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SUPERINTENDING ENGINEER, IIND CIRCLES ELECTRICITY, WAPDA, LAHORE

Appeal No. LHR‑153 of 1981, decided on 6th December, 1982.

‑‑ Promotion‑Not a right‑Fitness to be decided by employer --Mere seniority not sufficient to claim promotion‑Labour Court directing promotion on basis of seniority‑Order of Labour Court, in circumstances, modified by Appellate Tribunal directing employer to examine fitness of respondent (Petitioner workman) for promotion and if found fit, his promotion be made effective from date of promotion of junior‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A & 38(3).

A‑ Rashid Malik for Appellant.

Nemo for Respondent.

Date of hearing: 6th December, 1982.

This appeal emanates from the decision, dated 18th February, 1981 passed by the learned Presiding Officer, Labour 'Court No. 1, Lahore, whereby the grievance petition of the respondent was accepted and he was directed to be senior to Noor Khan and Nisar Ahmad. The appellant was directed to promote him w.e.f. the date on which Noor Khan and Nisar Ahmad were promoted with increased pay, but back benefits were not allowed.

2. The facts are that the respondent was terminated under section 17 (1‑A). The order of termination was set aside and the respondent was directed to be re‑instated. The respondent was given duty as amend ment was made and subsection (1‑C) was added to section 17 of WAPDA Act of 1958, to the effect that the respondent could challenge the order of the termination passed under section 17 (1‑B). The respondent was, therefore, again terminated. We challenged the order in writ and got stay order while the respondent stood terminated and his two juniors Noor Khan and Nisar Ahmad were promoted. The respondent challenged the order of treating the said employees senior to him and their promotion orders. The said grievance petition was accepted and hence this appeal. Learned counsel for the appellant has argued that the writ of the respondent was dismissed, therefore, the direction of the lower Court to promote him has become redundant. No copy of the order of the High Court has, by writ of the respondent may have dismissed, been brought so it cannot be said that actually the writ of the respondent has been dismissed and has termination order upheld. The learned counsel should have before advancing such an argument, brought the copy of the final order passed in the writ petition. Moreover if in reality the direction of the learned lower Court has become redundant the appeal should have withdrawn instead of asking this court to accept it. Since Noor Khan and Nisar Ahmad were junior to the respondent. The learned lower Court rightly directed that the respondent be treated as senior to them. However, the direction to promote the respondent is not correct. Promotion is not a right. A part from it promotion is to be ordered not only on account of seniority but fitness for promotion is also necessary. The question of fitness is to be decided by the employer. 1, therefore, partly accept the appeal and modify the order of the learned lower Court by directing that if the writ of the respondent has not been decided or it has been accepted the question of the promotion of the respondent be re‑examined and if he is found fit for pro motion he be promoted w. e. f. the date on which Noor Khan and Nisar Ahmad were promoted.

A. E. Appeal partly accepted.

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