' ABDUR RASHID (MEMBER).-Qazi Aziz Ahmad, appellant joined the Electricity Department on 1st April, 1950. In 1971 he was serving as Assistant Accountant in the Electricity Department of WAPDA. Vide WAPDA's Office Order No, 385, dated 13th April, 1971 he was appointed as a Revenue Officer on ad hoc basis pending final selection by the Selection Board.
2. Vide WAPDA Office Memorandum No, SO(R), 6(57) R & R/7874, dated 10th November, 1970 Revenue Officers Service Rules, 1970 came into force which created the Revenue Officers Service vide section 4(1) of the said Rules. Vide rule 5(3), as combined seniority list of all Junior Officers (Revenue) as required to be maintained in the Office of MD (Power) to regulate their future promotion to Senior Officers (Revenue). We do not know if this has been done.
3. The qualifications under section 7, rule (2), Schedule (B) as applicable to the promotes (and the appellant) for promotion to the post of Junior Officer (Revenue) at the time were 4 years' service as Senior Superintendent/Assistant Accountant and Bachelor's degree from any recognized university with the probationary period to be laid down.
4. Section 9(6) of the Rules ibid laid down that "no person shall be declared or be deemed to have been declared regular in his appointment unless he successfully completes such training and passes such departmental examinations as may be prescribed by the Authority as a condition to declaring him regular in his post".
5. The D.
0. No, 9642/Adm/E0B/EG-16/L, dated 8th June, 1976 of the Chief Accountant, Power (M. Y. Khan) to S. S. Aziz-ul-Hamid, General Manager (Co-ordination) WAPDA, in reply to latter's D. O. Letter No, 2694fGMC/Admn : 1/26/I (Vol-III/L, dated 2nd June, 1976 at Para. Ill) (of the D.
0. Of the Chief Accountant, Power) says : "The following Officials were selected as Junior Officers (Revenue) by the Selection Board on 8th September, 1971 :
(1) ...
' MR. Aziz Ahmad Kazi,
(2) ... ... ...
(3)
(4) ... ., ' As per record, therefore, the appellant stood appointed on regular basis when he was selected as Junior Officer (Revenue) on 8th September, 1971 (and he ceased to be employed on ad hoc basis with effect from the same date) as be fulfilled the conditions as per rules viz Bachelor's degree and 4 years' service as Assistant Accountant.
6. The appellant after his selection on regular basis on 8th September, 1971 completed his probationary period of one year.
7. Vide Office Order No, SO(R)-6(57) R & R/ 27706-806, dated 28th April 1977 the respondents amended the WAPDA (Power Wing) Revenue Officers Service Rules, 1970. Relevant portion of this amendment which was made to affect the appellant read as under ' Direct recruitment will be in Grade 16 and direct recruits will be required to pass the prescribed departmental examination after completion of the probationary period and passing of the departmental examination they may be promoted to Grade 17."
' Note (1) -The existing Revenue Officers who fail to pass the examination will be adjusted elsewhere.
'Note (2) -Existing regular Revenue Officers in Grade 17 will, however, not be required to pass the departmental examination."
' S. His departmental appeal for placement in Grade 17 having been rejected vide MD (Power) Letter No, 85045/MDP/Admn. 1/PF-1055, dated ' 8th November, 1978 because he had not passed the departmental examination, the appellant came to the Tribunal for relief on 7th December, 1978.
' The points which needed consideration by us, therefore, were,
(a) Did the appellant fulfil the qualifications for regular appointment to Junior Officer (Revenue) as laid down in his Service Rules, 1970?
(b) Was the appellant regularly appointed in accordance with the Service Rules, 1970 ? If so, when ?
(c) Could the respondents amend Revenue Officers Service Rules, 1970 through an office order and could the condition of having to pass the departmental examination be made applicable to the appellant with effect from 28th April, 1977 viz. The date of amendment of Rules ?
(d) What was the grade of pay in which the existing regular Junior Officers (Revenue) were placed prior to the introduction of National Pay Scale and what grade was given to them on or after 1st March, 1972 (the date of introduction of NPS) ?
9. We provide answers to the above questions ad seriatem :
(a) The appellant did fulfil the qualifications for regular appointment to the Post of Junior Officer (Revenue). These qualifications were Bachelor's degree and 4 years' service as Assistant Accountant.
(b) The appellant was appointed as Revenue Officer (Junior) on 8th September, 1971 on regular basis through a Selection Board. We have no doubt about it and we accept the documentary evidence as produced by the appellant (and reproduced at para. 5 above). That the Chief Engineer (Administration) Power while filing objections had to S3V "No selection papers are available to prove appellant' subsequent selection as Revenue Officer" is a sad reflection on the respondents, who do not appear to care to safeguard the interest of their officers and expect them to tend for themselves. We also find that the appellant's claim to be considered regularly appointed with effect from 13th April, 1971 (because his conversion to regular selection came as a continuum) is not well-founded. The date of his regular appointment is 8th September, 1971 in accordance with the documentary evidence made available by him.
(c) As held in the case of Government of West Pakistan v. Nasir M. Khan PLD 1965 SC 106, the terms and conditions of service could not be altered by means of executive instructions (viz. Office orders etc.) as has been done by the respondents vide Office Order dated 28th April, 1977 and quoted at para. 7 above. This could only be done through rules and if such rules were framed these could not be applied to persons already in service but would be applicable to fresh entrants. In view of the enunciation of these well-defined principles, there is no doubt in our mind that the A office Order dated 28th April, 1977 introducing the condition of examination and making it applicable to the appellant was outside the legal orbit.
(d) The grade of pay was Rs, 450-50-1000 and was equal to NPS-17.
10. The learned counsel for the respondents also admitted that the regular Junior Officers (Revenue) were in Grade-17. These very functions were being performed by the appellant even though he was not placed in Grade 17 through no fault of his. If we presume for the sake, of argument, that the appellant could not be placed in Grade 17, still he had a perfectly legitimate claim to remuneration of the said Grade 17 post while actually remaining in Grade 16 in accordance with a well settled principle of law. This principle was enunciated in the case of Abdul Karim v.
Auditor General (1) wherein it was held by the Federal Service Tribunal: "No justification exists for disallowing pay of the post held ". However, from paras. 9 (a) to (a), it is evident that the appellant was a regularly appointed Junior Officer (Revenue) with effect from 8th September, 1971 after fulfilling all the conditions necessary for the appointment. To refuse him promotion of Grade 17 was therefore, legally, untenable due to misapplication of condition of passing the departmental examination. In the case of West Pakistan Government v. Abdul Khaliq (2) it was held that when an officer was entitled to a revised grade but that grade was not allowed to him, this was regarded as terms and conditions of service for the enforcement of which a writ could be issued.
11. In view of the foregoing, we accept the appeal and order the respondents as under :-
(a) The appellant shall be deemed to be [regularly appointed as Junior Officer (Revenue) with effect from 8th September, 1971. {{FOOT NOTE}}
(1) 1980 PLC (C S) 662 (2) PLD 1970 5 C 247 {{FOOT NOTE}}
(b) His pay and allowances as applicable to the regular officers in vague at the time will be paid to him.
(e) His pay will be fixed in Grade 17 alongwith other regular officers who were so placed with effect from the introduction of National Pay Scales.
(d) Since he has retired, his arrears will be paid to him at the earlier, as per (a) to (c) above taking his increments into account.
(e) His pension will be fixed keeping in view paras. 11 (a) to (d) above.
13. No order has to costs.