1995 PLP (C (PLC(CS))

Muhammad Iqbal Khan, a Tubewell Operator (BPS‑3) in the Health Department at Bannu claimed as of right to be appointed against the post of T.B. Assistant in BPS‑5 which was refused by the Medical Superintendent despite recommendations by exceptionally high placed authorities. He brought a Civil Suit No.58/1 on 24‑1‑1994 the plaint whereof was rejected under Order VII, Rule 11, C.P.C. by the learned Senior Civil Judge, Bannu on 3‑4‑1994. In appeal, Mr. Miftahuddin Khan, learned District Judge, Bannu, not only upheld the order of the lower Court but also awarded compensatory costs of Rs.10,000 to the respondent under section 35‑A, C.P.C.

2. The petitioner admittedly is an employee in BPS‑3 as a Tubewell Operator which nature of duty is altogether different from that of a T.B. Assistant in BPS‑

5. His being in the Health Department in such capacity does not by itself give him a right to be appointed as T.B. Assistant and that too as promotion in BPS‑

5. Even pro forma promotion cannot be claimed by civil servant as a matter of right as held by the Supreme Court in Secretary to Government of Punjab Education Department etc. v. Saeed Ahmad Khan (PLD 1994 SC 219). The petitioner had not at all been vested with a cause of action, his plaint was rightly rejected under Order VII, Rule 11, C.P.C. by the two Courts below.

3. No doubt, section 35‑A, C.P.C. has by now been made applicable to the Province of N.‑W.F.P: through Act II of 1989 yet it has some reservations qua its application. The most important among these, inter alia, are that an objection qua the falsehood or vexatious-ness of the claim to the knowledge of the party claiming, must be taken at the earliest opportunity. Moreover, it pertains to any suit or other proceedings including execution proceedings but not proceedings in appeal. In the instant case the objection to the vexatious-ness of the claim (on the first opportunity) in the trial Court has not at all been taken whereas the same has been granted in appeal, which proceedings, are expressly excluded in section 35‑A, C.P.C. to the effect that the objection within the ambit of section 35‑A, C.P.C. cannot be taken up for the first time in appeal. The maximum limit of compensation to be normally granted is also restricted to Rs.5,000 subject to the pecuniary jurisdiction of the Court.

4. Consequently, the revision petition is partially accepted to the effect that compensation of Rs.10,000 awarded by the learned Appellate. Court under section 35‑A, C.P.C. against the petitioner is hereby set aside, for, the objection to that effect could not be taken for the first time in proceedings of appeal. Remaining prayer of the petitioner is, however, dismissed. A.A./1777/Pesh Order accordingly.