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Application No. 166 of 1984, decided on 30th July, 1986.

‑‑‑S. 25‑A‑‑Grievance notice and petition‑‑Issuance of grievance notice not proved‑‑Effect‑‑Non‑proof of issuance and service of grievance notice and specific denial thereof by Authority, held, would render grievance petition as not maintainable in law.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Claim of promotion on basis of seniority‑‑Authority proving that post claimed was to be filled in by selection on basis of seniority‑cum‑suitability‑‑Effect‑‑If post was to be filled in on basis of suitability as well, same, held, could not be claimed as of right‑‑Labour Court would have no jurisdiction in such matter of promotion.

‑‑‑S. 25‑A‑‑Grievance petition‑‑Suitability for promotion‑‑Petitioner denying notice for test and interview‑‑Evidence produced by Authority of participation of petitioner in such test and interview not shaken in cross‑examination‑‑No evidence in support of plea by petitioner that he was not called for interview‑‑Petition having no substance was dismissed in circumstances.

Wasiullah Qureshi for Applicant.

M. Ishaq Abbasi for Respondents Nos. 1 and 2.

M. Bashir Awan for Respondent No.3.

The applicant was working as skilled Crane Driver in the respondent organization and he was said to be the senior most in his cadre. On 10‑11‑1982 the applicant requested for his promotion to the post of Crane Operating Mistry which was to fall vacant on the retirement of one Fateh Muhammad. His application was duly recommended. On 13‑4‑1984 he was assigned the duties of Crane Operating Mistry on the retirement of the said Fateh Muhammad. However, to his utter surprise respondent No.2 promoted respondent No.3 by order, dated 30‑5‑1984 though the said respondent No.3 was junior to him. Considering this illegal promotion, he sent a grievance notice on 10‑6‑1984 and thereafter approached this Court for setting aside the promotion order, dated 30‑5‑1985 and ordering his promotion with all consequential benefits.

Respondents Nos. l to 3 in their reply statements pleaded that the post was to be filled in on the basis of seniority‑cum‑fitness and so test was duly held in which the applicant failed. Accordingly, the petition of the applicant is not maintainable in law. Railways has also asserted that no grievance notice was served which is a condition precedent to approach this Court and so this petition is liable to be dismissed on this score alone.

The applicant examined himself alone in support of his case, while on behalf of the Railways one Abdul Hameed Khan was tendered in evidence. Respondent No.3, however, examined himself as also Hussain another contesting candidate and Sultan Ahmed, General Secretary of the C.B.A. Union.

After evidence, I have heard Mr. Wasiullah Qureshi, Advocate for the applicant, Mr. M. Ishaq Abbasi, Advocate for the Railways, and Mr. M. Bashir Awan, Advocate for the private respondents.

Before dialating upon the rival contentions touching the merits of this case, I would like to examine whether the grievance notice was issued and served in this case, as it goes to the route of it.

It is the contention of the applicant that he had sent grievance notice on 10‑6‑1984 by registered post A.D. to the D. S., Karachi and Assistant Works Manager, Hyderabad. This contention has been specifically denied on behalf of the Railways. A.D. Slips have been placed on record as A/7 and A/8. These slip neither bear the registration number nor any seal of the post office. Postal slips have not been produced in Court. The applicant examined one Mr. Fasi‑ur Rehman, In charge Railway Mail Service, Hyderabad. In his in‑chief he deposed that two letters, one to D. S., Karachi and the other to A . W. M., Hyderabad were registered, vide postal receipts Nos. 63 and 64, respectively on 16‑6‑1984. In his cross‑examination he admitted that A.D. slips A/7 and A/8 do no show when and wherefrom the letters were despatched. He had also no proof to show that the letters were delivered to the addressee. He admitted that A.D. slips are stamped by Post Office but the two slips do not bear any seal or stamp of the post office. The applicant produced no other evidence to show that he had sent his grievance letters and whether the same were served or not. A.D. slips A/7 shows signatures of some person indicating that he had received any letter on it on 11‑6‑1984. The evidence of Fasih‑ur Rehman referred to above, however, shows that the letters were despatched on 16‑6‑1984. This shows that no letter was sent by the applicant through A/7. Since the applicant has not established the issuance and service of grievance notice and since the respondent has specifically denied its receipt, the present petition would not be maintainable in law and is to be dismissed accordingly.

On merit of the plea of the applicant is that he was to be promoted only on seniority basis but the Railways has proved that this post was to be filled in by selection on the basis of seniority‑cum- suitability. If the post is to be filled in on the basis of suitability as well, it cannot be claimed as of right and this Court would have no jurisdiction in the matter.

It has been contended by Mr. Wasiullah, that the applicant would still have a right to be considered but since he was not called for any test, the impugned promotion order would be bad in law. This plea cannot be considered because it has never been the case of the applicant and any determination on this point would be travelling beyond the' pleadings and the relief claimed. Even otherwise I do not find any force in this submission. No doubt notice for calling in the test was not specifically proved to have been served on the applicant but the respondent No‑3 has led convincing evidence on this point. Besides his own evidence, he has examined one Hussain& who had also been called in that test as also the General Secretary of the C.B.A. Both these witnesses have confirmed that there had been not only a test but the applicant was also called and examined. The evidence of these independent witnesses have not been shaken in their cross‑examination. No evidence in support of the plea of the applicant that he was never called has also been led.

In view of the above, I do not find any substance in this petition, which is accordingly dismissed.

A. A.

Petition dismissed.

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