1998 PLP 2440 (SCMR)

CH MUHAMMAD ARIF, J.

Through this petition" under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973, petitioner has challenged the vires of judgment dated 29-10-1996 whereby his Constitutional petition was dismissed by the Lahore High Court, Lahore, with the result that the orders made by the Punjab Labour Appellate Tribunal, PLAT for short, Lahore and the Labour Court No.3 respectively dated 7-1-1991 and 20-11-1990, were upheld.

2. Briefly stated the background of the case is that he joined the erstwhile Pakistan Eastern Railway on 10-2-1962. He was promoted as Skilled Progress Chaser with effect from' 31-7-1971. Subsequent to the fall of Dacca on 16-12-1971, he left East Pakistan and made it to West Pakistan before 31-12-1974, in consequence of the establishment of Bangladesh. According to him, in Pakistan he was posted against an existing vacancy as Skilled Progress Chaser in the Steel Shops Railways on 8-8-1974. Respondents Nos.6 and 7 were Semi-Skilled Progress Chasers and were promoted as Skilled Chasers respectively on 2-7-1977 and 16-1-1981. 'JAP/Chasers' were redesignated as J.A.I.P. by the respondent-Railways on 5-3-1979. On account of his date of entry being prior in time, holding skilled grade/scale of pay, he was assigned seniority position over and above respondents Nos.6 and

7. These respondents did not succeed in challenging the seniority of the petitioner up to 27-5-1984. It was in July, 1985 that the petitioner received the information through the respondent-Assistant Works Manager, Steel Shops, Pakistan Railways, Moghalpura, Lahore that the seniority position assigned to the petitioner was not in accord with the rules on the subject as he had been absorbed against a super numerary post on his arrival and wrongly shown above Junior Assistant Production Inspectors, J.A.P.I. for short. Petitioner's representation to the concerned quarters on 27-7-1995, exclusively based upon the ex-employees of The Former Government of East Pakistan (Appointment to Federal Posts) Ordinance, 1983, hereinafter referred to the Ordinance, was turned down and he was reverted from Basic Pay Scale No.7 to 6 as a consequence of the relegation of his seniority to lower position "... under Notice No.752-ES/3/Scales (E-II), dated 2-1-1986". This action was made the subject matter of a grievance petition under section 25-A of the Industrial Relations Ordinance, 1969, by him on 2-1-1986 before Punjab Labour Court No.2, Lahore which was subsequently assigned to respondent No.2/Punjab Labour Court No.3. It was during the pendency of the grievance petition of the petitioner that respondent No.6 was being considered for the next higher post of Mistry on the basis of revised seniority position and the petitioner was also asked over to take the proposed 'Trade Test' vide letter dated 25-11-1986. All efforts on the part of the petitioner to impress upon the respondent authorities that the proposed Trade Test be deferred in terms of the stay order, met with failure and respondent No.6 was selected and promoted as 'Mistry' on 1-12-1986 without getting the requisite clearance from the appropriate Departmental Promotion Committee, D.P.C. for short. The grievance petition of the petitioner was dismissed by the respondent Punjab Labour Court No.3 on 20-11-1990 and the petitioner remaining unsuccessful in his appeal before PLAT (vide order dated 7-3-1991) remained unsuccessful even in his Writ Petition No.5683 of 1991 vide the impugned judgment dated 29-10-1996.

3. Mr. Noor Muhammad Sheikh, learned counsel appearing in support of this petition, has objected to the treatment meted out to the petitioner at the hands of the respondent-Railways as also by the Punjab Labour Court No.3, PLAT and the High Court which, according to him, was not in accord with section 4 of the Ordinance and reiterated prayer clause in the petitioner's Constitution Petition which reads thus: "In view of the, above it is respectfully prayed that impugned Judgments/Orders dated 20-11-1990 and 6-3-1991 of learned respondents Nos.1 and 2 may kindly be declared as illegal and without lawful authority and be set aside. It is further prayed that orders dated 20-7-1985, 4-12-1985, 2-1-1986, 25-11-1986 and 1-12-1986 as contained in Annexures 'E', 'G', 'H', 'M', 'O' and 'V' may kindly also be declared as illegal and without lawful authority and be set aside directing respondents Nos.3, 4 and 5 to restore the seniority position of the petitioner as assigned to him originally over and above respondents Nos.6 and 7 with consequential relief. Costs of the petition may kindly also be awarded . . . ." He has also argued that his client could not be non-suited on account of his alleged failure to challenge the promotion of respondents Nos.6 and 7 in the past for the reason that there is no estoppel against statute and his rights under the Ordinance are protected. He has relied upon Mst. Shahar Bano v. Quadria and another (1986 SCMR 1727) to substantiate such plea on behalf of the petitioner.

4. We have perused the available record and have also gone through the report of the precedent relied upon by the learned counsel in support of petitioner's case. There is no cavil with the proposition that the petitioner could not be made to suffer for not taking appropriate action against respondents Nos.6 and 7 as they Were shown senior to him on account of their respective increase in the seniority position and that there can be no estoppel against' statute. The argument, however, loses sight of the fact that the petitioner also participated in the meetings of the Departmental Promotion Committee in which the petitioner was not promoted and the private respondents were, which indicates that said action/s are based on the principle of seniority-cum fitness.

5. Moreover, it is not the case of the petitioner that he was not considered for promotion at the times of respective promotions of respondents Nos.6 and 7 in preference to him. The observations made by the learned Judge in Chamber that petitioner's writ petition had been rendered infructuous on account of the promotion of respondents Nos.6 and 7 as Mistries on 2-12-1986 and 22-1-1996 respectively and that their promotions have not been challenged by the petitioner by initiating proper proceedings, have not been shown suffering from any legal taint whatsoever. The private respondents herein are no longer members of the Skilled JAIP category, to which the petitioner belongs, and the result is that the question of the seniority of the petitioner over them disappeared from the scene. It is not even so much as alleged that the principle of seniority-cum-fitness was not applicable to the case of the petitioner and respondents Nos. 6 and 7.

6. Looked at from whatever angle, the instant petition is sans merit and liable to be dismissed. Order accordingly. Leave to appeal is refused. A.A./M-192/S Leave refused.