1995 PLP (C (PLC(CS))

(b‑2)That the petitioner is also entitled to Special Technical Allowance of about Rs.2,500 per .month as per Government Policy which allowance has been granted to other employees of SUPARCO; (b‑3) Respondents may be directed to hold in abeyance or reverse back all the promotion orders so far made, till the seniority of the petitioner is decided; (c) That the petitioner is further entitled to higher pays having, achieved the ceiling of pay in Group‑X since December, 1986; (d) Costs of the petition; (e) Any other and/or better relief which this Hon'ble Court may deem fit under the circumstances to grant."

2. The contentions raised in the petition by the petitioner mainly are that the petitioner is a senior most Principal Scientific Officer in the Organisation of respondent No. 1, while three other persons, namely, Abdul Ghafoor; M. Nasim Shah and Zafarul Hassan are junior to him. According to the seniority list issued, showing the position as on 15‑4‑1992, .the present petitioner is placed at number one, while the above three said incumbents are placed on Nos. 3, 4 and 5, while Shahab Zafar Jillani is at No.

2. The contention of the petitioner is that the said incumbents at Serial Nos. 3, 4 and 5 being junior to petitioner, have been promoted over and above the petitioner being senior most Scientific Officer, which act of the respondents is a mala fide act contrary to the Rules as applicable and is also in violation of the provisions of ESTACODE he has pointed out that the Chairman, has grudge against him and therefore, he has been deliberately affected adversely at his instance. As against this Mr. Ashiq Hussain, Advocate appearing for respondent No. 1 has submitted that this petition is not maintainable in law as through this petition the petitioner is seeking promotion, which is not a vested right.

3. We have heard Dr. Muharram Ali Sanjrani‑in person and also the counsel for the respondent and gave anxious consideration to their submission.

4. The question involved in the present case is whether promotion to superior posts can be claimed as a vested right. In the case of Muttaqi Hussain Rizvi v. Province of Sindh and another reported in PLD 1978 Kar. 703, the same point had come under consideration and it was observed that right to be promoted is not a vested right but the right to be considered for promotion is a vested right and, eligible persons not considered for promotion can seek a remedy through a Court of law by filing a civil suit or by invoking the A Constitutional jurisdiction for relief to this extent and. the promotion of persons not otherwise eligible for promotion can also be challenged if the same amounts to denial of the right of the incumbent. 'There is no cavil about this legal proposition. In the light of this principle of law the fact that is to be examined is whether present petitioner was considered for promotion. Certain documents have been placed on' record during the course of hearing. The minutes of Departmental Promotion Committee, meeting held on 15‑5‑1991, has been placed on record, which shows that the names of seven persons including the present petitioner and said three incumbents, who have been duly promoted, we're considered. In these minutes the position of the present petitioner under the heads `quantified position., `output and quality ` and `integrity' have shown to be 45%, 46% and 56% which in each head is the lowest. It is obvious that because of such report he cannot have been preferred over a junior who had higher percentage in these heads. The other document on record is minutes of Departmental Promotion Committee, meeting held on 28‑4‑1992. In this meeting the seven incumbents, including the present petitioner and the said three other incumbents, who stand at serial Nos. 3, 4 and 5, were also considered and the percentage about present petitioner on the head 'quantified position' was shown 42% that is the lowest in all the seven persons considered for promotion. It is also brought on record that an appeal was filed by the petitioner earlier in the year 1991. In these circumstances it can safely be concluded that the case of the petitioner was considered but because of the above reports against him, he was not found fit to be promoted. Similar position was in the meeting of Departmental Promotion Committee held on 10‑2‑1990. The petitioner has referred to Rules of Service, copy of which has been placed on record. These are called the Pakistan Space and Upper Atmosphere Research Commission Employees' Service Regulations, 1989 and are promulgated in exercise of the powers conferred by section 24 of the Pakistan Space and Upper Atmosphere Research Commission Ordinance, 1981, and are published in the Gazette of Pakistan of 15‑3‑1989. Regulation 14, deals with the appointments, which shows that the appointment shall be made by direct recruitment and promotion or by transfer (deputation). It also provides that percentage of posts reserved for promotion and direct recruitment shall be as fixed by the Commission. However, in the present case; the matter in dispute pertains obviously to the promotion post. Regulation No. 19, deals with the promotion, which reads as under:- "

19. Promotion.‑‑‑(1) Promotion to a post reserved for promotion under Regulation 14(2) shall be made from amongst employees holding the next lower post possessing such minimum qualifications and experience as may be prescribed by the Commission from time to time: Provided that the Chairman may, for reasons to be recorded in writing, relax, in special, cases, such of the conditions of promotion as it may deem fit. (2) A post referred to in sub‑clause (1) above may either be a selection post or a non‑selection post to which promotion shall be made: (a) in the case of a selection post on the basis of selection on merit; and (b) in the case of a non‑selection post on the basis of seniority‑cum fitness. (3) Non‑selection for promotion to a post shall not be appealable."

4. A plain reading of the above Regulation would show that in case of non‑selection, which means promotion post, the same are to be filled on the basis of seniority‑cum‑fitness. The petitioner has also referred to clause (4) of Guide Lines for Departmental Promotion Committee, as provided in the ESTACODE. This clause also provides that the criteria for promotion in their case, who continue, to be the technical qualifications, experience and accomplishments (research, publications etc.) relevant to their specialism. The cumulative effect of the above provisions is that such promotions are to be made on the basis of not only seniority, but also on merit considering all factors. In the present case, as already pointed out, in the three Departmental Promotion Committee Meetings for the years 1990, 1991 and 1992, the petitioner has acquired much lower percentage with regard to discharge of his duties, integrity etc., and therefore, he was not promoted. The petitioner has placed reliance on the case of Muhammad Anwar v. The Secretary, Establishment Division, Rawalpindi and 2 others reported in LPLD 1992 SC

144. It may be observed that the facts in, this case were different than the present case an t at this was a case in appeal before the Honourable Supreme Court, challenging the judgment of the Federal Service Tribunal and provisions of Article 212 of the Constitution were applicable. The point in this case was as to whether the remarks `good' and `average' given to the incumbent would tantamount to the expression generally good Lordships fording the same in favour of the incumbent had allowed his appeal with regard to move over. The matter of "move‑over" is different than the promotion . The promotion is to be given against a higher post, whereas move‑over is a personal relief and is not attached to any post. In this view of the matter, we, with utmost respect, are of the view that above cited case would not be applicable to the present case.

5. As already discussed above, the question of consideration for promotion is a vested right, but no Court can check role of sub‑officer or concerned Administrative Authority to judge the fitness of an incumbent for promotion. The High Courts or even the Supreme Court would not sit in appeal over the orders passed by the Administrative Authorities. In this respect reference may be made to the case of Air Vice Marshall S.L. Chapra v. Union of India, and another, reported in 1993 S UPP (4) Supreme Court Cases 444, wherein it was held that the High Curt or Supreme Court cannot act as Court of Appeal and they cannot encroach over the powers of the selection Board by substituting its own view and opinion in the absence of oblique motive attributed to the Selection Board. The same view was expressed by a Division Bench of this Court (of which one of us Justice Abdul Rahim Kazi, was a member), in C.P. No. D‑1545 of 1994, A. Iqbal Qadri v. Federation of Pakistan and others, decided on 15‑8‑1994. In view of the above discussion the reliefs sought by the petitioner cannot the granted through this petition. The petitioner during the course of arguments has submitted that the Prime Minister of Pakistan is Controlling Authority of respondent No.1 and that the Prime Minister has passed orders, directing the promotion of the petitioner, but the same are not being implemented by the respondents. The counsel for respondent No.1 has made a statement at bar that as per their records no such orders are available. However, if it be so, it will be open for the petitioner to approach the concerned authorities. With these observations, the present petition is dismissed with no orders as to costs. A.A./M‑2095/K Writ refused.