2011 SCMR 1070 (PLP)

NASIR-UL-MULK, J.

The petitioner, Water and Power Development Authority (WAPDA), seeks review of the judgment in Civil Petitions for Leave to Appeals Nos. 1425 to 1431 of 200C, whereby their petitions were dismissed and the judgment of the Federal Service Tribunal was upheld. For the purpose of grant of time scale placing in BS-18, the Tribunal had held that the 10 years continuous service requirement for such placing under Rule 6(b)(i) of the Pakistan WAPDA (Water Wing) Scientific Officers Service Rule, 1980, the respondent's service on work charge basis was also to be counted.

2. Notice to the respondent, in this review petition, was given on 25-11-2009 in view of the following submission of the learned counsel:-- "It is alleged that the judgment under review has been passed on an earlier judgment of this Court in Civil Petition for Leave to Appeal No. 1075 of 1998 decided on 18-5-1999. That in the earlier judgment it was never discussed and decided as to whether the petitioner involved therein has remained as work-charged and that work-charged service could not be counted towards regular service. That in the instant case, it was inadvertently presumed that the petitioner had regular service to his credit. That WAPDA Rules,"1980 do not apply to, inter alia, work-charged employees. The point deserves consideration.

2. Notice to the respondent be issued to a date in office. As the judgment under review is of a Division Bench and as the earlier judgment relied upon also was of a Division Bench, it will be appropriate that the instant review petition be heard by a larger Bench because a point of law is challenged. The case may be put up before the Hon'ble Chief Justice for appropriate orders."

3. The main argument of the learned counsel for the petitioners was based on the Rule 2 of the WAPDA Service Rules, which reads as follows:--

2. Extent of Application. Unless otherwise decided by the Authority at any time by general or special order, these Rules shall apply to all officers of the Service as hereinafter defined except:- (1) Deputationists. (2) Persons engaged for a specified period on contract and (3) Workcharged Employees.'

4. The learned counsel contended that since the WAPDA Service Rules were expressly excluded work-charged employees, the benefits under Rule 6(b)(i) of the WAPDA Service Rules could not be extended to them, including their service as work-charged for the purpose of counting towards their 10 years continuous service. It was, therefore, maintained. that the condition of eligibility of 10 years continuous service mentioned in Rule 6(b)(i) of the WAPDA Service Rules, for getting benefit under the said Rule excluded the period of service of an employee on work-charged basis. That the 10 years continuous service meant service as regular employee under the WAPDA Service Rules.

5. We were not impressed with the constructions placed on the Rules by the learned counsel. The opening sentence of Rule 2 reproduced above, implies that work-charged employees are officers in the service of WAPDA, but the WAPDA Service Rules would not apply to them. The 10 years continuous service mentioned in Rule 6(b)(i) of the WAPDA Service Rules refers to service and is not qualified by the word 'regular'. It would, therefore, include any service, regardless of its nature, rendered continuously in the Water Wing of WAPDA.

6. True that the benefit under the WAPDA Service Rules cannot be availed by a work-charged employee but the controversy before us does not relate to entitlement of a benefit but the eligibility to acquire it. The learned counsel raised another objection that the respondent did not have to his credit the requisite continuous service, even if the period he served as work-charged employee was included in his service. However, the petitioners had not made such factual assertion in their comments filed before the Service Tribunal and thus no determination thereof was made. It cannot now be raised for the first time.

7. In the light of above, we do not find that the conclusion drawn by the Service Tribunal or in the judgment under review requires reversal. The petition is, therefore, dismissed. S.A.K./W-1/SC Review petition dismissed.