MUHAMMAD IRSHAD KHAN (MEMBER).--The relevant facts forming background of the present appeal, briefly speaking, are that the appellant was employed as Assistant Generation Engineer (B.P.S.-17) in the REPCO, a Limited Company, which was controlled and managed by the Government. On being satisfied that the old distribution system of the REPCO was resulting in excessive voltage drops and frequent breakdowns of power supply; and it has not been possible for the said Company to renovate and expand the distribution systems so as to provide better service to the consumers, the Chief Martial Law Administrator was pleased to promulgate Martial Law Order No. 85 whereby the electric licence granted in favour of the REPCO under the Licence Act was revoked and it was directed that the Water and Power Development Authority (hereinafter referred to as the WAPDA) would take over the functions and responsibilities of the REPCO.
Paragraph 5 of the said Martial Law Order provides that: "All properties, funds and dues which immediately before the issue of this Order were vested in or were realizable by any of the said Companies shall vest in and be realizable by WAPDA, and all liabilities which immediately before the issue of this Order were enforceable against any of the said Companies shall be assumed by and be enforceable against WAPDA."
It was further provided by paragraph 10 that: "The provisions of WAPDA Act, 1958 (West Pakistan Act No. XXXI of 1958) and rules made thereunder in respect of recruitment service conditions, postings, transfers and disciplinary powers etc., shall apply to employees of the Companies mentioned in this Martial Law Order."
It pursuance thereof a decision was taken by the WAPDA whereby the employees of the defunct- REPCO were declared to be WAPDA employees subject to the adjustment to be made on the basis of recommendation of the Selection Board set up for the purpose. It was also decided as notified in WAPDA's notification dated 10-2-1982, that the pay of the employees concerned should be fixed in the relevant National Pay Scales at the stage equal to the pay drawn before their transfer to WAPDA. Accordingly, on the recommendations of the Selection Board, the appellant was adjusted as Shift Foreman in B.P.S.-12 vide Office Order, dated 28-2-1983. It was later on clarified vide WAPDA's letter, dated 15-11-1983 that the employees of the defunct-REPCO who were getting pay in higher pay scales in comparison to those available to similar categories in WAPDA, shall continue to draw pay in those pay scales with normal increments as a personal measure. This brought the appellant to this Tribunal.
2. It was contended by the learned counsel for the appellant that by the impugned order, the appellant downgraded from Junior Engineer in B.P.S.-17 to Shift Foreman in B.P.S.-12 in violation of para.5 of Martial Law Order No.85 whereby it was the liability of the WAPDA to absorb him in the same 3asic Pay Scale and on the same post which was being enjoyed by him in REPCO because all rights accrued to the appellant against the REPCO were enforceable against WAPDA and, therefore, the service condition and status which was enforceable against the REPCO was binding on the WAPDA also. It was urged that though the provisions of the WAPDA Act, 1958, concerning the Service conditions, postings, transfers and disciplinary powers are applicable to the appellant yet not the recruitment rules as that stage had already passed and he would thus be deemed to be confirmed Junior Engineer in B.P.S.-17 from the date of his confirmation as such in the REPCO. The learned counsel for the Respondent-Department has submitted that Martial Law Order No. 85 neither safeguarded the seniority nor the salary grade/post of the former employees of the defunct-REPCO which were declared by the WAPDA to be its employees subject to the clearance of the Selection Boards. The WAPDA was not legally bound to accept the appellant on the same post for which he was not qualified according to the WAPDA Rules.
3. We have given our anxious consideration to the submissions made by the parties and carefully perused the relevant record. We had asked the parties to produce the terms and conditions of the service of the REPCO's employees but neither the appellant nor the respondents could show us the same. In any case, it is quite clear to us that the terms and conditions of the service of the REPCO's employees were not guaranteed by any statutory provision and, therefore, cannot be enforced against the WAPDA. The appellant, therefore, has no vested right to be appointed as Junior Engineer in WAPDA. The decision of the WAPDA to adjust the appellant in the WAPDA's employment according to his qualification and recommendation of the Selection Board is not open to any exception. However, the impugned order to the extent of reducing the salary of the appellant from B.P.S.-17 to B.P.S. 12 in incompetent, illegal and unjustified in the face of the aforesaid decision of the WAPDA relating to the protection of personal pay of the employees of the REPCO adjusted in the WAPDA. The correct position would, therefore, be that the appellant shall stand adjusted in the employment of WAPDA as Shift Foreman with the protection of his personal pay in N.P.S.-17. The impugned decision is, therefore, modified to this extent and the appeal is disposed of accordingly.
4. No order as to costs. The security deposited by the appellant should be refunded to him.
A.E.