2023 P L C (C.S.) 938
[Balochistan High Court]
Before Muhammad Hashim Khan Kakar and Muhammad Aamir Nawaz Rana, JJ
MUHAMMAD HASSAN KAKAR and others
Versus
VICE -CHANCELLOR UNIVERSITY OF BALOCHISTAN, QUETTA and others
Constitution Petitions Nos.922, 923, 924, 925 and 928 of 2021, decided on 19th December,
2022.
(a) Civil service---
----Promotion ---Principle ---Question whether a person is legally qualified for promotion over
a particular post and grade is relatable to the factum whether he possesses the requisite qualification for consideration---Question of fitness pertains to competency of the person concerned which is to be decided by the competent authority--- Person may be considered
eligible for a particular post but may not be promoted by considering him unfit on the basis of his past service, ACRs and his general conduct towards given assignments.
Muhammad Rahim Khan v. Chief Secretary, N.W.F.P. 1999 SCMR 1605 rel.
(b) Civil service---
----Promotion ---Criteria ---In case of non -selection post, promotion is based upon seniority-
cum-fitness and no employee can ask for or claim a promotion as a matter of right, as it is
within the exclusive domain of competent authority--- Neither promotion can take place
automatically nor the seniority alone is the deciding factor, as a number of factors constitute fitness for promotion.
Government of N.W.F.P. v. Buner Khan 1985 SCMR 1158 rel.
(c) Civil service---
----Upgradation of post ---Promotion--- Distinction ---Petitioners were employees of
respondent University who sought their promotion and upgradation of their post on the basis of a 'Notification' ---Validity ---Upgradation could not be claimed as a matter of right but was
based on policy decision of competent authority for its implementation across the board for particular categories of employees jotted down in the Scheme/Notification who fulfilled required qualification which was normally a particular length o f service in a particular pay
scale--- Promotion involved advancement in rank/grade, whereas facility or benefit of
upgradation conferred some monetary benefits by granting a higher pay scale to ventilate
stagnation --- Benefit of upgradation was normally granted to persons stuck- up in one pay
scale for considerable period of their length of service either having no venue for promotion
or progression---High Court set aside the Notification in question issued by University authorities being illegal, without any lawful authority and void ab- initio ---High Court
directed respondent University to reconsider the cases of all its employees who benefitted
from the Notification, and in case Notifications of their promotions and upgradations of posts
were not on merits or in accordance with settled principles of law, the same be
recalled/reviewed ---High Court directed University authorities to consider the cases of
petitioners for promotion strictly on merits and in accordance with law, and without further delay ---Constitutional petition was disposed of accordingly.
Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539; Ali Azhar Khan Baloch v.
Province of Sindh 2015 SCMR 456; Regional Commissioner Income Tax, Northern Region, Islamabad v. Syed Munawar Ali 2016 SCMR 859 and Federal Public Service Commission v. Anwar -Ul-Haq (Private Secretary) Islamabad 2017 SCMR 890 rel.
Naseebullah Tareen and Jahandad Khan Kakar for Petitioners.
Adnan Ejaz Sheikh and Babar Abbas for Respondents.
Date of hearing: 1st November, 2022.
ORDER
MUHAMMAD AAMIR NAWAZ RANA, J. ----We intend to decide the above
captioned petitions, through this common order as almost identical questions of facts and law
are involved, emanating from implication of Notification dated 17.12.2013 issued by the Director Human Resource, University of Balochistan ('UoB').
2. Tersely, the petitioners are serving on different non- teaching posts in the University
of Balochistan and have sought their promotions and up- gradation of their posts on the
strength of ibid Notification. For the facility of reference, the Notification dated 17.12.2013 is reproduced:
"NOTIFICATION
Consequent upon minutes of meeting of the Vice Chancellor with Joint Action Committee dated 15 -12- 2013, the Vice Chancellor, University of Balochistan, that
the Up -gradation of officers will be made as per following policy already approved in
the 43rd Finance and Planning Meeting held on 26th and 27th June -2013 : -
From BPS -16 to BPS -17 : 04 years service in post
From BPS -17 to BPS -18 : 06 years service in post
From BPS -18 to BPS -19 : 08 years service in post
From BPS -19 to BPS -20 : 06 years service in post
From BPS -20 to BPS -21 : 06 years service in post
3. The notices were issued to the respondents who contested all the above captioned
petitions by filing parawise comments in which they mainly stated that, though, the cases of
petitioners were placed before the relevant Committee, however, the Vice Chancellor UoB pended all those cases in which the previous promotions of the officers were under audit objection. As per special audit report on the accounts of University of Balochistan for the financial years 2009- 10 to 2018 -19, the serious exception was taken to the promotions of
officers from lower to higher posts on the basis of only length of service, while the management completely discarded the relevant qualifications, skill, experience, satisfactory completion of mandatory trainings and cadre. In the same manner, the promotions in BPS -18
and above (Selection Posts) were also made in contravention of calendar of the University of Balochistan. Considering the objections of the audit report, vide Notification dated 08.04.2021, the Chancellor had constituted a committee to prob into the matter, but subsequently the Notification dated 08.04.2021 was withdrawn by the Chancellor and direction was issued to the Executive Director, Higher Education Commission ('HEC') to conduct impartial inquiry on the subject matter. The respondents further state that HEC notified three members inquiry committee to probe into the matter. The said committee visited University of Balochistan in the year 2021 and obtained necessary information and data, and subsequently compiled a report which was sent to HEC. The HEC forwarded the same to the Chancellor's office and the Chancellor directed to place the said report before the Senate of the University of Balochistan for final decision with regard to irregularities committed in the promotion of officers in non- teaching cadre.
4. Learned counsel for the petitioners, Mr. Naseebullah Tareen, Advocate mainly
contended that in the light of Notification dated 17.12.2013, the petitioners deserved that either they be promoted to next grades or their posts be upgraded after completion of stipulated period; further contended that the respondents have adopted pick and choose policy and they have upgraded the posts of other employees of University on the strength of Notification dated 17.12.2013 while the petitioners have been discriminated. Learned counsel has placed on record different orders of other officers who were either promoted or their posts were upgraded. While concluding his arguments, learned counsel submitted that the University management must have uniform policy for upgradation and promotion; the policy of pick and choose be declared illegal and since the petitioners have been discriminated, therefore, directions be issued to the respondents to either promote the petitioners if vacant seats are available in next grade or their existing posts be upgraded.
5. Learned counsel for the respondents Mr. Adnan Ejaz Sheikh, Advocate appearing on
behalf of the respondents opposed the contentions so raised by learned counsel for the petitioners and contended that the Notification dated 17.12.2013 is not in accordance with law and the petitioners cannot claim any right on the basis of said Notification which at the face of it, is illegal and against the principles dealing with promotion cases and upgradation of the posts. Learned counsel further contended that after thorough inquiry, the committee which had been constituted by HEC had made certain recommendations which will be placed
in the forthcoming meeting of the Syndicate, and all the illegal promotions shall be reviewed,
and the cases of officers who deserve to be promoted in accordance with law shall be considered on merits.
Arguments heard and record perused.
6. We are surprised and shocked to see the contents of Notification dated 17.12.2013
which apparently seems to be the outcome of the meeting between Vice Chancellor and Joint Action Committee of non -teaching staff of University of Balochistan. It seems that the action
of said committee worked and Vice Chancellor UoB succumbed to the illegal tactics and pressure and issued ibid Notification in which the merit, fitness, service record of the officers including ACRs, integrity, knowledge and proficiency in the work/assignments were completely ignored; all of which are essential dynamics for weighing and appraising the merits for promotion. In the case of Muhammad Anis v. Abdul Haseeb
1, the Honourable
Supreme Court had held that the question of eligibility is different from the question of
fitness. Indeed, from the definition of words "eligible" and "fit" given in the dictionaries, it
appears that the meaning of above two words are interchangeable and at times they carry the same meaning, but while applying the words in promotion cases, these words have different connotations. The question whether a person is legally qualified for promotion over a particular post and grade is relatable to the factum whether he possesses the requisite qualification for consideration, whereas the question of fitness pertains to the competency of the person concerned which is to be decided by the competent authority. In other words, a person may be considered eligible for a particular post, but may not be promoted by considering him unfit on the basis of his past service, ACRs and his general conduct towards given assignments; this question was also considered by the Honourable Supreme Court in the case of Muhammad Rahim Khan v. Chief Secretary, N.W.F.P.
2, whereby it was held that
the concept of eligibility implies a qualification to be appointed or promoted, whereas that of
fitness encompasses a person's competence to be chosen or selected for appointment or
promotion. The tests for eligibility are objective and open to scrutiny by a judicial forum.
However, in the matters involving fitness to be appointed or promoted to a particular post,
there has to be necessary material on record, on the basis of which an opinion, one way or the
other is to be formed.
7. Promotion to a certain post has never been considered to be a vested right of a public
servant. It is a well -recognized principle of law that in case of non- selection post, the
promotion is based upon seniority- cum-fitness and no employee can ask for or claim a
promotion as a matter of right, as it is within the exclusive domain of the competent authority. Neither the promotion could take place automatically, nor the seniority alone is the
deciding factor, as a number of factors constitute fitness for promotion. In the case of Government of N.W.F.P. v. Buner Khan
3, the Honourable Supreme Court converted the
petitions into appeals and allowed to the extent that the direction of the Tribunal for promotion was modified and substituted by the directions that the promotees shall be considered for promotion in next grade with affect from the dates when vacancies in their
relevant quota became available.
8. On the same analogy upgradation also cannot be claimed as a matter of right, but it is
in fact based on policy decision of the competent authority for its implementation across the
board for the particular categories of employees jotted down in the Scheme/Notification who fulfilled the required qualification which is normally a particular length of service in a particular pay scale. The promotion involves advancement in rank/grade, whereas the facility or benefit of an upgradation simply confers some monetary benefits by granting a higher pay
scale to ventilate stagnation. It is also a well- settled exposition of law that the benefit of
upgradation is normally granted to the persons stuck- up in one pay scale for considerable
period of their length of service either having no venue for promotion or progression. The
Honourable Supreme Court in the case of Ali Azhar Khan Baloch v. Province of Sindh
4 held
that the upgradation cannot be made to benefit a particular individual in terms of posting him
to a higher post or further providing him with the avenues of lateral appointment or transfer
for posting. In order to justify the upgradation, the competent authority is required to
establish that the department needs restructuring, reform or to meet the exigency of service in
public interest. In the absence of these preconditions, upgradation is not permissible. Reliance in this regard is placed upon the cases of Regional Commissioner Income Tax, Northern Region, Islamabad v. Syed Munawar Ali
5 and Federal Public Service Commission
v. Anwar -Ul-Haq (Private Secretary) Islamabad6.
In the wake of above deliberations, the Notification bearing No.DIR/HR/REC/686- 07
dated 17.12.2013 issued by Director, Human Resource, UoB is hereby declared illegal, without any lawful authority and void ab- initio; consequently, same is set aside. The
respondents are directed to reconsider the cases of all employees of University of Balochistan who have been benefitted from the said Notification, and in case Notifications of their promotions and upgradations of posts were not on merits or in accordance with settled principles of law, the same be recalled/reviewed. Furthermore, the respondents are directed to consider the cases of petitioners for promotion strictly on merits and in accordance with law, and without further delay, the cases of deserving officers be considered and be decided purely on merits.
In the above terms, the petition stands disposed of.
MH/18/Bal. Petition allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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