Raja Abdullah Khan, Member.--This appeal is directed against the order dated 12.10.2006 of the learned Senior Member, NIRC Lahore whereby he dismissed Petition No, 4A(78)/2005-L of the appellant/petitioner against the respondents with the direction that in future when-ever case of promotion of any worker is taken up and the appellant/petitioner is also found entitled for his promotion, his case should be considered.
2. The facts in brief giving rise to this appeal are that the appellant/petitioner filed grievance Petition No, 4A(78)/2005-L in which he contended that he was employed as clerk/typist on 1.12.1971 and later on became member of Sui Northern Gas Pipe Lines Employees Union registered NIRC Mazdoor Ittehad Group and after his transfer to Lahore he continued to work for the promotion of the union amongst the general workers whereas the aforesaid trade union activities were not liked by the rival CBA union known as Pir Muhammad Group. The appellant/petitioner has contended that on 1.1.1986 he entered in the 7th Grade and thereafter he was elected as Finance Secretary of the Lahore Region of his group namely Mazdoor Ittehad Group of Sui Northern Gas Pipe Lines Employees Union CBA. The appellant/petitioner alleged that in the year, 1996 a post of Assistant Record Officer fell vacant on the retirement of M.A. Chaudhry and the petitioner's name was recommended being eligible on account of seniority and experience but instead of the petitioner one Matloob Ahmed was illegally promoted in that position for the Executive Grade only on the ground that he was senior to the appellant/petitioner, although he did not possess better qualification as compared to the appellant/petitioner who has done his MBA and in service since, 1971. It was contended that the appellant/petitioner was even promoted to lookafter the affairs of the post of Assistant Record Officer in officiating capacity with effect from 1.4.2005 which duty he is still performing. The appellant/petitioner further contended that even otherwise he is entitled to this promotion in view of the settlement arrived at between the management and CBA in the year 1995-1997 and agreement for the year, 1999-2001 due to his lawful trade union activities and his affiliation with the Mazdoor Ittehad Group, the appellant/petitioner is being denied his valuable right and his juniors who do not even possess better qualification and have not worked in grade-7 are being considered for promotion and call letters have been issued to them. The appellant/petitioner contended that in view of the bar in Section 4(1)(b) of the Service Tribunal Act for moving the FST in matters of promotion, the jurisdiction of this Commission has been invoked, since the respondents are committing unfair labour practice against the appellant/petitioner, hence the appellant/petitioner filed the above petition for restraining the respondents From changing the terms and conditions of employment to his disadvantage and from discriminating him in matters of his promotion.
3. The respondents contested the grievance petition interalia on the grounds that eligibility of promotion related primarily to the terms and conditions of service therefore the FST has exclusive jurisdiction to determine the same and therefore, this petition is not maintainable before this Commission, that to assess the suitability and fitness for promotion is a matter of subjective evaluation which is within the exclusive competence of the management and this Commission cannot interfere in that regard. On merits it was contended that as per record 61 employees were invited for preliminary interviews conducted in July, 2004 which included 31 on seniority and suitability/fitness basis under clause 9.1 of the settlement and 30 on improved qualification basis under clause 9.2 of the settlement against the post of Assistant Record Officer and the petitioner falls under the first category and as such he was considered for promotion from subordinate to Executive cadre alongwith other candidates. It was contended that the appellant/petitioner was invited for interview and as per assessment of the competent authority, he could not secure sufficient marks to be found fit for promotion. It was further contended that the employees securing 60% marks in the interview will again be called for final interview whereas the appellant/petitioner secured only 47% marks while the employees against whom the appellant/petitioner has grievance secured 60% marks and qualified for the final interview call. It was contended that the appellant/petitioner belongs to the category of seniority-cum-fitness basis having 38% quota whereas Mr. Mudasser Ali and Muhammad Aslam named in the petition against whom discrimination has been alleged, belong to the category of improved qualification mentioned in clause 9.2 having 27% quota as per settlement. It was contended that the appellant/petitioner has cable to this Commission with unclean hands by concealment of facts that he was invited for the interview for Executive Grade alongwith other eligible candidates but he failed to qualify the same hence he is not entitled to any equitable relief.
4. Both the parties adduced evidence in support of their respective claims. The appellant/petitioner examined himself in support of his case by filing affidavit Exbt.P/1 alongwith copy of agreement for the year, 1995-1997 Exbt.P/2 and copy of agreement dated 30.4.1984. He was cross-examined by the Advocate of respondent management. The respondent management examined RWS Mr. Zahid Saeed Chief Personnel Officer Exbt.RW/1 and Umair Ahmed Khan, General Manager Personnel as Exbt.RW/2 in support of their case. These witnesses of the respondents were cross-examined by the Advocate for the appellant/petitioner.
5. After considering the evidence on record and hearing the Advocates for the parties, the learned Senior Member dismissed the Petition No, 4A(78)/2005-L of the appellant/petitioner with the above directions as mentioned in Para 1 above, hence this appeal.
6. We have heard Mr. Farooq Zaman Qureshi, learned Advocate for the appellant/petitioner and perused the record carefully. Mr. Farooq Zaman Qureshi, Advocate for the appellant/petitioner has contended that the impugned order dated 12.10.2000 is liable to be set aside on the ground that the same has been passed by the learned Senior Member on surmises and conjectures and is not based on record and that appellant/petitioner has been discriminated in the matter of promotion due to his lawful trade union activities because the juniors of appellant/petitioner have been promoted in preference to him. This contention of the learned Advocate for the appellant/petitioner is not tenable. The impugned order has been passed by the learned Senior Member after carefully considering the evidence on record which fully supports his view point The learned Advocate has admitted before us that the appellant/petitioner was considered for promotion by the respondents alongwith 60 others but he was not found fit for promotion as he obtained 47% marks in the evaluation of his record while those who were called for final interview and promoted secured 60% marks in the said evaluation. It is settled law that promotion is not a right of the employee but his consideration for promotion is a must. Admittedly the appellant/petitioner was considered by the respondents for promotion alongwith 60 others employees and those who had better record of service were promoted by the respondents. Even the appellant has not made those persons as party who were promoted in preference to him to enable them to plead their case as rightly observed by the learned Senior Member in the impugned order. The Advocate for the appellant/petitioner has admitted that the appellant was initially appointed as Junior Clerk and has been promoted to higher grades by respondents and is now drawing pay in grade-IX. Thus the respondents have not discriminated him in the matter of promotion due to his any alleged lawful trade union activities on his part. Practically the learned Advocate for the appellant/petitioner has reiterated those grounds before us for the promotion of appellant which he made before the learned Senior Member and the same were rightly rejected by him for giving cogent reasons while passing the impugned order. Admittedly the appellant/petitioner was considered by the respondents for promotion alongwith 60 others and he was not found fit as indicated above Hence the impugned order which is well discussed and well reasoned calls for no interference and the same is upheld and the appeal is dismissed in limine.