' FAKHARUDDIN H. SHAIKH, J.-- The petitioner who is serving as a Line Superintendent Grade-I in WAPDA (hereinafter referred to as the Authority), has filed this constitutional petition praying, inter alia, for following reliefs: --
(a) To declare that the petitioner is entitled to pro forma promotion from Line Superintendent Grade-1 to Junior Engineer/S.D.O. With effect from 5-12-1978 with all the past service benefits including emoluments, arrears, seniority, pension, gratuity, etc. Arid that the petitioner was entitled to work as Junior Engineer since then; and
(b) any other appropriate remedy or direction available to this humble petitioner under the above circumstances of.The case, may also kindly be granted.
2. The facts of the case are that the petitioner was appointed as Line Superintendent Grade-II vide order, dated 3-6-1960. He was promoted as Line Superintendent Grade-I on 26-10-1962. At the time of filing this petition his number in the seniority list of the Line Superintendents Grade-I was at S. No,
336. It has been stated in the petition that 25 per cent posts of Junior Engineers have been reserved for the senior Line Superintendents on the basis of seniority-cum-fitness. The claim of the petitioner is that according to his seniority, he was entitled to be promoted in the 25% quota without complying with the requirements of departmental examination. His grievance is that respondents 5 and 6, who are at Serial Nos, 341 and 342, respectively in the seniority list, have been promoted as Junior Engineers, vide order, dated 5-12-1975. Subsequently even the Line Superintendents upto Serial No, 374 were also promoted as Junior Engineers, ignoring the claim of the petitioner. The petitioner made several representations against the omission of the Authority to consider his case for promotion, but no reply was received.
3. The promotions of respondents Nos, 5 and s, who were admittedly junior to the petitioner, were made subject to the condition that the seniority of the petitioner shall not be affected and that they shall have to pass the examination prescribed as a condition precedent for promotion as Junior Engineers in Grade-16. The case of the petitioner was not considered because his 'confidential Reports' and the inquiry position were not available on 5-12-1978 when respondents Nos, 5 and 6 were promoted. However, subsequently the A.C.Rs, and the inquiry position were available, still his case for promotion was not considered, while persons who were junior even to respondents No, 5 and 6, were promoted upto Serial No, 374.
4. The petitioner has further claimed that his case for promotion has also been cleared by the Selection Board and that according to his A.C.Rs, his performance has been "good" and "very good".
It is admitted that all employees of the Authority have been declared as Central Government servants. Hence no appeal to service Tribunal is competent in respect of promotion or fitness for promotion as such the constitutional petition was the only remedy for him. In para. 16 of his petition the petitioner states as under:-- "16. That on 28-5-1983 when the petitioner was put incharge of the Sub-Division, he again served a grievance notice upon the respondent No, 3 but no decision or action has been taken so far. Now the respondents i,e, the Authority is contemplating to revert the petitioner to the Line Superintendent Grade-I as transfers and postings are being issued, hence this humble petitioner submits this petition as there is no efficacious, speedy and alternate remedy available to him in law."
' He has not so far been demoted, but his claim is that he should be granted pro forma promotion w,e,f, 5-12-1978 on which date his juniors i,e, respondents Nos, 5 and 6 were promoted. Preliminary objections were filed on behalf of respondents Nos, 1 to 4 alleging that promotion being not a guaranteed right of an employee, the petitioner cannot seek promotion as Junior Engineer. It was further alleged that promotion as Junior Engineer has always been subject to passing the departmental examination and that the petitioner had not fulfilled this condition in spite of several opportunities having been afforded to him during the period 1979 to 1982. It is, however, admitted that in the year 1983 the condition of departmental examination for promotion was waived. A photostat copy of such notification has been filed which is, dated 11-10-1983 and reads as under:- ' In pursuance to an agreement reached between Pakistan WAPDA Hyderoelectric Central Labour Union, Lahore and M.D. (P) on demand No, 5(ii), which has been approved by the Authority as communicated, vide Endorsement No,DLW-09623/PF/Vol-VII11477-594, dated 26-9-1983 of Director, Labour & Welfare, WAPDA it is decided that 25% senior most upper subordinates having 10 years satisfactory service may be placed in Grade-16 without process of examination. However, promotion to N.P.S. 17 will be subject to passing of the Departmental Examination."
' According to the above notification, future promotion to Grade 16 was not subject to process of examination. However, promotion to Grade 17 continued to be subject to the above requirement.
The case of the petitioner is that he is entitled to be promoted only to Grade 16 and not to Grade-17 and, therefore, after the above notification, there was no reason for the Authority not to grant pro forma promotion from 5-12-1978 to him.
5. Respondents Nos, 1 to 4 have further stated in their objection that all the persons who are junior to the petitioner and who have been promoted as Junior Engineers have passed departmental examination which were held five times during October, 1979 to October, 1982. Thus the petitioner had plenty of chances to clear examination to become eligible for placement to Grade-16 and then promotion to Grade-17.
6. In their objections the respondents Nos, 1 to 4 have not stated anything about the representations made by the petitioner. The inference is that the representations are still pending.
7. Mr. Riaz Ahmed learned counsel for the petitioner has referred to several decisions in support of his claim. The first decision relied upon is S.H.M. Rizvi and 5 others v. Maqsood Ahmad and 6 others PLD 1981 SC 612. The facts of this case were that the respondents had made representations to the competent authorities, but the same were not disposed of by them. The respondents, therefore, filed appeals against the appellants before the Tribunal which allowed the appeals. The appellants then took the case to Supreme Court in appeal, which was allowed and the judgment of the Services Tribunal was set aside with following observations:-- "13. The Civil Servants (Appeal) Rules, 1977 enforced on 1st January, 1977, read alongwith section 22 of the Act exhaust the remedies available to a Civil Servant for redress of the grievances within the Department. It is either a right of appeal or a right to make a representation. In cases where the departmental authorities procrastinate or contumaciously refuse to pass a final order, as appears to have happened on the objection of the respondent (for the objection filed in 1976 remains to date undisposed of and the provisional list that was issued in 1976 is yet to be finalized) the remedy for the aggrieved Civil Servant is to represent to the next higher authority and after waiting for a reasonable time to seek Constitutional remedy for a direction to the departmental authority to perform a duty enjoined upon it by law. The Service Tribunal being statutory forum with restricted jurisdiction cannot in the absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants". The above decision does not help the petitioner, because his representation is still pending before the Authority and this Court can at the most direct the Authority to dispose of the representation of the petitioner in the light of the notification of 1983 referred to above.
8. The next case relied upon is Sahibzada Fariduddin Ahmed v. The Province of Punjab and another PLD 1976 Lah.
1310. In this case it has been held by a learned Single Judge of Lahore High Court that promotion to higher rank cannot be demanded by way of right, but the aggrieved person has a vested right to demand that his case for promotion should be decided. This case is also not helpful to the petitioner, because what he has prayed in the petition, is a declaration that the petitioner is entitled to pro forma promotion to the post of Junior Engineer/S.D.O. w,e,f, 5-12-1978. This Court, in view of the above decisions, cannot grant this declaration to him. At the most this Court can give a direction to the Authority to dispose of the representation of the petitioner.
9. The next case relied upon is Attaullah Mehr v. Punjab Government 1983 CLC 2903. In this case a learned Judge of the Lahore High Court held that every functionary and body, whether administrative or judicial or quasi-administrative or quasi-judicial is required to deal with all applicants before it fairly, justly and equitably and that an applicant has a legal right to demand that such functionary or body should determine matter in accordance with law governing the subject. These observations also do not help the petitioner so far as his prayer (a) for declaration is concerned. It has not been held in the above decision that the Court should give a direction to the functionary to promote an applicant to a higher post. According to the above decisions, this Court can only give direction to the Authority to consider the representation of the petitioner in respect of his promotion and decide it fairly, justly, equitably and according to law.
10. In the case of Abdul Jabbar Khan v. The Director, P.C.S.I.R. Laboratories, Peshawar University and others 1984 SCMR 213, the Supreme Court has held that as a general rule promotion of an officer is a matter within exclusive discretion and judgment of competent authority and no officer has a vested right thereto. The facts of this case were that a criteria was laid down by the P.C.S.I.R. For promotion of Research Officers. The petitioner did not challenge the vires of the criteria, nor any discrimination against the petitioners was pleaded. It was, therefore, held by the Supreme Court that the petitioners were not entitled to claim promotion since the criteria laid down for promotion was not challenged before the High Court. It may be stated that in the above case a criterian for passing of M.Sc. Examination in second division was laid. The petitioner in the above case had passed M.Sc. Examination in third division. Therefore, he was not promoted as Research Officer, but his juniors who had passed M.Sc. Examination in second division, were promoted on the above ground. It was held that the petitioner was not entitled to a declaration that he should be treated at par with his juniors who had passed M.Sc. Examination in second division and superseded him by being promoted to the post of Research Officer. This decision explains why the petitioner in the present case was not promoted upto October, 1983, when the notification giving the requirement of departmental examination, was issued. All the officials junior to the petitioner, who were promoted as Junior Engineers had passed departmental examination before the issuance of this notification.
The petitioner had failed to pass this examination in spite of five opportunities available to him upto 1983. These facts are uncontroverted. Hence at least upto October, 1983 the petitioner was not entitled as of right to be promoted to the post of Junior Engineer. So far as his promotion after the issuance of the said notification is concerned, this Court can only give a direction to the Authority to consider his case according to law.
11. Mr. Riaz Ahmad learned counsel for the petitioner has also relied on the case of Muhammad Ishaq v. Sarhad Development Authority and others 1984 CLC 126 in which a Division Bench of Peshawar High Court held that order of promotion of a petitioner creates vested right in him and, therefore, such order cannot be rescinded without show-cause notice to such person. It is not understood how this case is applicable to the facts of the present case, where the petitioner has been demoted after being promoted to a post. He has simply sought a declaration that he is entitled to promotion to a particular post, from a particular date.
12. In the case of Khalilur Rehman and others v. Government of Pakistan and others PLD 1981 Kar.
750 a Full Bench of this Court made following observations in respect of right of a person to obtain declaration from a Court for being promoted to a particular post:-- "Fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher post is a matter which in the very nature of things is not liable to be regulated by any rules or regulations, but depends upon the judgment and opinion of the competent authority required to determine the same. Often such opinion is dependent upon imponderables not capable of objective examination or review by another authority. Such opinion may be based on a variety of considerations. It was, therefore, rational for the law-maker to clarify that no appeal shall lie against a decision of such nature. It is not difficult to see why no right of appeal has been provided against a decision determining the question of fitness or otherwise of a person to be appointed to a particular post or to be promoted to a higher post or grade. In Pakistan it is Well-settled that no person has a vested right to an initial appointment to a particular post or to be promoted to a higher post. These matters lie within the domain of prerogative right of the Government to select persons found suitable to their satisfaction for appointment or promotion. It is the absolute discretion of the competent authority in the Government whether to appoint or to promote to higher post any person because once the appointment or promotion is made, the incumbent may acquire vested service rights vis-a-vis Government. The fitness of a person to 'hold' a post has been bracketed with appointment or promotion. No person in Government service has ordinarily been recognized to have a right to hold a 'particular' post. The word 'particular' very significantly used in this clause limits the scope of the clause so far as the decision relevant to the fitness, or otherwise of a person to hold a post is concerned. Section 10 of the Civil Servants Act stipulates as one of the conditions of service of a civil servant that he shall be liable to serve anywhere or outside Pakistan, in any post under the Federal Government, or any Provincial Government or Local Authority, or a corporation or a body set up or established by any such Government. It, therefore, follows that if the competent authority takes a decision with regard to fitness or otherwise of an incumbent to hold a particular post, such decision by itself does not infringe any of the terms and conditions for his service, as long as none of his other service rights is affected."
The above observations completely shatter the case of the petitioner, who has no vested right to get a declaration from this Court that the Authority should promote him to a particular post.
13. In the case of Muhammad Suleman Khan v. Pakistan 1972 SCMR 127 the petitioner claimed a declaration for promotion on the ground that under the old rules he had passed the departmental examination and as such acquired a vested right vis-a-vis the respondent who had passed qualifying examination but were promoted under a new altered policy. The petition was dismissed by the Supreme Court with the following observation:-- "It is obvious that the mere fact that the petitioner has passed the qualifying examination at the time when the system of examination for promotion was in vogue, did -not create any vested right in the petitioner for promotion as Deputy Superintendent. If the Central Board of Revenue has since altered the channel of promotion, the petitioner cannot make a legitimate grievance of it as an infringement of any legal right amounting to alteration in the terms and conditions of his service.
As no right has vested in the petitioner for promotion by his having passed the examination under the old system he cannot ask for the enforcement of the right, and his petition was, therefore, rightly dismissed by the High Court. It seems that in effect the petitioner is claiming seniority over respondents Nos, 4 to 11 on the ground of his having passed the qualifying examination, which the respondents had not. His effort to achieve that object by means of a writ petition in the High Court was entirely misconceived."
' It is not understood how the above observations can be pressed into service by the petitioner in obtaining a declaration as prayed for in his petition.
14. In the case of Mian Amanul Mulk v. N.-W.F.P. PLD 1981 Pesh. 1, it was held by the Full Bench of the Peshawar High Court that the powers of the High Court under Article 199 of 1973 Constitution were very limited, which did not empower the High Court to go beyond the tight corners of the said Article, nor the High Court would interfere with order of the authority unless made without jurisdiction or lawful authority. It was further held that High Court cannot interfere with discretion exercised by any Government or local authority unless some provision of Constitution or law is shown to have been violated or principles of natural justice have not been observed.
15. Mr. Riaz Ahmed has argued that there had been a clear case of breach of principle of natural justice in so far as the authority had discriminated against him vis-a-vis his juniors who have been promoted. The plea of breach of principle of natural justice is not available to the petitioner, because upto October, 1983, there was no breach of any principle of natural justice. His promotion was withheld on the ground that he had not passed departmental examination. He could have claimed a promotion from the date of notification when the condition of departmental examination was waived. But this would not entitle him to claim seniority over those who were promoted earlier after having complied with the requirement of departmental examination.
16. The conclusion, therefore, is that the petition must fail for the reason that the petitioner has not acquired any vested right to be promoted to a senior post vis-a-vis his juniors who have been promoted on account of complying with the departmental requirement of examination.
17. This petition must also fail for the reason of lathes. The grievance accrued to the petitioner on 5- 12-1978, when respondents Nos, 5 and 6 were promoted. The present petition has been filed on 26- 6-1983, i,e, even before the notification, dated 11-10-1983 was issued by the authority. Thus on the date of filing of this constitutional petition, no vested right to promotion had accrued to the petitioner as held in the several decisions cited above.
18. The petition is liable to be dismissed for the further reason that the last person promoted at serial No, 374 is liable to be affected in case the relief prayed for by the petitioner is granted to him.
Pro forma promotion of the petitioner from a back date would necessarily result in the reversion of the last promotee. Hence no relief can be granted to the petitioner without hearing the said last promotee who has not been impleaded as a party in this petition.
' For the above reasons we hold that there is no substance in this petition, which is dismissed but with no order as to costs. While parting with this case we may, however observe that the authority shall consider the representations of the petitioner for promotion according to law and without any discrimination.