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Petitioner: Syed Muhammad Iqbal & others VS Respondent: Pakistan International Airline Corp. Ltd & others
Court Name: Sindh High Court Judge(s): Muhammad Junaid Ghaffar Title:Syed Muhammad Iqbal & others vs Pakistan International Airline Corp. Ltd
& others Case No.: (1) Suit Nos. 1161/2019 (2) Suit No.1271/2019 Date of Judgment:2019-11-19 Reported As: 2019 SHC 448 Result: application dismissed Judgment Muhammad Junaid Ghaf far, J. Both these Suits have been filed by the respective Plaintif fs for Declaration and Injunction and their primary grievance is in respect of the decision taken by the Board ("Board ") dated 20.05.2019, whereby , the private defendants in both the Suits have been selected for foreign postings leaving out the Plaintif fs. It is their case that they are not only senio r(s); but otherwise qualified as well; hence they ought to have been given the foreign postings by the Board. By way of temporary injunction, they have prayed to restrain defendant No.1 from giving ef fect to the decision of the Board dated 20.05.2019. 2. Learned Counsel for the Plaintif fs has contended that presently the Plaintiffs are working in the capacity of Aircraft Maintenance Engineers with PIA which is recognized as a special cadre of service, being equivalent to Pay Group-VIII of the administrative cadre; that Plaintiff No.1 in Suit No.1161/2019 is presently serving the Line Maintenance Sector of Aerospace Division, whereas, Plaintiffs No.2 & 3 are from Base Maintenance Sector of the Avionics Division; Similarly, the Plaintiffs in Suit No.1271/2019 are working in the Avionics Division; that the defendants are junior(s) in rank as to the service of the Plaintiffs; that presently the relationship in respect of rights and entitlements of the Plaintiffs is governed by a Working Agreement, which is not in dispute and stands recognized; that on 17.05.2019 a list of eligible candidates for the purpose of convening a Board was circulated and Plaintiff No.1 in Suit No.1161/2019 was at Serial No.1 in the Aerospace Division, Plaintiffs No.2 & 3 at Serial Nos.4 & 8 of the Avionics Division, whereas, Plaintiffs No.1 & 2 in Suit No.1271/2019 were placed at Serial No.2 & 3 of the said list; that all Plaintiffs appeared before the Board; but they have been left out as against the private defendants in both the Suits; that the decision of the Board is against the terms so stated in the Working Agreement inasmuch as seniority, which is a vested right has not been maintained; that the private defendants do not possess any better qualifications; that under Article-"VII" of the Working Agreement, the criteria for such purposes has been provided, which must be abided by PIA and Clause 7.7(c) clearly provides that the foreign
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posting has to be given on seniority cum fitness; that once the Plaintiffs have been shown to be seniors as against the private defendants, then it was only the fitness, which was required to be ascertained, whereas, the Plaintiffs possess all qualifications with regard to the two Aircraft(s) in use by PIA i.e. Airbus A320 and Boeing 777; that the Plaintiffs possess unblemished record of service with more than 30 years of experience; that they have been left out without assigning any reasons; that after decision of the Board, the Plaintiffs made a representation, which still stands undecided and no information has been provided; rather it has been withheld without any justification; that the impugned decision amounts to depriving the Plaintiffs from substantial earnings and allowances, which are given to an employee posted abroad; that ignoring the seniority of the Plaintiffs and non-assigning of reasons, mandates the suspension of the impugned decision till final disposal of the Plaintiffs' Suits; hence the applications for injunction be allowed as prayed. In support he has relied upon the cases reported as Shariq-ul-Haq and 5 others v. Pakistan International Airlines Corporation Limited and another 2018 PLC (C.S.) 975, Fazali Rehmani v. Chief Minister , N.W.F.P, Peshawar and others PLD 2008 Supreme Court 769, Ahmed Saeed Siddiqui and others v. Pakistan through Secretary Establishment and others 2015 PLC (C.S) 923 and Abid Hassan and others v . P.I.A.C and others 2005 SCMR 25 . 3. Learned Counsel for the PIA has contended that it is only a handful of employees, who have come before the Court challenging the decision of Board and around more than 30 Engineers, who were also left out, have accepted the decision; that it is the case of PIA that private defendants are not only seniors to the Plaintiffs but have been found to be fit as against the respective Plaintiffs and when admittedly the criteria for selection is seniority-cum-fitness, then the Plaintiffs have no case to seek an injunction; that the decision of the Board requires a subjective analysis; hence it must be left to the Employer / PIA to decide the same; that though Plaintiff No.1 is the senior most Engineer in the Aerospace Division; however, he is only qualified in respect of Airbus A320; hence he is unfit as against the private defendants, who are though junior, but have experience and expertise in respect of both aircrafts i.e. Airbus A320 and Boeing 777 presently being utilized by PIA; that even otherwise it is the case of PIA that foreign posting is not a promotion; but only a transfer of an employee; hence it does not create any vested right; that even if an employee is senior, it is always the prerogative of the employer to take such decisions; that PIA has to see as to what Engineers are to be posted abroad, and if the decision has been made to curtail expenses, then the same cannot be challenged or agitated; that all private defendants have admittedly license(s) in respect of both the Aircrafts and this gives them an advantage as well as benefit to PIA for foreign posting, so that if any one of the two Aircrafts are sent to a specific station, the Engineers already posted abroad can take care of maintenance issue utilizing their expertise; that when fitness is being ascertained, the leadership qualities are also a material factor and such subjective analysis cannot be done by the Court; that seniority cannot be the only basis for foreign posting; but it has to be supported by the fitness of an Engineer; that even otherwise it requires exercise of discretion by the Employer to arrive at a best possible decision, and therefore, the Court shall not engage itself or takeover the managerial decisions of an employer; that recommendations were given by the Chief Human Resources Officer, Chief Technical Officer and Chief Commercial Officer, and thereafter the private defendants have passed the subjective criteria and were awarded higher points on merits as against the Plaintiffs' in both the Suits; hence no case is made out; that PIA does not deny that the Plaintiffs are also competent and good Engineers but the difference and spread is very small; that the decision was admittedly taken on 20.05.2019, whereafter the Transfer Letters have also been issued, whereas, the Plaintiffs came before the Court on 16.07.2019 in Suit No.1161/2019 and on 09.08.2019 in Suit No.1271/2019; hence no case for an injunctive relief is made out; that it is settled law that by way of an injunction, no new situation could be created; that the prayer of the Plaintiffs in the injunction application amounts to asking for the final relief, which can only be granted in very exceptional circumstances, which are lacking in the present Suits; that insofar as non-assigning of reasons and communication is concerned, it is the policy of PIA to maintain confidentiality in such matters, and therefore, the Plaintiffs were not provided with any reasons for leaving them out; however, for the convenience and assistance of this Court, the relevant material is being placed in a sealed Envelope, but only for examination by the Court; that the Plaintiffs have quantified damages, and therefore compensation in terms of money is an adequate remedy for the present purposes; that no prima facie case is
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made out nor balance of convenience lies in their favour, therefore, the listed applications be dismissed. In support he has relied upon the cases reported as Islamic Republic of Pakistan through Secretary Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others 1997 SCMR 1508, Khalil Mughal through Attorney v. Pakistan International Airline Corporation through Company Secretary 2018 PLC (C.S.) Note 34, Tariq Mehmood Malik v. Chief Executive Officer and others 2018 PLC (C.S.) 664 and Haider Ali Baig v. First Micro Finance Bank Ltd. through President/Chief Executive Officer, Islamabad and 3 others 2015 PLC (C.S) 1412. 4. Learned Counsel for Defendant No.2 while supporting the stance of PIA has submitted that the foreign posting is a prerogative of the Employer and the decision already taken should not be disturbed; however , this Court can direct PIA to hear and decide the Plaintif fs representations by assigning reasons in writing so that the norms of justice are followed, whereas, aggrieved Plaintif fs can then seek appropriate remedy in accordance with law . 5. Learned Counsel for the private defendants has contended that the present Suits are only to the extent of the Plaintiffs before the Court and is not a Suit in the representative capacity as majority of Engineers, who were left out have not come before the Court and have accepted the decision; that as per the Working Agreement, all Engineers get a chance in their service to be posted abroad; that seniority alone is not a criteria or a priority for a foreign posting; but has to be seen alongwith fitness, which can only be adjudged by the Employer as it requires the assessment in respect of behavior, attitude and reputation within the organization; that when it is a matter of foreign posting, these qualities matter more as against other considerations; that though there may not be any allegations of misconduct against the Plaintiffs; but if it is a case of conduct being not appreciable, then it disqualifies an employee; that admittedly the foreign posting is neither a promotion nor is a case of any vested right, whereas, it is a subjective assessment and cannot be adjudged at this stage of the case; that as per the Agreement every Engineer gets a chance once in his entire service to be posted abroad, and therefore, the Plaintiffs can always be considered in the next foreign posting; hence, no case is made out. In support he has relied upon the cases reported as Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129 and Zahra Haider v. Federal Board of Revenue and others 2014 PLC (C.S) 773. 6. While exercising his right of Rebuttal, learned Counsel for the Plaintif fs has contended that this is not a case of any ordinary posting or a transfer; rather , attached with it are substantial additional benefits and perquisites, and therefore, it has to be examined in this perspective; that the Plaintif fs have spent more than 30 years with PIA, and therefore, they ought to have been given preference; that the objection regarding having license of only one Aircraft is misconceived inasmuch as there are various stations abroad, wherein, only one of two available Aircraft(s) is being utilized by PIA and for that the Plaintif fs are qualified; hence this argument is not maintainable; that various stations abroad are not even equipped to handle both these Aircrafts; that even the recommendations of the immediate superior officers of the Plaintif fs have been ignored and not considered by the Board, and therefore, the Plaintif fs are entitled for indulgence from this Court. 7. I have heard all learned Counsel and perused the record. Precise facts have been stated hereinabove and it is not in dispute that Plaintiffs in both these Suits were considered for foreign posting by the Board as being eligible; however, the grievance of the Plaintiffs is that, though they are senior in the seniority list of PIA, but have been denied such foreign posting and on this basis the Plaintiffs have impugned the decision of the Board. At the very outset and without any disrespect to the Plaintiffs' Counsel as well as the Plaintiffs, I am of the view that both these Suits ought not to have been filed jointly by several Plaintiffs as apparently they are categorized or placed in separate Division(s) i.e. Avionics and Aerospace, having separate seniority. For example in Suit No. 1161/2019, the Plaintiff No.1 is in Aerospace Division, whereas, Plaintiffs No.2 & 3 are in Avionics Division. In such a situation, ordinarily, if the Court is required to examine the issue of seniority , then it is not possible to do so; however , since in this matter , the ultimate conclusion being drawn by me is not entirely dependent on this issue of inter-se seniority , nor on eligibility for consideration, therefo re, such jumbling of facts can be ignored, as it will not have much effect on the final outcome of the listed applications. Coming to the issue in hand, on merits it appears that the issue in hand is governed by a Working Agreement, and in that Agreement foreign posting is dealt with in Article-VII of the
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said Agreement which has been entered into between PIA and Society of Aircraft Engineers of Pakistan i.e. Defendant No.2. The relevant clause(s) is contained in 7.6 & 7.7, which reads as under:- "Foreign Positing / Secondment / Deputation / Resident Engineer:- 7.6 Members shall be considered for foreign posting who have not been previously posted abroad either on secondment or Corporation duty. They shall be considered again if all the eligible members have completed one term of posting. a) One term of foreign posting shall be of 3 years (36 months) duration which shall normally not be extended / reduced. Term of posting will be considered from the date he joins his station of posting. The Board will be held in JANUAR Y and Review Board in JUL Y each year . b) Nomination for posting will be finalized three months prior to proceeding on foreign station posting. c) Every effort shall be made, to replace a member at foreign station in time. Member completing 3 years posting shall be called back to base and temporary arrangement shall be made if required. d) The nomination will be processed six months prior to due posting and any change in qualification will not be affect the nominee. The nominations for posting when finalized will be freezed and cannot be changed even after acquiring suitable qualification/s by other member . 7.7 Members shall be considered suitable for international posting as per following order of preference: a) Posting / secondment less than six months shall not be considered as foreign posting. b) Member in accordance with requireme nts of station who has done foreign posting / secondment six months or more and falls in "Seniority cum fitness" for remaining period. c) Members holding Full Set qualification in accordance with requirements of station and never done foreign posting /secondment shall be considered on "Seniority cum Fitness basis" . d) After all the eligible members have done their foreign posting, cycle to be repeated as per same order of preference." 8. Perusal of the aforesaid clause(s) reflect that firstly , only those employees would be considered for foreign posting, who have not been previously posted abroad, whereas, it also provides that the duration will be of three years, which shall normally not be extended or reduced. Clause 7.7(c) provides that members holding full set qualifications in accordance with the requirement of station and persons who have never done foreign posting shall be considered on seniority cum-fitness basis. To this extent there appears to be no dispute that all eligible candidates including the Plaintif fs were called and considered, and thereafter the decision has been arrived at by the Board, whereby , the private defendants have been posted abroad leaving out the Plaintif fs. Though much stress has been laid by the learned Counsel for the Plaintif fs that since the foreign posting results in various monitory benefits, it is a kind of promotion and therefore, the question of seniority could not be ignored. On the other hand, PIA's argument is that it is merely a transfer , though abroad; however , it is not a promotion per-se, and mere payment of incentives for being posted abroad would not ipso facto make it a promotion. I am in the agreement with the arguments of PIA's Counsel that for the present purposes foreign posting is not a promotion. It is only a transfer which includes certain incentives for being posted abroad; but in any case, it cannot be termed or equated with promotion. It further appea rs that to ensure transparency and for protection of the rights of the employees, PIA and Defendant No.2 have already agreed that since such a posting is not an ordinary posting or transfer , therefore, certain parameters are to be followed and fulfilled before an employee can be posted abroad. And for that certain conditions have been set out in the Working Agreement, which, besides others, also provides that such postings would only be made on seniority-cum-fitness and not alone on seniority basis. 9. When the Plaintif fs' case is examined in the light of the above facts, it needs to be appreciated that a mere claim of being a senior would not suffice and an employee claiming a foreign posting will have to pass and clear the criteria of being fit or otherwise. Now the first and foremost obstacle in the Plaintif fs' case appears to be that in Suit No. 1161/2019, Plaintif f No.1 is only qualified as an Engineer for Airbus A320, whereas, Plaintif f No.2 is qualified for Boeing 777 only. In that context, they will automatically be disqualified when their fitness is being considered as against the private defendants, who are qualified for both categories of the Aircrafts. In clause 7.7(b) it has been provided that members holding Full Set qualification in accordance with requirements of station are eligible for
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being considered. Now it is not only the first part that full set qualification is required, but so also the requirement of the station for which the posting is being considered, is equally important and has to be considered. Insofar as, Plaintif f No.3 in this Suit is concerned, he appears to be qualified for both the Aircrafts; however , it is the case of PIA that he is junior to at least three of the defendants i.e. Defendants No.11, 14 & 15, and therefore, he failed to pass the fitness criteria, which includes the total points awarded to him and considered by the Board. 10. During the course of hearing when the Counsel for PIA was confronted as to the decision of the Board, the Counsel informed that such decision is always kept confidential as it carries serious observations, which could go for and against its employees; hence cannot be made public; however , for assistance of the Court he has placed on record a sealed envelope containing all such details and has left it to the Court to go through the same, if need be arises. But after going through the material already available on record, I am of the view that for deciding these injunction applications, I need not go through the confidential material placed before me in a sealed envelope and the same must be returned to PIA in the same condition. Court Associate of this Court is directed to act accordingly . 11. Insofar as, the Plaintif fs in Suit No. 1271/2019 are concerned, the Plaintif f No.1 is only qualified for Airbus A320, whereas, Plaintif f No.2 is only qualified for Boeing 777, and therefore, they do not pass the criteria of being fit for such posting. 12. Learned Counsel for the Plaintif fs in response to such disqualification of having only one license made a submission that insofar as the foreign stations are concerned, there are numero us stations, wherein, only one Aircraft is landing, and therefore, the Plaintif fs in their independent capacity , eithe r for Airbus A320 or Boeing 777 are equally qualified. According to him when both these Aircrafts are not being simultaneously utilized by PIA on such stations, therefore, this condition would not apply . However , I am not inclined to accept such line of contention as it is for the management and the employer to look into this matter and if they feel that at any point of time, they can utilize any of its two Aircrafts and it would be more appropriate for it to already have an Engineer posted at such station, where they can send any of their Aircrafts; then it is not for the Court to substitute such a decision of the management. The management has to take such decisions and be accountable for it, therefore, this Court would not like to impose upon its own view on such managerial decisions. The management is best judge for such decisions(s) as this is not a case of promotion; but of a transfer , albeit abroad. However, merely for it being a foreign posting, the discretion and decision making ability as well as responsibility shall not ordinarily be interfered by a judicial perspective. The Plaintiffs have been considered, but have been found to be unfit (for the time being). It is not the stance of PIA that they have been debarred permanently from being considered again. Rather the Working Agreement already provides to cater such a situation; hence, presently, in fact, there appears to be no adverse order against the Plaintiffs. It is also relevant to note that Defendant No.2 with whom the Working Agreement has been signed by PIA, and on which (the Agreement) the entire case has been set-up by the Plaintiffs, is also not supporting their stance, except that their representation be decided and responded to by disclosing them the reasons thereof. 13. The question of being eligible for promotion has been judicially examined in various decisions, wherein, the promotion is related to seniority-cum-fitness . Though as noted hereinabove, this is not a case of promotion; however , qualification in clause 7.7 makes only those as qualified who fulfil the test of seniority-cum-fitness , therefore, these judicial opinions can be considered and examined as to the case of the Plaintif fs. The Courts have time and again examined the intent and meaning of the word "seniority-cum-fitness " and it has been the consistent view of the Courts that the seniority alone cannot be made basis for any promotion and it has to be judged, coupled with fitness. There is a series of judgmen ts of the Hon'ble Supreme Court as well as High Courts which have dealt with such issue, and the same principle has been reiterated. 14. In the case reported as PLD 2003 Supreme Court 110 (Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others , the Hon'ble Supreme Court has been pleased to hold that seniority is only one of the factors, which is to be considered for promotion; but seniority alone is not enough, whereas, promotion is not automatic; but it depends upon many other factors, such as competence, antecedents etc., the relevant finding of the Hon'ble Supreme Court in this case is as under:-
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"22. Section 9 of the Act of 1973 deals with "Promotion". It may be regarding "selection post" or "non-selection post". In case of selection post as involved in these matters, the criterion for promotion is merit, while in case of non-selection post it is done on the basis of seniority-cum-fitness. No civil servant can ask for promotion as a right, and the giving or refusal of promotion is a matter , which is within the exclusive domain of the government/executive authority . If a promotion is denied to a civil servant it could not be termed as denial of any' fundamental right. 23. Perusal of section 9 of the Act of 1973 unequivocally postulates that criterion for selection for promotion to the higher-grade rest upon decision of the competent authority . No other forum/authori ty can assume the duties, which specifically have been assigned to the competent authority . 24. The seniority is one of the factor , which is considered for promotion, but seniority alone is not enough. Promotion is not automatic, but it depends upon so many other factors, such as, competence, availability of post - and antecedent etc. None of these factors is less important than seniority . For prom otion all these factors, on case- to-case basis, are to be determined. 25. On the basis of improved seniority , the benefit of promotion, as a matter of right in selection grade, could not be claimed nor was the Tribunal competent to grant it from back date, as it was explicitly beyond its jurisdiction. The requirements for promotion mentioned earlier were not examined by the competent authority at the relevant time, as such, the same could not be granted by the Tribunal." 15. In the case reported as PLD 2008 SC 395 (Abdul Hameed v. Ministry of Housing and…
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