' This appeal arises from the decision, dated 17th March, 1979 passed by the learned Presiding Officer, Punjab Labour Court No, I, Lahore, whereby the grievance petition of the respondent was accepted and the appellant was directed to treat the respondent as Junior Clerk, with effect from 5th December, 1972 and to pay him all back benefits.
2. The case of the respondent was that although he was a helper, yet right from 1972 he was made to discharge the duties of Junior Clerk in the office of the workshop but he was being given the pay of his substantive post i. e. Helper. He claims that he be given pay in Scale No, 5, which is of the Junior Clerks. He based his claim on an award given by the Labour Court. The petition was opposed but this, however, was admitted that the respondent was being made to work as Junior Clerk although he was a helper.
3. The award relied upon by the learned trial Judge is not helpful to the respondent. Demand No, 4 is relevant in this respect but the direction given in the award given on demand No, 4 is that the management should examine such cases and if any hammerman or cooly is found to be doing the work of a higher grade, he should be paid the wages of the grade in which he worked. This is clear that there was no direction that in every case where an employee was being made to work in the higher grade and was being given the pay of his substantive post, he be paid the wages of the grade in which he was working. The award, therefore, did not guarantee any right to the respondent for the enforcement of which be could come to the Labour Court under section 25-A.
Learned counsel for the respondent has not been able to cite any rule under which the respondent may be entitled to get pay in Scale No, 5 on the simple ground that although his substantive post is of helper he is working as Junior Clerk. The direction to allow pay in the higher scale amounts to a direction to promote the respondent but the Courts have no jurisdiction to give such a direction. It is the function of the employer to consider the case of promotion of an employee. The principle of promotion is seniority- A cum-fitness. If there is any dispute about the seniority, the Courts can resolve it but to find out whether an employee is fit for promotion is the function of the employer. If there had been any rule or if the award referred to above had been covering the case of the respondent, there could be justification tb order that the pay of the respondent be fixed in Scale No,
5. There is no evidence that there is any vacancy of Junior Clerk. Unless there is any post and unless it is decided that the respondent is senior most and that his work is satisfactory, he cannot be promoted to the post of Junior Clerk. This is also not known whether next promotion from the post of helper is Junior Clerk or the line of promotion of a helper is different. From the designation it appears that the helper is a skilled post, whereas the post of Junior Clerk is a post of clerical nature.
In the absence of any evidence that a helper can be promoted to the post of Junior Clerk, no order of promotion can be passed. The respondent is admittedly working as Junior Clerk, but it is not sufficient to say that there is a vacancy of Junior Clerk. Due to rush of work the duty of Junior Clerk may have been taken from the helpers but unless there is a vacancy, there cannot be justification either to other promotion or to direct that the pay of Junior Clerk be given. Learned counsel for the respondent has cited 1979 PLC 307 and 1976 PLC 461, but they are not relevant to the present case, because the point involved in the present case cannot be found in the said authorities. The first mentioned authority deals with the entitlement to the benefit of merger of ad hoc relief and special allowance. In the second mentioned authority also it has not been observed that if an employee has been made to work on a higher grade post, he becomes entitled to the pay of that post automatically.
4. At the same time it is expected that the concerned authorities would look into the matter and either to create post of Junior Clerk if there is need of it and to accommodate the employees who are already working on the said post or they would refrain from getting work from the employees on the higher post without giving them the pay of that post.
5. As a result of the observations made above, I accept the appeal and setting aside the impunged decision of the learned lower Court, dismiss the grievance petition of the respondent.