' MUNAWAR AHMED MIRZA, C.J.---Petitioner was appointed by Managing Director, B-WASA as Accounts Assistant in BPS-14 vide Order dated 16th June, 1990. Subsequently on 10th September, 1991 he was promoted by respondent No, 2 as Senior Accountant in BPS-16 and posted in Finance Department against vacant post. Later post of Senior Accountant was redesignated as Assistant Accounts Officer by means of Administrative order dated 22nd February, 1992.
2. It may be mentioned that by virtue of order dated 6-12-1988 issued by Finance Department 33% posts of Superintendents working in BPS-16 were entitled to be placed in Selection Grade B-17. For convenience said letter is reproduced below:-- ' GOVERNMENT OF BALOCHISTAN FINANCE DEPARTMENT Dated Quetta the 21st July, 1988. ORDER ' No, FD(R)VI-18/88/3083-3183.---The Government of Balochistan has decided that 33% posts of Superintendents (BPS-16) working in the attached departments shall be placed in Selection Grade (BPS-17) with immediate effect.
' MUHAMMAD YUSUF NIAZI, ADDITIONAL SECRETARY (INCHARGE).
2. It is the case of petitioner that four (4) Superintendents were working in Selection Grade while on 26th of April, 1993 senior most amongst them namely Haji Irshad Iqbal stood promoted as Training Officer. According to petitioner pursuant upon above-referred promotion he became entitled for Selection Grade (BPS-17) from said date. Inter-departmental correspondence supported his claim but with no practical results. Ultimately petitioner through proper channel made representation on 19-9-1993 which received support from office notings but respondent No,2 rejected the same on 30th March, 1994 expressing that already rapid promotions had been allowed to him.
' Being dissatisfied from orders of respondent No,2 an appeal was submitted through proper channel before Additional Chief Secretary, (Dev.) and Chairman, B-WASA, Quetta on 20th April, 1995 which was eventually rejected on 2nd of August, 1995. The rejection order is reproduced below:-- "No .B-WASA/444/Estt . /P. F. /Admn: /26 BALOCHISTAN WATER AND SANITATION AUTHORITY, QUETTA Dated Quetta the 2-8-1995 ' To ' Mr. Abdul Ghani, ' Assistant Account Officer, B-WASA Quetta.
' Subject: APPEAL.
' With reference to your Appeal dated 6th July 1995 regarding grant of Selection Grade B-17.
' I am directed to inform you that at present you do not fall under 33% quota fixed for selection grade among Superintendent and Assistant Accounts Officer and as such your case cannot be considered at this stage, however in future if the strength of Superintendents/Assistant Accounts Officer is increased your case will be considered for the selection grade.
(Khan Muhammad), Dy. Director Admn., B-WASA. QUETTA."
4. Respondent filed counter-affidavit challenging legality of petitioner's initial appointment and subsequent promotions. It was further asserted that strength of BPS-16 officers was reduced and presently on the basis of 33% quota only 3 persons are entitled to selection grade who are senior to petitioner and already functioning in said capacity. Petitioner filed rejoinder to counter-affidavit on 5-11-1995 repudiating the stand taken in the counter-affidavit. It was alleged that subsequent events do not deprive legal right which had accrued to the petitioner on 28th of April 1993.
5. Respondent No, 2 has further given a categoric assurance in writing that petitioner was never ignored in the past and shall be considered on his turn according to Rules for being placed in Selection Grade BPS-17.
6. Mr. Muhammad Aslam Chishti learned counsel for petitioner strenuously urged that a vested right had accrued to the petitioner on 28th of April, 1993 for being appointed as Superintendent in BPS-17. He argued that the legal right thus accrued could not be subsequently abridged or withdrawn on the reduction of posts. According to him subsequent events do not deprive petitioner of legal right which at a particular point of time becomes available under the law. Reliance has been placed on the observations of case titled Muhammad Hayat v. Secretary, Tourism Division, Islamabad and two others (PLJ 1991 Tr.0 (Service) 119).
7. Mr. Kamran Murtaza learned counsel for respondents emphatically contended that petitioner has no legal right or entitlement for being placed in Selection Grade (B-17) therefore, according to him Constitutional petition was not maintainable. Additionally vacant post in BPS-17 does not exist in the department, therefore, under peculiar circumstances claim of petitioner was totally misconceived. Learned counsel canvassed that legal position has been appropriately explained in order passed by respondent No,1 . Besides written assurance given by respondent No,2 unequivocally confirms intention for complying said order. Therefore, petition at this stage is not entertainable.
' We have carefully considered above contentions in the light of material available on record. Main question which arises for determination on the basis of existing controversy between the parties would be whether merely on promotion of Haji Arshad Iqbal as Training Officer the petitioner automatically became entitled for Selection Grade (BPS-17) with effect from 28-4-1993 irrespective of subsequent abolition/reduction concerning posts of Superintendents and Accounts Officers.
9. It may be seen that petitioner in para. (10) of the petition has unambiguously admitted that sanctioned strength of Superintendents and Assistant Accounts Officer has been reduced from '
TWELVE' to 'NINE'. Respondent No,2 in para. (3) of the counter-affidavit has categorically explained that reduction of posts has occasioned due to retrenchment for eliminating surplus employees.
Evidently keeping in view existing sanctioned strength of B-16 and applying 33% quota for Selection Grade (B-17) only three persons out of nine are entitled to said benefit. Undoubtedly these persons senior to petitioner are already holding post of Selection Grade (B-17). Therefore claim being asserted by petitioner is hypothetical and of academic nature. We are conscious that Courts normally refrain from passing ineffective order merely for academic interest. For authority reference can be made to the observations in case Aminullah v. Member, Board of Revenue and others (PLD 1982 Quetta 73).
10. Mr. Chishti has attempted to canvass that subsequent events do not affect or abridge vested right accrued to petitioner. Firstly even if sanctioned strength of B-16 posts remained unchanged; petitioner through mechanical process merely on existence of vacancy was not automatically entitled to be placed in selection grade. Competent Authority was bound to assess his eligibility on the basis of seniority-cum-fitness. It is well settled that promotion from one position to another in absence of any statutory provision or enforceable conditions of service cannot be claimed as of right. Evidently grant of Selection Grade from B-16 to that of B-17 being further step on a ladder carry similar effects and consequences which are provided for promotion. It certainly supposes movement from lower to higher category. The matter of placing in selection grade or promotion falls within exclusive discretion of Government subject to eligibility for such post by considering seniority-cum:fitness. Right of appropriate Government to select a person for particular post through equitable and impartial application of relevant rules cannot be snatched or curtailed. It hardly needs mention that even denial of promotion to a civil servant does not constitute infringement of fundamental right or law. Needless to say that a civil servant may be eligible for promotion but it does not create entitlement. The word "eligible" means only legally qualified for considering without acquiring any vested right. Thus in our view no vested right had at all accrued in favour of petitioner.
' Secondly subsequent events in each case are relatable to peculiar circumstances. Admittedly in the present situation there does not exist any post against which petitioner can be considered. It is neither prudent nor understandable how despite non-existence of any post petitioner be granted selection grade. The claim in petition is ostensibly unreasonable and anomalous. Therefore no effective relief can be legitimately granted.
11. Learned counsel for petitioner attempted to urge that ground mentioned by respondent No, 2 for denying selection grade had no legal sanctity. It was also argued that appeal before respondent No, 1 was not competent, nevertheless appellate authority could not lawfully take different stand.
Suffice to observe that petitioner having himself opted to prefer appeal before respondent No, 1 cannot challenge its competency by invoking Constitutional jurisdiction. To supplement this submission reference be made to observations in cases (i) Sardar Muhammad Ayub v. Pakistan through Secretary, Ministry of Resettlement and Rehabilitation, Rawalpindi and others (1969 SCMR 96(2); Abdul Razzaq v. Ch. Sultan Muhammad Khan and 3 others (1975 SCM R 13); and Amanullah Khan (A. Khan) v. Chotey Khan (1978 SCMR 14). Besides it is well-settled that order of subordinate forum merges into decision of appellate authority, which eventually attains finality. We are, therefore, satisfied that order passed by respondent No, 1 conveyed to petitioner on 2nd August, 1995 holds the field, which provides assurance for the consideration of petitioner's case at appropriate stage. Additionally respondent No, 2 has also given categoric assurance to consider case of petitioner for granting selection grade, according to rules on his turn.
' From the above discussion we are inclined to hold that none of the subsisting right of petitioner has been violated to provide cause of action for filing this petition. Same is consequently dismissed. Parties are, however, left to bear their own costs.