ABID HUSSAIN SHERAZI vs SECRETARY M/O INDUSTRIES AND PRODUCTION,

'JAVED IQBAL, J.--- This petition for leave to appeal is directed against the judgment, dated 29-1- 2004 passed by learned Federal Service Tribunal, Islamabad whereby the appeal preferred on behalf of petitioner has been dismissed.

2. Precisely stated the facts of the case as enumerated in the judgment impugned are to the effect that "the appellant was appointed as LDC in BPS-5 in the Department of Explosives, Karachi on 15- 7-1986 and was promoted as UDC in BPS-7 on 20-12-1989 and later promoted to the post of Assistant cn 10-8-1994. Appellant submitted request for antedation of promotion from the date he became eligible for promotion which was recommended by the respondent's Chief Inspector vide his OM No,PF-280/411, dated 26-9-1997 but was rejected 'ride respondent's memorandum dated 10- 9-1999 on the ground that his appeal for antedation of promotion was not covered under section 22(2) of the Civil Servants Act of 1973. Learned counsel for the appellant stated that due to this rejection of his request for alteration of promotion the appellant has been rendered junior to Mr. Muhammad Hashim Raza, Assistant who was surplus in IACP where was working as Key Punch Operator (K.P.O.) and while absorbing him in the respondent-Organization it was, clearly mentioned to him in the letter dated 12-4-1994 that he would be treated as junior most in the Department from the date of joining of service". After rejection of the request of petitioner for antedation of promotion, a representation was made by him who was rejected by the Competent Authority. Being aggrieved, the learned Federal Service Tribunal was approached by way of appeal which has been dismissed by means of judgment impugned, hence this petition.

3. Heard Mr. F.K. Butt, learned Advocate Supreme Court on behalf of petitioner at length who mainly contended that the petitioner has been denied of his vested right because he was entitled to get promotion as Assistant (B-11) from the date when the vacancy occurred and no fault whatsoever can be attributed to the petitioner for his belated promotion which was made two years after due date. It is also contended that the petitioner has been discriminated and various other officials were promoted with retrospective effect causing serious prejudice to the petitioner. It is also contended that the denial of antedation promotion amounts to violation of the provisions as contained in Article 25 of the Constitution of Islamic Republic of Pakistan.

4. We have carefully examined the respective contentions as agitated on behalf of petitioner and perused the relevant record with eminent assistance of learned Advocate Supreme Court as well as the judgment impugned. It is well-settled by now that promotion is neither a vested right nor it could be claimed with retrospective effect. It is to be noted that petitioner has not claimed pro forma promotion but retrospective promotion from the date when the vacancy had occurred i,e, on 19-12-1992 which, according to learned Advocate Supreme Court on behalf of petitioner, should have filled either on the same date i,e, 19-12-1992 or at the most within a period of two or three months.

5. We have considered the prime contention as mentioned hereinabove which is nothing more but a wishful thinking having no nexus whatsoever with the ground realities. By no stretch of imagination the vacant vacancy could have been filled on the date of occurrence in view of the time consuming formalities such as subjective assessment of the incumbent concerned, collection of ACR dossiers, their comparative study and convening the meeting of Departmental Promotion Committee (DPC). It transpired from scrutiny of record that meeting of DPC was held on 10-8-1994 and the petitioner was promoted as Assistant (B-11).

' There is no cavil to the proposition that "there is no vested right in promotion or rules determining eligibility for promotion. Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent Authority to be passed after the consideration of the comparative suitability and entitlement of those incumbents". Muhammad Umar Malik v. Federal Service Tribunal PLD 1987 SC 172; Government of the Punjab v. Muhammad Awain Shahid 1991 SCM R 696.

6. It also hardly needs any explanation that "as regards claim to promotion or pro forma promotion, what the civil servant could claim under the law was, that he should be considered when question of promotion was taken up. Civil servant, could not call upon the Service Tribunal to direct the Department to fill the promotion post forthwith or on a particular date and not to keep it vacant or under consideration". Muhammad Yousaf v. Chairman, Railway Board/Secretary 1999 SCMR 1559.

7. Besides that what has been stated above, the petitioner has not impleaded all the seniors which could have been affected by any order passed in this petition and thus this petition being incomplete deserves dismissal on this score alone. It is noteworthy that the appeal preferred on behalf of petitioner before learned Federal Service Tribunal was also barred by time for the simple reason that petitioner was promoted on 10-8-1994, who made various representations to the Competent Authority which could not have been done and the petitioner should have approached learned Federal Service Tribunal within stipulated period if his first representation was not decided within 90 days by the Competent Authority as there is no provision of law whereby various representations/appeals could have been made to the Competent Authority. The petitioner had approached the learned Federal Service Tribunal after a lapse of about five years, which cannot be ignored. We are mindful of the fact that learned Federal Service Tribunal had not dilated upon this aspect of the matter but on the contrary found that the appeal was filed before it on 11-10-1999 with a delay of one day which is not correct as the petitioner should have approached the learned Federal . Service Tribunal well in time as mentioned hereinabove. The petitioner has failed to substantiate the factum of "discrimination" by producing any cogent and concrete evidence. It is worth-mentioning that petitioner's Department had mentioned in an unequivocal manner while furnishing their comments that no promotion with retrospective effect was made. There is no reason whatsoever to disbelieve the view point as canvassed by the respondent-Department in parawise comments. The learned Advocate Supreme Court on behalf of petitioner has ignored the fact that while pressing the provisions as contained in Article 25 of the Constitution of Islamic Republic of Pakistan that "the Article guarantees a similarity of treatment and not identical treatment. The protection of equal laws does not mean that all laws must be uniform. It means that among equals the law should be equal and should be equally administered and that the like should be treated alike, and that there should be no denial of any special privilege by reasons of birth, creed or the like and also equal subjection of all individuals and classes to the ordinary law of the land Om Prakash v. The State AIR 1955 All. 275; Balochistan Bar Association v. Government of Balochistan PLD 1991 Quetta 7; Zakaria v. Trustees of the Port of Karachi PLD 1968 Kar. 73 Abdul Fatah v. Government of Hyderabad AIR 1953 Hyd. 100 and Sheoshankar v. State of Government of Madhya Pradesh AIR 1951 Nag.

58.

' In the light of what has been discussed hereinabove, the question of violation of Article 25 of the Constitution of Islamic Republic of Pakistan does to arise. The petition being meritless is dismissed and .