' BRIG. ABDUR RASHID (MEMBER).-Facts of the case in brief, are that the appellant joined WAPDA on 12th February, 1960 and while working as Assistant Accountant, Audit Cell Central Accounts Division, he also held the correct charge of the higher post of Junior Accountant with M/s. T & K Consultant Link Canals, Lahore, vide letter dated 25th November, 1964. The appellant assumed current charge w. e. f. 27th November, 1964. The holding of current charge derived sanction from WAPDA's letter No, OB/1(91) Admn/5031, dated 24/25th March, 1961, wherein it was laid down that a junior person if posted to work against a higher post should draw 12 (1/2)% of the initial pay of the higher post, special pay and/or other allowance attached to the higher post and C. L. A. Provided that the total emoluments of such an officer did not exceed the emoluments which would have been admissible to him had he been promoted to the said post.
2. The appellant continued working as Assistant Accountant Audit Cell, with current charge of Junior Accountant, as mentioned and ceased to be so appointed when he was selected for appointment as regular Junior Accountant vide WAPDA's letter No, AII/Admn/Selection/R 5890, dated 6th December, 1966.
3. The appellant, after his regular promotion, agitated that his pay as Junior Accountant should be fixed w. e. f. 27th November, 1964 the date when he was appointed Junior Accountant with M/s. T & K Consultant Link Canals, Lahore. The request of the appellant was rejected by the Authority on the ground that the appellant had only officiated as Junior Accountant w,e,f, 27th November, 1964 on 12 (1/2)% basis and this information was conveyed to the Chief Accountant, vide WAPDA's Director Finance u. o. Dated 24th August, 1967. The appellant was, however, not satisfied and he kept agitating his claim of regular appointment as Junior Accountant (w,e,f, 27th November, 1964) upto 1st November, 1973. This appeal, too, was rejected vide WAPDA's letter, dated 6th February, 1974 on the ground that the case having been settled, could not be reconsidered.
4. The appellant went to the Court of Civil Judge 1st Class, Lahore, for redressal which dismissed the suit vide order, dated 11th October, 1975. Thereafter the appellant sought remedy from the Court of the Additional District Judge, Lahore in civil appeal No, 12/1976, dated 27th January, 1976. The said appeal, too, was dismissed by the learned Additional District Judge vide judgment, dated 20th December, 1976 for want of jurisdiction with the observations, only a brief relevant portion of which should suffice: "He is in the service of Pakistan and is a civil servant for the purpose of attraction of Service Tribunals Act, 1973 in view of the said Ordinance No, 16 of 1975. In fact the suit of the appellant stood abated at the time the learned Trial Court decided the same on 11th October, 1975 as the aforesaid Ordinance 16 of 1975 was enforced w,e,f, 30th September, 1975."
5. The appellant, vide his appeal 8(L)/77, came up before the Federal Service Tribunal Camp Office, Lahore. His appeal was heard on 7th April, 1977 but was dismissed in limine in view of section 4(1)
(b) and (c) of the Service Tribunals Act, 1973 which are reproduced : "(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade ;
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969."
6. Shortly thereafter, the WAPDA Chief Accountant Office vide their letter dated 25th June, 1977, circulated a provisional seniority list of Accountants (Grade-18) as it stood on 31st May, 1977 and invited objections before 31st July, 1977. The name of the appellant appeared at serial 28 of the said list and he agitated the issue of his seniority vide his appeal dated 20th July, 1977 which was turned down by Member Finance vide letter, dated 26th April, 1978. The appellant then appealed to the Chairman WAPDA. This, too, was rejected by the Manager Finance vide his letter dated 23rd June, 1979. Taking the said impugned order to be the final rejection of his appeal, the appellant filed his appeal, once again, before the Federal Service Tribunal. It was registered on 22nd July, 1979 under No, 58(L)/79. This appeal came up for preliminary hearing on 7th January, 1980 and then on 16th March, 1980 but on both these occasions, it was adjourned at the request of the appellant. When it came up for hearing on 27th August, 1980 the Tribunal ruled that in case the appeal was accepted, certain persons who had not been impleaded as the respondents, were likely to be adversely affected and as such, amended appeal should be filed within one month. Instead of impleading the necessary respondents within one month, the appellant vide his application dated 20th January, 1981 requested the Tribunal that its order, dated 27th August, 1980 directing him to implead the necessary respondents should be reviewed because there was no need to implead any other person as party. This application was returned on 15th February, 1981 to the appellant to comply with the orders of the Tribunal or else his appeal would be liable to be dismissed. No action was taken by the appellant. The appeal was given a preliminary hearing on 19th April, 1982 where the appellant was directed to comply with Tribunal's order, dated 27th August, 1980 within one month. The appellant filed a revised memo. Of appeal impleading respondents 2 to 13 against whom he claimed seniority. This appeal was admitted for regular hearing on 13th September, 1982 and is being disposed of by this order. The grounds relevant to the appeal and relied upon by the appellant are as under :
(a) For WAPDA, not to have granted the appellant regular scale/ seniority of the post of Junior Accountant w,e,f, 27th November, 1964 was against its own rules as well as against the principle of natural justice.
(b) The Federal Service Tribunal vide its order, dated 7th April, 1977 dismissed the appeal on the plea of bar to its jurisdiction under section 4(1) (b) and (c) of the Service Tribunals Act, 1973 without adverting to the judgment of Civil Court and, therefore, the issue remained unsettled.
7. We heard the appellant as well as the learned counsel for the respondents. The learned counsel raised the following preliminary objections. First, that the appeal was time-barred. Second, that the appellant had come to the Tribunal on similar grounds on which his appeal No, 8(L)/77 had been rejected as far back as 7th April, 1977. Third, the appellant having worked on 12 (1/2)% basis, had no cause for agaitating his seniority and promotion because that issue was dead and closed particularly so, when he had been regularly promoted as Junior Accountant w. e. f. 6th December, 1966.
8. Replying to the objections, the appellant said that he has never reconciled to the rejection of his claim for seniority accruing to him w. e. f. 27th November, 1964 the date, he was appointed on current charge basis against an existing vacancy. The fresh cause of action had accrued to him from the provisional seniority list of Accountants (as on 31st May, 1977), circulated vide Office of the Chief Accountant (W), dated 25th June, 1977 in which he saw his name at serial 28, with date of promotion as Junior Accountant, shown as 6th December, 1966. On 20th July, 1977 he filed the necessary objections against his seniority in the impugned list. This appeal was turned down by Member (Finance) vide decision communicated to him on 26th April, 1978 through the General Manager Finance, argued the appellant. Thereafter, he preferred an appeal to the Chairman on 14th January, 1979 which was rejected finally vide Manager Finance (Co-ord) letter, dated 23rd June.
1979. He filed his present appeal before the Federal Service Tribunal on 18th July, 1979 which is well within time.
9. We find that this is, indeed, the position as borne out from the record. As such, we hold the present appeal to be within time.
10. Arguing further, the appellant said that his previous appeal No, 8(L)/77 was dismissed on grounds already mentioned. But this did not, by any chance, mean that his claim to senicrity w,e,f, 27th November, 1964 had been extinguished. He received a fresh cause of appeal from the seniority list, which he impugned and that his present appeal was a direct consequence thereof. In fact, his case had never been heard on merits. It had been dismissed by the Civil Courts and the Federal Service Tribunal on technical grounds.
11. In our considered view, the impugned seniority list gave the appellant a fresh cause of action. Till such time that the issue of his seniority is finally decided through a judicial decision, the appellant will continue A having a right to this effect. In his present appeal, the real issue is the correct fixation of his seniority. Such being the legal position, the dismissal of his previous appeal by this Tribunal, has no bearing on the present appeal, which we hold to be competent. The principle of res judicata does not apply here because the appellant's case has never been decided on its merits by us, who have exclusive jurisdiction of the subject, and our present decision will be the first one.
12. Arguing the next issues with regard to his working on 12- (1/2)% basis and, thus, having no claim to seniority accruing therefrom, the appellant said that the rules had not been applied uniformly.
He cited various instances to prove that his claim for seniority for working on 12 (1/20% basis had been rejected whereas others, placed in similar situations, bad succeeded.
13. Arguing further, the appellant drew our attention to office order No, 2279/PDLC/64/2037- 39/196/64, dated 10th June, 1964 (which was issued in partial modification of office order, dated 24/25th March, 1961 referred to already), wherein it was laid down that arrangement made on 124% basis should, in no case, exceed a period of four months and when such period, in no case, exceeds four months "the matter should be referred to the Authority for orders, in cases, where according to extent orders, promotions/postings are made by them (Authority)." In case, this was not done, even though, he continued on 12(1/2)% basis for over two years. Had this order been complied with, he would have been promoted within four months because he was fully qualified for promotion as Junior Accountant, said the appellant. He drew our attention to another letter No, KGA-1(21-B)Admn/A(E)/14266 dated 24/27th June, 1964, only para. 3 thereof is reproduced.
"3. The Authority's order, (dated 10th June, 1964 quoted above) contained in the Office Order referred to above will apply in cases where the individuals being promoted have not the requisite qualifications for the next higher job. The Authority, however, appreciates that the position in your Division is a little peculiar as individuals are being asked to assume higher responsibilities even though they do not have the requisite qualifications, such assumption of additional responsibility should not, therefore, be considered as 'regular' promotion but only a current charge of the duties of the next higher post. The staff Office Order announcing the promotion should not state that the individual concerned has been promoted. While holding current charge of the next senior job, an individual will only get 14% of the initial pay of the higher post, till such time as he qualifies at the departmental examination and is otherwise entitled to regular promotion on the basis of seniority and qualifications."
Continuing his arguments further, the appellant urged that the above contents were not applicable to him because he belonged to the category of qualified persons. He was fully qualified to be promoted regular Junior Accountant for which the qualifications laid down in WAPDA notification No, 8-F.O. III/64/6496, dated 2nd September, 1964 were "M. Com. With minimum of three years' experience." The learned counsel for the respondents interjected and said that this was a mistake which had been rectified vide Office Order No, 7 F.0-111/64/18864, dated 26th November, 1964 and the requisite qualifications, thereafter, for promotion to the post of Junior Accountant were M. Com.
With 5 years' experience. Dealing with this issue, the appellant said that the qualifications of M.
Com.With three years' service for promotion to Junior Accountant had been laid down by a gazette notification, dated 2nd September, 1964. Its amendment was done through a letter which was irregular. What was, however, painful was that the rules framed were seldom applied in a universal manner and he cited the names of M/s. Abdul Majid, Muhammad Iqbal, M. K. Pasha etc. (given at page 24 of his appeal), who did not fulfil the laid down qualifications and, yet, they were promoted while he was not, even though he possessed high qualifications. The amendment of 5 years' experience was made at a time when he had already assumed the appointment of Junior Accountant on 27th November, 1964 and was M. Corn. With nearly five years' experience as he joined WAPDA in February, 1960. Ordinarily, the amendment should not apply to him but, if it did, then his three years' service outside WAPDA, should also count.
14. Before we record the conclusion we have arrived at, we have no doubt that on 27th November, 1964 when he took over the current charge of Junior Accountant on 12i% basis, he was M. Com. With nearly 5 years' experience. The agreement, which came on 26th November, 1964 changed A the situation. To be promoted regular Junior Accountant, one had to have M. Com. And five years' experience. The appellant was thus considered ineligible. However, we do not wish to go into the vires or otherwise of an office order amending a notification because we find that the Office Order, too, had the approval of the Authority, at least, on the face of it. However, the amendment did alter the conditions of appellant's service to his disadvantage. Since the appellant's order, for taking over the current' charge appointment of Junior Accountant, had been issued on 25th November, 1964 (though he assumed the appointment on 27th November, 1964) the amendment dated 26th November, 1964 modifying the experience to 5 years instead of 3 years as notified on 2nd September, 1964 shall not apply to him. Applying the amendment dated 26th November, 1964, when the appellant's order of appointment had already been issued one day prior, on 25th November, 1964 would amount to giving it a retrospective effect which would be illegal.
15. Another serious lapse, which occurred in the case of the appellant, was that his case was not referred to the Authority after four months as was required vide office order, dated 10th June, 1964 and he continued as Junior Accountant on 12i% basis till his regular promotion as Junior Accountant materialised on 6th December, 1966. He has suffered in his promotion, thereby, through no fault of his, but of some one else.
16. We have observed that in a number of cases, those appointed on 12% basis just like the appellant, have been given the benefit of seniority w,e,f, the dates of such appointment thereby placing them higher in seniority ladder. But the appellant was denied this advantage even though he was fully qualified to be so appointed w,e,f, 27th November, 1964 and certain others were not qualified. His regular promotion was delayed till 6th December, 1966 thus depriving him of over two years' advantage of seniority and the resultant benefits. One such example is 'evident from WAPDA (Chief Accountant's) office order, dated 16th November, 1970 whereby 103 Assistants, Accounts Assistants etc. Were granted regular seniority w,e,f, the dates they were appointed on 12i% basis.
17. In the case of Shaukat Mahmood Butt (as a result of a Civil Court decree), the WAPDA promoted him. Junior Engineer on regular basis w,e,f, 17th May, 1965 the date on which he was appointed as Junior Engineer on 12+% basis : WAPDA office 1BP/PFA-M-164/73-369, dated 7th February, 1973 refers.
18. In another case, a senior clerk, Nazir Ahmed, worked on 12+% basis from 15th August, 1964 to 10th January, 1973 and thereafter on 11th January, 1973 he was regularly promoted as Accounts Assistant. He kept making representations to the Authority for claiming seniority from 15th August, 1964 but to no avail. He went to the Punjab Labour Court No, 1, who directed the Authority, on 12th July, 1979 to pay the said senior clerk, scale of Accounts Assistant for the period apart from seniority, increments and arrears of pay. The WAPDA implemented this decision of the Court vide office order No, 291 of 18th May, 1980. We find remarkable similarities between this case and that of the appellant before us.
19. In another interesting case, Messrs Abdul Rahman and Fakhar-urZaman Haider, Accounts Clerks, Mangla Dam, held current charge of Accounts Assistants on 12+% vide staff office order dated 17th December, 1964. Later, vide Chief Accountant's circular letter dated 12th August, 1970 and the order dated 30th June, 1971 they were reverted on the ground that they were not qualified and that they had to be replaced by qualified persons. They challenged the order of their reversion before Sub-Judge, Mirpur (AK), on the ground that it was for the Authority to review their appointment after four months as laid down and since this was not done they would be deemed to have been appointed regularly because they continued working against higher post for over six years satisfactorily even though they were not qualified. They won their case. WAPDA's appeals to the Federal Service Tribunal as well as the Supreme Court were dismissed on technical ground.
WAPDA implemented the decision vide their Staff Office Order dated 24th August, 1983 granting M/s. Abdul Rahman and F. Z. Haider, the status of regular Accounts Assistant w. e. f. 17th December, 1964. In this case, the failure of the Authority to review the appointment, after four months, went against them.
20. In the appeal before us, the appellant worked on 12 (1/2)% basis for two years. His case was not reviewed after four months as was required. On that ground alone and being qualified he could be given advantage of regular appointment on the analogy of the above case where the appellants were not qualified.
21. We now come to the respondents. None of them, against whom the appellant claims seniority, has filed a written statement. None appeared before us. This leads us to the inference that they wish this case to be decided on the undoubted merits of the present appeal and they have no desire of contesting the appeal. They are proceeded against ex parte.
22. We have no doubt left in our mind, that the appeal before us, is a strong one on merits. It is also supported by weighty case-law as referred to by us. The foregoing analysis brings us to the conclusion that we must allow this appeal which we do and order that the appellant shall be entitled to seniority w,e,f, 27th November, 1964 as his appointment to the post of Junior Accountant from the said date was a regular appointment. His name in the impugned seniority list will be adjusted accordingly. He shall be entitled to all the benefits flowing from this order.
22. No order as to costs.