ROSHAN ALI MANG (MEMBER).---The facts leading to this service appeal as stated in the memo. Of appeal are that the appellant Inayatullah was initially appointed as Sub-Station Operator Grade-II on 21-10-1964 and promoted to the post of Sub-Station Operator Grade-I on 11-10-1973. He got training in the years 1977 and 1983 and have rendered the service of 32 years to WAPDA.
2. The WAPDA allowed promotion in B-16 to 25% posts vide letter dated 16-7-1977. This percentage subsequently was enhanced to 33%.
3. It was agreed with the Collective Bargaining Agent to place 25 % posts in Grade-16 without the process of departmental examination and with an experience of 10 years which was notified on 11- 10-1983. Later on, however, it is alleged that vide Office Order dated 14-4-1984 the above to office orders were erroneously interpreted that the non-Matriculate were held not entitled to placement in Grade-16.
4. This led to negotiation between the Authority and the Union, resulting in the issue of the letter dated 5-3-1985 whereby it was clarified that non-Matriculate also would be placed in B-16, and to that extent, the said office order would be deemed to have been amended.
5. The appellant was granted B-16 through office order dated 10-12-1985. Thereafter, it was decided through order dated 30-5-1991 that the Diploma Engineers be allowed B-16 with effect from 16-12- 1975 and non-diploma-holders with effect from 17-6-1977. The case of the appellant was also considered in the light of the said order i.e. Dated 30-5-1991, and accordingly he was also allowed B-16 vide order dated 4-10-1993, with effect from 16-7-1977 which was acted upon and as such created his vested right.
6. However, the respondent No. 1 withdrew the appellant's said grant of Selection Grade B-16 vide office order dated 13-2-1994, with effect from its issuance i.e. 4-10-1993. To which, the appellant trade a departmental appeal to respondent No.2 on 18-4-1994. However, the same was rejected by respondent No. 1 without waiting for the decision on the application by the respondent No.2, vide impugned order dated 28-1-1996 which was received by the appellant on 12-8-1996. Hence this service appeal with the request to set aside order-dated 13-2-1994 and to restore placement in B- 16 with effect from 16-7-1977.
7. It was pleaded that appellant was granted selection grade in B-16 vide order dated 4-10-1994 with effect from 16-7-1977. Its withdrawal was, therefore, factually and legally unjustified. In this regard it was pointed out that the Punjab Service Tribunal had already allowed B-16 to non--- Matriculate Senior Subordinate B-16 with effect from 17-6-1977. The WAPDA authorities also granted B-16 to non-Matriculates of the other formation on the basis of the same order, against 25 % quota, but in the case of appellant discriminatory treatment was being given without any justified reasons. In view of this position it was argued that impugned order was ab initio void.
8. It was further pleaded that the respondent was not competent to withdraw the office order dated 4-10-1993, without giving the appellant any opportunity of hearing and from retrospective date. Similarly the rejection of departmental appeal by respondent No. 1 preferred to respondent No.2 was also ab initio void, therefore, both the impugned orders were bad in law and liable to be set aside.
9. It was observed that the decision of the Federal Service Tribunal in 16 appeals as stated in the impugned order dated 28-1-1996 were not in the knowledge of the appellant and that decision could not be applied in the case of the appellant, because he was not a party in the said appeals.
10. The learned counsel for the appellant was of the opinion that his case was not properly considered in accordance with the various orders issued by respondent No.3.
11. It was submitted, as also mentioned above, that in WAPDA B-16 was being allowed to non- Matriculates with effect from 17-6-1977. One Mr. Muhammad Rafi, Draftsman Grade-A who was under-Matric was allowed B--16 with effect from 17-6-1977 through office order dated 11-1-1992.
12. WAPDA also allowed B-16 to the Draftsman who were non --Matriculates through office order dated 6-6-1995 in pursuance of the judgment of the Honourable Punjab Service Tribunal dated 1- 2-1995, wherein it was held that non-Matriculates were also, entitled to B-16 with effect from 17-6- 1977. The case of the appellant, it was pleaded, was quite identical, and that judgment has not been challenged by WAPDA in appeal and has been implemented. It was argued that the same judgment was legally applicable in the case of the appellant.
13. Finally, it was pleaded that the appellant was appointed as S.S.O. Grade-11 on 21-10-1964 which post presently carry B-11 and at the relevant the the qualification "under-Matric" was sufficient for the appointment as S.S.O. Grade-11, therefore, the appellant was deemed to be a Diploma Engineer according to para. 5(1) of the office order dated 17-6-1977. Therefore, the appellant was entitled to B-1,6 from that date.
14. With these submissions it was prayed that impugned orders dated 13-2-1994, and 28-1-1996 be set aside and respondents be directed to restore the grant of B-16 to the appellant with effect from 17-6-1977, with all consequential benefits.
15. The objections have also been filed on behalf of the respondent WAPDA. It has been admitted that the appellant was appointed as Sub-- Station Operator, Grade-II with effect from 21-10-1964, and was promoted as Sub-Station Operator Grade-I with effect from 11-10-1973. It has also been admitted that the WAPDA Authority allowed B-16 vide office order dated 17-6-1977, up to 25% quota which was later on extended to 33% to Diploma Engineers with 10 years' experience and passing the departmental examination. Later on as a result of meeting held with Labour Union with M.D. Water, a notification was issued on 11-10-1983, deciding that 25% senior upper subordinates having ten years' satisfactory service to be placed in Grade-16 without the process of examination. However, it has been pointed out that vide office order dated 14-4-1984 issued by M.D. Power in consultation with Legal Adviser WAPDA and Director, Rules it was clarified that "non-Matriculates" were not entitled to placement in Grade-16. The condition that non-Matriculates were not eligible to appear in departmental examination for placement in Grade-16, however, was waived of later on, through a Notification dated 11-10-1983, on the demand of Union, in the meeting held on 15-1-1985 between the Union and M.D. It was further decided that "non-Matric" up to maximum of 25 % of the cadre would be selected after due process of ascertaining and verifying their suitability vide M.D.'s office order, dated 5-3-1985 amending para. 2 of the office order dated 14-4-1984 vide which non- Matriculates were declared not eligible for placement in Grade-16. In the last para of the office order dated 5-3-1985 it was explicitly mentioned that the para. 2 of the office order dated 14-4- 1984 shall be deemed to have been amended to the above extent.
16. It has been argued that from the wording of that amendment it was evident that the amendment had future or immediate effect and it was not effective retrospectively in any way.
Prior to that decision it has been maintained that the upper subordinates who were non- Matriculates were not eligible to be placed in BPS-16. It has further been stated that vide letter dated 24-9-1991 it was clarified that cases of the "non-Matriculates" be considered in accordance with order dated 5-3-1985 and that the letter dated 30-5-1991 was not applicable to those cases.
As such the stand of the appellant that non-diploma-holders were allowed Selection Grade B-16 with effect from 17-6-1977 has been rebutted.
17. As regards the case of Mr. Riaz Operator, G.T.P.S., Faisalabad it has been submitted that he was allowed selection grade with effect from 16-7-1977 vide office order dated 4-10-1993, which was later on withdrawn vide office order dated 13-2-1994 after clarification as mentioned above.
18. The claim of the appellant, that the other formation of WAPDA non-Matriculate senior subordinates were also allowed B-16 prior to office order dated 5-3-1985 has been rebutted and it has been clarified that no Selection Grade-16 was allowed to any non-Matriculate as claimed by the appellant.
19. As regards the decision of Punjab Service Tribunal, it has been submitted that it was not applicable to WAPDA employees and the Federal Government Servants. And that the circumstances under which the employees non-Matric who were allowed B-16 with effect from 16- 7-1977 were not known to respondents. On the contrary, it has been observed that the Federal Service Tribunal has already rejected similar Appeals Nos.261 and 276(L) of 1992 of the 16 non- Matriculate employees of Natural Power Station Piran Ghaib, Multan vide decision dated 14-2-1993.
20. With these submissions, it has been prayed to dismiss the appeal being not covered under the rules, and without having any cause of action.
21. We have heard the parties at length and perused the record before us. The perusal of the office order, dated June 17, 1977 reveals:
(i) 25 % of all the posts in B-11 and above in the following group sub--cadres including posts of diploma engineers shall be deemed to have placed in NPS-16 (appellants sub-cadre is denoted as H)
(ii) Grade-16 has been allowed to Diploma Engineers with ten years' experience and passing of departmental examination; and (i.e) In view of the increase in the total number of Grade-16 posts and in order to have a common cadre for promotion Grade-17, the Authority has decided to give an opportunity to all Diploma Engineers as well as others having ten years' experience to compete in the departmental examination for the enlarged number of Grade--16 posts.
From the above it follows, that as per office order, dated 17th June, 1977, 25% quota of the total posts in Grade-11 were placed in Grade-16. Those who would be placed in B-16 would need to possess the service experience of 10 years and pass the departmental examination, as necessary conditions to be placed Grade-16 and included the three years diploma --holders as well as other group sub- cadres.
22. Although, it is not clarified in the case of other group sub-cadres as to what academic qualification would be necessary for placing them in BPS-16, nevertheless, it can be construed that if the three years diploma --holders with ten years' service experience, could be placed in B-16 then there is no reason why the holders of other cadres with ten years' service should not possess the equivalent qualification in order to be placed in B-16. In any case there is no clear indication at least in abovementioned order i.e. June 17, 1977, if the non-Matriculate employee would also be placed in B-16.
23. Later on it was decided in consultation with Union vide letter dated 11-10-1983 that 25 % senior- most upper subordinates having ten years' satisfactory service might be placed in B-16 without process of examination. Again this order also remained silent on the issue of placing the non -- Matriculate employees in B-16.
24. However, this issue was clarified vide office letter dated 14-4-1984. The relevant portion is reproduced below:--- "2. Non-matriculates are not entitled to placement in Grade-16. The condition that such non-Matric were not eligible to appear in departmental examination for placement in Grade-16 (now for promotion to Grade-17) has not been changed by the amendment made in Rule 3 of the Rules for holding the Departmental Promotion Examination of 1978."
From the above it follows that according to the said 1978 Rules, the non-Matriculates were not eligible to appear in the Departmental Promotional Examination, hence were not entitled to be placed in B-16.
25. It appears that above letter that is dated 14-4-1984 gave rise to a cause to the non- Matriculates to agitate against this clarification. Resultantly, an office order was passed on 5-3- 1985, with the decision as reproduced below:-- "The Authority declared that suitable persons up to a maximum of 25 % of the cadre will be selected after due process of ascertaining and verifying their suitability i.e. Seniority-cum-merit for grant of BPS-16."
Two things are quite clear from the above letter (i) that this decision was arrived at as a result of negotiations between the Authority and Union to grant BPS-16 to the senior subordinates who were non-Matric; (ii) the above decision shall be deemed to have been made in the order dated 14-4- 1994.
26. And as a result of the above decision the appellant was allowed B-16 alongwith to others vide office order dated 10-12-1985. With reference to the above letter i.e. Dated 5-3-1985 an other O.M.
Was issued on 30-5-1985 which throws some light on the issue of placement of non-Matriculates in Grade-16 and is reproduced below:- "No. 17810-56/MDP/Adorn-I1/16/304(B), dated 30-5-1985.
OFFICE MEMORANDUM Reference this Office Order No. 6757-6809l MDP/Adorn-II G-6l Meeting, dated 5-3-1985.
In the above office order decision of the Authority regarding placement of non-Martriculate Upper Subordinates in Grade-16 was issued which has created many doubts in the minds of implementation authorities. The factual position is that prior to this decision the Upper Subordinates of various categories of employees in the Power Wing who were non-Matriculates were not eligible to be placed in BPS-16. The Authority in the abovesaid decision has now decided that such non-Matriculate Upper Subordinates may also be allowed BPS-16 after ascertaining and verifying their suitability i.e. Seniority-cum-merit. This has, however, not changed at all the previous orders on the subject which are still in force and the process is to be made in accordance with the same. This order has neither created any additional quota for placement in BPS-16 nor has affected the cases already decided prior to the same. , It is hereby clarified that in future all the competent Authorities will consider the cases of placement in BPS-16 of non-Matriculate Upper Subordinates against the 25 % quota if available or against the quota as and when becomes available after ascertaining and verifying the suitability in their sub-cadre already formulated vide this Office Order No.22231-77/ADP/CEA/Adorn-11/16/304, dated June 17, 1977. "
It follows from the above that prior to the decision made vide office order dated 5-3-1985, the non- Matriculates were not eligible to be placed in BPS-16. However, they were made eligible as a result of the negotiation between the Authority and the Union subject to seniority and merit vide office order dated 5-3-1985, and as amply clarified vide letter dated 30-5-1985, as mentioned.
27. As a follow up of the to above letters i.e. Dated 5-3-1985 and 30-5-1985 respectively the appellant was awarded B-16 vide office order dated 10-12-1985. The perusal for the said office order dated 10-12-1985 reveals clearly that all above letters have been issued from the to the to Grade B- 16 to the non-Matriculate cadres which include the cadre of the appellant.
28. Thereafter, another letter dated 30-5-1991 was issued whereby the diploma-holders were allowed placement in B-16 with effect from 16-12-1975 after meeting the prescribed criteria, whereas non-Diploma-- holders were placed in B-16 with effect from 17-6-1977 after meeting prescribed criteria.
29. There was no clear-cut mention in the above letters as to how the cases of non-Matriculates would be dealt with. This point was taken up vide letter dated 24-9-1991 in which it was made clear "the cases of (non---Matriculation) tray be considered in accordance with this Office Order No.6757-6809IMDP/Adorn-II/Meeting, dated 5-3-1985. This Office Letter No.21063-21112IMDPIP-15-E- 11/16/229, dated 30-5-1991 is not applicable to these cases".
30. In spite of the above position the appellant was allowed placement in B-16 with effect from 16- 7-1977 vide letter dated 4-10-1993, by the Deputy Director (Adorn.) with the approval of Chief Engineer, Thermal WAPDA, Faisalabad. However, the same letter granting to the appellant the B-16 with effect from I6-7-1977 i.e. Vide letter dated 4-10-1993 was withdrawn/cancelled vide letter dated 13-12-1994.
31. The upshot of the above discussion is that original letter dated 16-7-1977 provided 25% quota of the total posts in Grade-11 and above in Grade-16. Those who would be placed in B-16 would need to have the service experience of ten years should also pass the departmental examination. This decision would cover three years diploma-holder as well as other group sub-cadres.
32. The learned counsel for the appellant was of the opinion that others also included the appellant. To support his position he took us to the third para. Of letter dated 30-5-1991 which is reproduced below, for sake of convenience:--- "(i.e) Persons already appointed against posts of Diploma Engineer on the basis of any other qualification prescribed by the Authority for initial recruitment to such posts before 17-6-1977 are to be considered as 'Diploma Engineers' and hence by virtue of Authority Order No.50483-603, dated 16-12-1975, if they meet the prescribed criteria allowed BPS-16 with effect from 16-12-1975."
He argued whatever the qualification those appointed earlier to the said order (i.e. 16-7-1977) would be considered as Diploma-holders, and therefore, entitled to B-16 with effect from 16-7-1977, as such the appellant would be entitled to B-16 with effect from that date.
33. However, we are sorry to support such an argument because, firstly, "others" do not clearly say if the non-Matriculates are also included. It is clearly mentioned that those who would possess three years diploma would be eligible to be placed in B-16 if they would possess the service experience of 10 years and also pass the departmental examination. The others if would not be three years diploma-holders, should in our opinion, possess other equivalent academic qualification to be treated at per with the three years diploma-holders, in order to become eligible for B-16. We do not feel that non-Matriculate could be academically made equivalent to three years diploma-holders to become entitled to be placed in B-16.
34. This point has been clearly borne out in para. 2 of the letter dated 14-4-1984 which reads as "non-Matriculate are not entitled to placement in Grade-16". This clearly shows that they' were not equated with the three years diploma-holders.
35. Careful reading of the letter dated 14-4-1984 gives the impression that some non-Matriculates were allowed to appear in the departmental examination, therefore, it was clarified in the same letter that they were not entitled to take examination under Rule 13 of the Rules for holding the Departmental Promotion Examination of 1978. The fact that non---Matriculates were not entitled to be placed in B-16 is also clarified in the letter dated 30-5-1985. The relevant portion is reproduced:- -- "The factual position is that prior to this decision the Upper Subordinates of various categories of employees in the Power Wing who were not Matriculates were not eligible to be placed in BPS--16."
36. It appears that it was due to this reason that the Labour Union took the issue with the WAPDA Authority who after negotiation with the Union passed the order dated 5-3-1985, whereby it was agreed to allow Grade-16 to non-Matriculate on the basis of seniority-cum-merit. Since the appellant was non-Matriculate but fulfilled the requirement as laid down in the said letter i.e. Letter dated 5-3-1985 he was granted B-16 vide letter dated 10-12-1985.
37. Placement of the appellant in B-16 vide order dated 4-10-1993 and with effect from 16-7-1977, pursuant to office letter dated 30-5-1991, according to learned counsel for the respondents was wrong and due to the error, as he was not entitled to be placed in B-16 under the Rules as he was not Matriculate, hence it was cancelled vide letter dated 13-2-1994. Moreover, according to him, the Deputy Director, who issued the letter of 4-10-1993 was not competent to issue such letter as such it was illegal. Although the learned counsel for the appellant contested such a stand and argued that since the said order has been acted upon and this has created his vested right, hence cannot be cancelled under the law. Nevertheless the matter of the fact is that the appellant who was non- Matriculate was not entitled to be placed in B-16 prior to 1985, how can he be allowed B-16, with effect from 16-7-1977. This was very much in the knowledge of the appellant. It was due to the efforts of the Labour Union that the non---Matriculates got the benefit of B-16. This is an admitted fact if the appellant had any grievance he should have agitated at that the when he got it first i.e. In 1985. However, he did not agitate at that the and chose to stay back and accepted the position.
How can he be given the benefit respectively when he was not even entitled. Moreover, an erroneous order cannot be given legal position.
38. For the reasons recorded above, the appeal having no substance is dismissed with no order as to costs. Parties be informed.