DIVISIONAL SUPERINTENDENT RAILWAY Versus ABDUR RAUF
1. Petitioner through this Constitutional petition has assailed the judgment/order dated 4‑10‑1989 passed by the Punjab Labour Appellate Tribunal, Lahore whereby the order of the Punjab Labour Court No. 7, Gujranwala, dated 5‑7‑1989 was set aside and a direction was made to implement the order dated 25‑6‑1988 of Divisional Electrical Engineer by posting respondent No. 1 as S.S. Fitter at Lalamusa.
2. Facts in brief are that respondent No. 1, Abdul Rauf, had been working as a "Muawan" (Helper) under the Oil Engine Inspector, Lalamusa Railway Station. He was earlier promoted as a semi‑skilled Fitter through an order dated 10‑1‑1988 against a vacancy at Sibbi in Ouetta Division. However, the respondent made an application that since he had already served at Sibbi for a period of 5 years, as such, he be allowed to work at his present post. He further stated that he would not have any objection if his junior is promoted to that post. Consequently, through order dated 24th of January, 1988 the Divisional Technical Engineer, Pakistan Railway Workshop, Mughalpura, passed an order allowing him to remain posted at Lalamusa as "Muawan". Sometimes thereafter respondent made an application to the effect that one Abdul Khaliq, Semi‑Skilled Fitter of Lalamusa was retiring on 25th of June, 1988, as such, keeping in view his seniority he be posted at his place. Resultantly, through order dated 25th of June, 1988 the respondent Abdur Rauf was temporarily posted as S.S. Fitter w.e.f. 27th of June, 1988 at Lalamusa as he was already declared fit for duties by the Trade Test Committee and also qualified the same due to the length of his service. The respondent consequently joined his new assignment as S.S. Fitter. However, the promotion order was withdrawn/cancelled through order, dated 29th of June, 1988. Respondent being aggrieved of this cancellation order, filed a grievance petition before the Punjab Labour Court No. 7 after serving notice under section 25‑A of Industrial Relations Ordinance, 1969. The Labour Court through its order dated 5‑7‑1989 dismissed the petition. On an appeal filed by respondent No. 1 the Punjab Labour Appellate Tribunal accepted the appeal on 4‑10‑1989. Hence, this Constitutional petition.
3. It is argued by the learned counsel appearing for the petitioner that respondent No. l was earlier promoted as S.S. Fitter for a post falling vacant at Sibbi on 10‑1‑1988 but the same was refused by him, as such, after his refusal in accordance with rule 502 of the Pakistan Railways Personnel Manual Volume I, he was to be placed at the bottom of the seniority list which reads as under:‑‑
4. "502(a). In case transfers arranged in the interest of service, refusal will be considered to be a breach of discipline.
(b) In cases, however, in which the transfer is necessitated exclusively by promotion and there are reasons to believe that the employee's refusal is actuated by genuine motives, his name shall be placed at the bottom of the seniority list."
5. In view of clause (b) he was not entitled to be promoted to the post of S.S. Fitter which had fallen vacant subsequently due to the retirement of Abdul Khaliq on 26‑6‑1988. A further argument has been advanced that the promotion order of respondent No. 1 as S.S. Fitter was issued inadvertently without considering the import of the aforestated rule and the same was immediately withdrawn, as such, the respondent No. 1 in these circumstances, cannot claim any right.
6. Learned counsel appearing for the respondent has supported the impugned order and has stated that the same has taken its effect and a valuable right had accrued to the petitioner which cannot be withdrawn in this manner. It is argued by the learned counsel that the respondent refused his promotion conditionally and gave reason for the same. The Railway authorities never issued him any notice respecting the fact that his refusal would entail subsequent denial of promotion and he would be placed at the bottom of the seniority list.
7. I have gone through the impugned order as well as the documents appended with this petition. It is true that the respondent was earlier promoted on 10th of January, 1988 which promotion he declined by stating the fact that he already served at Sibbi for a period of five years. The Railway authorities/petitioner had accepted his request and allowed him to remain posted as "Muawan" at Lalamusa. It was never intimated to him that his refusal to accept promotion and posting at Sibbi would relegate him to the bottom of the seniority list. It appears that the department itself was oblivious of the existence/import of the rule. The respondent's name was never placed at the bottom of the seniority list as reflected from the documents appended with the petition nor the learned counsel for the petitioner has stated that he was so placed at the bottom of the seniority list. Respondent No. 1 subsequently on the retirement of Abdul Khaliq was promoted by the competent authority on 25‑6‑1988 w.e.f. 27th of June, 1988. The cancellation order though initialed on 26th of June, 1988, was not issued till 29th of June. 1988. The promotion order created a right in his favour and in pursuance thereto he took charge, as such, it cannot be cancelled subsequently to his detriment. Reliance is placed upon Pakistan through the Secretary, Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407. Even otherwise the order is just and proper and any interference at this juncture would cause great injustice to the respondent. In view of what has been stated above, I am not inclined to interfere in the impugned order in the exercise of my Constitutional jurisdiction and dismiss the writ petition with no order as to costs.
8. H.B.T./D‑14/L ??????????????????????????????????????????????????????????????????????????????????? Petition dismissed.