' Vide this judgment. I propose to dispose of this appeal No.16 of 1998 and Appeal No.17 of 1998 as both of them have arisen out of the same order of the learned Presiding Officer, Labour Court, Mardan, dated 2-4-1998, whereby grievance petition of Misbahullah respondent No.2, filed under section 25-A of Industrial Relations Ordinance, 1969 was accepted and he was deemed to be regularized/confirmed from the date on which respondent No.2 was regularized/confirmed as General Supervisor.
2. The brief facts as averred in the grievance petition are that the respondent No.1 joined the company as Office Assistant in the year 1967 whereas respondent No.2 joined the company as seasonal office Assistant in the year 1970 and thus respondent No.1 was senior to respondent No.2 but arbitrarily latter was made permanent. Respondent No.1 feeling aggrieved of the order whereby respondent No.2 was made permanent as General Supervisor served a grievance notice on the employer but the same was not responded. He, therefore, approached the Labour Court by filing a grievance petition under section 25-A, of the Industrial Relations Ordinance, 1969 and prayed that the impugned order of the appellant company may be declared to be without lawful authority and he be made permanent as General Supervisor from 30-10-1994. The management of the appellant company contested the grievance petition both on legal and factual premises. The parties led their evidence as they wished to adduce. Learned Labour Court on assessment of the evidence, accepted the grievance petition and held that respondent No.1 be deemed to be regularised/confirmed from the date respondent No.2 was regularized/confirmed as General Supervisor. However, he was not granted back benefits.
3. Being aggrieved of the aforesaid decision of the learned Trial Court, both the parties have preferred separate appeals in this Tribunal. The Management has prayed for setting aside the impugned order of the learned trial Court while Misbahullah has solicited for the grant of back wages and benefits.
4. Both the learned counsel for the parties were heard in support of their appeals and record was perused with their assistance.
5: It was argued by the learned counsel for the appellant company that respondent No.1 has not served the grievance notice on the employer as required under the law before invoking the jurisdiction of the Labour Court and as such his grievance petition was not maintainable. It was next argued that respondent No.2 was promoted after his passing the written test and interview whereas respondent No.1 failed in the test and interview. He argued that promotion was neither guaranteed or secured right under any law, award or settlement nor it was an industrial dispute, therefore, he could not approach the Labour Court for the redressal of his grievance.
6. On the other hand learned counsel for the respondent No.1 argued that the respondent has duly served the requisite grievance notice on the employer but the same could not be exhibited in the evidence before the Trial Court. Learned counsel produced the original postal receipt and acknowledgment due receipt, which were placed on file. Learned counsel further submitted that respondent No.1 was the senior most and suitable amongst the candidates but &spite it he was not appointed as General Supervisor. Therefore, the learned trial Court has rightly accepted his grievance petition and he is entitled to the back benefits as well.
7. As far grievance notice is concerned, it is clear from the record that the respondent did serve the grievance notice on the employer as required under section 25-A(1) of Industrial Relations Ordinance, 1969 as copies of grievance notice, postal receipt and acknowledgement due card are available on the judicial file but the same have not been exhibited in the evidence. On this technical omission the grievance petition cannot be said to incompetent and, thus, respondent No.1 cannot be non-suited on this score.
' On merits, however, the case of the respondent No.1 is without any substance as the appellant company had observed all codal formalities for the selection of the candidate for the post of General Supervisor. Respondent No.1 in his statement has admitted that he appeared in the written test and interview but according to him he did not fail in the same.
In the evidence he made out a different case which had not been asserted in the pleadings and this fact was also admitted by him in the cross-examination saying that "I have not stated anything in my petition regarding the conduct of test/interview conducted by the Mr. Sardar Khalid.
I have not stated anything in my petition about misconduct of Sardar Khalid with me during the interview. Since the Leaf Manager under which Sardar Khalid was working was present during the interview, therefore, I did not complain about the conduct of Sardar Khalid." Respondent No.l could not setup a new case at evidence stage which has not been alleged in his grievance notice and petition. Respondent No.1 failed in the test and the interview and, thus, could not qualify for the post, therefore, he cannot grudge his non-selection for promotion which is not a guaranteed right.
' The nutshell of the above discussion is that the appeal of the appellant company is accepted and the impugned order of the learned Trial Court is set aside while the appeal filed by the respondent No.1 is dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.