Find a Lawyer

Writ Petition No. 496 of 1972 decided on 24^th September 1973.

‑‑ Promotion always a matter of discretion and not of right---Writ cannot be issued on hypothetical and imaginative basis‑Constitution of Pakistan (1962), Art. 98,

The petitioner prayed for a direction to be issued for framing the rules regard to the service in which he was prior to his promotion. The necessity for getting such a direction issued, according to him was that in case such rules are framed and in case in those rules something favour able is introduced In such a way which may for instance provide (hall members of "class II Service of Pakistan Audit Department" will be eligible for promotion to "Pakistan Audit and Accounts Service on occasion alai in proportion better than that on which the petitioner wars promoted in January 1968, then he will try to avail of the same and claim retrospective promotion in accordance with the aforesaid to‑be‑framed rules.

Held: Apart from being a totally wrong approach to the problem its hand it Is a too hypothetical and imaginative basis for getting a writ issue from the High Court. Especially when promotion is always a matter of discretion and not of right. The recruitment to the "Pakistan Audit and Accounts Service" is made basis of its own rules and the framing of rules of Class II service of Pakistan Audit Department in that context is irrele vant. The petitioner was promoted to "Pakistan Audit and Accounts Service" in accordance with rules of that superior service, and so long as his promotion was in conformity with those rules the mere absence of dines or absence of promotion‑prospects in the rules of the feeding service is immaterial.

---‑‑Art. 98 read with Art. 178‑Government servant‑--Prospect of promotion ‑‑‑ Not covered by phrase "terms and conditions of service"‑Writ petition could be filed only wrath regard tea condition and terms specified in Constitution‑‑Prospects of promotion not being specified In Constitution, petition with regard to such prospect, held incompetent.

Government of West Pakistan v. Fida Muhammad P L D 1960 SC 45 rel

Ihsan-ul‑Haq for Respondent No. 1

An Advertisement, according t,, V t,‑, learned counsel for the petitioner, appeared In the Daily Pakistan Times dated lath January. 1949, inviting applications for certain Class‑11 posts in the Pakistan Audit department. A copy of that advertisement, however, has not been placed on record. The petitioner applied for one of these posts and on 4.6.1949 he was intimated vide letter (copy Annex. A') that he was selected for appointment. This was followed by a formal appointment letter dated 21st June 1949(see Annex. B'). In the said appointment letter it was Inter alia written that.

"the Government of Pakistan are pleased to appoint you In Class II service of the Pakistan Audit Department subject to the conditions mentioned below."

2. The petitioner in January 1968 was promoted to" Pakistan Audit and Accounts Service". He filed the present writ petition on the 14th April, 1972, containing the following prayer:

"It is, therefore respectfully prayed that appropriate writ or order or direc tion may kindly be issued to the respondents for framing rules of Class 11 Service of Pakistan Audit department with retrospective effect and fix the quota for such officers for promotion to P. A. & A. S. and to consider the case of the petitioner in the light of those rules and give him the necessary pro forma promotion and fringe benefits that accrue to him, as a result of fixation of his seniority amongst the members of P. A. & A. S. and monetary loss that has been sustained by the petitioner so far be also allowed with costs."

3. It was conceded before se that so far as "Pakistan Audit and accounts Service" is concerned, it is one of the Superior Services of Pakistan and rules for that service do exist though a copy of those rules was not shown to me. It is to be mentioned that the petitioner at the moment, is in dais service and from that point of view no question of issuing any direction for framing any rules for this service arises. When confronted with this situation learned counsel submitted that his prayer was not to get a direction mar framing rules of "Pakistan Audit and Accounts Service" but of "Class II Service of Pakistan Audit Department" in which he was Initially recruited. Even though the petitioner is no longer in the service in, nor is he holding the post to, which he was initially appellant but has been promoted w. e. f. January, 1968, to a superior service, namely "Pakistan Audit and Account Service" he withes a direction to be Issued fur framing the rules with regard to the service in which he was prior to his promotion. The necessary or getting such a direction issued, according to the learned counsel, i that ‑in case such rules are framed and in case in those rules something favourable is introduced in such a way which may for instance provided that members of "Class 11 Service of Pakistan Audit Department" will able for promotion to Pakistan Audit and Account Service on occasion in proportion better than that on which the petitioner was promoted Janury, 1968, then ha will try to avail of the same sad claim retrospective notion in accordance with aforesaid to be framed rules. In my opinion apart from being a totally wrong approach to the problem in hand it Is too hypothetical and imaginative basis for getting a writ issued from this Court. Especially when promotion is always a matter of discretion and not of right. The recruitment to the "Pakistan Audit and Accounts Service" is made basis of its own rules and the framing of rules of Class II Service of Pakistan Audit Department in teat context is irrelevant. The petitioner was promoted to "Pakistan Audit and Accounts Service" in accordance with the rules of that superior service, and so long as his promotion was in conformity with those rules the mere absence of rules or absence of promotion prospects in the rules of the feeding service is immaterial. Roles for promo tion from other services to the Pakistan Audit and Accounts Service were to be laid down In the Pakistan Audit and Accounts Service was to be made. The argument of the learned counsel from that point of view is thus misconceived. Even otherwise though the matter has been put forward in somewhat involved form before me' but the aim of the petitioner seems to get his prospects of promotion, brightened and improve with a retrospective date. It is well settled that "prospective of promotion" are not covered by the phrase "terms and condition of service" of a civil servant as laid down by tire Supreme Court in Government of West‑Pakistan v. Fida Muhammad (P L D I960 S C 45). From that point of view the presenr writ petition cannot be maintained g because according to the Constitution relevant to this case a writ petition could he filed by a civil servant only with regard to such terms and conditions as were specified in the Constitution. Prospects of promotion not having been specified in the Constitution a petition to lay down these prospect is incompetent.

4. Looked at from another point of view the letter of appointment a copy of which has been filed in the form of Annex. 'B' constituted the terms and condition of service of the petitioner. Apart from that the organisation and control of the "Pakistan Audit Department" has been set out in a publication known as "Manual of Standing Orders of the Comptroller and Auditor‑General" (Second Edition) a copy of which has been placed by the Department on record. Relevant paragraphs of this manual wherever the context may so require keeping in view the facts of each case can be given the status of rules and from that point of view it cannot be said that there existed no rules with regard to the Pakistan Audit Department.

5. The writ petition has no merit and Is dismissed in limine. .

Petition dismissed

Find a Lawyer Near You

Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.