' Shah Abdur Razzaq Gillani, the petitioner herein, joined West Pakistan Agricultural Development Corporation as Assistant Agricultural Engineer on 1-12-1967 and was later on selected by the N.- W.F.P. Public Service Commission as Agricultural Engineer on 16-10-1974. The post of Director Agricultural Engineering in BPS-19 fell vacant on 5-1-1986. The charge of the post was temporarily given at the first instance to one Mr. Gul Shaheen Shah and later to Mr. Abdul Wahab but finally Mr. Muhammad Arif Khan, respondent No,4, an officer two steps junior to the petitioner on the seniority list, was appointed as Director Agricultural Engineering on temporary basis, as stopgap arrangement vide an order dated 4-5-1987. This action was called into question by the petitioner before the Service Tribunal in appeal but the same was rejected vide judgment dated 26-3-1988.
The efforts of the petitioner in this behalf also proved abortive when his petition for special leave to appeal before the Supreme Court met the same fate.
2. Meanwhile the petitioner was granted move-over from BPS-18 to PBS-19 vide a notification dated 3-8-1989 effective from 1-12-1985. Hardly about three months later, respondent No,4 on the recommendation of the Provincial Selection Board, was promoted from BPS-18 to BPS-19 and ordered to "continue on his present assignment" vide a notification dated 1-11-1989.
3. The petitioner has invoked Constitutional jurisdiction of this Court by way of this writ petition seeking a declaration to the effect (i) that the notification dated 1-11-1989, having been issued by the Provincial Government mala fide, is as such without lawful authority and ineffective upon the rights of the petitioner and (ii) to direct the respondents Nos.1 to 3 to notify the petitioner as Director Agricultural Engineering N.-W.F.P., instead of respondent No,4.
4. We have heard Mr. Abdul Qadir Khattak, Advocate, learned counsel for the petitioner, Mr. J.D.
Akbarji, learned Advocate-General for respondents Nos.1 to 3 and Mr. Nasirul Mulk, Advocate learned counsel for respondent No,4 at length and also perused the available record with considerable degree of care.
5. It is vehemently argued on behalf of the petitioner that the whole exercise, as a result whereof the respondent No,4 has been appointed as Director Agricultural Engineering, ignoring the petitioner, was tainted with mala fides inasmuch as at the first instance the post was kept vacant for almost four years by making temporary appointments of various officers thereto and finally the petitioner has been made a victim of circumstances by giving the temporary charge of the post to respondent No,4 and, later on, regularising his appointment vide the impugned notification on the ground of his (petitioner's) "indifferent record of service". Dilating on this expression, he brought to our notice the fact that the sole adverse entry in his A.C.R. Was made by respondent No,4 in the year 1988 when both of them were serving in the same Basic Pay Scale-18 which had no factual or legal validity attached thereto but has weighed with the Provincial Selection Board, respondent No,2 herein, while making recommendations for the appointment to the post of Director Agricultural Engineering, though the same drawback, if it can be called so, was not deemed a matter of hindrance, when considering his case for move-over from BPS-18 to BPS-19. The learned counsel thus contended that in the context of the above, the so-called "indifferent record of service" could not be used as a lever to keep him at bay and the action of respondents 1 to 3 in this behalf, being manifestly mala fide, renders the impugned notification to be one without lawful authority and as such liable to be struck down. He further prayed for issuance of direction to the aforesaid respondents to notify the petitioner as Director Agricultural Engineering, N.-W.F.P.
6. As against this the learned counsel for respondents 1 to 3 maintained that while promotion is not a vested right, the appointment to a specific post is least a right which can be claimed or enforced by a civil servant. He contended that the mala fides attributed to the Provincial Government (respondent No,1), or, for that matter, Provincial Selection Board (respondent No,2) requires very strong proof in its support which is hardly coming forth in the instant case. In this regard he referred to the A.C.R. Of the petitioner for the year, 1988, which, irrespective of having been recorded by the respondent No,4, was represented against by the petitioner and the competent authority, after examining the matter, turned it down and the adverse remarks were upheld. He however, produced before us the proceedings of Provincial Selection Board and, in this context, submitted that the A.C.R. Alone was not that weighed with the respondent No,2 to recommend respondent No,4 for the post of Director, Agricultural Engineering inasmuch as alongwith the petitioner and respondent No,4, were recommended three more seniormost Agricultural Engineers of the Agricultural Department, whose cases were examined. A comparative statement of their merits discloses that respondent No,4 was the best of all the five candidates and as such was recommended accordingly. Learned Advocate-General, therefore, contended that the recommendations of the respondent No, 2, having been objectively made, cannot be said to have been suffering from any element of mala fides as alleged by the petitioner. He, therefore, urged that the petition, being without any substance is liable to dismissal.
7. Defending the action of the respondents 1 to 3 which culminated in the impugned notification, whereby respondent No, 4 was not only promoted to BPS-19 but was also ordered to continue on his assignment as Director Agriclutral Engineering, Mr. Nasirul Mulk, the learned counsel for respondent No, 4 submitted that the petition is misconceived in so far as the claim of the petitioner to be treated at par with respondent No, 4 on the basis of their present basic scales of pay; inasmuch as while the petitioner has been moved-over to BPS-19, respondent No, 4 has been promoted to the said Basic Pay Scale meaning thereby that the basic characteristic of his service has not undergone any change and, therefore, his case could not be considered at par with that of the respondent No, 4 on this score alone. Again, according to the learned counsel while promotion being not a vested right, the appointment to a particular post is a matter which lies exclusively within the administrative domain of the Government and as such is not justiciable in a Court of law, nor seniority alone is a determining factor for judging fitness of a civil servant for appointment to a particular post. The learned counsel thus contended that bare allegation of mala fides on the part of respondents 1 to 3, unless supported by cogent and tangible evidence coming forth in support of it, cannot be made a basis to interfere with the administrative orders, such as the one impugned in the instant petition. He, therefore, urged that the prayer made in the petition cannot be acceded to on any valid ground and as such is liable to be turned down.
8. We have given our serious consideration to the submissions made by the learned counsel for the parties in support of their respective pleas.
9. It may be pointed out at the very outset that the impunged notification comprised of two parts, one pertains to the promotion of respondent No, 4 from BPS-18 to BPS-19 and the other relates to his continuing on his present assignment; and the learned counsel for the petitioner in his concluding arguments has candidly admitted that it is the latter part of the notification which he has called into question and attributed mala fides in this regard.
10. The controversy thus narrows down to the proposition as to whether the claim of a civil servant to the appointment of a particular post is founded on any valid basis and, alternatively, whether an order of this nature can be called into question on the plea of mala fides.
11. In so far as the earlier part of the aforesaid question is concerned, we are sanguine that the petitioner is vested with no such right whatsoever and his claim is supported with no legal basis in the matter of appointment to a particular post. And we tend to agree with the learned counsel for respondents that suitablity to a particular post is a matter falling exclusively within the administrative domain of the Government concerned and as such is not open to judicial review.
12. The only exception, however, is a case of proved mala fides and this furnishes answer to the latter part of the proposition. But a bald statement alleging mala fides against the authority, competent to make appointments to a particular post, is hardly sufficient to achieve the desired results. In fact mala fides has to be pleaded with particularity and burden to prove the same lies heavily on the person alleging the same, in that the person(s) responsible for taking the impugned action had been motivated either to hurt the person against whom the action is taken or to benefit himself. We are fortified in this view by a decision of the Supreme Court in the case of Federation of Pakistan v. Saeed Ahmad reported as PLD 1974 SC 151. Again, it may be noted, that a presumption of regularity with regard to all official acts exists, under the law and until that presumption is rebutted with unimpeachable evidence, the impugned action cannot be challenged merely upon vague allegations of mala fides.
13. Viewed in the perspective of the above, when we examine the plea of mala fide raised by the petitioner in the instant case, we find that although in the adverse remarks made by respondent No, 4 in the A.C.R. Of the petitioner for the year 1988, an element of mala fide can possibly be suspected, yet the same were communicated to the petitioner, were represented against and, after due consideration, the representation was turned down and the remarks were confirmed by the competent authority, namely, the Provincial Chief Secretary, thus washing off the mala fides, if any.
14. For the rest, we are of the considered view that the Provincial Selection Board cannot be saddled with any mala fides whatsoever towards the petitioner vis-a-vis the appointment to the post of Director, Agricultural Engineering inasmuch as we have perused the file, pertaining to the matter, produced by the learned Advocate-General which disclosed that the Provincial Selection Board have objectively dealt with the matter and it was after taking into consideration all the pros and cons of the cases of the Agricultural Engineers, then serving in BPS-18, including the petitioner as well as the respondent No, 4, that the Board arrived at a conclusion and found the respondent No, 4 as the most suitable person to the post of Director, Agricultural Engineering. Again we do not find any wrong with the Provincial Government in following and acting upon the recommendations so made by the Provincial Selection Board.
15. Similarly, for that matter, the alleged mala tides attributed to the Provincial Government for keeping the said post of Director, Agricultural Engineering with no regular appointee for a period of almost four years, although prima facie appears rather undesirable, yet it cannot be held as a piece of manifestation of mala tides against the petitioner. For there is no material before us, nor the learned counsel for the petitioner could point out any, to pinpoint the mala fides instead of unforeseen administrative reasons.
16. In this context of the matter, we have arrived at an inescapable conclusion that the mala fides alleged by the petitioner does not conform to the principles laid down in Saeed Ahmad's case PLD 1974 SC 151 and as such cannot he accepted.
17. Before parting with the case, however, we cannot help observing that the petitioner undisputedly was the senior most amongst Agricultural Engineers serving in BPS-18 and the learned counsel for respondents could not show us any reason as to why he was not promoted to BPS-19 instead of move-over simpliciter; more particularly, and we tend to agree in this regard with the learned counsel for the petitioner, when the so-called "indifferent record of service" did not provide any hindrance for the move-over of the petitioner to BPS-19: the case of appointment to the post of Director, Agricultural Engineering notwithstanding. We can, therefore, legitimately expect of respondent No, 1, the Provincial Government, to consider the petitioner not only for formally promoting him to BPS-19 but also to appoint him on such other post as is equivalent to or/and at par with that of the Director, Agricultural Engineering. For we are of the firm view that such inequitous treatment to the civil servants cannot be countenanced with impunity nor does it lead to a congenial atmosphere in the department and rather is likely to generate personal rivalries, frustration and consequent inefficiency.
18. With the foregoing observations this writ petition fails and is hereby dismissed with no order as to costs.