DECISION uthority Service Regulations, 1973- ----Reglns.10 & 29---Karachi Development Authority Order (P.O. 5 of 1957), Art.13---Promotion--- Appellant worker's name was ignored for promotion as Foreman when his junior was appointed as Foreman-Services of appellant were governed under Statutory Rules/Regulations and rights guaranteed were enforceable through Labour Court-Appellant was to be promoted on seniority- cum-fitness basis and his case was to be processed through Selection Committee and in case competent Authority did not agree to the report of Selection Committee it was to record reasons in writing---Appellant was recommended for appointment as Foreman but evidence on record did not show whether any reason was recorded for not accepting recommendation of Selection Committee---Held, right of appellant was guaranteed under the aforesaid Rules to be considered by the Selection Committee for promotion and neither the Tribunal nor Labour Court had power to order promotion of appellant---Right of appellant in accordance with said Rules could be protected and enforced by Appellate Tribunal---Authorities were directed to consider case of appellant for promotion and decide against the available vacancy in accordance with Rules. [pp. 1255, 12561 A, B, C & D
(b) Industrial Relations Ordinance (XXIII of 1969)- ----S.25-A---Promotion---Held, was a prerogative of employer to decide question of promotion but he had to exercise such prerogative judiciously. [p. 1256] C Mirza Muhammad Kazim for Appellant. Nemo for Respondents.
Date of hearing: 27th September, 1990.
DEGISION ' This is an appeal against the order of the learned Presiding Officer, First Sindh Labour Court at Karachi, dated 27-5-1990, whereby the grievance petition of the appellant was dismissed.
2. I have heard Mr. Mirza Muhammad Kazim, learned Advocate for the appellant. None present for the respondents. I have also gone through the record and proceedings of the case.
3. The grievance of the appellant is that though he is senior but he has been ignored for promotion as Foreman from time to time and persons junior to him were promoted. The last time he was ignored when one Mr. Aslam, junior to the appellant, was appointed as Foreman vide order dated 31-4-1987. However, another post of Foreman fell vacant on retirement of Nawab Jan on 14-9-1987.
The appellant moved an application/representation for being considered for the post but instead he was transferred from Pre-Stressed Pipe Factory, KDA in order to avoid his promotion. He therefore, served a grievance notice upon the respondents and filed grievance petition before the learned Labour Court.
4. The learned Labour Court dismissed the petition relying upon the decision of this Tribunal in the case of Muhammad Ayub Chandio v. Secretary to Government of Sindh, Communication & Works Department and 3 others, reported in 1985 PLC 872. Therein it was held by this Tribunal, that seniority was not guaranteed or secured right. In the instant case the appellant did not claim any seniority, but he claimed his promotion. The question whether the promotion is guaranteed right was considered in the case of District Manager, Karachi Transport Corporation Vs. Rajuddin, repoted in 1990 PLC 669. This Tribunal has held "that concensus of the judicial pronouncements appears to be that it is the prerogative of employer to decide the question of promotion on the basis of seniority-cum-fitness. But this discretion is also to be exercised judiciously and not indiscreetly."
5. The services of the appellant are governed by the Karachi Development Authority Employees Service Regulations, 1973 which were issued by the Government in exercise of the powers vested under clause (1) read with sub-clause (d) of clause (2) Article 15 of the Karachi Development Authority Order, 1957 (President's Order No, 5 of 1957). These are thus statutory rules and right guaranteed under these rules could be enforced through the Labour Court. Rule 29 deals with promotion. Clause (a) reads as under:- "29. Promotion.--
(a) Except in the case of selection post, promotion from one post to the next higher post will be made on the basis of seniority-cum-fitness, that is, the senior most employee in the cadre/grade will be promoted subject to his being fit;"
' Rules 10 of these rules provides as under:- 10.-- (1) "There shall be Selection Committees as per Appendix 'A' appointed by the Governing Body for selection of suitable candidates for initial recruitment or for promotion to different posts or classes of posts: ' Provided that the Governing Body or other competent authority shall not be bound to accept the recommendations of the concerned Selection Committee in any, case, but the reasons in all such cases for non-acceptance of the advice of the Selection Committee shall be recorded; ' provided further that--
(a) If the competent authority other than the Governing Body does not agree with the recommendations of the Selection Committee, it may report the case to the Governing Body whose orders shall be final; and
(b) The Governing Body shall not pass any order unless the Selection Committee has been given an opportunity to justify its recommendations."
6. These two rules read together show, that the right is guaranteed to the appellant, that he would be promoted on the seniority-cum-fitness basis and the selection for promotion would be by the Selection Committee and in case the competent authority did not agree with the report of the Selection Committee it shall record reasons in writing.
7. The appellant's seniority does not appear to be disputed. Mr. Muhammad Yamin, Manager of the factory was examined by the respondents, who has produced the report of the Selection Committee in the meeting on 19th and 20th November, 1978. It shows, that the appellant was recommended for appointment as Foreman even in 1978. However, the evidence on record does not show whether any reason was recorded for not accepting the recommendation of the Selection Committee and whether the appellant was considered for promotion in subsequent vacancies and in the vacancy caused by Nawab Jan's retirement in 1987.
8. Admittedly the appellant has now been promoted in 1988 as Foreman on ad hoc basis, but it is not clear as to in which vacancy the appellant was appointed as Foreman and whether the vacancy was of permanent nature or not.
9. No doubt as held by this Tribunal in the aforementioned case of District Manager, K.T.C. v.
Rajuddin, it is a prerogative of the employer to decide the question of promotion, but he has to exercise such prerogative judiciously. The right of the appellant is guaranteed under Rule 29 read with C Rule 10 to he considered by the Selection Committee for promotion. Neither this Tribunal nor the learned Labour Court has power to order the promotion of the appellant. However his right in accordance with the aforesaid rules can be protected and enforced by this Tribunal.
10. In view of the above discussions, the appeal is allowed to the extent, that the case of the appellant for promotion be considered and decided by the respondents within three months in the vacancy caused by the retirement of Nawab Jan in accordance with the procedure laid down under Rule 29 read with Rule 10. Appeal is disposed of accordingly.