' SALAHUDDIN CHAUDHRI (MEMBER).--The appellant, Mushtaq Ahmed, a WAPDA Engineer, contests through this appeal the orders of the respondents dated 26-8-1986 whereby he was demoted to his previous post of Sub-Engineer (Civil) following the decision to declare one Mazhar Hayat, respondent No, 3, senior to him' although earlier the former was being shown junior to the appellant.
2. The brief facts giving rise to this appeal are that the appellant and Mazhar Hayat joined GSO Circle Wapda, Rawalpindi, as Sub-Engineers (Civil) on 16-8-1975 and 14-5-1976 respectively. In 1977 the appellant was transferred to Multan Circle in the Power Wing. In November, 1983 he was declared "surplus" at Multan and was posted/absorbed in his original department i,e, the Chief Engineer, GSO Islamabad vide General Manager's orders dated 15-11-1983. The orders read as under:-- "OFFICE OF THE ' GENERAL MANAGER (T&GS)
' WAPDA HOUSE, LAHORE ' No, 8427/GMT&G/A-176(B), dated 15-11-1983.
OFFICE ORDER ' With, immediate effect and in the interest of Authority's work the folk' ing surplus staff of 500 KV two (2) Civil Sub-Divisions Multan is ab orbed/posted against the vacant positions as under:-- ' Sr.No, Name Designation Serviees placed at the disposal of
5. Mr. Mushtaq Ahmed Overseer Chief Engineer GSO Islamabad.
11 ' This issues with the approval of General Manager (T&Gs).
' Sd/- (Muhammad Bakhtiar Khan)
' Deputy Director (Admn.)"
' In the seniority list of Sub-Engineers (Civil) circulated on 22-5-1984 by the Chief Engineer, GSO, WAPDA, Islamabad the appellant was shown at No, 1 and Mazhar Hayat, respondent No, 3, at No, 2.
Later, the Chief Engineer, Islamabad circle promoted the appellant to Grade-16 on 10-2-1986 by which time the appellant had completed ten years' continuous service as Sub-Engineer a condition precedent to such promotion. The order is reproduced hereunder:- "OFFICE ORDER ' In pursuance of Managing Director (Power) WAPDA, Lahore letter No,1589-1637/MDP/Adm n.- II/16/304/Vol.V, dated 13-1-1985 and No,30813-63/MDP/Adm n-1 I /G-6/Meet ing dated 30-9-1984, Mr. ' Mushtaq Ahmed, Sub-Engineer (Civil) of 220 KV Grid Station Burhan (Civil Division, Islamabad) is hereby placed in BPS-16 with immediate effect."
' But six months later, through orders dated 26-8-1986 the Chief Engineer rescinded his earlier orders and instead promoted Mazhar Hayat on the ground that the latter was the senior most Sub- Engineer. The appellant's departmental representation against these orders was turned down vide respondents reply dated 8-1-1987.
3. The appellant's case is that in terms of length of service he is clearly senior to Mazhar Hayat. The authority too had recognized this position in the seniority list circulated on 22-5-1984. At the time he was promoted to B-16, he had also fulfilled the condition of ten years' continuous service as Sub-Engineer. It was urged by the learned counsel for the appellant that the appellant was transferred to Multan in public interest and later, assigned to his parent department again in the interest of Authority's work. According to him, the appellant could not thus be called "surplus".
Therefore, it was wrong to place the appellant at the end of the list and to withdraw the promotion orders based on his rightful seniority. It was submitted that the impugned orders were highly arbitrary and against the general principles of seniority as well as the principle of natural justice because the orders of demotion were issued by the respondent-department without any show- cause notice and without affording the appellant to present his point of view.
4. Defending the action taken by the respondent-department their learned counsel took the stand that in 1986 when the appellant was posted in Multan Circle, he was declared "surplus". However, since a post was available at Rawalpindi, the appellant was 'absorbed' against that post.
According to him, under the Principle of Seniority of absorption/adjustment of surplus staff contained in WAPDA's letter dated 16-12-1978, such "surplus" staff was to be placed at the lowest position in the relevant cadre in the circle or department where they are absorbed, the rationale being that since WAPDA is showing them accommodation by absorbing them, they cannot rightfully claim seniority as well. In accordance with this principle, submitted the learned counsel for the respondent-department, on being absorbed in GSO, Islamabad the appellant should have been shown at the? Bottom of the list of Sub-Engineers (Civil) in the GSO, Islamabad. Somehow the said seniority principle escaped the notice of the Chief Engineer, Islamabad, with the result that the appellant's name was placed at the original position and consequently he was placed in B-16 with effect from 10-2-1986. Later, when the facts came to the notice of the authorities, following a representation by Mazhar Hayat, the mistake was rectified. The appellant was accordingly treated as the junior most Sub-Engineer and since Mazhar Hayat had consequently become senior most, he was promoted to B-16 in place of the appellant.
5. We have carefully considered the facts as brought on record and have heard both the sides. The main issue for consideration in this case is: was the appellant rightly treated as "surplus" on the facts of this case and in the light of WAPDA's letter dated 16-12-1978. For the sake of convenience it would be appropriate to reproduce below the said letter dated 16-12-1978:-- "No, SO(E-I) 1(1117-B) Ad/2860, dated 16-12-1978.
' The Chief Engineer, Admn. (Power), WAPDA House, Lahore.
' Subject:-- ABSORPTION/ADJUSTMENT OF SURPLUS STAFF.
' Reference your U.O. No, 86323/MDP/E-1/10/263, dated 22-1-1978 on the above subject.
2. The position of surplus employees in WAPDA is such that they are considered to have become surplus to the requirement of a specific office and are required to be absorbed in order to provide alternate appointment in their own interest. Therefore, it is not possible to consider them as having been transferred from one cadre to another as the posts from which they are declared surplus are abolished. However, on their absorption in another cadre they are to be placed at the lowest position in the cadre by protecting their pay keeping in view this position it was clearly stipulated in this Office Order No, SO(E1)/07001/Surplus/Policy/5670717, dated 6-8-1978 that the junior most persons to be declared surplus."
6. As mentioned earlier in this order, on length of service basis the appellant was senior most in the cadre of Sub-Engineers (Civil) in his parent department i,e, Rawalpindi Circle. He was transferred to Multan in public interest in 1977. After he had served there for another six years, he was said to have become "surplus". First, it has not been proved to our satisfaction that he was the junior most Sub- Engineer or one of the junior most whose services were no longer required by Multan Circle.
Secondly, even if he was, he did not belong to the Multan Cirele and admittedly a post was available in his parent Circle, Rawalpindi/Islamabad against which he was later actually absorbed.
Therefore, instead of treating him as "surplus" in terms of WAPDA's letter dated 16-12-1978, the fair and proper course was to repatriate him hack to his parent circle. Had he belonged to Multan Circle and after some time if his services were no longer needed by that Circle, then he could he called "surplus" under the said letter of 16-12-1978. But it was totally arbitrary and unfair to transfer the senior most official of one department to another department and then, to declare him "surplus" ignoring long years of continuous service and finally posting him to the parent Circle to relegate him to the lowest position in the seniority list. It is relevant also to mention that the appellant originally belonged to the Power Wing and he was transferred back to Power Wing as is evident from the endorsement made by the Senior Engineer under whom the appellant was serving in 1986, while forwarding the appellant's representation against the impugned orders. It reads: "Enclosed please find herewith an appeal of Mr. Mushtaq Ahmad Overseer duly recommended on the following ground's:
(1) The official originally belongs to Power Wing. He is supposed to retain his seniority, as he has been transferred with the Power Wing.
(2) He has been transferred from 500 KV Civil Sub-Division No, 2, Multan to GSO Islamabad in the interest of Authority, and not on his request, therefore, he will have to avail his seniority in this region."
7. The conclusion we have reached is that the policy laid in the letter of 16-12-1978 was wrongly applied in the case of the appellant. On the facts of his case, he could not rightly be called "surplus" and placed at the bottom of the seniority list. The appellant is justifiably aggrieved when having continuously served the department for over ten years, he finds himself junior to officers of his own grade who were not even in the department at the time he joined it. The impugned order of the respondents cannot be upheld having been made without affording the appellant any opportunity of being heard which was against the principle of natural justice.
8. We, therefore, held that on the facts of this case, the circular instructions dated 16-12-1978 were not correctly applied and so, the appellant could not be treated as "surplus". On return to his parent department, the appellant was entitled to his original seniority and was, therefore, rightly placed in B-16 on 10-2-1986. The orders dated 26-8-1986 are set aside and we direct that the appellant will he treated to be in B-16 with effect from 10-2-1986. The appellant will be entitled also to all the back benefits.
9. The appeal is being decided ex parte against Mazhar Hayat respondent No, 3 because he did neither file any written statement to raise any objections to the appeal nor did he appear on the date of hearing of this appeal. The notice of hearing having been sent by registered post has not been received back and is presumed to have been duly served.
10. No order as to costs.
11. Parties to be informed accordingly.