SHAHID MUBEEN, J.--- Through this writ petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has called into question the legality and validity of order dated 06.04.2016 passed by respondent No,2/Chairperson, State Life Insurance Corporation of Pakistan.
2. Unnecessary details apart, the facts relevant for the disposal of this case are that the petitioner is a Sales Manager in the State Life Insurance Corporation of Pakistan. He is a contender for appointment through promotion to the post of Area Manager. In this regard, respondents set out a criteria for appointment of Area Manager from amongst the Sales Managers through notification dated 05.01.2001 which requires the Sales Managers to satisfy certain criteria for their promotion to the post of Area Manager. On 04.10.2011, the respondents issued a fresh notification changing the criteria for appointment of Area Manager from amongst the Sales Manager. The petitioner was aggrieved by the said change in the criteria for the appointment of Area Managers. The said policy/criteria was assailed by the petitioner before this Court through Writ Petition No,339/2012 which was allowed vide judgment dated 29.01.2013. Thereafter, the petitioner filed a Criminal Original No,1127-W/2013 for implementation of said judgment which was dismissed as withdrawn vide order dated 14.10.2014 as the respondents preferred an Intra Court Appeal No,181/2013 before this Court challenging the vires of judgment dated 29.01.2013. The said ICA was dismissed vide judgment dated 14.10.2014. The petitioner again filed Criminal Original No,2530-W/2014 which was disposed of vide order dated 16.03.2015 as the respondents had passed the order dated 16.03.2015 whereby they refused to appoint the petitioner as Area Manger while holding that he secured 03 marks out of 10 marks in interview. The petitioner again challenged the said order dated 16.03.2015 before this Court through Writ Petition No,8852/2015 which was disposed of vide order dated 10.03.2016 after recording statement of learned counsel for the respondents that the case of the petitioner for promotion as Area Manager will be considered within a period of one month. In consequence thereof, the respondents vide impugned order dated 06.04.2016 has held that petitioner is not fit for promotion from Sales Manager to Area Manager on the basis of his performance. Hence, this writ petition.
3. It is contended by the learned counsel for the petitioner that petitioner fulfills the entire criteria in figures for promotion as Area Manager; that petitioner passed examination with excellent performance but was failed in interview with mala fide intention; that there is no example that a person who passed examination in excellent performance has been ordered to be failed in interview which is nothing but victimization of the petitioner at the hands of respondents- department; and that respondents-department has refused to promote him as Area Manager by holding that he secured 03 marks out of 10 marks in interview, which is mala fide on the part of respondents' department.
4. Conversely, learned counsel for the respondents-department contends that impugned order has been passed by competent authority; that petitioner has concealed the order dated 08.04.2015 passed by Hon'ble Supreme Court of Pakistan in Civil Appeals Nos,1149/2013 and 32/2015, therefore, he is not entitled for any discretionary relief; that impugned order has been passed as a result of order dated 08.04.2015 passed by the Hon'ble Supreme Court of Pakistan referred to above, wherein it was ordered that the petitioner shall be treated in accordance with the terms as set out in the memorandum letter dated 04.10.2011; that this petition is not maintainable as petitioner has earlier filed Writ Petition No,8852/2015 which was disposed of; and that petitioner failed to give exact reply to questions put to him by the competent authority.
5. Heard. Record perused.
6. The petitioner has been denied promotion by way of impugned order dated 06.04.2016, the operative part of which is reproduced herein below:- "Mr. Ansar Khan, Sales Manager-733712 Lahore (C) Zone has not fulfilled the criteria for promotion/appointment as Area Manager circulated vide letter dated 04.10.2011 referred to in above order dated 10.03.2016 of Lahore High Court, Lahore. His deficiencies against the criteria are as follows: S.No. Heading of promotion for Area ManagerMinimum requirement as per criteriaAchievement by the petitionerDeficiency
1. Minimum twenty five sales representatives must have completed FYP Quota of Rs,97,656/- each in preceding year.25 21 4
2. Completion of at Least 75% FYP Quota of "A"
Category in 2011. (quota was Rs,87,89,063/-)Rs.65,91,797/- (75% Rs,87,89,063)Rs.45,40,012/- Rs.20,51,785/-
3. No. of Policies: Minimum 325 new policies in preceding year on different lives.325 237 88 In view of above facts the case of Mr. Ansar Khan, petitioner is not fit for promotion from Sales Manager to Area Manager on the basis of his performance as at 31.12.2011. The compliance of order dated 10.03.2016 may be reported to Hon'ble Lahore High Court Lahore accordingly.
The impugned order dated 06.04.2016 has been passed by competent authority. It is not the case of the petitioner that impugned order has been passed by incompetent authority. The competent authority while passing the impugned order has given cogent reasons and has declined promotion to the petitioner on the basis of criteria set out in the memorandum letter dated 04.10.2011. It is an established principle of law that this Court cannot substitute the findings of the competent authority. Reference may be made to the case law reported as "Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others" (2008 SCMR 960). Relevant portion of the judgment is reproduced herein below:- "Needless to observe that in exercise to perform of constitutional jurisdiction, the High Court was not expected to perform the functions of a Selection Authority in service matters so as to substitute its opinion for that of a competent authority."
' Further reference may be made to the case law reported as "Ms. Shabnam Irshad Ahmed and others v. Muhammad Muneer Malik and others" (2016 SCMR 2017). Relevant portion of the judgment is reproduced herein below:- "Yes, the High Court could not substitute its own view for that of the Board but it could turn down a conclusion based on a wrong arithmetical calculation. When seen in this background the view taken by the High Court appears to be unexceptionable. We, therefore, don't feel inclined to interfere therewith."
7. The argument of learned counsel for the petitioner that the petitioner was declined the promotion on the ground that he obtained 03 marks out of 10 marks in interview, which was vehemently denied by learned counsel for the respondents-department, therefore, this brings the B case of the petitioner within the area of disputed question of fact which is not the domain of this Court.
8. It is also an established principle of law that mala fide is of two kinds: (1) mala fide of law and (2) mala fide of fact. In this case mala fide attributes to the respondent department which can only be resolved by recording of evidence, which is not the domain of this Court.
9. I have also gone through the entire writ petition in which petitioner has not mentioned the order dated 08.04.2015 passed by Hon'ble Supreme Court of Pakistan in Civil Appeals Nos,1149/2013 and 32/2015, therefore, he is guilty of concealment of fact. As the petitioner has concealed the material fact from this Court by not mentioning the said order passed by Hon'ble Supreme Court of Pakistan, therefore, he is not entitled for any discretionary relief. Reference may be made to the cases titled as "Kamran Hanif v. Bilqees Bano and others" (2010 YLR 1665), "Messrs Trade Lines through Managing Partner and others" (2002 CLD 1776), "Lahore Development Authority through Director General LDA. Lahore v. Mst. Shamim Akhtar and another" (2003 MLD 1543).
10. It is an established principle of law that promotion is not the vested right of the petitioner, however, to be considered for promotion is the inalienable right of the petitioner. He was considered for promotion and the same was declined by the competent authority. Reference may be made to the case law reported as "Zafar Ullah Baloch v. Government of Balochistan and others"
(2002 SCMR 1056). Further reference may be made to cases reported as "Muhammad Afzal Khan v.
Government of Punjab through Secretary to Government of the Punjab C&W Department and another" (2009 PLC (C.S.) 40).
11. As the right of promotion is not the vested right of the petitioner, therefore, writ petition is also not competent on this score alone. Reference may be made to the case-law reported as "Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, Lahore and 4 others" (PLD 1969 Supreme Court 599). Relevant portion of the judgment is reproduced herein below:- "29. What is a vested right? According to the Oxford English Dictionary, "vested" means "clothed, robed dressed especially in ecclesiastical vestments . . . Vested rights essentially differ from rights which are contingent .. . . That is, completely created . . . Vested interests may perhaps be defined as rights based not upon contract but upon custom". A close examination of these meanings and explanations reveals that vested right is free from contingencies, but not in the sense that it is exercisable anywhere and at any moment. There is hardly any right which can be so exercised.
There must always be occasions at which and circumstances under which they may be exercised.
Those occasions and circumstances do not constitute contingencies, but are the peculiar characteristics of /hose rights. For instance, the right to cross -examine (not to re-cross-examine) a witness is a vested right, although the occasion for exercising it arises only if the witness says or has said something unfavourable and often after his examination-in-chief is over. The occasion to cross-examine may not arise or may not be exercised-but the right is not to be denied. The following discussion of the connotations of "vested rights" by J.G. Sutherland in his book on "Statutes and Statutory Construction," Vol. 2, Art.2205, is helpful in clarifying the above thought:- "It is impossible to assign precise meaning to the term (vested right) for any attempt results only in conflict in the decisions. By 'vested right' can be meant no more than those rights which under particular circumstances will be protected from legislative interference (unless it is clearly intended). But as it is a right which vests upon equities, it has reasonable limits and restrictions: it must have some regard to the general welfare and public policy, it is not a right which is to be examined, settled and depended on a distinct and separate consideration of the individual case, but rather on broad and general grounds which embrace the welfare of the whole community and which seek the equal- and impartial protection of the interest of all."
Further reference may be made to case reported as "The Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmad Khan" (PLD 1960 SC 81).
12. Sequel to the above, this writ petition being devoid of any force is dismissed by upholding the impugned order dated 06.04.2016 passed by respondent No,2. No order as to cost.