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Appeal No. LHR‑875 of 1980, decided on 23rd June, 1982.
‑‑ Settlement‑Binding upon parties‑Service rules of establish ment (Road Transport Corporation) providing ratio of promotion and direct recruitment quota‑‑Under settlement all vacancies required to be filled by promotion‑Direct recruitment made con trary to terms of settlement, in circumstances, held, not sustainable.
‑‑ Seniority‑A question of fact‑A seeking remedy by way of grievance petition before Labour Court for being promoted on basis of seniority and succeeding in getting direction of Labour Court‑Management going in appeal before Appellate Tribunal B and C claiming to be senior to A praying for being impleaded as party at appellate stage‑Application of B and C, in circum stances, not granted‑Held: Seniority always a question of fact can not be determined at appellate stage‑B and C being not party to proceedings, held, not bound by order of Labour Court or Appellate Tribunal in instant case ‑‑‑Tndu6tri.il Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3).
Syed Noor Ahmad for Appellant.
Respondent No.1 in person.
Khalid Farooy for Respondents Nos. 2 and 3.
Date of hearing : 16th June, 1982.
In this appeal the decision, dated 8th December, 1979 passed by the learned Presiding Officer, Punjab Labour Court No. 1, Lahore has been challenged, whereby the grievance petition of the respondent was accept ed and he was directed to be promoted as Assistant Traffic Manager, with effect from 8th November, 1978 with back benefits from the above mentioned date.
2. According to the promotion rules of 1959, quota was fixed for direct recruitment as well as for filling in the vacancies by promotions. The quota of promotion was 25 percent and for direct recruitment 75 per cent. A settlement was made on 27th December, 1969 according to which, it was resolved that in future cent per cent vacancies in the subordinate cadre would be filled in by 100 per cent promotion provided suitable persons for promotion were available in the cadre. The appel lant in derogation of the said settlement promoted Rashid Bin Ahmad and Ehsan Ullah as A. T. M. by direct appointment and took one person namely Abdur Razzaq, Assistant, from Rawalpindi Depot of P. U. T. C. This gave a cause of grievance to the respondent to challenge the order. The grievance notice sent by the respondent was replied by the appellant. The reply is to the effect that the vacancies were from the quota of direct appointment and appointment from ex‑cadre, posts and that whenever there will be a vacancy for promotion from the cadre, he would be considered. It is apparent from the reply to the grievance notice that no such promotion was taken that the settlement of 1969 had been terminated by service of notice. Since the settlement was effective, cent per cent vacancies in the subordinate cadre could be filled in by promotion only.
3. Sheikh Ashfaq and Mushtaq Hussain have made applications for being impleaded as party to this appeal, claiming to be senior to the respondent. They say that they, being senior, have been adversely effected by the direction given by the learned trial Judge for the promo tion of the respondent. According to their case, they came in service four years before the respondent. This is very strange that although they claim seniority over the respondent by four years, yet they kept quiet and did not challenge the direct appointment of Rashid Bin Ahmad and Ehsan Ullah and the appointment of Abdur Razzaq from ex‑cadre. Mushtaq Hussain and Sheikh Ashfaq should have applied for being impleaded as party in the lower Court, because they claim seniority over the respondent, which cannot be determined at this stage. The question of seniority is always a question of fact which can be proved only by seniority list. They have not filed any certified copy of the seniority list alongwith their applications. Moreover, the direction of the learned trial B Judge is not that the respondent be promoted over the heads of their seniors, may they be Mushtaq Hussain and Sh. Ashfaq. If they have been adversely effected, they may bring separate action and the order of the lower Court, which is being confirmed by this Court, would not stand in their way as they not being party to the grievance petition of the respon dent and to this appeal, cannot be bound by it. Their applications, there fore, are filed.
4. As a result of the observations made above, I do not find any force in this appeal and dismiss it.
A. E. Appeal dismissed.
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