' This is a joint petition by four officers of the Water and Power Development Authority (hereinafter called WAPDA) under section 6 of the Pakistan Essential Services (Maintenance) Act, 1952 (hereinafter referred to as the Act) praying for issue of directions for regulating the conditions of their service by declaring and setting aside the conditions prescribed for their promotion to higher grade posts, namely, of probation and passing departmental examination..
2. The four petitioners, namely, Muhammad Sharif, Muhammad Yamin, Ahmad Khan and Muhammad Jargis were working as Budget Examiners in WAPDA in substantive posts in Grade II to
16. During the years,. 1975-1976, certain posts of Finance Officers and Section Officers (Budget) in Grade 17 fell vacant. The Authority therefore, decided that pending regular selection to fill in these posts, the petitioners may be allowed temporarily and until further orders, to hold charge of the said posts, work as Finance Officers and Section Officers (Budget), respectively, on ad hoc basis, on existing pay of Budget Examiners plus 10% Budget special pay in the case of petitioner No. 1 and 12 1/2% of their basic pay in the case of the other petitioners. In the case of Mohammad Sharif petitioner No. 1, the Office Order appointing him to hold charge as Finance Officer Grade 17, was passed on 21st August, 1976 while Muhammad Yamin and Ahmad Khan petitioners Nos. 2 and 3, were appointed to hold charge as Section Officers (Budget) by a common office order dated 3rd February, 1975 ; and lastly, Muhammad Jargis, petitioner No. 4, was appointed to hold charge as Section Officer (Budget) by Office Order dated 1st March, 1975.
3. It may be mentioned at this stage that at that time. Regular selections and departmental promotions to higher non-Technical posts in Grade 17 in the Budget Co-ordination Division and Budget Division, (Water) were being made by a Selection Board comprising Member (Finance), Member (Water) and Member (Power) on the basis of seniority cum-fitness, in accordance with the Office Order No. S/SO (S-1) 1 (79)-BAdmn. 21385-400, dated 10th May, 1975.
4. On 8th January, 1978 WAPDA promulgated the West Pakistan WAPDA (Budget and Finance)
Section Officers Services Rules, 1977, regulating the appointments to posts of Section Officers (and by a later amendment dated 16th November, 1978 to posts of Finance Officer) by direct recruitment and departmental promotions. One-third of the vacant posts were to be filled by departmental promotions while two-thirds, by direct recruitment. The Rules however, prescribed passing a department promotion examination for departmental candidates and an entrance examination, for direct recruits. As these Rules did not cover the promotion/regularisation of the ad hoc appointments of the petitioners, who were holding charge of the posts of Finance Officer and Section Officers in Grade 17 respectively, the said Rules were amended on the 16th November, 1978, specifically to cover their cases and NOTE-I, was inserted to rule 6 (i) (a), which reads as follows :- "Note 1. In the case of existing ad hoc appointees in the office of Director (B & C), Director Finance (Power), Dy. Manager Finance (Water) and Director Finance (R & I), who were appointed before the promulgation of the said Service Rules and have worked for more than one year satisfactory service as Section Officers or Finance Officers with 8 years unblemished record of service, may be promoted on regular basis as Section Officers, or in NPS-17, from the date of their taking over the charge of the posts, subject to the condition that they shall be on probation for a period of one year extendable by another year during which they will be required to pass the prescribed departmental examination by availing of not more than 3 chances during the entire period of probation. In case of failure to clear the departmental examination within 3 chances, they will stand reverted to their original positions in the cadre of Assistants or Budget Examiners in case of non-availability of such posts, absorbed in other equivalent posts."
5. Acting thereunder. WAPDA issued Office order dated 25th November, 1978, according approval to the promotion of Muhammad Sharif petitioner No. 1 to the post of Finance Officer (Water) in Grade 17 from the date on which he took over charge of the post on ad hoc basis. But the promotion was subject to the following two conditions, namely :-
(i) that he will be on probation from the date of issue of this order for a period of one year extendable by another year, if necessary; and
(ii) that during the probationary period they will have to pass departmental examination prescribed for promotion to Grade-17 posts of Budget, Finance and Accounts Officers by availing of not more than three chances failing which they will stand reverted to their original positions of Budget Examiners or Assistants according to the availability of suitable vacancies in such posts.
' Identical office orders dated 27th December, 1978 were issued according approval to the promotions of the remaining three petitioners subject to the same two preconditions.
6. The petitioners feeling aggrieved by the imposition of the said pre-conditions for their regular promotions, filed representations, but the representations were rejected and the petitioners were accordingly informed. The petitioners, therefore, filed the present petition on 13th January, 1981.
7. Respondent WAPDA submitted a written statement resisting the petition as well as raised several preliminary objections to its maintainability. These will be discussed first before going into the merits of the case.
8. The first objection raised by Mr. Muhammad Zaman Qureshi learned counsel for the WAPDA was that the petitioners were admittedly working as Finance Officer and Section Officers (Budget) respectively, in the Finance Wing of WAPDA at its Head Office in Lahore and were not employed in "connection with the general, transmission distribution or supply of electricity "covered by the Notification No. S.R.O. 1218(1)180 dated 2nd December, 1980, issued by the Federal Government under section 3 (1) of the Pakistan Essential Services (Maintenance) Act, 1952. Mr. Khalid Farooq for the petitioners however, referred to another Notification No. S.R.Q,1138) 80,dated 12th November, 1980, which declared "all classes of employment under the WAPDA and Tarbela Dam Consultants
(TAMS) working on Tarbela Dam Project, to be employment to which the said Act shall apply".
However, this notification appears to cover the cases of contractors working under" WAPDA on the Tarbela Dam Project and not to the WAPDA employees themselves. A similar objection was raised in the case of Ch. Abdul Shakoor v. Water and Power Development Authority (1). The learned previous Chairman, rejected the objection, holding that the preceding Notification dated 4th June, 1979 (of which the present Notification dated 2nd December, 1980 is an extension), applied to all employees of WAPDA and this was also clarified by the Ministry of Water and Power in their letter No. WB. I. (19/71/WAPDA, dated 18th May, 1977 addressed to Mr. Amanullah Khan, Secretary WAPDA which was based on the opinion of the Law Division. I therefore, see no reason to take a different view.
9. The next objection raised by Mr. Qureshi was that the petitions were barred by time under the Directions issued by the Commission as published in the Gazette of Pakistan Extraordinary, dated 27th January, 1979, which prescribed period of two months for bringing an individual grievance in respect of any right guaranteed to him by or under any law, settlement or award for adjudication to the notice of the Chairman, as (1) 1980 PLC 529 Specified Authority under the said Act. This objection has no force for several reasons. In the first place, the present petition is not a petition for redress of any individual grievance or for enforcement of any right guaranteed to him by or under any law, settlement or award. But is a petition by a number of persons for regulating their_common conditions,/u> of service under section 6(1) of the said Act, with regard to their promotions to higher grades by imposing the alleged illegal pre-conditions. In any case, the petition was filed within two months from the receipt of intimation rejecting their representation.
Moreover, the Chairman has discretion to condone delay for good cause shown which exists in the circumstances of the case, in accordance with the second proviso to aforementioned Directions.
10. The third objection raised by Mr. Qureshi was that the petitioners were Civil Servants within the meaning of the Civil Servants Act, 1973, and therefore, the Service Tribunal had exclusive jurisdiction under Article 212(2) of the Constitution of Pakistan (1973). This point was also considered at length in Ch. Abdul Shakoor's case referred to above, wherein the objection was overruled, and it was held that the said constitutional bar applied to Courts of general jurisdiction and did not apply to Special Courts and Tribunals, like the Specified Authority in_ the present case.
11. On merits the main contention raised by Mr. Khalid Farooq for the petitioners was that prior to promulgation of the new West Pakistan. WAPDA (Budget & Finance) Section Officers Service Rules, 1977, on 8th January, 1978 as amended on 16th November, 1978, the rules which were applicable to the petitioners were those contained in Office Order No. S./S.O./E. I (I)/790/B-Amn./21385-400, dated 10th May, 1975, according to which, the petitioners were eligible for promotion to the posts in question in grade-17 on the basis of their seniority and fitness on the recommendations of a Selection Board, comprising Member (Finance), Member (Water) and Member (Power) without being required to pass any departmental promotion examination. That, in fact, among other persons, Muhammad Aslam, Assistant, Finance Division (Water) who was appointed on ad hoc basis in 1974 to hold charge of the post of Finance Officer in Grade-17, was promoted to the said post on the recommendations of the Selection Board, comprising the said three Members, by office order dated 18th December, 1975. The case of the petitioners was no different from that of Mohammad Aslam and it was admitted by Mr. Zaman Qureshi in his parawise comments on the petition, that his promotion was approved in December, 1975 according to the rules then in force, namely the rules dated 10th May, 1975, above-mentioned, whereas according to him, the case of the petitioners has to be governed by the Note-I of rule 6 (i) (a) of the Rules made on 16th November, 1978. I am not inclined to accept this submission of Mr. Qureshi as it appears to me inequitable and unfair that the promotion of the petitioners should be prejudiced to their disadvantage by making of new rules specifically to cover their cases an t at too with retrospective effect. Admittedly, the petitioners who have been holding charge of these posts, have been in service for a number of years, even though on ad hoc basis. They were approved for promotion as their service record was no doubt found satisfactory. In fact, the approval to their promotion was to take effect from the date when they took over charge of the posts on ad hoc basis. It cannot, therefore, be understood why the petitioners should still be treated as on probation for one year extendable by another year and be compelled to pass a departmental promotion examination to assess their fitness for the post, which they have been holding for a number of years opportunity for assessing their suitability for promotions.
12. It is not necessary to decide on the validity of the amendment contained in Note 4, of the new service rules made on 16th November, 1978, in so far as it changed the conditions of service of the petitioners to their prejudice with retrospective effect. The jurisdiction of the Specified Authority under section 6(1) of the said Act is wide and enables. It to modify any terms and condition of service of persons engaged in employment to which the said Act applies, should it be found necessary, in the interest of justice and equity.
13. For the foregoing reasons, I issue directions that the conditions of probation and passing of departmental promotion examination as pre-condition prescribed for the promotion of the petitioners in the office orders dated 25th November, 1978, and 27th December, 1978, respectively are set aside. The petitioners may be considered for regular promotion to the posts which they have been holding in accordance with the rules existing as on 10th May, 1975.