ABDUL HAMEED Versus MINISTRY OF HOUSING AND WORKS, GOVERNMENT OF PAKISTAN, ISLAMABAD through Secretary

MUHAMMAD MOOSA K. LEGHARI, J .---Instant petition for leave to appeal is directed against the judgment dated 11-12-2007, passed by Federal Service Tribunal, Islamabad, whereby service appeal filed by the petitioner was dismissed.

2. The facts forming the background of this petition are that the petitioner was initially appointed as a Garden Supervisor in 1964 and was promoted as Sub-Divisional Officer (BS-16) and subsequently as, Assistant Executive Engineer (BS-17) in 1992. The petitioner was further promoted to the post of Executive Engineer/Deputy Director (BS-18) on 13-11-1995. In 1992 a new post of Director/Superintending Engineer (Horticulture) was notified on 25-4-1992, which was to be filled through promotion from Deputy Director (Horticulture) (BS-18) having 12 years service in (BS-17) and above or 7 years service in (BS-18). As claimed by the petitioner, he had legitimate expectation for such promotion being sole candidate having requisite eligibility. However, Ministry of Housing and Works converted/re-designated this post of Director (Horticulture) into that of Superintending Engineer (Planning and Design), which was allocated to the office of Chief Engineer, Central Zone vide letter dated 1-4-2004. Being aggrieved of the said conversion/re-designation, the petitioner approached the Federal Service Tribunal after rejection of his departmental appeal.

3. Learned Advocate Supreme Court for the petitioner mainly contended that the conversion/re-designation was violative of law as it was objected to by the Ministry of Finance, resultantly, the said re-designation has to be withdrawn. It was argued that such re-designation of the post was tainted with malice in order to deprive the petitioner of his vested right of being promoted to the said post. Learned Advocate Supreme Court contended that the petitioner was entitled to all the benefits of promotion after his retirement. In support of his contentions, learned Advocate Supreme Court for the petitioner has placed reliance on 1997 PLC (C.S.) 77, 1998 SCMR 736, PLD 1991 SC 1118, 1998 PLC (C.S.) 980, 1991 PLC (C.S) 587, 1985 SCMR 1158, PLD 1997 SC 84, PLD 2003 SC 110. 2007 SCJ 41, 1997 PLC (C.S.) 1210 and 2001 PLC (C.S.) 654.

4. Having considered the submissions made on behalf of the petitioner, we find the same to be without force. It goes without saying that promotion to a certain post, has never been considered to be a vested right of a civil servant. It is well recognized principle of law that in case of non-selection post, the promotion is made on the basis of seniority cum-fitness and no civil servant can ask for, or claim a promotion as a matter of right as it is within the exclusive domain of the government. Neither the promotion could take place automatically, nor the seniority alone is the deciding factor, as number of factors constitute fitness for promotion. The learned Advocate Supreme Court for the petitioner has not been able to show that there was any malice on the part of the respondents, so far as the conversion/re-designation of the post is concerned. An act of mere technical irregularity having been instantaneously rectified by the respondents after being pointed out by Ministry of Finance, per-se would not to be sufficient to hold that such action has any dent of malice on the part of respondent Ministry. The conversion of the post was notified on 1-4-2004 and it is not the case of the petitioner that he was denied the right of consideration for promotion before the said date. It appears that soon after the rectification of the irregularity on 12-11-2005, the petitioner was allowed the charge of Director (Horticulture) (BS-19) on 31-1-2006 and after assuming the charge of higher post he was allowed special pay also for the same. Subsequently, on 4-8-2006, the petitioner was notified to be promoted on the said higher post on regular basis.

5. It is an admitted fact that during the pendency of his appeal the petitioner stood retired, as such could not be considered for promotion with retrospective effect.

6. It may be noted that the question of ante-dating the promotion would only arise, in case if, the petitioner was already promoted, which was admittedly not the case of the petitioner. We have had the benefit of considering the case law relied upon by learned Advocate Supreme Court for the petitioner, but it was found to be of no help to advance the case of the petitioner. The Federal Service Tribunal has dealt with the case of the petitioner strictly in accordance with settled principles of law. There is no illegality or perversity in the impugned judgment as such it requires no interference. The petition being without merit is therefore dismissed and leave declined.

M.B.A./A-10/S Petition dismissed.