Muhammad Gul Khalil Vs MD KTH etc

JUDGMENT SHEET

U PESHAWAR HIGH COURT, PESHAWAR

(Judicial Department)

W.B No.6585-P/201,8

Muhammad Gul Khatil and another......(Petitioners) vs

Managing Director KTH, Peshawar and others.. o.... o. o...... o. o..... o oo o.....:o........(Respondents)

Present: Muhammad Amin Khattak Lachi, Advocate for the petitioners.

Mr. Zartaj Anwar, Advocate for the respondentsNo. I &2.

Syed Sikandar Hayat Shah, A.A.G for the respondentsNo.3 &4.

Date of hearingz 21.07.2022

JUDGMENT

MUHAIEMA-D IJAZ KIIAN. J.: Through the instant writ petitioo, petitioners have made two-fold prayers which are as under:-

o'lt is therefore, prayed that on acceptance of this writ petitiollr the post of petitioners BPS-8 (Telephone Operator) may be llnr' ' -toBPS-ll.

It is further requested that respondents may be directed to r v t the petitioners as Telephone Supervisor against the vacant post.

Any other remedy, which is not specifically asked for may also be granted in favour of petitioner and against the respondents."

2.The nitty-griffy of the case of the V petitioners is that petitioner No. 1 was appointed on 28.09 .1989, whereas petitioner No.2 was appointed on

29.10.lgg5 as Telephone Operator in BPS-07 at the Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

Khyber Teaching Hospital (hereinafter referred to as UKTH') now Medical Teaching Institution (hereinafter referred to as *MTI') and since then they are regularly performing their duties. It is pleaded in their petition that since then they have not been given any promotion though they are on the top of the seniority list of the Telephone Operators. It is furttrer pleaded that only once in the year 2015 their post of Telephone Operator was upgraded from BPS-07 to BPS-08 but since in other Government Departments as well as in the MTI, incumbents of Telephone Operators are working in BPS-ll, therefore, they are also entitled for up-gradation of their post. They have also prayed for their promotion from Telephone Operator to the posts of Telephone Supervisor.

3.The respondents were put to notice and they were also directed to file their para-wise comments, which they have accordingly submitted, who have seriously opposed the issuance of the desired writ in favour of the petitioners.

L Arguments of leamed counsel for the

V parties were heard in detail and the record perused with their able assistance.

5.It is admitted by both the parties that though petitioners are performing their duties in KTFV Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

U MTI, however, they are civil servants. It may be clarified that in the year 2015 through an Act namely The Khyber Pakhtunk:hwa Medical Teaching Institutions Reforms Act, 2015, all the major hospitals of Khyber Pakhtunkhwa including the Khyber Teaching Hospital (KTH) Peshawar were given an autonomous status and the employees working therein were given an option at that point of time either to absorb themselves as employees of the Institution (M.T.D or to continue work as civil servants under the Health Directorate. It is an admitted position that the present petitioners have not opted for their absorption to be employees of KTFI/IVITI and as such they are civil servants but working in the KTHA{TI under the Director General Health Services (DGHS).

6 The contents as well as the pray of the instant petition would show that petitioners have approached to this Court for the grant of up-gradation of their posts as well as for their promotion from Telephone Operator to Telephone Supervisor. During the course of arguments petitioners - were stressing hard for up-gradation of their posts from 'y BPS-08 to BPS-l1, however, it may be noted that up-gradation is neither a right of an employee nor the same could be claimed as a matter of right by an Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

employee as it is the exclusive domain of the v executive/competent authori$, who acts as per the policy of the Provincial Government to keep their employees in a particular scale lgrade. It may also be noted that the awardlgrant of up-gradation of a post or otherwise being a policy decision of the executive carmot be interfered with by this Court, therefore, the desired request of the petitioners could neither be entertained nor adjudicated upon by this Court. In the case of "Fida Muhammad v/s Government o'Khvber Pakhtunkhwo throush Secretarv Education Peshawar & others" reported as 2021. SCMR 1895, the Hon'ble Apex Court has held that the upgradation cannot be claimed as a matter of right but it is in fact based on a policy decision of the competent authority for its implementation across the board for the particular categories of employees jotted down in the scheme/notification who fulfilled the required qualification which is norrnally a particular length of service in a particular pay scale. In the case of Fecleral Public Service ,s v.

,y Anwar-ul-Hoo (Private Secretarvr Islomobod and others (2017 SCMR 890', the Hon'ble Apex Court has declared that up-gradation is carried out under a policy and specified scheme. It is resorted only for the incumbents of isolated posts, which have no avenues Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

or channel of promotion at all. IJp-gradation under the

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scheme is personal to the incumbents of the isolated posts to address stagnation and frustration of incumbent on a particular post for sufficient length of senrice on particular post without any progression or avenue of promotion. Similarly, in the case of "Abdul Hameed & others u/s & Power Develooment Authoritv throush Ch Lahore & others"

reported as 2021 SCMR 1230, the Hon'ble Apex Court observed that the roles of each organ of the State are defined within the Constitution of the Islamic Republic of Pakistan, so also in different laws. A transgression of those roles by one organ would amount to the usu{pation of the power of anothat, which would be against the spirit of Article 7 of the Constitution of the Islamic Republic of Pakistan. It is not the role qr the Courts to intefr' in policlt decisions, unless it is manifest that, such a policy decisions are the outcome of arbitrary exercise of power, mala fides, Pdtently illegal or manifestly unreasonable. In view of the above discussion, the grant of up-grudation being a policy matter cannot be interfered by this Court, being squarely falls within the domain of executive.

L Now moving to the second pray of the

petitioners regarding the issuance of directions to the Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

respondent to grant them promotion. It may be noted v that when once it is admitted tlrat the petitioners are civil servants then in the case of civil servants qua the pray of their promotion, this Court can intervene to issue the desired writ only, when once a civil servant is considered for promotion by the DPC and he is found as "untit for promotion", then in view of Section 4

(b)(D of The Khyber Paktrtunkhwa Service Tribunals Act, 1974, the Service Tribunal would loose jurisdiction and in such eventuality this Court could entertain a writ petition, however, if he is found as not "eligiblefor promotion" due to lack of qualification or experience as required under the rules for promotion to the next grade/scale, then a civil servant will have to approach the Service Tribunal.

S. It may be noted that there is a hair like distinction between the "eligibility for promotion" and '6fitness for promotion". The Hon'ble Apex Court while distinguishing the term "eligibility" and

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"fifiless" for promotion has elaborately concluded in the case of "Bashir Ahmad Badini, D&SJ Dera Allah Yar & others u/s Hon'ble Chairman and Member of Administration Committee Baluchktan & others" reported as 2022 SCMR 448 by holding that it is a well Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad Hon'ble Mr. Justice Muhammad Ijaz Khan

Fl 'l-

v settled principle that eligibility itself is not the benchmark for promotion, rather the most vital yardstick is fitness, which can be judged from the senrice record which includes ACRs, qualificatior, length of service in a particular grade/scale, integrity, knowledge and proficiency in the work/ assignments, all of which are essential dynamics for weighirrg and appraising the merits for promotion to the selection post which is quite common procedure and practice articulated under the law for considering the promotions on merit. In the case of Muhammod Anis and others v. Abdul Hoseeb and others reported as PLD 1994 SC 539" the Apex court has held that the question of eligibility is different from the question of fitness. Indeed, from the definition of the words "eligible" and rtfitrr given in the dictionaries, it appears that the meanings of above two words are interchangeable and at times they caury the same meanings but at the same time they have different meanings. The question whether a person is legally qualified for appointment or promotion to a particular c

post and grade is relatable to the factum whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned, which is to be decided by the competent authority. The question of Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

v fitness of their being appointed is to be determined by the functionaries mentioned therein. In other words a person may be eligible for consideration for a particular post, but may not be fit to be appointed. In the case of Muhammad Rahim Khan v. The Chief Secretarv. lf. W.F.P. and 4 others 1999 SCMR 1605 the Hon'ble Apex Court has declared that the concept of eligibility implies a qualification to be appointed or promoted, whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion. The tests for eligibility are objective and open to scrutiny by a judicial forum However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinior, one way or the other, is to be formed. In the case of "Muhammod Am' - v/s The Director

General Ouetta Authoritv & another"

reported as 2022 PLC (C.5.' 594, the Hon'ble Apex Court has held though the promotion is not a vested right, but it depends on the eligibility as well as fitness ry of the candidate. The concept of eligibility implies a qualification to be appointed or promoted, whereas determination of fitness encompasses a person's competence to be chosen or selected for appointment or promotion subject to the availability of post on Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad lbrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

\-, which the credentials and antecedents of person could be examined for examining his merits and worthiness for promotion.

9.As stated hereinabove that in the case where "eligibtlitv for promotion" is under challenge, an aggrieved civil servant is required to approach the Senrice Tribunal and in a case where (( ,s for

promotion" is under challenge then he has to approach to this Court but in the case in hand, the present petitioners have never been considered by the Departmental Promotion Committee (DPC) so as to determine their eligibility or their fitness or un-fitness for promotion as respondent No. 3 has categorically pleaded in para-3 of his comments that petitioner No. 1 is at Sr. No . 14, whereas petitioner No. 2 is at Sr. No.

20 of the final seniority list of Telephone Operators and they will be considered for promotion on their own turn. It may be reiterated that petitioners will have a cause of action or locus standi to approach to this Court when once petitioners are considered by the DPC and if after passing the barrier of eligibility, they are found as un-fit for promotion then thereafter they t can approach to this Court under Article 199 of The Constitution of Pakistan. In the case of "Abdul Sattar Jatoi v/s Chiec Minister Sindh throush Provincial Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

w' Secretary & others" reported as 2022 SCMR SS0, the Hon'ble Apex Court has held that the Tribunal had no jurisdiction to entertain the service appeal filed by the respondent revolves around section 4(b) of the Sindh Service Tribunals Act, 1973 (the Act of 1973), which provides that no appeal shall lie to a Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person, to be appointed to or hold a particular post or, to be promoted to a higher post or grade. It is to be noted that proviso (b) of section 4 of the Act of 1973, os noted above, bars filing of a service appeal before the Tribunal against an order or a decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade. This provision deals with a situation that the departmental authority has dealt with the matter of promotions of all the employees eligible for promotion to a post and having found a certain employee to be fit for promotion, promoted him the remaining civil senrants whose case for promotion was considered but found not fit to be promoted, such civil seryants' senrice appeals before the Tribunal were not lie. In the present case, no such order or decision, determining the fitness or otherwise of a person to be appointed, Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liaz Khan

'\-i has either been made by the departmental authority nor the question of fitness of the appellant to be promoted has at all been raised. Had the departmental authority considered the case of promotion of all the batch-mates of the appellant working in BPS-19 in the Health Department and the respondent having been found not fit for promotion to the post of BPS-20 by the departmental authority, the service appeal on such question would have been barred before the Tribunal, such is not the case in hand before the Court. In the case of Ghulam Abbas vs. Chief Secretary and 2 others reported as 2016 PLC (C.S.t 87, the Hon'ble Apex Court has held that it has not been denied by the petitioner that he was never considered by the Departmental Promotion Committee or the Board for promotion, upon which this could be determined that petitioner was fit to be promoted. The prerequisite to be considered for promotion is the eligibility of the said official and once he crosses this barrier and is considered for promotion, only then the question of fitness would arise. In view of the above, it can safely h? be held that the case of the petitioner fell within the ambit of determination of eligibility, which for all intents and pu{poses, is part of terms and conditions of senrice of a civil serant, therefore, is beyond the powers of judicial review of this Court in view of Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad lia.z Khan

v cteation of Administrative Tribunals established under Article 212 of the Constitution for adjudication on the question of terms and conditions of service of a civil serant. Similarly, in the case of Muhammad Azam vs.

Muhammad- Tufail and others reported as 2011 SCMR 1871, the Hon'ble Apex Court has also held that the question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned, and, therefore, the Tribunal has jurisdictiotr, and whereas the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness.

1,0. In view of the above discussion and exposition of law it is concluded that petitioners cannot claim the grant of up-gradation of their

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s? posts as it is neither a vested right nor the same can be claimed as a matter of right as it is nowhere protected by any lawlRules/Regulations rather the grant of the same is entirely the domain Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammadliaz Khan

v and sweet will of the executive/employer to up-grade a particular post or not and as such beit g a policy matter, this Court cannot intervene for the desired pray of the petitioners. Similarly, it is further concluded that since petitioners are civil servants, therefore, they could only maintain a writ petition before this Court under Article 199 of The Constitution of Pakistan if once the Departmental Promotion Committee (DPC) duly consider the petitioners and found them as "un-fit ,{ - promotion", however, it is clarified that if they are consider by the DPC and found them as not "eligible for promotion" in terms of qualification or experience or any other prescribed requirement for promotion, then they will have a remedy of service appeal before the Service Tribunal, but since in the present case till date petitioners have not been considered by DPC for promotion to determine their eligibility or fitness or unfitness for promotion, therefore, for v the time being they have no locus standi to approach this Court or the Service Tribunal and as such their present writ petition is pre-mature and is thus misconceived.

Abdul Sabooh/* (D.B.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad litz Khan

-r4- v 11. In view of the above, we hold and declare as under;

i. That grant of up-gradation is not a vested right and as the same rs based on a policy deciston of the competent authortty/Executive, therefor€, this Court in a writ jurisdiction under Article 199 of The Constitution of Pakistan cannot interfere in the policy matter of the provincial government/ Executive.

ii. That in cASe where o civil seryant zs considered and he is found as "ineligible for promotion" in terms of qualification/experience or _for ony other pre-requisite requirements for promotion to the next scale, then he will have a remedy of serttice appeal before the Seryice Tribunal, however, ,f h, ,s considered by the DPC for promotion and found htm as eligible but "un-.cr _t ' promotton" for promotion, then the Serttice Tribunal will have no jurisdiction in view of the bar contained in Sectton 4 (b) (i) of The Khyber PakhtunkhwA Sertice Tribunal Act, 1974 and as such he could maintain a writ petition brfore thts Court.

iii. That as till date petitioners have not been considered by the Departmental Promotion Committee (DPC) for their promotion to the next grade, therefot€, their " eltgibilit.v .r ' f' ' *' ' " and their ".**- qs -' ' promotion" are yet to be determined by the DPC, and as such at this stage they have no locus standi either to approach to the Serttice Tribunal or to this Court, as the case may be, for the redressal of their grievances.

12.In view of the above, the instant petition being bereft of any merit is hereby dismissed.

Announced t4 Dt: 21.07.2022 JUDGE

Abdul Sabooh/* (D.8.) Hon'ble Mr. Justice Mohammad Ibrahim Khan Hon'ble Mr. Justice Muhammad liarz Khan