The respondent, who was originally employed in the Gudu Barrage as Baildar m about the year 1960, was promoted first as Muqaddam and later as Sub-Darogha. He was ultimately appointed as Darogha by the Executive Engineer, Ghotki Division vide his order dated 19th February, 1979. It appears that the respondent worked as Darogha for short periods as stop-gap arrangement.
However, by order, dated 16th June, 1980, he was appointed as Darogha in the place of Abdul Haq Darogha, who had retired. The respondent claims that he continuously worked as Darogha in a clear vacancy from 16th June, 1980 up to 31st July, 1981, though the order by which his services were terminated was passed on 25th April, 1981. The respondent preferred a departmental appeal to the Chief Engineer, but the same was rejected by letter, dated 231 d November, 1981. The respon--dent thereafter preferred a grievance petition before the learned Labour Court , after serving the required grievance notice on the appellant.
2. The grievance petition of the respondent was resisted on behalf of the Irrigation Department by its officials on a number of grounds, includi--ding the grounds that the grievance notice was belated and hence the grievance petition was not maintainable, that the grievance petition was further not maintainable as the respondent was a temporary employee and finally that the Labour Courts had no jurisdiction in the matter as the respondent was a Civil Servant and was governed by the rules applicable to the Civil Servants:
3. The learned Labour Court repelled the first contention of the appellant on the ground that there was no evidence to indicate that the order termina--ting the services of the respondent had been served upon him. The second contention of the appellants was rejected by the learned Labour Court on the ground that as the respondent had continuously worked as Darogha from 21st June, 1980 till 31st July, 1981, he is to be deemed to be a perma--nent workman. Surprisingly, the learned Labour Court ignored the third contention of the appellants and has not even referred to it in its judgment.
4. I have heard Mr. Manzar Alam, the learned counsel for the appellant and Mr. Shabbir Ahmed Awan, Advocate, who appeared for the respondent employee. Mr. Manzar Alam agitated the contentions which had been made before the learned Labour Court . His first contention was that the grievance petition of the respondent is belated as his services were terminated by order, dated 2nd May, .1981 but the grievance notice was served by him on 27th November, 1981. 1 find no force in this contention. It is not disputed that the respondent had preferred a departmental appeal against the termination of his services to the Chief Engineer, Guddu Barrage. The said appeal was forwarded by the Executive Engineer, Ghotki Division, to the Chief Engineer, Irrigation, Gudu Barrage under his letter, dated 10th August, 1981. This appeal, however, was rejected by the Chief Engineer by his order, dated 23rd September, 1981, on the ground that the respondent did not possess the required qualification. A photostat copy of the original application preferred by the respondent to the Chief Engineer, has been produced before me by Mr. Shabbir Ahmed Awan. It appears that it was made on 12th June, 1981. In view of these circumstances, it is immaterial whether the services of the respondent were terminated by the letter, dated 25th April, 1981, as claimed by him or by the letter, dated 2nd May, 1981, as asserted by the appellant. It is also immaterial whether the respondent actually was in the employment of the appellants and drew salaries upto the end of July, 1981, as claimed by him. Since the respondent was admittedly a Government servant and was entitled to prefer an appeal to his departmental superiors, the grievance of the respondent against the termination of his services was confirmed by the rejection of his appeal. The respondent, therefore, was entitled to serve grievance notice upon his employer within 3 months of the rejection of hi '1 departmental appeal, which had been preferred in accordance with the rules.
5. It was next contended by Mr. Manzar Alam that the respondent was temporarily employed and his services were rightly terminated by the order, dated 2nd May, 1981. It, however, is an admitted position that not only was the respondent appointed as a Darogha in the post which had fallen vacant on account of the retirement of Allah Dino, Darogha, but had further served as Darogha continuously from 16th June, 1980, until his services were terminated by the order, dated 2nd May, 1981, i. e. For a period of about 11 months. If, therefore, the respondent is a workman for the purposes of the Standing Orders, he is deemed to be a permanent workman.
6. The important issue which falls to be considered in this case and which as pointed out earlier was ignored by the learned Labour Court is whether the respondent is a workman for the purposes of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, or a civil servant as defined in the Sind Civil Services Act, 1973. It ma be pointed out that the provisions of the aforesaid Ordinance are in--applicable to an establishment which is carried on by or under the authority of the Government and where Stautory Rules of Service, Conduct or Dis--cipline are applicable to the workmen employed therein. It was frankly conceded by Mr. Shabbir Ahmed Awan, the learned counsel for the respon--dent that the Irrigation Department, where the respondent was employee is being carried on by the Government and that Statutory Rules of Service are applicable to the employees of the Irrigation Department including Daroghas who are borne on the permanent establishment. It is common ground that the respondent, in the post of Darogha, was borne on the permanent establishment and not on the work-charged establishment. The Executive Engineer, Ghotki Division, while recommending the respondent as Darogha, vide his letter, dated 24th April, 1980, has stated that the respondent was borne on the regular establishment since 1st January, 1974. The respondent himself, in paragraph 2 of his grievance petition has asserted that he has been brought on the regular cadre though originally he was employed on work-charged establishment. The respondent who was employed as Darogha in the Irrigation Division at Ghotki and not at a Dam or Barrage appeals clearly to. Fall within the definition of civil servant as given in the Sind Civil Services Act, 1973. The provisions of the said Act and the Rules framed or deemed to have been framed under section 26 of the said Act, would therefore, apply to him. Since the respondent is not a workman for the purposes of the West Pakistan 'Industrial & Commercial Employment (Standing Orders) Ordinance. 1968, he is not entitled to file a grievance petition against the termination of his services under clause (3) of Standing Order 12 read with section 25- A, I. R. O.
7. It may also be pointed out that the post of Darogha is to be filled on the recommendation of the Selection Committee, as this post is a selection post. Admittedly the respondent was not selected by the Promotion Committee, on the ground that he did not possess the requisite qualifica--tions.
The respondent thus does not appear to have a vested right for promotion and appointment as Darogha, as was held by this Tribunal in the case of Chief Engineer (Irrigation) and l others v. Ali Muhammad, decided on 26th May, 1982. If the respondent has since acquired the necessary qualifications as claimed by Mr. Shabbir Ahmed -Awan,. He could have perhaps made a fresh representation in this behalf to the authorities.
8. For the reasons discussed by me above, I would-allow the appeal and set aside the decision of the learned Labour Court directing the reinstate--ment in service of the respondent and allowing his grievance petition.