' C'H.A. REHMAN KHAN (MEMBER).--Rana Muhammad Afzal, Patwaar 500 KV(EHV) Division, WAPDA, Rawalpindi, the appellant has come in appeal against the impugned order, dated 14-7-1984 whereby his junior Mr.Muhammad Idrees, Patwari had been promoted as Kanoongo and so the appellant was placed junior in the seniority list of Patwaris prepared by 500 KV(EHV) Division.
2. The relevant facts of the case are that the appellant was appointed as Patwari on 28-9-1976 by the Executive Engineer, 5(X) KV(EHV) Division, WAPDA Rawalpindi vide appointment letter, dated 1- 9-1976. The relevant extracts of the appointment letter are appended below:- XX XX XX XX XX
(1) Reference his application dated Nil, Mr.Rana Muhammad Afzal is informed that he has been selected for appointment to the post of Patwari under the Pakistan Water and Power Development Authority, on the following terms and conditions:-
(i) He will be governed by such conditions of service as the Authority may from time to time prescribe.
(ii) The Authority may change his place of service or appointment, designation, responsibilities or duties from time to time as it may think fit. xx xx xx roc xx
3. The appellant was later transferred to work under the control of Chief Engineer, 500 KV(EHV), WAPDA, Lahore who posted the appellant in 500 KV T/L Division, Faisalabad vide order dated 22-6- 1978.
4. It was contended by the learned counsel for the appellant that vide office order dated 15-11-1983, the entire staff of 500 KV T/L Division, Faisalabad was posted to 500 KV T/L Division, Rawalpindi under the administrative control of Chief Engineer, 500 KV(EHV) WAPDA, Lahore, Respondent No,1.
Sinee then the appellant is working in 500 KV(EHV) Division, WAPDA, Rawalpindi. It was submitted that Respondent No,1 without fixing the seniority of the appellant in accordance with the principles of re-organization, promoted Mr.Muhammad Idrees, Respondent No,2 as Kanoongo vide impugned order dated 14-7-1984 who was in fact his junior. The Respondent No,2 was appointed as Patwari on 28-2-1977 and shown at serial No,17 as against the appointment of the appellant which was made on 28-9-1976 and placed at serial No,16 vide the seniority list published in June, 1978.
5. The learned counsel for the appellant submitted that the departmental appeal was preferred by the appellant on 25-7-1984 in which the promotion of Respondent No,2 was challenged on the basis of the seniority claimed as a result of his initial appointment as shown in the abovementioned seniority list. The appellant received no reply to his representation and eventually preferred an appeal before the Tribunal within the prescribed time limit. It was argued by the learned counsel for the appellant that all transfers of the appellant from one Division to another were ordered by WAPDA Authority without ever asking for the willingness of the appellant. It was, therefore, always considered that these transfers of the appellant were in the interest of the Authority. On completion of the job, the members of the staff of these Divisions were declared surplus but were immediately adjusted elsewhere. However, this fact of declaring the staff as 'surplus' never stood in the way of either adjusting the surplus staff under the WAPDA Authority or caused any break in the continuous service of the appellant. The truth of the statement could be ascertained from the posting orders so issued on various occasions vide office order No,FO(P)-II- 494/Vol1/4756-62, dated 9-10-1983 and office order dated 15-11-1983. The details of the transfer of various Divisions and Sub-Divisions en bloc from one place to another would also testify the actual mode of administrative re-organization in this respect. As a matter of fact the entire staff along with their posts were transferred on all such occasions on completion of the task assigned to them in the specific period. Therefore, such transfers, it was strongly contended, could not be termed as the transfers of surplus staff. In addition, the appellant did not change his service, cadre or category and remained Patwari, wherever he was transferred. Since no change of cadre was involved, the appellant could not be placed junior to others on transfer which was ordered by the WAPDA Authorities. This is strictly according to the terms and conditions of his appointment letter given out earlier. It was also contended by the learned counsel for the appellant that the term `surplus' in such cases of transfer has been actually used only to indicate the availability of the staff from one place to another and certainly not in the sense that it was being implied in this case. If the staff had been declared surplus then there could have been a break in the continuous service of any one of them which is non-exist ant altogether. The declaration of 'surplus' in such cases could not be implied to mean where a surplus staff is rendered jobless, thus creating a break in the continuous service when adjusted elsewhere. Since WAPDA Authority as per the appointment letter had reserved the right to transfer the appellant anywhere, all transfers would be in the interest of the Authority. Any transfer order which would have caused a break in his service and or changed his seniority/cadre was never brought to the notice of the appellant. Every time he was transferred from one plaee to another he received specific orders to join his new place of duty without any preconditions which might have affected his pay, cadre or seniority. In-addition, it was submitted that all along no seniority list was ever prepared by any of the Chief Engineers controlling 500 KV(EHV) Divisions. The last and the only seniority list of the. Patwaris, cadre of EHV Organization was circulated in June, 1978 in which the appellant was shown at serial No,16 and Respondent No,2 was shown at serial No,17. In view of the above facts it was strongly contended by the learned counsel for the appellant that the impugned order dated 14-7-1984 promoting respondent No,2 as Kanoongo was illegal, ultra sires and so liable to be set aside in favour of the appellant.
6. The learned counsel for the respondents submitted that according to seniority list circulated in June, 1978, the appellant was shown at serial No,16 whereas respondent .No,2 was shown junior to him and placed at serial No,17. This was indeed according to the date of their appointments as Patwaris. At the time of the recruitment of the appellant i,e, in 1976, 500 KV(EHV) network in the whole of Pakistan was controlled by Chief Engineer, Lahore. There was only one seniority list of Patwaris which was circulated in 1978. Later on however, 500 KV(EHV) network was split so as to be controlled by the two Chief Engineers one at Hyderabad and the other at Lahore. The appellant was transferred from Faisalabad Division to work under the administrative control of Chief Engineer Flydprabad. Therefore, his name was taken off from the seniority list circulated in June, 1978. On the completion of the task at Hyderabad the entire staff of the 500 KV Division, Hyderabad was transferred back to 500 KV(EHV) Division, Faisalabad. The seniority of the surplus staff was so adjusted as to be governed by letter No,DO(E-I)1(1117-13)Admn./2860, dated 10-12-1978. Therefore, on reversion from Hyderabad 500 KV Division, his name was placed junior to respondent No,2. The extracts of letter quoted above are appended below:- xx xx xx xx "SU13.1ECT:- ABSORPTION/ADJUSTMENT OF SURPLUS STAFF.
' Reference your U.O.No,86323/MDP/E-I/10/363, dated 22-11-1978, on the above subject.
' 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 for which they are declared surplus are abolished. However, on their absorption in an other cadre they are to be placed at the lowest position in the cadre by protecting their pay. Keeping in view this position it was clear!), stipulated in this Office Order No,S0(EI)/07001/Surplus/policy/567-717, dated 6-8-1978 that the Junior. Most persons to he declared surplus." xx xx xx xx ' It was contended by the learned counsel for the respondents that it was in consequence of this policy laid down in the above quoted letter that the appellant was shown junior to respondent No,2 who was later promoted as Kanoongo vide impugned order, dated 14-7-1984. The promotion of respondent No,2 vide impugned order is, therefore, legal and strictly in accordance with the seniority, and so may be upheld by the Tribunal.
7. We have gone through the record presented to us carefully. We have discussed the contents of the transfer orders along with the organizational charts provided in the record. The following points have emerged, as a result of this scrutiny:-
(a) The appellant was recruited by WAPDA Authority to be employed throughout its jurisdiction. He' was not employed for any specific project.
(b) In general, on completion of a portion of a project, a 500 KV Division is closed down at one place to only re-open at another. The entire staff is thus adjusted/posted in the new Division without any break in service or change of cadre.
(c) The term 'surplus' as used in the relevant posting orders is merely to indicate the closer of a Division. This staff which is termed 'surplus' was never reverted to the so-called surplus pool of WAPDA Authority.
(d) In most cases according to the organizational chart, it is only the change in place of work for the entire staff of a Division without changing either the nature of work or the category of the staff when they rejoined, at the new place.
(e) No case has been brought to our notice where any member of the so-called surplus staff was ever rendered jobless for any length of time which could bring about a break in the service of the individual.
8, In view of the above facts, we are of the considered view that the term `surplus' as used in the context of the relevant posting orders, does not go to imply what one otherwise is liable to understand. The members of the so-called surplus staff in this case remained as permanent employees of the WAPDA Authority. In our view when only a portion of the project is completed, the term `surplus' would not carry the same connotation as implied by the respondent department.
The shifting of the 500 KV Division along with its staff from one place to another clearly indicates that the work of the 500 KV project was still in progress. In addition, the staff so indicated as surplus was at no occasion reverted to the surplus pool of the WAPDA Authority. We are of the firm view that in sueh a situation the case of the appellant does not fall within the purview of the poliey halter dated 10-12-1978. He never was posted on his request nor did he ever chinige his cadre which may have affected his seniority. The transfer of the appellant to 500 KV T/L Division, Faisalabad which was later re-opened at Rawalpindi (both remaining under the control of Chief Engineer, 500 KV(EHV), Lahore) should not affect his seniority vis-a-vis respondent No,2.
9. The upshot of the above discussion is that we uphold the appeal. The appellant is senior to respondent No,2 and should maintain his seniority at serial No,16 a -cording to the seniority list of June, 1978. The promotion of respondent No,2 as Kanoongo vide impugned order, dated 14-7-1984 is, as a result, set aside being illegal and ultra vires. Ordered accordingly.
10. Since nobody appeared on behalf of respondent No,2, this order is passed ex parte.
11. No order as to costs.
12. Parties be informed accordingly.
' SYED ALLY MADAD SHAH (CHAIRMAN).-- I agree with the reasons recorded in paragraphs 7 and 8 of the judgment initiated by the learned Member, Maj.-Gen. Ch. A. Rehman Khan, HI(M). However, with great regard for the conclusions arrived at by him, I hold partially different view. No doubt, the appellant was employed as a Patwari under the Pakistan Water and Power Development Authority to serve thereunder any where under any designation and to shoulder any responsibilities and discharge any duties as ordered by the Authority. Therefore, change of his assignments from one place to another or from one organisation to another did not detract from the continuity in his service. Accordingly, he was and is entitled to count his seniority from the day he had joined the service in pursuance of the appointment letter dated 1-9-1976 and he is to enjoy seniority over the respondent No,2 and he shall be entitled to the benefit of promotion on a date earlier than that of the respondent No,2 and that should he conceded to him by passing appropriate order. I am of the view that the order of promotion of the respondent No,2 vide order dated 14-7-1984 is not liable to he set aside but the appellant has to he given pro forma promotion as D stated above and he is allowed all the admissible benefits of such promotion and the place in the seniority list above the respondent No,2. I would allow the appeal in the above terms.
' MISBAH ULLAH KHAN (MEMBER).-I am in respectful agreement with the judgment proposed by the learned Chairman in which the views of the learned Member Maj.-Gen. Ch. A. Rehman Khan HI(M).
That the appellant was senior to Respondent No,2 in the grade of Patwaris was agreed to but the order setting aside promotion of Respondent No,2 as Kanoongo was dissented from. In fact, if there is a vacancy and the appellant can be promoted then there is no question of demoting Respondent No,2 as Patwari from the post of Kanoongo. The appellant is thus entitled to he considered for promotion as Kanoongo from the date his junior, namely, Respondent No,2 was promoted and when such an F order of promotion is passed he is to be placed senior to Respondent No,2 in the cadre of Kanoongo and shall also be entitled to all the consequential benefits of ante-dated promotion from the date Respondent No,2 was promoted.
' ORDER OF THE TRIBUNAL ' By unanimous decision, the appeal is allowed to the extent that the appellant shall stand senior to respondent No,2 and shall, therefore, be entitled to the benefit of promotion on the basis of his seniority so determined. However, by majority decision, the promotion of the respondent No,2 vide office order dated 14-7-1984 shall remain intact unless it needs to he recalled for giving effect to the aforesaid order in favour of the appellant.