DECISION ' This appeal calls in question the order of the Labour Court No, V, Karachi whereby the petition filed under section 25-A, I.R.O. Was allowed and the respondents were directed to promote the petitioner as "Application Operation Officer in Grade-II with retrospective effect from March, 1993".
The circumstances forming the background of this case succinctly stated are as follows:- ' The petitioner was appointed as a Programmer in the Computer Division, on 18th of August, 1987. It appears that a vacancy occurred in the post of the Application Operation Officer, EDP Department, Finance Division and one Irfan Ahmed who was junior to him was promoted on 15-3-1993. The petitioner had made representations and as the same remained unheeded, after the service of grievance notice, he had filed the petition before the Labour Court.
2. The petition came to be resisted on the ground that the petitioner was not a workman, and looking to the Statutory Rules framed under the House Building Finance Corporation Act, 1952 the doors of the Labour Court were not open to the petitioner. Otherwise too, the promotion of Irfan Ahmed Khan was in accordance with the Promotion Policy laid down in Regulation 16 of the Regulations. It was further contended that the question of promotion did not create any vested right. The other contention also came to be denied.
3. The petitioner was his own witness while Zafarullah Khan, Superintendent (Law) appeared on behalf of the respondent.
4. The Labour Court found that the petitioner was a workman and as he had received Certificates of Appreciation from superior officers including the Managing Director, there was no justification for his being superseded by his junior. As a result the petition was allowed culminating in this appeal.
5. It is an admitted position that one Shahzad Sultan was the senior-most Programmer. The respondent was at No, 2 in the seniority list. Irfan Ahmed Khan was at No, 3 and M. Raziuddin Khan was the junior most being at No, 4.
6. It is also an admitted position that the respondent had held an examination in connection with the vacancy which had been conducted by M/s. Sidat Haider Aslam & Company, Chartered Accountants, and all the four Programmers had appeared therein. It has been stated by the respondent that Shahzad Sultan who was senior to him was not interested in the job is a blatant lie as in his cross-examination he admits that all the four Programmers including Shahzad Sultan had appeared in the said test held by M/s. Sidat Haider Aslam & Company. According to the results announced and which are on the record the marks obtained by the various candidates were as follows:-- Marks obtained ProgramWrittenTotal Irfan Ahmed Khan 45 32 77 Qamaruddin Siddiqui35 19 54 Raziuddin Khan 12 10 22 Shahzad Sultan 0 12 12 ' This will clearly show that the performance of Irfan Ahmed was far superior to that of the other three candidates.
7. On the receipt of these results from the Chartered Accountants a meeting of the Departmental Promotion Committee for the promotion of officers/staff of the E.D.P. Department of Finance Division consisting of Mrs. Saleem Ahmed, Executive Director (OPS) Abdul Moid Khan, Executive Director, Finance and the Secretary Mrs. Shahnaz S. Hamid, General Manager (PNT) was held on the 31st of January, 1993 and a number of candidates from different sections were recommended for promotion on merit, in accordance with the criteria laid down under General Rules of Promotion read with Regulations 16 of the HBFC Service Regulations. Irfan Ahmed was recommended for promotion to the post of the Application Officer Grade II. As a result of this Irfan Ahmed was promoted as Application Operation Officer, EDP Department per Office Order No, 204, dated 15-1- 1993.
8. Promotion in the Corporation are governed by Regulation 16 which reads as under:- "16. Promotion.-- All promotions to posts up to the rank of Assistants shall be made on the basis of seniority-cum-fitness. Promotions to all other posts shall be made by selection on grounds of merit. No employee shall have a claim to be promoted to any particular post or grade by virtue of seniority alone. Should an employee officiating in a higher post show signs of deterioration while he is so officiating, he shall be liable to immediate and summary reversion to the grade of his previous appointment, not withstanding the provision contained in Regulation 26."
9. There is no dispute that the parties here were holding a post higher to that of the Assistants. The criteria laid down for promotion up to the level of the Assistants is on the basis of seniority-cum- fitness while the promotion to all other posts "shall be by selection on grounds of merit". It is true that the respondent had performed well on his post as a programmer and was also the recipient of Certificates of Appreciation of the work done by him. But as Irfan Ahmed Khan was not a party to the proceedings we do not know what he could prove about his performance and achievement.
Any way there was a test which had been conducted by a firm of Chartered Accountants from Karachi. All the four programmers had participated therein and the results speak for themselves. It was not only the respondent who could have any grievance if at all against the promotion. There was Shahzad Sultan who was above him. Since Shahzad Sultan was not made a party in the proceedings so we know nothing about what was his ACR. According to the Regulation seniority is not the only criteria. It is merit alone and the merit was determined by a reputed firm of Chartered Accountants. There is no challenge to the authenticity of the results and there is nothing in breach of the Statutory Regulations. Under the circumstances the promotion of Irfan Ahmed Khan was beyond any challenge.
' In the result the impugned order is set aside and the appeal is allowed.