1. ARSHAD NOOR KHAN, J. --- By this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the promotion of respondents Nos.
2. 5 to 7 vide Notifications dated 14.3.2008 and 08.9.2008 to be illegal.
3. The facts leading rise to the present petition in brief are that the petitioner was appointed as Corporate Manager Air Transport (PG-9) on 28.7.1985 and he possess the requisite educational qualifications. After his appointment he was being continuously deprived off his right of promotion either by way of irregular recruitment or from officers or deputation from other departments.
4. However, on the order of the Federal Service Tribunal Karachi in Appeal No. 590(K)198 duly confirmed by the Hon'ble Supreme Court vide judgment dated 01.8.2008 in Civil Petition No. 892- K/2008, he was promoted to the post of General Manager (PG-10) alongwith others after completion of his service period. It was further stated in the petition that on 03.01.2006 the respondent No. 3 circulated a seniority list of PG-10 officers wherein the name of the petitioner was placed at serial No. 5 and respondent No. 5 who was on deputation was shown senior to him at serial No. 4; and that the respondent No. 6 who was also junior to the petitioner was recently promoted to PG-10 in June, 2007 and thereafter he has been given accelerated promotion to the post of Director (PG-10) on 05.3.2008. The petitioner challenged the seniority list in C.P. No. 2222/2006 and the said petition is still pending adjudication. It is further stated in the petition that respondents Nos. 3 and 4 while ignoring and bypassing all the rules and regulations and seniority list of the senior officers promoted respondents Nos. 5 and 6 without considering the petitioner who was eligible for promotion to the post of Director (PG-11). It is further stated in the petition that respondent allowed another promotion on acting charge basis to the post of Chief HR (PG-11) to Muhammad Iqbal Afreen who was also junior to the petitioner which was also illegal and mala fide on the part of the respondents. The petitioner submitted an appeal against the promotions of the respondents Nos. 5 to 7 but the respondents did not decide his appeal, therefore, he filed the present petition.
5. The respondents Nos. 2 to 7 have filed their parawise comments stating therein that the petition involved disputed questions of facts and the petitioner has approached this Court with unclean hands; that the departmental appeal filed by the petitioner is still pending before the Secretary Defence/Chairman, Civil Aviation Authority against the order dated 14.3.2008; and that the Constitutional petition has been filed in violation of Para 6.30(b) of Civil Aviation Authority Service Regulations, 2000. It is further averred in the comments that case of the petitioner was considered for promotion to the post of Director (PG-11) in the selection board meeting thereafter D.P.C. Was held on 26.2.2008 but was not promoted owing to the reasons of this low qualified ACR/PAR score of 65.52 against the minimum required score of 70.00. It is further stated in the comments that the order dated 08.9.2008 is not the promotion order of the respondent No. 7 in fact he has been given acting charge of the post of Chief HR as stop-gap arrangement and acting charge could not be treated as promotion. It is further stated that the petitioner was also promoted in view of the order of the Federal Service Tribunal in Appeal No. 590-K of 1998 duly confirmed by the Supreme Court in Civil Petition No. 892-K/2000 and he alongwith others was also promoted and the compliance report has already been tendered to the Registrar, Supreme Court. The petitioner has, therefore, no case for his promotion and the petition is liable to be dismissed.
6. We have hear'' Mr. Malik Muhammad Riaz, advocate for the petitioner, Mr. Ashfaq Hussain Rizvi, advocate for respondents Nos. 2 to 7 and Mr. Umer Hayat Sandhu, D.A.G., for respondent No. 1.
7. Learned counsel for the petitioner vehemently contended that the petitioner has been discriminated by the respondents and has not promoted him male fidely though he is eligible for all intent and purposes for promotion in the next grade; and that the seniority of the petitioner has been wrongly stated at serial No. 5 in order to extend the benefit to respondents Nos. 5 to 7. He further contended that by virtue of rule 3.35(a) of Civil Aviation Authority Service Regulations the criteria for promotion in PG-11 was fitness cum-seniority and the said criteria of seniority has been miserably ignored by the respondents which otherwise entitle the petitioner for his promotion in the next higher grade. According to him the case of the petitioner has been ignored for his promotion in next grade as such, the order thereby promoting respondent Nos. 5 to 7 may be declared as illegal inoperative male fide and void ab initio.
8. Learned counsel for respondents Nos. 2 to 7 vehemently controverted the arguments advanced on behalf of the petitioner and has contended that the petitioner did not secure the requisite score of minimum 70.0 marks which is the basic requirement of placing the case of the petitioner before the DPC and he has secured low qualified ACR/PAR score of 65.52. According to him, appeal filed by the petitioner is pending adjudication before the Secretary Defence/Chairman Civil Aviation Authority, therefore, the petition has been filed prematurely. It is further contended that the petitioner did not claim himself to be fit for promotion in the next grade and he simply claimed for his promotion in the next grade and eligibility does not mean the entitlement of the petitioner for promotion in next grade. In support of his contentions he has reified upon the case of Tasleem Jan v. Muhammad Zaman reported in 2005 PLC (CS) 610; the case of Mutaqqi Hussain Rizvi v. Province of Sindh and another, reported in PLD 1978 Karachi 730; the case of Abid Hussain Shirazi v. Secretary M/O Industries and Production, Government of Pakistan, Islamabad, reported in NLR 2006 Service 16; the case of Manzoorul Hassan v. Secretary Ministry of Education, Islamabad and others, reported in 1995 SCMR 08.
9. We have considered the arguments advanced on behalf of the parties and have gone through the entire material available before us as well as relevant law on the subject.
10. The claim of the petitioner is that he is senior to the respondents Nos. 5 to 7 who have been promoted and he has been ignored from his promotion in next grade PG-11. According to him the seniority list was issued by the respondents and his name was mentioned at serial No. 5 and his Const. Petition No. D-2222/2006 is pending adjudication before this Court. It is, therefore, not disputed that the sonority of the petitioner is still under clouds and unless his version is accepted in.
11. Const. Petition No. D2222/2006, he neither could be treated as serial No. 4 of seniority list nor the seniority list could be disturbed by the respondents. It is, therefore, evident that presently the petitioner has been placed at serial No. .5 of the seniority list. The case of the petitioner that he has not been promoted by the respondents could not be treated adversely for the reasons that the minimum requirement of placing the case of the employees in PG-10 to PG-11 is to secure minimum score of 70 marks whereas the petitioner secured 65.52 marks and he has not controverted the defence of respondents that he had not secured score of 65.52 marked. His basic requirement was, therefore, lacking at the relevant time when the D.P.C. Was held.
12. Learned counsel for the petitioner has vehemently relied upon rule 3.35 of Civil Aviation Authority Service Regulation which is reproduced herein below for the sake of convenience:- "3.35(a) - Promotion upto PG-8 shall be made on the basis of fitness-cum-seniority. Fitness inter- alia shall be determined of a person conforming to prescribed requirements for each higher post.
13. Promotion to PG-9 and above being selection posts, shall be made on the basis of merit and suitability."
14. A perusal of rule 3.35(a) ibid, shows that the criteria for the purpose of promotion provided in the Civil Aviation Authority Service Regulations, is the fitness-cum-seniority, fitness inter alia has been made prescribed requirement for promotion to PG-09 and above being selection posts which shall be made on merit and suitability of the incumbent. It is, therefore, evident that for the purpose of promotion to PG-09 and above the condition precedent is to be the fitness-cum seniority and merit as well as suitability. The petitioner in his petition nowhere has claimed to be fit or suitable employee for the purpose of promotion in next higher grade on merits. The petitioner in para 7 of the petition claimed to be eligible for the purpose of promotion but eligibility does not mean the entitlement of the petitioner for the purpose of promotion in next higher grade or to be treated suitable person for the purpose of promotion. The seniority list issued by the respondents As admittedly circulated and the petitioner not only received seniority list but also filed appeal against his placement at serial No. 5 but his appeal as well as Cons. Petition before this Court are pending adjudication, therefore dilate upon this aspect of the matter will prejudice the case of either parties in the petition pending before this Court. In view of pendency of petition about his seniority it could not be said that the petitioner was senior to respondents Nos. 5 to 7 in view of rule 3.35(a) of Civil Aviation Authority Service Regulations. The case of the petitioner is, therefore, not covered under rule 3.35(a) ibid. "Coming to Section 4 of the N.W.F.P. Service Tribunals Act, it places a bar of jurisdiction on the Service Tribunal only where matter to be determined is the fitness of a Civil Servant to hold an office. Fitness to hold an office is altogether different from eligibility to hold an office. Where fitness of an officer to hold a higher post is a matter of comparative suitability in the light of qualification of performance as a result of subjective decision of the competent authority based on objective principles, it relates only to his personal competence and performance on the job. On the other hand, the eligibility relates purely to the terms and conditions of service. Any right denied on the basis of eligibility or otherwise, can be challenged before the Service Tribunal."
15. The same point of eligibility and entitlement came for consideration before this Court in the case of Muttaqi Hussain Rizvi, supra, wherein it has been observed that eligibility mean only legally qualified to be promoted but does not mean entitle to or having a vested right to promote and a claim for promotion being not a vested right cannot be enforced through civil suit or even through writ proceedings. The observations made by this Court are usefully quoted herein below for the sake of convenience:--- "I am accordingly of the humble view that despite the enactment of the- Civil Servants Act, specifically providing how promotion is to be made to the higher posts and grades, a claim to promotion is not a vested right and cannot be enforced through a civil suit or even by invoking the Constitutional jurisdiction of the superior Courts. It may be pointed out that merely seniority, even in the case of a non-selection post, will not entitle a person to promotion, as even in such cases the basis of promotion is seniority-cum-fitness, and fitness can appropriately be determined only by the competent administrative authority. However, the right to be considered for promotion, where a person is eligible for promotion is a vested right and if the eligible person is not considered for promotion or a person otherwise qualified under the rules is promoted illegally or against the rules in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion been promoted through a civil suit or by invoking the Constitutional jurisdiction of the superior Courts since this matter is not within the purview of Service Tribunal."
16. The observations made by the Hon'ble Supreme Court in the case of Tasleem Jan and the observations made by this Court in the case of Muttaqi Hussain Rizvi, show that eligibility of the employee does not entitle him for his promotion in the next grade and the seniority-cum-fitness as well as allied qualifications necessary for the purpose of promotion in next grade are to be considered by the board for the purpose of promotion of an employee and for the purpose of claiming promotion the writ jurisdiction of the High Court could not be invoked. The observations in both the aforesaid cases are fully attracted to the circumstances of the present case.
17. After considering the material available before us as well as the relevant law on the subject, we are of the opinion that the petition has no merit and the same is hereby dismissed in limine alongwith listed applications. .