ABDUR RASHID (MEMBER).-The appellant joined Tarbela Dam Project WAPDA Branch Office at Lahore as a junior clerk on 27-8-1959. After the abolition of the said office, the appellant was posted to the Head Office of Development and Co-ordination Division WAPDA at Lahore w.e.f. 6-10-1961 and was attached with the Liaison Officer Again, the post of the Liaison Officer was abolished and the appellant transferred to the Indus Basin Project where he was placed at the bottom of the Seniority List. From there he was transferred to the Railways Co-ordination and Transportation Directorate which was part of the Head Office. Later on, the appellant was transferred to various other offices of the WAPDA from time to time which need not concern us for this appeal.
2. On 4-6-1963, one Naeem Pervez (respondent No. 3), who was junior to the appellant. Was promoted as senior assistant (i.e. Senior clerk). This was followed by promotion of- three more juniors viz. Zargone Shah, Mirza Zamir Hussain and Abdul Khaliq who were promoted vide Office Order dated 17-12-1965. The appellant preferred departmental representations against his supersession. This he did between 27th August, 1964 and 21st October, 1965. Apparently, these representations were directed against the promotion of Naeem Pervez only. The appellant received no reply and the matter ended there.
3. In May, 1972, a seniority list of Assistants and Stenographers (Head Office) was circulated. In this list, the appellant was placed at serial 106. His promotion date as Assistant was 25-2-1967. He preferred an appeal on 1-7-1972 for re-fixation of his seniority keeping in view his service in various offices from time to time. As a consequence, the seniority of the appellant was refixed vide WAPDA Admn. Directorate (Water) letter No. W-Admn. SL-ll72-EI/5395 dated 1r-11-1975 addressed to the Chief Engineer P & 1, WAPDA, Lahore, which is reproduced and to which we shall refer to more than once "Subject : Refixation of Seniority of Mr. Muhammad Akram, Assistant.
Reference correspondence resting vide your office endorsement No. W-Admn. (P & 1) PF- 5/70,/3460, dated 10-4-1975.
The representation of the abovenamed official has been considered.
It has been decided that his seniority in the capacity of junior assis--tant (junior clerk) would reckon w.e.f. 6-10-1961. His seniority as Assistant will also be determined from the date his immediate juniors in Head Office Cadre (the then D and C Division) were promoted.
(Sd.) (M:A. Afridi)
Assistant Director (E-1) for G.M. (A & C) W, WAPDA, Lahore."
4. On 24-2-1976,, the appellant represented against the above-quoted letter on the ground that his seniority as junior clerk be reckoned in Head Office Cadre from 27-8-1959, the date he joined- WAPDA and that his seniority as Assistant be refixed prior to 4-6-1963, the date on which his junior, Naeem Pervez, was promoted as Assistant. This plea of the appellant was turned down vide WAPDA Letter No. W-Admn-SL-/72-FI/4106, dated 7-9-1976 addressed to the Chief Engineer (P & 1), WAPDA House, Lahore and is reproduced.
"It is regretted that the request of Mr. Muhammad Akram, Assistant for refization of his seniority as Junior Clerk with effect from 27-8-1959 in Head Office Cadre cannot be acceded to.
(Sd.) (M.A. Afridi), Assistant Director (E-I) for Member (Water), WAPDA, Lahore."
5. On receipt of the above letter, which is impugned and which was communicated to the appellant on 18-9-1976, he filed his appeal before the Federal Service Tribunal on 18-10-1976 which is considered in time as against the objection of the respondents Nos. 1 and 2 which we repel in view of the Tribunal's Order already passed on 24-4-1979. Prior to our final hearing, the appeal was heard on various dates. Vide interim order dated 24-2-1980, the Tribunal allowed the appellant to file an amended appeal, including the seniority list of senior and junior Superintendents, who had been promoted over the head of the appellant and against whom he claimed seniority. The appellant filed his amended appeal on 17-10-1981. The - nub of his present appeal is that his seniority should reckon from 27-8-1959 and not 6-10-1961 and that his promotion as Assistant be ante--dated before 4-6-1963, the date on which his junior, Naeem Pervez, was promoted and that since the appellant was omitted from consideration at the relevant time viz. Before Naeem Pervez, this illegal omission that has made respondents 3 and 7 to 90 senior to the appellant be rectified.
6. We heard at length the learned counsel for the two sides. During the course of his arguments before us, the learned counsel for the appellant drew our attention to Annexure-I of the appeal which is an extract of Rule 9 "Seniority" for WAPDA Head Office Ministerial Service Rules 1966. We do not think that by relying on this rule the appellant can claim seniority in the Head Office Cadre for the period he remained in the Tarbela Dam Project between 27-8-1959 and 5-10-1961. We do know that there are two separate seniority lists viz. Head Office Cadre and Project Staff Cadre that are being kept. The learned counsel for the WAPDA said that in accordance with section 18 of WAPDA Act, 1958, terms and conditions of the employees were to be laid down. However, in the absence of such rules at the relevant time and because of WAPDA's nascency, various other rules held away. In this connection, we have carefully gone through the Punjab P.W.D. (Irrigation Branch) Provincial and Circle Cadres Clerical Service Rules, 1941, WAPDA Office Order dated 2nd September, 1961, Rules for the Maintenance of Seniority of Staff Equivalent to Class III and IV of Government Department dated 12-6-1963 (which appear to have been, partly, based on Punjab P.W.D. Rules, 1941), the West Pakistan WAPDA (Head Office) Ministerial Services Rules. 1966 and the Pakistan WAPDA (Water Wing Projects) Ministerial Service Rules 1976. Tide 12-6-1963 Rules, there were WASID, G.W. And R. D., D and C LB.P Divisions of WAPDA where the seniority of the ministerial staff was to be maintained on divisional basis. The appellant has assailed these Rules but we think otherwise and hold them to be valid. It is apparent that once the Branch Office Tarbela Dam Project (where the appellant had been appointed on 27-8-1959 as Junior Clerk) had been abolished he was posted out. Where he was actually posted to is not quite clear and this confusion needs to be removed before proceeding further. According to the appellant, he was transferred to the D and C Division.
However, according to the respondents written reply, he was transferred to the Chief Engineer (Water) Head Officer, Lahore where he remained from 6-10-1961 to 7-4-1962. From there he was transferred to the Liaison office LB.P. Head Office, Lahore on 8-4-1962 where he remained in the Head Office Cadre (the then D and C Division) till he was given this privilege vide WAPDA letter dated 11-11-1975 (para. 3) and that right up to 30-6-1969 he remained with the I.B.P. Division. At the relevant time viz. 4-6-1963, Naeem Pervez was working in the D and C Division whereas the appellant was in the I.B.P. Division with his seniority in the said Division. The two had their own respective seniorities in two separate Division for promotion to the next higher grade and there was no clash between them. There is, therefore, no merit in appellant's claim over Naeem Pervez (respondent No. 3). Apart from this, too, we do not think the appellant has, legally Peaking, any valid ease either against Naeem Pervez or against Zargone Shah, Mirza Zamir Hussain and Abdul Khaliq.
Naeem Pervez and the three others, just named, were promoted respectively on 4-6-1963 and 17- 12-1965. The appellant kept on protesting against the promotion of Naeem Parvez but not against the promotion of others three: He did not get any reply to his representations. He could have if he thought he had been wronged, taken a recourse to legal proceedings in a Court of law, which he did not. We are not, therefore, in a position to do any thing for the appellant at this grossly belated stage in so far as his case against Naeem is concerned or for that matter the others three.
7. As to the claim of appellant's seniority from 27-8-1959, it is not without merit. Once the Tarbela Dam Project Office had closed down, the WAPDA had certain options. First, to terminate his service, second to re-appoint him afresh and third, to transfer him to another office. First and second options were not exercised. It was third option which was exercised meaning thereby that the WAPDA did need the services of the appellant. Since there was nothing to show from the respondents that the appellant was posted in the Head Office Cadre at his request, his seniority from 27-8-1959 shall remain intact. This is in accordance with the accepted principle of seniority of the ministerial services despite any rules which the WAPDA may have followed.
8. The case of the appellant for seniority from 27-8-1959 is also supported by WAPDA letter dated 14-9-1960 which is reproduced: "Subject : Fixation of pay of Staff transferred to Head Office from Projects.
The Authority has been pleased to direct that the pay of staff trans--ferred to Head Office from Projects, should be fixed in the corres--ponding Consolidated Scales of Pay sanctioned for Head Office, in accordance with the general principles followed by Government, and increments granted under, the normal rules.
(Sd.) P. A. O. 'BRIEN, Secretary, Water and Power Development Authority, West Pakistan."
No sooner, the appellant was transferred to the Head Office Cadre w.e.f. 6-10-1961, his pay was fixed according to the above letter clearly indicat--ing that this was a case of transfer at the behest of and in the interest of the WAPDA which entitled him to his seniority with effect from 27-8-1959.
9. The Ministerial Service (Head Office) Rules introduced in 1966 which became applicable to the appellant, constituted the Service as having two branches viz. Clerical Branch and Stenographic Branch. Section 9 (1) (b) dealing with seniority is relevant for our purpose and is reproduced below : `(1) The seniority inter se of the members of the Service in the various grades thereof shall be determined
(a) ... ........
(b) In the case of members appointed otherwise with reference to the date of their continuous appointment therein ; The appellant's continuous appointment in the above Cadre shall be taken to be from 27-8-1959 for the reasons outlined at para. 7 above and there can be no doubt about it.
10. The above analysis brings us to the conclusion that the appellant's case for seniority which he claims from 27-8-1959 is a strong one. His claim to this effect is, therefore, accepted and his seniority in the Head Office Cadre shall be refixed as from 27-8-1959 instead of 6-10-1961.
11. Once again, we advert to the WAPDA letter dated 11-11-1975 (para. 3). According to the said letter, the seniority of the appellant as Junior Assistant (Junior Clerk) was to reckon w.e .f. 8-10-1961 which we set aside and refix as 27-8-1959. However in this connection of seniority and consideration for promotion as to the appellant, a very impor--tant stipulation in the WAPDA letter of 11-11-1975 read; "His seniority as Assistant will also be determined from the date his immediate juniors in Head Office Cadre (the then D and C Division) were promoted." ,
12. Keeping the above quotation in mind, we now advert to the appellant's claim of seniority over respondents 4 to 90. The learned counsel for the appellant conceded that respondents 4 to 6 were already senior to the appellant. This left respondents 7 to 90 of whom respondent No. 13 is already dead. Of the remaining respondents No. 7, 14 to 20, 23, 25, 28 to 31, 35, 38, 40, 41 to 49, 51, 52 and 54, 55 to 71 and 73 to 90 have not filed any replies despite service. They were also not represented before us even though some of them may have been present in the Court room, This order shall be ex parte against them who total 49.
13. The remaining respondents have filed replies. We have already dealt with the case of respondent No. 3 (Naeem Pervez) and three others and rejected the appellants claim.
14. As to the other respondents (who have filed their replies) viz. ; 8, 9, 10, 26, 27, 36, 37, 50, 53, and 72, they are all senior to the appellant. Respondents Nos. 33 and 39 happen to be junior to the appellant. However, they claim to belong to the Project Staff Cadre against whom the appellant's claim (who is in the Head Office Cadre) needs to be looked into. The learned counsel for the appellant brought to our notice that the case of F. R. Siddiqi (respondent No. 50) was identical to that of the appellant. However, we have found that this is not so and moreover F. R. Siddiqi is far senior to the appellant. The similarity may, of course, have been in the fact that F. R. Siddiqi has been wrongly superseded by those far junior to him.
15. Respondents Nos. 11, 12, 21, 22, 24, 32 and 34 have filed a com--bined reply but have said nothing except that they were promoted as per rules which is of course, obvious but it is of no help to us because they have disclosed nothing.
16. Since the appellant has been given seniority with effect from 6-10-1961 in the Head Office Ministerial Cadre vide WAPDA letter dated 11-11-1975 and which we have refixed to be 27-8-1959, we would direct that the WAPDA should go through the list of all such respondents who have not filed their written replies before us including those, mentioned at para. 15, but excluding those whom we have clearly held either senior to the appellant or not competing with him due to being in Project Staff, to determine the seniority. Of the appellant as Assistant with effect from the date his immediate junior in the Head Office Cadre (constituted vide 1966 Rules) was promoted. To do this we shall keep the date of appellant's promotion to the grade of Assistant to be 25-2-1967 as at present. If any one Junior in the combined Clerical/Stenographic Cadre of Head Office to the appellant has been promoted over him. Without his having been considered, then he (appellant), too, shall be considered from the same date and if found fit shall be promoted before his immediate junior. We are passing this order without prejudice to the right of the appellant to be considered in November, 1983 for the senior time scale Assistant (N P.S. 14) as communicated to as vide WAPDA letter dated 9-3-1983.
17. Ordered accordingly with no costs.