1999 PLP 79 (PLC)

Learned Labour Court, Rawalpindi on 6‑4‑1995 accepted Muhammad Boota's grievance petition, filed under section 25‑A of I.R.O.1969. The Railway Authorities have preferred the present appeal, in assailing the validity/legality of the said order.

2. Muhammad Boota was initially appointed as points-man and subsequently as cabin‑man. His present posting is as Junior Assistant Trains (JAT), and he is serving at Rawalpindi Railway Station. He took over charge in his present capacity on 23‑5‑1991 and pleads he has entitlement to confirmation in the said post. In accordance with the award of the Industrial Court, Lahore, published on 13‑10‑1966 in Government Gazette, every employee on completion of one year service, working on a permanent post, was to be considered for confirmation, as a matter of right. Government notifications published in the Pakistan Railways Gazette Extraordinary, dated 18‑1‑1975, 15‑2‑1975 and 28‑4‑1980, however, prescribed a period of 3 years for earning such entitlement. Muhammad Boota was posted as JAT, by order dated 14‑5‑1991, Exh. P.1, and he assumed duty on 23‑5‑1991. Over the years, he has been earning increments, so that he can legitimately claim to be permanent in the saddle with effect from 23‑5‑1994. The appellants before this Tribunal, respondents before the Labour Court, maintain that it is essential for confirmation that the incumbent of the post QAT) has passed Course T‑

7. Muhammad Boota had failed in the examination, so that, so far, he has not done the course. He, however, maintains that for selection for the course, no test would be a pre‑requisite, alleging that selectees for the course are taken by the Authorities in no bona fide manner. Seniority, it is submitted, should strictly be observed for such selection even, and favouritism should not be permitted to have its sway. Nine junior persons, according to Muhammad Boota, have so far been sent for training, and he has been ignored without any reason. Exh. P‑21 is the latest Gazette Notification dated 15‑10‑1986, that has been referred to by the learned counsel for the respondent here.

3. It was pronounced in the case reported as 1985 PLC 74 (PLAT) by this Tribunal that if a particular post was not a selection post, an employee having practically proved his worth already, by serving on such post is entitled to promotion or confirmation, and is not to be held responsible for failure of the Authorities in passing orders in that behalf. Selection in such matters would constitute only a formality. The Lahore High Court in a case reported as 1983 PLC 103 held that payment must be made for the work done and failure in paper formality in ordering creation of a particular post cannot be attributed to the employees, since such lapse occurs for no fault on their part and the Authorities must be made account in that behalf. If an employee had worked on a substantive post continuously for one year he was to be treated as confirmed, in terms of the Award that enured for one year and would be deemed to have remained in operation by virtue of Industrial Disputes Ordinance, 1959. A few decided cases, as PLC 1989 382 (PLAT), 1984 PLC 1706 (PLAT), 1986 PLC 142 (Labour Appellate Tribunal Sindh), 1991 PLC 385 (Labour Appellate Tribunal Sindh) were cited by the learned counsel, in urging that an employee on completion of 3 years service would be entitled to confirmation on the post. A decision rendered by this Tribunal on as recently as 7‑5‑1997, while disposing of Appeals Nos. 532 and 533 (Rawalpindi) of 1993, has also been referred to by the learned counsel for the respondent employee, in reinforcing his argument that from no angle of consideration and by no stretch of imagination, right of confirmation can be denied to the respondent, against a post, where he has constantly, competently and efficiently been working since 23‑5‑1991. The submission made by the learned counsel for the Railways to the effect that Muhammad Boota had only been asked to work as JAT, against a leave vacancy, and the Authorities could make such alternative arrangements is too frail to be accorded any recognition, the simple reason being that a leave vacancy could not possibly exist for such a long period (ever since May, 1991). I would, however, endorse the direction of the lower Court made to the effect that Muhammad Boota shall be sent (for undertaking technical training and acquiring technical qualification) to the Railway Institution, where Course T‑7 is held. Muhammad Boota is already getting all the emoluments, including annual increments, for the JAT post, and is only laying claim to his confirmation on the said post. This entitlement cannot be denied to him, for the simple reason that although he has not so far done the course, he must be taken to have qualified for the job, by performing the duties, for that long period, particularly when he has not been denied even emoluments and annual increments in respect of the post in question.

4. The appeal of the Railways Authorities has indeed no merit and is hereby dismissed. There shall be no order as to costs. H.B.T./932/Lb.P ???????????????????????????????????????????????????????????????????? ??????????? Appeal dismissed.