DECISION This appeal is directed against a decision of the learned Second Labour Court, given on 4th February, 1980 directing the appellants herein to allow selection grade to the respondent and promote him according to his seniority.
The claim of the respondent to being granted selection grade is founded on the following Resolution passed on 4th February 1970 by the Governing Body of the K.D.A., which reads as follows : "Resolution No, 315 Minutes of the 24th meeting of the Governing Body held on the 24th July, 1976, were read and confirmed subject t amendment in Resolution No, 305/76 which shall read as under : Resolution that approval be accorded to-
(i) Adoption of Selection Grade scheme as contained in Ministry of Finance letter No, 6(22)E-ii-1441 dated 24th April, 1973 forwarded by A. G. Sind, vide letter No, Admn/6-8/K.V./ 6230 dated 10th October, 1974, with effect from 30th August, 1974, i,e, the date from which it was agreed in the Memorandum of Settlement.
(ii) Conversion of 35% of the Regular/Temporary/Permanent posts of U. D. C. S. Excluding leave Reserve and Training Reserves and seasonal Temporary Posts to the Selection Grade Clerks in Grade II of the National Pay Scale.
(iii) 2/3rd of all selection grade posts be filled in by those who have passed the examination in accordance with their seniority in the grade and have satisfactory ACRS for the last five years."
3. The respondent's claim to selection grade, however, was disallowed by the Karachi Development Authority on the ground that he had been administered a warning in the year 1970 and that furthermore there was an adverse entry in his A.C.R. For the year 1975. The learned Labour Court has taken the view that admittedly no adverse entry was recorded in the A.C.Rs, of the respondent for the year 1970 nor it has been established that the alleged warning was communicated to him, and according the said warning, even if given, does not act as a bar to the claimed promotion of the respondent. It has similarly taken the view that it was not established that the alleged adverse remark in the A C R of the respondent for the year 1975 had been communicated to him.
Furthermore, it was of the view that the A. C. Rs, for the year 1975 could not be properly taken into consideration again at the respondent as only the A. C. Rs, prior to 30th August, 1974 from which date the scheme for selection grade had been brought into force, are to be taken into consideration. The learned Labour Court accordingly accepted the grievance petition of the respondent and directed the appellants to allow him selection grade as prayed by him.
4. I have heard Mr. Muzzafar Imam, the learned counsel for the K.D.A., and Mr. Ehsan Illahi, who appeared for the respondent. The first contention of Mr. Muzaffar was that the respondent's grievance petition was not maintainable as the Standing Orders are not applicable to the K. D. A., which is run under the authority of the Provincial Government and has its own statutory rules of service applicable to its employees. In support of his contention the learned counsel relied upon the decision of the Karachi High Court in the case of Karachi Development Aothority v, Vat Labour Court, and the decision of this Tribunal in the case of Karachi Development Authority v. Iiist. Bibi Abida, decided on 16th December, 1979. Although I would agree with the learned counsel's submission that the Standing Orders are not applicable to the employees of the K.D.A.' this would not affect the respondent's claim for he has not invoked any rights which have been conferred by the Standing Orders but his claim is founded upon the Resolution of the Governing Body of the K. D.
A., which itself is the outcome of the settlement between the Governing Body and the employees of the K.D.A. As such, the grievance petition of the respondent is maintainable under the provisions of section 25-A, I. R. O., since he is enforcing a right granted to him by a Resolution having the force of law and further is based upon a settlement.
5. It was next contended by Mr. Muzaffar Imam that in order that an employee be entitled to selection grade in pursuance of the Resolution in question, he must fulfil two pre-conditions ; the first being that he should have passed the prescribed examination and the second that he must have satisfactory A.C.Rs, for the proceeding five years. There is no dispute that the respondent fulfils the first condition of having passed the prescribed examination. However, it is contended that he does not fulfil the second condition, in that he had been administered a warning in the year 1970 and also he had been given adverse remarks in his A. C. R. For the year 1975. Before considering this adverse record against the respondent, I would like to point out that the requisite pre-condition for the grant of the selection grade is not merely that the employee should have A.C.Rs, for the period in question which contain no adverse entry but that his A. C. Rs, for thc said period should be satisfactory. In other words, there should be a positive element of satisfactory record on the part of the employee. It is primarily for the establishment to determine whether a person's A.C.R. Is satisfactory or otherwise. However, Mr. Muzaffar Imam has produced before me the original A.C.Rs, of the respondent and invited me to peruse the same and judge for myself whether the respondent's A. C. Rs, can be considered to be satisfactory. Now as regards his A. C. R., for the year 1970, I find that whereas the Reporting Officer has not only considered the official to be an average official but has further reported that he was irregular in attendance and had been reprimanded on this account, the superior officer of the Reporting Officer has given very good report to the respondent for the same year and has further recorded that due to sickness of heart the respondent could not take interest in his duty but nevertheless his work done was found quite satisfactory. As such, the superior officer's observations have effectively effaced the adverse remarks given to the respondent by the reporting officer. Furthermore it appears from the Memo.
Dated 13th June, 1971 a copy of which was also addressed to the respondent, that the charge of late1 attendance founded on his A. C. R., for the year 1970, had been dropped. As such the A. C. R., for the year 1970 cannot but be considered as satisfactory.
6. There remains the adverse entry in the A.C.R., of the respondent for the year 1975. In this A. C. R., also the reporting of officer has remarked that the respondent was neither regular nor punctual in his attendance. It appears that this adverse entry was communicated to the respondent, vide letter, dated 14th May, 1976 with the advice that he should make a determined effort to show requisite improvement. As gipeady indigested, the learpect Labour Court has discarded this adverse entry on the grounds, firstly, that it does not appear to have been communicated to the respondent, and secondly, that it was for the year 1975, after the selection grade scheme was supposed to have come into force. Now as regards the first ground, it may be pointed out that according to the evidence of Nazir Ahmed, Superintendent in the Office of the K. D. A., the adverse remark were duly communicated to the respondent in the year 1976. His evidence finds support from the record maintained by the K.D.A., which I find has been properly and regularly maintained and thus has presumption of truth attached to it. As regards the second ground which found favour with the learned Labour Court, it may be mentioned that the Resolution for introduction of selection grade was passed in the year 1976 and though it sought to introduce the scheme with retrospective effect, the K. D. A. Was within its rights to consider the record of an official upto the date of appointment in the selection grade. An official would; on the basis of the resolution in question, have a right to be taken up in the selection grade, whether from a retrospective or prospective date, if his record for the preceding five years from the date of the order and not merely from the date on or from which he was given or was claiming selection grade, was satisfactory. As unfortunately the respondent's A. C. R., for the year 1975 is not satisfactory, in my opinion, he is not entitled to be given selection grade.
7. For the foregoing reasons, I would set aside the orders of the learned Labour Court and allow the appeal. It will, of course, be open to the respondent to agitate against the adverse entries in his A.
C. R., for the year 1975 and if the same are expunged, as in case of the A.C.R., for the year 1970, he would be entitled for appointment to the selection grade. PLD 1976 Kar. 514