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Petitioner: MUHAMMAD ARIF PAUL VS Respondent: MANAGING DIRECTOR, WAPDA
1997 P L C (C
1997 P L C (C.S.) 946
[Lahore High Court]
Before Muhammad Aqil Mirza, J
MUHAMMAD ARIF PAUL and others
versus
MANAGING DIRECTOR, WAPDA and others
Writ Petition No. 10602 of 1992, heard on 1st April, 1997.
West Pakistan Water and Power Development Authority Employees (Recruitment from Service) Rules‑‑‑
‑‑‑‑ Sched.‑‑‑Constitution of Pakistan (1973), Arts. 25, 4 & 199‑‑‑Repatriated employees of Water and Power Development Authority ‑‑‑Seniority‑‑ Repatriated employees claimed seniority from the date they joined service of Authority while Authority offered them seniority from the date when, after repatriation, they re‑joined service of Authority‑‑‑Mode for determining seniority‑‑‑Transfer Policy of Authority indicated that if transfer and posting was made in the interest of Authority's work then seniority of transferee would be determined with effect from date of his continuous appointment in the post‑‑‑Repatriated employees having all along been employees of Authority had worked as deputationists with permission of Authority and on repatriation their transfers and postings in various offices of Authority were made in interest of Authority's work‑‑‑While determining seniority of such employees and other related questions, period of their service would be reckoned from the date of their initial appointment in Authority and not from the date of their repatriation to Authority‑‑‑Terms and conditions of repatriation of Authority's employees would indicate that they squarely fell within ambit of para. ii(a) of the Authority's Policy letter dated 4‑3‑1985 and their promotion vis‑a‑vis their juniors would have to be decided in accordance with provisions of that para.‑‑‑No separate classes could be created for repatriated employees and those of their colleagues who had remained in service of Authority, ‑‑Such classification would be discriminatory and violative of Art. 25 of the Constitution, whereby all citizens were equal before law and were entitled to equal protection of law‑‑ All employees who were sent to deputation would have to be treated alike after repatriation‑‑‑One set of such employees could not be awarded benefit of their past service while such benefit was denied to other employees by creating artificial classification‑‑‑Finding of National Industrial Relations Commission to the contrary denying benefit of past service to repatriated employees was declared to be without lawful authority and of no legal effect‑‑‑Authority was directed to determine seniority of repatriated employees, in accordance with para. ii(a) of terms and conditions of repatriation of employees of Authority.
Civil Petition No. 146 of 1991 rel.
M.A. Khadim and Malik Ghulam Rasool for Petitioners. ' Iftikhar Ahmad Syed for Respondents.
Dates of hearing: 1st February, 1995 and 1st April, 1997.
JUDGMENT
This Constitutional petition filed in 1992 was not formally admitted to regular hearing but for all intents and purposes it was treated a5 an admitted matter. The report and parawise comments were filed by WAVDA on 30‑3‑1993. Learned counsel for the petitioner and Syed Iftikhar AhrAad, Advocate for the WAPDA have been appearing in the case since 10'92. Initially, on 1‑2‑1995 exhaustive arguments was addressed by Mr. M.A. Khadim and Malik Ghulam Rasool, Advocates for the petitioner and by Syed Iftikhar Ahmad, Advocate for the respondents. The case was reheard on 1‑4‑1997. In these circumstances, case was treated and decided as a regularly admitted matter. Vide short order dated 2‑4‑1997 the writ petition was accepted, for reasons to be recorded latter. The reasons for the short order are given below: ‑
2. The writ petition has been filed by five employees of the WAPDA who arc presently working as Stenographer, U.D.Cs., Junior Clerk and Assistant. The relevant facts are that the petitioners had been employed by the WAPDA in the Machinery Pool Organization. The aforesaid Machinery Pool Organization, hereinafter to be referred as M.P.O., to work as an establishment of WAPDA till 31‑8‑1974, whereafter on account of reorganization the assets and liabilities of the M.P.O. were transferred to the newly created company known as Mechanised Construction of Pakistan Limited (MCPL). Without asking for the option of the employees, which also included the petitioners, their services were transferred to the M.C.P.L. and such employees were treated on deputation with M.C.P.L. Later on M.C.P.L. was dissolved and the WAPDA employees working therein were repatriated to WAPDA and posted in various Wings of WAPDA.
3. WAPDA had decided to take back the WAPDA employees serving on deputation with M.C.P.L. with the guarantee that the repatriated employees would be posted in WAPDA offices and in cases where it was found that their junior had already been promoted then they would be considered for pro forma promotion, without financial benefits, with retrospective effects by the appropriate Selection Board in terms of the prescribed criteria. The following terms and conditions were prescribed by the Authority as detailed in Memo dated 4‑3‑1985 (Annexure C): ‑‑
"Subject: Terms and Conditions of repatriation of WAPDA employees working with M.C.P.L.
The defunct 'Machinery Pool Organization' was functioning as a part of WAPDA and was looking after all the mechanical works including Workshops etc. In 1974, the Government of Pakistan created a limited Company in public sector named 'Mechanised Construction of Pakistan' and the then Ministry of Fuel, Power and Natural Resources ordered as under: ‑
Mechanised Construction of Pakistan Limited has taken over all the assets, liabilities, officers and staff of the Machinery Pool Organization but it has identity of its own and is independent of WAPDA.
2. Consequently, WAPDA employees working in the then Machinery Pool Organization stood transferred en bloc to the above said Corporation alongwith assets.
3. Chairman, Overseas Construction of Pakistan held a meeting with Chairman, WAPDA and discussed the matter with Additional Secretary, Ministry of Water and Power. It was decided vide Chairman, Overseas Construction of Pakistan's Letter No.OCP/903/A, dated 14th March, 1984 that Chairman, WAPDA will work out a programme of repatriation of WAPDA employees from M.C.P.L. After series of meetings at staff level with the representatives of‑M.C.P.L., the case was discussed in Authority meeting and WAPDA has approved the following terms and conditions for repatriation of WAPDA employees:
(i) Cases of officers/officials of WAPDA who are serving on deputation with M.C.P.L. and have completed 25 years service or have attained 55th year of age, shall be reviewed by competent Authority in WAPDA, in accordance with WAPDA Employees' (Recruitment from Service) Rules, for their continuation, for which purpose their record and other relevant data will be provided by M.C.P.L: In case any employee is not upto the required standard, he can be recommended for retirement. If the employees are approved by competent Authority for further continuation posts are not available, then the persons in that category will have to be noticed off in reverse order of seniority (including the employees serving in WAPDA), in accordance with Rule 2, of Chapter‑III of 'The Pakistan WAPDA Pension Rules, 1977.
(ii) (a) WAPDA employees, serving on deputation with M.C.P.L shall on repatriation from M.C.P.L., be accepted and posted in WAPDA. In cases where it is found that their juniors have already been promoted in WAPDA then they will be considered for pro forma promotion, without financial benefits with retrospective effect by the relevant Selection Board, provided they fulfil the qualifications and the criteria prescribed by WAPDA in relevant Service Rules, instructions/orders. This will be subject to the condition that they shall have to pass the professional/promotion examination, where prescribed in WAPDA Rules for its employees for being eligible for promotion, within three years of such pro forma promotion. In case of their failure to do so, they shall be reverted to lower posts in the relevant Cadre.
(b) The present grade of the subordinate employees, who were exclusively borne on M.P.O. Cadre before repatriation, will not be disturbed, on repatriation to WAPDA. The seniority of such employees, when absorbed on Projects, will be fixed vis‑a‑vis the existing employees working on those Projects, as per Rules of WAPDA.
(iii) (a). It will not be possible for WAPDA to absorb all the employees
in one lot. Therefore, the absorption will be considered in batches, on quarterly basis, by a Committee consisting of the following officers:‑‑
(l) Managing Director (P.M.) Governor
(2) Chief Engineer (Adorn.) Power Member
(3) Chief Engineer (Adorn) Water Member
(4) Director‑General (S&GA) Member
(5) Manager Finance (Coord) Member
Those who cannot be absorbed in their own trade, their conversion to other trades will be considered and a proper training programme planned.
(b) It is not possible to absorb 64 Mechanical Engineers, presently working with M.C.P.L. M.C.P.L. had agreed to retain a few Mechanical Engineer, and the remaining number will be repatriated, in batches, according to requirement to be indicated by WAPDA, for their absorption in Power Stations.
(iv) Those employees who were engaged by WAPDA in M.P.O., on work‑charged basis, and were transferred en bloc to M.C.P.L., would be considered for grant of Pension, provided M.C.P.L. pays their pensionary charges for the period they served in M.C.P.L.
(v) Pension and Leave Salary contributions of employees, working on deputation with M.C.P.L. up to the date of their repatriation will be paid by M.C.P.L., on the date of their repatriation. Their E.P. Fund accumulations will also be handed over on that date, in accordance with the detailed instructions to be issued by Manager Finance concerned.
(vi) The following Workshops, which were originally transferred by WAPDA to M.C.P.L., will be handed over to WAPDA alongwith their warehouses:‑
(a) Sukkur
(b) Jamshoro
(c) Faisalabad
(d) Shalamar, Lahore.
The cost of the land, building and machinery installed in these workshops will be determined by a Committee comprising, a Mechanical Engineer, a Civil Engineer and a Director (Accounts) (each of BS‑19) from each side. The Committee, will keep the following factors in view, while making evaluation.
(a) The cost of the land, building and machinery will be determined according to book value at the time of their transfer of M.C.P.L., taking into account the depreciation of machinery since its transfer to M.C.P.L.
(b) If any building has been demolished by M.C.P.L. and new construction made, the difference is to be worked out for final adjustment. In the like manner, cost of new structure, if any, is to be determined.
(c) Cost of new machines installed, if any, by M.C.P.L. in these workshops, will be assessed as per its purchase value, after working out its depreciation for the period it had been used.
(Sd.)
Director‑General (S&GA) WAPDA, WAPDA House, Lahore. "
4. The petitioners were not considered for pro forma promotions by the WAPDA on the assumption that their seniority required to be worked from the date of their actual posting after repatriation from M.C.P.L., ignoring their past service, while the petitioners' case is that they are governed by condition ii(a) referred to above and their past service in M.C.P.L. should be counted in determining their seniority. C.B.A. took the grievance before the National Industrial Relations Commission. The General Manager (Administration) WAPDA appeared before the Full Bench of the N.I.R.C. and gave the following undertaking which is in line with the afore-quoted conditions prescribed by the Authority:‑
Brig: (Retd.) Asadullah Khan appeared before us today and stated that WAPDA will honour its commitments contained in letter dated 5th March, 1985. By way of elaboration, he stated that the repatriation fell mainly into two categories vis, cadre workmen and the non‑cadre workmen. The cadre workmen were those for whom regular cadres existed in various wings of WAPDA These cadre workmen shall be repatriated and absorbed in their respective cadres in WAPDA on a post appreciate to their/his grades in the said cadre. In case it is found that their Juniors have already been promoted in WAPDA then they will be considered for pro forma promotion without financial benefits and with retrospective effect by the relevant Selection Board, provided they fulfil the qualifications and criteria prescribed by the WAPDA under the relevant service rules, instructions/orders for these orders. If there are any professional/promotional examinations, those shall have to be' passed for promotion within three years of such pro forma promotion. In case they failed to do so, they will be reverted to lower posts in the relevant cadre.
As for the non‑cadre workmen for whom no cadres exist in WAPDA and whose posts are mainly of technical nature,. their present pay in M.C.P.L. will remain protected even on absorption in WAPDA.
However, if those workmen are not absorbed in their own trade, their conversion to other trade shall be considered and WAPDA shall set up a suitable training programme for these workmen. While the pay of non‑cadre workmen shall be protected their status shall however, not be protected, in that, after training they ‑may be absorbed in some other suitable cadre."
The learned Full Bench of M.I.R.C. disposed of the matter vide order dated 20‑8‑1985, in view of the above undertaking given by the WAPDA officer. Subsequently, however, the WAPDA took an interim decision that the seniority of the M.C.P.L. Staff adjusted in WAPDA will be reckoned from the date of their arrival in WAPDA. This interim decision is contained in letter dated 17‑12‑1985 of the Director (Admn.) which is reproduced below:‑
"It is stated that as per existing order of the Authority, the seniority of the M.C.P.L. Staff adjusted in WAPDA will reckon froth the date of their arrival in WAPDA, the final decision on the matter will be conveyed as and when decided by the Authority."
6. The petitioners aggrieved of the afore-quoted decision approached N.I.R.C. by making complaint under section 22‑C, I.R.O. for implementation of its order dated 20‑4‑1985. This petition, however, was dismissed on the view that the petitioners being subordinate employees of M.P. O. were to be given seniority in WAPDA from the date of their joining the WAPDA after repatriation. The benefit of the condition contained in para. ii(a) of the Authority's letter dated 4‑3‑1985 was not granted to them, because in the opinion of N.I.R.C. the provisions of this para excluded the employees of M.P.O. This decision of the N.I.R.C. is dated 25‑6‑1992.
7. Feeling aggrieved of the above order of the learned Full Bench of N.I.R.C., this petition under Article 199 of the Constitution has been filed to claim the following relief:‑‑
"It is, therefore, respectfully prayed that a direction may kindly be given to the respondents Nos. 1 to 4 to act according to law arid to implement the agreement dated 4‑3‑1985, undertaking given before the Full Bench of the National Industrial Relations Commission and decision dated 20‑8‑1985 passed by the Full Bench of the National Industrial Relations Commission and to follow in letter and spirit the decision of the Honourable Supreme Court passed in Civil Petition No. 146 of 1991 vide decision dated 14‑10‑1991 so that the petitioners' seniority is reckoned from the date of appointments of the petitioners and try living pro forma promotion and selection grade. The costs of the petition be also awarded."
8. Learned counsel for the petitioners have submitted that the petitioners were recruited as office clerks in M.P.O. Wing of the WAPDA and on their repatriation from M.C.P.L. they are entitled to the benefits contained in para. ii(a) (ibid). He has explained that the petitioners' services were transferred on deputation to M.C.P.L. alongwith other employees en bloc without their consent. They have been considered as WAPDA employees and after repatriation from M.C.P.L. they have beet posted in WAPDA Offices in the interest of the Authority. Learned counsel have argued that exclusive cadre of M.P.O. were such as Operators, Machinemen, Blacksmith, Mechanics, Carpenters and Masons etc. and there was no exclusive cadre for the clerical staff of the M.P.O. It is also submitted that the case of the petitioners is similar to that of Ch. Muhammad Bashir who was posted as Junior Clerk in M.P.O. and was sent on deputation like the petitioners to M.C.P.L. and on repatriation from there he was found entitled by the Honourable Supreme Court to claim seniority by counting his past service in M.C.P.L. It is argued that the learned Supreme Court while refusing leave to appeal filed by the WAPDA observed that Muhammad Bashir worked with M.C.P.L. for 12 years and obviously he had lien against his post under the Authority, On the basis of this observation it has, been argued that the petitioners are similarly placed and their case too has to be decided according to the view taken in Muhammad Bashir's case. Learned counsel have criticised the impugned decision of the N.I.R.C. and have contended that the employees who were appointed in the M.P.O. were very much the WAPDA employees serving on deputation with M.C.P.L. and on their repatriation from M.C.P.L. they had to be accepted and posted in WAPDA with all the benefits detailed in para. ii(a) ibid. According to the learned counsel, it has been wrongly held by the N.I.R.C. that employees of M.P.O. were not entitled to the benefits of the provisions of the said para.
9. Syed Iftikhar Ahmad, learned counsel for WAPDA has very fairly conceded that M.P.O. was a part of WAPDA Organization. He, however, has submitted that the petitioners were borne on exclusive cadre of M.P.O. and their case will be covered by para. ii(b) and not by ii(a) of the Authority's letter referred to above. Learned counsel has explained that since the petitioners were exclusively borne on the M.P.O. Cadre before repatriation their seniority cannot be disturbed and for the purpose of seniority and pro forma promoted their past service in M.C.P.L. cannot be considered. Learned counsel also raised the objection that for appropriate relief the petitioners should approach the Federal Service Tribunal which alone has the jurisdiction in the matter. This last plea of the learned counsel was countered by Mr. Asghar Khadim, Advocate by saying that the present petition has been filed against the complaint case decided by the N.I.R.C. and for a direction to WAPDA to take final policy decision with regard to the repatriated employees of the WAPDA from M. C. P. L. in the light of the law laid down by the Honourable Supreme Court and relief to this extent can be granted by this Court. He has also vehemently contradicted the learned counsel for the WAPDA that cadre of clerks and stenographers was exclusive to M.P.O. He has vehemently argued that the controversy that the clerks in M PO were entitled to the benefits of para. ii(a) (ibid) stood finally resolved by the Honourable Supreme Court in the aforementioned case of Muhammad Bashir who had also joined M.P.O. as a junior clerk.
10. I have carefully considered the respective contentions of the learned counsel for the parties. This is an admitted position that the petitioners were employees of WAPDA serving in M.P.O. when they were sent on deputation to M.C.P.L. ,Learned counsel for WAPDA has conceded this position. Otherwise also, it is clear from Annexure 'H' that the petitioners, were WAPDA employees. This Annexure comprises .of two offices orders dated 27‑6‑1985 and 13‑11‑1985 issued by the WAPDA administration. The office order dated 27‑6‑1985 contains the names of Muhammad Siddiq, Muhammad Arif Paul and Shahid Hussain Bokhari petitioners and it reads as under;‑‑
"Consequent upon repatriation of WAPDA employees serving on deputation in M.C.P.L. the following employees are hereby transferred and posted as under, against the existing vacancies, in the interest of Authority's work and till further order."
Office order dated 13‑I1‑1985 is in similar terms and relates to Muhammad Siddique, Akbar and Muhammad Athar petitioners. The concession made by the learned counsel for the WAPDA and the above referred office orders show that the petitioners were the WAPDA employees and they were transferred on deputation to M.C.P.L. Subsequently, they were repatriated to WAPDA and posted in various WAPDA offices in the interest of Authority's work. There is‑also the admitted Transfer Policy of WAPDA that if transfer and posting is made in the interest of Authority's work then the seniority of the transferee shall be determined with effect from the date of his continuous appointment in the post as is apparent from the amendment of the Rule contained in Authority's Memorandum dated 13‑11‑1985 which is placed on record as Annexure J. The position that emerges, therefore, is that the petitioners have all along been the employees of WAPDA, they worked as deputationists in M.C.P.L. and on repatriation their transfers and postings in various offices of WAPDA were made in the interest of Authority's work. In view of this‑position, in the matter of determination of their seniority and other related questions, the period of their service shall be reckoned from the date of their initial appointment in WAPDA and not from the date of their repatriation to WAPDA from M.C P.L.
11. All related matters in connection with the repatriation of WAPDA employees from M.C.P.L. to WAPDA were discussed by the Authority which prescribed the terms and conditions for repatriation of WAPDA employees, vide letter dated 4‑3‑1985, which has been reproduced in the earlier part of the order.
12. This policy decision of WAPDA clearly spells out that WAPDA employees who were serving on deputation with M.C.P.L., on repatriation from M.C.P.L. are to be posted in WAPDA and in cases where it is found that their juniors have in the meantime been promoted in WAPDA, then they will be considered for pro forma promotion, without financial benefits with retrospective effect, by the relevant Selection Board, provided they fulfil the qualifications and criteria prescribed by WAPDA in relevant Service Rules/Instructions/Orders and subject to the condition that they have to pass the professional/promotion examination, where prescribed in WAPD.A Rules. The General Manager of WAPDA when he appeared before the Full Bench of N.I.R.C. on 20‑8‑1985 also gave similar undertaking and explained the meanings of paras. (ii)(a) and (ii)(b) (ibid), as understood by WAPDA administration.
13. The case argued by the learned counsel for the petitioners is that the petitioners are covered by para. ii(a) of the Authority's Policy letter dated 4‑3‑1985. On the other hand the case of the learned counsel for the WAPDA is that the petitioners were on exclusive cadre of M.P.O. and their case will be covered by para. ii(a). I do not agree with the submission of the learned counsel for WAPDA, The petitioners squarely fall within the ambit of para. ii(a), because they were serving on deputation with M.C,P.L. and on their repatriation from M.C.P.L. they have been posted in WAPDA against various posts. The question of their promotion vis‑a‑vis their juniors shall have to be decided in accordance with the provisions of this para.
14. Para. ii(b) does riot contemplate that those WAPDA employees who were initially recruited in M.P.O. would not be entitled to the benefit of pro forma promotions referred to in para. ii(a) ibid. In fact provisions o1 para. ii(b) are to be read for the limited purpose of protecting the existing service benefits of the subordinate employees who were borne on cadres which were exclusive to M.P.O. These cadres are those which were peculiar to M.P:O. and the like do not exist elsewhere in WAPDA. So far as the cadre of clerical staff is concerned it is not exclusive to M.P.O. Such cadre exist in all the organisations of WAPDA. This interpretation of mine is supported by the explanation made by the General Manager (Administration; in the N.I.R.C., which is to the effect that "as for the non‑cadre workmen for whom no cadre exist in WAPDA. and whose posts are mainly of technical nature their present pay in M C P L will remain protected even on absorption in WAPDA. " Provisions of para. ii(b) are for the benefit of such non‑cadre workmen and the same cannot be read to mean that it also covers the petitioners or that they cannot earn the benefit of their service in M.C.P.L. for the purpose of seniority and pro forma promotions.
15. Learned counsel for WAPDA submitted that the Authority in the policy decision dated 4‑3‑1985 crated two classes of employees who were employed in the M.P.O. and were sent to the M.C.P.L. on deputation and…
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