P L D 1976 Lahore 492 (PLP)

The nine petitioners whose names are : (1) Muhammad Salim Khan, Revenue Officer (Recovery), WAPDA, Chowdhry Building, Chowk Mayo Hospital, Lahore. (2) Rao Mansoor Ali Khan, Revenue Officer (Electricity), WAPDA, Chaudhry Building, Chowk Mayo Hospital, Lahore. (3) Muhammad Ismail Chohan, Revenue Officer (Electricity), Gujrat. (4) Muhammad Saleh, Revenue Officer (Electricity), Lyallpur. (5) Abdul Aziz Khan, Revenue Officer (Electricity), Peshawar. (6) Hasan Imam Bokhari, Revenue Officer II, Lahore. (7) Aziz Ahmad Qazi, Revenue Officer (Electricity), WAPDA, Sheikhupura. (8) Mr. Muhammad Hussain, Revenue Officer, Computor Centre, Lahore. (9) Syed Ali Imam Rizvi, Revenue Officer (Electricity), Sargodha. are working as Junior Revenue Officers in WAPDA and are posted at various places. Tne terms and conditions of their appointment were contained in their respective appointment orders. On 14‑7‑1971 WAPDA issued an Office Order prescribing certain pay scales for the Revenue Officers of the Power Wing. A copy of the Office Order has been placed on record in the form of Annexure (h), and it reads as follows "The Authority has prescribed the following pay scales for the Revenue Officers of the Power Wing (1) Senior Officers Revenue Rs. 750‑.75‑1,500 (2) Junior Officers Revenue Rs.450‑50‑1,000 Pay of the existing incumbents will be fixed to the new scales at the same stage of pay which they were in receipt of on 1‑7‑1971. The orders have effect from 1‑7‑1971." The petitioners through their counsel served a notice on 18‑7‑1972 claiming the aforesaid grade. A copy of the said notice has been placed on record as Annexure `I' and it reads as follows "I have been instructed by my clients WAPDA Revenue Officers Association duly constituted and recognized by the Authority to issue you the following notice: (1) That the said Revenue Officers were sanctioned the pay scales of Rs. 750‑75‑1,500 and 450‑50‑1,000 for Senior Officers (Revenue) and Junior Officers (Revenue) respectively on 1‑7‑71 according to service rules. (2) That the qualification and experience laid down by the Authority was 7 years' service as Junior Offcer for Senior Scale and 4 years' service as Senior Suprintendent (Assistans Accountant) for Junior Scale. All these conditions have been duly met by my clients and are on record according to Service Rules of WAPDA Revenue Officers, 1970 vide its Notification No. S.O.(R) 6 (57 P & R/750 dated 10‑11‑1970. (3) That in spite of repeated representations and appeal made by the Revenue Officers Association to allow them the benefit of drawing the pay scale duly sanctioned by you, nothing has been done. Rather the matter has been completely ignored by you. The said Association has legal right for getting the pay scale given by you. I on behalf of the Association ask you through this legal notice to take immediate positive action for granting them the permission to draw their salaries according to the new pay scales. (4) If within one month from the receipt of this Notice, no action is taken to redress the grievance of my clients (Revenue Officers Association) proper legal course will be taken by my clients to sue you for the redress of their grievance in the proper Court of law and all the expenses to be incurred and borne by my clients will be liability of yours. A copy of this notice has been retained in my office for reference and necessary action. Yours faithfully, (Sd.) Asif Akhtar Malhi, Advocate, 18‑7‑72." As the relief claimed by the petitioners was not granted, therefore, they have come in writ petition seeking direction to the WAPDA authority to fix their pay in accordance with the aforesaid Office Order. As the point involved in this case was of some importance I directed that the learned Deputy Attorney‑General and the learned Advocate‑General should assist me regarding the continuation of this writ petition in this Court. Consequently they have appeared. They have brought to my notice the provisions of the West Pakistan Water and Power Development Authority (Amendment) Ordinance XV I of 1975 which was published in the Gazette of Pakistan, Extraordinary, Part I, dated 30th September, 1975, and is printed on page 331 of P L D 1975 (Central Statutes). It reads as follows "No F. 24(1)/75‑Pub.‑The following Ordinance made by the President on the 28th September, 1975, is hereby published for general in formation Whereas it is expedient further to amend the West Pakistan Water and Power Development Authority Act, 1958 (West Pakistan Act No. XXXI of 1958), for the purposes hereinafter appearing ; And whereas the National Assembly is not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action ; Now, therefore, in exercise of the powers conferred by clause (1) of Article 69 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance

1. Short title and commencement.‑(1) This Ordinance may be called the West Pakistan Water and Power Development Authority (Amend ment) Ordinance, 1975. (2) It shall come into force at once.

2. Amendment of section 17, W. P. Act No. XXXI of 1958.‑In the West Pakistan Water and Power Development Authority tact, 1958 (West Pakistan Act No. XXXI of 1958), in section 17, after subsec tion (1), the following new subsections shall be inserted, namely : ‑ "(1‑A) Notwithstanding anything contained in subsection (1) or any rules made, or orders or instructions issued, by the Authority, or in the terms and conditions of service of any person employed by, or serving under the Authority, the Authority may, at any time, remove from its service any person without assigning any reason, after giving him not less than thirty days' notice or pay for the period by which such notice falls short of thirty days. (1‑B) 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)." The contention of the learned Deputy 'Attorney‑General and the learned Advocate‑General was that since WA~DA employees have become civil servants within the meanings of section 2(a) of the Service Tribunals Act LXX of 1973, therefore, the present writ petition filed by them stands abated under section 6, inasmuch as, the petitioners have now a remedy of approaching the appropriate tribunal as contemplated in the aforesaid Act. It is a common ground between the parties that the petitioners have now become civil servants with effect from 30‑9‑1975 in view of the amendment brought about by Ordinance XVI of 1975 not for all but for the limited purpose of Act LXX of 1973. However the contention of the learned counsel for the petitioners was that as the matter was last urged by them before the WAPDA authorities by means of a legal notice (Annexure `A') on 18‑7‑1972, therefore, the cause of action having accrued from the slid date, the present case was not such which would abate so as to compel the petitioners to appfoaph the Service Tribunals in connection with their grievance. This brings me to the provisions of sections 4 and 6 of the Serviee Tribunals Act LXX of 1973. Section 4 reads as follows :‑ "

4. Appeals to Tribunals. (1) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him, prefer an appeal to the Tribunal having jurisdiction in the matter Provided that‑ (a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, appli cation or representation was preferred ; (b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade ; and (c) no appeal shall lie to a Tribunal against the order for decision of a departmental authority made at any time before the 1st July, 1969. (2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred‑ (a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time scale, or to a lower stage in a time‑scale to a Tribunal referred to in subsection (3) of section 3 ; and (b) in any other case, to a Tribunal referred to in subsection (7) of the section. Explanation.‑In this section, "departmental authority" means any authority, other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants." Section 6 reads as follows "

6. Abatement of suits and proceedings.‑All suits, appeals or applica tions regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith Provided that any party to such a suit, appeal or application may, within ninety days of the establishment of the appropriate Tribunal prefer an appeal to it in respect of any such matter which is in issue in such suit, appeal or application." If the facts of this case are examined in the light of the provisions of Ordinance XVI of 1975 reproduced above, it is evident that Act LXX of 1973 came into force on 26‑9‑!973‑whereas the present writ petition was filed on‑, 23‑10‑1972. This shows that the present writ petition was pending at the, time when the aforesaid Act became law. This case, therefore, clearly falls within the provisions of section 6 of the Act and is liable to abate leaving the petitioners the remedy to file an appeal in accordance with the proviso contained in section 6 to the appropriate Tribunal. When confronted with this situation, learned counsel for the petitioners argued that proceedings contemplated in section 6 ibid are of those persons who were or had been Civil Servants at the time of the enforcement of the Act LXX of 1973 and not those who became or were included in the definition of "Civil Servant" thereafter. He submitted that on 23‑10‑1972, when the present writ petition was filed, the petitioners were not Civil Servants and, therefore; their cases are not to abate inasmuch as, even their status as Civil Servants according to Ordinance XVI of 1975 is to come into operation with effect from 30‑9‑1975 and not from any retrospective date. The plea has no merit. ‑It is to be remembered' that Act LXX of 1973 was promulgated in pursuance to the provisions of Article 212 of the Constitution which reads z.s follows "212.‑'(1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act provide for the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of‑ (a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters ; (b) matters relating to claims arising from tartious acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such . servant ; or (c) matterrs relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law. (2) Notwithstanding anything hereinbefore contained where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain .any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends and all proceedings in respect of any such matter which may be pending before such other Court immediately before the establishment of the Administrative Court or Tribunal shall abate on such establishment Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal. (3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal." This has to be read with the definition of "Service of Pakistan" as contained ,in Article 260 of the Constitution wherein it is written that "Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All‑Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of Parliament or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minister, Attorney‑General, Parliamentary Secretary or Member of a House or a Provincial Assembly." This shows that a competent Legislature could declare any service to be a service of Pakistan. It is exactly what Ordinance XVI of 1975 has done in the instant case. It has made service of WAPDA for the limited purpose of the Service Tribunals Act, 1973 to be civil service. This will show that when a Tribunal is established with reference to Article 212 of the Constitution then according to clause (1) of that Article no other Court shall grant any injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends. It means that this Court is now not to entertain proceedings in respect of any matter which falls within the jurisdiction any proceedings Service Tribunals. It is to be remembered that for the purpose of applying section 6 in the light of Article 212 all that is to be seen is whether the time when a Service Tribunal comes into being or is functioning, the subject‑matter in hand was such which if the petitioner had been a civil servant could be covered by that section. If the subject matter, for instance, which terms and conditions of service then any proceedings pendin regarding ' another forum are to abate. Similarly, if the subject‑matter at that time is that of a civil servant whose service has been categorised as Service of Pakistan, and the dispute is also with respect to his terms and condition of that very service, then his case squarely falls within section 6 of Article 212 ibid. In my opinion this is the only way in which the provision of the law under examination should be construed and any other interpre tation will simply defeat the object which was in view of the law‑maker while enacting ordinance XVI of 1975.

3. The upshot of the above discussion is that the present writ petition can no longer proceed in this Court and must abate. I hold accordingly.There shall be no order as to costs. Order accordingly