2007 PLP 1900 (SCMR)

HAMID ALI MIRZA, J.

This appeal with leave of the Court is directed against judgment dated 24-11-2003 in Appeal No.1820(L) of 1998 passed by learned Federal Service Tribunal, Lahore Bench, Lahore, whereby the said appeal filed by the respondent was disposed of in terms of the impugned judgment, hence this appeal.

2. Brief facts of the case are that respondent was aggrieved by an order dated 11-6-1997 whereby move-over from BS-18 to BS-19 was granted to sixty officers who had been given time scale upgradation in BS-18~ earlier whereas the respondent was ignored hence he filed appeal No.872(L) of 1997 before the Federal Service Tribunal, Lahore which appeal was disposed of vide judgment dated 12-6-1998 wherein it was observed that the respondent had made a representation on 10-6-1997 to the appellant for grant of move-over to BS-19 after allowing time scale upgradation in BS-18 on due date. However in the meanwhile an order dated 11-6-1997 was passed against which order the respondent did not prefer any appeal consequently Appeal No.872(L)/1997 was dismissed being not maintainable, and the respondent was directed to pursue his remedy against an .order dated 11-6-1997 and thereafter if he was aggrieved of an order he could prefer an appeal against the said order in case he was dissatisfied with an .order passed by the departmental authority. The respondent preferred representation on 20-7-1998 which was not responded by the appellant, therefore he preferred and Appeal No.1820(L) of 1998 before the Federal Service Tribunal, Lahore praying, therein to grant time scale upgradation in BS-18 either from September, 1979 or any other, date determined under the rule of move-over to BPS-19 from the date he reached the maximum of BPS-18. The appellants filed comments to .the appeal which was heard by learned Tribunal and disposed of vide impugned judgment with the direction that the appeal be decided in terms of the observations made in the impugned judgment. In the circumstances appellants have filed this appeal with leave of the Court.

3. The main contention of the learned counsel for the appellants is that non-graduate Engineers of the Water Wing were not entitled to promotion on the basis of the office order dated 12-4-1982 of the appellants as the Water Wing employees are regulated by independent Service Rules called "The West Pakistan WAPDA (Water Wing) Service of Engineers Rules, 1968 as amended vide office memorandum dated 20-10-1983. In the circumstances it was contended that Federal Service Tribunal was not justified in placing reliance upon office order dated 12-4-1982 considering that the same pertained to Power Wing. It was also contended that the .respondent was not entitled to have any concession/benefit on the basis of Article 25 of the Constitution of the Islamic Republic of Pakistan, as the order dated 12-4-1982 issued by the .appellant was for the Power Wing whereas services of the respondent are to be regulated under the Rules of Service of the Water Wing and further that the cause of action if any accrued to the respondent on 11-6-1997 and the respondent challenged the said order on 20-7-1998 which the appellant refused to reply on the ground that appeal/representation was time-barred.

4. The respondent in person submitted that his other colleagues Messrs Asif Ali Khan, Syed Basharat Ali and Shiraz Ahmad Qureshi were given move-over to BS-18 w.e.f. 1-12-1984 whereas he (respondent) was not granted move-over in BS-18 and his other colleagues were promoted as Senior Engineer against the quota of non -graduate Engineers, therefore the respondent was also entitled for promotion as Senior Engineer after 1-7-1979 after completion of ten years service. He submitted that vide office memo. dated 12-4-1982 relied upon by the learned Tribunal the respondent was entitled being non-graduate Engineer to time scale and upgradation to BS-18 considering that when the non-graduate Engineers working in Power Wing of the appellants were entitled to the said benefit then why Water Wing non-graduate Engineer be denied the said right as such there was discrimination on the part of the appellants. He has placed reliance upon decision of the court reported as Muhammad Rafique and others v. Managing Director (WAPDA) and others 1995 PSC 1236.

5. We do find substance and merit in the contentions of the learned counsel for the appellant.

6. The Tribunal has granted relief to the respondent on the basis of office memo. dated 12-4-1982.. The perusal of the said memo. would indicate that the said office memorandum pertained to non-graduate Engineers holding three years diploma from a recognized university and working in Power Wing to be entitled to time scale upgradation to BS-18 subject to five conditions mentioned .therein. The above office memorandum clearly indicates that it will be applicable to the Junior Engineers working in Power Wing only, whereas the respondent was working in the Water Wing, therefore no benefit could have been granted to the respondent on the basis of said Office Memorandum. It may also be noted that respondent in view of the amended Rules as per O.M. dated 20-10-1983 as per Rule 5(2)(d) of the Service of Engineers Rules 1968 was not entitled to be promoted. The said amended provision of the rules reads:-- "5(2)(d). The post of Senior Engineer will be filled in by:

(1) Promotion from among the Junior Engineers, who hold a degree in Engineering or equivalent qualification on the basis of seniority-cum-fitness: Provided that the Junior Engineer to be promoted has passed the Water Wing .Professional Examination and has also put in 5 years of approved service as such under the Authority. Explanation. The term "equivalent qualification" for the purpose of this rule shall be deemed to mean in qualification declared by the Authority through a special or general order to be equivalent to a degree in Engineering. 20% vacancies will be reserved for accelerated promotion. After 4 vacancies have been filled in on the basis of seniority-cum- fitness 5th vacancy will be filled in by a candidate who deserves accelerated promotion by virtue of his being head and shoulders above his colleagues in professional competence (which covers knowledge and experience), integrity and honesty and devotion to duty besides loyalty to WAPDA and the nation, as per guidelines contained in Appendix 'C' to the OR schedule. Direct recruitment of persons having any of the following qualifications:

(i) Ph.D. Engineering. (ii) M.Sc. Engineering from a University recognized by the Pakistan Engineering Council, having special experience of 3 years in the particular field of Engineering. "

7. The above Rule 5(2)(d) was amended vide O.M. dated 20th October, 1983 wherein the post of senior Engineer was to be filled in by promotion from among the Junior Engineers, who possessed a degree in Engineering or equivalent qualification on the basis of seniority-cum -fitness. The above rule was amended which omitted the entitlement of diploma holders for promotion to the post of Senior Engineer, therefore it could be concluded that Junior Engineer holding diploma will not be entitled to promotion as Senior Engineer at all. The respondent being Junior Engineer possession diploma was not therefore entitled to be considered for the post of Senior Engineer by the appellants.

8. The respondent himself in his appeal under section 4 of the Service Tribunals Act before the Tribunal in para.2(b) admitted stating that the rules were amended disallowing the promotion to non-graduate Junior Engineers which he stated was a case of clear discrimination with the respondent/appellant. It would indicate that respondent knew that in view of the amended. Service Rules Junior Engineer was not entitled to be promoted as Senior Engineers. It may further be observed that the respondent has claimed for time scale upgradation since September., 1979 or from 1-12-1984 but he remained silent since then and filed the appeal after long slumber.

9. So far contention that respondent's other colleagues Messrs Asif Ali Khan, Syed Basharat Ali and Shiraz Ahmad Qureshi were given move-over and promoted. It may be stated that they were senior most on the seniority list and were at serial Nos. 1 to 3 of the seniority list, therefore they were promoted as Senior Engineers out of 15 % quota then reserved for the Junior engineers for the purpose of Senior Engineers whereas the respondent stood then at serial No. 12 in Seniority list, therefore 15 % quota was given to those three, senior most Junior Engineers said above. It may also be observed that Water and Power Wings are different disciplines having different job descriptions therefore different Rules have been framed for their service purpose. Consequently the respondent cannot be governed 'under the rules meant for Power Wing. Engineers when under the Rules of Water Wing only, graduate Engineers are allowed time scale promotion whereas the respondent was diploma holder, therefore, he could not be placed in time scale BS-18 and subsequent move-over to BS-19.

10. Article 25 of the Constitution is not attracted in the instant case considering that discrimination stipulated under sub-Article (2) of Article 25 relates to making of distinction and difference between similar things. The case of discrimination would be where recourse had been made to different standard qua equally placed persons and parties. In the instant case there- is reasonable classification with regard to cadre and different discipline of jobs of the employees doing or performing different/distinct functions therefore different qualifications with regard to the appointment and promotion have been laid down. Not a single instance has been cited by the respondent whereunder Junior Engineer of Water Wing was allowed move-over to BS-18 and was placed in time-scale and then promoted to BS-19 after the amendment made in the Rules. The case-law cited also pertained to the case of Power Wing Diploma Engineers and it was not a case of Water Wing Junior Engineers, therefore the said cited case would not be of any assistance to the respondent.

11. In view of aforesaid reasons and rules and law, the appeal has merits, which is a accordingly allowed thereby order of the Federal Service Tribunal, Lahore Bench, dated 24-11-2003 is set aside. M.H./W-6/SC. Appeal allowed.