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Civil Petition for Leave to Appeal No. 87‑K of 1986, heard on 15th June, 1986.

(On appeal from the judgment of the Federal Service Tribunal, dated 30‑11‑1985 in A. No. 135(K)/83).

‑‑‑Art. 212(3)‑‑Civil Servants Act (LXXI of 1973), S.22‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Water and Power Development Authority Act (XXXI of 1958), Ss.17(1‑A) & 17(1‑B)‑‑Petition for leave to appeal‑‑Contention of petitioner that since service under WAPDA had been declared to be Service of Pakistan, an employee of WAPDA was a civil servant within meaning of Civil Servants Act, 1973, although that Act, defined 'civil servant' inter alia, as a person who held a civil post in connection with affairs of Federation, and he was, therefore, entitled to right of making a representation against order of his removal from service under S.17(1‑A) of Water and Power Development Authority Act 1958, under provisions of S.2'2(2) of civil Servants Act, and that even otherwise an employee of Authority, being deemed to be a civil servant under proviso (a) to S.4(1) of Civil Service Tribunals Act, 1973, was under embargo to making a representation under S.22(2) of Civil Servants Act, 1973 before he could approach Service Tribunal in appeal‑‑Points raised by petitioner were of substantial legal importance and likely to govern a large number of cases for which an authoritative decision was required to be rendered‑‑Leave to appeal granted.

Obaidur Rahman, Advocate Supreme Court and Amanullah Faruqi, Advocate‑on‑Record for Petitioner.

Nemo for Respondents.

Date of hearing: 15th June, 1986.

This is a petition for leave to appeal from the judgment of Federal Service Tribunal, dated 30‑11‑1985, dismissing an appeal filed by the petitioner as barred by time.

The facts briefly stated are that while petitioner was serving as an Executive Engineer under Water and Power Development Authority (WAPDA), he was removed from service under the provisions of section 17(1‑A) of the WAPDA Act, 1958, by order, dated 24‑7‑1983. He made a departmental representation against this order on 2‑5‑1983 and after awaiting for 90 days he filed the appeal before the Service Tribunal on 5‑12‑1983. The Tribunal, however, took the view that since there was no provision of departmental appeal or representation under the WAPDA Act or rules framed there under, petitioner ought to approach the Tribunal directly in appeal within a period of 30 days. Learned counsel for the petitioner appearing before the Tribunal sought to rely on the provisions of section 22 of the Civil Service Act which provides that if there is no scope of an appeal or review under the rules, a representation may be made to the next higher authority. This plea was rejected by the Tribunal in the words which may be reproduced as under:‑

"The employees of the WAPDA are deemed to be civil servants only for the purposes of Civil Servants Act, 1973, and, therefore, section 22 i6id does not cover their cases. There being no provisions for representation against an order passed under section 17(1‑A), the departmental representation made to the "Chairman, WAPDA, who was not even an authority higher to the WAPDA, was an exercise in futility."

Mr. Obaidur Rahman, learned counsel appearing in support of this petition firstly referred to the addition made by Ordinance XVI of 1975 with effect from 30‑9‑1975 whereby the right of appeal was granted to WAPDA employee. The newly‑added subsections (1‑A) and (1‑B) to section 17 of the WAPDA Act may be reproduced hereunder:‑

"(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)."

Learned counsel submitted that since service under the WAPDA has been declared to be the service of Pakistan, an employee of WAPDA is a civil servant within the meaning of Civil Servants Act, 1973, although that Act defines 'civil servant' inter alia, as a person who holds a civil post in connection with the affairs of the Federation, and he is, therefore, entitled to the right of making a representation against the order of his removal from service under section 17(1‑A) of the WAPDA Act, 1958, under the provisions of section 22(2) of the Civil Servants Act. Learned counsel further argued that even otherwise an employee of WAPDA being deemed to be a civil servant under proviso (a) of section 4(1) of the Civil Service Tribunal Act, 1973, is under the embargo of making a representation under section 22(2) of the Civil Servants Act, 1973, before he can approach the Service Tribunal in appeal.

It seems to us that the view that has prevailed with the Service Tribunal on the legal point involved in the case is of first impression. Since the points of law raised before us are of substantial legal importance and are likely to govern a large number of cases, it is necessary that an authoritative decision should be rendered by this Court. We, therefore, grant leave to appeal.

The appeal will be heard on the present record but it will beg open to the parties to file additional documents if any.

M. Y. H. Leave granted.

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