applied to the Authority for issuance of formal orders of his reinstatement to enable him to get post-retirement benefits in pursuance of Authority's office Order No, F.O. (B&F)/37-9/Vol-IX/2792-2942 dated 25-7- 1979 which was not replied to forcing the appellant to approach the Federal Service Tribunal for issuance of a direction to the respondent-Authority for the purpose. The Federal Service Tribunal through the impugned elaborate judgment declined the prayer of the appellant.
12. ' A similar controversy came up for consideration before this Court in the case of WAPDA v. Irteqa Rasool Hashmi (1987 SCM R 359) before a Bench of five Judges wherein their Lordships after considering the provisions of the WAPDA Act, the Pension Rules, and precedent cases came to the conclusion that by virtue of all existing rules respondent No, 1 before them on his removal from service under section (17-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 by the WAPDA. The facts of the instant case are identical to the facts of the cited judgment. The learned lower Service Tribunal has referred to the said authority and tried to distinguish it, but we are afraid, the reasonings advanced are neither convincing nor in accord with the law. Irteqa Rasool Hashmi respondent No, 1 in the cited case was also an employee of the apellant (WAPDA) and was removed from service in exercise of powers vested in the Authority under section 17(1-A) of the West Pakistan Water and Power Development Authority Act, 1958 vide order dated 2-6-1977. He also challenged his order or removal from service before the Service Tribunal and the judicial forums but without any success and ultimately applied for the grant of pension which was declined by the Authority in view of the notification dated 28-6-1982, whereby the WAPDA employees removed under section 17(1-A) of the WAPDA Act had been declared disentitled to the pensionary benefits.
13. The matter ultimatley reached this Court for decision and through the cited judgment this Court held him entitled to the pensionary benefits. In the case in hand too, the appellant was removed from service under section 17(1-A) of the WAPDA Act before the notification of 1982 and his claim for pension obviously is at par with that of Irteqa Rasool Hashmi and applying the cited judgment he is within his right to claim the pensionary benefits.
14. ' The learned Federal Service Tribunal has formed a contrary opinion on the ground that the issuance of stay orders by the Courts resulted in the continuity of the service of the appellant till 7- 7-1982 and that the appellant shall be deemed to have been removed from service on 7-7-1982 when the amendment in rule 7(iv) of the Pension Rules had already been brought into effect by the notification dated 28-6-1982 standing in his way for the grant of pensionary benefits. This reasoning of the learned Federal Service Tribunal has no legal support. The order of the appellant's removal from service was passed on 30-4-1978 and was practically effective from that date. The Service Tribunal and the higher Courts by dismissing the appeals maintained the said order and it cannot, by any stretch of imagination, be concluded that the removal order was set aside for the intervening period and passed afresh on the passing of the judgment of the superior Court. The mere fact that the appellant received emoluments during the period in which the order of his removal had been suspended could not per se operate as the setting aside of the order of removal passed by the Authority. The impuged order of the Service Tribunal, therefore, suffers from legal infirmity and is liable to be set aside.
15. ' Resultantly, this appeal is accepted, the impugned judgment of the Federal Service Tribunal is set aside and the appellant is held entitled to all the pensionary benefits: There is no order as to costs.