2012 PLP (C (PLC(CS))

AMIR HANI MUSLIM, J.

The appellants have impugned the common judgment of the Federal Service Tribunal, inter alia, on the ground that the learned Service Tribunal while holding that the amended Rule 5(2)(e)(ii) of Pakistan WAPDA (Water Wing) Service of Engineer Rules, 1968, is valid, but the respondents in deviation of the amended rule allowed promotion on the basis of the rule existing prior to the amendment brought on 9-5-2005.

2. Facts, as per record, are that the respondents while working as Sub-Engineers in Water Wing of WAPDA were placed in BS-16 on 1-12-1987, 8-10-2000 and 5-4-1997 respectively, against 33% quota. As per rule 5(2)(e)(ii) of the WAPDA (Water Wing) Service of Engineer Rules, 1968, Sub-Engineers placed in BS-16 having minimum service of 10 years and had passed the Water Wing Professional Examination were declared eligible for promotion against 20% of the vacancies of Junior Engineers. On 9-5-2005, through an Office Memorandum the above-referred rule was amended as under:- "20% vacancies be filled by promotion on the basis of seniority -cum-fitness from among the Sub-Engineers possessing Diploma or a Certificate of Overseer from any recognized Institute having minimum service of ten (10) years, and have passed the Water Wing Professional Examination."

3. The respondents, being aggrieved, filed appeals before the Federal Service Tribunal challenging the amendment brought in the rule through the O.M. dated 9-5-2005, qua their right of promotion. The Tribunal, by the impugned judgment dated 2-10-2009, allowed the appeals filed by the respondents and held that "for the purpose of promotion as Junior Engineer, the appellants and other Sub-Engineers in BS-16 have a prior right to be considered for promotion to the post of the Junior Engineer, subject to fulfillment of minimum service of 10 years and passing the Water Wing Professional Examination. Sub-Engineers BS-16 are ipso facto senior to Sub-Engineers BS-11, for purpose of promotion."

4. The department filed civil petitions for leave to appeal before this Court challenging the judgment of the Service Tribunal. This Court on 31-1-2011, granted leave to appeal, inter alia, that "the amended rules do not affect adversely the case of the respondents as they have been placed in BPS-16 on account of Selection Grade granted to them and the other incumbents, who are eligible under the amended rule are senior to the respondents and even otherwise under the amended rule they are not totally debarred from the process of selection to the higher post." Hence these appeals.

5. The learned counsel for the appellants has contended that the amended rule has done away with the criterion that an employee, who is being considered for promotion, ought to be in BS-16. According to him, once by the amendment referred to hereinabove, the condition of holding office in BS-16 was done away, all the Sub-Engineers who otherwise qualify were entitled to for consideration to promotion in terms of amended rule. He submitted that by the impugned judgment, this aspect of the case was not considered by the Tribunal and para 9 of the impugned judgment was in conflict with the amended rule.

6. As against this, the learned counsel for the respondents has contended that the amended rule for promotion, which has done away with the requirement of BS-16, was introduced on 9-5-2005 and would operate prospectively. According to the learned counsel for the respondents, the appellants have prepared a seniority list which has been filed by the respondents in C.M.A. 1713 of 2011. According to him, this list was prepared on 23-2-2000 and the respondents were placed in the list, prior to the amendment, at serial Nos.14 and

15. As per his submission, on 5-10-2000, the last man who was promoted in terms of un-amended rule was Naeem Ashraf. Thereafter, inspite of 26 available vacancies, the respondents were not promoted though they, under the seniority list, were entitled to promotion against the available vacancies. He submits that after introduction of the amended rule, those who did not fall within the seniority list of BS-16, were allowed to compete with the respondents on the basis of the seniority list, which was prepared on 23-2-2000 by the department for the employees who were in BS-16. The existing rule had done away with the condition that the employees who were to be promoted must be in BS-16 would give benefit to those who were never in BS-16. His submission was that rule of the nature cannot be allowed to operate retrospectively to the disadvantage of the employees, who were entitled to promotion prior to the amendment against the vacant seats, but were not promoted for the reasons best known to the department. Such promotions were not according to the seniority list of the employees. He, in support of his contentions, have relied upon the judgments of Dr. Muhammad Amjad v. Dr. Israr Ahmed (2010 SCMR 1466), Mrs. Farkhanda Talat v. Federation of Pakistan (2007 SCMR 886) and Luqman Zareen v. Secretary Education (2006 SCMR 1938).

7. We have heard the learned counsel and have also perused the record. It is an established law that the rules operate prospectively and if a right is created in favour of an employee under the old rule, it cannot be taken away, inter alia, on the ground that the amended rule has allowed others to compete. In the case in hand, it is not disputed that the department has floated the seniority list on 23-2-2000 of the employees who were in BS-16 and the names of the respondents were mentioned in the list. It is also not disputed that after the preparation of the list, the last person who got benefit of the un-amended rule was Naeem Ashraf and was promoted on 15-10-2000. In between the time of the promotion and introduction of amended rule i.e. 9-5-2005, 26 vacancies were available and the respondents were entitled to promotion under the seniority list, but the department did not promote them for which the appellants could not offer any plausible explanation. Any amendment which deprives a person of his right has to be construed prospectively. The finding of the Tribunal given in para 9 of the impugned judgment was in conformity with the settled law and no exception can be taken to it. The said finding is in line with the judgments of this court referred to hereinabove.

8. The argument of the learned counsel for the appellant that such an approach of the Tribunal was against the spirit of the amended rule, is misconceived. The rule does not permit the department to overlook the rights of the employees created under the law by applying the amended rule to extend benefit to those who were not in run at the time when the right of the respondents for promotion was matured, but on account of unexplained reasons they were not considered for promotion inspite of the fact that their names were mentioned in the seniority list besides the availability of the vacancies.

9. We, for the aforesaid reasons, hold that the impugned judgment in these proceedings was in conformity with the established law. Therefore, these appeals are dismissed with costs. M.W.A./W-3/SC Appeals dismissed.