' SAYED ZAHID HUSSAIN, J.---Saleem Ullah Khan an Officer of Police Service of Pakistan has filed Criminal Original Petition No,47 of 2008 in C.A. No,1421 of 2006 which was decided by this Court on 15-8-2006 and Criminal Original Petition No,12 of 2009 in C.P.No,1842 of 2008 disposed of by this Court on 25-2-2009. In view of their inter se nexus, both the petitions are proposed to be disposed of through this order.
2. The petitioner claims to be a Senior Officer in the Police Service of Pakistan who has the grievance that he has unduly been deprived of his due promotions which prompted him to have resort to litigation qua his supersession on occasions. The long drawn litigation and orders passed by the Courts from time to time since are in the knowledge of the parties, reference thereto at the present is being avoided. In the context of the present controversy reference to judgment of this Court in Civil Appeal No,1421 of 2006 out of which Criminal Original No,47 of 2008 has arisen may be appropriate inasmuch as while disposing of that appeal on 15-8-2006 it was observed that:-- "the impugned order restraining the Selection Board to make selection of the officers from Grade 20 to 21 is not sustainable, therefore, impugned order is set aside and petition is disposed of with the observations that if ultimately caveator succeeds in getting relief, full effect shall be given to it in accordance with law." The present petitioner was respondent in the said appeal.
3. The other judgment which' need to be mentioned is of 10-11-2008 passed by the Lahore High Court, Lahore in Writ Petition No,10815 of 2008. In that the previous litigation and result thereof was taken note of and direction was issued to the competent authority:- "to issue the petitioner's promotion order and that too it be with effect from the date of the petitioner's eligibility."
' The said judgment was assailed by the Federation of Pakistan and other officials through C.P.L.A.
No,1842 of 2008. In that an undertaking was filed by the learned Deputy Attorney-General, Pakistan, in view thereof the same was disposed of on 25-2-2009 and it was observed as follows:-- "that case of respondent Saleem Ullah Khan will be considered in CSB within one month in accordance with the promotion policy of year, 2005. In view of above undertaking, instant petition is disposed of and CSB is directed to consider the case of respondent and decide the same within one month in, accordance with the promotion policy of year 2005. However, if respondent feels dissatisfied, he can approach this Court, again."
4. The Central Selection Board therefore met and considered the case of the petitioner on 28-3- 2009. The relevant part of the proceedings is as follows:-- "The promotion case of Saleem Ullah was again considered by the CSB on 28-3-2009. The Board was briefed that despite issue of said D.O. Letter dated 25-3-2009, the PER for the period (a) 1-1- 2006 to 21-10-2006 and (b) from 5-3-2008 to 20-10-2008 were still awaited. The Members of the Board discussed the case of Saleem Ullah in the light of available record and unanimously recommended him for supersession on the basis of criteria of excellence and comparative merit prevalent in 2005."
' It is thus evident that the petitioner was once again recommended for supersession.
5. The petitioner who has presented his case by himself states that he has not been dealt with fairly in the matter of his promotion and has indeed been victim of discrimination as officers junior to him having no better performance and involved in litigation have been given promotion whereas despite his eligibility and good performance, he has repeatedly been ignored/superseded.
According to him, even this Court's order dated 25-2-2009 has not been faithfully complied with and the case of his promotion has not been considered in its true perspective.
6. Ms. Nahida Mehboob Ellahi, the learned Deputy Attorney-General for Pakistan vehemently contests the matter and contends that as the case of the petitioner has been considered after passing of order dated 25-2-2009, there is no question of any contempt having been committed by the respondents.
7. We have considered the respective stance of the parties in the light of the material brought on record and the precedents on the subject. The legal position obtaining on the subject i,e, promotions of civil servants is fairly settled that in such like matters seniority/eligibility, alone is not the determining factor. In Syed Noorul Hasan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others 1987 SCM R 598 it was observed that:- "It will be for the competent authority to determine the suitability after an assessment of all relevant considerations such as seniority, competence, rectitude, annual confidential reports and none of which is less important than the other for the preservation of purity and efficiency in public service." In Zafar Ullah Baloch v. Government of Balochistan and others 2002 SCM R 1056, the view taken by this Court was:- "that promotion is not a vested right of a civil servant because it depends on eligibility-cum-fitness and if a person is eligible for promotion being senior in rank in the grade but is not fit to share higher responsibilities he would not be promoted to the next grade. Undoubtedly eligibility for promotion of the aggrieved person can be subjected to judicial scrutiny by the Service Tribunal because it relates to the terms and conditions of his service as it has been held by this Court in number of reported judgments. For ready reference reliance is placed on the cases of (i) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCM R 1129, (ii) Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539."
' In Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110. The matter of promotion and seniority of large number of civil servants arose before this Court the relevant discussion therein is as follows:- "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.
' 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/authority can assume the duties, which specifically have been assigned to the competent authority.
' The seniority is one of, the factors, 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 promotion all these factors, on case-to-case basis, are to be determined."
8. It is thus manifest beyond any doubt that promotion is not such a guaranteed right as anyone can claim or seek enforcement through a Court. The rationale behind seems to be the satisfaction of the ultimate competent authority in the. Hierarchy to which the civil servant may belong as the best judgment to determine the suitability of a particular person for the post vests with the competent departmental authority. Interference with an assessment made by the departmental authority is rarely interfered with by the Courts. Since the case of the petitioner was considered by the competent authority after the passing of the order by this Court on 25-2-2009, the matter would have ended at that but the petitioner herein, complains of being given discriminatory treatment as compared to other officials of his own Department. He has given instances of few officers against whom criminal cases had been registered and were facing trial before the Courts or facing enquiry before the National Accountability Bureau. It is also his grievance that at the time of consideration of his case the Central Selection Board on 25th and 28th March, 2009 was improperly composed, in which some of the officers who had been party to the litigation in his very matter of promotions participated, whose participation and disposition of the matter was unfair and fraught with anomalies and prejudices.
' The stance of the, petitioner has received our earnest consideration, which prima facie appears to have substance. It is trite position under the Constitution and law that similarly placed persons are entitled to equal treatment as discrimination has been abhorred by law and the Courts. In this context reference may be made to Zulfiqar-ulHussain and 19 others v. Oil and Gas Development Corporation 2003 SCM R 1115, where grievance of discrimination of like nature in matter of promotion was commented by this Court as follows:-- "Irrespectiye of the technical rival contentions on behalf of the parties on various issues we are satisfied that discriminatory treatment has been meted out to the appellant as well qua 14 other Assistant Accounts in EG-1, similarly placed as him, in the matter of grant of EG-III from a specified date."
' We find that while considering the case of the petitioner on 25th and 28th of March, 2008, the Central Selection Board acted without due application of mind in recommending his supersession.
No comparative assessm ent of merit was made with those junior officers who had been recommended/given promotion by ignoring or superseding the petitioner on flimsy grounds as is claimed by him. There also appears merit in his stance that the officers who had been party to the litigation against him could not have participated in the proceedings of the Board while considering his case for promotion. Fairness and justness is the hallmark of judicious consideration and determination of a matter which atleast can be a source of satisfaction to the person concerned that he has been dealt with justly fairly and in accordance with law. It would have been appropriate if the officers who had some interest in the case would have reclused of their own from the proceedings while considering his case.
9. The petitioner has also alleged mala fide against the respondents in declining him promotion time and again. Suffice it to observe that alleging mala fide is. Quite easy but to prove the same is equally difficult. Since specification of allegations are lacking in the instant case, we are unable to make any comment except to observe that public functionaries are supposed to be acting in good faith while performing their public functions and discharging their duties unless proved to the contrary.
10. In the order of 25-2-2009, (passed in C.P.No,1842 of 2008) it was left open for the petitioner to approach this Court again if he is dissatisfied. Though the respondent have purported to consider the case of the petitioner yet stricto sensu and in letter and spirit order dated 25-2-2009 has not been carried out or complied with, he has therefore approached this Court. The established position on the record is that the judgment of the learned High Court, Lahore in Writ Petition No,10815 of 2008 decided on 10-11-2008 was assailed by the Federation and others through C.P.No,1842 of 2008. In that an undertaking was given by the learned Deputy Attorney-General, Pakistan on the basis whereof the petition was disposed of on 25-2-2009. Needless to reiterate that the order of this Court is to be implemented and carried out by the respondents in letter and spirit as Article 190 of the Constitution of Islamic Republic of Pakistan, 1973 binds them to do so. We would therefore direct the respondents to consider his case in a just and fair manner by taking into consideration the point of view of the petitioner. Since the petitioner according to him is near the age. Of superannuation we expect that prompt steps will be taken for convening the meeting, so that his case is considered in the light of above observations.
The Criminal Original No,47 of 2008 in view of the latter orders has indeed become infructuous.
Criminal Original No,12 of 2009 is disposed of with the above observations.