MUHAMMAD ISMAIL, MEMBER.- The appellant, Allah Rakha, was initially appointed Helper in the WAPDA on 6.8.1969 and was promoted as Fitter with effect from 10-8-1976. He was serving as such on Oil Treatment Plant which was under the control of the Executive Engineer, M&T Division, WAPDA, Lahore, when the said plant was transferred to the Executive Engineer, T.R. (P), WAPDA, Shalimar Workshop, Lahore, alongwith the staff. Consequently the appellant alongwith five others, who were also transferred to the Office of the Executive Engineer, T.R. (P), WAPDA, Shalimar, Lahore, vide Office Order dated 10-01-1980 but subsequently, by Office Order dated 19-01-1980, the services of the appellant alongwith two others, namely, Nazir Ahmed and Ghulam Mujtaba were allowed to remain at the disposal of the said Executive Engineer, while the services of Muhammad Yaseen, Assistant Foreman, Muhammad Latif, Fitter (Grade-I) and Maqsood Ahmed Butt, Fitter (Grade-I) were placed at the disposal of the Executive Engineer T.R. (P) Workshop, Kot Lakhpat, Lahore.
2. The appellant's grievance is that Muhammad Latif, Maqsood Ahmed Butt and Ghulam Mujtaba were also transferred alongwith him by order dated 19- 01-1980 nevertheless they were promoted as Assistant Foreman vide Office I Orders dated 11.5.81, 21.6.82 and 6.1.87 respectively, while giving them the -t benefits of their previous service, whereas he had been ignored. According to him, in the seniority lists circulated on 18.5.85 and 13.4.92 his name had rightly been placed at serial Nos.6 and 4 respcctivly, by reckoning his seniority with effect from 11.8.76 i.e. The date when he was promoted as Fitter (Grade-I) and these seniority lists attained finality, as nobody had challenged them but surprisingly in the seniority list circulated on 13.12.92, his name was placed at serial No.9, by reckoning his seniority with effect from the date he joined the Office of the Executive Engineer, T.R.(P) WAPDA, Shalimar Workshop, Lahore. Against this seniority list, the appellant submitted a representation on 4.1.93 to the XEN, T&R 1 (P) WAPDA Shalimar Workshop, Lahore, which was not responded too. Thereafter, the appellant remained silent for a long the and it was on 1.11.94, that he again submitted a representation to the General Manager, Inventory Control, WAPDA, WAPDA House, Lahore, claiming his seniority which remained in the field from 1980 to 1992. The said representation was rejected on 17.4.1995 and communicated to the appellant on 2.5.1995.
Thereafter the appellant filed the present appeal before this Tribunal on 29.5.1995, under section 4 of the Service Tribunals Act, 1973.
3. The learned counsel for the appellant contended, that evidently the transfer of the appellant and others was made alongwith the Dehydration Plant, keeping in view the exigency of work and not on his own request and, therefore, he has a right to reckon his seniority with effect from the date he was promoted as Fitter and not from the date he was transferred to the Office of the Executive Engineer, T&R (P) WAPDA, Shalimar Workshop, Lahore. It was submitted that in the seniority lists circulated in 1985 and 1992, the appellant was rightly assigned the seniority position with effect from the date he was promoted as Fitter and the said seniority lists had attained finality, therefore, there was no justification for relegating his position in the list which was issued subsequently on 13.12.1992, specially when his seniority remained in the field for more than ten years. The learned counsel asserted that, in these circumstances, it was unjustifiable to disturb his seniority without affording him any opportunity of hearing. He also placed reliance on the several decisions of the Tribunal as well as the Honourable Supreme Court in support of his contentions, that the appellant's seniority cannot be disturbed as he had been transferred by the WAPDA for its own work and affairs and that too after lapse of more than ten years. According to him, the respondent- Authority had acted unlawfully when it assumed, that on declaring the appellant surplus he had been absorbed in the office of the XEN T&R (P) WAPDA, Shalimar Workshop, Lahore, and as such he is entitled to the seniority with effect from the date he joined there. The learned counsel maintained that the appellant's case had been dealt with discriminately, as the persons transferred alongwith him were given the benefit of their past service, while he had been unlawfully refused. Finally he prayed for setting aside the impugned order dated 17.4.1995, with directions to the respondents to reckon the appellant's seniority with effect from 11.8.1976, when he was appointed as Fitter (Grade-I) with all the consequential benefits.
4. The learned counsel for the respondent-Authority has raised a preliminary objection that the present appeal is the-barred as the impugned seniority list was circulated on 13.2.1992, against which the appellant submitted representations on 4.1.1993 and 1.11.1994 i.e. Clearly beyond the prescribed period of limitation. He stated that since the appellant's Departmental appeals were the-barred, the present appeal before this Tribunal is incompetent. He stated that the appellant had filed his Departmental appeal on 4.1.1993 against which he could have come to the Tribunal, after expiry of the statutory period of 90 days, but instead of that he filed another Departmental appeal on 1.11.1994, which is not provided in law and thus the present appeal is liable to be dismissed on this score alone. The submission of the learned counsel for the respondent has force, nevertheless, we are persuaded by the judgments of the Honourable Supreme Court in the case reported as 1986 SCM R 1213 and 1995 SGMR 950, wherein their Lordships had held that if the Departmental appeal is not dismissed on limitation but on merits, the appeal to the Tribunal could be filed within 30 days from the date of the rejection on merits. In the instant case the appellant's departmental appeal was rejected on 17.4.1995, without referring to his previous appeal or saying a single word about limitation and the reply was received by him on 2.5.1995. On receipt of this reply, the appellant filed the present appeal on 29.5.1995 which, cannot be treated as the-barred and accordingly the contention of the learned counsel for the respondent-Authority is repelled.
5. The learned counsel then submitted that on the transfer of Oil Treatment Plant from the XEN, M&T, WAPDA, Lahore, to the XEN T&R (P) Shalimar Workshop, Lahore, the appellant and five other persons became surplus but three out of them were absorbed in the office of the XEN TR (P) Shalimar Workshop, WAPDA Lahore, with effect from 19.1.1980, while the remaining two had been absorbed in the Office of the XEN, TR (P) Workshop, Kot Lakhpat. The seniority of both the offices were being maintained separately. According to him, the appellant was declared surplus and, therefore, he was entitled to count his seniority only with effect from the date he joined the office of the XEN TR
(P) Shalimar Workshop Lahore, and not from the date he joined the office of the XEN, M&T, WAPDA, Lahore. He was, however, wrongly shown in the seniority lists circulated on 18-6-83, 18-5-85 and 13- 4-92 but subsequently when the Authority issued a combined seniority list on 13.12.1992, the appellant was rightly placed at serial No.9, keeping in view his length of service in the office of the XEN, TR (P) WAPDA Shalimar Workshop, Lahore. It is contended that by doing so, no injustice had been done to the appellant and accordingly his grievance is misconceived.
6. We have heard both the parties at length. It is an admitted fact that when an employee is transferred from one office to another or from one place to another compulsorily, alongwith the post and his work, he is entitled to count his previous continuous service in the grade, towards his seniority in that grade in the new office. For the sake of facility, para (b) of serial No.6(i), printed at page 336 of 1989 Esta code is reproduced below: - "6. (i) (b) When a person is compulsorily transferred to another office as a result of conscription, or alongwith the post and his work, he should be allowed to count his previous continuous service in the grade towards seniority in that grade towards seniority in that grade in the new office."
It has not been stated before us that the Authority has issued instructions other than the above.
Besides that, in the present case it is apparent from the letter dated 17-01-1980, that the appellant's transfer alongwith others was made in the interest of Authority. It will be advantageous to reproduce below the said letter in extenso:- No. CETR/101 Dated: 17-01-1980.
The Chief Engineer (Admn.) Power, Wapda, Wapda House, Lahore Subject:- TRANSFER OF SKILLED PERSONNEL WITH POSTS TO THE T.R. DEPARTMENT.
Chief Engineer, Lahore has transferred a large Oil Treatment Plant to the T.R. Department on the condition that the staff associated with its Operation and Maintenance would also accompany the Plant.
The number of persons connected with the Plant are given below:-
(1) Mr. Nazir Ahmed, Foreman.
(2) Mr. M Yaseen, Assistant Foreman.
(3) Mr. Maqsood Ahmed, Fitter Grade-I.
(4) Mr. Ghulam Mujtaba Butt, Fitter Grade-I
(5) Mr. Allah Rakha, Fitter Grade-I.
(6) Mr. Mohammad Latif, Fitter Grade-I.
The Executive Engineer (M&T) has issued Transfer Order in respect of Foreman and Assistant Foreman, who have given their departure report and have arrived in the T.R. Department (copy of the order is attached herewith).
It is requested that formal order may be issued for the transfer of these 6 skilled personnel to the T.R. Department."
7. It is evident from the above letter that the appellant was neither declared surplus nor he was sent on deputation to the Office of the XEN TR (P), Shalimar Workshop, WAPDA, Lahore, but what had happened was that his services were placed at the disposal of the said office. This is also confirmed by the letter dated 19-01-1980 wherein it is inter alia stated that "the services of the following officials are placed at the disposal of the XEN, TR (P) Workshop, WAPDA, Shalimar, Lahore:-
(1) ...........
(2) ...........
(3) Mr, Allah Rakha, Filter Grade-I" - In our view, therefore, the Respondent-Authority was not justified in reckoning the seniority of the appellant with effect from the date he joined the Office of the XEN, TR (P) Shalimar Workshop, WAPDA, Lahore. Nothing has been produced before us to show that the appellant had made any request for his transfer or absorption in the said office and as such it will be unfair to place him under those who were junior to him. The learned counsel for the appellant has thus rightly submitted that this Tribunal, in somewhat similar circumstances has allowed seniority in the case reported as 1985 FLC (CS) 415. The learned counsel has also placed reliance on several other decisions of this Tribunal. In these circumstances, we set aside the impugned order dated 17.4.1995 and remand the case to the respondent-Authority for assigning the proper place to J the appellant in the seniority list with effect from 11-8-1976 and to consider him for promotion with effect from the date, if any of his juniors had been promoted.
8. In the result the appeal succeeds as indicated above with no order as to costs.
9. Parties be informed.