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Appeal No. SUK-675 of 1981, decided on 26th May, 1982.

Industrial Relations Ordinance (XXIII of 1969)---

----Ss. 25 and 38--Grievance petition-Maintainable only for enforcement of a right guaranteed by law, award or settlement Promotion-Eligibility---Entitlement-Distinguished-Claim can not be pressed merely upon basis of eligibility-Promotion subject to approval of departmental Selection Committee-In absence of such approval entitlement cannot be pressed-Having worked against higher post purely on temporary basis against leave vacancy, held, cannot give permanent status of appointment Claim for promotion accepted by Labour Court-Order of Labour Court in circumstances, set aside by Appellate Tribunal.

Muttaqi Hussain Rizvi v. Province of Sind P L D 1978 Kar. 703 and Pakistan International Airlines Corporation v. Sind Labour Court No, V PLD1980SC323rel.

Syed Ahmed Faruqui for Appellants.

Shabbir Ahmed Awan for Respondent.

Date of hearing : 26th May, 1982.

DECISION

This appeal is directed against the decision of the learned Seventh Labour Court, given on 28th October, 1981, directing the appellants to post the respondent as Darogha with full benefits.

2. The case of the respondent is that he was appointed as Pressure pipe Sounding Mistry to 1973 on work-charged basis but subsequently was brought on regular cadre. According to him, on the basis of his experience and seniority he was posted as Darogha with effect from 28th April, 1977, in the place of Abdul Ghani Darogha, who is said to have absconded, but subsequently, in view of the order of the learned Seventh Labour Court, directing the appellants to appoint one Aurangzeb as Darogha in the post occupied by the respondent he was reverted back as Pressure-pipe Sounding Mistry vide letter, dated 28th April, 1977. However, on 17th October, 1979, the respondent was made to work as Darogha vice Abdul Aleem Darogha and on his return the respondent was again sent back to his substantive post of Sounding Mistry. As Abdul Aleem applied for L. P. R., which was granted to him, the post of Darogha previously occupied by the respondent is said to be lying vacant. The respondent appears to have been recommended for that post by the Executive Engineer as is evident from the letter, dated 20th May, 1980, but could not be appointed as Darogha since he was not approved for the appointment by the Departmental Selection Committee. In these circumstances, the respondent preferred grievance petition before the learned Labour Court in Sukkur praying for a direction to the authority to promote him and post him as Darogha. As already pointed out this prayer has been allowed by the learned Labour Court.

3. I have heard Mr. Syed Ahmed Faruqui, the learned counsel for the appellants, and Mr. Shabbir Ahmad Awan, who appeared for the respondent workmen.

4. A grievance petition under section 25-A, I. R. O., can only be filed for the enforcement of a right guaranteed by law or an award or settlement. It has, therefore, to be seen whether the respondent has any such secured right. In the case of Muttaqi Hussain Rizvi v. Province of Sind (P L D 1978 Kar. 703), the distinction between being "eligible for promotion" and entitlement to promotion" was emphasised and it was pointed out that whereas "eligibility for promotion means only being legally qualified to be promoted but did not mean entitled to or having a right to promotion, the words "entitled to promotion" mean vested right to promotion. In the instant case it is doubtful whether the respondent is even eligible for promotion unless, of course, he possesses the minimum qualifications and experience prescribed for the post of Darogha as given in the Notification of Irrigation and Power Department. dated 20th June, 1979. All that appears from the record is that the respondent can read and write 'Sindhi' and Urdu' but there is no specific evidence that he has passed Seventh Class from the School. In any case one of the admitted requirements for the post of Darogba is that the candidate must be approved by the Departmental Selection Committee. In the instance case, as appears from the letter of the Executive Engineer, dated 20th May, 1981, the Departmental Selection Committee had not approved the A respondent for appointment as Darogha. In the circumstances, the respondent cannot .be considered to be entitled to be promoted its Darogha,

5. Faced with the above position Mr. Sh0abbir Ahmad Awan sought to argue that the respondent had acted as Darogha for a period exceeding one year and, therefore, should be deemed to have become permanent in that post. It may, however, be pointed out that the letter, dated 17th October, 1979, by which the respondent was appointed as Darogha itself specifically mention that the respondent was being appointed in a purely temporary capacity against leave vacancy. In the case of Pakistan International Airlines Corporation v. Sind Labour Court No. V (P L D 1980 S C 323) the Supreme Court while differing from the view taken by the Karachi High Court that the respondents in that case had become permanent workmen only because they had been in the appellant's employment for more than nine months clarified that a workman cannot become a permanent workman if work for which he came to be employed was expected to be finished within nine months but in fact came to be completed after expiry of nine months. In any case, since the respondent was appointed in a purely temporary capacity in a leave vacancy he cannot be consider ed-to have become a permanent workman. Moreover, it appears that permanent appointment can only be made on the recommendation on the appropriate Departmental Selection Committee and the admitted position in the instant case is that the respondent's case had not been approved by the Departmental Selection Committee.

6. The upshot of the above discussion is that I would set aside the impugned decision of the learned Labour Court and would allow the appeal. It may. however, be emphasised that this judgment is not to be construed as any bar to the case of the respondent being referred again or considered afresh by the Departmental Selection Committee, for appointment.

Appeal allowed.

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