' BRIG. (RETD.) ABDUR RASHID (MEMBER).-- The facts, briefly are that the appellant was appointed as Sub-Engineer (Electrical) in the Projects Preparation Organisation WAPDA, Lahore, with effect from 15th April, 1976.
2. On his being declared surplus by the Water Wing vide WAPDA Office Order dated 13-5-1980 (Anx.
'A' of the appeal), the services of the appellant were placed at the disposal of S.E. (5) WAPDA, Abbottabad Circle, Abbottabad, for posting as LS-II and it was made clear in the said Office Order that the seniority of the appellant would reckon from the date he joined his new assignment at Abbottabad.
3. Shortly after his transfer to Abbottabad, the appellant was sent to the WAPDA Training Institute, Faisalabad from where he made a representation on 4-9-1980 to the Managing Director (Power).
In the said representation, the appellant pleaded against his deprivation of seniority from 15-4- 1976 to 18-7-1980 even though his posting to Abbottabad had been made in the interest of the Authority. The appellant was directed to file his petition through proper channel which he did on 29-1-1981 addressed to the General Manager (Admn.) WAPDA and claimed seniority with effect from 15-4-1976 as well as his future promotion to LS-I. He received no reply to his appeal dated 29- 1-1981. However, the respondent No, 3, in his Letter No, 14266/5/1352, dated 20-4-1981 to S.E.
Abbottabad stated: "Subject: Appeal of Messrs Asif Ali and Mohammad Nawaz Line Superintendent II.
' Memo: Ref: your memo. No, 3315/4/4, dated 5-4-1981.
' The officials were transferred to your circle vide GM(Admn) WAPDA Lahore Office Order No, S.O.(E- 11)6(213) Vol. III/Admn.
13664-70, dated -5-1980 with the clear condition that seniority of the Employees will be reckoned from the date of their joining new assignments. Hence the question of their fixation of seniority in this Region from the date of their appointment in Water Wing does not arise.
' Please inform the officials accordingly. Sd/- Seniorr Officer (Admn.) for CA WAPDA, Peshawar."
4. Aggrieved from the above order dated 20-4-1981, the appellant served a Grievance Notice on WAPDA and two others on 7-9-1981 and thereafter filed a Grievance Petition before the Punjab Labour Court No, 2, Lahore. On 28-3-1983, the petition was returned to the appellant for want of jurisdiction. Thereafter, the present appeal was filed before the Tribunal at Lahore on 4-4-1983. It was registered as appeal No, 132(L)/1983. On a miscellaneous petition (No, 32/84) by the appellant the said appeal was accorded priority by the Tribunal and transferred to Islamabad for early hearing. At Islamabad the appeal was registered at No, 192(R)/1984. It was heard on 21-6-1984 and is being disposed of by this order.
5. The cut and dried issue involved in this appeal, on merits, is, as to whether or not the appellant is entitled to his seniority with effect from 15-4-1976 after he had been declared surplus by the Water Wing, Peshawar and transferred to SE(E), Abbottabad. However before dealing with the merits we would dispose of respondents' objection that the appeal is time-barred and hence not competent.
It is an admitted position that the appellant had gone to the Labour Court No, 2, Lahore because before the law was finally settled by the Supreme Court as a result of the case of F.U. Malik v.
WAPDA, such was the practice of the WAPDA employees belonging to the category of the appellant. After his petition was returned to him by the Labour Court on 28-3-1983, the appellant filed his present appeal shortly thereafter on 4-4-1983. The period spent before the Labour Court, Lahore from 5-7-1981 to 28-3-1983, therefore, deserves to be condoned and we order accordingly.
6. We heard the learned counsel from both sides. It is true that vide WAPDA's Office Order dated 13- 5-1980 the appellant was "declared surplus" and posted to Abbottabad. The said letter, being relevant, is reproduced: "No, SO(E-II)6(213)Vol-III/Admn:/13664-70, dated 13-5-1980.
OFFICE ORDER ' The services of Mr. Asif Ali and Muhammad Nawaz Sub-Engineer (Electrical), declared surplus by Chief Engineer (Water) North (CMO), Peshawar are hereby placed at the disposal of Superintending Engineer (E) WAPDA, Abbottabad Circle, Abbottabad, for posting against the posts of Line Superintendent Grade-II with immediate effect.
' In case of failure on the part of these Sub-Engineers (Electrical) to report at their new place of postings immediately but not later than 15 days from the issue of this office order, their services are liable to be terminated in accordance with the terms of their letters of appointment.
' The seniority of the above-noted employees will be reckoned from the date of their joining new assignments. Sd/- Abdul Wahid Butt Section Officer (Establishment) for General Manager (Admn.) WAPDA."
7. The respondents have utterly failed to prove before us that it was the C.E. (Water) who had delcared the appellant as surplus as mentioned in the above-quoted letter. On the other hand, the appellant has placed on record a letter dated 21-5-1980 from the Office of the CE (Water) WAPDA, Peshawar wherein G.M. (North) WAPDA, Lahore, has been requested for the cancellation of appellant's transfer order dated 13-5-1980, already referred to. The respondents' stand is further.
Demolished from the fact that the place of the appellant in SCARP Bannu was filled in by another newly-appointed person. Apparently, therefore, the appellant had been edged out to make room for someone else. The appellant could have been considered surplus ONLY if his job at Bannu SCARP had been abolished. But the fact that the appointment held by the appellant at Bannu was filled in by a new hand proves conclusively that by no stretch of imagination, the appellant could be treated as a surplus hand. We do not know and no one from the respondents has been able to explain to us as to how the appellant was declared surplus and posted to Abbottabad when the evidence on the file does not say so and, in fact, proves just the reverse. Obviously, therefore, the Office Order, dated 13-5-1980 whereby the appellant has been declared surplus and deprived of his previous seniority w,e,f, 15-4-1976 has been a bad example of abuse of authority by someone somewhere and has been resorted to for ulterior reasons which the WAPDA may like to look into.
8. The foregoing analysis leads us to the irresistible conclusion that the appellant was posted from SCARP Bannu (under CE (Water) Peshawar) to SE(E), Abbottabad in the interest of the WAPDA and that this appeal must be allowed. Consequently, therefore, we order that the appellant shall be entitled to count his seniority as LS-II w,e,f, 15-4-1976. He would be considered for further promotion on the basis of the said seniority.
9. No order as to costs.