' MUHAMMAD IRSHAD KHAN (MEMBER).-Facts of the case are that the appellant graduated as an Electrical Engineer in the year 1965. Immediately, thereafter, he was issued a call up notice, dated 23rd November, 1965 under the Compulsory Service (Armed Forces) Rules 1965, whereunder, he was directed to report to G. H. Q. The appellant was conscripted for service in the Army and belonged to the first batch of such conscripts. He continued serving in the Army and, thereafter, on release, took up appointment with WAPDA as junior engineer, vide etter, dated 24th August, 1970.
While in WAPDA, he was called up for lmilitary service in 1971 from where he was ultimately relieved in 1975.
2. The WAPDA in their meeting held on 23rd July, 1977, dealt with the fixation of seniority of Army officers in the Engineering cadre of Power Wing. The decision, as released vide U.
0. No, SO (Admn.) 2 (154)MTG Vol-II/56265-71, dated 3rd August, 1977 read as under : "(a) The period of satisfactory service rendered by any Engineering Officer in Army in commissioned rank before joining Power Wing WADPA may be counted towards seniority under the provisions of rule 5 (2) (b) of the West Pakistan WAPDA Service of Electrical Engineers Rules, 1965 read with para. 4 of Authority's decision contained in this office U. O. No, KGA1/1/66-Secretary, dated 27th June, 1977.
(b) Past cases may be examined in the light of the above decision and seniority fixed accordingly.
In future the seniority of such persons will be fixed at the time of recruitment."
3. The above decision of the Authority was given effect to in respect of the appellant vide Office Order, dated 16th October, 1978 which is reproduced.
"Office Order-In pursuance of Authority's decision taken in its meeting held on 23rd July, 1978, the Chief Engineer (Admn.) Power is pleased to refix the seniority of Captain Nazir Hussain now working as Assistant Director under Chief Engineer, Planning, and the cadre of Junior Engineers, with effect from 6th November, 1966, taking into account satisfactory service rendered by him in Army, in commissioned rank before joining Power Wing WAPDA. His name will now appear at Serial No, 142/A, between Mian Muhammad Rafiq Serial No, 142 and Mr. Muhammad Irfan Akhtar, Serial No, 143 of the Seniority List of Junior Engineers (Electrical) Power Wing as it published on 10th January, 1976."
4. The above Office Order was amended vide corrigendum No, 12/ MDP/Admn-H/G-95, dated 22nd January, 1979 which is, also, reproduced :- "The Chief Engineer Admn. (Power) is pleased to refix the seniority of Captain Nazir Hussain in the cadre of Junior Engineer with effect from 13th December, 1965 i. e. At Serial No, 101/A in between Serial No, 101 and 102 instead of Serial No, 142/A as mentioned in this office order No, 196/MDP/ Admn-II/G-95, dated 16th October, 1978."
The issue of fixation of seniority of the appellant stood settled. However, in the 226th Meeting of WAPDA held on 7th August, 1979 decision No, 6, relating to the fixation of seniority of Army Officers on appointment in engineering cadre of Power Wing WAPDA was taken which read as under : It was decided that the officer would be given seniority in
5. WAPDA in case his services were requisitioned by the Army."
6. Based on the above decision, Office Order, dated 5th November, 1979 was issued which is reproduced : "Office Order-The matter regarding fixation of seniority of Army Officers on appointment in the Engineering cadre of Power Wing vis-a-vis the decision taken at its meeting held on 23rd July, 1977 has been reconsidered by the Authority and it has been decided that only those officers would be given seniority in WAPDA whose services were requisitioned by the Army. Since Mr. Nazir Hussain's services were not requisitioned by the Army for which he was allowed benefit of Army service vide this Office Order No, 196/MDP/Admn-II/G-95, dated 16th October, 1978, read with Corrigendum No, 12/MDP/Admn-II/ G-95, dated 22nd January, 1979, the orders are hereby withdrawn and may be considered, as cancelled."
7. The appellant who was adversely effected due to reversal of his seniority, preferred an appeal to the Chairman WAPDA on 18th November, 1979 and claimed his seniority for the Army service for which he had been conscripted without being given a choice to join any other service. As a result, the WAPDA sought guidance from the Secretary, Ministry of Water and Power vide their letter, dated 26th October, 1980 which, being pertinent, is reproduced : "Subject-Fixation of Seniority of Army Officers (Conscripted for Army Service under the Defence Ordinance of Pakistan, 1965) on appointment in Engineering cadre of Power Wing of WAPDA.
' Sir, ' Captian Nazir Hussain (Res.) Deputy Director, Planning Power, WAPDA has represented that his service in the Army before joining WAPDA may be counted towards seniority as he was conscripted for Army service in the national emergency of 1965.
2. Captain Nazir Hussain having graduated as Electrical Engineer in 1965 could not join WAPDA, because Federal Government had directed all civilian employers that only such fresh engineering graduates may be employed by them who were either surplus to the army's requirement or were not acceptable to the Army. Captain Nazir Hussain served in the Army for nearly five years and was released in 1970. On joining WAPDA in 1970 he was allowed advance increments equal to the service rendered by him in the Army but was not given benefit of this service for fixation of seniority.
3. It may be mentioned that while the Government through an amendment in the Compulsory Service (Armed Forces) Ordinance had decided that all medical graduates rendering two years satisfactory service in the Armed Forces will be given the benefit of seniority on employment in Federal as well as Provincial Governments; no such instructions are available for engineering graduates who had been conscripted by the Army in 1965 emergency directly before being employed by any civil agency. It will be appreciated if the Government instructions for dealing with the cases of engineering graduates like that Captain Nazir Hussain may be forwarded to us if available for guidance and further necessary action."
8. The above letter of the WAPDA was replied vide Ministry of Water and Power letter, dated 7th June, 1981, where in according to the Ministry of Defence (to whom the case was apparently referred), said that only conscripted doctors inducted during war under the "Compulsory Service in the Armed Force Ordinance, 1971 were allowed the benefit of counting their previous army service in the civil departments. The case of Mr. Nazir Hussain is much older and pertains to induction during the 1965 War. It is, therefore, regretted that his request for counting the service rendered in the Army during 1965 War cannot be acceded to." On further representation by the appellant, he received the following letter dated 18th November, 1982 from WAPDA, which is impugned : "The case has again been examined in consultation with Law Division and the decision already conveyed to you vide holds good."
Thereafter, the appellant filed his appeal before the Federal Service Tribunal, in time, on 18th December, 1982. On direction from the Tribunal, the appellant filed an amended file on 6th August, 1983, impleading respondent officials from Serial No, 4 to 261, shown in the amended appeal, over whom he claimed seniority.
9. We heard the learned counsel from both sides. There are two main issues in the appeal which need to be resolved. First, whether or not the appellant who had been conscripted by the Army under the Compulsory Service (Armed Forces) Ordinance, 1965 had a choice of joining any other service when he had been actually conscripted vide Call up notice dated 23rd November, 1965. We have no doubt that the appellant had no option but to join the Army. If he had not done so, he would have suffered penalties under section 10 (I) of the said Ordinance and this was made clear in para. 4 of the Call up notice. He would have had a choice of joining any other service, if he had been found medically unfit. For the Ministry of Defence to rule that the conscripts governed by the Compulsory Service in the Armed Forces Ordinance, 1971, could be allowed benefit of seniority and NOT those of 1965 because "the case of Mr. Nazir Hussain is much older and pertains to induction during the 1965 War" appears to be not only strange but is also misconceived. The appellant would, therefore, be entitled to the seniority for the Army service rendered during 1965 War just as it has been allowed for 1971 War because in both the wars the conscription was resorted to under similar conditions and Ordinances. Our conclusion, therefore, is that service rendered in National Cause, as a result of conscription, Cannot be allowed to go waste for purposes o seniority.
(Underlining is ours)
10. The other issue is whether, after allowing the appellant due seniority for 1965 War service, such seniority could be rescinded on the basis of a subsequent decision taken on 7th August, 1979 (para. 5). The learned counsel for the respondents urged before us that the appellant could have been given seniority for 1965 War service if he had already been a WAPDA employee and that his service had been requisitioned by the Army. Thereafter, the appellant, on reversion to the WAPDA [Here in italics] ' could claim seniority for the service render by him in the Army, argued the learned counsel. If we were to give this interpretation to the decision (dated 7th August, 1979) as advocated, then the said decision would cease to be relevant and should not have been taken, at all. We say this in relation to the case of the appellant. As is admitted, he was recalled to the Army during 1971 War. He was released for reversion to the WAPDA in 1975. Thereafter, his seniority for service between 1971-75 was never questioned. It was allowed him as of right and as a matter of course without his petitions and applications. The decision dated 7th August, 1979, therefore, could not have been designed for such cases which were settled issue and, hence not applicable to WAPDA employees, whose services were requisitioned by the Army. This decision was, obviously, intended to resolve an issue which was still in dispute and that issue was none other than the counting of former Army Service for purposes of seniority Before joining WAPDA. The word "requisitioned" used in the said decision has been used in the same meaning as the words 'conscripted' or 'conscription'. Such' being the case, we do not know why the issues of appellant's seniority, which had been allowed him and which was a chapter past and closed should, at all, have been reopened. All that the decision of 7th August, 1979 read with that of 3rd August, 1977 is saying by way of elaboration or clarification; is that those who had been conscripted (requisitioned) by the Army would be allowed seniority but those who had not been so conscripted but had joined the Army voluntarily and had come to WAPDA after release, would not be, and this decision is to be read together with that of 3rd August, 1977, which it does not negate. Even standing alone the latter decision is crystal clear and it does not lend itself to any interpretation other than the one we have given it. The appellant fell in the category of those who had been conscripted and as such he was entitled to claim seniority for the service rendered in the' Army and before joining the WAPDA which seniority he had been rightly allowed earlier on and wrongly deprived of later on.
11. In view of the foregoing analysis, we accept' the appeal and order that the seniority allowed to the appellant vide Office Order dated 16th October, 1978 as amended by corrigendum, dated 22nd January, 1979 would be restored to him as of right and his position in the relevant seniority list fixed accordingly.
12. While passing this order we have taken into consideration the objections filed by respondents Nos, 1 and 2 and respondent officials Nos, 4, 6, 10, 75, 108, 158, 171, 174, 220, 224, 231, 244, 245 and 257.
We also heard some, of the respondent officials at the bar. Others, who were neither represented before us nor did they file any written objections, were proceeded against ex parte.
13. No order as to costs.