P L D 1994 Supreme Court 219 (PLP)

SAJJAD ALI SHAH, J: ‑‑In this appeal with leave of the Court is challenged judgment dated 17‑12‑1991 of the Punjab Service Tribunal, Lahore, whereby appeal of respondent herein is partly accepted by ante‑dating his promotion as effective from 30‑6‑1985. The Secretary to the Government of Punjab, Education Department, Lahore, feeling aggrieved has filed this appeal.

2. Briefly stated the relevant facts in the background are that respondent was initially recruited in 1966 as Divisional Sports Organizer in West Pakistan Sports Control Board. In 1979 he was appointed as Assistant Director, Sports, Punjab, in BPS‑

17. In 1984 the post of Assistant Director was upgraded to BPS‑18 and re-designated as Deputy Director. Mian Muhammad Rafiq, Assistant Professor, Government College for Physical Education for Men, Lahore, was transferred and posted as Deputy Director. On 30‑6‑1985, in exercise of powers conferred under section 23 of the Punjab Civil Servants Act, 1974, the Directorate General (Sports) Punjab Service Rules, 1985, were promulgated laying down criteria and method of recruitment to the posts in the said Directorate.

3. The representation dated 14‑9‑1985 filed by the respondent against denial of his promotion to the post of Deputy Director was replied vide letter dated 4‑5‑1986 with intimation that his promotion would be considered and processed alongwith other eligible candidates under the rules. Vide Notification dated 15‑11‑1990, seniority list was issued showing respondent at S.No. 1 as senior most Assistant Director. On the recommendation of Departmental Promotion Committee. He made representation with claim for promotion from 29‑11‑1984 when the post was re-designated after up-gradation, which was rejected vide letter dated 13‑5‑1991. His service appeal is accepted partly in terms stated above.

4. Leave to appeal has been granted by this Court to examine whether in antedating the date of promotion of respondent from 31‑12‑1990 to 30‑6‑1985, the Tribunal has itself not gone outside its jurisdiction in determining the suitability and fitness of the respondent to be promoted from that date in spite of Departmental Promotion Committee holding to the contrary. In this context reference to section 4 of the Punjab Service Tribunals Act, 1974 would be' pertinent which provides that appeal is competent before the Tribunal from final order of original or appellate departmental authority in respect of terms and conditions of service. Proviso (b) to section 4 further provides that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade.

5. In the instant case after up-gradation of the post in question to BPS‑18, Mian Muhammad Rafiq was transferred and posted as Deputy Director on 2‑6‑1985 and on 30‑6‑1985, Directorate‑General (Sports) Punjab Service Rules, 1985 were promulgated. Respondent filed his representation on 14‑9‑1985, which was not rejected but he was informed vide letter dated 4‑5‑1986 that his case was being processed alongwith other eligible candidates under the rules. Finally seniority list of Assistant Directors was issued vide Notification dated 15‑11‑1990, showing respondent at S.No. 1 and after clearance of Departmental Promotion Committee, he was promoted vide order dated 31‑12‑1990.

6. We felt .pretty disturbed at the issue of seniority list in the year 1990 which was 5 years after promulgation of relevant rules in 1985 and on our query learned counsel for the appellants was not able to give satisfactory reply except that seniority list had to be prepared after collection of necessary data of all the Assistant Directors, which was at that time not available. More emphasis was laid on the fact that the Tribunal had no jurisdiction to ante‑date the promotion in view of bar contained in section 4 of the Punjab Service Tribunals Act, 1974 which leaves the matter of determining the fitness or otherwise of a person to be promoted to a higher grade in the hands of departmental authority. It is also submitted that from 30‑6‑1985 to 31‑12‑1990 different incumbents remained working on the post of Deputy Director and they were paid salaries and, therefore, in such circumstances respondent cannot be given benefit of back dated promotion to enjoy the benefit of salary and allowances for the period for which he never in fact worked on that post. After clearance by the Departmental Promotion Committee respondent was promoted and he cannot claim back‑dated promotion as a matter of legal right.

7. Rule 9 of the Punjab Civil Service (Appointment and Conditions of Service) Rules, 1974 envisages appointments by promotion or transfer to posts in various grades to be made on the recommendation of appropriate Committee or Board. Sub‑rule (2) of Rule 9 further in very unequivocal terms provides that promotion including pro forma promotion shall not be claimed as of right by any civil servant.

8. It is held by this Court in the case of Government of N: W:F.P. Health and Social Welfare Department v. Dr. Shaikh Muzaffar Iqbal (1990 SCMR 1321) that a Government servant cannot 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 qualification and the standard for recruitment and promotion in order to maintain efficiency in service. Except for the. post which a civil servant happens to hold he cannot claim vested right in other higher tiers in the hierarchy. In the instant case although we are not satisfied with the explanation for issue of seniority list after 5 years of promulgation of the relevant rules but since there is no evidence on the record to show that it was done with mala fide intention of depriving the respondent from the benefit of promotion, we hold that the Tribunal had no authority to antedate promotion in view of bar contained in section 4(1)(b) of the Punjab Service Tribunals Act, 1974, as it is the function of departmental authority to determine fitness for promotion which was done in this case after clearance by Departmental Promotion Committee.

9. For facts and reasons aforementioned we set aside ‑impugned judgment of the Tribunal to the extent of antedating the promotion with effect from 30‑6‑1985. Promotion of respondent shall remain effective from the date when it was made vide order dated 13‑5‑1991 under the rules. In the result appeal is allowed. AA./S‑797/S Appeal accepted.