1993 PLP (C (PLC(CS))

(d) Civil service‑‑‑ Promotion‑‑‑To be considered for promotion was a vested right but refusal to promote could not be deemed to have resulted in violation of any vested right. M.A. Rafique v. Managing Director (Power), WAPDA and 7 others 1990 SCMR 927; Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45 and Province of West Pakistan v. Muhammad Akhtar Qureshi and others PLD 1962 SC 428 rel. Qazi Muhammad Anwar for Petitioner. Muhammad Iqbal Khan, Ex‑Commissioner, Income Tax (Appeals), N.‑W.F.P., Peshawar, presently posted as OSD (Income Tax) at Peshawar, who is a civil servant, was considered for promotion against a selection post carrying B‑21 by the Central Selection Board. The petitioner was recommended for promotion by the Central Selection Board‑I. At S.No. 2 out of five officers recommended for promotion: Fourteen Officers were recommended to be superseded whereas the case of four officers were recommended to be deferred for reasons mentioned in the minutes of the meeting. Photostat copy of the summary sent to the Prime Minister in this behalf by Central Selection Board‑I has been appended with this petition at page 30 (Annexure B). The Prime Minister, who is admittedly the competent authority did not approve promotion of the petitioner and directed that his promotion shall be deferred. In pursuance of the above order passed by the competent Authority, Notification dated 8‑4‑1993 has been issued by the respondent according to which respondents Nos. 5 to 11.have been promoted to B‑21 with immediate effect and Until further orders. Letter dated 6‑3‑1993, reflecting directions/Orders of the Prime Minister has been appended with this petition at page 32 of this petition whereas notification has been appended at page 33 as Annexure `C'. Aggrieved of the order of deferment of his promotion, petitioner has filed this Constitutional petition. It is alleged in the petition that he having been duly recommended by Central Selection Board‑I, his promotion could not have been deferred by the Prime Minister and the only order which could have been passed in his case was either grant of approval of his promotion or return of the case to Central Selection Board who is the competent authority to make recommendation in this behalf as per rules and instructions governing promotion in question.

2. Today, I have asked the learned counsel to argue about the maintainability of the writ petition. Learned counsel for the petitioner has contended that as the order in dispute in this Constitutional petition involves element of promotion, the petitioner although a civil servant has no remedy before Federal Service Tribunal as per law declared in cases of Government of the Punjab through Secretary Services, Punjab, Lahore and 4 others v. Muhammad Awais Shahid and 4 others (1991 SCMR 696), Fakhre Alam and another v. Khawaja Muhammad and 5 others (CA. 262‑P/90) and Fakhre Alam and another v. Mutabar Khan and 5 others (CA. 263‑P/90) decided on 15‑12‑1992. Learned counsel has further contended that the petitioner's promotion having been recommended by Central Selection Board on merits after taking into consideration the whole service record and other relevant circumstances, the said recommendations were very sacred, could not have been brushed aside by the Prime Minister without mentioning any reason in the order of deferment of promotion passed by him. It is alleged impugned order is mala fide as is demonstrated by the: fact that promotion by the Authority. Learned counsel contends that in such circumstances it is a fit case where this Court has jurisdiction to strike down the order and grant relief to the petitioner in exercise of the Constitutional jurisdiction of this Court. In support of his contentions learned counsel has placed reliance on cases of Qazi Khalil-ur-Rehman v. General Manager, Pakistan Eastern Railway and another (PLD 1964 Dacca 93) and Dr. Habib‑ur-Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144). It is further contended that the petitioner has a Constitutional right to be dealt with equally before law and therefore the impugned order being discriminatory in nature is liable to be set aside in as much as it will create much complications in the sense that the only officer approved for promotion from N.‑W.F.P. has been refused promotion and therefore the impugned order will create hatred amongst people of Province of N.‑W.F.P., against people of other provinces, hence the petitioner has a vested right of being promoted and to get this right, enforced through this Constitutional petition.

3. I have considered arguments addressed by the learned counsel for petitioner and have also gone through the record. It is correct that the petitioner was considered for promotion by Central Selection Board who recommended his name for promotion at S.No. 2 of the list. It is also correct that after being considered for promotion and recommendation of Selection Board being before the competent authority an order of deferment of his promotion was passed. No doubt, recommendations of Selection Board are valuable and have to be given weight yet undoubtedly grant of approval of the promotion is prerogative of the competent authority particularly when the promotion is being made to a selection post and the recommendations are admittedly not of binding nature. While directing approval the competent authority has not only to consider recommendations of the Central Selection Board, there are other circumstances and antecedents of the Officers being considered by him for promotion, which are relevant and which have to be taken into consideration while passing an order of approval of promotion. Therefore, merely because the petitioner was recommended by the Central Selection Board, it cannot be said that the competent authority was bound to accept the recommendations. Reference can be made to law declared in case of Dr. Habib-ur-Rehman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) at page 159 in which report it has been held as under:‑‑ "Yet another aspect of the matter may also be noticed, viz. that the recommendations of the Public Service Commission being only advisory in nature and it being open to the appointing authority under Article 188 of the Constitution not to accept its advice, it is difficult to see how a petition of this nature can be maintained. The grievance of the candidate would arise only when the Government has made an appointment in contravention of the rules; until that time the advice tendered by the Commission remains confidential and inchoate and cannot give rise to a grievance or cause of action within the meaning of Article 98 of the former Constitution." Argument of the learned counsel for the petitioner to the effect that the reasons have to be mentioned in the order itself is also misconceived. There is nothing on record on the basis whereof, it could be said that the order passed by the Prime Minister is arbitrary and discriminatory. Merely because certain officers who were not recommended for promotion by the Central Selection Board will not be a ground to hold that the order of deferment of the petitioner's promotion was passed arbitrarily. Even in the case of "Qazi Khalil- ur‑Rehman" referred to supra by the learned counsel for the petitioner, it has been held that in case the competent authority refuses to approve recommendations made by Selection Board, the said order cannot be said to be unjustified unless some statutory rule violated. Promotion cannot be claimed as of right as held in case of Government of N.‑W.F.P., Health and Social Welfare Department v. Dr. Sh. Muzaffar lqbal and others (1990 SCMR 1524) in paragraph 4 of which judgment, it has been held as under:‑‑ "No one can claim a vested right in promotion or in the terms and conditions for promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to maintain efficiency in service. Except for the post which the civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy." Similarly in case of MA. Rafique v. Managing Director (Power), WAPDA and 7 others (1990 SCMR 927) it has been held as under:‑‑ "There is established case‑law on the subject of vested right to prospects of promotion: No such right as is claimed by the petitioner is available with respect to the posts not actually held by the civil servant but to which he is likely to be promoted at a future date. In the context one may refer to decisions of this Court in Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45) and Province of West Pakistan v. Muhammad Akhtar Qureshi and others (PLD 1962 SC 428):" Undoubtedly, being considered for promotion is a vested right but refusal to promote cannot be said to have resulted in violation of any vested right. In a similar case which was taken to the Federal Service Tribunal in Appeal No. 67 (R)/89 Amir Yousaf Ali Khan v. Secretary, Establishment and others, the order of supersession passed against the civil servant was upheld as having not been passed without a lawful authority. Zain Ullah Khan, Section Officer of the Establishment Department has stated that this judgment was challenged in appeal and has been upheld by their Lordships of the Supreme Court of Pakistan. It is also the prerogative of the competent Authority to either pass an order of deferment of promotion or to return the case back to the Central Selection Board, for reconsideration, but it is not always necessary to refer the case back to the Board. No such rule or instruction has been pointed out by the learned counsel. It is also not a case of meeting out discriminatory treatment to the petitioner who was considered for promotion alongwith other Officers on all Pakistan basis to which service structure the petitioner belongs and the promotion was refused and deferred by the competent Authority, therefore, it cannot be said that any discriminatory treatment has been meted out to the petitioner and that any vested right has been violated. Argument of the learned counsel for the petitioner to the effect that the order of deferment is in fact a stigma against the petitioner as he will have to obtain another ACR and wait for a period of one year for being considered for promotion, is also without any lawful basis and justification. To obtain another ACR and to wait for more time to seek promotion is a necessary consequence of order of deferment as provided under rules by which the petitioner's service is governed and therefore no grievance can be raised on the basis of necessary consequences which will ensue due to the passing of the impugned order regarding petitioner's promotion, to get the relief as prayed for in this petition. Resultantly, I see no force in this writ petition; the same is dismissed in limine. A.A./M‑1067/L Petition dismissed.