' On the basis of fact set out in the petition and also recorded in the order, dated 28-11-1995, the learned Single Member of observed as under- "However, as in this case where unfair labour practice is alleged and from the record, it is proved that applying the same set of rules one person Nadeem Akbar was promoted and the petitioner who was involved in trade union activities was ignored. Under such circumstances, the Court does have the power and in fact a duty under the law to consider this aspect. In the present case, I find that the petitioner was constantly being ignored for promotion at every step. On the record, there is nothing to explain this discrimination except the fact that it was being done as a measure of unfair labour practice. Under these circumstances, the petition is accepted. The respondents arc directed to promote the petitioner on the same level as they promoted one colleague of the petitioner namely Nadeem Akbar. The claim of the petitioner that he should hay been. Promoted as Grade-Ill on 1-1-1982 and Grade-II en 1-1-1987 should be considered favourably keeping in mind the service of the petitioner."
2. On appeal of Habib Bank Limited (respondent No,3). The. Learned Full Bench of N.I.R.C. Modified the order, dated 27th of May, 1997 to hold that:-- "It is crystal clear from the material available on the file that increment of the respondent was withheld in 1981 and since then he was never considered for promotion. He was promoted in the year 1990 as Grade-III and in the year 1994 as Grade-ll Officer_ whereas according to him he was to be promoted as Grade-I Officer in the year, 1994 as was done in the case of aforementioned Nadeem Akbar who is now Grade-I Officer.
' For the aforesaid reasons, we are constrained to hold that equity and principles of natural justice demand that both these officers should have been treated at par without any discrimination. It is further worth-consideration here that the stoppage of increment of the respondent for one year could not he stretched out beyond that period, particularly after 1-1-1990 when he was promoted to Grade-Ill.
' It is correct that promotion cannot be claimed as a matter of right but it is a vested right of every employees to be considered for promotion on the basis of seniority-cum-fitness in accordance with the rules of the department without discrimination whatsoever, which fact is lacking in the case in hand.
' In view of the above discusion, we are of the view that the case of the respondent for promotion to Grade-I should have been considered by the competent authority/Departmental Promotion Committee in accordance with the Bank rules alongwith the ease of his junior from the same date when he was promoted, in the light of the recommendations made by the 'Departmental authorities. The ' impugned order, dated 28-11-1995 is, therefore, modified to the above extent and the appeal is disposed of accordingly in the above terms."
3. The above orders were challenged by respondent-Bank in Writ Petition No,2294 of 1997. The above writ petition was disposed of by order, dated 1-6-1998 in terms of para. 7 holding that:- "In view of the above, since the petitioner's Bank is itself, as stated by the learned counsel for the petitioner, processing the case of respondent No,3 for promotion alongwith other officials, no interference by this Court in the order of the learned Full Bench of the National Industrial Relations Commission, dated 27-5-1997 is called for. The present petition is accordingly disposed of without any order as to costs."
' It is worthwhile to mention that at page 5 of the order, dated 1-6-1998, it was recorded that:-- "In this regard the learned counsel for the petitioner also stated that, in fact, the name of respondent No,3 has been sent to the Finance Division alongwith other officials for consideration for the purpose of promotion in the next grade."
4. The respondent-Bank aggrieved by the above orders preferred Civil Petition No,1083 of 1998 before the Hon'ble Supreme Court of Pakistan. This petition was dismissed by the Hon'ble Supreme Court on 19-2-1999 observing, therein that:-- "From paragraph 6 of the judgment, it is quite clear that the learned counsel for the petitioner virtually conceded before the High Court that the original order passed by the Chairman, N.I.R.C.
Stood modified by order of the Full Bench of N.I.R.C. And that in pursuance of the order passed by the. Chairman, the case of respondent No,3 was already sent bi the petitioner to Ministry of Finance for consideration in accordance with the rules. In these circumstances, the learned Judge was perfectly justified in observing that no case for interfering with the order of Full Bench of N.I.R.C. In writ jurisdiction is made out."
5. The learned counsel for the petitioner submits that despite numerous petitions and requests, petitioner was not considered for promotion and the matter was kept in suspended animation on the plea that recommendation of the Bank in favour of the petitioner for his promotion was pending consideration with the Finance Ministry. On lack of positive response and action by the Bank, a petition under section 22(c) of I.R.O. Was preferred before the Full Bench of N.I.R.C. For proceedings against the Bank for disobedience of directions, dated 27th of May, 1997. By an interim order 17-2-1999, N.I.R.C. Directed respondents to implement the said order and in case of non- implementation thereto, respondents should explain the reason for this inaction. However, on 7-4- 1999, N.I.R.C. Was informed by the respondent Bank that Departmental Promotion Committee, after due consideration, has not found the petitioner suitable for promotion to Grade-1. Whereupon, on 18-10-1999, petitioner's application under section 22(c), I.R.O. Was dismissed by learned Full Bench of N.I.R.C. On the plea that no element of contempt was found in view of findings of non-suitability by the Departmental Promotion Committee. This order, dated 18-10-1999, is the subject-matter of present Constitutional petition.
6. Learned counsel for the petitioner has argued that having throughout represented that N.I.R.C's. Order, dated 27th of May, 1997 was under implementation as the Bank had recommended petitioner's case for promotion to the Finance Division under the Rules and it was on this basis that the judgments dated 1-6-1998 and 19-2-1999 were respectively passed by this Court and the Hon'ble Supreme Court of Pakistan. It has further been contended .On behalf of the petitioner that respondent-Bank could not have changed its stance before N.I.R.C. That the matter was considered by Departmental Promotion Committee findings the petitioner unsuitable.
7. The learned counsel for the respondent-Bank (respondent No,3) has argued that on comparative evaluation of the qualifications, personality and temperament etc., of the petitioner viz Nadeem Akbar, he was found to be unsuitable for promotion by the Departmental Promotion Committee vide memo. Dated 24-3-1999 (placed on record during hearing). Wherefore, N.I.R.C's. Orders, dated 27th of May, 1997 and those of the High Court and Hon'ble Supreme Court of Pakistan have been duly complied with.
8. On Court's asking, learned counsel for the Bank and the Banks representative (who has brought the entire record with him) could not find from the record and produce the avowed "recommendation of the Bank to Finance Ministry". Wherefor, it can safely he concluded that the so-called "recommendation" was used as a device by the respondent-Bank to avoid consideration of petitioner's case for promotion and also to avoid the consequences of non-obedience of orders.
9. Having perused the record and considered the arguments of the learned counsel for the parties I am of the opinion that by raising bogey of "Departmental Promotion Committee" in 1999, respondent-Bank only evaded its solemn duties and commitments to comply with the orders, dated 27th of May, 1997 passed by N.I.R.C. And those passed by this Court as well as the Hon'ble Supreme Court of Pakistan. Having unreservedly represented that petitioner's case was recommended for promotion to Finance Division under the Rules, respondent-Bank could not have deviated from this undertaking by referring the case to a Departmental Promotion Committee. To me, this amounts to non-consideration of a legitimate and valid right of the petitioner for promotion to Grade-I.
10. The word "consideration" does not give a licence to respondent Bank to shift stands, commitments and duties under law, equity and morality. "Consideration" requires serious, reasonable, fair, bona fide, honest and genuine application of mind and appreciation of the comparative rights and records. The object of "consideration" should be assessment of all facts with a purpose to grant relief and not with predisposition to deny the right. So-called "consideration" by Departmental Promotion Committee of the respondent-Bank is in fact a contradiction to the declared "recommendation" by the Bank favourable to the petitioner for his promotion to Grade-I. Had the recommendation been turned down by the Finance Ministry, respondent-Bank could argue a case against the petitioner. Having recommended petitioner's case for promotion, respondent-Bank could not have through its D.P.0 given "unsuitability" verdict for petitioner's promotion. Such contradictory and self-destructive premise cannot be allowed. The conduct of respondent smacks of legal as well as factual mala fide.
10-A. In view of the above, this petition is accepted and the order dated 18-10-1999 of N.I.R.C. Is declared to be without lawful authority and of no legal effect. Petition before N.I.R.C. Shall be deemed to be pending and the parties shall appear before N.I.R.C. On 28th of June, 2001, the respondent Bank shall, in terms and in view of the observations above given, after serious, honest and purposive consideration, submit before N.I.R.C. Its final position regarding petitioner's promotion to Officer Grade-I as prayed for by the petitioner. Keeping in view the peculiar nature of the case, the parties are left to bear their own costs.