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Appeal No.220(R) of 1984, decided on 1st April, 1987.

‑‑‑S.4‑‑Civil Servants Act (LXXI of 1973), S.8‑‑Seniority‑‑appellant, declared surplus on basis of suitability‑cum‑seniority‑‑appellant holding a valid certificate could not be termed unsuitable‑‑Both appellant and respondent were taken permanently in sama scale and trade on one date‑‑Seniority inter se, held, was to be determined on basis of age at time of recruitment‑‑Appellant's date of birth was earlier than that of respondent‑‑Appellant declared senior to respondent.

Mansoor Ahmed for Appellant.

Nasir Ahmed Sindhu for Respondent No. 1.

Qastoonish Khan for Respondent No.4.

Date of hearing: 18th March, 1987.

‑‑The appellant. Muhammad Ismail, Helper, M&T Sub‑Division, WAPDA, Islamabad, has come in appeal against the impugned order, dated 8th January, 198y whereby, he was posted as a Helper instead of Meter Tester. He filed a departmental appeal, dated 24‑1‑1984 against the impugned order which has not since been replied.

2. The facts of the case are that the appellant joined REPCO, (Rawalpindi Electric Power Company) as a Paid Apprentice on 3‑5‑1978. It was contended by the learned counsel for the appellant that after completion of the apprenticeship period the appellant was redesignated as Meter Tester by REPCO and posted in the Meter Testing Laboratory.

This change in the designation of the appellant was affected as a result of the training imparted to him at the end of which a certificate was issued which is reproduced below:

"The Rawalpindi Electric Power Company Ltd.,

RAWALPINDI

In association with the Directorate of Manpower & Training Government of the Punjab under the Apprenticeship Ordinance 1962.

CERTIFICATE OF APPRENTICESHIP

Mr. Muhammad Ismail son of

< --[if gte vml 1]>< [endif]-->< [if vml]>< --[if gte vml 1]>< [endif]-->< [if vml]>< --[if gte vml 1]>< [endif]-->< [if vml]>Ghulam Rasul has successfully completed

on 2‑5‑1981 Four/Three/Two Years/Months

of Apprenticeship in the trade of Line Man

His apprenticeship comprised of practical training and related theoretical instruction.

His record during the period of his apprenticeship is as under: ‑‑

1. Proficiency 65/100

2. Character and conduct Good.

Issued on this__________

(Sd.) MANAGING DIRECTOR

Rawalpindi Electric

Power Co. Ltd. , Rawalpindi.

(Sd.)

Counter signature of

Competent Authority.

Director,

Manpower and Training

Punjab, Lahore.

3. It was further contended by the learned counsel for the appellant that in the Service Book of the appellant, he has been shown as Meter Tester and not as Lineman with effect from 2‑5‑1981 the date on which the training ended as given in the certificate reproduced above. However, on 19‑5‑1981 the management of REPCO was taken over by WAPDA with the express assurance that the terms and conditions of the employees will not be disturbed. During the reorganization process of REPCO, WAPDA redesignated the post of Meter Tester as Meter Mechanic in the same scale of pay and also reconsidered the authorised strength of various departments. During this reorganization process the Meter Testing Laboratory was authorised four Meter Mechanics instead of the seven who were working at the time of taking over. Therefore, three out of the seven were later declared surplus vide order, dated 10‑12‑1983 and the appellant was one of these three Meter Mechanics declared surplus. However, the appellant came to know about this order only when he was posted out of the Meter Testing Laboratory to M&T Sub‑Division, Islamabad as a Helper vide the impugned order, dated 8‑1‑1984. It was strongly contended by the learned counsel for the appellant that the impugned order declaring the appellant surplus was illegal, void and unjust. As a matter of fact respondent No.4, Mr.Rahat Anwar, Meter Mechanic who stood junior to the appellant was retained among the four Meter Mechanics authorised in the Meter Testing Laboratory. Respondent No.4 joined REPCO as Paid Apprentice on 10‑7‑1979 and was posted as permanent Meter Tester with effect from 2‑5‑1981 the same date on which the appellant was posted as permanent employee of REPCO as Meter Tester in the same pay scale. The age shown in the Service Book of respondent No.4 is 18 years at the time of recruitment as Paid Apprentice whereas the age of the appellant shown in the Service Book is 20 years. Therefore, since both the appellant as well as respondent No.4 joined permanent service on 2‑5‑1981 as Meter Mechanic, the appellant being senior in age should have been shown senior to respondent No.4 as Meter Mechanic. It is, therefore, against the principle of fairplay and justice that while declaring the appellant surplus on re‑organization of the Meter Testing Laboratory, he was shown junior to Respondent No.4. This act of injustice was also proved later on to have been taken because the S.D.O. Incharge at that time, namely, Mr. Muhammad Sarwar was a relation of Respondent No.4. The appellant came to know about this unfair and unjust change in his seniority v. Respondent No.4 only when he was shown as a Helper in the transfer order dated 8‑1‑1984. Since the decision so taken is against the existing rules of fixing seniority, it is liable to be set aside with costs.

4. It was contended by the learned counsel for WAPDA and also counsel for Respondent No.4 that at the time of reorganization of REPCO after it was taken over by WAPDA the question of seniority of the appellant as against Respondent No.4 was referred to the representative of REPCO who were still working to help the reorganization. The letter dated 24‑7‑1984 clarifying the position is reproduced below:‑

"To

Xen M & T,

WAPDA, Islamabad.

Subject: M&T STAFF OF SUB‑DIVISION.

With reference to the verbal discussion of O.S.D. of this circle with you on 18‑7‑1984 in regard to seniority list of M&T staff of sub‑division Rawalpindi. It is submitted that:‑

(1) M/94 Mr. Muhammad Ismail son of Ghulam Rasul joined REPCO on 2‑5‑1978 as Apprentice Lineman. He remained as Apprentice Lineman when he was posted Meter Repairer as permanent employee of REPCO on 2‑5‑1981.

(2.) W/109 Mr. Rahat Anwar joined REPCO as Apprentice Meter Tester on 10‑7‑1979 and remained as Apprentice Meter Tester when he was posted as permanent employee of REPCO on 2‑5‑1981 as Meter Tester.

It is evident from the record that since Mr. Rahat Anwar had joined REPCO on 10‑7‑1979 as a Meter Tester so he is senior in service according to cadre as Mr. Muhammad Ismail joined REPCO as Apprentice Lineman on 7‑5‑1978 and later on designated as Meter Repairer.

Moreover, the adjustment as per WAPDA, was made on suitability‑cum‑seniority basis.

(Sd.)

OFFICER ON SPECIAL DUTY

WAPDA CITY CIRCLE,

RAWALPINDI."

5. It was submitted that according to the explanation given by REPCO in the above quoted letter, two points were raised i.e. the appellant joined REPCO as Paid Apprentice Lineman on 2‑5‑1978 whereas Respondent No.4 joined as Paid Apprentice Meter Tester on 10‑7‑1979. Since the line of promotion of Lineman does not include the promotion of Meter Mechanic/ Meter Tester, the appellant stood junior to Respondent No.4 having joined the cadre of Meter Tester/Meter Mechanic later than Respondent No.4. Also the adjustment according to WAPDA have to be made on suitability‑cum‑seniority basis. Since Respondent No.4 was considered more suitable as compared to the appellant, it was decided to declare the appellant surplus as per the order quoted above.

6. It was also contended by the learned counsel for WAPDA that the present appeal by the appellant is time‑barred because the appellant was declared surplus on the reorganization of the Meter Testing Laboratory i.e. on 19‑5‑1981. Therefore, his present appeal against this order of declaring the appellant surplus was hopelessly time‑barred having been admitted on 24‑1‑1984. This contention was strongly rebutted by the learned counsel for the appellant because the only time the appellant came to know about his having been declared surplus was by the order dated 10‑12‑1983 and then by his posting order as Helper instead of Meter Mechanic by order dated 8‑1‑1984. The appellant appealed against the impugned order on 24‑1‑1984 and, therefore, the appeal is within time. Since there was no other order on record declaring the appellant surplus earlier then the one quoted above, this plea of the appeal being time‑barred does not stand proved.

7. According to REPCO letter dated 24‑7‑1984 reproduced above, the seniority of the appellant v. Respondent No.4 is being counted with effect from the dates of their having been recruited as 'Paid Apprentice' in their trades whereas the date of their permanent absorption as Meter Tester in both the cases is the same i.e. 2‑5‑1981. The line of argument of REPCO letter quoted above is that the appellant joined as Paid Apprentice in the trade of Lineman. This does not go to prove that the appellant could not be taken as Meter Tester i.e. in a different trade. This is rebutted by the contents of the certificate issued at the end of the training as reproduced above. In our opinion, although it is true that even in the certificate the trade of the appellant is shown as Lineman but on the strength of this very certificate from the very date the certificate has been issued, he has been shown as a permanent employee of REPCO as Meter Tester i.e. with effect from 2‑5‑1981. To our mind, it only goes to prove that the training given to the appellant qualified him to be employed as a permanent Meter Tester in addition to being a Lineman. This change in the cadre must have been determined as a result of the training on the basis of which the certificate was issued as above. The appellant was taken permanently as Meter Tester and not as Lineman. His permanent cadre and trade on 2‑5‑1981 could not be anything other than the Meter Tester. We also feel that the period as Paid Apprentice in both cases cannot be considered to determine the length of regular service because both for the appellant as well as for Respondent No.4, the regular service is to be counted from the day they became permanent employees of REPCO on 2‑5‑1981. Since on this date both the appellant and Respondent No.4 are in the same scale of pay as well as in the same trade, their seniority as per existing rules should be determined on the age at the time of recruitment. The appellant thus stands senior to Respondent No.4. We feel that REPCO letter dated 24‑7‑1984 as quoted above has, in fact, ignored these facts.

8. The upshot of the above discussion is that the appellant, Muhammad Ismail, is senior to Respondent No.4 as Meter Tester/ Mechanic and he should not have been declared surplus at the time of re‑organization of Meter Testing Laboratory. Since the appellant is a trained Meter Tester/Mechanic and holds a valid certificate, he cannot be termed unsuitable without assigning any cogent reason. The appeal, therefore, succeeds and the appellant is declared senior to Respondent No.4 as Meter Tester/ Mechanic.

9. No order as to costs.

10. Parties to be informed.

M. Y.H./372/Sr.F

Appeal accepted.

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