P L D 1960 Supreme Court (Pak (PLP)

AMIRUDDIN AHMAD, J.-This is an appeal by special leave of this Court against an order of the High Court of West Pakistan at Lahore passed on a writ petition filed by 18 persons, who were Inspectors in the Central Excise and Land Customs Department of the Government of Pakistan, in class III, by which the Central Board of Revenue was directed by the High Court that their promotion shall not be regulated by the rule of pure selection. The petitioners to the High Court were appointed as Inspectors on a scale of pay of Rs. 125-25/2-275 before the 20th January 1954 in class III (non-gazetted) under the Central Board of Revenue, Government of Pakistan, when the promotion to the next higher post of Deputy Superintendent, Central Excise and Land Customs, also in class III in the grade of Rs. 185-15-350, a used to be made on the basis of `seniority-cum-fitness'. On the 20th January 1954, the Government of Pakistan, Central Board of Revenue, Karachi, decided that promotions to the post of Deputy Superintendent would henceforth be made by selection on merit on the recommendations of the Departmental Promotion Committees and only those Inspectors would be considered for e promotion who had either passed the departmental examination or had been exempted therefrom. On the 11th April 1956 the post of Deputy Superintendent was taken out of class III and upgraded to class 11 in the general excise service on an increased scale of pay of Rs. 200-15-330-EB-15-500. At the same time the scale of pay of Inspectors was raised to Rs. 125-10-225-EB-10 275-EB-25/2-350. This increased scale was evidently by way, of solatium to those Inspectors who would not get promotion under the departmental examination system. In the beginning of 1957 the Departmental Promotion Committees were abolished and selection for promotion to the newly-created post of Deputy Superintendent in class II was based solely on the result of competitive examination held by the Department which was open to all Inspectors of Central Excise and Land Customs. Although the system of seniority-cum-fitness being treated as the basis of promotion was superseded by one pf pure selection as long ago as the 20th January 1954, the petitioners filed their writ petition on 18th June 1957. In that petition the main grievance of the petitioners, as expressed in paragraph 6, appears to be as follows :

"That previously rejection by Departmental Promotion Committee was no bar to subsequent consideration. Now only two chances will be given." In the counter-affidavit on behalf of the Central Board of Revenue it was stated as follows :

"That there was no statutory rule or regulation laying down the basis for determining the fitness of an Inspector for the post of Deputy Superintendent, and in order to place the whole matter on a sound basis the system of departmental exami nation was introduced with effect from the 21st February 1957. That to start with, a person seeking promotion to the post of Deputy Superintendent could avail of only two chances in the aforementioned examination. But this bar has since been removed and the petitioners can now take as many chances as they like for establishing their suitability for promotion". This was on the 19th October 1957 long before the order of the High Court was passed. Dealing with the arguments advanced on behalf of the petitioners that no variations could be made in the method of assessing fitness by a competitive examination the High Court observed as follows :

, "In the absence of any fixed criterion in this behalf it is open to the authorities to prescribe a written test as a qualifying examination so that candidates are ad judged as having reached a certain standard of capability and efficiency. The success in the test with a fixed percentage of marks may be held to be sufficient indication of fitness in the subjects that are included in the examination", and it further held :

"But since the factor of seniority cannot be ignored, the examination should not be turned into a competitive test as a result of which those who secure the highest marks irrespective of their seniority get promoted", and they ended by observing as follows :- "As he belongs to the older batch, his promotion shall not be regulated by the rule of pure selection." In our opinion the High Court made the above order without taking into consideration all the factors relevant to the case, namely, in the first place the taking out of the post of Deputy Superintendent of the category of class III, to which the petitioners belong amounted to abolition of the post and its upgrading on a higher scale of pay to a creation of the new post; appointment to which required a stricter test of efficiency by a competitive examination. Besides, all the Inspectors were given the right to sit in the examination for any number of times to qualify themselves for promotion. At the same time the pay scale of those, who could not succeed, was raised to the limit of Rs. 350, namely, the same pay as that of a Deputy Superintendent when it was a class III post. In the circumstances it cannot be said that any rights of the petitioners were infringed, which they could enforce by a writ petition. The Government has every right to make rules to raise the efficiency of the services, and if no vested right is denied to a party, the High Court had no juris diction to interfere by means of a writ. The order of the High Court, which is not supported by sound reasons, is hereby set aside and the appeal is allowed. K. M. A./A. H. Appeal allowed.