SAJJAD ALI SHAH, J.-Petitioner was appointed as an Assistant in BPS-11 in the Directorate-General, Immigration and Passport on 10-5-1976 and was granted selection grade in BPS-15 on 1=4-1988. In the tentative seniority list of Assistants issued on 24-7-1979, petitioner was placed at S.No.36 as direct recruit. He opted for the post of Examiner subject to the condition that his pay in BPS-15 would be protected and he was so promoted vide order dated 18-8-1990. He was further promoted as Assistant Incharge (BPS-15) vide office order dated 29-11-1990 but he made representation and claimed therein for promotion as Superintendent (BPS-16). He was informed that if he did not accept promotion as Assistant Incharge, he would lose his seniority for further promotion as Superintendent. Against such stand he filed representation which was dismissed by the department and then he filed service appeal which is also dismissed, hence this petition for leave to appeal.
2. It is submitted before us on behalf of the petitioner that Department of Immigration and Passport (respondent No. 2 herein) is an attached Department of Ministry of Interior and in respect of appointment and promotion to ministerial post, the rules are same as are contained in Government Notification dated 10-4-1988. In the normal channel Assistants (BPS-11) can be promoted as selection grade Assistants/Assistants Incharge (BPS-15) and Superintendents (BPS- 16). Assistants and Stenographers (BPS-11) are eligible for promotion as Examiners (BPS-12) in the Regional Passport Offices of respondent No. 2. There was no selection grade prescribed for Assistants in the attached departments of the Federal Government, hence post of Assistant Incharge (BPS-12) was considered equivalent to that of Examiner in the Regional Passport Office.
Respondents Nos. 3, 4 and 5 have been shown as senior to the petitioner in the seniority list wrongly for the reason that they were promoted as Assistants before the petitioner in excess of prescribed quota which promotions are to be treated as ad hoc in nature, hence their regularisation with retrospective effect was not permissible. It was submitted that petitioner completed 5 years service in 1981 and was eligible for confirmation against vacant post for direct recruit as he was senior most from Punjab and whole of Pakistan. M/s. Muhammad Naqi and Zamir Hussain, who are matriculate, were directly recruited as Assistants and were not eligible for regular appointment.
3. The department is of the view, as is evident from the minutes of the meeting of the Departmental Promotion Committee held on 23-6-1990, that Assistant (BPS-11) is eligible for promotion to the post of Examiner (BPS-12) and selection grade (BPS-15) of Assistant would not be an obstacle in the way of promotion as Examiner. The Committee after scrutiny of A.C.Rs. Of the senior most Assistants recommended M/s. Samiul Haq, Israr Ali Chishti and Din Muhammad for promotion to the posts of Examiners provided they opted to serve in BPS-12. The Committee made it clear that in case of their unwillingness or anyone of them, the post may be offered to the other senior most Assistant in order of seniority subject to the record being satisfactory.
4. As per minutes of the meeting of Departmental Promotion Committee held on 12th November 1990, for officials including Mr. Israr Ali Chishti were approved for promotion to the posts of Assistant Incharge (BPS-15) and it was remarked that in case M/s. Israr Ali Chishti and Din Muhammad Examiners (BPS-12) do not accept promotion to the post of Assistant Incharge (BPS-15) they will sever their connection with the attached department and will become member of service of subordinate office and would be considered for promotion in the subordinate office only.
5. Categorical stand is taken by the department in the written statement filed before the Service Tribunal that all the for officials against whom seniority is claimed by the petitioner, were promoted as Assistants against regular vacancies reserved for promotion by virtue of their seniority-cum- fitness as U.D.Cs. Petitioner did not challenge their promotions within the stipulated period and they were promoted as Assistants prior to the appointment of the petitioner. Petitioner exercised his option for promotion as Examiner (BPS-12) on 27-6-1990 and his claim that selection grade is promotion to higher post is rejected by the D.P.C. The officials against whom petitioner holds grievances were promoted as Superintendent (BPS-16) on the basis of their position as Assistants Incharge/Examiners (BPS-12) as there was no intermediary senior post but that of Superintendent (BPS-16). Subsequently post of Assistant Incharge was upgraded by the Government from BPS-12 to BPS-15 and was treated as a class senior to the post of Examiner (BPS-12), hence petitioner was offered post of Assistant Incharge in his capacity as Examiner (BPS-12) but he evaded and did not accept the promotion for about 14 months.
6. In this context it would be pertinent to reproduce part of paragraph 14 of the written statement filed by the department before the Service Tribunal, which is as under:-- "Obviously the appellant was working as Examiner (BPS-12) in the Regional Passport Office and was associated with public dealing. The appellant could not find any charm in his promotion as Assistant Incharge (BPS-15) post which is not available in the field offices or the station of his choice but was sanctioned in the Directorate-General and related to the desk work in its character.
The D.P.C. However, decided that either the appellant should accept his promotion or forego it. In case the appellant declines his promotion as Assistant Incharge (BPS-15) the post of Assistant Incharge (BPS-15) will be offered to the next eligible official of his category. The contents of the D.P.C.'s decision conveyed to the appellant vide Memo. Dated 12-10-1991 referred to therein . Have been misconstrued by the appellant. The apprehensions expressed by the appellant that the next junior person was to be promoted to the post of Superintendent (BPS-16) is devoid of any substance."
7. Record of the Service Tribunal does not indicate that petitioner took any steps to challenge the statement of fact alleged before the Tribunal reproduced above by way of rebuttal. We are unable to find any flaw or legal infirmity in the reasons assigned by the Service Tribunal in dismissing appeal of the petitioner. He himself opted for the post of examiner and then declined to accept promotion as Assistant Incharge (BPS-15) in the department for 14 months and in such circumstances official next junior to him was promoted by D.P.C. As Assistant Incharge (BPS-15). No fault can be found with the stand taken by the department that promotion to the post of Superintendent (BPS-16) is to be made from the Assistants Incharge/Examiners on the basis of their seniority and since private respondents were senior, they were promoted as Superintendents before the petitioner.
8. We are not impressed by the contention of the -petitioner that he is entitled to the promotion as Superintendent (BPS-16) on the basis of selection grade granted to him as Assistant (BPS-11) because post of Examiner (BPS-12) is in different cadre and petitioner opted for different cadre and wanted to come back in the same department. It is held in the case of Government of Punjab and others v. Muhammad Owais Shahid and others (1991 SCM R 696) by this Court that wherever there is change of grade or post for the better, there is an element of selection involved i.e. Promotion and does not earn automatically but under an order of competent authority to be passed after due consideration on the comparative suitability and entitlement of those incompetent. This is so said as the promotion was in the same cadre and is not applicable to the facts of this case in which selection grade was given in different cadre. In such circumstances claim of the petitioner for promotion to the post of Deputy Assistant Director (BPS-16) on the basis of seniority in the cadre of Assistant is rightly rejected by the department and no exception can be taken to the dismissal of his service appeal.
9. For reasons aforementioned, leave is refused and this petition is dismissed. However, it is open to the petitioner to seek his reversion to his original cadre and .Then agitate question of his seniority before the department in accordance with the rules.