DECISION This is an appeal. Filed by the appellants against an impugned order, dated 5-6-1984, passed by the Sind Labour Court No.VII, Sukkur who allowed the joint grievance petition of the respondents, filed under section 25-A, I . R.O. 1969.
2. The case of the respondents before the Labour Court was that, the letter, whereunder the appellant No.3, i.e. Abdul Saeed Khan son of Abdul Waheed Khan, was declared senior to the respondent and was promoted, be withdrawn and that the post of AKLC be filed in by making selection, as it being a selection post, after giving opportunity to all the persons of the same grade and the seniority assigned, vide confirmation letter of 1975, be restored. Further, the case of the respondent was that they were initially appointed Wireman with effect from 23-6-1963 after passing the required Trade test. That, in the year 1972, they were selected for the post of Mistry Wireman on their qualifying the Trade test and so they were promoted on regular basis with effect from 5-7-1972 and they were also declared confirmed in the year 1975 from the date they were actually officiating in the grade of Wireman Mistries. Further, the case of the respondents is that appellant No. 3, namely, Abdul Saeed Khan son of Abdul Waheed Khan was appointed as Wireman on 1-1-1967 and was posted at Loco Shed Rohri and then, in the year 1972, was called upon to attend selection for the post of Mistry Wireman alongwith the respondent, but, he could not succeed in the said selections test and so he was declared unfit. However, on 21-3-1978, the appellant No.3 was promoted as Wireman Mistry and was also confirmed as such with effect from 7-12-1978, therefore, the appointment of appellant No.3 or his promotion was without any Trade test or selection unlike the promotions of the respondents. Further, that, some time in 1982, the appellant No.3 had applied for change in the seniority list and the respondents vide Notice, dated 24-3-1982 were called upon to file objections, if any and subsequently objections were filed. The case of the respondents, further, was that they were neither informed about the result of the representation of appellant No.3 nor the result on the objections, filed by them. However, after about one year, the respondents were made to know that the appellant No.3 was promoted as AKLC, vide letter, dated 24-3-1984. And that this promotion of appellant No.3 was illegal and in violation of seniority list and so the secured and guaranteed rights of the respondents were infringed. The respondents further claimed that the appellant No.3 was much junior to them and so his promotion from the year 1977 and his confirmation as such, was in derogation of the verdict given by the Supreme Court which was circulated by the Chief Personnel Officer of Pakistan Railway Lahore. Further, _ the grievance of the respondents was that they were still drawing Rs.532 per month they were appointed in the year 1972 as Mistry Wireman, but the appellant No.3 had been fixed at Rs.634 per month in N.P.S.-11 with other higher benefits and privileges.
3. The Railway administration resisted the grievance petition of the respondents before the learned Labour Court. While admitting that the respondents were appointed as Wireman on the specified dates and were also subsequently promoted as Wireman Mistries, it had submitted that appellant No.3 was initially appointed as Trainee Apprentice on 1-1-1963 and that it was incorrect that the appellant No.3 was required to appear in any test and that he had failed in that test. It was further admitted by the Railway Administration that the appellant No.3 was promoted as Assistant Chargeman and was given retrospective effect seniority and also the promotion over the respondents because he was a direct recruit as Wireman prior to the appointment of the respondents and so he had a preferential right over the respondents. The Railway Administration also pleaded that the application of the respondents was not maintainable because no right guaranteed or secured was infringed and that the seniority does not fall within the terms and conditions of service and further that the application of the respondents was barred by limitation because the promotion of the appellant No.3 as Wireman, was made on 21-3-1978 and it was not questioned. Lastly, as the appellant No.3 was a direct recruit and had his separate quota for seniority and promotion, therefore, he was rightly granted seniority over the respondents and that, in any case, it was the absolute unfettered discretion of the Railway administration to promote anyone.
4. I have heard Mr. Shabbir Ahmad Awan, the learned Advocate for the Railway Administration and Mr. Manzar Alam, `the' learned counsel for the respondents and have perused the record.
Mr.Shabbir Ahmad Awan, the learned Advocate has contended that the seniority does not come within the terms and conditions of service and so, it cannot be claimed by making an application to the Labour Court. It is pleaded that in fact the appellant No.3 was a Diploma Holder and was appointed in skilled grade on 1-1-1963 as Trade Apprentice and after completing the training of 4 years, he was regularised with effect from 1-1-1967 and that the appellant No.3 was senior in all respect to the respondents and since he was working on Rail-car side, thus, his name could not be included in the Seniority List of 1975 which was subsequently amended in 1983. It was argued by the appellant Railways that there was no infringement on any secured and guaranteed rights of the respondents, therefore, the provisions of section 25-A, I.R.O. 1969, were not attracted, hence such petition was not maintainable. Reliance is placed on a decision of this Tribunal reported on 1985 PLC 872, wherein it is held that "Grievance petition under section 25-A, I.R.O. 1969, for seniority and promotion not maintainable. In this regard, I am further referred to an Authority, reported in 1981 SCMR 554, wherein our Supreme Court has held Seniority not included within meaning of expression "terms and conditions of service" -- Appeal arising out of an order relating to seniority in consequence incompetent." On the other hand, Mr. Manzar Alam, the learned counsel for the respondents has mainly relied upon an Authority in Khushi Muhammad's case, reported in PLD 1970 SC 203. In my humble opinion, the facts of Khushi Muhammad's case are different, than, what had been submitted in the present case, therefore, this Authority is distinguishable and not applicable to the present respondents. I, therefore, hold that the grievance petition of the respondents, under section 25-A, I.R.O. 1969, claiming therein their seniority and promotion over the seniority and B promotion of appellant No.3 and for directions as such, to the Railways Administration, was not maintainable and is liable to be dismissed.
5.For the reasons, stated by me above, I allow this appeal and set aside the impugned order.