1989 PLP (C (PLC(CS))

MALIK MUHAMMAD PARVEZ KHAN (CHAIRMAN).--Appellant assailed the impugned order dated 8-10-1988 vide which he was asked to opt for BS-1 or to be prepared for retirement as he does not fulfil the qualifications prescribed for the posts of Projectionist falling in BS-8. According to him he joined the service under the respondents on 3-4-1968 in the Pay Scale of Rs.16-7-188 now equivalent to BPS-8. He was posted at Abbottabad and continued serving the department when on 30-6-1981 the service of the appellant was confirmed/regularized and a departmental selection committee was constituted to probe into the matter and recommend about the suitability of the incumbents of the different cadres. He appeared before it and was declared fit. Those who were not recommended by the said committee were later on removed from service. In March, 1985, a notification was issued which does not contain the name of the appellant and 5 other persons and a letter was addressed to the Provincial authorities by respondent No.4 recommending the appellant and others. However the name of the appellant did appear in the seniority list at S.No.2 published in the year, 1984 and the same was the position in the final seniority list released by the department in the year, 1985. But to his utter dismay after rendering 18 years service the appellant was apprised in 1986 that since his educational qualifications being nil he cannot be retained in BPS-8, however he may opt for BS-1. Against the said order appellant preferred an appeal to the competent authority alongwith the School Leaving Certificate in which the appellant was shown to have studied upto 9th Class. He brought that certificate to the notice of the Departmental Selection Committee when he appeared before it in the year, 1981 but to his bad luck the certificate could not find place in the relevant record. No reply excepting the impugned order was given by the respondents so the present appeal on the grounds that the impugned action is illegal, ultra vires of the law and rules. Furthermore the department has failed to follow the principles of consistency in the case of the appellant and his other colleague. Muhammad Sadiq who was totally illiterate, Nabi Bakhsh and Bashir Ahmad who studied upto primary class and Muhammad Yousaf who is middle pass. All of them have been confirmed in service in BPS-8 while the appellant was asked to opt for grade-1 or be ready to leave the job. Claim of the appellant was resisted by the respondents on the grounds that he has got no cause of action, that he is estopped to file the present appeal and that appeal is barred by time. Further it was alleged that the appellant was declared suitable provided he produces the education certificates. The educational qualification for Projectionist was prescribed as matriculation. His case for relaxation was sent to the Population Welfare Division but no decision was made. They admitted the circulation of the final seniority list and the place assigned to the appellant in it. However the Provincial Government declined to relax the rules in case of the appellant although the persons namely, Muhammad Sadiq, Nabi Bakhsh, Bashir Ahmad and Muhammad Yousaf were retained and the educational flaw in their case was relaxed by the Population Welfare Division. Arguments heard and the record perused. It is quite clear that appellant was recruited as a Projectionist in the department in the year, 1968. He worked quite satisfactorily for 13 long years when in the year, 1981 the department was regularized and rules framed to assess the case of every individual employee in accordance with the provisions. Now the question that would arise is that whether the said rules have got the retrospective effect or not. The reply is that the law or the rules are made for the benefit of its subject /employees and it could not in any way affect the interest of the subject adversely provided it is explicitly embodied in the rules that these are retrospective in nature. It would create an anomaly if such state of affairs exists. Let us take the example from our daily life. In case of the doctors, the minimum qualification prescribed for appointment is presently M.B.,B.S. but if the standard of education becomes higher and the rate of literacy goes up and the Provincial Government prescribes the minimum qualification for induction into service for a doctor as MRCP or FRCS. This would not mean that the doctors already serving and having no such like qualifications would be thrown away from service. Legislature or law-makers would not in any way encourage this state of affairs. Same is the position in the present case. Appellant had appeared for interview in the year, 1968 and was declared suitable, having full qualifications for his induction in service as Projectionist and he was offered the, job which was accepted by him and he was posted at Abbottabad against that job. Moreover the department must have followed the same policy in the case of the appellant and his other colleagues whose services have been regularized, notwithstanding the fact that either they are totally illiterate or their educational qualifications were less than the appellants. There must be, one yardstick in case of every individual/employee in order to avoid frustration and the feelings of injustice amongst the members of the service. The department itself published the seniority list in which his name appeared at S.No.2. If he lacked the qualification then how his name was included in the seniority list maintained by the respondents for the purpose of smooth running of the department, the regularization and promotion of the employees. On the basis of the above, we have come to the conclusion that the appellant had got good case and by accepting the present appeal, we set aside the impugned order and direct that he shall work in the department under the respondents against the post in the manner he had been working before the passing of the impugned order. Parties are left to bear their own costs and file be consigned to the record room. M.Z.S./114/Sr.N Appeal accepted.