2019 PLP (C (PLC(CS)N)

WAQAR AHMAD SETH, J.

Through this Contempt of Court petition filed under Article 204 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner prayed that;- "On acceptance of this writ petition, the contempt of Court proceedings may please be initiated against the respondents, they be summoned, proceeded against and be punished in accordance with law. Moreover, they strictly directed to implement the order of this Hon'ble Court in letter and spirit without further delay and withdraw the deferment of petitioner and he be promoted to the post of Inspector General of Prison (BPS-20)".

2. Brief but relevant facts of the case are that petitioner approached this Court through W.P. No. 629-P/2014 for issuance of directions to the respondents to consider him for the promotion to the post of Inspector General of Prisons (BPS-20) in view of Recruitment Rules, 1980 and further more cancellation of Notification dated 26.12.2013 vide which Ex-cadre Officer was posted against the captioned post. In due course of process petitioner was succeeded to obtain favourable directions from this Court vide order dated 24.14.2014. On the directions of this Court petitioner was considered by the respondents in their meeting of PSB held on 30.01.2015 for the requisite promotion and found him eligible and suitable in view of the criteria so prescribed by the rules and policy for the purpose of promotion, but was deferred because of the reason of non doing of Senior Management Course (SMC) which is neither legal requirement nor otherwise necessary/mandatory under the relevant law. Apparently petitioner was considered for the purpose of promotion under the directions of this Court, but was dropped. Relevant abstract from the PSB meeting held on 30.01.2015 is reproduced for ready reference;- "The Board considered the promotion case of Mr. Masud ur Rehman to the post of I.G Prison BS-20 as per direction of Honourable Court. He is the most senior and his length of service is also completed for the promotion. The board discussed his promotion case in detail and it was fled that the post of IG Prisons is not a technical post, but an administrative nature post, which demands administrative and managerial skills, hence Senior Management Course (S.M.C) is must for such like promotion. The officer has not done the course, as the service rules do not prescribe such course for promotion to the post of I.G. Prisons. Keeping in view the present security related issues in the province, the post must be filled by such an incumbent who has good administrative/managerial capability. It is the considered view of the board that the promotion of the officer may be deferred and the post may be reserved for him. On his successful completion of S.M.C., he will be considered for promotion to the post of I.G Prisons."

3. Respondents were put to notice who have contested the suit by submitting their written replies.

4. Arguments heard and available record perused.

5. Record suggests that while disposing off Writ Petition No.629-P/2014 on 24.12.2014, respondents/department was directed to convene the meeting of PSB/DPC and considered the petitioner for promotion for the post of IG Prison in BPS-20. Record further suggests that the said judgment was complied with and case of petitioner for promotion to the post of Inspector General of Prison was put up before the PSB held on 30.1.2015, as reproduced above, white deferring the case of the petitioner for promotion, although amendments in the rules was notified on 30.11.2016 i.e. after the PSB, but minutes of the meeting are very much clear.

6. The deferment in fact is not a punishment nor can be called in question in writ jurisdiction what to say of contempt of Court proceedings. The moment case of petitioner was put up before the PSB, the judgment of this court stand implemented and as such, the COC has become in fructuous. Even otherwise, the employer has the prerogative to enhance the standards of recruitment and promotion in order to maintain efficiency in service and in this respect reliance is placed on 1990 SCMR 1321, (f) titled Government of NWFP Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others, wherein it has been held as under:- (a) ........... (b) ........... (c) . (d) . (e) . (f) ....Promotion

Vested right

No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post

Government has the right to enhance the qualification and the standards for recruitment and promotion in order to maintain efficiency in Service

Except for the post which a civil servant happens to hold, he cannot claim vested right in other higher tires in the hierarchy.

7. Reiterating the above principles of law, the apex Court in the case of Muhammad Saddique v. Secretary to Government of Pakistan, Ministry of Education and others, reported in PLD 1996 SC 197, again held that Government has the right to enhance qualification and standards for recruitment and promotion in order to maintain efficiency in nature and nobody could claim any vested right in such policy of government. Likewise, in the case of Zafar Iqbal and others v. Director Secondary Education Multan Division and others, reported in 2006 SCMR 1427, again dilated upon the issue and held that government was always empowered to change promotion policy and domain of the government to prescribed qualification for a particular post through amendment in relevant rules was not challengeable. In the case of Executive District Officer (Revenue) District Khushab at Jauharabad and others v. Ijaz Hussain and another, reported in 2011 SCMR 1864, while dilating upon the "principles of trichotomy of power" it has been held as under:

S. 4

Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974, R. 17

Constitution of Pakistan, Preamble

Recruitment, process of policy matter

Academic qualification and interview marks

Ratio--Trichotomy of power

Scope

Respondents were unsuccessful in selection of Patwaris and assailed process of selection on the ground that recruitment policy was defective as it had reserved 60% marks for academic qualification and 40% for interviews

High Court, in exercise of constitutional jurisdiction directed the Provincial Government to amend the recruitment policy and marks for interview should not exceed 25% of the total marks

Authorities contended that High Court could not have issued directions to amend recruitment policy as such power fell within policy making domain of the executing authority

Validity

Recruitment policy was framed by Provincial Government as part of delegated legislation and its provisions could not have been struck down on vague considerations of being unreasonable or likely to be misused--Presumptions was that those who exercise such powers would have done it in a bona fide manner and if such power was exercised in a mala fide manner, it was the particular mala fide act which could be challenged and struck down

Provisions did not become unconstitutional, voilative of fundamental rights or unreasonable simply because it could be abused because any provision of law could be misused if the wielder of power so intended

Framing of recruitment policy and rules thereunder fell in the executive domain

Constitution of Pakistan was based on the principle of trichotomy of powers where legislature was vested with the functions of law making, the executive with its enforcement and judiciary of interpreting the law--Courts could neither assume the role of policy maker nor that of a law maker, therefore, to such extent the judgment passed by High Court was set aside by Supreme Court. 7(sic) In view of the above, cited judgments whereby the government/ departments enjoys absolute powers to change or to formulate policy for promotion, non challengeable and the judgment of this Court whereunder government/department was directed to consider the case of petitioner, no contempt of court could be initiated as, the petitioner is required to undergo senior management course for the purpose of promotion and his case has been deferred till then and post has been reserved for him. Show-cause notices issued to respondents are hereby recalled. ZC/110/P Petition dismissed.