1988 PLP 18 (PLC)

The recommendations of the First Wage Commission with regard to promotion of employees of banks are contained in paragraphs 237 and 238 of its report which are also reproduced below for proper appreciation of the matters in dispute: --‑ "

237. Promotion shall be made on the basis of experience, length of, service and overall performance of an employee. If an employee officiating in a higher post shows signs of deterioration he may be reverted to the next lower grade.

238. The fact that an employee has rendered service in rural or unattractive areas will constitute one of the major considerations for purposes of promotion to higher positions." The decisions of the First Wage Commission are contained in Chapter XVII of its report and paragraph 302 thereof and paragraphs 65 and 66 of the summary of the decisions pertain to promotion of employees. The said two paragraphs are also reproduced below:--

65. Promotion shall be made on the basis of experience, length of 943 service and overall performance of an employee.

66. The fact that an employee who has rendered service in rural or unattractive areas will constitute one of the major considerations for purpose of promotion to higher positions." The decisions of the Wage Commission are binding on all employers concerned with the decision in relation to their workers and every such worker is entitled to be paid the wages and governed by the terms and conditions determined by the Wage Commission as provided under section 38‑G of the Ordinance.

4. It shall thus be seen that whatever decisions are made by the Wage Commission the same are binding on the employers concerned and the workers are entitled to be governed by the terms and conditions determined by the Wage Commission. In pursuance of this provision of the Ordinance the First Wage Commission had categorically decided that the promotion shall be made on the basis of experience, A length of service and overall performance of an employee. It is also noteworthy that the award of the Second Wage Commission made public by the Federal Government on 24‑7‑1978 has not made any change in the decision of the First Wage Commission regarding promotion of employees of banks and financial institutions. Here it would be appropriate to reproduce the relevant portion of the policy decision of the Federal Government as follows:‑ "(a) Selection of clerical staff for promotion to the lowest rank of officers will be made on the basis of a written test by a selection committee consisting of a Member of the Executive Board, a Regional Head and a Zonal Head. Officials possessing sufficient grounding and experience as detailed below will be considered for promotion:‑ (i) Six years service, if Matriculate; (ii) Four years service, if Intermediate; and (iii) Two years service, if Graduate."

5. The learned counsel for the petitioners has contended that prescription of a written test was a prerequisite to determine overall performance of an employee and holding of a written test for the purpose of promotion was not inconsistent with the decisions of the First Wage Commission and in this respect he has relied upon the case of Asif Ali v. Vice‑Chairman Pakistan Railways Lahore and others 1980 S C M R

11. In this case the petitioner was required to appear in ability test for the purpose of promotion but he refused. We have very carefully gone through this judgment of the Hon'ble Supreme Court. The petitioner was a tracer in the Railways and was a technical man and his further promotion defended upon his technical skill for which ability test appeared to be necessary whereas in the case in hand no such plea was raised that the job after promotion required any technical and special skill. We are, therefore, of the opinion that the case cited by the learned counsel for the petitioners is not applicable to the facts and circumstances of this case.

6. The First Wage Commission was required by the Federal Government according to the terms of reference to make a recommendation with regard to promotion of employees. It issued a questionnaire wherein it distinctly invited suggestions for criteria to be followed in the matter of promotion, should the promotion be based on seniority‑cum‑fitness or on a qualifying examination and performance. The questionnaire would, therefore, clearly suggest that there were two criteria in the mind of the First Wage Commission with regard to promotion of employees; firstly, whether the promotion be based on seniority‑cum‑fitness; or secondly, on a qualifying examination and performance. The First Wage Commission had clearly distinguished between promotion based on seniority‑cum‑fitness and promotion based on a qualifying examination and performance. Its decision with regard to these two methods was that promotion shall be made on the basis of experience, length of service and overall performance of an employee. The First Wage Commission clearly discarded the idea of holding of a written test for the purpose of promotion. As such the aforesaid policy decision of the Federal Government conveyed to the Chairman Banking Council and given effect to by the petitioner No.1 herein was clearly in violation of the decision of the First Wage Commission. Needless to say that under section 38‑G of the Ordinance the decisions of the Wage Commission are binding on the employer. As such the petitioners were wrong in giving effect to the aforesaid policy decision of the Federal Government in reference to the decision of the First Wage Commission with regard to promotion of employees of Banks. The learned Senior Member of the respondent No.1 did not commit any illegality in holding the policy decision of the Federal Government as being invalid in his judgment dated 21‑1‑1980. Likewise the learned respondent No.1 also did not commit any illegality in dismissing the appeal of the petitioners on 3‑12‑1980.

7. The learned counsel for the petitioners further contended that the question of promotion of employees of the petitioners was an individual grievance and the Habib Bank Employees Union Abbottabad Zone, respondent No.2 herein, had no legal authority to file a petition under section 34 of the Ordinance and as such the petition before the learned respondent No.1 was misconceived. However, this objection was not raised before the learned respondent No.1 although the maintainability of application under section 34 of the Ordinance was raised repelled by the learned respondent No.1 and the learned Member thereof. Sitting in our extraordinary Constitutional jurisdiction we cannot I allow the petitioners to take up this point for the first time before us. This was not their case before the original forums and they cannot be allowed to make out a new' case before the High Court. Even otherwise this right of promotion on the basis of experience, length of service and overall performance of an employee was granted to the employees by the award of the First Wage Commission and it could be legally and validly agitated by the Collective Bargaining Agent under section 34 of the Ordinance. We are, therefore, unable to accept this contention of the learned counsel for the petitioners.

8. The net result of the above discussion is that we are of the confirmed opinion that the learned respondent No.1 had jurisdiction to entertain and adjudicate upon the matter which was brought before it by the respondent No.2 herein and we do not find any illegality or jurisdictional error in the impugned judgments to warrant our interference. We would dismiss this writ petition with no order as to costs. S.Q./561/P Petition dismissed.