2004 PLP (C (PLC(CS))

Muzaffar Hussain v. The Superintendent of Police (2002 PLC (C.S.) 442). Miss Rukhasana Ijaz v. Secretary, Education, Punjab and others (1997 SCMR 167). Khalid Mehmood Wattoo v. Government of Punjab and others (1998 SCMR 2280). Confronted with this position, the learned counsel for the petitioner relies on the case reported as Muhammad Zafeer Abbasi v. Government of Pakistan through its Secretary, Establishment Division, Islamabad (2003 PLC (C.S.) 503 (D.B.) to contend that where opinion as to unsuitability of an officer for promotion was not based, on any material, then decision based thereon would become arbitrary and open to correction by High Court in exercise of Constitutional jurisdiction.

4. I have considered the arguments of the learned counsel for the parties and gone through the record. The provisions of section 9 of the Civil Servant Act, 1973 are relevant for the just decision of this case, which reads as under:-- "

9. Promotion.

(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.

2. A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed-- (a) in the case of selection post, on the basis of selection on merit; and (b) in the case of a non-selection post, on the basis of seniority-cum -fitness."

5. In report and parawise comments submitted by the respondent, it has been admitted in reply to para.3 of the writ ,petition that, "the post of Scientific Secretary BS.20 PCST was converted into selection post as per decision of the competent authority, Pakistan Council for Science and Technology, Ministry of Science and Technology in 1992 advertises in the National Press accordingly. The post of Chief BS-20 was not upgraded but created in 1997 and Dr. S.M. Junaid Zaidi was promoted against this post. His original post in BS-19 was surrendered to the Government". Similarly, in reply to para. 5 of the petition it has been admitted that:-- "During last year on 12 July, 2000 a case was referred to Ministry of Science and Technology for promotion of Mr. Muhammad Afzal, Deputy Chief (Stat) BS-19 to the post of Chief BS-20 which was not approved, The incumbent left this organization due: to some personal reasons and settled in Canada. The competent authority PCST send his case in view of devotion towards duties and ability to work on the post of Chief BS-20. "

6. From the above-stated facts, it is clear that the post of Chief, Science and Technology in BS-20 has fallen vacant. Under the Rules applicable the post of Chief Technology is a post which is to be filled 100% by promotion and not through recruitment by advertisement. Further, the petitioner has been discriminated, as earlier Dr. S.M. Junaid Zaidi was promoted and Mr. Muhammad Afzal was referred to the Ministry of Science and Technology for promotion. The action of the respondent to invite applications from the general public for filling the post of Chief Technology through direct recruitment was against the rules and is based on discrimination and thus become arbitrary and open to correction by the High Court in exercise of Constitutional jurisdiction. I am fortified for this view from the case of Muhammad Zafeer Abbasi (2003 PLC (C.S.) 503 (D.B.). Resultantly, this writ petition is allowed, the action of the respondent for filling the post of the Chief Technology, through direct recruitment from general public is without lawful authority. The case of petitioner Tariq Mehmood along with other contestant candidates from the Department be put up for promotion under the rules applicable for filling of the vacant post of the Chief Technology. Whether the petitioner fulfils the criterion laid down in the relevant rules for being promoted as Chief Technology shall be decided by the authorities in accordance with law on merits. Disposed of. H.B.T./T-140/L Petition allowed.