Sikandar Sultan VS FOP, M/o National Health Services & others

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

INTRA COURT APPEAL NO. 290 OF 2018

Sikandar Sultan and others Vs.

Federation of Pakistan, etc.

Appellants by : Mr. Shoaib Shaheen Advocate.

Respondents by : M/s Ali Nawaz Kharal, Ch. Imtiaz Ahmed Advocates.

Mr. Azmat Bashir Tarar, AAG.

Syed Shahbaz, Superintendent NIH.

Date of Hearing : 02-9-2026.

SHAHRUKH ARJUMAND, J. This intra-court appeal is directed against the judgment dated 04.05.2018, whereby the petition filed by the appellant under Article 199 of the Constitution was dismissed by the learned Single Judge in Chamber.

2.Learned counsel appearing on behalf of the appellant, while assailing the impugned judgment, contended that the promotions in question were effected by respondent No.2 in disregard of the applicable Regulations of 1989. It was argued that, under the said Regulations, the department was required to prepare and maintain separate seniority lists with reference to the respective disciplines in which the employees were appointed and serving. According to learned counsel, the appellants belong to specific disciplines and, therefore, their seniority could not lawfully be determined by placing them in a joint seniority list along with employees belonging to other disciplines. The preparation and reliance upon such a composite seniority list, according to him, was contrary to the governing statutory/regulatory framework and had consequently

ICA No. 290/2018

vitiated the subsequent process of promotion. Learned counsel further submitted that the learned Single Judge erred in law in holding that the claim of the appellants had become stale on account of delay and laches. It was contended that the seniority of respondent Nos.3 and 4 had been determined in their favour by the Departmental Committee vide decision dated 25.04.2013 and, on the basis thereof, they were promoted as Scientific Officers (BPS-17) against the relevant disciplines. According to learned counsel, however, the mere passage of time from the date of such promotion could not, by itself, defeat the appellants' claim where the very basis of their grievance was a continuing and recurring infringement of their statutory right to be considered for promotion in accordance with the prescribed seniority. It was maintained that where an employee's grievance arises from a recurring cause of action, the doctrine of laches is not to be applied mechanically so as to deny substantive relief otherwise available under law. In support of the aforesaid proposition, learned counsel placed reliance upon the judgments reported as Umar Baz Khan vs. Syed Jehanzeb and others, PLD 2013 Supreme Court 268, Masooda Begum vs. Government of Punjab and 9 others, PLD 2003 Supreme Court 90 and Pakistan Post Office vs. Settlement Commissioner and others, 1987 SCMR 1119. It was, therefore, urged that the petition could not have been dismissed solely on the ground of laches without examining the legality of the seniority determination and the consequential promotions made on the basis thereof.

3.Conversely, learned counsel appearing on behalf of the respondents opposed the appeal and supported the impugned judgment. It was submitted that promotion from the post of Assistant Scientific Officer to the cadre of Scientific Officer is governed by the principle of seniority- cum-fitness and, accordingly, an employee is to be considered for promotion on the basis of his position in the duly prepared seniority list, subject to fitness for promotion. Learned counsel contended that the seniority position of the appellants was duly reflected in the relevant seniority list and that petitioner No.1 and petitioner No.4 stood at serial Nos.5 and 6, respectively, whereas petitioner No.2 was placed at serial

ICA No. 290/2018

No.9 and petitioner No.3 at serial No.10. Learned counsel for the respondents further argued that the appellants had failed to identify any specific provision of the applicable Regulations or any other statutory rule which had been violated by the respondents while making the impugned promotions. It was contended that the appellants had merely raised a general objection regarding the preparation of the seniority list without demonstrating any legal infirmity in the manner in which the seniority had actually been determined or applied for purposes of promotion. It was further submitted that the Departmental Committee had already considered the question of seniority and had declared respondent Nos.3 and 4 senior to the appellants vide its decision dated 25.04.2013. The consequential promotions, having thereafter been made in accordance with the applicable principle of seniority-cum-fitness, could not, according to learned counsel, be reopened after an inordinate and unexplained lapse of time. The respondents, therefore, maintained that the learned Single Judge had rightly declined to exercise the constitutional jurisdiction of the Court.

4.We have heard the arguments advanced by the learned counsel for the parties, as well as examined the impugned judgment and the available record with the assistance of learned counsels.

5.The appellants are employees of the National Institute of Health, serving in BPS-16 in different posts. Appellant No.1 joined the department as Technical Assistant on 24.02.1986, appellant No.2 as Lab Technician on 19.01.1987, appellant No.3 as Lab Assistant on 30.11.1988, and appellant No.4 as Technical Assistant on 10.03.1990. At the relevant time, they were serving in BPS-16 and claimed to have acquired higher qualifications in their respective fields, including M.Sc., M.Phil., B.Sc. MLT and other relevant qualifications, besides research publications. The appellants stated that they had qualified the departmental promotion examinations and, with the permission of the department, obtained higher qualifications duly recognized by the Higher Education Commission. According to them, these qualifications rendered them eligible for promotion to BPS-17 under the National Institute of

ICA No. 290/2018

Health Employees (Service) Regulations, 1989, as subsequently amended in 2016. They relied upon the prescribed quota and qualification requirements for promotion to the post of Scientific Officer, including the requirement of three years' service in BPS-16 in the relevant discipline. The appellants, in substance, seek a direction to the respondents to promote them on the basis of their additional qualifications.

6.Under the applicable Service Regulations, the post of Scientific Officer (Reproductive Physiology) (BPS-17) is to be filled by 20% promotion and 80% by initial appointment. For promotion, an Assistant Scientific Officer (BPS-16) is eligible for consideration upon completion of three years’ service in BPS-16 under the relevant discipline of Pathology. As regards initial appointment, the prescribed qualification is MBBS or an equivalent qualification, or a Second Class Master's degree in Biology, Zoology, Reproductive Physiology, Endocrinology, Biochemistry, Botany or Microbiology, duly recognized by the PMDC/HEC, subject to the prescribed maximum age limit of 30 years. From the perusal of the regulations reveals that criteria for promotion of Assistant Scientific Officer to Scientific Officer is completion of three years’ service in BPS-16 subject to seniority-cum-fitness. For promotion additional qualification is not pre-requisite.

7.As regards the question of seniority, learned counsel for the petitioners did not dispute that petitioners No.1 and 4 were employees of the National Research Institute of Reproductive Physiology, which was merged with the National Institutes of Health (N.I.H.) in 1996. At the time of such merger, petitioners No.1 and 4 were serving in BS-11, whereas the Technical Assistants in N.I.H. were placed in BS-14. In order to bring the petitioners at par with the Technical Assistants already serving in N.I.H., they were accordingly upgraded from BS-11 to BS-14. Subsequently, the post of Technical Assistant was re-designated as Assistant Scientific Officer (BS-16). Initially, petitioners No.1 and 4 were placed at serial Nos.1 and 2, respectively, in the seniority list of Technical Assistants (BS-16), which was circulated on 30.07.2012. The said seniority list was challenged by two other Technical Assistants.

ICA No. 290/2018

Consequently, a Committee of N.I.H. Officers was constituted to examine and resolve the controversy. The Committee recommended that the seniority of petitioners No.1 and 4 be reckoned from the date of their first up-gradation from BS-11 to BS-14 and that all Technical Assistants of N.I.H. who were already serving in BS-14 prior to their up-gradation would rank senior to them. The recommendation was accordingly acted upon and a decision to that effect was taken on 25.04.2013, whereafter petitioners No.1 and 4 were duly informed of the same. It is and admitted fact that despite having knowledge of the said decision, the petitioners did not challenge it within a reasonable period and have approached this Court after an inordinate and unexplained delay.

8.It is also pertinent to observe that the mere possession of a higher or additional educational qualification does not, in itself, confer an indefeasible right upon an employee to claim precedence over a senior employee for promotion where the governing Service Regulations prescribe “seniority-cum-fitness” as the criterion for promotion. The expression “seniority-cum-fitness” necessarily postulates that the employees competing for promotion must first satisfy the prescribed eligibility requirements, including the requisite qualification, length of service and other conditions stipulated by the applicable rules; thereafter, among those who are eligible and found fit, seniority assumes primacy. Thus, where a senior employee possesses the minimum qualification prescribed for the promotional post and is otherwise eligible and fit for promotion, a junior employee cannot claim supersession merely on the ground that he possesses a higher or additional qualification, such as an M.Sc. or M.Phil., unless the governing statutory or regulatory framework expressly provides that such additional qualification is to carry preferential weight or constitutes a basis for determining promotion. In Muhammad Amjad vs. the Director General, Quetta Development Authority and another, 2022 SCMR 797, the Hon’ble Supreme Court observed as under :-

“It is a well-recognized principle of law that in case of non-selection post, the promotion is made on the basis of

ICA No. 290/2018

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 a number of factors constitute fitness for promotion”

9.Another important aspect of the matter, which cannot be lost sight of, is that the National Institute of Health Employees (Service) Regulations, 1989 were not framed as ordinary administrative instructions or departmental guidelines; rather, the said Regulations were framed by the Board of Governors of the National Institute of Health with the approval of the Federal Government, in exercise of the statutory power conferred upon it by Section 24 of the National Institute of Health Ordinance, 1980. The Regulations were thereafter duly notified vide SRO 164(I)/89 dated 20.02.1989 and, having been framed in exercise of a power expressly conferred by the parent statute and with the approval of the Federal Government, possess statutory character. The rights claimed by the appellants, including their entitlement to consideration for promotion, the manner in which seniority is to be determined and the qualifications and conditions governing promotion, therefore, arise within the statutory/regulatory framework so constituted. The challenge mounted by the appellants was not merely against an isolated administrative act unconnected with the statutory framework; rather, the legality of the seniority determination and the consequential promotions was questioned with reference to the provisions of the aforesaid Regulations. In such circumstances, the Board of Governors, being the statutory authority which framed the governing Service Regulations and having exercised the rule-making power under Section 24 of the 1980 Ordinance, was a necessary party to the proceedings, particularly where the relief sought had the effect of questioning the manner in which the statutory regulatory framework had been interpreted, applied or acted upon by the departmental authorities. Any adjudication upon the validity, interpretation or proper application of the said Regulations, and

ICA No. 290/2018

any consequential direction affecting the service structure and promotional rights regulated thereunder, in the absence of the authority which framed the Regulations, could potentially prejudice its statutory functions and render the proceedings ineffective or incomplete. Despite the foregoing, the Board of Governors was not impleaded as a respondent in the constitutional petition. The non-joinder of the Board of Governors, therefore, constitutes a material defect in the constitution of the proceedings, as no effective and binding adjudication concerning the statutory regulatory framework and the consequential service rights of the parties could properly be made in its absence. On this ground alone, the petition was liable to be dismissed for non-joinder of a necessary party. The Hon’ble Supreme Court, in Muhammad Shakeel and others vs. Additional District Judge, Faisalabad and others, 2025 PLD 572, while explaining the general principles governing non- joinder, held as under: -

“4. It is important to note that even if this objection had been raised at the initial stage, it would bear no significance. To grasp this fully, it may be well to note the general rule relating to the non-joinder of parties In legal proceedings, a fundamental principle states that if a person deemed necessary to a suit is not joined as a party, this situation is referred to as non-joinder. The essence of this principle is that all persons must be joined as defendants against whom any right to relief is alleged to exist. It contemplates the necessary and the proper party: the former is the person in whose absence no effective order can at all be passed, and the latter is the person in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceedings. There may be yet another class of person who is neither necessary nor proper party and against whom no relief is asked for. Such a person is popularly

ICA No. 290/2018

called 2 pro forma defendants. Thus and so the word “party” has been defined in section 2(d) of the Family Courts Act of 1964, to include any. Person whose presence as such is considered necessary for a proper decision of the dispute.”

10.The principle was reinforced by the Hon’ble Supreme Court in Raja Shahzad Ahmed vs. Incharge Baggage Routing Pakistan International Airlines, Lahore and others, 2025 PLD 251, wherein the Court held that: -

“15. The legal framework governing the University's operation may include the University's enabling legislation, its internal bylaws, and any regulations and rules established by the university governing bodies. The Vice-Chancellor is tasked with ensuring compliance with these provisions to uphold the institution's legal and operational integrity. The Act does not provide that the Vice Chancellor can sue on behalf of the University. Hence, the very initiation of filing the Suit is not in accordance with the law under which the plaintiff/appellant is subjected. Moreover, in the Suit, neither the owner of the newspaper nor the Chief Editor was made a party; hence, the Suit is also hit by misjoinder and non-joinder of the necessary party. Consequently, the suit of the appellant/plaintiff is barred by law.”

11.During the pendency of the instant appeal, subsequent events have also materially altered the position of the parties. Appellant No.1, namely Mr. Sikandar Sultan, retired from service on 01.10.2019, whereas the remaining appellants were subsequently promoted to the post of Scientific Officer (BPS-17) with effect from 12.03.2021. Likewise, respondent No.3, Mr. Bashir Ahmed, who had been promoted as Scientific Officer, has since retired from service with effect from

ICA No. 290/2018

09.02.2025. These subsequent developments have a direct bearing upon the nature and extent of relief that can now be granted in the present proceedings. It is settled that promotion is not a vested right of an employee; rather, what can ordinarily be claimed as of right is consideration for promotion in accordance with the applicable statutory rules, subject to fulfillment of the prescribed eligibility requirements and fitness. after superannuation, an employee cannot ordinarily claim promotion to a higher post, although a separate claim for pro forma promotion may arise in an appropriate case where the employee had become entitled to consideration during service but, through no fault of his own, was wrongfully prevented from being considered. In the present case, so far as appellant No.1 is concerned, he stood retired on 01.10.2019 and, therefore, no direction for actual promotion to the post of Scientific Officer can now be issued. Any claim on his behalf, if otherwise legally sustainable, would necessarily have to be examined within the limited framework governing pro forma promotion and consequential pensionary or monetary benefits, and not as a claim for actual appointment to a higher post after retirement. As regards the remaining appellants, their subsequent promotion to BPS-17 with effect from 12.03.2021 has substantially addressed the substantive grievance relating to their elevation to the higher post. The controversy, therefore, survives, if at all, only to the extent that the appellants seek an earlier date of promotion, restoration of seniority, or any consequential financial or service benefits flowing from an alleged unlawful denial of promotion at the relevant time. Such relief cannot be granted merely on the basis of possession of additional qualifications; the appellants must establish that, at the relevant time, they were legally entitled to be considered and that their exclusion or supersession was contrary to the applicable Service Regulations.

12.The contention that the appellants' grievance constituted a recurring cause of action and, therefore, could not be defeated by laches, is also not persuasive in the facts and circumstances of the present case. A distinction has to be maintained between a recurring or continuing

ICA No. 290/2018

wrong and a challenge to an earlier decision which has given rise to an enduring service consequence. The appellants' grievance, in substance, arises from the determination of seniority made on 25.04.2013. Once that determination was communicated to the concerned employees, it constituted a distinct and identifiable cause of action which was required to be challenged within a reasonable time. The subsequent consideration or promotion of an employee on the basis of such seniority does not, by itself, revive the right to challenge the original seniority determination after years of acquiescence. To hold otherwise would unsettle concluded service matters and expose every subsequent promotion to a perpetual challenge, thereby causing serious prejudice to employees who have in the meantime acquired vested or settled service interests.

13.In the circumstances discussed above, we are of the considered view that the principal grievance of the appellants is founded upon the seniority position determined by the Departmental Committee vide decision dated 25.04.2013, pursuant to which respondent Nos.3 and 4 were treated as senior to the appellants. The appellants admittedly had knowledge of the said decision, yet they did not challenge the same within a reasonable period. Having remained silent for a considerable length of time, they cannot be permitted to assail, at a belated stage, the seniority position which had already attained finality for all practical purposes and had subsequently formed the basis of consequential promotions. The law does not permit an employee, who has consciously acquiesced in a service matter and allowed the rights and positions of other employees to crystallize, to revive the stale grievance after an inordinate and unexplained delay, particularly where such reopening would disturb the settled seniority and promotional position of other employees. The equitable and discretionary jurisdiction under Article 199 of the Constitution cannot ordinarily be invoked in aid of a claim which suffers from unexplained delay and laches.

14.We are, therefore, of the considered opinion that the learned Single Judge was justified in declining to exercise constitutional jurisdiction in favour of the appellants. For the foregoing reasons, finding no illegality,

ICA No. 290/2018

infirmity or jurisdictional error in the judgment dated 04.05.2018 passed by the learned Single Judge in Chamber, the instant intra-court appeal is found to be without merit and is accordingly DISMISSED on the ground of laches.

(INAAM AMEEN MINHAS) (SHAHRUKH ARJUMAND)

JUDGE JUDGE

Announced in open Court on 8th Day of September, 2026.

JUDGE JUDGE

Approved For Reporting.

Tanveer Ahmed/*