ORDER SHEET

IN THE HIGH COURT OF SINDH AT KARACHI

C.P. NO. D-732 /2008

Date Order with signature of Judge

For Katcha Peshi

12.4.2010

Mr. S.M. Iqbal Shah Advocate for the petitioner

Mr. Ashiq Raza DAG

Mr. Syed Jawed Iqbal Advocate for the respondents No.2 & 3

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The petitioner was dismissed from employment of the respondent No. 2 and at the time of dismissal the petitioner was working as Cementation Technician EG-I. Petitioner challenged his dismissal before the Federal Service Tribunal and the Federal Service Tribunal through judgment dated 27.8.2003 allowed the appeal and directed his reinstatement with consequential benefits. The respondent challenged the judgment before the Hon'ble Supreme Court where the Tribunal judgment was maintained. Through office Memorandum dated 23.11.2004 the petitioner was reinstated and was also paid all back benefits. Further through letter dated 13.2.2008 the petitioner was granted promotion from the Cementation Technician EG-I to Cementation Technician EG-II w.e.f 01.7.2007.

Learned Counsel for the petitioner states that the petitioner has not been granted promotion from the date of his batch-mates were promoted and that such promotion be granted to the petitioner.

Learned Counsel for the respondent has contended that the case of the petitioner was considered for promotion and on the basis of his ACR the petitioner could not obtain passing marks for being promoted as reflected from the ACR quantification documents filed with the statement dated 16.10.2009. He states that no right has accrued to the petitioner for being promoted. Learned Counsel for the petitioner has contended that the calculation/counting of marks in ACR has been made wrongly as the marking has to be done on the basis of 4 items instead the respondent has calculated the marks on 5 items of grading. The Counsel was asked as to how the petitioner claims grading on the basis of 4 items more so when very ACR contains grading on 5 items, the Counsel was unable to explain the position but stated that in the respondent organization the counting of marks is done on the basis of 4 items.

We have considered the submissions made by the learned Counsel and so far the question of implementation of the judgment of the Federal Service Tribunal maintained by the Hon'ble Supreme Court of Pakistan is concerned, apparently the same appears to have been complied with by the respondent by reinstating the petitioner in service and also giving him all back benefits including usual increments accruing to him during the period he remained out of job. The petitioner was reinstated on 23.11.2004 and was also paid back benefits including that of usual increment. On 13.2.2008 the petitioner was also granted promotion from Cementation Technician EG-I to Cementation Technician EG-II w.e.f 1.7.2007. When such promoting was granted to the petitioner, petitioner filed this petition contending that he was entitled to be promoted further. It may be noted that the reinstatement of the petitioner was made through office Memorandum dated 23.11.2004 and through office Memorandum dated 12.4.2005 re-fixation of his payment was made with full details and apparently the same was accepted by the petitioner. He was also granted promotion on 13.2.2008 and when such promotion came to be granted to him, he started claiming promotion of that of his batch-mates. From the period of 2004 up to the year 2008, no grievance was raised by the petitioner in any forum provided by law complaining of non-compliance of the judgment of the Federal Service Tribunal.

So far the question of compliance of the judgment of Federal Service Tribunal is concerned the same was complied with and apparently, was accepted also by the petitioner. The claim for promotion which is being disputed by the respondent on the basis that the petitioner has not acquired eligible marks, same is a separate cause of action for which the petitioner may avail a proper remedy, more so, when admittedly there are no statutory rules of service in the respondent organization on account of which this petition is not maintainable in view of the judgment dated 12.3.2010 of the Hon'ble Supreme Court of Pakistan in Civil Appeal No. 172-K of 2009 (Pakistan International Airline Corporation Vs. Tanveer-ur-Rahman).

The petition is, therefore, dismissed. The petitioner may, however avail remedy in accordance with law

J U D G E

AAMIR/PS