' The relevant facts giving rise to the present writ petition are that on 31st March, 1979 Allied Bank of Pakistan Limited, Zonal Office, Sahiwal, issued Circular No. ZO/MAM/32 to the managers of its branches in the zone intimating them that in view of the decision taken by the Central Office, Karachi promotion of clerical staff to officers cadre and typists and steno-typists to steno-typists and stenographers respectively should be made after conducting written test and interview of the eligible employees. The above circular was issued, in view of the instructions conveyed by the Pakistan Banking Council to the Presidents of all nationalized banks vide its letter No. MAF. 37/178/78 dated 15th April, 1978 (copy Annexure B). Pakistan Banking Council was required to convey the aforementioned instructions by the Ministry of Finance, Government of Pakistan vide letter No. 259- 1F. XI/78 dated 5th April, 1978 (copy Annexure A). Secretary Staff Union Registered, Allied Bank of Pakistan Limited, Sahiwal Zone, Headquarters, Okara respondent No.. 3 took exception to the aforementioned circular as according to him the condition of holding of test and interview for promotion of employees imposed by the circular was illegal being inconsistent with paragraph 237 of the report of the Wage Commission which provided that promotion should be made on the basis of experience, length of service and overall performance of an employee. Respondent No. 3 accordingly asked Allied Bank of Pakistan Limited, Zonal Office, Sahiwal, to withdraw the aforementioned circular and promote the employees without holding any test and interview. As no attention was paid to his request, respondent No. 3, filed an application under section 34 of the Industrial Relations Ordinance, 1969 (hereinafter to be referred as the Ordinance) in the Punjab Labour Court No. 9, Multan, respondent No. 2 against Allied Bank of Pakistan Limited through Assistant Vice President, Allied Bank of Pakistan Limited, Sahiwal Zone praying for a declaration that the circular issued by Allied Bank of Pakistan Limited, Zonal Office, Sahiwal, on 31st March, 1979 as referred to above, was illegal in so far as it imposed the condition of holding of test and interview for promotion of the employees. It was further prayed that a direction be issued to Allied Bank of Pakistan Limited to promote the employees without any test and interview in accordance with the provisions of paragraph 237 of the report of the Wage Commission.
2. Allied Bank of Pakistan Limited contested the application filed by respondent No. 3 inter alia on the grounds that the application was not maintainable under section 34 of the Ordinance ; that respondent No. 3 had no locus standi to file the application ; that the impugned ,circular was not illegal as it had been issued in pursuance of the policy directives of the Pakistan Banking Council and the Federal Government and that it was not inconsistent with paragraph 237 of the report of the Wage Commission as the said paragraph did not prohibit an employer from holding test and interview for judging the experience, overall performance and efficiency of an employee before allowing him promotion.
3. Punjab Labour Court. No. 9, Multan, respondent No. 2 however, did not accept the above contentions of Allied Bank of Pakistan Limited as vide its order dated 6th February, 1980 it found that the application filed by respondent No. 3 under section 34 of the Ordinance was maintainable ; that respondent No. 3 had locus standi to file application against Allied Bank of Pakistan Limited and that the condition of holding of test and interview imposed by the bank was illegal and unjustified and that the employees were entitled to be promoted on the basis of criteria laid down by the Wage Commission in paragraph 237 of the report for 1974-75.
4. Allied Bank of Pakistan Limited challenged the aforementioned order passed by respondent No. 2 in appeal before the Labour Appellate Tribunal, respondent No. 1 but without success as the appeal was dismissed on 11th January, 1981.
5. Allied Bank of Pakistan Limited through Vice-President, Allied Bank of Pakistan Limited, Personnel Division Central Office, Karachi (petitioner No. 1) and the Assistant Vice-President, Allied Bank of Pakistan Limited, Sahiwal, who had represented Allied Bank of Pakistan Limited before respondents Nos. 1 and 2 have filed the present writ petition challenging order dated 6th February, 1980 passed by the Punjab Labour Court No. 9, Multan, respondent No. 2, as affirmed in appeal by the Labour Appellate Tribunal, Lahore respondent No. 1 vide order dated 11th January, 1981 whereby petitioner No. 1 has been directed to follow the criteria laid down in para. 237 of the report of the Wage Commission for 1974-75 in the matter of promotion of their employees inter alia on the grounds that respondents Nos. 1 and 2 have failed to consider that paragraph 237 of the Report of the first Wage Commission was applicable only to workmen and not to officers and that on the expiry of period of three years during which the aforementioned paragraph was operative, the Federal Government vide its letter dated 5th April, 1978 had introduced a uniform policy of promotion of employees of Banks on the basis of recommendations of the Pay Commission ; that the application filed by respondent No. 3 under section 34 of the Ordinance was not maintainable as the Staff Union was not competent to take up the case of an individual workman under section 34 of the Ordinance and that respondents Nos. 1 and 2 had misinterpreted paragraph 237 of the Report of the Wage Commission inasmuch as the said paragraph did not guarantee any right of promotion to an employee as it merely laid down criteria for promotion of employees to the higher posts.
6. In addition to the usual prayer made by the petitioners in their writ petition that the impugned orders passed by respondents Nos. 1 and 2 be declared without lawful authority, the petitioners by filing a petition for amendment of the writ petition, have prayed that penal action being taken by respondent No. 2 for the alleged violation of an injunction order issued by respondent No. 2 during the pendency of the application of respondent No. 3 as also under sections 54 and 55 of the Ordinance be declared as without jurisdiction and without lawful authority and that respondent No. 2 be restrained from proceeding with the complaint filed by respondent No. 3 against the Senior Executive Vice-President and Assistant Vice-Presidents of petitioner No. 1.
7. Respondent No. 3 has contested the writ petition and has also opposed the petitioners' prayer for declaring the penal action being taken by respondent No. 2 under sections 54 and 55 of the Ordinance and for violating the injunction order by the Officers of petitioner No. 1 as illegal and without jurisdiction.
8. On 5th May, 1981 when the petitioners' application for suspension of the implementation of the impugned orders passed by respondents Nos. 1 and 2 came up for hearing, learned counsel for the petitioners proposed that instead of hearing arguments in the petitioners' aforementioned application, arguments in the main case be heard as it would avoid repetition of arguments and save the Court's time in the disposal of the case because the arguments in the application would also touch the merits of the case. Learned counsel for respondent No. 3 accepted the above proposal and so the parties counsel were allowed to argue the main case.
9. In order to explain the background and true import of the recommendations made by the Wage Commission in its first Report for 1974-75, learned counsel for the petitioners referred to the resolution dated 28th May, 1974, where by the Government of Pakistan decided to appoint a Pay Commission for Banks and financial institutions to examine inter alia the existing salary structure and all other types of allowances, amenities and facilities etc. Admissible to all categories of staff and employees in the nationalized banks and to make a recommendation on the need, if any, and the manner in which the existing salary structure and other emolument and the terms and conditions governing them should be rationalized or otherwise modified. He also referred to the questionnaire issued by the Pay Commission on 25th July, 1974. Attention was particularly drawn by the learned counsel to the following questions which were relevant for the present case :
(11) What criteria are followed at the present in the matter of promotion of an employee from a lower to a higher appointment ?
(12) What criteria should be applied for making promotion from clerical cadre to officers' cadre ?
Should the promotion be made on seniority cum-fitness or on a qualifying examination and performance ?
' Learned counsel pointed out that before the Pay Commission could conclude its task, on 7th November, 1974 Government of Pakistan notified the constitution of a Wage Commission under subsection (1) of section 38-A of the Ordinance in respect of workers of the banks which had vested in the Federal Government and of certain other financial institutions. The personnel notified for the Commission were the same who had been nominated for the Pay Commission. The Wage Commission was required to fix rates of wages and determine all other terms and conditions of service in accordance with the provisions of the Ordinance in respect of the workers of Banks and other financial institutions as contemplated by subsection (1) of section 38-A of the Ordinance.
After collecting necessary data and interviewing the representatives of Unions and Federations, the Wage Commission prepared its report which was submitted to the Government on 12th May, 1975.
The Pay Commission also formulated its recommendations and submitted the same in the form of a report to the Government. According to the learned counsel for the petitioners it was in pursuance of the recommendations made by the Pay Commission that the Government decided to introduce a uniform promotion policy for clerical staff/Officers and executives of the nationalized commercial Banks. The above decision was communicated to the Pakistan Banking Council by the Government vide letter dated 5th April, 1978 (copy Annexure A). After receiving the above communication from the Government, the Pakistan Banking Council issued policy directive to the Presidents of all nationalized Banks on 15th April, 1978 vide letter No. MAF/37/178/78 (copy Annexure B). On receipt of instructions from the Central Office, petitioner No. 2 on behalf of Allied Bank of Pakistan Limited, Sahiwal, issued circular dated 31st March, 1979 which was challenged by respondent No. 3 before the Labour Court. Learned counsel for the petitioners contended that the aforementioned circular could not be challenged as being illegal because it was issued by petitioner No. 2 to implement Pakistan Banking Council's policy directive which was based on the decision taken by the Government on the recommendations of Pay Commission. The circular in questions was not inconsistent with para. 237 of the Report of the Wage Commission because the criteria of promotion laid down in paragraph 237 did not exclude the holding of test and interview by the employer for determining the fitness and suitability of an employee for promotion. Moreover, paragraph 237 did not deal with all categories of the staff of petitioner No. 1 because the list of workers supplied to the Wage Commission by petitioner No. 1 as given at Serial No. 6 in Annexure-III of the Report was only in respect of clerical staff and non-clerical staff. The term 'employee' used in paragraph 237 could not be interpreted in general sense, because the Wage Commission had jurisdiction to fix rates of wages and determine all other terms and conditions of service in respect of workers of Banks, lists of which were supplied to the Wage Commission as shown in Annexure-III of the report. According to the learned counsel for the petitioners paragraph 237 of the report did not lay down any specific criteria for the promotion of workers of Banks. On the other hand paragraph 237 only stated broad principles to be kept in view by the employer while considering the case of promotions of workers. It did not contain any prohibition for holding a test and interview for judging the fitness and suitability of a worker for promotion. Learned counsel referred to paragraph 228 of the Report to show that the principle of competing for appointment to higher grade was recognised even by the Commission. Thus if the employer was to hold a test and interview in order to judge the suitability of a worker for promotion it could not be said that he was violating paragraph 237 of the report.
10. Learned counsel for the petitioners further contended that paragraph 237 gave wider discretion to the employer in the matter of promotion of the workers as seniority-cum-fitness was not the only criterion in such cases. According to the learned counsel the employer was the sole judge in the matter as was evident from paragraph 237 of the report which clearly recognised the right of employer to make appointments both by direct recruitment and by promotion at his discretion.
Learned counsel for the petitioners pointed out that no employee could claim promotion as of right and in that connection he referred to the decision of the Supreme Court in Syed Abdul Qadir Shah v, The Government of Punjab (1) where it was held that prospects of promotion could not be included in conditions of service nor the same could be enforced by invoking constitutional jurisdiction of the High Court. In support {{FOOT NOTE}}
(1) 1972 SCM R 323 {{FOOT NOTE}} ' of his contention that the employer was the sole Judge in the matter of promotion of an employee, he referred to the Supreme Court's decision in Muhammad Abdul Abdullah v. The Province of East Pakistan (I) where it was held that so far as suitability for promotion to a particular post was concerned, the sole Judge was the Government (employer) and the Courts were unable to interfere except possibly in a case of proved mala fide.
11. Learned counsel for the petitioners further submitted that the view expressed by the learned Appellate Tribunal that by holding test and interview the possibility of showing favour and disfavour to a particular individual could not be excluded was not correct because there was greater scope for showing favour to a particular person if the promotions were to be made on the basis of seniority-cum-fitness. According to the learned counsel mere length of service of an employee was not a proper criterion to be considered in matter of promotion because the employer was more concerned with the fitness and capability of the employee to perform his functions at the higher post than the length of his service. In this connection he referred to the following passage from the Introduction to the Study of Public Administration by Leonard D. White which was relied upon by the Supreme Court of India, while examining the question whether promotion to selection grade post could be claimed merely on the basis of ranking in the gradation list in the case of Sant Ram Sharma v. State of Rajasthan and others (2)
"The principal object of a promotion system is to secure the best possible incumbents for the higher positions, while maintaining the morale of the whole organization. The main interest to be served is the public interest not the personal interest of members of the official group concerned.
The public interest is best secured when reasonable opportunities for promotion exist for all qualified employees, when really superior civil servants are enabled to move as rapid up the promotion ladder as their merits deserve and as vacancies occur and where selection for promotion is made on sole basis of merit. For the merit system ought to apply as specifically in making promotions as in original recruitment.
' Employees often prefer the rule of seniority by which the eligible longest in service is automatically awarded the promotion. Within limits, seniority is entitled to consideration as one criterion of selection. It tends to eliminate favouritism or the suspicion thereof, and experience is certainly a factor in the making of a successful employee. Seniority is given most weight in promotions from the lowest to other subordinate positions. As employees move up the ladder of responsibility, it is entitled to less and less weight. When seniority is made the sole determining factor, at that level, it is a dangerous guide. It does not follow that the employee longest in service in a particular grade is best suited for promotion to a higher grade ; the very opposite may be true."
12. Learned counsel for the petitioners also referred to the judgment of the Supreme Court of India in the case of N. S. Mehta and others v. Union of India and others (3) where it was held that rule prescribing typing test for clerks for promotion to higher grade was neither {{FOOT NOTE}}
(1) PLD 1960 SC 164 (2) AIR 1967 SC 1910
(3) AIR 1977 $ C 1673 {{FOOT NOTE}} ' unreasonable nor violated Article 14 or 16 of the Indian 'Constitution which provided safeguard against discrimination. Reliance was also placed by the learned counsel on the judgment of our own Supreme Court in Ast Ali v. Pakistan Railways Lahore and others (1) where the petitioner, who was called upon to appear in an ability test and on his refusal to do so was refused promotion had challenged the imposition of condition of ability test as illegal, it was held that ability test which the petitioner had refused to undergo was not such an imposition which could not be provided under law and the refusal of the concerned authorities to promote the petitioner without going through the ability test could not be considered illegal. It was also observed that there could be several methods of discovering the fitness or otherwise of a person to hold a certain post and the holding of an ability test could certainly be one of these methods.
13. Summing up the arguments, learned counsel for the petitioners stated that the circular issued by petitioner No. 2 prescribing test and interview for promotion of its workers to higher posts was neither illegal nor unjust because the above procedure not only provided equal opportunity to all the eligible workers but also enabled the employer to judge fitness and suitability of the workers for promotion. The above-mentioned circular did not violate the broad principles of promotion embodied in paragraph 237 of the Report of the Wage Commission, for bolding of test and interview, was one of the methods by which the fitness of an employee for promotion could be judged and there was nothing in paragraph 237 which precluded the employer from following the above method. Respondent No. 3 could not have any grievance against the method selected by petitioner No. 2 for judging the fitness and suitability of a worker for promotion especially when it was one of the well-recognised methods for the purpose and also because no one could claim promotion as of right.
14. Learned counsel for the petitioners also questioned the jurisdiction of respondent No. 2 to entertain the application filed by respondent No. 3 under section 34 of the Ordinance. According to the learned counsel the report of the Wage Commission was not an award within the meaning of section 2(0 of the Ordinance and as such respondent No. 2 bad no jurisdiction to enforce it under section 34 of the Ordinance. The Report of the Wage Commission was an award of the Full Bench of the National Industrial Relations Commission by virtue of section 38-D of the Ordinance and it could be enforced by the said Commission alone and not by respondent No. 2 in view of the provisions of subsection (II) of section 22-A of the Ordinance. Learned counsel for the petitioners argued that even if it were to be assumed that the Labour Court had jurisdiction to enforce the award of the Wage Commission, respondent No. 3 was not competent to move the Labour Court for enforcement of the award in the present case as it was a case of individual grievance and only those workers whose rights were adversely affected by the impugned circular were entitled to seek redress under section 25-A of the Ordinance.
15. As regards the penal action initiated by respondent No. 3 against petitioner No. 2 and other officers of petitioner No. 1 for violating injunction order passed by respondent No. 2 during the pendency of the application filed by respondent No. 3 under section 34 of the Ordinance, {{FOOT NOTE}}
(1) 1980 SCM R 11 {{FOOT NOTE}} ' learned counsel for the petitioner contended that the injunction order was not operative after 29th May, 1979 as it had not been extended by respondent No. 2 after the said date. Petitioner No. 2 and the other Officers of petitioner No. 1 against whom complaint was filed by respondent No. 3 had not violated any injunction order as the promotions were made on the basis of test and interview on 4th July, 1979, when no injunction order was in operation. Learned counsel referred to order dated 26th April, 1979 passed by respondent No. 2 when the case was adjourned to 29th May, 1979 with a direction that till that date status quo shall be maintained. On 29th May, 1979 there was no Presiding Officer of Punjab Labour Court No. 9, Multan, and as such the case was adjourned by the Reader to 25th June, 1979 for further proceedings. As no new Presiding Officer of the Court had been appointed even by 25th June, 1979, the case was adjourned sine die by the Reader of the Court. It was evident from the aforementioned orders that the injunction order passed by the Court was operative only till 29th May, 1979 as it was not extended after the said date. Since petitioner No. 2 and other officers of petitioner No. 1 had not committed breach of any term of the award of the Wage Commission, they were not liable for any penal action under section 54 of the Ordinance.
Similarly no penal action could be taken against them under section 55 of the Ordinance as the operation of the order passed by respondent No. 2 was suspended by the Appellate Tribunal respondent No. 1 in appeal and the order passed by the Appellate Tribunal on 11th January, 1981 dismissing the petitioners"- appeal was suspended by this Court on a petition submitted by them along' with the writ petition.
16. Learned counsel for respondent No. 3 supported the impugned order passed by respondents Nos. 1 and 2 as according to him circular dated 31st March, 1979 issued by petitioner No. 2 was manifestly inconsistent with paragraph 237 of the Report of the Wage Commission. He submitted that the policy directive issued by the Pakistan Banking Council from which justification was being sought by petitioner No. 2 for issuing the impugned circular could not affect the rights of the workers of petitioner No. 1 because the recommendations made by the Pay Commission on the basis of which Government of Pakistan had issued letter dated 5th April, 1978 (Copy Annexure 'A') were not applicable to the workers of the nationalized banks. According to the learned counsel Wage Commission alone was legally competent to determine the terms and conditions of the service of the workers and that the criteria for promotion of workers as stated in paragraph 237 of its Report could not be changed by petitioners on the basis of letter dated 15th April, 1978 (Copy Annexure
17. Learned counsel for respondent No. 3 pointed out that the Wage Commission was aware that promotion of employees of Banks on the basis of test and interview was not acceptable to the employees and it was for that reason that out of two alternatives indicated in question No. 12 of the questionnaire for the promotion from clerical grade to officer grade, the Wage Commission had discarded the alternative that promotion should be based on a qualifying examination and performance. It was, therefore, not possible to accept the argument that promotion on the basis of test and interview as proposed in the impugned circular by petitioner No. 2 was not inconsistent with the recommendation of the Wage Commission as contained in paragraph 237. In this connection learned counsel for respondent No. 3 referred to the decision of the Punjab Labour Appellate Tribunal in the case of Iftikhar Ahmad and another v. Senior Vice-President, V. P.
Personnel Division, Karachi and another (1) where it was held that the direction issued by the respondent-Bank requiring employees to take part in the test and interview before being considered for promotion was inconsistent with paragraph 237 of the Report of the, Wage Commission.
18. As regards the contention of the learned counsel for the petitioners that right of promotion was not a vested right and that no employee could claim promotion as of right, it was submitted by the learned counsel for respondent No. 3 that the workers of petitioner No. 1, as represented through respondent No. 3, had not approached respondent No. 2 with any request that the petitioner should be directed to grant promotion to them. They had moved respondent No. 2 as they felt aggrieved by the impugned circular issued by petitioner No. 2 because it violated one of the terms of the award of the Wage Commission which laid down the criteria for promotion.
19. As regards the objection of the petitioners that respondent No. 2 had no jurisdiction to entertain the application of respondent No. 3 under section 34 of the Ordinance in the present case, it was contended by the learned counsel that Labour Court was competent to enforce any award under section 34 of the Ordinance and that the award of Wage Commission which was to be considered as an award of the National Industrial Relations Commission was also covered by the expression "any award" used in section 34 of the 'Ordinance. The word "any" connoted wide generality and could not be given restricted meaning. He referred to Allah Ditta v. The State (2) in support of his above interpretation of the word "any". Learned counsel further submitted that under the Ordinance no power had been conferred on the National Industrial Relations Commission to enforce an award and as such subsection (11), section 22-A of the Ordinance on which reliance was placed by the learned counsel for the petitioners was not applicable in the present case. He further contended that respondent No. 3 was competent to file application under section 34 of the Ordinance as being the representative of the workers. Reliance was placed by him in this connection on the judgment of the High Court of Sind in Chamber of Commerce & Industries, Karachi v. The Presiding Officer, Sind Labour Court No. 3, Karachi (3).
20. Learned counsel for respondent No. 3 also supported the penal action being taken by respondent No. 2 under sections 54 and 55 of the Ordinance against petitioner No. 2 and the officers of petitioner No. 1 as they had refused to give effect to the award of the Wage Commission with regard to the promotion of workers of petitioner No.
1. They were also liable to be punished for disobeying the injunction order issued by respondent No. 2 requiring them to maintain status quo during the pendency of the application filed by respondent No. 3 under section 34 of the Ordinance. According to the learned counsel for respondent No. 3 the injunction order passed by respondent No. 2 on 15th April, 1979 was operative and binding on the petitioners notwithstanding the fact that it was not extended on 29th May, 1979 due to the absence of the Presiding Officer of the Labour Court. In this connection he referred to Mst. Umda Begum {{FOOT NOTE}}
(1) 1982 PLC 52 (2) PLD 1976 Lab. 823
(3) PLD 1979 Kar. 189 {{FOOT NOTE}} ' v. Saad Saood Jan (1) where it was held that the stay order passed by the appellate authority on 21st November, 1961 was effective and operative notwithstanding the fact that it was not extended after 21st December, 1961 up to which date it was effective.
21. 1 have carefully considered the arguments of the parties' counsel. The relevant portion of the impugned circular as reproduced by the Appellate Tribunal, respondent No. 1 in its judgment is as under :- "It has been decided by our Central Office, Karachi to evaluate in service employees in the following cadres for promotion, subject to the conditions laid down hereinbelow, and to conduct written test and interview for the purpose :-
(a) Clerical Staff (including Cashiers, Typists, Stenotypists and Stenographers) to Officer's cadre.
(b) Typists and steno-typists to Steno-graphers cadre respectively. We give below the criteria of eligibility :1. Promotion to Officer's Cadre : Eligibility.-Length of service of clerical staff in clerical cadre should be as under :- QualificationLength of Service as on 31December, 1978.
Graduate 2 years Intermediate4 years Matric 6 years Graduate 2 years. Intermediate 4 years. Matric 6 years. Promotion to Stenotypists and Stenographers.
Required shorthand/typist speed Length of Service Stenographers. 120/45 w. p. m. 2 years.
Stenotypists. 100/45 w. p. m. Staff Promotion Non-clerical Staff Length of service 2 years Qualifications Matric"
' The objection of respondent No. 3 against the aforementioned circular is that it requires the employees to take part in written test and appear for interview before they are considered for promotion. This condition, according to him is repugnant to paragraph 237 of the Report of the Wage Commission. It may be noticed that the criteria of promotion namely, experience, length of service and overall performance of an employee as stated in paragraph 237 have not been ignored in the impugned circular; Minim um length of service for different categories of employees has been prescribed for their eligibility to promotion, which meets the requirement of length of service stated in paragraph 237. Experience and overall performance of an employee continue to remain the basic consideration for promotion and for judging it written test an interview have been prescribed. No one can dispute that experience an overall performance of an employee is considered at the time of his promotion in order to judge his fitness and capability to discharge respond sibilates of the higher post and that the employer is the sole Judge in the {{FOOT NOTE}}
(1) PLD 1962 Lab. 306 {{FOOT NOTE}}st ' behalf, as he is not bound to promote an employee whom he does not consider fit and capable of performing the functions and duties of the higher post. It is for this reason that it is said that no employee can claim promotion as of right. The Wage Commission was not oblivious of these basic principles while considering the matter relating to recruitment and promotion of workers of the Banks because it was in that con text that the Commission has recognised the right of employer to make appointments both by direct recruitment and by promotion at his discretion in paragraph 231 of its Report.
22. Now, there are several methods of judging the experience and overall performance of an employee. Mere length of service of an employee may not be helpful in judging his experience and overall performance. Service record or an employee may be looked into to judge his past performance but sometime even the service record may not be helpful and may not be considered as a dependable basis for judging his experience and overall performance. After having conceded that the employer is the sole Judge whether any employee is fit; and suitable for promotion, there can be no objection if he adopts one or more methods to judge the fitness and capability of the employee before considering his case for promotion. This right has not been denied to him by the Wage Commission. Paragraph 237 of the report, therefore, will have to be interpreted by keeping in view the aforementioned right of the employer. There is no doubt that it is stated in paragraph 237 that promotion shaft be made on the basis of experience, length of service and overall performance of an employee but it is not mentioned how experience and overall performance of an employee is to be judged. In the ease of experience it may be considered as a basis, but as noticed earlier, length of service by itself cannot be helpful in judging the overall performance of an employee. If an employer thinks that overall performance which is nothing but fitness for promotion to the higher post, can best be judged by holding written test and interview, it cannot be said that the employer is not entitled to do so because this method of judging the overall performance of the employee has not been specifically stated in paragraph 237 of the report.
23. It may be noticed that holding of test and interview for purposes of promotion is one of the recognized methods of judging the fitness and capability of the employee for his appointment to the higher post. Learned counsel for the petitioners has in this behalf referred to the cases of N. S. Mehra and Asif Ali. In paragraph 228 of the report even the Wage Commission has accepted the above method as it is stated that the employees serving in lower grade who possess the requisite qualification shall be -eligible to compete when direct recruitment is made in the higher grade. The employee already serving in lower grade can obviously compete with those who are candidates for direct recruitment if some written test and interview is held at the time of recruitment. It is, therefore, not possible to accept the contention that the banks have been precluded from holding test and interview of their employees for considering them for promotion simply because no specific reference to the above method of judging the fitness and capability y of the employees for promotion had been made in paragraph 237.
24. Reference to questions Nos. 11 and 12 of the questionnaire issued by the Pay Commission for interpreting paragraph 237 of the Report of the Wage Commission is quite inapt because it is nowhere stated by the Wage Commission in its Report that the Commission had adopted the aforementioned questionnaire and had considered the replies received to the said questionnaire by the Pay Commission for which the last date had been fixed as 15th September, 1974 by the said Commission. It may be pertinent to note that the Wage Commission was constituted on 7th November, 1974 when the replies to the questionnaire had already been received by the Pay Commission. While formulating its recommendations regarding recruitment, promotion and training, in Chapter XIV of its report the Wage Commission has made no reference either to questions Nos. 11 and 12 or to the replies received thereto by the Pay Commission. It is, therefore, not possible to accept the argument that the Wage Commission had considered whether the promotion be based on seniority-cum-fitness or on qualifying examination and performance as indicated in question No. 12 and that the Commission had adopted the first criterion and had rejected the latter. The recommendation made in paragraph 237 does not support the above contention because the Commission has neither accepted the criterion of seniority-cum-fitness nor that of qualifying examination and performance. As a matter of fact the Commission has only stated broad principles which are to be kept in view by the Banks, while considering the cases of promotions. These principles are that promotion be made by keeping in view experience, length of service and overall performance of an employee. As to how experience and overall performance of an employee is to be judged it has been left to the employer. As noticed earlier holding of test and interview by the employer for judging the experience and overall performance of an employee is not pro habited by Para. 237.
25. It may also be noticed that the impugned circular was issued in 1978 to comply with a policy decision which was based on the recommendation of the Pay Commission. The same members who constituted the Wage Commission had made the recommendation which led the Government to ask the Pakistan Banking Council to issue directive to the Presidents of Nationalized Banks to prescribe written test for selection for promotion to the lowest rung of officers. The Pay Commission must have seen the report of the Wage Commission before making the above recommendation. It was evident from the Report that the Wage Commission had not recommended any particular procedure to be followed by banks for the promotion of their employees and at any rate had not prohibited them from holding test and interview for judging the fitness and suitability of the employees for promotion, because if the Wage Commission had any such intention while formulating the recommendations contained in paragraph 237 of its Report, the Pay Commission would not have made any such proposal in its report on the basis of which Government had asked the Pakistan Banking Council to introduce the system of written test for the selection of clerical staff for promotion to the cadre of officers. It may not be out of place to mention here that the selection for promotion to higher posts on the basis of test and interview was not sought to be introduced for the first time through the impugned circular because as admitted by respondent No. 3 in Court written test and interview for promotion used to be held even before the issuance of the impugned circular. The fact that respondent No. 3 bad not raised any objection to the holding of test and interview, by petitioner No. 2 after the Wage Coma mission had submitted its report to the Government, lends support to the view that while laying down criteria for promotion in paragraph 237, the Commission had no intention to prohibit the employer from holding test and interview of the employees for promotions.
26. Another argument which has been advanced in support of the contention that the Wage Commission had not favoured the holding of test and interview by the employer for promotion and had intentionally omitted to mention it in paragraph 237 is that the Commission was conscious of the fact that by following the above procedure the employer could always show favour or disfavour to a particular individual. This argument has been accepted by respondent No. 1 as is evident from para. 11 of its judgment. It appears that respondent No. I have not considered that the chances of showing favour or disfavour to an employee in the absence of test and interview, when promotion is made by selection are greater than in the case of promotion made on the basis of the result of test and interview. It is always easy to select a person for promotion to a higher post on the basis of his performance in the written test than on the basis of service record which sometime does not help in making proper assessment of the performance of the employee concerned. As already noticed above, the Wage Commission had no intention to place any restriction on the employer as regards the method to be adopted for judging the fitness and suitability of an employee for promotion. It is, therefore, not proper to question the bona fides of the employer, if he has decided to adopt the method of holding of test and interview for judging the fitness and suitability of an employee for promotion.
27. As noticed earlier, paragraph 237 of the Report of the Wage Commission has stated broad principles which are to be kept in view by the employer while considering the case of promotion of its workers. It does not confer any right on the workers for the enforcement of which they can approach the Labour Court or the National Industrial Relations Commission under the provisions of the Ordinance. The Wage Commission also knew that prospect of promotion of a worker even if provided in the terms and conditions of service cannot be enforced through legal action either in ordinary civil Court or in special Tribunal such as Labour Court or the National Industrial Relations Commission because no employer could be forced to promote an employee whom he did not consider fit and suitable for promotion. It was for that reason that no definite and specific recommendation with regard to promotion of workers was made by the Wage Commission. Para. 237 of the Report of the Wage Commission, therefore, does not confer any right on the workers of the Banks, which can be enforced by the Labour Court or the] National Industrial Relations Commission under the Ordinance.
28. The questions of jurisdiction of respondent No. 2 to entertain application under section 34 of the Ordinance filed respondent No. 3 and the competence of respondent No. 3 to make such application on behalf of the workers also require careful consideration. In the first instance, it may be noticed that the Report of the Wage Commission which is deemed to be an award of the Full Bench of the National Industrial Relations Commission under section 38-D of the Ordinance, is not covered by definition of the term 'award' as given in section 2(ii) o the Ordinance. Now it has to be seen whether the expression 'an award' used in section 25-A and section 34 of the Ordinance also includes the award of the National Industrial Relations Commission. There I no doubt that the word 'any' has wide connotation and would include even awards which are not covered by the definition of 'award' as given in section 2(11) of the Ordinance but the jurisdiction of Labour Court to enforce the terms of an award of the National Industrial Relations Commission will have to be considered in the light of other provisions of the Ordinance which deals with the functions of the National Industrial Relations Commission does not contain any provision that the Commission shall also have the power to enforce the terms of its award but if a reference is made to section 22-B of the Ordinance, which deals with the Benches of the Commission etc., it will be seen that clause (a), of subsection (3) does indicate that the National Industrial Relations' Commission has the power to enforce an award. Relevant portion of subsection (3) of section 22-B of the Ordinance is reproduced below "(3) The Benches shall:-- (a) in relation to cases based on allegations of unfair labour practices brought before the Commission for (trial) of offences, or enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law or any award or settlement, perform such functions and exercise such powers as are performed and exercised by a Labour Court ; and
(b) in relation to industry-wise Unions, federations of such Trade Unions, federations at the national level and cases referred to the Commission, perform such functions and exercise such powers as are performed and exercised by a Registrar, a Labour Court or a Tribunal in relation to Trade Unions and federations of trade unions within a Province."
It is evident from clause (a) of subsection (1) that the Benches of the Commission can perform such functions and exercise such power as are exercised by a Labour Court in the matter of enforcement of, or for redress of individual grievances in respect of any right guaranteed or secured to any employer or worker by or under any law, or any award or settlement. In the present case, certain workers of petitioner No. 1 had claimed promotion on the basis of paragraph 237 of the report on the Wage Commission and the refusal of petitioner No. 2 under whom they were working to accede to their request had given rise to a cause of action. The workers could seek their redress from the National Industrial Relations Commission under clause (a) of subsection (3) o section 22-B referred to above as it was a case of individual grievances. Respondent No. 2 had no jurisdiction to enforce any right allegedly guaranteed to the workers under paragraph 237 of the report of the Wage Commission because under section 38-D of the Ordinance, the Report of the Wage Commission was an award of the National Industrial Relations Commission, which alone was competent to enforce it in view of the provisions of subsection (11) of section 22-A.
29. Section 34 of the Ordinance under which respondent No. 3 had filed application before respondent No. 2 is reproduced below : "34. Application to Labour Court.-Any collective bargaining agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
It may be noticed that right to move the Labour Court has been conferred on the Collective Bargaining Agent as well as the employer but it is evident from the language used in the section that Collective Bargaining Agent Can move the Labour Court only for the enforcement of any right guaranteed or secured to it by or under any law, or any award or settlement. Obviously, a Collective Bargaining Agent canna apply to the Labour Court for the enforcement of a right guaranteed or secured to the workers by or under any law or any award or settlement. In such a case it is only the individual worker who can seek redress from the Labour Court as provided in section 25-A of the Ordinance. A Collective Bargaining Agent can also move the Labour Court on behalf of a worker under subsection (4) of section 25-A of the Ordinance if the worker has brought his grievance to the notice of his employer through the Collective Bargaining Agent under subsection (3) of section 25-A of the Ordinance and the employer has failed to communicate his decision in writing to the Collective Bargaining Agent within 7 days of the grievance being brought to his notice. In para. 4 of the application submitted by respondent No. 3 to respondent No. 2 copy where of has been filed along with the writ petition as Annexure 'C', it is stated that respondent No. 3 bad asked petitioner No. 2 through registered letters dated 5th April, 1979 and 8th April, 1979 to promote certain workers, whose list was attached with the letters, without requiring them to take part in the test and appear in interview but petitioner No. 2 had taken no notice of these letters. If respondent No. 3 had approached petitioner No. 2 at the instance of the workers, whose names were given in the list attached to the letters, respondent No. 3 could move the Labour Court under subsection (4) of section 25.A of the Ordinance if the report of the Wage Commission was to be considered as an award enforceable by the said Court. Respondent No. 3 was certainly not competent to move respondent No. 2 under section 34 of the Ordinance.
30. The officers of petitioner No. I against whom complaint has been filed by respondent No. 3 under sections 54 and 55 of the Ordinance are liable only if it is found that they have committed breach of any term of any settlement, award or decision which is binding on them. Paragraph 237 of the report of the Wage Commission, as noticed above, does not confer any right on the workers to get promotion and petitioner No. 2 j has not violated the criteria of promotion mentioned by the Wage Commission in paragraph 237 by issuing the impugned circular. The officers of petitioner No. I am, therefore, not liable to be proceeded against under sections 54 and 55 of the Ordinance.
31. As regards the allegation that the Officers of petitioner No. 1 have violated the injunction order issued by respondent No. 2 during the pendency of proceeding before him, it may be noticed that the order passed by respondent No. 2 on 15th April, 1979 on the application filed by respondent No. 3 for the suspension of the operation of the impugned circular is quite clear inasmuch as petitioner No. 2 was prohibited from acting on the impugned circular till the next date of hearing which was fixed as loth April, 1979. The order passed by respondent No. 2 on 26th April, 1979 shows that status quo was ordered to be maintained till 29th May, 1979. As the Presiding Officer was not present on 29th May, 1979, the case was adjourned by the Reader to 25th June, 1979. Subsequently, the case was adjourned sine die by the Reader as even on 25th June, 1979 the Presiding Officer was not present. The officers of petitioner No. 1 against whom complaint has been made had acted on the impugned circular and promoted some workers on the basis of test and interview on 4th July, 1979 but on that date there was nothing to prevent them from acting on the impugned circular because the injunction order issued by respondent No. 2 had not been extended after 29th May, 1979. The facts of the case of Mst. Umda Begum on which reliance has been placed by the learned counsel for respondent No. 3 are distinguishable from the facts of the present case for two reasons. Firstly, in the reported case tenor of the stay order passed by the Appellate Authority itself indicated that its operation was not limited to any specific date. The order passed by the Appellate Authority was to the following effect : "Notice shall issue to the other party. Call for the record for 21st December, 1961. Meanwhile ejectment proceedings are stayed."
' The word 'meanwhile' was not used with reference to the date fixed in the case. It was used for making the order effective even beyond the date fixed in the case and till such time that the order was recalled. Secondly, the order passed by the Appellate Authority had the effect of staying the proceedings in the lower Court till the disposal of the appeal in view of the provisions of Order XLI, rule 1(1), C. P. C. It was held by the learned Judges in the reported case that once a stay order was issued by the Appellate Authority, it would remain operative till the disposal of the appeal. In the instant case the stay order was not operative on the date when it was allegedly violated by the officers of petitioner No.
1. No action, therefore, can be taken by respondent No. 2 against the officers of petitioner No. 1 for promoting workers on the basis of the impugned circular on 4th July, 1979.
32. For the foregoing reasons, the writ petition filed by the petitioners is allowed and it is declared that order dated 6th February, 1980 passed by respondent No. 2 and order dated 11th January, 1981 passed by respondent No. 1 are without lawful authority. It is further ordered that the proceedings initiated against the officers of petitioner No, I under sections 54 and 55 of the Ordinance before respondent No. 2 are without jurisdiction being illegal and are hereby quashed. Respondent No. 2 shall also refrain from taking any action against the officers of petitioner No. 1 for violating the injunction order issued on 15th April, 1979 and for the promotions made by them on 4th July, 1979 on the basis of circular dated 31st March, 1979. Having regard to the peculiar circumstances of the ease, no order is made as to costs.