' This writ petition is directed against the N. I. R. C's. Order. Of 31st December, 1980, and the events which led to its institution are that the Government of Pakistan by a resolution dated 28th May, 1974, appointed a Pay Commission, for certain Financial Institutions, inter alia to examine the terms and conditions of their employees and to make recommendations in accordance with the terms of the reference. While this Commission was still functioning, on or about the 7th November, 1974, the Pakistan Government, in pursuance of section 38-A of the Industrial Relations Ordinance, 1969, constituted a Wage Commission, for fixing rates of wages and to determine other terms and conditions of service, of the workers of the nationalized Banks and the other Financial Institutions.
The Personnel constituting the Wage Commission, were the same as had been notified for the Pay Commission.
2. The Wage Commission gave its decision on 12th May, 1975 which was duly published under section 38-C of the I. R.
0., and was made affective from 1st January, 1975 for a period of three years. This decision of the Wage Commission, under section 38-D of the I. R.
0., was treated as an award. Paras 237 and 238 of the award, which are relevant for the purposes of this case, are reproduced below :- "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. '
3. Thereafter the Government of Pakistan, by means of Finance Division's Notification No, S R 0-1054 (1)177, dated 31st October, 1977, constituted a second Wage Commission, for Banks and Financial Institutions, whose decision was notified in the Extraordinary Gazette of Pakistan, dated 24th July, 1978. Under para. 115 of this award, the policy governing the recruitment and promotion of the employees of the banks, as laid down in Paras 237 and 238 of the first award, was adopted.
4. So far as the Pay Commission is concerned, it issued a questionnaire to the Press and on the basis of the replies thereof ; the data collected by it, by interviewing the representatives of various Organizations and Managements of the Financial Institutions, and through other means, it submitted a report to the authorities concerned. In pursuance whereof, the Ministry of Finance, Government of Pakistan, vide their letter No, 259/ I-F-X1/78 dated 5th April, 1978, conveyed the recommendations of the Pay Commission to the Pakistan Banking Council, with the object of introducing a uniform promotion policy for clerical staff/officers and executive of the nationalized Commercial Banks, which inter alia provided that :-
(a) Section 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.
' The Pakistan Banking Council on its part, by its letter No, M A F. 37/178/ 78 dated 15th April, 1978, passed on the Directive of the Ministry of Finance, to the petitioner and other nationalized Banks.
Accordingly, the petitioner-bank issued Circular No, Staff/20/R 0 dated 18th July, 1979 (Annexure 'El giving out that promotion from the clerical cadre to the officer grade-III, would be made, on the basis of an evaluation test, followed by an interview.
5. The third respondent, who is the Muslim Commercial Bank Employees' Federation, and also a Collective Bargaining Agent, for the bank, took an exception to this Circular and challenged it before the N. I. R. C., through a petition under section 34 of the I. R.
0., on the plea that under Para 237 of the Wage Commission's award, the promotion from the clerical cadre to the officer grade-III, could only be made, on the basis of the experience, length of service and overall performance of the employees and that the procedure adopted by the bank to hold a written test, was against the said provision of the award. It may be observed that earlier the bank issued Circular No, Staff/19/RO dated 20th April, 1978, which was also called in question by the third respondent before the N. I. R. C. However, the parties compromised and the respondent withdrew its petition.
6. This second petition was contested by the Bank. The learned Senior Member of the N. I. R. C., who heard the matter, maintained that the circular in question, requiting the clerical staff to undergo a written test, for qualifying for promotion to the officer grade, was clearly in defiance of the Wage Commission's award. Thus by his order dated 25th May, 1980, be accepted the respondent's petition and directed the Bank to refrain from implementing the Circular.
7. The petitioner's appeal against this order was dismissed by the N. I. R,. C., on 3rd December, 1980.
This dismissal rested on the Commission's earlier order dated 3rd December, 1980, passed in Case No, 12 (10)/80- N.
1. R. C., instituted by Habib Bank Employees' Union. The N. I. R. C. Referred to Para 115 of the second Wage Commission's award and held that the issue as to whether or not, the written test could be prescribed as a criterion for promotion, was embedded in question No, 12 of the questionnaire, issued by the Commission, and since it did not find mention in Para. 237 of the award, it could be inferred that this mode of evaluating the suitability of the employees, for promotion, was rejected by the Commission.
8. It is under these circumstances that the petitioner has invoked the constitutional jurisdiction of this Court, to assail the validity of the N. I. R. C.'s order dated 3rd December, 1980.
9. The learned counsel for the petitioner argued that the terms of reference of the Pay Commission, were altogether different from those of the Wage Commission, but the N. I. R. C. Failed to maintain this distinction, which led to a confusion and resulted in misconstruction of the Wage Commission's award. He submitted that Paras 237 and 238 applied only to the workmen and could be extended to cover the officer grade. He then referred to Para. 240 of the Pay Commission's recommendations which prescribed a written test for promotion from clerical to officer grade. The extravagant reference to question No, 12 of the questionnaire, in the impugned order was also commented upon by the learned counsel, to contend that the questionnaire was issued by the Pay Commission, long before the constitution of the Wage Commission and, therefore, the N. I. R. C's explicit reliance on question No, 12 for interpreting Para 237 of the award, was uncalled for.
10. An argument was also advanced that the promotion could not be claimed as a matter of right and it was always within the prerogative of the employer to determine the suitability of an employee for promotion. It was further emphasized that para. 237 merely laid down a criterion for judging the fitness of the clerical staff, aspiring for promotion to the lowest rung of the officer grade. Such promotion under para. 237 could be made on the basis of experience, length of service and overall performance of the employee. The contention was that the measure evolved by the bank, to assess the suitability of an employee by holding a written test, was not foreign to the mode of evaluation of his "overall performance". In support of his these submissions, the learned counsel heavily relied on the judgment dated 5th May, 1981, in W. P. No, 402-S/81 rendered by a learned single Judge of Multan Bench of this Court. He further cited Syed Abdul Qadir Shah v. Government of Punjab and The Central Board of Revenue, Government of Pakistan v. Asad Ahmad Khan to augment his submissions.
11. Only the third respondent has contested this petition and his learned counsel contended that both the Commissions were manned by the same personnel and that even the Pay Commission was re-named as Wage Commission. In this connection he referred to para. 4 of the second Wage Commission's award. This argument aimed at eclipsing the distinction sought to be drawn by the petitioner's learned counsel between the two Commissions. In the same wake, he urged that the Wage Commission could not have been oblivious of the import of question No,
12. The learned counsel thus supported the decision of the N. I. R. C. And further pleaded that complete omission of the written test, from para. 237, did not permit the bank to prescribe such a mode of judging the capability of the employees, for promotion. He argued that para. 237 could not admit of any doubt and in unambiguous terms laid down, that only the experience, the length of service and the overall performance of an employee could be considered as the basis for his promotion. If it was a question of evaluating the overall performance of an employee, he submitted, this could easily be assessed from his A. C. R's. The learned counsel also drew my attention to section 38-0 of the I. R.0., to point out that the Wage Commission's decision is to be deemed as an award, which on an employee's qualifying the requirements of para. 237 thereof, guaranteed to him a right of promotion to the officer grade.
12. After hearing the learned counsel for the parties, at some length, I feel, the question which lies at the apex, is, as to whether or not the Circular issued by the Bank, to hold a written test, for ascertaining the suitability of the employees for premium, is violative of para. 237 of the Wage Commission's award. Of course the adjudication of this issue, may also call for determination of other diverse contentions of the parties.1
13. It cannot be disputed that the terms of reference of the two Commissions are not the same. The Ministry of Finance letter No, 6(10)- IFII-74-1730 dated 10th July, 1974, appearing at page 189 of the Wage Commission's published report (1974-75) amply demonstrates that only the following Institutions came within the purview of the terms of the reference of the Pay Commission :- "(i) Agricultural Development of Pakistan (A. D. B. P.).
(ii) House Building Finance Corporation (H. B. F. C.).
(iii) Industrial Development Bank of Pakistan (1. D. B. P.).
(iv) Investment Corporation of Pakistan (I. C. P.).
(v) National Investment Trust (N. I. T.).
(vi) National Development Finance Corporation (N. D. F. C.).
(vii) People's Finance Corporation (P. F. C.).
' It is noteworthy that the Banks (Nationalization) Ordinance, 1974, which was replaced by Act XIX of 1974, was on the statute book, with effect from 1st January, 1974 but the Ministry of Finance did not mention any of the nationalised banks in the list of Financial Institutions, which fell within the terms of the reference of the Pay Commission. As regards the Wage Commission, it was constituted under section 38-A of the I. R.0. In respect of the workers of the nationalized banks, and other Financial Institutions, namely, H. B. F. C., I. C. P., N. T., N. D. F. C. And P. F. C. It is discernible from parai.
49 to 55 of its first award, that one of the tasks assigned to it was that it had to prepare the wage structure for the workers of the banks and other Financial Institutions and to make recommendations in respect of the terms and conditions of their service. Seemingly, various categoties of employees were working in such banks, out of which the Wage Commission had to single out the employees, who could be treated as workers/workmen, as defined in the I. R.0. As the commission, was countenanced with a difficulty in making such a classification, it left the matter to the Institutions concerned, to provide the Commission, a list of their employees, to whom they considered to be the workers. So far as the petitioner-Bank is concerned, such a list furnished by it, to the Commission, is to be found in 'Annexure III' of the first award, in which under "Category II- Staff", have been shown :- "(1) Clerk -"A" Grade.
(2) Clerk "B" Grade."
Thus out of the numerous categories of the employees of the petitioner-Bank, the Wage Commission's award, so far as clerical staff is concerned, applied only to the Clerks Grade "A & B", who were covered by the definition of the worker. The terms of reference of the two Commissions were different and there was no overlapping. There should have been, therefore, no difficulty in sorting out the employees, to whom, the respective recommendations of the Commissions applied. In this respect, however, much confusion abounds. Though the nationalized banks were not included in the terms of reference of the Pay Commission, yet the Ministry of Finance, out of its zeal to introduce a uniform policy in the banks, issued letter No, 259/I. F. XIX/781 dated 5th April, 1978, to the Pakistan Banking Council which also applied to the clerical staff. I may say, and say so, with respect, that the second Wage Commission, by stating in para. 4 of its report, that the Pay Commission was renamed as a Wage Commission, added much to this confusion. I am of the view, that the loose phraseology of para. 4 did not alter the position and the Pay Commission continued to remain a separate entity. Its report, therefore, could not have been applied to such clerical staff of the petitioner-bank, whose list was provided by it to the Wage Commission. Since the Wage Commission's report is to be treated as an award, the Ministry of Finance or for that matter the Pakistan Banking Council, as regards such employees of the Bank, who were categorized as workers, could not have ignored the recommendations of the Wage Commission.
The petitioner's reliance on para. 240 of the Pay Commission's report is thus inapt.
14. I am mindful that this case relates to the second Wage Commission's award. However the spacious bearing on the first award, in the earlier part of this judgment was essential, to ascertain the true impart to para. 237, with reference to its context, as it forms part of the second award as well. It is correct that 'Annexure III' of the first award embodying the categories of the employees of the banks, has not been specifically adopted in the second Wage Commission's award but that would hardly make any difference, for, adoption of para. 237 in the second award is not in vacuum.
For its embodiment in the second award, it cannot be denuded of the context, in which it was placed in the earlier award. Para. 237 would thus continue to apply to such employees of the Bank as may fall within the statutory connotation of the worker.
15. The N. I. R. C. In no small measure has founded its decision on the assumption that the question as to prescribing the written test, as a criterion for promotion, was considered by the Wage Commission. This assumption is anchored on the inference that question No, 12 of the questionnaire, was examined by the Wage Commission. It is significant to note, as contended by the petitioner's learned counsel, that the questionnaire was circulated by the Pay Commission, at a time, when the Wage Commission had not even come into being. I have already observed that the Pay Commission was not merged into the Wage Commission. The petitioner's grievance over the N.
I. R. C's. Profusely founding its decision on the assumption that question No: 12 was examined by Wage Commission, is not unjustified. The basis of this assumption is the mixing up of the identity of the Pay Commission with the Wage Commission, by the N. I. R. C., which is wholly wrong. As stated above, the questionnaire was formulated by the Pay Commission in respect of the Institutions named in the Ministry of Finance letter dated 10th July, 1974 and it also interviewed the unions, federations, associations and the heads of the managements of these Institutions, for the purposes of its report. The lavish extension of the questionnaire, to the Wage Commission, by the N. I. R. C. Is thus misconceived and the effect of the omission of the written test from para. 237, has been stretched too far.
16. It cannot be refuted that the decision of the Wage Commission, is enforceable as an award, under the I. R.
0. The contention of the respondent, however, is that para. 237 confers a right of promotion on the employees of the Bank. I am unable to accept this submission. It is one of the well known attributes of service that no employee can as a matter of right claim promotion to the higher post. This view finds support from Muhammad Suleman Khan v. Pakistan and so also from the two precedents cited by the petitioner's learned counsel. The proposition that an employee has no vested right of promotion, gives rise to the corollary that it would be for the promoting authority, to determine the suitability of his employees for promotion. This brings in bold relief the argument of the petitioner's learned counsel that para. 237 merely lays down the mode and criterion for judging such suitability and that holding of the iwritten test by the Bank is not deprecatory of the rights claimed by the respondent under this para.#TE##
17. The criterion for promotion as laid down in para. 237 is :- "Experience, length of service and overall performance."
' There is no gainsaying that a variety of considerations govern the promotion of an employee. The experience, seniority, competence, efficiency, and official record/A. C. R's. Are some of the factors designed to test such a fitness of an employee. As experience and seniority by themselves cannot furnish an absolute criterion for promotion, the Wage Commission, in its wisdom alongwith experience and length of service, has also prescribed another test namely ; "overall performance."
In the Oxford English Dictionary and the Websters International Dictionary the words "overall" and "performance" have been defined as :- Oxford English Dictionary. Websters International Dictionary.2 Overall (as adjective)."Everywhere, in every direction.""Including everything, taking everythinginto account,---..as overall efficiency".
Performance."To carry out a command, duty, purpose,execution, discharge, fulfillment."The act of performing execution in a set or formal manner or with technical or artistic skill, as the performance of a duty, the execution of the functions re--quired of one."
' These words bear a wide connotation. There can be various means of evaluating the overall performance of an employee and the holding of a written test, for this purpose can be regarded as one of such modes. It has not been shown that the mode proposed to be adopted by the Bank for judging the ability of its employee, with reference to their overall performance, would be destructive of para.
237. I entertain no doubt C that the measure proposed by the Bank, under the Circular, i.e, the written test, and interview, for assessing the overall performance of the employees, is not in conflict with this para.#TE## Indeed for the preservation, of purity and efficiency in the banking service, the written test, can bring in forefront, the qualitative difference, as to the overall performance of the employee, contesting for promotion to officer grade, and keeping in view their experience and seniority, it would certainly be advisable to limit the promotions only to such employees who are found to be possessed of better merit. The A. C. Rs, alone cannot be helpful in assessing the overall performance. The view which I have taken, that written test and interview are not repugnant to para. 237 also finds support from the judgment of this Court in W. P. No, 402/ S/81 relied upon by the petitioner's learned counsel, in which the learned single Judge also discussed some case law, on the subject, in aid of his decision.
18. For the foregoing reasons, this writ petition is accepted, the impugned order declared to have been passed without lawful authority and the respondents are restrained from implementing the same. The parties are left to bear their own costs. PLD 1960 SC 81 1972 SCM R 127 1972 SCM R 523