' The respondent Khalid Shabbir filed grievance petition u/S. 33 of Punjab Industrial Relations Act, 2010 mentioning the facts that he initially was appointed as Mechanic on 16.08.1984 in BPS-07 against a regular and permanent vacancy and he had been performing duties since then in honest and diligent manner; that Riaz Ahmed Foreman retired on 16.08.2007 and the respondent/grievance petitioner Khalid Shabbir had the right to be promoted in his place; that the learned trial Court allowed the grievance petition of one Muhammad Samar S/o Aleem-ud-Din on 12.08.2013 with the direction to be promoted as Test Bench Fitter, hence according to the 1993 Rules as 50% quota was reserved for Mechanic/ Fitter to be promoted on seniority-cum-fitness basis, therefore accordingly the respondent was entitled for said promotion; that he issued grievance notice on 24.08.2013 which was replied by the appellants on 28.08.2013 refusing to accept his demand, hence prayed that direction be issued for his promotion as prayed for.
2. This grievance petition was replied by the appellants raising four preliminary objections about its maintainability, firstly about the maintainability of the petition having been filed without jurisdiction to the trial Court and secondly that according to the 1993 Rules amended on 26.11.2011 a Matriculate only can be promoted from Technical staff of BPS-07 as Foreman in BPS-11 and as the respondent did not possess such qualification, hence was not entitled for promotion. Prayed that the grievance petition be dismissed.
3. The learned trial Court recorded the statement of the respondent Khalid Shabbir as PW-1 wherein he reiterated his stand mentioned in the grievance petition while getting exhibited grievance notice Ex.P.1, postal receipt Ex.P.2, written reply of the grievance notice Ex.P.3 and other documents Ex.P.5 to Ex.P. 10 and his learned counsel closed the evidence.
' On the other hand, Altaf Hussain Admin. Officer appeared as RW-1 and reiterated the stand given in the written reply while getting exhibited documents Ex.R.1 to Ex.R.5. Learned counsel for the appellant-department closed the evidence vide statement dated 08.04.2014.
4. The learned trial Court after hearing the parties vide, impugned judgment dated 10.12.2015 allowed the grievance petition. Feeling aggrieved the appellant-department has preferred this appeal.
5. Learned counsel for the appellant contends that the learned trial Court wrongly applied the old rules whereas the relevant rules dated 26.11.2011 were applicable whereby the post of Foreman required at least matriculation qualification which fact has been ignored by the learned trial Court, hence prayed that the impugned judgment passed by the learned trial Court be set-aside. Prayed that this appeal be allowed.
6. Conversely, learned counsel for the respondent contends that in earlier litigation one Muhammad Sarwar a Bench Fitter sought his promotion as Foreman. The respondent Khalid Shabbir was also arrayed as respondent in the said grievance petition which was initially allowed by the learned trial Court and upheld by this Tribunal and now matter is subjudice before the honourable High Court; that as in earlier litigation filed by Muhammad Sarwar the post of Foreman was declared vacant hence the respondent issued grievance notice in the year 2013 and filed the instant grievance petition and the learned trial Court rightly applied the old rules as the respondent was entitled for his promotion since 2007. Prayed that this appeal be dismissed.
7. I have heard learned counsel for the parties and perused the records of the trial Court minutely.
8. There is no denial to the fact that in an earlier litigation when grievance petition was instituted on 12.03.2010 and decided on 12.08.2013 by the learned trial Court and further affirmed by this Tribunal vide judgment dated 09.09.2015. The petitioner of the said grievance petition was directed to be considered for promotion on the basis of 1993 Rules amended rules as it had no retrospective effect. It is noteworthy that the respondent Khalid Shabbir/the grievance petitioner was a party to the said earlier litigation and now after decision of the Appeal. No, MN-1011 of 2013 a writ petition is pending before honourable Lahore High Court, Multan Bench, Multan.
9. The learned trial Court while deciding this grievance petition did not take into consideration the technical aspects that earlier grievance petition by Muhammad Sarwar S/o Aleem-ud-Din was filed on 12.03.2010 prior to repealing of 1993 Rules on 20.11.2011. The respondent according to the records issued grievance notice Ex.P.1 on 24.08.2013 through postal receipt Ex.P.2 which was replied by the appellants vide Ex.P, 3 dated 28.08.2013 and subsequent to all this process the grievance petition was filed by the respondent on 24.08.2013. According to the Notification dated 03.11.2011 vide No, SOR-III(S & GAD) 1-16/2004, the Punjab Agriculture Department (Field Wing) Service Rules. 2011 ,were enacted while repealing the Punjab Agriculture Department (Field Wing) Service Rules, 1993.
Admittedly, according to the new rules Foreman and Charge-man (BS-11) required a qualification of Matric (second division) from a recognized Board with three years diploma in Mechanical Technology from a recognized Poly Technical Institute or College of Technology; or Auto & Diesel Technology from a recognized Poly Technical Institute or College of Technology; and Auto & Farm Technology/ Machinery from a recognized Poly Technical Institute or College of Technology vide Ex.R.4.
10. As already mentioned that the respondent issued grievance notice and grievance petition subsequent to the enactment of 2011 rules, hence the earlier judgment whereby the case of Muhammad Sarwar was decided in his favour declaring 2011 rules, not having its retrospective effect is not applicable on the facts and circumstances of the present case. The respondent claimed the alleged right subsequent to the enactment of 2011 rules, hence his case was on different footing than that of Muhammad Sarwar's case. Keeping in view of these circumstances, the impugned judgment dated 10.12.2015 passed by the learned trial Court is a result of misapplication of law and facts, thus is not sustainable in the eyes of law, hence while allowing this appeal, it is hereby set-aside. Resultantly, the grievance petition filed by the respondent Khalid Shabbir is hereby dismissed.
' File be consigned to the records room after due completion. The trial Court records be sent back immediately.