2022 PLP (C (PLC(CS))

SAHIBZADA ASADULLAH, J.

Through this single judgment, we intend to decide the following cases, having identical facts and law points involved therein.

1. W.P No. 1127-D/2017 [Farmanullah v. Government of Khyber Pakhtunkhwa and others]

2. W.P No. 702-D/2017 [Sharifullah v. Government of Khyber Pakhtunkhwa and others]

2. By virtue of these petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, it is averred that the petitioners seek the directions to award promotion to the petitioners on the post of Junior Clerk in preference to Mr. Amir Muhammad son of Yar Muhammad/respondent No. 5 and thereby by restoring the seniority of the petitioners, the promotion of respondent No.5 may be recalled. They have further prayed that the petitioners have been deprived of promotion on the basis of fitness, therefore, the fitness criteria, as determined by official respondents is highly unjust, illegal and the policy in vogue of the Provincial Government, hence, this constitutional petition.

3. On direction of Court order, the comments were called from the respondents, which were submitted accordingly, wherein they submitted that the competent authority/Department had fulfilled all the codal formalities according to Rules and policy in vogue in the process of promotion for the post of Junior Clerk. 4, Heard. Record perused.

5. In this case facts admitted on the record reveal that there are 33% share of class-IV employees for the purpose of promotion to the post of Junior Clerk as per the recruitment policy of the provincial government. In every provincial department, the posts of Junior clerk are to be filled through 67% direct recruitment on the basis of open merits, whereas 33% posts are to be filled by way of promotion from amongst the holders of the posts of Naib Qasid, Chowkidar, etc on the basis of Seniority-cum-fitness. For the purpose of such promotion to the post of Junior Clerk, the Naib Qasid, Chowkidar etc must possess Matric Qualifications. Record further suggestive that total number of four posts of Junior Clerk were laying vacant in the office of District Education Officer (Female), Education Department, Tank and out of said posts 33% quota was reserved for the class-1V who possess minimum matric qualification. To this effect, the respondent No.4 issued an advertisement wherein applications have been invited from the class-IV for promotion against 33% quota to the post of Junior Clerk. The petitioners having higher education as well as seniority applied for the post of Junior Clerk on the basis of 33% share of Class-IV, ultimately, the petitioners were dropped from promotion to the post of Junior Clerk and respondent No.5 was promoted on the basis of fitness.

6. The moot issue which requires consideration and determination before this Court is that whether the fitness criteria, as determined by the official respondents with regard to promotion for the post of Junior Clerk is highly unjust and against the policy in vogue of the Provincial Government?. Before answering to this question, it will be essential to highlight that 'Eligibility for promotion' and 'determination of fitness' are two different criteria. Eligibility primarily relates to the terms and conditions of service and their applicability to the civil servants whereas question of fitness is a subjective evaluation on the basis of objective criteria. Section 9(1) of the Civil Servants Act, 1973 provides that civil servant has a right to be considered for promotion if eligible on account of possessing the prescribed minimum qualification etc. A civil servant however has no vested right to be promoted. Section 4 of the Service Tribunals Act, 1973 contemplates that any civil servant who is aggrieved with respect to the terms and condition of the service has right to file appeal before appropriate tribunal established for such purposes within prescribed period. On the other hand in the matters relating to determination of fitness of a civil servant to be promoted to a higher post, the law does not provide any remedy of appeal or representation in view of section 22 of the Act of 1973. Petitioners in this case therefore have no right to appeal or representation against the impugned recommendations of Department/respondents for promotion of the post of Junior Clerk. In view of the specific bar contained in clause (b) of proviso to section 4(1) of Service Tribunals Act, 1973 the petitioners lacking adequate efficacious remedy therefore has a right to seek the constitutional remedy. This petition therefore is not violative to the mandate of Articles 199 and 212 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance be made upon Miss Zubaida Khatoon v. Mrs.Tehmina Sajid Sheikh and others (2011 PLC (C.S.) 596) (Supreme Court of Pakistan).

7. In legal sphere, seniority-cum-fitness means that due and equal regard should be paid both to seniority and to fitness, and, since fitness is a matter of degree, it would appear that a senior person can be overlooked in favour of a junior who is demonstrably more fit for the appointment that he is. Thus, the provision for promotion on the basis of seniority-cum-fitness permits the respondents/Department to select a junior, who is demonstrably more fit than the senior. In other words, the rule of comparative assessment was applied. The principle of seniority-cum-merit or seniority-cum-fitness visualizes only rejection of the unfit. There is certainly difference where the promotion is based on the pure seniority and promotion based on seniority-cum-fitness. Likewise, in cases of promotion based on seniority cum-fitness apart from pure seniority, the person's fitness, to hold the post to which he may be promoted, his physical fitness, his acquirement of qualifications prescribed for the promoted post or such other positive factors from which it would be obvious that he is unfit for promotion would have to be taken into account.

8. Shorn-of unnecessary detailed to the merits of the case, it is beneficial to refer the method of recruitment, qualifications and other conditions specified in columns 3 to 5 which shall be applicable to pots of Junior Clerk in the Khyber Pakhtunkhwa Civil Secretariat as infra : Junior Clerk (i) Matriculation with second division or equivalent qualification from a recognized Board and (ii) A speed of 30 words per minute in typing. 18 to 30 years a) Thirty-three percent by promotion on the basis of seniority-cum-fitness, from amongst Daftaris, Gestetner Operators Qasids and Naib Qasid including holders of other equivalent posts in the Secretariat with two years' service as such, who have passed SSC examination; and b) Sixty-seven percent by initial requirement. From the bird's eye view of above tabulated criteria for the post of Junior Clerk, it is visible that minimum qualification for appointment or promotion to the post of Junior Clerk, a speed of 30 words per minute in typing is essential and sine qua non. Admittedly the petitioners have desperately failed in the typing test which is necessary requirement for promotion as Junior Clerk, therefore, the petitioners are not eligible according to the Rules and policy as they have failed in typing test.

9. Plea of malice or discrimination raised by the petitioners qua their deferment is not substantiated through any speck of material. We do not find any jurisdictional error, legal infirmity or material irregularity in the impugned recommendations made by the Departmental Promotion Committee, therefore, the same do not call for any interference by this Court in exercise of constitutional jurisdiction.

10. Adherence to the statutory rules and procedures for selection of public jobs is the only surest method to objectively select the best out of the best from a competing lot; it is rooted into the fundamentals of equal opportunity, equal treatment and equal protections; any deviation therefrom would rock the bottom of the Republic, resting upon equiponderance. State authority in every sphere of life is a sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by law; it is their bounden duty to do right to the all manner of people, without any distinction. On the basis of said analogy, the respondents/Department have rightly denied the petitioners from the promotion being failed candidates in typing test which is sine qua non for the post of Junior Clerk.

11. Even otherwise, there is no vested right accrued to the petitioners in case of promotion. Promotion against the non-selection post shall be made on the basis of seniority-cum-fitness and a civil servant cannot claim or ask for a promotion as a matter of right, as it is within the exclusive domain of the competent authority or departmental selection committee. Neither the promotion can take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion. Thus, the fitness criteria, as determined by the respondents/Department is just and in accordance with Policy in vogue by the provincial government and depriving the petitioners from award of promotion to the post of Junior Clerk on the basis of fitness is on compact ground, needs no interference to invoke the constitutional jurisdiction of this Court.

12. For the reasons supra, the instant writ petition as well as connected W.P. No. 702-D/2017 are dismissed accordingly. MQ/41/P Petitions dismissed.