2016 PLP (C (PLC(CS))

ZAHEER-UD-DIN KAKAR (CHAIRMAN).

Through the instant appeal filed under section 4 of the Balochistan Service Tribunal Act, 1974 the appellant has made the following prayer:-- "It is accordingly respectfully prayed that impugned observations passed by the Provincial Selection Board-I, in its second meeting of 2014 held on 21s and 22nd July, 2014 to the extent of Agriculture and Cooperative Department viz item Nos.2 and 3, which have caused prejudice to the rights of appellant, may be set aside/relaxed to the extent of case of promotion of appellant. Further this Hon'able Tribunal may kindly be pleased to direct the Provincial Selection Board-I Balochistan, Quetta to reconsider the case of appellant for promotion to B-19, on the basis of seniority cum fitness, length of service, availability of vacancy in promotion quota in accordance with already existing rules, and resultantly, the appellant may be granted proforma promotion from due date, when Lutfullah was granted promotion upon the recommendations of Provincial Selection Board. Any other relief which this Hon'ble Tribunal deems fit and proper may kindly also be granted, in the interest of justice."

2. The respondents contested the appeal on legal and factual grounds by filing their Para-wise comments.

3. We have heard the learned counsel for the parties and have gone through the record of the case.

4. Precisely, stating the facts of the case are that the appellant is serving as Assistant Professor (B-18), Division of Corp Protection, Balochistan Agriculture College, Quetta and the respondent No.2 had submitted a penal of two Assistant Professors (B-18) i.e. Lutufullah Khosa and the appellant for their promotion to the rank of Associate Professor (B-19), Division of Crop Protection (Entomology and Plant Pathology Department) in Balochistan Agriculture College, Quetta against two available vacancies before the Provincial Selection Board-I (hereinafter the PSB-I). The PSB-I in its meeting held on 21st and 22nd July, 2014 had considered and recommended Mr. Lutufullah Khosa, Assistant Professor (BPS-18) (Seniority No.1), for his promotion as Associate Professor (B-19) Division of Crop Protection (Entomology and Plant Pathology Department) in Balochistan Agriculture College, Quetta against an available post.

5. It would be necessary to mention here that as per Final Seniority List of Teaching Staff (B-18), of Division of Crop Protection, Balochistan Agriculture College, Quetta as stood on 10-12-2013, Mr.Lutufullah was at S.No.l whereas, the appellant was at S.No.2 and as per seniority position Mr.Lutufullah was promoted as Associate Professor (BPS-19).

6. It would be imperative to mention here that the respondent No.2 i.e. Secretary, Agriculture and Cooperative Department had sent Working Paper for promotion of M/s. Lutufullah, and Ahmed Khan (appellant) to the rank of Associate Professor (B-19) to the respondent No.1 against two vacant vacancies, but PWC of the respondent No.1 i.e. the Secretary, S&GAD shows that the cases submitted by the respondent No.2 were placed before the PSB-I as per record available in the S&GAD against one available post vide Item No.3.

7. As far as claim of the appellant for his promotion in (BPS-19) on the basis of seniority-cum-fitness is concerned, it is settled principle of law that promotion is not a vested right of an employee and seniority alone is not sufficient for that purpose. This principle was laid down by the Hon'ble Supreme Court of Pakistan in the case of Syed Noor Hassan v. The Secretary, Ministry of Industries, Government of Pakistan, Islamabad and others [1987 SCMR 598] that

"it was not element of seniority alone which was to be considered. Fitness is also an important consideration and has to co-exist with seniority. Promotion cannot be demanded as of right and seniority by itself cannot confer any absolute right of promotion irrespective of other consideration

Competent Authority is to be determined suitability after an assessment of all relevant considerations such as seniority, competence, rectitude, annual confidential reports and none of which is less important than other for preservation of purity and efficiency in public service." The Hon'ble Supreme Court of Pakistan in the case of Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi (PLD 2003 SC 110) has held that:-- "Seniority is one of the factor, which is considered for promotion, but seniority alone is not enough. Promotion is not automatic but it depends on many other factors, such as, competence, availability of post and antecedents etc."

8. Admittedly, the respondent No.1 had submitted a penal of two Assistant Professors (BPS-18) for their promotion to the rank of Associate Professor (BPS-19) Division of Crop Protection (Entomology and Plant Pathology Department) in Balochistan Agriculture College, Quetta against two available vacancies, but as per record of the respondent No.1 only one post of Associate Professor (B-19), for promotion quota was available and the PSB-I after due consideration recommended Mr.Lutufullah, (Seniority No.1) for his promotion as Associate Professor (BPS-19).

9. In the memo. of appeal the appellant has also raised objections on the observations (the said observations) of the PSB-I and he has prayed for setting aside of the said observations made by the PSB-I in its meeting held on 21st and 22nd of July, 2014. From perusal of the minutes of the said meeting it transpires that the PSB-I took notice of the deficiency in the existing Service Rules i.e. Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993 and advised the respondent No.2 to revisit the same and make amendments in a manner that as per Promotion Policy, prescribed length of service as well as provision for publication of research papers may be inserted in the appendix of the Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993. For convenience the said observations of the PSB-I are reproduced herein-below:-- "The Board observed that the Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993 are silent regarding length of service for promotion to next higher grades. Besides there is also no provision for publication of research papers for the incumbents. The Board advised the Administrative Secretary to revisit the existing service rules and make amendment in a manner that as per promotion prescribed length of service as well as provision for publication of research papers may be got inserted in appendix of Balochistan Agriculture College, Quetta (B-16 and above) Service Rules, 1993 accordingly."

10. As regards the said observations of the PSB-I and change of new criteria for promotion is concerned, the Government is quite competent to change the same. In this regard we are fortified by the case of Dr.Omer Farooq Zain v. Bahauddin Zakariya University, Multan [2008 PLC (C.S.) 1012] Lahore High Court, wherein it has been held as under:-- "enhancement criteria for promotion etc. was within the jurisdiction of the competent authority to prescribe."

11. Admittedly, it is prerogative of the Government to enact and amend the Rules according to the needs and exigencies of service and it is the right of department's to improve and update its service structure to keep pace with the modern age cannot be restrained or restricted on the ground that at the time of appointment of one or few civil servants, such qualification was not a requirement for promotion. On this point, we are fortified by the view taken by the Hon'ble Supreme Court of Pakistan in [2006 SCMR 1427] wherein, it has been held that: "the Government is always empowered to change the promotion policy and the domain of Government to prescribe the qualification for a particular post through amendment in the relevant Rules, is not challengeable. This is also a settled law that notwithstanding fulfillment of the requirement, qualification and other conditions contained in the Rules, the promotion cannot be claimed as a vested right." The Hon'ble Apex Court in the case of Dr.Allyas Qadeer v. Secretary Ministry of Education, Islamabad and others (2014 SCMR 997) has also held that:-- "Its right to improve and update it service structure to keep pace with modern age which is indisputably the age of specialization cannot be restrained or restrict on the ground that at the time of appointment of one or few civil servants, such qualification was not a requirement for promotion. Higher qualification or a more specialized qualification for a post in a higher scale is a need of the hour which has to be taken care of. The vices of the validity of Rules or amendments therein attending on such aspects, cannot, thereof be looked askance at. The more so when there is absolutely nothing in the Rules to show that they are either person specific or an off shoot of mala fides."

12. For what has been discussed above, we do not find any merit in this appeal and the same is dismissed with no order as to costs. File after completion be consigned to records. HBT/16/BST Appeal dismissed.