2014 P L C (C.S.) 982
[Peshawar High Court]
Before Rooh-ul-Amin Khan and Muhammad Daud Khan, JJ
LIAQAT ALI
Versus
GOVERNMENT OF N.-W.F.P. through Secretary Home and Tribal Affairs Department,
Peshawar and 10 others
Writ Petition No.2271 of 2009, decided on 21st January, 2014.
(a) Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)------S. 9---Constitution of Pakistan. Art.199---Constitutional petition---Promotion---Principles--Promotion is not a vested right---Civil servant lacking pre-requisite for promotion claimed
promotion on the basis of seniority---Scope---Promotion against the non-selection post should be
made on the basis of seniority-cum-fitness and civil servant could not claim or ask for a
promotion as a matter of right, as it was within the exclusive domain of competent authority or
departmental selection committee---Promotion could not take place automatically and seniority
alone was also not a deciding factor, as number of factors constitute fitness for promotion--Promotion was neither a vested right, nor it could be claimed with retrospective effect--Whenever there was a change of grade or post for the better, there would be an element of
selection involved which would be promotion and the same could not be earned automatically--Rules of each department, particularly of the Police Department enumerate a specific length of
service and qualification for getting higher post or grade---Civil servant lacked pre-requisite for
ascending to the higher post was disqualified for promotion---Constitutional petition was
dismissed.
Abid Hussain Sherazi v. The Secretary N/O Ministry Industries and Production,
Government of Pakistan, Islamabad 2005 SCMR 1742 and Government of the Punjab v.
Muhammad Owais Shahid 1991 SCMR 6967 rel.
(b) Khyber Pakhtunkhwa Civil Servants Act (XVII of 1973)------S. 9---Constitution of Pakistan. Art.199---Constitutional petition---Promotion---Claim after
retirement---Petitioner after his retirement claimed for promotion with retrospective effect--Validity---Petitioner on attaining the age of superannuation was retired from the post of SubInspector, Police therefore he could not be considered for promotion with retrospective effect--Constitutional petition was dismissed.
Abdul Hameed v. Ministry of Housing and Work, Government of Pakistan, Islamabad
PLD 2008 SC 395; Government of Pakistan through Establishment Division v. Hameed Akhtar
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Niazi, Academy of Administration, Islamabad PLD 2003 SC 110 and Ashiq Ali Bhatti v.
Federation of Pakistan through Secretary Establishment Division and others 2006 SCMR 1324
rel.
Khalid Rehman for Petitioner.
Qaiser Ali Shah, A.A.-G. for Respondents.
Date of hearing: 21st January, 2014.
JUDGMENT
MUHAMMAD DAUD KHAN, J.--- Liaquat Ali, Ex-Sub Inspector, the petitioner,
through instant constitutional petition has prayed for issuance of an appropriate writ declaring
the acts and actions of respondents and their refusal to promote him to the post of Inspector on
13-7-2009 being without lawful authority and of no legal effect with further prayer that
respondents be directed to act in the matter in accordance with law and retrospectively promote
him to the post of Inspector w.e.f. 13-7-2009 with all back-benefits including pensionary
benefits.
2.
Succinct but necessary facts giving rise to the present writ petition are that petitioner
joined the police service as constable on 15-12-1973 and subsequently was promoted from time
to time. Lastly, the petitioner was serving as Sub-Inspector, Incharge Investigation, Police
Station, Rustam, Mardan having 38 years service when he was granted L.P.R. on 15-6-2011, thus
he retired from service on 14-6-2011, attaining the age of superannuation. As per seniority list of
Sub Inspectors as stands on 31-12-2008, the name of petitioner figured at serial No.26 of said
list, but he was ignored in the matter of promotion, rather his other colleagues junior to him,
whose names were existing at serial Nos.37, 44, 45, 46, 73, 81, 92 and 128, were promoted vide
impugned Notification dated 13-7-2009, therefore, the respondents acted in excess of their
authority depriving the petitioner of his vested right. That the petitioner moved a grievance
application, but the same was not responded to by respondent No.3, hence, the instant writ
petition.
3.
On 16-9-2009, comments from respondents Nos.2 and 3 were called for, which were
submitted by them, accordingly. On 23-7-2013, C.M. No.349-P of 2013 for amendment of writ
petition was allowed by this Court and the learned counsel for the petitioner was directed to file
amended writ petition, which was complied, hence the present petition.
4.
Arguments heard and file perused from cover to cover.
5.
Admittedly, the petitioner entered into police service as constable in the year 1973 and
was promoted from time to time and at the time of his retirement, he was posted as SubInspector. It is not disputed that the name of petitioner was brought in the list of Sub Inspectors
on 12-12-2002 after promotion as Sub-Inspector. Before promulgation of Police Order, 2002, the
services of the petitioner were regulated under the Police Act, 1861. Section 12 of the Act, ibid,
empowered the Inspector General of Police to frame such order and Rules as he deems expedient
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relating to the organization and distribution of police force, subject to approval of the Provincial
Government. In consequence of power conferred upon the Inspector General under the Act,
supra, the following Standing Order:--12.
Power of Inspector-General to make rules.--- The Inspector-General of Police may, from
time to time, subject to the approval of the [Provincial Government], frame such orders and rules
as he shall deem expedient relative to the organization, classification and distribution of the
police-force, the places at which the members of the force shall reside, and the particular services
to be performed by them; their inspection, the description of arms, accoutrements and other
necessaries to be furnished to them; the collecting and communicating by them of intelligence
and information; and all such other orders and rules relative to the police force as the InspectorGeneral, shall, from time to time, deem expedient from preventing abuse or neglect of duty, and
for rendering such force efficient in the discharge of its duties."
From bare reading of the above-said memorandum/Standing Order, it is manifest that a
specific age limit has been provided conducting and participating in for different courses and
likewise, the police officials, having the age of 48 years were held eligible for the upper course
limit. As mentioned above, the age of petitioner even at the time of promotion for the post of
Sub-Inspector was more than 48 years, therefore, he was not eligible and not selected for the
upper course.
6.
Learned A.A.-G. drew our attention to the Standing Order No.10 of 2009, which reads as
under:--Order.--- The aim of standing order is to streamline the efficiency and increase of
knowledge of upper subordinates in accordance with the need of the day. Qualifying of upper
college course shall be mandatory for further promotion to the Rank of Inspector and the
following criteria for selection of upper college course shall be followed:--1.
The officer should be a confirmed ASI and his name must exist at list "E" of his parent
District. 3
2.
Physically fit up to the maximum age of forty eight (48) years.
3.
Relaxation in age limit should only be granted by the PPO in case of extraordinary
service, up to two years, subject to physical fitness".
According to the above-said Standing Order, the upper course has been held pre-requisite
and mandatory for further promotion from rank of Sub-Inspector. The above-quoted Standing
Order is self-speaking which provides qualification and criteria for promotion to the post of
Inspector. The petitioner failed to controvert the above situation, but he emphasized the Standing
Order No.6 of 2007 dated 23-10-2007, according to which for promotion to the post of Inspector,
three years period in Investigation Branch by the Sub-Inspector shall be counted as an year long
tenure of posting, as officer incharge of Police Station.
7.
The record divulged that the petitioner was promoted to the post of Sub-Inspector vide
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order dated 12-12-2002 and at that time too, he was lacking the qualification for upper course, as
he had crossed the specified age limit i.e. 48 years. He could not satisfy the court through any
cogent or documentary evidence that during this period, he ever remained in Investigation
Branch or Incharge of Police Station. It is also manifest from the record that petitioner got retired
from service on 14-6-2011.
8.
There is no cavil to the proposition that there is no vested right accrued to the petitioner
in case of promotion. Promotion against the non-selection post shall be made on the basis of
seniority-cum-fitness and a civil servant cannot claim or ask for a promotion as a matter of right,
as it is within the exclusive domain of the competent authority or departmental selection
committee. Neither the promotion can take place automatically, nor the seniority alone is the
deciding factor, as number of factors constitute fitness for promotion. Time and again, it has
been held by the august Supreme Court that the promotion is neither a vested right, nor it can be
claimed with retrospective effect. Whenever there is a change of grade or post for the better,
there is an element of selection involved which is promotion and the same may not be earned
automatically. Likewise, the rules of each department, particularly of the Police Department
enumerate a specific length of service and qualification for getting a higher post or grade.
Lacking any pre-requisite for ascending to the higher post shall disqualify a civil servant. At this
juncture, we are strongly moved by celebrated judgment of apex Court in case titled 'Abid
Hussain Sherazi v. The Secretary M/O Ministry Industries and Production, Government of
Pakistan, Islamabad' (2005 SCMR 1742), wherein it was held that the promotion or pro forma
promotion is not a vested right of the employees. Reliance may also be placed on 'Government of
the Punjab v. Muhammad Owais Shahid' (1991 SCMR 6967).
As observed in the preceding para, the petitioner has also got retired from the post of
Sub-Inspector, attaining the age of superannuation and in this eventuality, he could not be
considered for promotion with retrospective effect. Wisdom may be drawn from the judgment of
apex Court in case titled 'Abdul Hameed v. Ministry of Housing and Work, Government of
Pakistan, Islamabad' (PLD 2008 SC 395). The issue of retrospective promotion to a retired
employee cropped before the apex Court in case titled 'Government of Pakistan through
Establishment Division v. Hameed Akhtar Niazi, Academy of Administration, Islamabad (PLD
2003 Supreme Court 110), wherein at page 121 of the judgment, the retrospective, pro forma
promotion in respect of retired civil servant was held not admissible under the rules, in the
following words:--"Virtually, it is not a case of antedation, but of granting promotion from back date to the
retired officer, which could not be allowed under the law."
The same view was reiterated by the august Supreme Court of Pakistan in case titled
Ashiq Ali Bhatti v. Federation of Pakistan through Secretary Establishment Division and others
(2006 SCMR 1324).
We have searched the entire record from cover to cover and the assistance of the learned
counsel for the parties was also sought as to whether the promotion of the petitioner to the post
of Sub-Inspector was made on regular basis or at ad hoc basis and as to whether his name has
been entered in the list "E" or otherwise. No satisfactory reply was offered by any of the party,
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therefore, we will not adhered to the provision of 13.18 of the Police Rules, 1938.
In the wake of above discussion, no case to call for interference in constitutional
jurisdiction by this Court could be made out by the petitioner. Hence, this writ petition, being
without force, is hereby dismissed.
JJK/43/P
Petition dismissed.
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