' IRSHAD HASAN KHAN, C.J.---As common questions of law and facts are involved in the above petitions, which have arisen out of impugned judgments dated 9-2-2000 and 11-2-2000, passed by the Federal Service Tribunal, Lahore (hereinafter referred to as the Tribunal) in Appeals Nos.23(L)CS to 29(L)CS of 2000, we intend to dispose of the same through this consolidated judgment.
2. The case of the petitioners is that they were employees of WAPDA serving in various capacities.
They were compulsorily retired from service on 12-1-2000. The order, in case of petitioner Muhammad Ibrahim Mangrio, reads thus: ' "The Authority in its meeting held on 29th December 1999 in exercise of powers conferred upon it vide section 17(1-A)(a) of WAPDA Act, 1958, has decided. To retire Mr. Muhammad Ibrahim Mangrio, SDO, Hirabad Sub-Division, under Chief Executive, HESCO, Hyderabad, from service. The retiring officer, in addition to the retiring benefits admissible to him under the terms and conditions of his service, if any, will be entitled for a pay of three months under the provision of section 17(1-AB) of the WAPDA Act, 1958)."
' All the petitioners challenged the orders of their compulsory retirement dated 12-1-2000 before the Tribunal without making any departmental appeal/review/representation. One of the grounds taken in the Memorandums of Appeals before the Tribunal was that no show-cause notice was issued to them prior to making the order of compulsory retirement. It was also pleaded before the Tribunal that the orders being violative of the law declared by this Court in Mrs. Anisa Rehman v.
PIAC (1994 SCMR 2232), the same could not be upheld by the Tribunal. Reliance was also placed on 'Jan Muhammad v. The General Manager, Karachi Telecommunication Region, Karachi (1993 SCMR 1440), WAPDA v. Sikandar Ali Abro (1998 SCMR 137), Federation of Pakistan v. Sheikh Abdul Aziz (1998 SCMR 91), Basharat Ali v. Director, Excise and Takation, Lahore (1997 SCMR 1543), WAPDA v. Liaquat Ali (1998 SCMR 234), Aleem Jaffar v. WAPDA (1998 SCMR 1445) and Muhammad Munir Khan v. Azad Government of the State of Jammu and Kashmir through Chief Secretary, Muzaffarabad (1996 PLC (C.S.) 437) for the propositions that as the proceedings, culminating in the passing of compulsory retirement orders against the petitioners, were beyond the contemplation of the law in that no inquiry whatsoever at the departmental level preceded their compulsory retirement, none of the petitioners could be dealt with the way they were and that too at the prime of their respective service careers without any lapse on their part.
3. Paragraphs 2, 3 and 4 of the impugned judgment read thus: "2 The learned counsel for the appellant contended that the Authority cannot take action against the appellant under Ordinance XIV of 1999 because this amendment is hit by Article 2A of the Constitution of Islamic Republic of Pakistan. Further contended that third proviso to subsection (1) of section 17 of the WAPDA Act has not been amended so far and it shall prevail upon the other provisions of section 17 of the WAPDA Act. He also contended that section 17(1-A)(a) has been declared to be of no legal effect by the august Supreme Court of Pakistan in the case of Pakistan and others v. Public-at-Large reported as PLD 1987 SC 304 and the decision of the august Supreme Court is binding on this Tribunal under Article 189 of the Constitution. It was forcefully contended that under Article 203-D and sub-Article (3)(b) of the Constitution, the provisions of law to the extent which is held to be repugnant, ceased to have effect on the date on which the decision of the Court takes effect (Federal Shariat Court). It was contended that any person in the service of Pakistan could not be retired from WAPDA service without assigning any reason. Reliance was placed on judgment in the case of Executive Engineer, WAPDA v. Rahat Shah and others, reported as 1999 SCMR 2272. The learned counsel contended that appeal in the form of departmental appeal/representation is not provided in WAPDA Act and, therefore, there was no need of filing any departmental appeal or representation before any authority and on receipt of impugned order dated 12-1-2000, the appellant filed the present appeal on 19-1-2000 within the prescribed period of thirty days under section 4 of the Service Tribunals Act, 1973."
"3 The learned counsel for respondent WAPDA, Mr. Aurangzeb Mirza, submitted that third proviso of subsection (1) of section 17 firstly applies to those employees of the Authority who had been sent from Electricity Department to the Authority under section 17(1) of the WAPDA Act. The learned counsel contended that Article 2A of the Constitution is not attracted to section 17 and amendments made in the sections from time to time till, todate. The learned counsel contended that vires of law cannot be looked into and decided by this Tribunal under its jurisdiction conferred upon it by the Service Tribunals Act, 1973 and the Rules framed thereunder, and the provisions as brought into section 17 by aforementioned amending Ordinances is not contrary to Qur'an and Sunnah and the judgments relied upon by the learned counsel for the appellant, are not applicable to the fact of this Appeal. The learned counsel for the respondents contended that departmental appeal is a must in view of judgment in the case of Gulbat Khan v. WAPDA, reported as 1992 SCMR 1789 and again affirmed by the august Supreme Court of Pakistan in judgment reported as 1998 SCMR 137, in terms of section 4 of the Service Tribunals Act, 1973. The learned counsel vehemently contended that assumption of jurisdiction by this Tribunal is condition precedent of departmental appeal and if an appellant does not fulfil the condition precedent before invoking the jurisdiction of. This Tribunal, the appeal will not be competent and the hearing of the same by this Tribunal will be without having jurisdiction and any judgment delivered thereon will be coram non judice."
"4. We have heard the learned counsel for the parties at great length and considered their submissions. This Tribunal exercising jurisdiction under Article 212 of the Constitution of Islamic Republic of Pakistan has exclusive jurisdiction but limited to the extent of terms and conditions of service and, therefore, the Tribunal cannot go into the vires of an Act or strike it down, as it has no jurisdiction under Article 199 of the Constitution and is to apply the law as it is made. The appellant has been retired from service in accordance with law and, therefore, there is no illegality or violation of terms and conditions of appellant. Moreover, this appeal has been filed without exhausting departmental remedy of appeal as provided under section 4 of the Service Tribunals Act, 1973 and, therefore, this Tribunal also lacks jurisdiction because condition precedent for assumption of jurisdiction has not been fulfilled by the appellant."
4. Mr. M.L. Shahani, learned Advocate Supreme Court, appearing on behalf of the petitioners has raised the following pleas in support of the case of his clients:
(1) That the law declared by the Shariat Appellate Bench of this Court in Pakistan v. Public at Large (PLD 1987 SC 304), has been illegally ignored while resolving their appeals in that the observation in relation to the effect of the orders passed without assigning any reason is tantamount to making no orders at all;
(2) that the pleadings of the parties before the Tribunal clearly brought it to the fore that the respondent/Caveator-WAPDA did not deny that it had violated the principles of natural justice while making order dated 12-1-2000;
(3) that the Tribunal was in error in observing that either it did not have the jurisdiction under Article 212 of the Constitution to go into the vires of the Act of the Parliament to strike it down or that it had no jurisdiction under Article 199 of the Constitution to apply the law declared by this Court in I.A.
Sharwani v. Government of Pakistan (1991 SCMR 1041).
5. Mr. Tanvir Bashir Ansari, learned Deputy Attorney-General appearing on behalf of the respondents has supported the impugned judgments and contended that the terms and conditions of service of the petitioners being non-statutory the same could not be enforced by the Tribunal while resolving the controversy raised before it. According to him, the declaration in section 17(1-B) of the WAPDA Act to the effect that the petitioners are in the "Service of Pakistan" and "shall be deemed to be civil servants for the purposes of the Service Tribunals Act, 1973", is tantamount to saying that the provisions of subsection (2) of section 22 of the Civil Servants Act, 1973, are applicable to their cases and, therefore, making of a departmental representation was a condition precedent as the same should be treated as having been brought on the statute book in relation to the employees of the respondents by referential incorporation. The precise plea was that when the provisions of section 4 of the Service Tribunals Act, 1973 were made applicable to the cases of the petitioners, their subjection to avail of the said remedy only after making an unsuccessful attempt to have the retirement orders set aside within the departmental hierarchy, is a must.
6. Reply to the argument of the learned Law Officer, Mr. Shahani respectfully submitted that section 17(1-B) (ibid) clearly includes certain categories of employees of WAPDA within its wake and excludes certain others therefrom. He referred to WPADA v. Muhammad Ashraf Naeem (1997 SCMR 1128), to contend that the following observations in the precedent case help the causes of his clients: "8. As regards the applicability of section 17(1-B) of the WAPDA Act, it is reproduced hereunder:-- ' 'Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under the Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973)'."
' This provision of law is in two parts. By the first, service under the Authority has been declared to a service of Pakistan. The second part, which is distinct from the first is that every person holding a post under the Authority of the type described shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973. The result of this bifurcation is that the employee shall be deemed to be in service of Pakistan but not necessarily a civil servant as defined in the Civil Servants Act."
7. We have heard the learned counsel for the parties at some length and have also gone through the case-law cited by them at the Bar. The conflicting pleas of the parties are divisible into two groups. Firstly, the question which falls for decision is as to what is the rationale behind the legislative moves in relation to the employees of WAPDA in the context of the Constitutional mandates contained in Articles 260, 240 and 212 of the Constitution. It is an admitted position that the provisions contained in section 17(1-B) (ibid) are tantamount to making the declaration by the Legislature to the effect that the petitioners were in the "Service of Pakistan" and deemed to be civil servants for the purposes of section 4 of the Service Tribunals Act (No, LXX of 1973). The case of Muhammad Ashraf Naeem (supra) has put the controversy at rest to the effect that in praesenti the employees similarly placed as the petitioners are in the "Service of Pakistan" and are deemed to be 'civil servants' for the purposes of section 4 of the Service Tribunals Act, 1973.
8. The matter, however, does not end here. In the context of the facts and circumstances of these cases, it is to be noticed that the requirement of making representations by the petitioners before the departmental authorities attains greater proportions when the situation is viewed in the perspective of the admitted position that there is no right of appeal mentioned in the Rules applicable to the employees of WAPDA. The main purpose of providing the right of appeal to the petitioners under section 17(1-B) before the Tribunal is to be given such meanings, to say least. Put differently, it has to be brought to bear upon the provision of a right of appeal to an employee for the redressal of his grievances. Further, situations would arise in which appeals can be brought before the Tribunal. Here, the petitioners did not make resort to the departmental remedy although such remedy was available to them and the result is that they have to put up with the situation which is of their own creation. Petitioners are themselves to blame for the predicament in which they find themselves today. This Court has already held in Gulbat Khan (supra) that: "3. The fate of this appeal depends on the question as to whether or not any appeal or other remedy before the Authority against the removal order was available to the appellant, because it was only when such a remedy could be availed of by him as a matter of right; that while filing an appeal before the Tribunal, the time spent on seeking remedy before the departmental authorities could be excluded. It will be seen that under section 17-B of the WAPDA Act, every person holding a post under the Authority for the purposes of Service Tribunals Act, 1973, is to be deemed to be a civil servant. It was on the basis of this provision that the appeal against the order, dated 29-6-1987 was brought by the appellant before the Federal Service Tribunal. As observed earlier, the period of limitation for filing such an appeal is 30 days from the date of communication of the order to the civil servant concerned. We may observe that if any appeal, application for review or representation to a departmental authority is provided from the order passed against a civil servant, availing of such remedy by him is the condition precedent for filing an appeal before the Tribunal. Such appeal has to be filed, as laid down in section 4, after expiry of 90 days from the date on which the appeal, application for review or representation, as the case may be was instituted before the Departmental Authorities. It is noteworthy that, where no right of appeal or review is provided under section 22 of the Civil Servants Act, 1973, the aggrieved civil ' servant can make a representation to the forum next above the Authority, which made the order. Admittedly, no appeal before the departmental authorities, against the order, dated 29-6-1987 was provided in law. The question is, could the appellant, who is a civil servant, for the purposes of Service Tribunals Act, make use of the provisions of section 22? This issue fell for determination before this Court in Civil Appeal No,281-K of 1986, and it was laid down: ' There can be two possible views on the controversy in issue, namely, the strict view which found favour with the Tribunal that as the appellant was deemed to be a civil servant by virtue of above clause (1-B) of section 17 of the Act for the purposes of the Service Tribunals Act, provision of subsection (2) of section 22 of Act of 1973 could not have been pressed into service and, secondly, the broader view can be that since the definition of civil servant given in clause (a) to section 2 of the Service Tribunals Act refers to the definition of civil servant provided for in Act of 1973, the provision of subsection (2) of section 22 of Act of 1973 can be pressed into service.'
' "We are inclined to hold that the above broader view is more apt to the object of above subsection (1-B) of section 17 of the Act read with the definition of the expression 'service of Pakistan' given in Article 260 of the Constitution. The object of above subsection (1-B) was to make the remedy of appeal under the Service Tribunals Act available to the employees of WAPDA and to achieve the above objective, by fiction of law, they were made civil servants. Since a civil servant cannot file an appeal without exhausting the remedy of a departmental appeal or review or representation provided under the Act of 1973 (i.e, Civil Servants Act) by virtue of proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, the appellant being a civil servant by fiction of law could not have filed an appeal before the Tribunal without exhausting the remedy of representation under subsection (2) of section 22 of Act of 1973."
9. At this stage it would be advantageous to make a reference to a subsequent judgment of this Court reported as Syed Aftab Ahmad v. KESC (1999 SCMR 197) wherein, while considering the question of applicability of section 2-A of Service Tribunals Act (No, LXX of), 1973, providing that service under any authority, corporation, body or organisation, established by the Federal Government or in which the Federal Government has a controlling share or interest, has been declared to be "service of Pakistan" and every holder of such a post under any such authority shall be deemed to be a "civil servant" for the purposes of Service Tribunals Act, 1973, it was held that in the absence of any statutory rule providing a right of appeal/representation, the requirement of filing such an appeal/representation provided under section 4 of the Service Tribunals Act, 1973 will not be applicable and that the Tribunal was supposed to examine the question on the basis of the law or the relevant rules applicable to the employees concerned. The cause in the precedent case was remanded to the Tribunal to resolve the matter all over again. We notice that probably for some kind of a failing on the part of the learned counsel appearing in Syed Aftab Ahmad (supra), the law laid down in Gulbat Khan (supra) as far back as on 30th March, 1992 in relation to the provisions of section 17(1-B) of the WAPDA Act, was not cited at the Bar. That being the position, we reiterate the ratio of Gulbat Khan (supra) in these causes as well. This takes care of the arguments addressed by the learned Officer in that behalf.
10. Lastly, as regards the plea of the petitioners that an adverse action taken by a competent Authority in relation to persons similarly placed as the petitioners sans opportunity to show cause there against the same should be set aside, we suffice by referring to the observations made by us in the immediately preceding paragraphs to hold that this argument pales out of significance. We find that the petitioners did not avail of the remedy of departmental representation by challenging the action on the ground that they were not afforded an opportunity of hearing. Had they done so and had the result gone against them, only then their remedy under section 4 of the Service Tribunals Act, 1973 could come to their rescue.
11. Before parting with this matter we may observe that the arguments addressed on behalf of the petitioners revolving around the case of Pakistan v. Public at Large (supra) are not quite in order.
The operative part of the judgment in the precedent case reads thus: ' "The provisions of the Statutes and statutory rules specified below, under challenge, in these appeals, are found to be repugnant to the Injunctions of Islam; in so far as they do not provide for due notice of the action proposed to be taken and opportunity of showing cause against such action:
(i) Section 13, clauses (i) and (ii) of Civil Servants Act, 1973.
(ii) Section 12, clauses (i) and (ii) of Punjab Civil Servants Act, 1973.
(iii) Section 13, clause (i) of Sindh Civil Servants Act, 1973.
(iv) Section 13, clauses (i) and (ii) of Balochistan Civil Servants Act, 1974.
(v) Section 13, clause (i) of the N.-W.F.P. Civil Servants Act, 1973.
(vi) Sub-rule (3) of Rule 44 of Pakistan Cantonment Servants Rules, 1954 framed under the Cantonments Act, 1924."
It is not even so much as orally pleaded by the learned counsel appearing on behalf of the petitioners that either subsections (1-A) and (1-B) to section 17 of WAPDA Act have been declared to be against the tenets of Islam or that even any such effort has been made on behalf of the petitioners to obtain such directions from the Federal Shariat Court under Part VII, Chapter 3-A of the Constitution.
12. For all that has gone before, the instant petitions are dismissed and leave refused.