1993 PLP (C (PLC(CS))

CH. HASAN NAWAZ (MEMBER).‑‑‑The business of this judgment lies in the disposal of twelve appeals under section 4 of the Service Tribunals Act, 1973 giving rise to identical questions of law and facts, filed by different employees of WAPDA on different dates, in the background of following material facts:

2. The appellants, some of whom hold two or three years diploma in Engineering from a recognised institution, are all members of the Drawing Staff in the Water Wing of the Authority. They came on initial appointment on different dates during the period from 1956 to 1966, as Overseers, Draftsmen, Head Draftsmen and Divisional Head Draftsmen. During the course of employment they got promotions to posts in B‑12, B‑13 and B‑14 as Divisional Circle and Chief Draftsmen. The other facts material for determination of the points involved are that they all have more than ten years' service to their credit in B‑11 and above and that they did not pass the prescribed departmental examination, which remained a condition precedent till 16‑1‑1986 for promotion to B‑16 posts.

3. As for facts constituting cause of action in these cases, the first in point is the one borne out by Office Memorandum dated 16‑11‑1974 issued by the Ministry of Fuel, Power and Natural Resources, Government of Pakistan, on the subject of demand of the Pakistan Diploma Engineers Federation. A Committee cons1sting of Federal and Provincial Government representatives was constituted to consider these demands and to make recommendations. The report of the Committee was placed before the Prime Minister and it was, inter alia, decided with his approval that 25% of the total posts of Diploma Engineers should be placed in Grade‑16 and that these posts should be filled on the basis of seniority‑cum‑fitness and subject to ten years service and passing of the prescribed departmental examinations.

4. In consequence of Prime Minister's decision received by WAPDA through Ministry's O.M. dated 16‑11‑1974, it was decided by the Authority through Office Order dated 16‑12‑1975 that 25% of the total posts of Diploma Engineers may be placed in Grade‑16 and that these posts should be filled on the basis of seniority‑cum‑Fitness, subject to ten years of service and passing of the prescribed departmental examination.

5. This was followed by Office Order dated 17‑6‑1977 on the same subject issued by the Authority in pursuance of its decision dated 16‑12‑1975, inter alia, laying down that: (a) 25%. (Twenty‑five per cent) of all the posts in NPS‑11 and above in the following group sub‑cadres including posts of diploma engineers shall be deemed to have been placed in NPS‑16. (b) Grade‑16 has been allowed to Diploma Engineers with ten years experience and passing of Departmental Examination by Prime Minister in the Government Policy decision conveyed vide No. WA/4(25)74, dated 16‑11‑1974 and WAPDA has decided to enforce that decision with immediate effect. (c) In view, however, of the increase in the total number of Grade‑16 posts as per Para‑‑1 and in order to have a common cadre for promotion to Grade‑17, the Authority has decided to give an opportunity to all Diploma Engineers as well as others having ten years' experience to compete in the departmental examination for the enlarged number of Grade‑16 posts. (d) The NPS‑16 will be allowed by the competent authority not below the rank of Chief Engineer on seniority‑cum‑fitness basis within their respective group sub‑cadres indicated below after passing the Departmental Professional Examination to be prescribed by the Authority. (e) The "Prescribed Departmental Examination" means the Departmental Professional Examination to be prescribed by the Authority as far as Power Wing is concerned and the examination already prescribed by the Authority in Water Wing for Overseers."

6. As we see from this Office Order, Group Sub‑Cadre `A' was in respect of Drawing Staff, which was comprised of the posts of Assistant Draftsman (Pay Scale No. 11), Draftsman Grade B' (Pay Scale No. 12), Draftsman Grade `A' (Pay Scale No. 13) and Chief Draftsman (Pay Scale No. 14). The appellants are admittedly members of the Drawing Staff. It is worthwhile to mention that this office order, like the previous ones, was also issued by the Authority and appears to have embraced, both the Power as well as Water Wing.

7. On 11‑10‑1983 the following Notification was issued by the Office of Managing Director (Power) WAPDA, Lahore: In pursuance to an agreement reached between Pakistan WAPDA, Hydroelectric Central Labour Union, Lahore and MD(P) on demand No. 5(ii), which has been approved by the Authority as communicated vide Endorsement No. DLW‑09623/PF/Vol‑VII‑11477‑594, dated 26‑9‑1983 of Director, Labour and Welfare, WAPDA it is decided that 25% Senior most upper subordinates having 10 years' satisfactory service may be placed in Grade‑16 without process of examination. However, promotion to NPS‑17 will be subject to passing of the Departmental Examination. (Sd.) (MIAN ABDUL QAYYUM), Chief Engineer (Admn.) Power WAPDA, WAPDA House, Lahore."

8. We might as well mention Office Order dated 14‑4‑1984 issued, again by Managing Director (Power) with reference to his earlier Office Order dated 11‑10‑1983. Paragraph 1 of this Office Order being relevant, may be reproduced in detail. It is as follows: "(1) The incumbents of all group sub‑cadres enumerated in para. 4 of Secretary, WAPDA Office Order No. 2234‑ 77/MDP/CEA/Admn.11/16/304, dated. 17‑6‑1977 which was an amplification of the earlier Office Order No. S/SO(E‑II)1 (943‑B) Admn/50483‑803, dated 16‑12‑1975 will be eligible for placement in Grade‑16 to the extent of 25% of total number of posts in BPS‑11 and

12. The Notification dated 11‑10‑1983 does not in any way modify either of the said two Office Orders except that the condition of qualifying the departmental examination for placement in Grade‑16 as prescribed in para. 2 of both the office orders with reference to Federal Government's Office Order dated 16‑11‑1974 has been done away with. Promotion to Grade‑17 has now been subjected to qualifying the departmental examination."

9. It appears that certain employees of the Power Wing made representations, on the basis of aforementioned Office Orders and Notification, for placement in B-16 with effect from 16‑12‑1975. These representations were decided with the following letter of 4‑6‑1989 addressed by the Office of Managing Director (Power) to the Chief Engineer (GSO) WAPDA, Lahore:

"The matter has been given due consideration and it has been held that placement of Diploma Engineers/Sub‑Engineers/Line Superintendents/S.S.Os. and other Upper Technical Subordinates who qualify the prescribed criteria except passing of Departmental ‑Examination may please be allowed BPS‑16 with effect from 16‑12‑1975. The condition of passing Departmental Examination is not a ‑ attracted as the same had not been .prescribed by that date. This issues with the approval of the Chief Engineer (Admn.), Power WAPDA, Lahore. (Sd.) DY. DIRECTOR (ADMN/POWER‑II), WAPDA, WAPDA HOUSE, LAHORE."

10. It was on the bass of concessions made by the Authority to the employees of Power Wing that the appellants addressed representations to Chief Engineer (Water) WAPDA, Lahore claiming grant of B‑16 with effect from 16‑12‑1975. It may be mentioned as a relevant fact that the appellants were placed in B‑16 with effect from 16‑1‑1986 in pursuance of the Authority's decision made in Office Order dated 16‑1‑1986. It said "that the Authority has decided to waive off the condition of passing the departmental examination for placement in B‑16 against 25% quota for qualified Matriculate Senior Subordinates of Water Wing, having ten years service. Although, they have claimed in their pleadings that Grade‑16 was allowed to them with effect from 16‑1‑1986 in pursuance of Notification dated 11‑10‑1983 and Office Order dated 14‑4‑1984, the factual position is that this was allowed to them on account of decision made through Office Order dated 16‑1‑1986. As already pointed out, the Notification of 11‑10‑1983 and Office Order dated 14‑4‑1984 related only to the employees of Power Wing. By the aforementioned misleading pleadings, the appellants have tried to create an impression as if the grant of B‑16 to them was the result of decision made by the Power Wing of the Authority. Anyway, the truth is that they got B‑16 as a result of Office Order of 16‑1‑1986 made by the Water Wing of the Authority. However, this aspect of the matter notwithstanding, something which may be borne in mind is that representations for retrospective grant of B‑16 started coming in after the Power Wing's letter of 4‑6‑1989.

11. In the wake of these facts came the Managing Director's (Power) letter dated 30‑5‑1991 addressed to all the General Managers, Chief Engineers and Chairmen Area Electricity Boards of the Power Wing. It makes the following reading: Subject: PLACEMENT OF TECHNICAL SUBORDINATES IN BPS‑16 DATES OF APPLICABILITY Considering the appeals of various organisation of WAPDA, and keeping in view the contents of Secretary WAPDA, Lahore Office, Order No. S/SC/E‑11/1 (943‑B)Admn/50483‑603, dated 16‑12‑1975 and No. 22234‑77/MDP/CEA/Admn‑11/16/304, dated 17‑6‑1977 read with this Office Notification No. 33065- 117/MDP/Admn.11/16/304/Vol.V, dated 11‑10‑1983 and Office Order No. 11481‑11529/MDP/Admn.II/16/304/Vol. V, dated 14‑4 1984 and No. 21997/MDP/E‑II/16/229, dated 4‑6‑1989, the undersigned is pleased to modify the decision of this office letter No. 23677‑723/MDPE‑II/16/229, dated 17‑7‑1990 as under:‑ (i) Placement in BPS‑16 of Diploma Engineers meeting the prescribed criteria is to be allowed with effect from 16‑12‑1975. (ii) Placement in BPS‑16 of Non‑Diploma Holders meeting the prescribed criteria is to be allowed with effect from 17‑6‑1977. (iii) Persons already appointed against post of Diploma Engineer on the basis of any other qualification prescribed by the Authority for initial recruitment to such posts before 17‑6‑1977 are to be considered as "Diploma Engineers" and hence by virtue of Authority Orders No. 50483‑603, dated 16‑12‑1975, if they meet the prescribed criteria, allowed BPS‑16 with effect from 16‑12‑1975. (Sd.) (MAHAR MUHAMMAD ANWER HARRAL) CHIEF ENGINEER (ADMN) POWER WAPDA, WAPDA HOUSE, LAHORE."

12. After the issuance of this letter, the appellants made fresh representations to achieve the same purpose. It was prayed that Office Order dated 16‑12‑1986 allowing BPS‑16 to them with effect from 16‑1‑1986 may be revised "and the facility of placement in Grade‑16 may kindly be given to Water Wing Technical Subordinates with effect from 16‑12‑1975 to remove this inequality among Power Wing and Water Wing technical subordinates". They were informed through letter dated 20‑8‑1991 that their request for placement in B‑16 with effect from 16‑12‑1975 could not be granted by the Authority; which led them to the Tribunal, with the present appeals where the relief sought is that "the impugned order of 20‑8‑1991 may be set aside and the respondents be directed to grant the appellants Grade‑16 with effect from 16‑12‑1975 with all consequential benefits."

13. It may be mentioned as an important circumstance that Office Memorandum dated 16‑11‑1974, Office Order dated 16‑12‑1975, Office Order dated 17‑6‑1977, Notification dated 11‑10‑1983 and Office Order dated 14‑4‑1984 have been relied upon by the appellants only as documents, bearing out facts which constitute the background of their demand and they did not, in actual fact, provide them with a cause of action. The first three were issued by the Authority, whereas the other two of 11‑10‑1983 and 14‑4‑1984 were issued by the Managing Director (Power). The cause of action arose, first with the issuance of letter dated 4‑6‑1989 and then with that of 30‑5‑1991 by the Managing Director (Power), allowing BPS‑16 to upper technical subordinates of the Power Wing with effect from 16‑12‑1975. However, in the meanwhile, BPS‑16 had also been granted to the appellants who belonged to the Water Wing, with effect from 16‑1‑1986 on the strength of Office Order dated 16‑12 1986. This Office Order has not been placed by the appellants on the file, regardless of its importance, for the reasons best known to them. We would have procured its presence on the record, but we have not thought it necessary in view of the order we are going to make in these cases. Anyway, the point is that the appellants too were placed in B‑16 with effect from 16‑1‑1986 by Office Order dated 16‑12‑1986 and they accepted this decision without any complaint or protest; and that representations were initiated only after the issuance of letters dated 4‑6‑1989 and 30‑5‑1991 by the Managing Director (Power) WAPDA.

14. In the backdrop of the provisions of these letters allowing BPS‑16 to the senior technical subordinates of Power Wing with effect from 16‑12‑1975, the appellants' case is that they too are entitled to the same treatment as meted out to the senior subordinates of Power Wing and that rejection of their representations amounts, to discrimination. The defence is that Power and Water Wings are separate cadres with different rules for promotion. It is pleaded that Member (Water) and its Chief Engineer (Admn.) have "their own administrative/financial jurisdictional powers and service rules for the employees working in the Water Wing." Reliance has been placed on the Authority's decision dated 21‑5‑1981 which was to the effect that "the Authority's Office Order dated 17‑6‑1977 is not applicable to the Water Wing employees and as such Sub‑Engineers not holding three years post‑matric diploma (two years course from Rasul) should not be placed in Grade‑16 by any formation in future." It is contended that letters dated 4‑6‑1989 and 30‑5 1991 pertain exclusively to the senior subordinates of the Power Wing; that the appellants are outside the ambit of their operation and that no case for discrimination is made out of the facts.

15. We might as well mention that it was argued at the Bar by the respondents' learned counsel that Water and Power being separate Wings with different rules of promotion, the rejection of appellants' representations did not amount to any discrimination. It was contended that the provisions of letters dated 4‑6‑1989 and 30‑5‑1991 had no application to the appellants' case and that they had no cause for any grievance on that account. The argument was that a case of discrimination could possibly be made out only by establishing that different treatment was meted out to the senior subordinates of Water Wing in preference to similarly placed officials of the same Wing.

16. We are inclined to say that the argument is not wholly without substance. We would rather have accepted it as sound and conclusive, had it not been for the fact that B‑16 had also been granted to the senior subordinates of the Water Wing, including the appellants, with effect from 16‑1‑1986. This was eventually in acknowledgment of the fact that they too deserved the grant of B‑16, like it was done in the case of upper technical subordinates of the Power Wing. This was impliedly suggestive of the fact that no distinction could possibly be made by the Authority amongst the senior technical subordinates of either of the Wings, on account of the nature of their duties and functions. Had the employees of Water Wing been duty-wise on a lower footing, they would not have been placed in B‑16 even with effect from 16‑1‑1986. Therefore, in the context of these considerations, the only moot point is whether they too are not entitled to this facility with effect from 16‑12 1975 or 17‑6‑1977.

17. Reliance on behalf of the appellants has been placed in support of their case on the Supreme Court's judgment dated 29‑1‑1992 in Civil Appeal No. 42 of 1990 (Khalil‑ur‑Rehman v. WAPDA and others) against the Federal Service Tribunal's Judgment dated 8‑3‑1989. The appellant of that case was placed in similar situation as the appellants and the relief sought by him was that the respondents be directed to place him in B‑16 with effect from 21‑3‑1975 with all consequential benefits. The Tribunal's order dismissing the appeal was set aside by the Supreme Court in acceptance of his appeal, with the following observations: "However, it was conceded that the same benefits have been conferred upon subordinates of Power Branch. The decision made vide Annexure‑A referred to above conferred on the appellant a right to be placed in B‑16 in view of satisfactory service and his technical qualification, the academic qualification having already been relaxed at the time of his initial appointment, and this right could not be taken away from him through subsequent addendum only with regard to employees of Water Wing of the same department of WAPDA and allowing the employees of the Power Wing to enjoy the same. The same being discriminatory cannot stand in the way of the appellant and he is allowed the benefit claimed by him,"

18. We feel constrained to say that the question whether the Authority's treatment with the appellant of that case was discriminatory, is necessarily that of fact. If the Court comes to the conclusion on the basis of the facts of a particular case that discrimination had been made, it cannot be taken as a precedent in another case which has to be decided on its own facts. This aspect of the matter apart, we wish, with all the respect due to the Supreme Court's judgment, that the question of discrimination would have been dealt with, in an elaborate manner, for our guidance. A finding on discriminatory treatment is no doubt there, but without a factual foundation, which could have been made by comparative analysis of the posts of similarly placed senior subordinates of both the Wings. However, the fact nevertheless remains that relief was granted by the Supreme Court to the appellant of that case with almost identical facts.

19. There is another aspect of the matter worth notice. It has been mentioned that the Authority's Office Memorandum dated 16‑11‑1974 and Office Orders dated 16‑12‑1975 and 17‑6‑1977 made no distinction between the employee of the Power and Water Wings and they were apparently applicable to both of them. In O.M. dated 16‑11‑1974 it was said that the Authority had decided to place 25% posts of diploma engineers in Grade‑16, which had to be filled on the basis of seniority‑cum‑fitness and subject to ten years service and passing of prescribed departmental examination. Exactly similar decision was conveyed through Office Order dated 16‑12‑1975.' Office Order of 17‑6‑1977 also shows that passing of departmental examination was a condition precedent for placement in B‑16, on the basis of seniority‑cum‑fitness. It is quite clear from these provisions that grant of B‑16 could only be the result of a process of selection, during which it had to be decided by the competent authority that a particular official was not only eligible but also deserved to be promoted to the higher grade. In this view of the matter, we have not been able to understand how B‑16 was granted en bloc to the upper technical subordinates of the Power Wing with effect from 16‑12‑1975 without process of selection.

20. The letter of 4‑6‑1989 shows that the condition of passing the prescribed departmental examination was done away with by the Authority. If this was so, promotion to B‑16 could have been allowed to the concerned officials with effect from the date this condition was removed, like it was done in the case of senior subordinates of the Water Wing in whose case the condition of passing the prescribed departmental examination was removed with effect from 16‑1‑1986. It seems to us that the reason for grant of B‑16 to the officials of Water Wing with effect from 16‑1‑1986 was that the condition of passing the departmental examination was removed from that date. As to how promotion to B‑16 was allowed to the officials of Power Wing with effect from 16‑12‑1975, without a process of selection, is really beyond our comprehension. The mere fact that 25% of all the posts in NPS‑11 and above were placed in B‑1.6 in pursuance of the Prime Minister's decision, did not necessarily mean that 25% incumbents of those posts had automatically to be placed in the higher grade. This could be done only on the basis of seniority‑cum‑fitness.

21. Anyway, the material thing from the appellants' point of view is that this has nonetheless been done by the Authority by letter dated 4‑6‑1989 in the case of officials of the Power Wing. They claimed that they are entitled to the same treatment on the strength of provisions of aforementioned O.M. and Office Orders of 16‑11‑1974, 16‑12‑1975 and 17‑6‑1977 which were equally applicable to them.

22. We feel inclined to say that their representations appear to have been summarily rejected by the Authority and justice has not been done to their case. All what the competent authority has done is to inform that it has not been found possible to accede to their request. There being no reason in support, the decision was obviously arbitrary, and the matter seems to have been dealt with in a perfunctory manner. We hold, on the strength of Supreme Court's Authority in 1991 SCMR 2330 that the competent authority should have given reasons in support of the decision for rejecting the appellants' representations/appeals.

23. Certain points have emerged as prominent, from the analysis and discussion made in the preceding paragraphs and we just place them on record because of their bearing on the order we propose to make in this case. The first is that O.M. dated 16‑11‑1974 and Office Orders dated 16‑12‑1975 and 17‑6‑1977 issued by the Authority made no distinction between the employees of the Power and Water Wings and they were intended to apply with equal force for the concerned officials of both the Wings. Second, 25% of the total posts of senior subordinates placed in Grade‑16 were to be filled on the basis of seniority‑cum‑fitness subject to ten years service and passing of prescribed departmental examination. This was clearly indicative of the fact that mete placement of the post in Grade‑16 did not result in the promotion of the incumbents of those posts and that they had to go through the mill of selection. Third, Office Order dated 4‑6‑1989 placing the upper technical subordinates of the Power Wing in B‑16 with effect from 16‑12‑1975 was apparently in violation of the spirit of policy laid down in the aforementioned earlier orders. Fourth, this placement was allowed to them with effect from 16‑12‑1975 irrespective of the fact that the condition of departmental examination was done away with for the first time on 4‑6‑1989; whereas the concerned officials of the Water Wing were allowed promotion from 16‑1‑1986 ostensibly on the ground that this condition was removed in their case on that date. Finally, no reason has been mentioned in support of the Authority's order rejecting the appellants' representations. It just said their requests could not be granted. It was an arbitrary order, especially under the circumstances where the Authority was legally bound to support its decision with reasons as to why different treatment was justified in the case of senior subordinates of the Water Wing

24. In these circumstances, we do not find it possible to uphold the impugned order of 20‑8‑1991. It is set aside in acceptance of the appeals and all the cases are remanded to the competent authority for reconsideration and fresh decision in the light of observations made in this judgment and that of the Supreme Court in the case of Mr. Khalil‑ ur‑Rehman and with reference to the duties and functions of senior technical subordinates of both the Wings. Should the Authority decide that the appellants are not entitled to the same treatment as has been given to the upper technical subordinates of Power Wing, it should support its decision with reasons. It is further directed that the matter shall be decided within three months of the communication of this order. In the event of an unfavourable decision, the appellants shall of course have the right to come again in appeal to the Tribunal after observance of the provisions of section 4(l)(a) of the Service Tribunals Act, 1973. There will be no order as to costs. H.B.T./805/Sr.F Order accordingly.