1987 PLP 359 (SCMR)

The question whether WAPDA employees who are retired or removed from service under section 17(1‑A) of WAPDA Act were eligible for pension was raised and was decided by the WAPDA as reflected in the office order, dated 25th July, 1979 which reads as follows:‑‑ "A question has arisen whether or not WAPDA employees and Government Servants of Electricity Department who are retired or removed from service under section 17(1‑A) of WAPDA Act, 1958, are eligible for pension, gratuity and B . P . Fund Contribution, etc. 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, B.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 entitlements. (Sd. ) (Muhammad Siddiq), Director Finance (R&I) WAPDA." However, WAPDA purported to amend rule 7 of the Pension Rules by means of a notification, dated 28th June, 1982. As the WAPDA relied solely upon this notification to refuse pensionary benefits to the respondent it will be of advantage to set it out in extenso:‑‑ "No.F.B&F/37‑9/Vo1.XV/7877‑8077, dated 28‑6‑1982. Subject: Pakistan WAPDA Pension Rules, 1977. In exercise of the powers conferred on it by section 18 of the Pakistan WARDA Act, 1958 (Pakistan Act No. XXXI of 1958), the Authority has been pleased to add, ab initio, the words "or removed by order under section 17(1‑A) of WAPDA Act", after the word "inefficiency", appearing in line 3 of sub‑rule (iv) of Rule

7. Chapter‑I of the Pakistan WAPDA Pension Rules, 1977. The amended provision will now read as under:‑‑ "No pension may be granted to a WAPDA employees dismissed or removed for misconduct, corruption, subversive activities or inefficiency, or removed by order under section 17(1‑A) of WAPDA Act, 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." (Sd.) Tajammul Hussain, Manager, Finance (Coordination), WAPDA." It would, therefore, appear that before the purported amendment of rule 7 employees who were retired or removed under section 17(1‑A) were entitled to all the pensionary benefits normally available to WAPDA employees. These benefits were denied only in the case of employees who were dismissed, or removed for misconduct, corruption, subversive activities or inefficiency. But by insertion of the words "or removed by order under section 17(1‑A) of the WAPDA Act even employees against whom no disciplinary action by way of punishment was taken were sought to be placed in the same category of persons not entitled to pensionary benefits. Before the Tribunal the contention of the WAPDA was that the 1982 amendment in rule 7 affected the case of the respondent (who was removed on 2nd June, 1977) because the amendment was made by adding the aforesaid words retrospectively. Reference in this connection was made to the words "ab initio". The learned Service Tribunal rejected the contention of the WAPDA and rightly so on the ground that executive orders cannot be given retrospective operation which powers can only be enjoyed by the Legislature. Even rule‑making power which is by way of statutory grant does not possess this quality unless conferred by the statute, which is of rare occurrence. Section 18 of the WAPDA Act does not grant such authority to the WAPDA to, alter or change the service rules touching the terms and conditions of employees with retrospective operation so as to rob them of vested rights already accrued in their favour.

4. We also agree with the findings of the learned Service Tribunal that office order, dated 25th July, 1979, reproduced above, has all the characteristics of statutory rules as postulated by this Court in Pakistan v. Sheikh Abdul Hamid P L D 1961 S C 105 and The Province of West Pakistan v. Din Muhammad and others P L D 1964 S C

21. In any case it aids in the interpretation of the existing rule before its amendment as a contemporaneous interpretation of the rule and practice at an authoritative level.

5. Learned counsel for the appellant only repeated his argument that the language of the amending notification, dated 28th June, 1982, is sufficient to give retrospective operation to the amendment excluding the benefit of pension in the case of respondent No.

1. However, for reasons already given this is an untenable argument and is accordingly repelled. We are clearly of the opinion that by virtue of all existing rules respondent No. 1 on his removal from service under section 17(1‑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 8y the WAPDA.

6. Learned counsel for the appellant made a half‑hearted attempt to urge that respondent No. 1 cannot lay a claim to pension without complying with the procedure provided in the Pensions Act, 1871. We are unable to see how the provisions of the said Act are attracted in the present case. In any case this point was not raised before the Service Tribunal or even in the petition filed in this Court. This contention, therefore, cannot be entertained at this stage.

7. In the result this appeal fails and is accordingly dismissed, with costs. M.I. Appeal dismissed.