Sajida Jahangir VS FOP, etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT,

ISLAMABAD

WRIT PETITION NO. 4559 OF 2021

Sajida Jahangir and 2 others Versus Federation of Pakistan, and others

PRESENT: Mr. Umair Baloch, Advocate for Petitioner. Mr. Rai Azhar Iqbal Kharal, Mr. Ali Haider & Syed Ishfaq Hussain Shah, Advocates for Respondents

Date of Hearing: 09.09.2026.

SHAHRUKH ARJUMAND, J. Through the instant constitutional petition, the petitioners have impugned the order dated 21.05.2020, issued by the Ministry of Overseas Pakistanis and Human Resource Development ("OP&HRD"), whereby the notification pertaining to the promotion of the petitioners to the post of Deputy Director (BS-18), earlier issued vide notification dated 19.05.2020, was withdrawn ab initio.

2.Learned counsel for the petitioners submitted that the action of the respondents runs contrary to the principle of locus poenitentiae, inasmuch as the notification regarding the promotion of the petitioners was issued on 19.05.2020, pursuant to which the petitioners assumed charge of the said posts on 20.05.2020. It was contended that, upon assumption of charge, valuable rights had accrued in favour of the petitioners, and their promotions could not thereafter be withdrawn or recalled. Moreover, it is a settle principle of law that denying promotion to an employee/officer, who otherwise qualifies the same, amounts to impose a major/minor penalty upon him under the E&D Rules, 1973. On this premise, it was argued that the impugned order is

arbitrary, unlawful, mala fide, and passed without lawful authority, and is therefore liable to be set aside.

3.Conversely, learned counsel for the respondents controverted the submissions advanced by learned counsel for the petitioners and contended that the petitioners' claim to promotion to BS-19 [BS-18, per your facts] is not maintainable, as the promotion notification dated 19.05.2020 had been issued without the requisite approval of the competent authority. It was submitted that, the notification having been issued without lawful sanction in the first instance, the respondent-department was well within its authority to withdraw the same, and no vested right could be said to have accrued to the petitioners on the strength of a notification that was void ab initio for want of proper approval.

4.I have considered the respective submissions of learned counsel for the parties and examined the record available before this Court.

5.The facts leading to the filing of the instant petition are that a meeting of the Departmental Selection Board (“DSB”), chaired by the Secretary, Workers Welfare Fund (“WWF”), along with two other members, was held on 26.03.2020, wherein the cases of the petitioners for promotion were considered and their names were recommended for promotion to BS-19. Pursuant to the said recommendations, the petitioners were promoted to BS-19 on regular basis in the WWF vide notification dated 19.05.2020. The petitioners accordingly assumed charge of their respective posts on 20.05.2020; however, on the very next day, i.e. 21.05.2020, the said promotion notification was withdrawn by the respondents. Feeling aggrieved, the petitioners approached this Court by filing W.P. No.1497 of 2020, which was disposed of vide order dated 09.09.2020. The operative part of the said order is reproduced hereunder: -

“The representative further asserted that they would be satisfied if the instant writ petition is transmitted to the

respondents for the decision by treating it a representation within a specified period.

In view of the above, the impugned notification dated 21.05.2020 is set-aside. The instant writ petition along with annexures be transmitted to the respondents for decision as a representation of the petitioners within three weeks, strictly in accordance with law after providing due opportunity of hearing.”

6.In pursuance of the aforesaid order, the respondents afforded an opportunity of personal hearing to the petitioners and, thereafter, passed order dated 08.10.2020, whereby the representation of the petitioners was rejected. The petitioners, still aggrieved by the decision, submitted another representation dated 22.06.2021 before the Federal Secretary, Ministry of Overseas Pakistanis and Human Resource Development (“OP&HRD”), which too was rejected vide order dated 17.09.2021. It is against the aforesaid orders and the action whereby the petitioners’ promotion to BS-19 was denied that the petitioners have approached this Court through the instant constitutional petition.

7.The first and foremost question that arises for determination is whether the recommendation made by the Departmental Selection Board (“DSB”), by itself, conferred upon the petitioners an indefeasible or vested right to promotion. The answer, in the considered opinion of this Court, is in the negative. It is a settled principle of service jurisprudence that a Selection/Departmental Selection Board performs an evaluative and recommendatory function; its recommendations do not, in the absence of approval by the competent authority as required under the applicable rules, attain the status of a final decision conferring a substantive right upon the recommended candidates. The DSB may assess the suitability and fitness of officers and recommend their names for promotion, but it does not, merely by making such recommendation, exercise the statutory or delegated authority vested in the competent authority to finally approve and effect the promotion. Thus, the mere fact that the

petitioners’ names were recommended by the DSB could not, in itself, be construed as an act of promotion or as creating an accrued right to appointment against the higher posts. The recommendation remained subject to the prescribed legal process, including approval of the competent authority, and until such process was lawfully completed, no vested right could be claimed solely on the basis of the DSB proceedings.

8.The contention of learned counsel for the petitioners that, once an officer fulfills the prescribed qualifications or is found eligible and suitable for consideration, denial of promotion amounts to imposition of a major or minor penalty under the Government Servants (Efficiency and Discipline) Rules, 1973, is equally misconceived. Eligibility for promotion and entitlement to promotion are two entirely distinct concepts and cannot be equated. Satisfaction of the prescribed qualifications merely entitles an employee to be considered for promotion in accordance with law; it does not confer an absolute or indefeasible right to be promoted. Even where an employee possesses the requisite qualifications, experience and other prescribed attributes, promotion remains subject to the recommendations of the competent forum, availability of the post, observance of the prescribed procedure, approval of the competent authority and fulfillment of all other legal and administrative requirements. It is, therefore, incorrect to contend that every officer who meets the eligibility criteria must necessarily be promoted. An employee has a right to fair and lawful consideration for promotion, but no vested right to promotion merely by virtue of being eligible or even having been recommended, unless the applicable legal framework expressly provides otherwise. In 2023 SCLR 63, Hon’ble Supreme Court observed that: -

“The Act of 1973 read with the rules framed by the competent authority regulate and governs the terms of conditions of service and it includes prescribing the mode of appointment, transfer, posting, eligibility for

promotion, seniority etc. It is settled law that there is no vested right in promotion nor the rules which determines the eligibility criteria for promotion.2 It is within the exclusive domain of the competent authority to make rules in order to raise the efficiency of the employees in particular and the service in general.3 Promotion is neither a vested right nor could it be claimed with retrospective effect. An employee may claim under the relevant law/rules to be considered for promotion when cases of other similarly placed employees are taken up but cannot compel the employer department to fill the promotion post nor to keep it vacant or under consideration.4 The question of promotion exclusively falls within the domain and jurisdiction of the competent authority and, ordinarily, a court or tribunal would not interfere, except when the designated competent authority has acted in violation of law, excess of jurisdiction or without jurisdiction.”

9.Moreover, it is fact that assumption of charge pursuant to an order which itself lacked the requisite approval cannot, by itself, validate an otherwise incomplete or unauthorized promotion process. The doctrine that an employee acquires vested rights upon assumption of charge presupposes that the underlying appointment or promotion was validly made by the authority competent to make it and in accordance with the governing rules. An assumption of charge cannot cure a foundational defect in the order of promotion, nor can an administrative act acquire legality merely through implementation when the mandatory preconditions for its issuance have not been fulfilled. Accordingly, the petitioners cannot derive a vested right merely from the issuance of the notification dated 19.05.2020 or their assumption of charge on 20.05.2020, if the record establishes that the notification had been issued without the requisite approval of the competent authority. The principle of locus poenitentiae, relied upon by learned counsel for the petitioners, also cannot be invoked in isolation or so as to override the statutory scheme governing promotions. The doctrine may operate where a competent authority, having lawfully exercised its power and completed the relevant decision-making process, seeks to resile from a final decision after

rights have accrued thereunder. It cannot, however, be employed to perpetuate an order which was issued without fulfillment of a mandatory legal requirement or without approval of the authority competent to accord such approval. No principle of law can be invoked to sustain an act merely because it has been acted upon, if the act was lacking in lawful authority at its inception. The principle of locus poenitentiae; which restrains an authority from undoing what it has lawfully and validly done, once rights have accrued to another party on the strength thereof; has no application where the original act itself was never validly completed. A right cannot accrue on the foundation of a nullity; and an authority correcting its own unauthorized action is not "reconsidering" a valid order but is merely giving effect to the true legal position, which never included a completed promotion in the first place. The principle of locus poenitentiae, therefore, cannot be invoked to perpetuate an act which was never validly completed in accordance with the governing legal framework. The Hon’ble Supreme Court, in PLD 1992 SC 207, has categorically held that although a public authority possessing the power to pass an order may ordinarily vary, amend or rescind the same only within the permissible limits recognized by law, an illegal order does not acquire permanence merely because it has been acted upon. In that case, while examining the applicability of the doctrine of locus poenitentiae, the Hon’ble Supreme Court observed as under: - “The respondent challenged the action of the appellants in an appeal before the Federal Services Tribunal. The appeal was allowed. The reasons which weighed with the learned Tribunal are as follows:-- "Be that as it may however, it is a well-settled legal position that a public authority which can pass an order, is empowered to vary, amend or rescind that order. But this power to recede can be exercised only till a decisive step to carry out that order is taken. If, however, the order has been Oven effect to, so that no locus poenitentiae is left, there will be no occasion for exercise of such power. Thus the power to amend or cancel an order cannot be carried into effect if the

order has been acted upon. In the present case the pay of the appellant was duly fixed in NPS-11 in 1976 which was being paid to him for about seven years. Therefore, the departmental authorities had no valid power of receding the orders of fixation of the appellant's pay in NPS- 11 which was fully carried into effect. Consequently we hold that the impugned action is incompetent and unjust."

It is therefore, clear that the Tribunal has also not disputed the contention of the appellant that respondent was not entitled to be fixed in Gra.de-11 of National Pay Scale. The principle of locus poenitentiae was invoked by the learned Tribunal in aid of the respondent. Having gone through the facts of the case, we have come to the conclusion that this principle is not attracted in the present case. Additionally, under section 21 of the General Clauses Act, the authority which can pass an order, is entitled to vary, amend, add to or to rescind that order. The order under which the payment was made' to the respondent had no sanction of law. Locus paenitentiae is the power of receding till a decisive step is taken. But it is not a principle of law that order once passed becomes irrevocable and it is past and closed transaction. If the order is illegal then perpetual rights cannot be gained on the basis of an illegal order. The appellants when came to know that on the basis of incorrect letter, the respondent was granted Grade-11, they withdrew the said letter. The principle of locus paenitentiae would not apply in this case.”

10.For the foregoing reasons and that no illegality, arbitrariness, mala fide or want of lawful authority has been established in the impugned action warranting interference by this Court in its constitutional jurisdiction, the instant petition, being devoid of merit, is accordingly DISMISSED as no order to cost.

11.Before parting with the judgment, this Court is constrained to observe that, although the respondents have consistently taken the position that the promotion notification dated 19.05.2020 was issued without the requisite approval of the competent authority, the record does not disclose as to what action, if any, was taken against the officer(s) responsible for issuance of such notification. The issuance

of an order purporting to confer promotion upon government servants to a higher grade, without first obtaining the approval of the authority legally competent to accord such approval, is not a matter that can be treated lightly. Such an act, if established upon proper inquiry, may amount to a serious lapse in the discharge of official functions and raises a legitimate question as to the manner in which an order of such consequence came to be issued without fulfilment of the mandatory requirements of law.

12.In view of the above, the competent authority may examine the matter and, if it is found that the promotion notification dated 19.05.2020 was issued by any officer/official without lawful authority or in disregard of the mandatory requirement of prior approval of the competent authority, to initiate appropriate disciplinary proceedings against the person(s) responsible, strictly in accordance with the applicable rules and after affording due opportunity of hearing and following the prescribed procedure. The respondents are expected to ensure that responsibility for such unauthorized exercise of official authority is duly determined and that the sanctity of the prescribed promotion procedure is maintained. A government office cannot permit an unauthorized act of such nature to go without scrutiny merely because the resultant notification was subsequently withdrawn.

(SHAHRUKH ARJUMAND)

JUDGE

Tanveer Ahmed/*