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Constitutional Petition No. 245 of 1975, decided on 14th November 3 975.

---S. 25-A-Grievance arising out of settlement-Settlement between workers' representatives and employer guaranteeing filling up of posts from amongst existing staff on basis of seniority-cum-fitness. Promotion should not be claimed on basis of seniority alone-Question of fitness-Within sole jurisdiction of employers to decide-Manage ment always free to hold any selection whether from amongst employees already working or from amongst outsiders-Employee's request for promotion solely on consideration of seniority being not accepted, refusal to promote not mala fide action either.

Muhammad Abu v. Province of East Pakistan P L D 1960 S C 164 ref.

A. G. Muhammadally for Petitioner.

S. Mumtazuddin for Respondent No. 2.

Date of hearing : 14th November 1975.

The petitioner has assailed the validity of the order passed by Sind Labour Court on 20th March, 1975, whereby the petitioner was directed to promote the second respondent as Electrical Supervisor.

2. The facts giving rise to this case are that the second respondent has been working with the petitioner as an Electrician for the last two to three years. In 1974, the petitioner-Corporation was disintegrated into several units as a result of which some Officers and Staff became surplus. In these circumstances a temporary post of Electrical Supervisor was created for a period of 12 months, as one Sajjad Ali Khan who was officiating as an Electrical Supervisor was transferred from West Pakistan Industrial Develop ment Corporation to Steel Mill Corporation on 15th June, 1974.

3. After the post of Electrical Supervisor fell vacant the second respondent started clamouring for his promotion as Electrical Supervisor and posting against the said vacant post. Initially, he made applications to the Departmental authorities. He was informed that he could not be posted as Electrical Supervisor because it was a selection grade post and it was to be filled in by a suitable candidate who would be selected from amongst the applicants who would apply for the post. He was also informed that in this .connection an advertisement will appear in the Press and he would be free to apply for the appointment against this post.

4. The second respondent instead of waiting for any advertisement in, the newspaper to fill in the post and contesting the same through Departmental selection moved an application to the Junior Labour Court under section 25-A of Industrial Relations Ordinance, 1969 which was rejected. In fact, he based his claim on a settlement which had been effected between the Workers' Union and the petitioners in 1974 which provided that all the posts falling vacant would be filled in from amongst the existing staff on the basis of seniority-cum-fitness.

5. The second respondent filed an appeal against the order of the Junior Labour Court in the Labour Court which was allowed and the petitioner was directed to promote the second respondent with immediate effect.

6. The learned counsel has contended that the Labour Court had no jurisdiction to order the promotion of the second respondent as the same was not covered by subsection (1) of section 25-A of the Industrial Relation Ordinance, 1969. Section 25-A of Industrial Relations Ordinance, 1969 provides that any worker may bring his grievance before the Junior Labour Court either directly or through his shop steward or Trade Union within three months of the accrual of the cause of action provided the grievance arises out of any right guaranteed or secured to him by or under any law, award or settlement for the time being enforced. In this case there was a settlement between the workers' representatives and the petitioner that the posts will be filled in from amongst the existing staff on the basis of seniority-cum-fitness. Apparently, the second respondent 'was claiming promotion only on the basis of seniority. As far as the fitness is concerned, it is within the sole jurisdiction of the employers to decide as t whether a person is fit or not to hold a post. To judge as to whether person is or is not fit to hold a post, the Management is always free to hold A any selection whether it is from amongst the employees already working in the organisation or from amongst the workers and outsiders. In this case since there was a settlement that the posts will be filled in from amongst the employees, the petitioner bad therefore a right to invite applications from all such persons who claimed this post and then to select a person fro amongst them keeping in view the seniority-cum-fitness of the contesting candidates. On the basis of seniority alone the second respondent could not claim this post. The Labour Court has therefore patently erred in ordering the promotion of the second respondent on the consideration of the provisions of settlement of which only one condition i.e. the condition as regards the seniority is fulfilled by the second respondent. So far as the second condition of the fitness is concerned, the petitioner would be sole judge to select a person fit for the job keeping in view those factors which they considered necessary to be taken into account for filling in the said post. The learned counsel for the second respondent relied upon Muhammad Abu v. Province of East Pakistan (P L D 1960 S C 164). This was a case of a Government servant claiming promotion and their Lordships held that;

"So far as suitability for promotion to a particular post is concerned, the sole judge was the Government. The Courts were unable to interfere in the matter unless mala fides were proved."

7. The learned counsel for the second respondent has argued that the action of the petitioner in not promoting the second respondent was mala fide action. There is nothing on the record to suggest that this action was mala fide. All what the petitioner required from the second respondent was that he should abide by the settlement which itself provided that the post would be filled in keeping into consideration seniority-cum-fitness.

Since the second respondent's request for promotion solely on the considera tion of seniority was not accepted by the petitioner therefore it was not open to him to say that the refusal to promote him was male fide action in any manner.

8. The upshot of the above discussions is that the impugned order dated 20th March, 1975, passed by the Sind Labour Court V is declared illegal and without jurisdiction. The petition is allowed but with no orders as to costs.

S. A. H. Petition allowed.

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