' FAIZ 'MUHAMMAD KHAN, J.-Abdul Latif Awan, petitioner herein, was a member of Local Council Service having joined its predecessor-Service on 23-2-1953. While at the time he filed this writ petition he was working as Chief. Officer, District Council, Peshawar, but now he stands retired, as we were informed by his learned counsel. In the year 1967 he was working as Chief Officer District Council, Hazara, wherefrom, by order, dated 13th May, 1967, he was transferred and posted as Chairman, Municipal Committee, Abbottabad, which charge he took over on 17th May, 1967. The order by which this transfer took effect did not mention about promotion of the petitioner to a higher post. It rather contained a rider that he and the other Officers involved in the order were 'to continue to draw pay in their present scales'. By order, dated 8th March, 1969, however, he was formally promoted from Class-II to Junior Class-I. The order took effect from the date mentioned above and the petitioner remained appointed against the same post (Chairman, Municipal Committee, Abbottabad). The two orders mentioned however, modified by the Provincial Government, by a notification issued on 30th April, 1977 predating the aforesaid promotion of the petitioner to 17-5-1967, the date on which he had actually taken over charge of the post of Chairman, Municipal Committee, Abbottabad. He was subsequently promoted to Grade-18 and was posted as Chief Officer, Municipal Committee, Peshawar wherefrom he was transferred to District Council, Peshawar and posted against a Grade-17 post, by order of the Provincial Government, dated 27th April, 1978. This order aggrieved him and to redress his grievance the petitioner has filed this Constitutional petition claiming therein that since by predating his promotion to Junior Class-I he had become senior to respondents 2 and 3 herein, so on that basis the promotion of respondent No, 2 to Grade-18 earlier than him was wrong and needed to be corrected in that in place of respondent No, 2 he should be promoted to Grade-18 with effect from the date respondent No, 2 was so promoted. It may here also be mentioned that the petitioner herein, upon his posting as Chairman, Municipal Committee, Abbottabad, had instituted a civil suit against the Provincial Government wherein he had claimed that with effect from the date he had assumed charge of the said post he was entitled to draw pay scale of Junior Class-I, which suit was dismissed by the then Civil Judge, 1st Class, Peshawar, appeal against which was said to have abated in the year 1974 upon promulgation of the N.-W. F. P. Services Tribunal Act, 1974. The petitioner then tried his luck before the Services Tribunal but his appeal was dismissed on 13-9- 1976 for the reason that the appellant (petitioner herein) was not a civil servant within the meaning of the relevant Acts.
2. The writ petition has been contested by all the respondents who filed separate written statements in Court. Mr. Atiqur Rehman Qazi, Advocate appeared on behalf of the petitioner, Mr. Amirzada Khan, Advocate-General appeared on behalf of respondent No, 1 and Mr. Raza A. Khan, Deputy Attorney-General/Advocate appeared on behalf of respondent No,
3. Their arguments were heard and the record perused with their assistance.
3.The contention of the learned counsel for the petitioner was that after the petitioner's promotion to Junior Class-I was predated to 17-5-67, by a notification issued by the Provincial Government, he became senior to respondents 2 and 3 and on that basis, having gained requisite seniority over respondents 2 and 3, he became eligible to be promoted to Grade-18 with effect from the date his next junior (respondent No, 2) was promoted, which date, according to the learned counsel, was 5- 8-73. The learned counsel contended that since the petitioner was also promoted to Grade-18 subsequent to respondent No, 2, it would be assumed that his record was such that he merited promotion to Grade-18 and that for that reason, he should have been promoted to Grade-18 from the date respondent No, 2 was promoted to that grade. The learned counsel further argued that the Provincial Government's notification dated 27th April, 1978, transferring the petitioner from the post of Chief Officer, Municipal Committee, Peshawar to that of Chief Officer District Council, Peshawar against Grade 17 post amounted to reversion of the petitioner to a lower grade without any cause and that this action of the Provincial Government being illegal merited to be disturbed.
The learned Advocate-General, however, argued that the notification issued by the Provincial Government predating the promotion of the petitioner to Junior Class-I was only to allow him the benefit of the pay because he had already worked against a post of higher responsibilities and that this promotion did not confer on him the right to become senior to respondents 2 and 3 who were undisputedly Senior to him in service. He contended that the subsequent orders dated 21st June, 1977 (Annexures 'D' and 'E' to the writ petition) made by the Provincial Government would clearly show that the intention behind the notification dated 3uth April, 1977, was to benefit the petitioner in the matter of drawal of higher pay since he had worked against the post of higher responsibilities. He contended that the notification of 30th April, 1977, was to be interpretted in that sense and it did not have the effect of disturbing the undisputed seniority of the respondents 2 and 3 over the petitioner. The learned Advocate-General also contended that the petitioner could not claim promotion to Grade-18 as of right, nor through institution of the Court and that his promotion Grade-18 having been made by notification dated 22nd February, 1977, of the Provincial Government on temporary basis and for the period he held the post of Chief Officer, Municipal Committee, Peshawar, which post carried NPS No, 18, he could thereby neither claim seniority over respondents 2 and 3, nor could have any grievance on its basis when on relinquishing the charge of the post of Chief Officer, Municipal Committee, Peshawar he was directed, by notification dated 27th April, 1978, of the Provincial Government, to take over charge of the post of Chief Officer, District Council, Peshawar in NPS No,
17. The learned Advocate representing respondent No, 3 adopted the arguments of the learned Advocate-General.
4. We have carefully considered the arguments of the learned counsel for the parties. We agree with the learned Advocate-General that the notification dated 30th April, 1977, issued. By the Provincial Government predating the promotion of the petitioner to Junior Class-1 was issued with a view to providing him the benefit of the pay and allowances of higher grade because he had already shouldered the responsibilities of higher post. Had this notification not been issued, he would have continued to remain deprived of the pay and allowances of higher grade, though having already performed duties of the post in higher grade. That notification in no way meant to confer on him seniority over his colleagues who were otherwise A senior to him in service. We are further of the view that the appointment of the petitioner as Chairman, Municipal Committee, Abbottabad and his subsequent promotion to cover that appointment, in order also to help him to gain monetary benefits, being in the public interest did not adversely affect the interest of his seniors in the fixation of his seniority in that grade in view of Explanation-I to sub-rule (1) of rule 14 of the West Pakistan Local Councils and Municipal Committees Service Rules, 1963. Further, the record would show that Mr. Laiq Khan (respondent No, 2) was promoted by the Provincial Government to Grade-I8 on regular basis against a substantive vacancy of the Chief Officer, Municipal Committee, Peshawar, by notification dated 3rd September, 1975 (Annexure 'AA), against which post he was later confirmed with effect from the said date, by notification dated 5th March, 1977, issued by the Provincial Government (Annexure 13.13'). This had happened much earlier than the notification of the 30th April, 1977 issued by the Provincial Government predating the promotion of the petitioner to a lower grade. The petitioner had not challenged the notification of 1975 when it was issued, nor had then the right to do so, being junior in service. The subsequent event of his promotion to a lower grade with retrospective effect, in our opinion, could not be permitted to B defeat or affect the rights of a person who, had in the meantime moved to higher grade. The petitioner was later temporarily promoted to Grade-18 by a notification dated 22nd February, 1977, issued by the Provincial Government, attached to which was a condition that he would remain so promoted so long as he held the post of Chief Officer, Municipal Committee. Peshawar, which post was in NPS No,
18. The petitioner continued to draw the benefits attached to Grade 18 on the strength of this notification and remained posted as such until he was transferred from that post and appointed as Chief Officer, District Council, Peshawar against a Grade 17 post. The conditional and temporary promotion of the petitioner, through notification of 22nd February, 1977, to Grade 18 being in the nature of a stopgap arrangement did neither, in our opinion, confer on him the right to become senior to his seniors, nor to retain that grade, nor to retain that post as under rules a local Council servant could be transferred and appointed against any post belonging to that service. He could not, therefore, have any grievance against the order, dated 27th April, 1978, made by the Provincial Government transferring him and posting him as Chief Officer, District Council, Peshawar against a Grade 17 post. We are also in full agreement with the learned Advocate-General that promotion to a higher grade is not a vested right of any Local Council servant, nor can promotion to a higher post grade be claimed by any Local Council servant through Court. All that the Court can do is to direct competent departmental authority, in an appropriate case, to consider the servant concerned for promotion; ultimate decision to actually promote him or not in the light of his record, however, resting with that authority. No illegality appears to have been committed by the Provincial Government in this case.
5. For the -reasons aforesaid, we find no merit in this writ petition, which is hereby dismissed. We would, however, maize no order as to costs.