1991 PLP (C (PLC(CS))

(a) "This honourable Tribunal may be gracious enough to set aside the impugned order contained in Notification dated 2-2-1987, whereby the appellant has been superseded to be promoted as Grade-19 Officer in the National Savings Organization with mala fides and by superseding the appellant respondents Nos.3 to 5 have been promoted." (b) "Respondents Nos.1 and 2 be directed to consider the case of the appellant for promotion as Grade-19 Officer in the National Saving Organization on merits with effect from 1982 when the appellant was due for promotion."

4. The appellant's case in his own words is "that the impugned approval of the respondents Nos.3 to 5 and the impugned supersession of the appellant is illegal mala fide and merits to be set aside and the appeal of the appellant merits to be accepted in that the appellant is entitled to promotion to Grade-19 from 1982 when he had completed the prescribed period in Grade-18:" It is neither necessary nor seemingly possible to give in detail all the grounds of appeal and t will be enough to say that the appellant has assailed the impugned order of promotion of respondents Nos. 3 to 5 on the ground of mala fides of the "Departmental Authorities".

5. Although, now we know from the respondents' pleadings that the appellant became eligible for promotion to BPS-19 on 1-11-1982 on completion of seven years service in BPS-18. It may be pointed out as a significant fact that he has not mentioned the exact date of his joining the Organization as Deputy Director/Joint Director (BPS-18) and all he stated in Para. 1 of his appeal is that he was appointed as such in 1975. This flaw, which seems to be the result of a deliberate omission, is also there in the second prayer made by him to the effect that respondents Nos. 1 and 2 be directed to consider his case for promotion on merits "with effect from 1982" when he became due for promotion. Although this circa instance is not of any consequence in so far as the result of this appeal is concerned, it has nevertheless been mentioned to say that the appellant does not appear to have come to us with clean hands; considering that there is no reason why he should not have mentioned the exact dates of his appointment and eligibility for promotion; more so when these dates were very material in the context of his pleadings and the relief sought by him.

6. There is another significant matter worth notice. As already pointed out, one of the reliefs sought is that respondents Nos.1 and 2 be directed to consider his case for promotion "with effect from 1982 when the appellant was due for promotion." Apart from the respondent's case set up in defence and other relevant circumstances, we find it rather difficult to appreciate how this prayer can be justified even if the appellant be assumed to have become eligible for promotion-with effect from 1982; which is so because mere eligibility does not entitle a person to promotion, and more so when a civil servant does not have the vested right to be considered for promotion on a particular date, unless it is established that his juniors were considered for promotion or any person was taken on that post to the disregard of his right or in violation of the prevalent rules of recruitment/promotion. In this view of the matter, there is no reason why he should necessarily have been promoted with effect from 1982 merely because he became eligible for such promotion. It has neither been alleged in the appeal nor is there any indication from the material on the record that any of his juniors was considered and promoted to BPS-19 from the date he became eligible to such promotion to 14-12-1986 when his case for promotion came up for consideration before the Board alongwith certain other officers including respondents Nos.3 to

5. Further, even this has not been alleged, much less proved that any officer was brought to BPS-19 post through transfer or otherwise during the period from 1982 when he became eligible for promotion to 14-12-1986 when his case was considered by the Board. Therefore, in view of the aforementioned considerations, the second prayer for a direction to respondents Nos.1 and 2 to consider the appellant's case for promotion with effect from 1982, fails on its own merits, irrespective of the respondents' case set up in defence. We maintain that it is not legally possible to grant the prayer because of its intrinsic infirmities.

7. Even the other relief for cancellation of Notification dated 2-2-1987, cannot be granted in view of section 4(1)(b) which provides that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade. It is an admitted fact that the appellant's case was duly considered by the Federal Selection Board in its meeting held on 14-12-1986 and that he was not approved for promotion. It is also admitted that respondents Nos. 3 to 5 were approved for promotion and that the impugned Notification of 2-2-1987 in respect of their promotion was based on the recommendations of the Board. It is thus clear that his supersession is the result of a finding arrived at by the competent authority on the basis of deliberations of the Board, to the effect that he was not fit to be promoted to a higher grade; and we are in no doubt that the competent authority's determination of the appellant's fitness for promotion, cannot be called in question in any appeal before the Tribunal. Therefore, the present appeal which involves a challenge to the competent authority's decision regarding appellant's promotion to a higher post, is not competent under section 4 (1) (b) of the Act and we have no jurisdiction to decide it.

8. It was contended by the appellant's learned counsel that the appellant's supersession was the result of mala fides of the Department and that the impugned order of respondents Nos. 3 to 5's promotion was coram non judice and a nullity in the eye of law and that, in this view of the matter, the appeal was competent and that section 4 (1) (b) of the Act did not take away the Tribunal's jurisdiction to go into the question of mala fides and decide whether the impugned order can be sustained. Reliance in support was placed on the cases of State v. Zia-ur-Rehman P L D 1973 S C

49. The Federation of Pakistan v. Saeed Ahmad Khan and others P L D 1974 S C 151, Muhammad Israr Nabi v. Province of Punjab and others P L D 1980 S C 292 and Iqbal-ud-Din Qureshi v. Federation of Pakistan and others 1982 SC S C M R 614.

9. While examining the expression "mala fides" the following observations were made by the Supreme Court in Saeed Ahmad Khan's case: `Mala fides' literally means `in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colorable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above. A mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides, nor can a case of mala fides be established on the basis of universal malice against a particular class or section of the people. In order to establish a case of mala fides, some such specific allegation is necessary and it must be supported by some prima facie proof to justify the Court to call upon the other side to produce evidence in its possession."

10. These observations made in the same case on this point are also in point: "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri P L D 1969 S C 14, mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."

11. What with the evidence in support of the allegation of mala fides, they observations made by the Supreme Court in Saeed Ahmad Khan's case lead us to j the conclusion that "(a) there is a presumption of regularity with regard to all official acts and the person alleging mala fides is under a responsibility to establish it, (b) the impugned action cannot be challenged merely on a vague allegation of mala fides, (c) there must be some specific allegation of mala fides and it should be pleaded with particularity, (d) if one kind of mala fides is alleged, no one should be allowed to adduce evidence of any other kind of mala fides, (e) no inquiry should be started merely on the basis of vague and indefinite allegation (f) the person alleging mala fides should not be allowed a roving inquiry into the rile of the Government for the purposes of fishing out some kind of a case and it is necessary for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action had any motive and (g) that a mere allegation that an action has been taken wrongly is not sufficient to establish a case of mala fides.

12. In the present case, the appellant's pleadings/regarding mala fides do not conform to the standard laid down by the Supreme Court in Saeed Ahmad Khan's case. These pleadings are vague and of general nature. Mala fides has not been pleaded with particularity, although the expression has been used at various places in the grounds of appeal. Therefore, we do not feel any hesitation in saying that the question of mala fides does not deserve even a closer application. There is nothing in the grounds of appeal on merits to have even a feeble suggestion of any definite and particular allegation of mala fide against any particular person who was either in a position to harm the appellant or derive any benefit for himself. This being so, we find that there was no occasion for asking the appellant to establish the fact of mala fides, as could have enabled us to hold that the impugned order passed by the competent authority was without jurisdiction and coram non judice on account of the presence of mala fides.

13. This is clearly a case which would fall on account of its inherent unsoundness, to say nothing of various other circumstances appearing from the record to show that he had never been entitled to any relief, that nobody acted against him with any malice and that the departmental actions having a bearing on the question of his promotion were all done in accordance with law. The appellant seems to have made an attempt to make out a case where none existed and in this attempt he has said things in the grounds of appeal which are ex facie meaningless, sham, and without any substance.

14. Only a few examples will be enough to establish the infirmity of this case. In Para. 2 of the appeal he pleaded that in the year 1978-79, some posts in BPS-19 fell vacant and that he being the senior most was eligible to be promoted. These pleadings are evidently bogus, because, as would appear from what follows in the same paragraph, he was fully aware of the fact that he was not eligible for promotion in the year 1978-79, for he had not completed seven years service in Grade-18 in accordance with rules. We fail to understand what logic was there in the pleadings that he was eligible for promotion, when he knew that this in fact was not the case.

15. Then, in the same paragraph he said that his case for promotion was not processed because he had not completed seven years service in Grade-18 and that "instead a great illegality was committed in that in the garb of stop-gap arrangement in total contravention of the approved recruitment rules, officers from outside the Organization were brought in and posted in BPS-19 and 20." We fail to understand how the posting of other officers in BPS-19 and 20 affected the appellant when he himself was not eligible for promotion.

16. In para i(a) of the grounds of appeal, it was alleged that "right from the earliest when the appellant became due for promotion to Grade-19, Grade-19 officers like Mr. Abdur Rashid were brought in the Department from outside the cadre when it is specifically provided in the Recruitment Rules that Grade-19 posts are to be filled by promotion of Grade-18 officers in the Organization." The record however shows that Mr. Abdur Rashid was brought to the Organization on transfer in the year 1978 long before the appellant became due for promotion. In the same paragraph it was pleaded that "this being replete with illegality and malice, the appellant made a serious grievance by way of representation dated 16-8-1980." It is not possible to appreciate how the posting of Mr. Abdur Rashid on transfer to a Grade-19 post was either illegal or malicious.

17. In paragraph i(b) it is pleaded that "the appellant was, therefore, subjected to malice and personal grudge and transferred to Lahore vide order dated 24-12-1979 by incorrectly showing that the transfer was on account of personal request of the appellant." Even if it was so, we fail to understand how malice was involved in the order of his transfer.

18. In para i(c) it is pleaded "that during this time a number of Grade-19 posts had fallen vacant in the Organization and in terms of para. 2 of the Establishment Division office Memo. No. 3/7/74-A.H-11, dated 28-7-1974, the case of the appellant was not submitted for relaxation in the length of service period for promotion to Grade-19 with the plea that as Grade-18 officers of the Organization did not have the requisite qualifying service, therefore, officers from outside the Organization had been imported to handle the affairs of the department:" These allegations hardly require any comment. The appellant appears to have intended a suggestion that mala fides were involved because the competent authority did not promote him in relaxation of the rule regarding length of service. In no way, the competent authority was under any legal obligation to relax the rule for an undue favour, and the allegation that its failure to do so was the result of any malice, is evidently baseless and frivolous. I feel constrained to say that the appellant's pleadings on this point, cast an adverse aspersion on his entire case and lend it a colour of frivolity.

19. Further, address to similar pleadings seems to be unnecessary and it would be sufficient to say that they do not make out any case, as could have entitled him to any relief in this matter. A few facts have been mentioned, which do not show that the departmental authority concerned acted with mala fides while dealing with him. Nothing was in contravention of the rules in so far as he was concerned and we find it impossible to hold that the impugned order of respondents Nos. 3 to 5's promotion was the result of any malice or ill-will. It may be pointed out that we find a frequent mention of the names of M/s. Abdur Rashid and Mansoor Alam Aqil in connection with the allegations of mala fides. Mr. Abdur Rashid was brought to the Organization on deputation in the year 1978 when the appellant had not become eligible for promotion and was repatriated in the year 1984. As for Mr. Mansoor Alam Aqil, he did belong to the Organization, but he remained away from it on deputation to the Provincial Government from 1978 to 1988. This being so, we do not find it possible to hold that these persons could possibly have any grudge against the appellant, as would have made them interested against him and given a tinge of malice to their actions. There is nothing on the record to show that they could be affected by his promotion and there is no reason why they should have harboured any ill-will towards him.

20. We also find mention of the name of one Mr. Habib Wahab Alkhairi in respect of the allegation of mala fide. It is alleged that a "Journalist named Mr. Habib Wahab Alkhairi in collaboration with one of the senior officers of the Organization viz. Mansoor Alam Aqil who had become vindictive to the appellant because of the aforementioned representation submitted by the appellant against him in 1978 started a vilification campaign against the Organization in an article published in weekly Sahafat." These allegations are absolutely irrelevant to the question of mala fides and they do not promote the appellant's case in any manner, which is in addition to the fact that his complaint against Mr. Habib Wahab Alkhairi under sections 500, 501, 502 and 504, P.P.C. was dismissed by the Sessions Judge with the finding that the charge against the accused had not been established and that his appeal to the High Court met the same fate. It was held that each of the facts alleged by the complainant casting aspersion on his character, were considered by the learned trial Court one by one and refuted not only reasonably but also in a sound manner. These judgments proved that there was no campaign of vilification against the appellant and in any case, it was not the result of malice or ill-will.

21. For these reasons, we hold that there is nothing on the record to establish that the appellant's supersession and the promotion of respondents Nos.3 to 5, was the result of mala tides of the departmental authority or the Federal Selection Board. As a matter of fact there is not even an allegation that the Members of the Board had any malice against the appellant and that their deliberations were the result of any such malice. The appeal is, therefore, dismissed as being incompetent and without any substance. Under the circumstances, there will be no order as to costs. Parties to be informed. M.Y.H./555/Sr.F. Appeal dismissed.