' MUHMMAD RAZA KHAN (MEMBER).---The appellant joined WAPDA as Divisional Accountant (Emergency Cadre) on 1-6-1965. Vide order dated 5-12-1983 he was promoted in the regular scale of Divisional Accountant in the then prevailing National Pay Scales in relaxation of the provision of Item 7 of the WAPDA Accounts Service Rules, 1968. This regular appointment was given effect from 15-3-1975. It was, however, provided in the said order that the Divisional Accountants so brought on regular cadre shall maintain their seniority with reference to their position in the Emergency Cadre.
The Government of Pakistan through Finance Division conveyed the sanction of the President on 1- 1-1979 for the upgradation of posts of Divisional Accountants (G-12) to NPS-13 with the facility of selection grade in NPS-15 to 50% of the total posts. This upgradation was retrospectively given effect from 23-12-1978. WAPDA adopted the said decision of the Federal Government by two different orders. Vide an office order dated 2940-1980 the existing regular Divisional Accountants were upgraded from NPS-12 to NPS-13 and vide another Order dated 18-2-1984 50% posts in B-13 were placed in Selection Grade of B-15. In-between this period another office order dated 11-5-1981 was issued where by a minimum length of five years' service was prescribed for the purpose of grant of NPS-13. Vide another order dated 25-4-1993 the distinction between the qualified regular Divisional Accountants and unqualified regular Divisional Accountants was removed and promotion to B-15 against 50% quota was allowed to all the Divisional Accountants. Vide yet another order dated 11-11-1993 the Emergency Cadre was abolished and it was provided that after the grant of regular scale to the Divisional Accountants of the Emergency Cadre they will become at par with other Divisional Accountants for grant of seniority/ selection grade. The appellant was allowed B-15 on 6:10-1994 with effect from 25-4-1993 which caused grievance and he made a departmental appeal to the Authority for the grant of BPS-13 as well as B-15 with effect from 23-12- 1978 instead of 25-4-1993. This departmental appeal was rejected vide order dated 23-11-1995 which has been challenged by way of the present appeal under section 4 of the Service Tribunals Act, 1973.
2. The respondents contested the appeal by filing written objections. Arguments have been heard and the record has been perused.
3. Before discussing the merits of the case it will be appropriate if the technical legal objection with regard to the period of limitation is settled in the beginning. The learned counsel for the respondents is of the view that since the appellant has prayed in this appeal .As well as in the departmental appeal for the grant of upgraded scale with effect from 1978 or, for that matter, 1984, the appeal was beyond time as prescribed under the law and the rules. He has stressed that the matter could not be agitated sixteen years after the accrual of cause of action particularly when the appellant did not seek any legal remedy during the entire period. We cannot agree with this argument because under Service Tribunals Act the period of limitation does not run from the date of accrual of cause of action. Under section 4 of the Service Tribunals Act, the appeal can be filed within a period of 30 days of receipt of final order. Moreover, while deciding the departmental appeal, the respondents have not rejected the same on the ground of limitation but it was rejected on merits therefore, in accordance with the principle laid down in 1995 SCM R 950, the present appeal will be well within time.
4. The appellant had been in the service of WAPDA in the Accounts Branch since 1965 and admittedly he was removed from the Emergency Cadre on 5-12-1983 with effect from 15-3-1975.
Thus for all practical purposes he was a regular Divisional Accountant with effect from 15-3-1975 and the opinion/ views of the respondents that the appellant had yet to pass certain departmental examination or to be reacted as unqualified Divisional Accountant or to be treated as a promotee in the cadre of Emergency Divisional Accountant are totally misconceived. The order dated 5-12- 1983 is clear to the effect that in relaxation of the rules he has been promoted as a regular Divisional Accountant. Thus, the issue of qualifying the departmental examination was totally eliminated and there was no need for him to go through the process while such condition has been expressly relaxed. Whenever there is a bottle-neck or a barrier it has to be crossed once either by actual success or by relaxation of the rules. Once the rules are relaxed, the barrier of qualifying the departmental examination was removed for ever and the stigma of being under-qualified or unqualified or holding the post in temporary capacity as Emergency Cadre Accountant are all washed away. Thus, it has to be reiterated that the appellant was promoted and should be considered as regular Divisional Accountant in the service of WAPDA with effect from 15-3-1975 for all effects and purposes. The notification dated 25-4-1993 is not applicable to the appellant because the perusal of the said notification shows that the then existing Divisional Accountants Emergency Cadre were ordered by the Authority to be brought on to the regular cadre in relaxation of the condition of passing the departmental examination. So far as the appellant is concerned, he was not then existing as Divisional Accountant Emergency Cadre. Similar notification was issued for him on 5-12-1983 and thereafter he was a regular Divisional Accountant. Similarly, the provision of para. 3 of the said notification relating to grant of benefit to unqualified regular Divisional Accountants at par with the qualified Divisional Accountants was also not attracted to the appellant because, as stated earlier, he was to be considered duly qualified regular Divisional Accountant with effect from 15-3-1975 on the force of the order of the competent Authority dated 5-12-1983 whereby the only rule marking him as unqualified was relaxed. The said provision in the notification dated 25-4-1993 must apply to those regular Divisional Accountants for whom the rules were not relaxed earlier and who got the benefit of para. 2 of the said notification.
5. The learned counsel for the respondents argued that the order dated 5-12-1983 did not remove the appellant from the line of the Emergency Cadre Divisional Accountant as per para. 2 of the said office order, it was provided that the seniority of such Divisional Accountants brought on regular cadre shall be maintained strictly with reference to their position in the Emergency Cadre. Thus the learned counsel wants us to believe that despite the relaxation of the appellant with retrospective effect, he was still to be placed with the rest of the Divisional Accountants in the Emergency Cadre.
We cannot accept this argument for the simple reason that there cannot be cadres within the cadre. A person will either be in the Emergency Cadre or on the regular cadre, it cannot be presumed that an official while being promoted from the Emergency Cadre to the regular cadre in view of his satisfactory service in the past, with retrospective effect, has still to maintain his posture of temporary Emergency Cadre. There was no fun in issuing the office order dated 5-12-1983 without meaning expressly mentions.
6. The office order dated 29-10-1980 announcing the decision of the Authority for placement of the existing regular Divisional Accountant in NPS-13 from NPS-12 was in fact applicable to the case of the appellant. In 1980 he could be presumed to be the "existing" regular Divisional Accountant. The condition of clearing the departmental examination stood relaxed in case of the appellant and the length of service and annual reports are not the points in issue. Therefore, we have to hold that the appellant was entitled to the benefit of B-13 with effect from 29-10-1980 on the force of the office order dated 5-12-1983.
7. Vide office order dated 18-2-1984 the Authority decided to place 50% posts of B-13 held by qualified Divisional Accountants in B-15. As stated earlier the appellant had been holding the post of qualified Divisional Accountant with effect from 1975 and, therefore, he was entitled to the benefit of selection grade in B-15 with effect from 18-2-1984.
8. The learned counsel for the appellant had argued that the service of WAPDA was declared as the Service of Pakistan in 1975 and, therefore, the appellant may be considered to be the civil servant under the Federal Government and he should be held entitled to the benefits extended by the Federal Government to its employees without asking him to wait till the policy of the Federal Government is adopted by WAPDA. Thus, he tried to justify that the departmental appeal of the appellant, asking for grant of B-13 and B-15 with effect from 1978 as notified by the Government of Pakistan with the approval of the President, was fair and just. We are of the view that it will amount to stretching provision too far. The appellant belongs to a cadre which, according to the learned counsel for the respondents, was being represented in the trade union activities and charter of demands were being filed on their behalf and settlements were being made thereby the appellant and his colleagues, on the one hand, invoke the Industrial Relations Ordinance for the acceptance of their demands and on the other hand they want to be treated as civil servants for all practical purpose. They have been deemed to be civil servants for the purposes of Service Tribunals Act but they cannot be considered to be the civil servants directly under the Federal Government for other purposes.
9. The conclusion of the above discussion is that the appeal is accepted to the extent that we hold the appellant was entitled to be placed in BPS-13 with effect from 29-10-1980 and he be considered for BPS-15, if falls within the quota of 50% posts, with effect from 18-2-1984 and we . No order as to costs. Parties be informed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.