1980 PLP 566 (SCMR)

(On appeal from the judgment and order dated 24-6-1979 of the Peshawar High Court at Peshawar in Writ Petition No. 618 of 1979).

Seniority--promotion.-Petitioner, Family Planning Officer (Grade 16), accepting offer of ex-cadre post as Social Scientist laving higher scale of pay and status viz.a-viz a Family Planning Officer- Such appointment being by selection as opposed to promotion giving petitioner a chance of bypassing his senior colleagues petitioner, held, cannot complain against promotion of his senior colleagues to their own cadre. Nemo for. Respondents. MUHAMMAD AFZAL ZULLAH, J.-Leave to appeal is sought from the order of the Peshawar High Court dated 24-6-1979 ; whereby petitioner's writ petition regarding his claim to a. grade 18 post in the Family Planning Organization/ Board, was dismissed in limine. Respondent No. 1 had in their written reply in the High Court taken a preliminary objection to the maintain ability of the writ petition because "the petitioner being a civil servant", the petition with regard to the terms and conditions of his service was barred under Article 212 of the Constitution. Learned counsel for the petitioner stated that the complete take-over of the Family Planning Organization by the Government was not accomplished and that is why it appears the High Court did not dismiss the petition on this ground. As there is no material on the record in any form to resolve this question and because after hearing the learned counsel we are of the view that otherwise too there is no substance in the petition, we proceed to dispose it of on merits. The petitioner was appointed as Family Planning Officer in Class II by the Provincial Family Board on 4-5-1967. After some years two Training-cum-Research Institutes were established. Posts therein of Social Scientists were to be filled by selection. The petitioner applied for this post and was selected by a Board. He took over charge of this post on 16-11-1973 at a research institute. This according to the petitioner is a Grade 17 post and the post earlier held by him was of Grade

16. Respondents Nos. 2 to 17, it was the petitioner's case, were-in Grade 16 prior to his appointment as a Social Scientist and that, they have since been promoted to Grade 18 posts while the petitioner, who was senior to them to Grade 17, has been ignored. A Division Bench of the High Court held that the post which the petitioner is presently holding in Scale No. 17 was offered to him and he willingly accepted the same within the stipulated period of 7 days. In the circumstances, it does not lie in the mouth of the petitioner to say that he was forced to swept the said post in Scale No. 17 against his wishes. Even otherwise this writ petition cannot be looked into, as writ petition on similar grounds filed by the petitioner was withdrawn. The record wound also show that the post which the petitioner is presently holding is an ex-cadre post and it has no link with the line of the posts which the resj9tdtnts were/are holding". Learned counsel for the petitioner has contended that the petitioner was entitled to a Grade 18 post in preference to respondents Nos. 2 to 17, who were still in Grade 16, when he was granted Grade

17. He has also contended that the petitioner is a highly qualified person and he has suffered for no fault of his. It is admitted that (excepting one) the respondents (2-171 were senior to the petitioner in Grade

16. He, it is an established, fact, was offered an ex-cadre post as a Social Scientists, which was in a higher scale of pay and was also higher in status vis-a-vis a Family Planning Officer The petitioner accepted it. It was an appointment by selection-promotion was not involved. After having made a choice at the relevant time for better status and scale, which gave him a chance of bypassing his senior colleagues, he cannot now complain against their promotion in their own cadre. The view taken by the High Court is unexceptionable The petitioner, if so advised, may seek his promotion to the post of District Population Planning Officer; Section Officer, which according to item 4 of the Appendix to rules relied upon by him (Annexurd' `H') is to be filled (to the extent of specified percentage) "by promotion from amongst the senior Population Planning Officers/Social Scientists, on the basis of selection.". With these observations this petition is dismissed. Petition dismissed.