SECRETARY TO GOVERNMENT OF N.-W.F.P. And Another vs MUHAMMAD

FAZAL ILAHI KHAN, J.-- Leave to appeal is prayed for in these to petitions bearing Nos.207-P/95 and 209-P/95 arising out of common judgment of the learned Peshawar High Court, Peshawar passed on 10-4-1995 in Writ Petitions Nos.488/93 and 452193.

2. Respondents who are the employees of the petitioners having completed 10 years' service as Work Munshies appeared in examination held for the second the in same year on 16/17-2-1983 having passed the examination were promoted vide order dated 20-3-1993. Subsequently, the examination was cancelled and the respondents were ordered to be reverted to the original post of Work Munshies in the department vide order-dated 10-6-1993, Respondents feeling aggrieved filed Writ Petitions in the Peshawar High Court and those were allowed. The office order dated 6-3- 1993 was set aside vide order dated 10-4-1995 against which leave to appeal is prayed for

3. It was contended by the learned counsel appearing for the petitioner that per rules contained in the Syllabus for the promotion of Work Munshies (BPS-5) to the post of Sub-Engineer (BPS-11), the Work Munshies will be entitled to appear in the departmental examination for promotion to the post of Sub-Engineer after communicating his intention doing so to the department and that the examination will be set once a year in the month of November/December. That in pursuance of such rules examination was held on 12/13-1-1993 in pursuance of a Notification by Directorate Local Government and Rural Development, N.-W.F.P., Peshawar vide No. DG(RWP)2(5)/73, dated 23-12- 1992. That respondents having failed to participate in such examination the subsequent departmental examination held was in violation of rules and rightly recalled and in consequence the promotion withdrawn. The contention has, got no force. It is not denied that when the respondents came to know of the Departmental Promotion Examination held on 12/13-1-1993 they made representation in writing on 26-1-1993 to the Secretary concerned that though they have completed their 10 years' service and were eligible to appear in the departmental examination and had informed the Assistant Director, Rural Development, North Waziristan Agency, where they were posted, that they would like to appear in such examination but they were not informed of such examination. The Secretary concerned thereafter after consideration passed the following order:-- "Reportedly many of the Work Munshies were not informed about the Syllabus and date of departmental examination. I think we can hold another examination after short interval."

Accordingly another examination was held on 16/17-2-1993 in which the respondents were declared successful and by office order dated 18-3-1993, on the recommendation of the Departmental Promotion Committee, they were allowed BPS-1.1 on passing of Grade-B Examination as required under the provision contained in the Service Rules. The aforementioned promotion order was withdrawn on 10-6-1993 in consequence of the cancellation of the departmental Grade- B Examination, held on 16/17-2-1993, for reasons that the subsequent examination was in violation of the Rule which provides that Departmental Examination for promotion is to be set once a year in the month of November/December. The respondents were eligible and that they had communicated their intention to the Department that they will appear in the Departmental Examination for promotion, it was the duty of the Department to have informed them of the date, the and other particulars of said examination as required. The learned High Court considering the aforementioned facts, was therefore, justified in holding that once the department was satisfied that the respondents did not appear in the earlier examination as they had not been informed and no opportunity provided to them held the second examination which the respondents passed and subsequently on its basis promoted, the petitioner was not entitled to cancel such examination and to recall the promotion order. The order of the learned High Court is just, proper, based on principle of natural justice and suffers from no infirmity. Leave to appeal is, therefore, refused and petition dismissed.