Justice (R) Sheikh Ahmad Farooq, Chairman.--Through this single consolidated judgment, we intend to decide the aforementioned 260 appeals as not only identical question of facts and law are involved but also a similar relief has been sought by all the appellants.
2. Aggrieved by the inaction of departmental appellate authority on the departmental appeals dated 19.11.2012, the appellants have preferred these appeals wherein they have challenged the order dated 18.10.2012, whereby the generation allowance granted to them with effect from 16.11.2010, has been discontinued.
3. Briefly, the facts of the case, as gathered from the pleadings, are that the WAPDA-Authority sanctioned ' generation allowance' for the first time, with effect from 01.10.1961, to the generation technical staff. Subsequently, the Authority decided to allow the said generation allowance, with effect from 01.06.1967, to such technical employees of all Power Stations who were actually engaged on generation duties. In the year 1969, a separate Generation Pay Scales for such employees were Introduced and, with effect from 01.07.1975, the, rates were revised. In 1977, a separate Generation Cadre was formed and defined 43 categories of technical staff as generation employees, subject to the condition of completion of technical training and passing the test conducted in the training centres of Power Houses.
4. In the year 1996, one Naeem Akhtar and four others, who were working in Power House, Tarbela as AC Supervisor, Lift Attendant, Upholster, Crane Slinger and Rigger, filed Appeals Nos. 555 to 559(R)/95, with the prayer that generation allowance be restored to them which they were drawing since long. This Tribunal, vide judgment dated 24.04.1997, held that the appellants were equally playing vital role in the generation, as such, accepted their appeals. The Authority-WAPDA took the matter before the Apex Court and the Hon'ble Supreme Court of Pakistan, vide order dated 10.10.1997, maintained the said judgment of this Tribunal. In the year 2008, some 255 clerical staff performing their duties in Power Stations, such as, Store Manager, Assistant, Accountant, Sanitary worker, Naib Qasid, Plumber, Masson, Driver, Bus Conductor, Telephone Operator etc, filed Appeals Bearing No. 128(P)CS/2008 and others, before this Tribunal for the grant of generation allowance, on the plea that they were also performing their duties in the Power Station for the generation of electricity. The Tribunal, vide judgment dated 22.10.2009, has held that the appellants were also essential part for the running of the Power Station, therefore, they could not be excluded from the list of employees working to generate electricity, as such, accepted the appeals. The matter again went to the Honble Supreme Court of Pakistan and the Apex Court, vide order dated 12.01.2010 passed in Civil Petitions Nos. 2281 to 2534 of 2009, maintained the said judgment of the Tribunal and declined leave to appeal to the Authority-WAPDA. In this backdrop, while implementing the said judgment of this Tribunal dated 22.10.2009, the Authority WAPDA also allowed the generation allowance to the present appellants, who are working as Security Guard/Sergeant etc., which they continued to draw till it was discontinued, vide impugned order dated 18.10.2012, on the ground that it was not admissible to them.
5. Learned counsel for the appellants argued that the action of the Authority-WAPDA is arbitrary, illegal and unlawful and the appellants, who were in receipt of the generation allowance for the last two years, have been denied the same, without adopting due process of law. He contended that it is a settled law that a right once granted and acted upon cannot be taken back. He submitted that to generate electricity, the generation and non-generation staff are equally important, as such, by treating the non-generation staff differently will create hardship and will also affect the smooth working of the Power Stations. He further submitted that the action of the respondents is also against, the rules as different trades and categories of employees, working at same place are being treated differently in pay and allowances, which amounts to discrimination and violative of Articles 4, 25, 27, 37 and 38 of Constitution of Islamic Republic of Pakistan, 1973. Learned counsel contended that it is the duty of the respondents to remove disparity while granting the benefits to one class of employees ignoring the other. He claimed that the appellants have. Been condemned unheard while withdrawing the said generation allowance as neither show-cause notice nor personal hearing was given to the appellants. He maintained that after the decision of the Hon'ble Supreme Court of Pakistan in respect of their other colleagues, with regard to grant of generation allowance, the present appellants were granted the said allowance; therefore, it could not be taken back on the principle of locus poenitentiae. He contended that the present appellants/security guards etc. Are more important for the smooth running of the Power Stations due to prevailing law and order situation in the country, especially in the area where Power Stations are located. He prayed for the restoration of the said generation allowance. In support of his arguments, learned counsel placed reliance on the case law reported as 1998 SCMR 2203, 1996 SCMR 1185, 1996 SCMR 1350, 1991 SCMR 1441, PLD 1994 SC 269 and 2004 PLC (CS) 1089.
6. The Authority-WAPDA opposed the appeals. In their parawise comments, they stated that the respondent-Authority is an autonomous body created under Pakistan WAPDA Act, 1958, which empowered the Authority-WAPDA to frame its rules/regulation for its employees in terms of clauses 17 and 18 of the Act and grant of said Generation Allowance, being a policy matter, falls within the domain of the Authority under the Act, 1958, ibid. They also stated that the appellants have been re-employed as Security Guard etc., after retirement from Pakistan Army, for the security of the Power Stations. However, they states that the said Generation Allowance was granted to the present appellants with effect from 16.11.2010, inadvertently as a result of wrong interpretation of the judgments of this Tribunal as well as the Honble Supreme Court of Pakistan, but realizing the mistake, that they were not entitled, the same has been discontinued vide order dated 18.10.2012. They further elaborated that the said Generation Allowance is meant for technical staff for performing technical duties and the appellants, who are non-generation core employees, cannot be treated alike for the grant of said allowance. Learned counsel for the respondents argued that the appellants have been, appointed for the security of the Power Stations and are deputed outside the Power Stations, 4-5 storey down the earth, whereas the Generation Allowance is being paid to those who are working in the Power Stations for the generation of the electricity. He pointed out that the appellants were neither imparted technical training nor they are performing duties for the generation of electricity. Refuting the contention of the learned counsel for the appellants with regard to the principle of locus poenitentiae, the learned counsel for the respondents contended that it has been held that if the order is illegal then no perpetual rights could be gained on the basis of an illegal order and placed reliance on the case law reported as PLD 1992 SC 207. He stated that there is no protection available under Section 17 of the Civil Servants Act, 1973 with regard of all allowances paid and their withdrawal by the Government cannot be challenged on any legal plane and in this respect, he placed reliance on the case law reported as 1997 SCMR 1026. Learned counsel drew our attention to the policy of Generation Allowance and contended that it has to be paid in accordance with the policy i.e. To all those technical employees of Power Stations, who are actually engaged on generation duties directly or indirectly. He prayed for the dismissal of the appeals as the appellants were neither engaged directly or indirectly for the generation duties.
7. We have heard the learned counsel for the parties, in addition to evaluating the record carefully.
8. Before we proceed further with the matter, we would like to dilate upon the main purpose for which the Generation Allowance was introduced. The Authority-WAPDA sanctioned the Generation Allowance for the first time with effect from 01.10.1961 vide office order dated 29.01.1962 for Generation/Technical Employees only, who having specific qualifications, knowledge and experience to operate sophisticated machines for generating electricity, subject to completion of training and passing of the test. It was also a condition that the employees concerned remain consistently proficient in the discharge of their duties and to motivate them, Generation Pay Scale was introduced in the year 1969. The Generation Allowance was allowed to technical employee of Power Houses who were actually engaged in 8 generation duties. In the year 1977, the Authority- WAPDA formed a separate, Generation Cadre and defined 43 categories of technical staff as Generation Employees wherein no non-technical category of employee was included. However, in pursuance of judgment of this Tribunal dated 22.10.2009, which was upheld by the Honble Supreme Court of Pakistan vide judgment dated .12.01.2010, the benefit of Generation Allowance was also extended to non-generation core employees of all Power Houses. The technical and non-technical employees, who are working inside the Power Houses were declared core employees, as without them the Power Houses operational maintenance work could not be possible, because they are directly/ indirectly engaged in making, altering, ornamenting, finishing or otherwise of pumping oil/water or sewage or generation, transforming power.
9. There is no denial of the fact that the appellants were granted the Generation Allowance with effect from 16.11.2010, which they had been drawing till the issuance of the impugned order dated 18.10.2012. The claim of the present appellants is that they are equally important for the generation of electricity, as such, entitled to draw the said allowance, but they have not been able to rebut the contention of the respondents that they are not performing their duties inside the Power Stations.
We tend to agree with the contention of the learned counsel for the respondents that the appellants have been engaged for the security of the Power Stations from outside and they have nothing to do with the generation of electricity, especially when the turbines are located 4-5 storey down the earth. Furthermore, in terms of clauses 17 and 18 of the Act, 1958, ibid the Authority has been empowered to frame its rules/regulation for its employees and grant of said Generation Allowance, being a policy matter, squarely falls within the domain of Authority-WAPDA. The Hon'ble Supreme Court of Pakistan in the ease reported as 2009 SCMR 980, Muhamniad Farid Khattak & others vs. Chief Secretary, Government of NWFP & others has held that "nobody has a vested right in policy decision of the Government anu Service Tribunal is divested of power to indirectly set aside the public policy in exercise of its power under Service Tribunals Act, 1973 or rules framed there-under". It may not be out of place to mention here that a similar situation has arisen when one employee of WAPDA-Authority, namely Muhammad Nadir Shah, Senior Officer (Stores), who was declined incentive package meant for Finance, Accounts etc. Filed Appeal No. 749(R)CS/2010 before this Tribunal, claiming discrimination as he possessed the required educational qualification. The Tribunal vide order dated 23.08.2010, in para 8 has held as under: "8. We are also very clear in our mind that it is the responsibility of the executive to decide and determine the terms and conditions of service of the employees and what kind of incentive ought to be given to them in order to retain their services etc. Such matters are beyond the scope of this Tribunal and we have neither the intention nor the desire to assume such role. The proposition before us in this anneal falls squarely within the purview of policy decision and we shall refrain from interfering into this matter in view of the judgment of the Hon'ble Apex Court in the cases reported in PLJ1987 186 and 2009 SCMR 980." (Underlining for emphasis)
No doubt, the second contention of the learned counsel for the appellants that benefits once given and acted upon, cannot be taken back in view of the principle of locus poenitentiae is legally correct. But in the present case, the position is different, as the appellants were 6 wrongly and inadvertently granted the allowance in question as they were not performing any duty with regard to generation of electricity, therefore, the principle of locus poenitentiae would not apply in their case. In this view, we are fortified by the judgment reported as PLD 1992 SC 207 wherein it has been held by the Hon'ble Supreme Court of Pakistan that "locus poenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order." In the celebrated judgment in case of I.A. Sharwani and others vs. Government of Pakistan and others, reported as 1991 SCMR 1041, the. Hon'ble Supreme Court of Pakistan while dealing with the question of discrimination has held that "equal protection of law does not mean that every citizen is to be treated alike in all circumstances, but it contemplates that persons similar situate or similarly placed are to be treated alike" It has been further held that "equal protection of law means that all persons equally placed be treated alike both in privileges conferred and liabilities imposed". In the present case, the present appellants are not similarly placed with those, who, are getting the said Generation Allowance. In an unreported judgment dated 15.05.2012, the Apex Court, in Civil Appeals Nos. 338 to 344 of 2010, has held that "there is no doubt that equality before law is the supreme ideal for the Courts of law but it does not mean that a benefit which should not have been extended to any, if extended to one, would furnish a justification for its extension of others in utter disregard of the relevant rules. No statue or situation would call for its extension to others on the strength of a wrong precedent".
10. It is pertinent to mention here that there are more than 40 cadres in WAPDA and there is reasonable classification among the WAPDA employees as different employees of various cadres are being paid 22 various job allowances according to their jobs.
11. Additionally, we would like to observe that most of the security staff are Ex-Army personnel and they are not only in receipt of pension from Army but also being paid risk allowance @ 35% while posting in hard area of category-A and @ 25% of Basic Pay while posting in other areas. Even the service rules of the Security Staff are being governed under the Pakistan WAPDA Security Staff Subordinate Services Rules including Fire Fighting Staff. Further, as per Authority's instructions contained in para 35 of Notification dated 16.06.1977, amended upto 31.12.1982, two job allowance are not admissible simultaneously.
12. Before parting with this judgment, we would like to observe that by allowing Generation Allowance to those employees of WAPDA, who are otherwise not entitled to the same, WAPDA will have to incur additional expenditure on generation of electricity, which would be passed on to the consumer. . Even otherwise, we are of the view that this Tribunal should not interfere in the policy decisions, particularly the financial matters of an Authority i.e. WAPDA, as the same would a burden on their budget, in addition to adversely affecting the economic viability of its projects.
13. For the' foregoing reasons, we are of the considered view that the appellants are not entitled to the grant of Generation Allowance as they are not actually engaged on generation duties in the Power Stations. Hence, it is held that the impugned order dated 18.10.2012 is neither illegal nor discriminatory. Resultantly, the instant appeals, being devoid of any merit, are dismissed. However, the amount of Generation Allowance, which has been paid to the appellants in pUrsuance of office order dated 16.11.2010 shall not be recovered from them as the order dated 18.10.2012 will be effective prospectively and not retrospectively.
14. Parties to bear their own costs and they also be informed.