2003 PLP (C (PLC(CS))

Tariq Javeed, D.A. ‑G. for Respondent No.

1. Abdul Qadir Khattak and Wali Khan Afridi for Respondents Nos.8 to

16. Date of hearing: 7th May, 2003. IJAZ‑UL‑HASSAN, J.‑‑‑Vide Notification dated 7‑4‑2001, applications were invited from the Ministerial Staff of the University of Peshawar for the posts of Superintendents (BPS‑16), Assistants (BPS‑11) and Senior Clerks (BPS‑7). Applicants for the posts of Superintendents were required to possess M.A./M.Sc. Degrees with nine years service at least with five years service in BPS‑

11. All the eligible candidates were asked to appear for written/screening test on 8th February, 2002 vide letter dated 30‑1‑2002. The successful candidates in the written test were interviewed by the Selection Committee on 26th and 27th April, 2002, on the recommendation of the Selection Committee, the competent authority approved the appointments, of Ghulam Mustafa Khan and 8 others, respondents 8 to 16 herein, as Superintendents vide Notification dated 2‑5‑2002.

2. Syed Imam Shah, Muhammad Khan and Syed Rasool Shah petitioners, Senior Scale Assistants, Examination Section, University of Peshawar, feeling aggrieved, have invoked Constitutional jurisdiction of this Court by filing instant writ petition under Article 199 with the prayer that impugned notifications be declared as void, without lawful authority and of no legal effect with further prayer that petitioners be declared entitled for promotion to the posts of Office Superintendents.

3. In the comments submitted on behalf of Vice Chancellor and Registrar, University of Peshsawar, an objection regarding maintainability of the petition has been raised and it is pleaded that petitioners are not I aggrieved persons' within the meaning of Article 199 and that no vested or secured rights of the petitioners has been infringed so as to justify interference of this Court in its Constitutional jurisdiction.

4. Mr. Shahbaz Khan, Advocate appeared on behalf of the petitioners whereas the University Authorities i.e. respondents 3 and 4 were represented by Mr. Abdul Qadir Khattak, Advocate. We have heard in detail the arguments of learned counsel for the parties and have carefully perused the documents annexed with the petition.

5. There is no denial of the fact that after initial recruitment in BPS‑5, the petitioners were promoted in due course to the posts of Senior Clerks in BPS‑7 and then to Senior Scale Assistants in BPS‑11 on the basis of seniority‑cum‑fitness. This practice of promotion was not supported by law and it was considered appropriate to replace it with a new method of appointment. Since vacancies of Superintendents occurred, due to promotion and retirement etc., applications were invited by Deputy Registrar, University of Peshawar and suitable candidates were selected and appointed against the posts of Superintendents. The grievance of the petitioners in essence is that vacancies of Superintendents should have been filled through initial recruitment and not through new mode of selection/appointment. A perusal of the record would reveal that in order to undo the previous practice, the matter was placed before the Syndicate in its meeting held on 29th March, 2003. The old practice was put to an end and new method of recruitment was introduced in terms of section 16 of the University of Peshawar Service Statute 1997, governing the terms and conditions of the service of employees of the University. Section 16 (ibid) is reproduced below for facility sake:‑‑ "Section

16. All appointments shall be made on the basis of efficiency and merit, through the appropriate Selection Boards, seniority being taken into consideration only when merit, in the opinion of the Appointing Authority, is equal."

6. The Notification in question, lying down the eligibility criteria for the posts of Ministerial Staff (BPS‑5 to BPS‑16) were issued with the approval of competent/appointing authority. In tact the criteria was approved by the Vice Chancellor exercising his powers under section 13(3) of the University of Peshawar Act, 1974, inanticipation of the approval of the same by the relevant bodies of the University. The decision of the Vice‑Chancellor was placed before the Syndicate which approved 'the same. The decision of Syndicate was notified vide No.17091‑93/F‑45/A -1/Estt. dated 16‑12‑2002. It may be mentioned here that under the relevant statute, for the purpose of making initial appointment against vacant posts of Superintendents, the respondent University could advertise such posts in the newspapers thereby leaving it open to the eligible candidates from outside the University to compete for the same; but in view of the absence of automatic system of promotions for the ministerial staff under the existing law, the respondent No.3 being the competent authority, invited applications from eligible candidates from within the University, thereby riving them the chance to compete for appointment on promotion against the said posts. Admittedly, the petitioners had not participated in the competition. They are not qualified for promotion, to the next higher position without undergoing the ordeal of written test and interview. The petitioners may be having vast experience of office work but they lack the maximum academic qualification. Mere sufficiency in experience does not make them eligible for promotion from BPS‑11 to BPS‑

16. The necessary approval regarding change in policy, is stated to have been given during pendency of the present writ petition. It has been vehemently contended by learned counsel for petitioners that grant of approval at such stage, by itself, smells of mala fides. The submission of the learned counsel is devoid of force. Mala fides is one of the most difficult thing to prove and the onus is entirely upon 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. Mala fide 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 inquiry be launched upon merely on the basis of vague and indefinite allegation. A person alleging that an action has been taken mala fide is required 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 people. If an authority is needed on the point reference can be made to the Federation of Pakistan v. Saeed Ahmad Khan and others (PLD 1974 Supreme Court 151). It is true that where rules, regulations and policy have been framed for regulating, appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent authority would entitle an aggrieved person to challenge the same but in the instant case no mala fide has been established and new method of appointment and promotion has been introduced for valid reasons which hardly justify interference of this Court in its powers under Article 199 of the Constitution. It is not denied that wherein an administrative or Executive Officer acts under a law, the High Court will control the action by an appropriate order only if he goes out of law in exercising a jurisdiction not vested in him. Proceedings under Article 199 of the Constitution will be competent against action found in violation of law laid down by the superior Courts. In the instant case, learned counsel for the petitioners has remained unable to persuade us to hold that petitioners have been made victim of excesses and they are sufferers at the hands of the University Authorities, and the equality and rule of propriety demands of this Court to come to the rescue of the petitioners and declare the impugned action as void, illegal and discriminatory. Learned counsel for the petitioners has placed reliance on Dr. M. Afzal Beg v. University of Punjab and others (1999 PLC (C.S.) 60), Managing Director (Powers) WAPDA and others v. Muhammad Luqman (PLD 2003 Supreme Court 175), Sardar Sultan Ahmad Khan v. Government of Punjab, and others 2001 MLD 1013 and Saleem and Co. v. The Deputy Collector of Customs, Lahore Dry Port, Mughalpura, Lahore and. 2 others (PLD 2001 Lahore 5) in order to show that the impugned notifications are violative of law and aimed to deprive the petitioners of their legitimate right of promotion. The cited rulings are clearly distinguishable and have no bearing on the facts of the present case. The rulings are of no help to the petitioners.

7. In view of what has gone above it follows that petitioners have not been able to establish a case justifying interference of this Court in its extra ordinary Constitutional jurisdiction. The old practice regarding appointment and promotion has been abandoned by the competent authority and a new mode of selection has been adopted which is not open to exception. The writ petition is not maintainable. The same is dismissed with no order as to costs. H.B.T./828/P Petition dismissed.