' SAJJAD ALI SHAH, J.---Leave to appeal is sought against judgment dated 8-12-1991 of Peshawar High Court, Peshawar, whereby writ petition filed by petitioner herein is dismissed in which he had challenged validity of Notification dated 24-11-1990, wher.Eby respondent No, 4 Syed Maqbool Ali Shah was promoted to the post of Assistant Director, Civil Defence (BPS-17) N.-W.F.P.
2. Petitioner does not dispute that respondent No, 4 is senior to him but his grievance is that the post of Assistant Director in BPS-17 is to be filled on the basis of selection and merits with particular reference to fitness or higher responsibilities from amongst Civil Defence Officers. His case was very strongly recommended by the Director, Civil Defence, who forwarded A.C.Rs, of both the candidates but Provincial Selection Board ignored his service record and approved respondent No, 4 for the promotion. Petitioner also claims that he is more qualified for the post as his confidential record is better than that of respondent No, 4.
3. During the pendency of writ petition in the High Court parawise comments were filed on behalf of respondent No, 1 Chief Secretary and respondent No, 2 Secretary, Home and Tribal Affairs Department, Peshawar, giving full particulars of entry in service by respondent No, 4 and petitioner and their dates of promotions showing respondent No, 4 as senior to petitioner having acquired promotions earlier in point of time than the petitioner. It is mentioned that petitioner was transferred and posted as Acting Assistant Director, Civil Defence for a short while just as a stopgap arrangement which did not create any right in favour of petitioner for out of turn promotion. Letter of Director, Civil Defence recommending promotion of petitioner had no binding effect as promotion was made strictly according to rules after clearance from Provincial Selection Board on the basis of merit with particular reference to fitness.
4. It was submitted that A.C.Rs, of respondent No, 4 for the period from 1-8-1982 to 29-8-1984 are average and, therefore, petitioner was better qualified to be promoted but petitioner was unable to produce his own A.C.Rs, to show that they were better than those of respondent No,
4. He solely relied upon letter of recommendation by the Director. Paragraph 39 of instructions of Annual Confidential Record provides that if an officer's integrity is adjudged as average it would not be construed to be an adverse remark. It was urged on behalf of the petitioner that promotion of respondent No, 4 was mala fide and against the rules. It was further submitted that the promotion was challenged on the ground of mala fides of law as the same was not according to rules even if seniority of respondent No, 4 was eonsidered. In support, reliance was placed on the case of Rana Muhammad Sarwar v. Government of Punjab 1990 SCM R 999. Learned counsel for the petitioner could not satisfy us on the basis of record that it was so. High Court has rightly held that promotion of respondent No, 4 was strictly according to rules and merits and in the circumstances resort to writ petition was not proper. We are unable to find any flaw or legal infirmity in the judgment of the High Court and we are of the view that interference is not warranted. In the result leave is refused and the petition is dismissed.