CHAIRMAN, AREA ELECTRICITV BOARD, WAPDA, MULTAN Versus MUHAMMOD KHALID MALIK

This is an appeal preferred against the decision dated 10‑2‑1992 recorded by, learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur whereby accepting the grievance petition of the respondent No. 1 he was directed to consider his case for appointment as LS‑II. Notices were issued to all the respondents but respondents Nos. 2 to 5 did not appear on 19‑4‑1992, therefore, they were proceeded against ex parte. On behalf of respondent No. 1, Mr. Muhammad Shamsher lqbal Chughtai, Advocate, had appeared on the previous date but he did not appear on 4‑5‑1992 nor respondent No. 1 had put in appearance in person, therefore, the said respondent was proceeded against ex parte on the said date. Thus, arguments of the learned counsel for the appellants were heard ex parte.

2. The facts are that respondent No. 1 was appointed as Lineman -II in 1984. Vide order dated 10‑11‑1985 copy of which is Exh. P‑4 he was made to work as LS‑11 in his own scale. The respondent No. 2 applied through a Minister of being posted as IS‑11 and his test was taken. According to the appellants respondent No. 1 had failed in the test whereas respondent No. 1 did not admit this thing and contended that he had passed the test. He thus applied under section 25‑A of the Industrial Relations Ordinance, 1969 for being posted as LS‑II.

3. Admittedly the channel of promotion of Lineman‑II is Lineman No. 1 and thereafter Lineman can be promoted to the post of LS‑II. Admittedly respondent No. 1 was never promoted as Lineman‑1. When the vacancies for the posts of LS‑II had fallen vacant, applications were invited whereupon the respondent No. 1 had also applied as mentioned above. On the plea that he had not cleared the test and respondents Nos. 2 to 5 had cleared the same, they were appointed as LS‑II in the quota of direct appointment and respondent No. l was not so posted. Respondent No. 1 did not bring on the record any document to show that he had cleared the test. The Labour Courts have no jurisdiction to direction that the persons coming to the Court may be considered for direct appointment, but where a person had claimed promotion, of course, if he proves his case, the Labour Courts have jurisdiction to direct the employer to consider him for promotion. Since the present case was not for promotion but for direct appointment, the learned lower Court had no jurisdiction, even otherwise, no question of promotion of respondent No. 1 to the post of LS‑11 arises since admittedly he was never promoted to the post of Lineman‑I. Only Lineman‑I can claim to be promoted to the post of LS‑II.

The learned lower Court has wrongly decided that respondent No. 1 was not a civil servant. Such an objection had been raised in the written statement. Respondent No. 1 was contended to be a civil servant, by the appellants under section 17(1‑B) of the WAPDA Act. According to the said section all the employee working under the Authority were declared by fiction of law as civil servants. For seeing whether a person is or is not a civil servant in such cases the definition of `civil servant' given in the Civil Servants Act is to be looked into. This was not the case of respondent No. 1 that he was a Government servant and had been sent to WAPDA on deputation. Only deputationists have been declared to be not civil servants by section 17(1‑B) of the WAPDA Act. The respondent was employed by WAPDA as Lineman‑II and thus he was the employee of the WAPDA and was working under it. Thus, right from the date of appointment he became a civil servant. By section 17(1 B) the WAPDA employees have been declared as civil servants for the purposes of Service Tribunals Act. Thus such employee can seek remedy in appeal from the Service Tribunals if they have any cause and the Labour Court have no jurisdiction. This is another reason for which the learned lower Court did not accept the grievance petition of respondent No. 1.

5. As upshot of the discussions made above, the appeal is accepted ex parte and setting aside the impugned decision the grievance petition of respondent No. 1 is dismissed.

H.B.T./755/Lb.P

Appeal accepted.