' BRIG. (Ram) ABDUR RASHID (MEMBER).-The appellant joined service WAPDA's as Assistant on 8th September, 1961. Further promotions followed and on 1st June, 1977 he was appointed as Junior Officer (Admn.) in Grade 16.
2. On 30th January, 1980 the Authority introduced WAPDA Common Cadre Administrative Posts Service Rules, 1980 (hereinafter to be referred to as the 1980 Rules). The Common Cadre, as defined in rule 3 (d), meant administrative posts in Grade 17 and above relating to Water and Power Wings of the Authority.
3. The appellant opted for the 1980 Rules and was promoted to Grade 17 as Assistant Director.
Before he actually exercised the option, he was entitled to be promoted direct from the appointment of Junior Officer (Administration) Grade 16 to the post of Deputy Director (Grade 18) by virtue of para. 2 (a) of column 4, which reads : " By promotion out of serving officers Section Officers/Junior Officers (Administration) with five years' service as such on seniority-cumfitness basis. Or
4. The 1980 Rules were amended vide 0. M. Dated the 8th April, and 22nd May, 1982. The 1982 amendments, relevant for the purpose of this appeal, laid down the following fresh criteria in supersession of that of 1980 Rules (reproduced above) for promotion to the post of Deputy Director :
(a) Seniotity-cum-fitness basis out of the holders of Assistant Directors' posts who are graduates with five years' service as Assistant Director/Section Officer/Junior Officer (Administration).
(b) Required to pass a departmental promotion examination within three years of their promotion or promulgation of the amendment dated 8th April, 1982. In case of failure to pass the examination, not only that the further increments were to stop, those not being able to qualify were also not to be considered for such promotion. The explanatory note says : The official who may have failed to pass within three years and suffered the penalty of stoppage of increments, shall be considered entitled to the rate of pay which would have been admissible to him but for his failure to qualify. The Authority reserved the right to grant a delinquent his increments if he could explain that passing of examination was beyond his control.
5. The appellant who was hard hit by the above amendments, preferred a departmental appeal which was rejected vide letter dated 23rd October, 1982 whereafter he came up in appeal before the Federal Service Tribunal on 22nd November, 1982.
6. We heard the learned counsel from both sides. The relevant record made available to us by WAPDA was also perused.
7. There is no force in the argument of the learned counsel for the appellant that the 1980 Rules have been amended retrospectively. The amendments are prospective and have been made effective from the date of promulgation, which in this case would be presumed to be the date of issue, or from a future date of applicability, to be specified.
8. We do not, also, see anything wrong in the introduction of the departmental promotion examination. If anything, it would enhance general efficiency and professional competence. Good results would, doubtlessly, follow after a few years of overcoming the teething troubles.
9. To begin with, we analyse the impact of examination on the appellant or his future career (and the others like him). On 1st June, 1977 he was promoted Junior Officer (Administration) in Grade 16.
We do not know the date on which he was promoted Assistant Director (Administration) in Grade 17 but knowing that the 1980 Rules were introduced on 30th January, 1980 and six months' period was given for exercising option, he may have been promoted, as such, some time in June, 1980, or earlier. He has now put in over three years of service as Assistant Director (Administration). When the amendments of April and May, 1982 were introduced, he had two years of service. Then followed the litigation which brought him to the Tribunal. At the time of writing he has over three years of service in his present appointment. Since the matter became sub judice, no promotion examination was held. Presuming, that the system of examination would be operative six months from now (at the earliest as we see it) and presuming further that the appellant takes the maximum period of three years to pass the examination as and when held, six months hence and thereafter, he would go into the seventh year of his service as Assistant Director. He was eligible to be considered for promotion to the Deputy Director's post after five years on the basis of 1980 Rules but 1982 amendments are, thus, to his serious disadvantage. It would, palpably, not be fair to penalise him further by inflicting on him the burden of qualifying the departmental promotion examination for consideration to the next promotion. Linked with this situation is the age factor as well as fear of failure to pass the examination within three years with stoppage of increments. We presume the age of the appellant to be 50 when he was promoted Assistant Director in mid 1980.
By the time he passes the examination, he would have seven years of service as Assistant Director, 57 years of age and only three years utility as Deputy Director before retirement, if he is lucky enough to be promoted. There may be cases where an official may have been appointed Assistant Director at the age of 55. He is required to pass the examination within three years but he would be considered for promotion to the post of Deputy Director after gaining five years' service experience as Assistant Director, as per amendments. This would take him to the age of superannuation. He would, therefore, retire as Assistant Director, the appointment he is holding despite qualifying the examination. So, where is the incentive or logic for such an official to pass his examination ? If, on the other hand, he does not do so within three years, his future increments would be stopped. Does it mean that this poor official, who is no longer young with attendant consequences and impediments must pass the examination only to earn his increments which are legally part of his pay and rightfully his ? If this be so and it seems to be so, then the promotion examinations are no more promotion examinations but degenerate into "increments examinations" which have never been heard of .
10. There would be cases where an Assistant Director has passed the examination within three years but he has to wait till he completes five years' service to be considered for the post of Deputy Director because the rules say so. We, therefore, find that after the promotion examination has been introduced, which, one is expected to pass within three years, the requirement of five years' service would cease to be meaningful. It must be brought down to three years to harmonize with the maximum limit of passing the examination apart from the consideration that three years are long enough as Assistant Director to deserve consideration for the next rank.
11. Now the financial and other implications. The non-passage of examination within three years, would result in stoppage of increments in the fourth year and thereafter. But as we understand it, if someone passes the examination in the fourth year he would have his pay restored according to his entitlement of the said year as laid down in the April, 1982 amendment. Whereas this may be so, the affected person would still have suffered a financial loss which, we are sure, would not be the intention of the Authority. Assuming for a moment that the amendment with regard to the departmental promotion examination had been given effect to and the first such examination was held in 1983. The limit to clear the examination within three years would end in 1985 but before 1st December, 1985 when the increments become due and are drawn in January of the next year (1986), a certain Mr. X failed to qualify within three years when his pay was Rs, 1,960. The increment of Rs, 120 p.m. Which fell due on 1st December, 1985 was stopped. He qualified on 1st July, 1986.
Whereas his pay on 1st July, 1986 would be restored to Rs, 2,080. In actual fact, he would have lost Rs, 720 even after restoration of his pay. What about his loss of Rs, 120 p.m. He would be suffering for withheld increments recurring from January to June, 1986. By this formula, even those who qualify subsequently (but outside three years limit) would still be subjected to financial penalty. An official is entitled to the pay for the work. We do not, therefore, see any legal basis for depriving him of his remuneration when he is doing his work whole-time.
12. There would crop up administrative problems like pay fixations and refixations of those who qualify after three years. There would be some who would simply fail to qualify causing them a permanent financial loss not only in pay, but also in pension. They would, naturally, have no interest left in service and would become a liability and a drag. We should also not forget that there would be no dearth of medical certificates and other excuses by way of justification to earn increments (through Authority's permission as is laid down) after, failure to qualify the examination. This would mushroom inevitably into lies and half-truths, which we should help avoid, while we can.
13. From the foregoing cursory analysis, we are led to believe that the matters would become somewhat complicated, forcing WAPDA, themselves, to reconsider this part of the amendment which is, inherently, self-defeating.
14. The next issue we take up is that of the change in academic qualifications. To expect someone, who joined as matriculate and rose to be Assistant Director, that he should also pass his B.A.
Examination in addition to the promotion examination, is to expect too much. The promotees, generally, reach these ranks toward the fag end of their service. They have enough experience and professional excellence without being graduates. No doubt; the academic qualifications have their place but it would be unjust to deprive the promotees of further chances for want of academic qualifications alone. If their record is of an acceptable standard and they have passed the promotion examination, this should suffice.
15. To conclude, we would say that even minor changes introduced in an institutional framework, without serious study/analysis can boomerang and the 1982 amendments are, by no means minor.
They are major changes. They needed critical analysis of implications and effects by an in-depth study. This imperative study, it appears, has not been carried out and the amendments issued in an off-handed manner. It would be observed that in projected scheme, the factors like age, education, minimum experience for promotion, passing of examination and penalty for failure, future utility, pay, pension etc. Are so intimately linked that they cannot be considered in isolation of one another and if it is so done, then the result is before us. ,,.
16. The Authority is competent, under section 18 of the WAPDA Act, 1958 to frame such rules relating to terms and conditions as they deem appropriate. Section 18 notwithstanding, the WAPDA do not possess unfettered powers to frame rules which are not appropriate and which alter the existing terms and conditions to the disadvantage of employees. This is a settled principle of law and WAPDA are no exception to it.
17. We do not see anything against the proposed system of departmental promotion examination provided it is introduced after allowing lead period of about two years up to 31st October, 1985 to be utilized, pre- D paratory to the examination and advanced warning so that the first such examination takes place on or about the said date. Between now and 31s October, 1985 the existing system of promotion on seniority-cum-fitness shall prevail.
18. We hold the introduction of academic qualification of graduation, in so far as it applies to the departmental promotees, to be illegal. We, also, hold the stoppage of increments for failure to pass the departmental promotion examination to be illegal especially, when such failure, would result in non-consideration for the next promotion which, in itself, is a punishment.