' SAIDUZZAMAN SIDDIQUI, J.---Appellant, a permanent employee of N-.W.F.P. Provincial Assembly (hereinafter called the Assembly) was retired from service prematurely under M.L.O. 17 on 12-4- 1979. The appellant challenged his premature retirement from service in Writ Petition No,686 of 1979, which abated on the promulgation of Provisional Constitution Order, 1981, on 4-10-1982. After the decision of this Court in the case of Federation of Pakistan v. Ghulam Mustafa Khar (PLD 1989 SC 26), the appellant once again agitated against his wrongful premature retirement from service before the Peshawar High Court in Writ Petition No,463 of 1988. The appellant was reinstated in service, while his above petition was still pending adjudication by the High Court by the Speaker of the Assembly. However, on a review petition filed by the Secretary of the Assembly, the Speaker withdrew the order of reinstatement of the appellant in service, on 6-12-1990. As Writ Petition No,463 of 1988 filed by the appellant, challenging the order of his premature retirement from service was still pending, the appellant sought amendment of his petition, which was allowed. The Peshawar High Court finally accepted Writ Petition No,463 of 1988 and set aside the order dated 6-12-1990, passed by the Speaker of the Assembly and directed fresh disposal of review petition filed by the Secretary of the Assembly against the reinstatement of appellant in service on merit after affording opportunity of hearing to the parties. The review petition was accordingly reheard and as a result thereof the appellant was reinstated in service vide Notification dated 21-3-1992 with effect from 12-4-1979 (the date on which he was prematurely retired from service) with all back benefits. It appears that by another notification of the same date, the appellant on his own request was retired from service with effect from 1-1-1992 (forenoon).
2. On 23-4-1992, the appellant submitted an application to the Secretary of the Assembly asking for payment of back benefits in terms of Notification dated 21-3-1992, while his above request was still pending consideration, the appellant filed Writ Petition No,332 of 1993 before the Peshawar High Court seeking following reliefs:- "(a) The petitioner's retirement order dated 21-3-1992 (Annex 'F') be declared illegal, unlawful and coram non judice, manipulated under duress and be set aside with the direction to re-instate him with immediate effect and allow him to serve for two years beyond sixty years of his age attaining on 22-3-1994 as compensation for the tenure of his service expired by unlawful acts of respondents Nos.2 and 3.
(b) The petitioner be promoted as Deputy Secretary in BPS-18 from the date his junior was promoted. Also be given promotion to the post of Additional Secretary and Secretary, Provincial Assembly in BPS-19 and 20 from the dates the deputationists had filled these posts."
3. A learned Division Bench of Peshawar High Court dismissed the above writ petition filed by the appellant summarily holding as follows:-- "After hearing the learned counsel for the petitioner at some length and going through the record we have come to the conclusion that there is no substance in this writ petition for reasons which are not far to seek. The petitioner is an experienced civil servant well-versed in service laws and procedure as also in general law, therefore, it does not stand to reason that he was compelled to seek retirement by signing an already prepared application, described by him in this petition as a 'death-warrant'. The application dated 23-4-1992 moved by him for giving legal effect to the impugned orders and receipt of arrears of pay and allowances to the tune of Rs,7,20,859.51 go a long way to suggest that lie had sought premature retirement of his own free-will and accord, therefore, he cannot now turn around and undo his own doing particularly when the impugned orders do not appear to be unsavoury by any standard. It is a matter of common knowledge and practice that promotion is not earned as a matter of right but is granted on the principle of seniority-cum-fitness. The acceptance of petitioner's contention for retrospective promotions as incident of back benefits would amount to a pre-supposition that he was throughout qualified for such promotions based on the dual qualification of seniority-cum-fitness. There is no scope for giving such sweeping findings in this petition. Besides, this petition is badly hit by the principle of laches in that the impugned orders were passed on 21-3-1992 whereas this petition was filed on 11- 5-1993. This petition is, therefore, dismissed in limine."
4. Leave was granted in the above appeal to consider the contention that the decision of this Court in Muhammad Masihuzzaman's case (PLD 1992 SC 825) was not kept in view while passing the impugned judgment and Rule 12 of the N-.W.F.P. Provincial Assembly (Recruitment) Rules, 1974 was also ignored.
5. The appellant, who argued his case in person, firstly contended that his premature retirement from service was hit by the rule laid down by this Court in the case of Muhammad Masihuzzaman v.
Federation of Pakistan (PLD 1992 SC 825). It is further contended by the appellant that his premature retirement from service having been set aside, he was entitled to continue in service until the age of superannuation, namely, 60 years and, therefore, the order of the Speaker retiring him from service earlier to the attaining of age of superannuation was wholly without jurisdiction. In addition to the above contention the appellant also argued that the persons junior to him in the Secretariat of the Assembly were promoted to higher posts during the period he remained out of job on account of his premature retirement and, therefore, he was entitled to be promoted to the next higher grade on the date his juniors were promoted. The learned counsel for the respondents Nos.2 and 3 on the other hand supported the judgment of the High Court and contended that the appellant having himself voluntarily obtained his retirement from service on reinstatement and having received all the dues in connection thereto, could not turn around now and challenge his premature retirement from service as without lawful authority and of no legal effect. On the question of promotion to the higher post, the learned counsel for the respondents argued that the promotion is not a vested right of an employee and therefore the same cannot be secured through a writ issued by this Court under Article 199 of the Constitution.
6. The learned Judges of the High Court while dismissing the writ petition summarily came to a definite conclusion that the retirement of the appellant from service was made on the request of the appellant. Nothing has been brought on record before us to demonstrate that the finding arrived at by the learned Judges of the Division Bench of the High Court holding the retirement of the appellant at his own request was not correct or that the request for voluntary retirement from service was the result of any coercion applied on the appellant at the time of seeking of premature retirement from service. The premature retirement of the appellant from service was the result of notification dated 21-3-1994. It has been rightly observed by the learned Judges of the High Court that if the appellant was aggrieved by the said notification, he should have promptly challenged the same through proper proceedings before the competent forum. It is not disputed before us that the appellant on 23-4-1992 after about a month of the issuance of the notification retiring him prematurely from service, moved an application to the competent Authority for giving effect to the Notification dated 21-3-1992. Not only that, he pursued his application and received arrears of pay and allowances in terms of the Notification dated 21-3-1992 retiring him from service, to the tune of Rs,7,20,859.51. In these circumstances, the finding of the learned Judges of the High Court that the premature retirement from service was sought by the appellant voluntarily, in our opinion, does not suffer from any infirmity so as to call interference by us. The appellant has, however, vehemently relied on the case of Masihuzzaman (supra), which is also noted in the leave granting order, to contend that even if it is conceded that the appellant had made a specific request for premature retirement, it could not have been accepted as it was contrary to the law. The argument of the appellant does not appear to be correct. The case of Masihuzzaman has no application in the circumstances of the present case. This Court in Masihuzzaman's case held that where a civil servant has not completed 25 years of service, his request for premature retirement amounted to circumventing a specific provision contained in the Interim Constitution, 1972. Article 221(4) of the Interim Constitution, 1972 specifically provided for retirement of a civil servant who had completed 25 years of qualifying service for pension. In Masihuzzaman's case, this Court came to the conclusion that the appellant in that case at the time he sought premature retirement from service had not completed the 25 years required service in terms of Article 221(4) of the Interim Constitution. It was in this context that this Court observed that as the appellant in that case had not completed 25 years qualifying service on the date he applied for his premature retirement from service, the order directing his retirement from service was illegal and void. The situation in the present case is, however, quite different. The appellant admitted before us that he entered the government service in the year 1951 and he completed 25 years' service in 1976. It is therefore, quite clear that on the date he was prematurely retired from service he had put in more than 25 years as a Government servant. In our view, therefore, the rule laid down in Masihuzzaman's case by this Court is not attracted in the present case.
7. The next question for determination in the case is whether the prayer made by the appellant in the writ petition that he was entitled to be promoted on the date his juniors in service were promoted, could be granted in the circumstances of the case. It is true that under the N-.W.F.P.
Provincial Assembly (Recruitment) Rules, 1974, right of promotion is not a vested right of an employee. However, as laid down by this Court in Ageela Asghar Ali v. Khalida Khatoon Malik (PLD 1991 SC 1118) and Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), a civil servant holding the qualifications and fulfilling their conditions prescribed for the promotion to a certain post has a right to be considered for promotion. It has been argued on behalf of the respondents that the appellant was appointed as Editor of Debates (B-17) in the Assembly Secretariat while he is seeking his promotion in the next higher grade as Deputy Secretary. It is argued on behalf of the respondents with vehemence that the posts of Editor of Debates and Deputy Secretary are in different cadres and as such the appellant was not entitled to seek his promotion as Deputy Secretary in the Assembly Secretariat as the post of Deputy Secretary was not in the line of promotion in cadre of Editor of Debates.
' No doubt the appellant was initially appointed in the Assembly Secretariat as Editor of Debates, but the Notification_ dated 9-12-1975 produced before us clearly states that the appellant, who was appointed as Editor of Debates, is being appointed Assistant Secretary in BPS-17 with immediate effect. The appellant under this notification was allowed to continue to hold the charge of Editor of Debates till further orders. The contention of the appellant that he was subsequently promoted as Assistant Secretary in the Assembly Secretariat is further reinforced by a later notification dated 21-1-1977 whereby his services were placed at the disposal of the Finance Department for posting and in that letter the appellant was described as Assistant Secretary, Provincial Assembly, N-.W.F.P. We are, therefore, of the view that even if we accept the contention of the learned counsel for the respondents that the posts of Editor of Debates and Assistant Secretary and Deputy Secretary fell in different cadres, the appellant was admittedly appointed as Assistant Secretary in the year 1975. There is nothing on record before us to suggest that at the time the appellant was retired from service prematurely, he was not holding the post of Assistant Secretary in the Assembly Secretariat. We are, therefore, of the view that under the promotion rules of the Assembly, the post of Deputy Secretary being in the line of promotion of the cadre of Assistant Secretary - the post which the appellant was holding at the time of his premature retirement from service, the appellant was entitled to be considered for promotion as Deputy Secretary if he possessed the requisite qualifications and fulfilled other conditions prescribed for promotion.
8. The next question which requires consideration in this case is whether an order could be granted by the High Court in exercise of its jurisdiction under Article 199 of the Constitution directing the Speaker of the Assembly to promote the appellant to the post of Deputy Secretary from the date his junior was promoted. It is rightly argued by the learned counsel for the respondents that the promotion is not a vested right of a civil servant. It also cannot be disputed that for promoting an employee to a higher post, certain factors like eligibility and seniority have to be considered before he is actually promoted to the next higher post. The appellant remained out of service from 1978 to 1991 on account of his premature retirement from service under M.L.O.
17. He was reinstated in service as a result of notification issued on 21-3-1992 with all back benefits and he was paid salary for all that period. It has not been contested before us by the learned counsel for the respondents that the appellant did not possess the basic qualifications or that he did not fulfill other conditions of eligibility required for promotion to the post of Deputy Secretary, which was in the line of promotion of the post of Assistant Secretary. However, as besides the question of eligibility, the further question of fitness of the appellant to hold the next higher post was to be determined in the first place by the Departmental authority, it was not possible for the High Court to have adjudicated on this aspect of the case. Therefore, even if the appellant fulfilled all the conditions of eligibility for promotion as Deputy Secretary, the question of his fitness to hold that post could not be decided by the High Court. This question essentially is to be dealt with and decided by the authority competent to promote the appellant to the next higher post' in the first instance. We are, therefore, of the view that in so far the actual promotion of the appellant to the next higher post of Deputy Secretary (BPS-18) is concerned, it must be left to be considered by the authority which is competent to determine his fitness to hold that post. We accordingly partly accept this appeal, set aside the order of the High Court and direct that in so far the question of pro forma promotion of the appellant to the post of Deputy Secretary (BPS-18) is concerned, the same may be considered by the Speaker, N-.W.F.P. Assembly and if the appellant is found to possess all the required qualifications for promotion to that post, his case for pro forma promotion from the date his junior was promoted, may be considered in accordance with the Rules. The appeal stands disposed of accordingly. But in the circumstances of the case, we make no order as to costs.