1978 PLP 66 (PLC)

Ch. Muhammad Latif respondent who is employed as an Assistant in the Headquarters Office of the P. R. T. B. filed an application under section 25‑A of the Industrial Relations Ordinance, 1969, before Junior Labour Court No. 2, Lahore against the Managing Director, P. R. T. B. viz. the appellant seeking relief to the effect that he might be promoted as Superintendent in accordance with his seniority w. e. f. the date his Juniors have been promoted.

2. He contended in his application that he was appointed as Senior Clerk on 21st June 1956 and was confirmed in that capacity on 14th April 1958. He was promoted as an Assistant on the basis of Seniority on 23rd June 1973. He crossed the efficiency bar on 1st December 1973. His record of service was unblemished. According to the procedure for promotion being adhered to by the appellant and in view of the terms of the settlement executed between the appellant and the then CBA he was eligible for promo tion to the post of Superintendent but the appellant had wrongfully promoted M/s. Abdul Hamid and Ghulam Sarwar Assistants who were Junior to the respondent to the post of Superintendent although the respondent has already worked as acting Superintendent from 5th November, 1973 to 1st December, 1973.

3. The appellant had resisted the petition of the respondent before the learned lower Court and pleaded inter alia that the promotion was not a right guaranteed or secured under any law or award and settlement and therefore application under section 25‑A of the Industrial Relations Ordinance, 1969, was not competent. The appellant further maintained that the post of the Superintendent in Headquarters Office was selection post, which was to be filled in on the basis of seniority‑cum‑suitability. The appellant was not found fit for post of Superintendent by selection and he was therefore, informed accordingly.

4. Ata Muhammad Assistant, Mr. Abdul Hamid Mirza another Assistant, Muhammad Siddique Assistant Establishment Branch and the respondent him self testified as respondent's witnesses before the learned lower Court.

5. Ghulam Mustafa Superintendent Regulation and Rana Muhammad Khan Assistant establishment appeared on behalf of the appellant before the learned lower Court. Relevant, documentary, evidence was also produced before the trial Court by the parties.

6. After taking into consideration the parties evidence the learned Lower Court concluded that the respondent had been ignore without assign ing reason by the appellant. His petition was therefore accepted and it was directed that he be promoted as Superintendent in accordance with his seniority from the date his juniors were promoted. This order was made by the learned lower Court on 28th October, 1975 and the same has been impugned through the present appeal.

7. I have carefully gone through the records of the case and the parties evidence oral as well as documentary has been minutely considered and analysed. It is of course proved beyond doubt that the respondent Muhammad Latif is senior to M/s. Abdul Hamid and Ghulam Sarwar who have been promoted on 5th February 1975. It appears that the respondent was also interviewed for the purpose of his promotion on the basis of his seniority and after considering his educational qualifications, past experience, knowledge of rules and annual confidential reports, he had not been considered fit for promotion to the post of Superintendent for the time being. He was further informed that he would be considered again as and when there was a vacancy. He was so informed vide confidential letter No. Exh PH, dated 5th February, 1975.

8. The point for consideration in this case is as to whether seniority alone is the criterion for promotion to the post of Superintendent or that it was a selection post for which seniority‑cum‑fitness was to be taken into consideration. The appellant produced before the learned lower Court Exh R‑I the copy of the W. P. R. T. B. Staff Promotion Rules 1969. It is provided in these Rules that the post of Superintendent would be treated as a selections post. The respondent has placed reliance on a settlement arrived at between the R. T. C. and R. T. C. Employees' Union on 7th December 1969. He has also produced copy of an order Exh. RI/I which was based on the said settlement. It is provided in clause No. 7 of this order that the RTC had agreed that 100 percent posts in the subordinate carder would be filled in by promotion and direct recruitment will be resorted to only when suitable subordinates are not available. It is note worthy that in the under consideration case no direct recruitment to the post of the Superintendent has been made. In fact existing incumbents Abdul Hamid and Ghulam Sarwar have been promoted and in this manner no breach of the settlement has been committed.

9. It transpires from the above that the post of Superintendent is a selection post. The promotion to this post is to be made on the basis seniority‑cum‑fitness. Seniority alone is not the criterion for promotion toy this post. In this view of the matter it can be safely said that the promotion to the post of Superintendent is not a right guaranteed or secured by or under any law, award or settlement for the enforcement of which an application under section 25‑A of the Industrial Relations Ordinance, 1969, may be, competent. In A.D.B.P. v. Staff Union and another (P L J 1975 Kar. 395) it was held by the Sind Baluchistan High Court that there being no award or settlement with respect to promotion the order of the Labour Courts directed if the Management to make promotions according to seniority alone was without jurisdiction, Similar view has been taken by the Sind Baluchistan High Court in ASPI Dossabhoy Jamula v. Pakistan (P L J 1975 Kar. 490). In this case it was held that promo tion to a selection post was entirely a matter for satisfaction of promoting authority and it was not open to Court who substituted its opinion for suitability of petitioner for such an appointment. 1974 P L C 120 and 1974 P L C 622 can also be referred to in this behalf.

10. In the light of what has been said above I accept the appeal, set aside the impugned order and dismiss the application filed by the respondent under section 25‑A of the Industrial Relations Ordinance before the learned Lower Court.