1996SCMR 1359 (PLP)

SAAD SAOOD JAN, ACTG. C.J.

The appellant joined service in the N.-W.F.P. Public Service Commission, Peshawar, on 14-6-1975 as temporary stenographer, Grade-II. He was confirmed in his appointment on 16-7-1980. The Departmental Promotion Committee considered his case for promotion to a post in the senior scale Stenographer (B-15) but did not find him fit. A few years later the Committee cleared him for promotion. Accordingly, he was promoted as senior scale stenographer (B-15) with effect from 17-2-1990. However he declined to avail of the promotion on the ground that he should have been promoted with effect from 1-1-1986. He filed departmental representations against the refusal of the Commission to promote him with effect from 1-1-1986 but these met with no success. He was informed on 20-1-1992:-- "Your plea regarding promotion from 1-1-1986 is not correct as your case was referred to the Departmental/Promotion Committee, but the Committee did not find your fit for promotion on the 1st occasion. Later on, the Committee recommended your case, upon which you were promoted to senior scale stenographer B-15 which has been refused by you. When you have foregone your right and the case was decided accordingly, at this stage, you are not supposed to reagitate your right and re-open the case at such a belated stage." He invoked the Constitutional jurisdiction of the High Court to call in question the legality of the order of the Commission declining him to promote him with effect from 1-1-1986 but failed. He has now come in appeal to this Court by special leave.

2. Leave to appeal was granted to the appellant to consider whether the departmental authorities were justified in withdrawing the promotion order of the appellant because he refused to accept the same on the ground that he was claiming promotion in the grade from1-1-1986.

3. It is to be noticed that in his Constitutional petition the appellant had only called in question the refusal of the Department to grant him promotion with effect from 1-1-1986. Now, the Departmental Promotion Committee did not find him fit for promotion from that, date. Its decision was based on the performance record of the appellant and in the absence of any allegation of mala fide it could not be questioned in writ jurisdiction. In the circumstances, even if it be assumed that the High Court had the jurisdiction to entertain a petition in a service matter the High Court was justified in declining the relief sought by the appellant. As regards the withdrawal of the order of promotion he is himself to be blamed for it for he compelled his department to adopt that course by refusing to accept the promotion unless it was back-dated to 1-1-1986. After Departmental Promotion Committee had found him unfit for promotion the request of the appellant could not be granted. It was thus the appellant's own unreasonable attitude, amounting to indiscipline, that forced the Department to withdraw the order of promotion. This appeal is clearly without any merit and is hereby dismissed. A.A./M-3033/S Appeal dismissed.