1. HAMZO KHAN M. KURESHI (CHAIRMAN).-By the present appeal the appellant has challenged the order date 24th August 1972 passed by the Secretary Irrigation and Power, Government of Sind, directing that the appellant be absorbed in Sind Irrigation Department as an Overseer.
2. The facts leading to the present appeal are that the appellant joined service as Overseer in the then Government of Sind on 1-6-1949. He was holding the office of Sub-Divisional 0fiicer on 6-8-52 and was transferred to Guddu Barrage Project on 1-8-1954. In the year 1958, the project was brought under the control or WAPDA and consequently the services of the appellant went under the Management of that Authority. Later on in 1964, the Project and the services of the appellant went under the control of West Pakistan Agricultural Development Corporation (A. D. C.) by virtue of Notification dated 28th September, 1961.
3. In the meanwhile on 1-8-1962 the appellant was promoted as Assistant Engineer under the orders of the Chief Engineer WAPDA. With effect from 1-3-1972, the Agricultural Development Corporation was dissolved and the services of the appellant were brought under the control of Irrigation Department Sind by virtue of the President's Order No. 4 of 1972. In the said order vide Article 4 (b) it was guaranteed that the terms and conditions of the services of the officers of the A. D. C. Shall be the same as were available to them at the the of dissolution of the Corporation and shall not be varied to their disadvantage. However, the respondent No. 1 vide an order dated 24th August 1972, directed that the appellant and other officers who had reverted from the A. D. C. To their parent department shall receive pay etc. As if they had not been sent on deputation to A. D. C. Or WAPDA.
4. This order is alleged to be against the provision of Article 4 (b) of the President's Order mentioned above.
5. The grievance of the appellant is that by virtue of this order passed by respondent No. 1 he was being placed in a lower rank of an Overseer which amounts to his reversion from the rank of Assistant Engineer, and that his pay and emoluments would be reduced. He claims that he was entitled to the post and pay of an Assistant Engineer, as he was on the eve of the dissolution of the A. D. C.
6. The respondents have contested the appeal. They admit all the facts alleged by the appellant but assert that he on return from WAPDA to his Irrigation Department would be governed by the terms and conditions of his parent department and not of the WAPDA where he was sent on deputation, it has been repeatedly notified by the Government that the WAPDA is a functional agency of the West Pakistan/Sind Government and the officers transferred to that Agency cannot be treated as deputationist.
7. The short point in issue before us is to what would be the rank, status, pay and emoluments permissible to the appellant on his reversion to the parent department. On this score we shall first determine the pay and emoluments permissible to the appellant on the eve of the dissolution of the Corporation.
8. It is an admitted position that in 1952 and 1954, when the services of the appellant came under the control of WAPDA and subsequently to the A. D. C., the appellant was holding the post of a Sub- Divisional Officer. By no reasoning could it be imagined that in 1972 this officer on his transfer back to the same Irrigation Department would hold a post inferior to that of Sub-Divisional Officer.
9. We have on record Annexure `E' by which a Notification was issued by the Government of West Pakistan on 28-5-1970, showing that about 55 officers were promoted as the officiating Sub- Divisional Officers in the the scale of Class II Gazettad Rank. In this promotion order it was clearly mentioned that these officers were promoted on condition that these promotions will not confer upon them any right on regular basis. We have also on record a seniority list issued on 13-4-1971. A cursory look on this list compared with the notification of promotion dated 28-5-1970, would show that all the officers mentioned in that notification of promotion are junior to the present appellant.
10. Moreover, these officers were promoted as Sub-Divisional Officers in the year 1970 whereas the appellant was promoted as S. D. O. In 1952.
11. We have also on record a copy of the notification dated 9th October 1972 which is issued by the respondent No. 1. In this notification it has been mentioned in vague terms that the appellant would draw the same pay he would have drawn in the parent department but for his deputation to WAPDA and A. D. C. Obviously such pay could not be less than he was drawing in WAPDA nor would he be reduced to an inferior rank as the terms and conditions of his service on reversion to his parent department were protected. The parent department could not place him in an inferior rank than the one he was holding at the the his services were taken over by the WAPDA.
12. The respondents have pleaded in their written statement that if the appellant had not gone to WAPDA, he would have continued to remain Overseer or would have at the most held the charge of Sub-Divisional Officer in the rank of an Overseer. We are not impressed by the stand taken by the respondents. We have not been shown how an officer who was holding the charge of Sub- Divisional Officer in 1952 would have continued to remain in the same post even after the expiry of 20 years. It was for the respondents to show that even officers senior to the appellant or having the same date of appointment as an Overseer, continued to be Overseers and the appellant had no cause of action on account of seniority in the parent department.
13. Moreover all along the Government stand is that during the service of the appellant with WAPDA/A.
14. D. C. He should be treated as Overseer on deputation. As against this we have on record a copy of the notification issued by the Finance Department, Government of Sind dated 12-4-1974, whereby it was decided that WAPDA/A. D. C. Were functional agencies of the Government and the employees of the Irrigation Department serving in these agencies cannot be treated as on deputation.
15. Therefore, if that would be the position, we fail to understand how the promotion earned by the appellant in WAPDA and A. D. C. As far back as in 1962 could be treated as non-existing and a nullity in 1972 when the appellant came back to the Irrigation Department by virtue of the dissolution of the functional agencies of the Government itself.
16. Moreover, the terms and conditions of services of the appellant have been guaranteed by the President in his Order No. 5 of 1972 and it is an admitted position that the appellant had held the post of Assistant Engineer under WAPDA/A. D. C. For more than ten years which rank cannot be snatched away from him after a lapse of ten years.
17. On consideration of the above factors we are constrained to hold that orders passed by respondent No. 1 treating the appellant as an Overseer in the Irrigation Department, which post is inferior to of that of Assistant Engineer, would be absolutely illegal. We accordingly set aside the same order and allow the appeal. Each party is left to bear his own costs.