1998 P L C (C.S.

) 1221
[Supreme Court of Pakistan]
Present: Ajmal Mian, C. J., Sh. Riaz Ahmad and Ch. Muhammad Arif, JJ
NAZIR AHMAD
versus
THE CHIEF ENGINEER (ADMN.) (WATER), WAPDA and 43 others
Civil Appeal No. 963 of 1994, decided on 4th June, 1998.
(On appeal from the judgment dated 20-5-1993 of the Federal Service Tribunal, Camp at
Lahore in Appeal No. 143(L) of 1990).
Civil service----
---Pro forma promotion---Employee, after initial appointment was transferred to the other
company and after its winding up services of said employee were repatriated subject to the
condition that he will be considered for pro forma promotion without financial benefits with
retrospective effect by the Selection Board provided he fulfilled the qualifications and the
criteria prescribed by Department in relevant Service Rules etc. and subject to the passing of
an examination if so prescribed---Employee having been appointed as far back as November,
1972 and was repatriated in 1987 and was working till date, his services could not by any
stretch of imagination, be considered as same on work-charge basis---Employee, therefore,
would be presumed to have been absorbed and, therefore, was entitled to be considered for
pro forma promotion---Authority was directed by Supreme Court to reconsider the case of
employee for pro forma promotion.
Hafiz Tariq Nasim, Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate-
on-Record (absent) for Appellant.
M. Saleem Chaudhry, Advocate Supreme Court arid Tanvir Ahmad, Advocate-on-Record
(absent) for Respondents.
Date of hearing: 4th June, 1998
JUDGMENT
SH. RIAZ AHMAD, J.---This appeal through leave of this Court is directed against the
judgment and order dated 20-5-1993 whereby it was held that the appellant who had initially
been appointed on work-charge basis, on repatriation to WAPDA could not claim pro forma
promotion because such pro forma promotion could only be given to the regular employees.
2. The facts giving rise to the institution of this appeal in brief are that the appellant was
employed by the respondent WAPDA in Machinery Pool Organisation as Junior Research
Officer on work-charge basis for the duration of a specific project of Sargodha Airfield Work
with headquarters at Faisalabad. The terms and conditions contained in the letter of
appointment are reproduced hereunder:--
"Mr. Nazir Ahmad son of Ahmad Hassan is hereby appointed as Junior Officer
(Testing and Progress) as work-charged contract at Rs.500 per mensum in the scale of
Rs.400--1,000 for duration of Sargodha Air Field work M.P.O. with the Headquarters
at Workshop, Lyallpur.
His services shall stand terminated on the completion of above work or earlier at arty
time without notice if his work and conduct found unsatisfactory.
He will be entitled to such facilities as admissible to this category o1 staff under the
orders of the Authority.
He should report for duty to Workshop Officer, Machinery Pool Organisation,
WAPDA, Lyllpur. No T.A. etc. will be admissible in resuming this job."
The appellant kept on performing his duties under the respondent-Authority in the Machinery
Pool Organisation when a decision was taken to transfer the entire staff to Mechanised
Construction of Pakistan Ltd. on deputation with effect from 1-9-1974. The policy governing
such deputationists is reproduced hereunder:--
"WAPDA employees, serving on deputation with M.C.P.L., shall, on repatriation
from M.C.P.L., be accepted and posted in WAPDA. In case where it is found that
their juniors have already been promoted in WAPDA, then they will be considered
for pro forma promotion, without financial benefits with retrospective effect, by the
relevant Selection Board, provided they fulfil the qualifications and the criteria
prescribed by WAPDA in relevant Service Rules, instructions/orders. This will be
subject to the condition that they shall have to pass the professional/promotion
examination, where prescribed in WAPDA Rules for its employees for being eligible
for promotion, within three years of such pro forma promotion. In case of their
failure: to do so, they shall be reverted to lower posts in the relevant Cadre."
The appellant continued working in the Mechanised Construction of Pakistan Ltd. and on its
liquidation all the staff belonging to Machinery Pool Organisation of WAPDA was
repatriated. On repatriation the appellant was appointed as Junior Research Officer vide
office order dated 16-2-1987 and he took over the charge on 19-2-1987. The appellant was
given seniority with effect from 19-2-1987 i.e. the date of re-joining. The appellant started
agitating against the decision and his plea was that he should have been given seniority with
effect from 12-11-1972, the date on which he was initially appointed with the respondent-
Authority. It was also pleaded by the appellant that number:' of persons junior to him in
service have been promoted to higher grade, therefore, he should also be promoted from the
date his juniors were promoted. Representation made by the appellant proved to be futile and,
thus, he invoked the Constitutional jurisdiction of the High Court under Article 199 of the
Constitution and the High Court vide its order dated 10-3-1990 directed the respondent
authority to take a decision on the representation/appeal, which was un-disposed. Before the
High Court it was also pleaded by the respondent WAPDA that the appellant had invoked the
jurisdiction of the High Court with a view to escaping the bar of limitation. The High Court
left this matter for the determination of the Federal Service Tribunal. The respondent
WAPDA by order dated 6-6-1990 rejected the appellant's representation in the following
terms:--
"The request of Mr. Nazir, Research Officer (Soil Chemist) for fixation of his
seniority with effect from 12-11-1972 in the field of Soil Chemist cannot be acceded
to. He has been given seniority from 19-2-1987 the date on which he was posted in
the said field on repatriation from M.C.P.L."
This order was received by the appellant on 17-6-1990 and the appeal was filed in time.
Before the Service Tribunal preliminary objection as to the limitation was raised by the
respondent-Authority but the same was repelled by the Tribunal on the ground that if at all
such representation/appeal was barred by time, then the authority should have rejected the
same on the said ground and not on merits and, therefore, such plea was not available to the
respondent before the Tribunal. ;
3. We have heard the learned counsel for the parties at length and we have noticed that initial
appointment on work-charge basis cannot operate as a bar to the case of the appellant for
conferment of pro forma promotion After initial appointment the services of the appellant
were transferred to the Mechanised Construction of Pakistan Ltd. and after its winding up the
services of the appellant were repatriated subject to the condition that such employees will be
considered for pro forma promotion without financial benefits with retrospective effect by
the relevant Selection Board provided they fulfil the qualifications and the criteria prescribed
by WAPDA in relevant Services Rules, instructions, orders etc. and subject to the passing of
an examination if so prescribed. The appellant was appointed as far back as November, 1972
and ultimately as stated above, he was repatriated in 1987 and is working till date.
Continuous service of the appellant since 1972 till date cannot by any stretch of imagination,
be considered as service on workcharge basis. The initial letter of appointment clearly reveals
that the services of the appellant shall stand terminated on the completion of the above work
or earlier at any time without notice if his work and conduct were found unsatisfactory. The
project for which the appellant was appointed on workcharge basis was a specific project for
the duration of Sargodha Airfield work. After the completion of the project the services of
the appellant were not dispensed with, but he continued to work in the Mechanised
Construction of Pakistan Ltd. and then he was considered as a deputationist and was allowed
to resume his duties on such repatriation and was also given seniority with effect from 19-2-
1987. In this view of the matter, we are not inclined to hold that the appellant remained an
employee on work-charge basis, but it will be presumed that he stood absorbed arid,
therefore, was entitled to be considered for pro forma promotion and the Federal Service
Tribunal by overlooking this aspect wrongly dismissed the appeal preferred by the appellant
We, therefore allow this appeal, set aside the order impugned and direct the respondent-
Authority to reconsider the case of the appellant for pro forma promotion. The parties are left
to bear their own costs.
M. B. A. /N-23/S Appeal allowed.