' SALIM GUL SHAIKH (MEMBER).--- Syed Irshad Hussain, an employee of Pakistan Railways has preferred this appeal under section 4 of the Service Tribunals Act 1973 for the grant of pro forma promotion and consequential service benefits.
2. Briefly, the facts of the case are that the appellant was appointed as Helper in the department on 21-12-1955 and over a period of time, was promoted to the post of Junior Charge-man (14-9-1968), and Senior Charge-man (20-10-1974). On account of certain frustration arising out of (sic) injustice, he submitted a list of grievances to the department and at the same time also applied fore LPR for one year leading to eventual retirement from 29-12-1986.
3. The department instead of granting him the LPR as requested, decided to retire him from service prematurely vide letter dated 30-3-1987. After exhausting departmental remedies the appellant preferred an appeal with the Labour Court. The Labour Court redressed his grievance and ordered his reinstatement vide order dated 12-3-1989. The department went into appeal against this decision before the Sindh Labour Appellate Tribunal (SLAT). The SLAT accepted the appeal partly vide order dated 30-4-1990. The learned Tribunal held that the appellant could not be reinstated into service because his request was time barred. It however held that the period from 3-5-1987 (i,e, date of his retirement from service) till 2-5-1988 should be treated as LPR and his retirement should be effective thereafter. The appellant filed a petition in the Sindh High Court against this decision which was dismissed vide order dated 8-9-1990. The Supreme Court of Pakistan also rejected this petition vide order dated 3-2-1991.
4. The review petition filed by the appellant in the Supreme Court in 1991 was however allowed in order to resolve the anomaly created by the decision of the Sindh Labour Appellate Tribunal (SLAT) due to service rendered by the appellant till 24-9-1990 which was beyond the date of retirement mentioned in the learned Tribunal's judgment. The Supreme Court in its judgment dated 20-11-1991 held as follows:-- "...He should be treated as in service upto 2-5-1987 and to be on LPR as ordered by the Labour Appellate Tribunal from 3-5-1987 to 2-5-1988, followed by his retirement from 3-5-1988. He should be treated as re-employed from 6-4-1989 to 24-9-1990 and paid for that period according to the terms of the general rules applicable for re-employment etc"
5. In view of the judgment of the Supreme Court, the department reinstated the appellant into service vide letter dated 29-11-1992 Subsequently, the respondents went a step further and regularized his service from 3-5-1987 to 17-1-1993 vide their letter dated 20-1-1994.
6. With his grievance redressed, the appellant requested for back benefits including promotion to the post of Forman Grade-1 and Foreman Grade-II. Failing to get relief, he once again preferred an appeal in the Sindh Labour Court under section 25-A of the I.R.O., 1969 where his prayer was granted. The department preferred an appeal in the Sindh Labour Appellate Tribunal which overturned the Sindh Labour Court's judgment. Thereafter the appellant went in appeal in the Sindh High Court and while the appeal was still sub-judice there, section 2-A was inserted in The Service Tribunals Act of 1973 which resulted in the dismissal of the case and its remand to the Tribunal in 1998.
7. During the hearing, the learned counsel for the appellant contended that the appellant has not been treated fairly by his department which compelled him to exercise legal option for the grant of his rightful claims. His main argument was that after his reinstatement on 29-11-1992 there was no legal or administrative reason for the department to deny him accrual benefits since the department had itself covered all the gaps in the appellant's service vide Notification, dated 20-1- 1994.
8. The learned counsel for the appellant further contended that the department had also cleared the appellant for promotion through the Supplementary Department Promotion Committee dated 22-9-1994 and placed his name at the proper place of seniority i,e, below Rafiq Ahmed (S.No,7) and above Muhammad Farooq (S.No,8). The supplementary D.P.C. Was held in continuation of the D.P.C.
Held on 13-2-1993.
9. The appellant's counsel argued that after getting the requisite seniority the appellant submitted a representation to the departmental authorities for retrospective promotion as Foreman GR.I and GR.II. His grievance petition remained unresponded which was unlawful. The learned counsel strengthened his arguments by citing case-laws reported in 1981 PLC (C.S.) 277, PLD 1981 Pesh. 1 (D.B.) and PLD 1980 SC 22.
10. The learned counsel pleaded that the appellant was only seeking pro forma promotion and accrual benefits as he has already retired after attaining the age of superannuation.
11. The learned counsel for the respondents contested the arguments of the defence counsel by pointing out that the appellant was not qualified for promotion to the post of Foreman GR.I because he had not cleared P.6 qualifying examination which was the basic condition for promotion. He argued that promotion cannot be claimed by an employee as a matter of right because the question of eligibility and requisite etc. Is involved in such cases.
12. The learned counsel for the respondents further pointed out that the claim of appellant was without basis as 78 persons who were senior to him, were still awaiting promotion. Since the petitioner was junior to them and had not been cleared by the D.P.C., the question of granting him accelerated promotion did not arise.
13. We have heard the arguments from both sides and have also perused the record carefully. It appears to us that the department has complicated the case despite the fact that the Honourable Supreme Court had resolved it vide its judgment in review petition, dated 20-11-1991. Be that as it may, there are two issues concerning this petition that have been brought before us. The first relates to the prayer that the department should be directed to promote the appellant to the post of Foreman Grade-I and Grade H and the second relates to the grant of arrears/difference to be paid to the appellant with effect from the time his juniors were promoted.
14. In this appeal both issues are inter linked. The decision with regard to promotion will resolve the issue of arrears that will accrue to the appellant. History of this case reveals that appellant has been agitating for his claims for quite some time. The matter of promotion has been discussed at great length before the Honourable Courts. We are therefore, fortified in this matter by the judgment of Honourable Supreme Court cited in 1998 SCMR 208=1998 PLC (C.S.) 199 wherein it was held that:- "(8) The next question which requires consideration in this case is whether an order could be granted by the High Court in exercise of its jurisdiction under Article 199 of the Constitution directing the Speaker of the Assembly to promote the appellant to the post of Deputy Secretary from the date his junior was promoted. It is rightly argued by the learned counsel for the respondents that the promotion is not a vested right of a civil servant. It also cannot be disputed that for promoting an employee to a higher post, certain factors like eligibility and seniority have to be considered before he is actually promoted to the next higher post. The appellant remained out of service from 1978 to 1991 on account of his premature retirement from service under MLO 17. He was reinstated in service as a result of Notification issued on 21-3-1992 with all back-benefits and he was paid salary for all that period. It has not been contested before us by learned counsel for the respondents that the appellant did not possess the basic qualifications or that he did not fulfil other conditions of eligibility required for promotion to the post of Deputy Secretary, which was in the line of promotion of the post of Assistant Secretary. However, as besides the question of eligibility, the further question of fitness of the appellant to hold the next higher post was to be determined in the first place by the departmental authority it was not possible for the High Court to have adjudicated on this aspect of the case. Therefore, even if the appellant fulfilled all the conditions of eligibility for promotion as Deputy Secretary, the question of his fitness to hold that post could not be decided by the High Court. This question essentially is to be dealt with an decided by the authority competent to promote the appellant to the next higher post in the first instance. We are, therefore, of the view that insofar the actual promotion of the appellant to the next higher post of Deputy Secretary (BPS-18) is concerned, it must be left to be considered by the authority, ' which is competent to determine his fitness to hold that post."
15. The above judgment of the Supreme Court in our opinion is applicable in the case in hand. We also see from the record before us' that 78 employees who are senior to the appellant are awaiting promotion. The appellant's counsel has been unable to provide evidence that officials junior to the appellant have been promoted creating legitimate expectancy.
16. We also note that the citations made by the appellant's counsel Samiuddin Qureshi v. N.-W.F.P.
Government 1981 PLC (C.S.) 277, Mian Amanul Malik v. N.-W.F.P. Government PLD 1981 Pesh. 1 and Fazal Noor v. Qurban Munir PLD 1980 SC 22 relate to the jurisdiction of the Service Tribunal in service matters and in no way provide material support to the appellant's contention for promotion. We have already addressed the issue for promotion by citing the judgment reported in 1998 SCMR 208=1998 PLC (C.S.) 199 to fortify ourselves.
17. In view of the foregoing discussion, we do not find strength in the appellant's appeal. The appeal is therefore, rejected as having no merit.