1976 PLP 305(2) (PLC)

2. Syed Farrukh Hussain respondent is employed as Accounts Assistant in the office of the Chief Accountant (s) WAPDA, Lahore. He passed the departmental examination qualifying for promotion to the rank of Assistant Accountant in January 1972. Subsequently a ban was imposed on further recruitments and promotions which has since been lifted. Before the lifting of the ban and after the respondent passing the qualifying departmental examination many other Accounts Assistants passed qualifying departmental examination for the promotion to the post of Assistant Accountant in the intervening period. The authority i.e. the appellant on 29-5-1974 selected about 26 employees for promotion to the post of Assistant Accountant on the bass of their having already qualified in the departmental examination and keeping in view the seniority. The respondent Farrukh Hussain is not included in this list. He felt aggrieved by taking the stand that he had qualifi ed in the departmental examination earlier than many of these who have been promoted vide order dated 29-5-1974 although they passed the qualifying examination subsequently. He moved a grievance notice on the appellant and then filed an application under section 25-A before the learned Lower Court, out of which the present appeal arises. In his application before the learned lower Court he raised the contention that by his passing departmental examination qualifying for promotion earlier than those who have been pro moted be became senior and therefore the order of promotion dated 29-5-1974 was illegal.

3. This application of the respondent was resisted by the appellant who pleaded inter alia that the persons who were selected for promotion vide order dated 29-5-1974 were senior in service to the respondent and that they were also qualified for promotion at the time of selection as by that time they top had passed the qualifying departmental examination. The order in question was made in accordance with the relevant statutory rules of service.

4. Farrukh Hussain respondent appeared as his own witness before the lower Court while one Abdul Shakoor appeared before the lower Court on behalf of the Authority. After considering the evidence produced before it the lower Court concluded that the petitioner had put in a long service and throughout his service there was nothing against him and therefore he had good case and consequently his application was accepted.

5. I have carefully gone through the records of the case and. the, parties have also been beard at a considerable length. The West Pakistan Water and Power Development Authority is a statutory body having been estab lished under the West Pakistan Water and Development Authority Act. 1958 (West Pakistan Act XXXI of 1958). Section 18 ibid provides that the authority shall prescribe the procedure for appointment, and terms and conditions of service of its officers and servants, and shall be competent to take disciplinary action against its officers and servants. The Authority has consequently pres cribed the procedure for appointment and terms and conditions of service of the members of its accounts service by making the West Pakistan WAPDA Accounts Service Rules, 1966.

6. In the case under consideration the point fir determination between the parties is as to whether the respondent was entitled to promotion to the post of Assistant Accountant on the basis of the date of passing of qualify ing departmental examination or on the basis of seniority. The post of Assistant Accountant forms part of the cadre of West Pakistan WAPDA Accounts Service Rules, 1966 read with the Appendix to the said Rules. Rule 4 (5) ibid deals with promotion. It reads as follows: - Vacancies to be filled by promotion shall be filled by selection on merit with due regard to seniority from among members of the service eligible for such promotion in accordance with provisions contained in column 5 of Appendix; provided that where the passing of depart mental promotion examination is also a prerequisite for promotion, a holder of cadre post who does not pass the said examination shall not be eligible for promotion. In the Appendix the post of Assistant Accountant figures at serial No.

6. Minimum qualification prescribed for appointment is subordinate Accounts Service Examination of the Government Accounts Department. The method of recruitment in column 4 of the appendix for this post is "by promotion from Accounts Assistants and Divisional Accountants, who have passed the prescribed departmental examination for promotion to the grade of Assistant Accountant. In case eligible promotees are not available then by initial recruitment". The combined effect of rule 5 (5) and the relevant entries of the Appendix would appear to be that ordinarily post; of Assistant Accountants are to be filled by promotion from Accounts Assistants and Divi sional Accountants who have duly passed the prescribed departmental accounts examination for promotion and they are to be selected for promotion on merit with due regard to seniority. As regards seniority rule 9 of the West Pakistan WAPDA Accounts Service Rules, 1966 deals with' seniority. This rule reads: -

9. Seniority.-(1) The seniority inter se of the members of the Service in the various grades thereof shall be determined, (a) in the case of a member appointed by initial recruitment in accordance with the date of entry in service made by the Authority, except those cases where a different seniority is specifically determined by the appointing authority at the time of recruitment, in the case of members appointed otherwise with reference to the dates of their continuous appointment therein: Provided that if the date of continuous appointment in the case of two or more members of the Service is the same, the elder official shall rank senior to the younger official or officials. (2) The seniority in the various grades of the Service of the members appointed by initial recruitment vis-a-vis those appointed otherwise shall be determined with reference to the date of appointment to such vacancy in the case of the official appointed by initial recruitment, and to the date of continuous appointment against such vacancy in the case of the official appointed otherwise, provided that if the two dates are the same the official appointed otherwise shall rank senior to the official appointed by initial recruitment. A considered analysis of the provisions contained in rule 9 supra would lead to the conclusion that the date of passing of a qualifying departmental examination for promotion to a post in the service has no bearing so far as seniority is concerned, although only those members of the service can be considered for promotion who have passed the prescribed departmental accounts examination for promotion. This is a common ground between the parties that all those persons who have been selected for promotion to the R post of Assistant Accountant vide order dated 29-5-1974 had already passed the qualifying departmental examination prescribed for promotion to the post of Assistant Accountant and this too is not denied that they were also senior to the respondent in accordance with rule 9 of the West Pakistan WAPDA Accounts Service Rules, 1966 dealing with seniority. It is therefore concluded that the order of the Authority dated 29-5-1974 which has been challenged by the respondent before the Court below is not violative of the relevant statutory rules.

7. The respondent has raised a half-hearted plea that his right of pro motion to the post of Assistant Accountant was protected by virtue of the provisions of section 9 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 which protected the existing conditions of employment which were more favourable to workmen than those provided in the Standing Orders. I do not find any substance in this plea of the respondent firstly because he had no existing right of promotion to the post of Assistant Accountant in preference to those who have been pro moted vide order dated 29-5-1974 and secondly because West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 has no application in this case in view of the existence of statutory rules o service. It is clearly provided in the first proviso to section 1 (4) that nothing in this Ordinance shall apply to an Industrial and Commercial Establishment carried on by or under the Authority of the Central or any Provincial Govern ment, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein.

8. In the light of what has been said above, it is concluded that the impugned order is not sustainable. The appeal is accordingly accepted, the impugned order of the lower Court is set aside and the application filed by the respondent under section 25-A of the I. R. O. against the appellant before the lower Court is dismissed.