.4-
SUPREME COURT OF p
(Appellate Jurisdiction)
Mr. Justice Gulzar Ahmed, CJ
Mr. Justice Jjaz iii Ahsan
•__I 
-a
t
--
[Against the judgment dated 22.09.2020, passed by the
Sindh Service Tribunal, Karachi in Appeal No.1009 of 20191
Abdul Sattar Jatoj son of Saaduiiah Jatoi,
Muslim, Adult, Director (Administration,
Accounts & Development) (BPS -2 0),
resident of House No.29..A, Jatol Haven,
Samanabad, Near Marzjj ?own, Qasimabad
Hyderabad.
Versus 
. . . Appellant(s)
Chief Minister Sindh through Principal
Secretary, Chief Minister Secretariat,
 
K arachi and others.. . 
Respondent(s)
For the Appellant(s) Mr. M.M. Aqil Awan, Sr.ASC
For Respondents No. 1-4 
Syed M. Saulat Rizvi,
(Govt of Sindh)
Add]. Advocate General, Sindh
(via video link from Karachi)
Respondent No.5 In person
Date of Hearing 
90 fli r)nni
JUDGMENT
This civil appeal is by leave of the :J
Court vide order dated 03.12.2020.
2. 
Facts of the matter are that Respondent No.5-Au
Abbas (the respondent) and appellant Abdul Sattar Jatoi were
appointed on 16.03.1992 as Planning Officers (BPS-I?) in the
Health Department,Government of Sindh on the recommendation
of the Sindh Public Service Commission, which contained the
merit list, where the name of Respondent No.5 was 
mentioned at
Serial No.5, while the name of the appellant was mentioned at
.1
-
Cilil Appeal No 1167 of 2020 
- 2
Serial No.9. Both the respondent and the appellant were ptomoted :1
as Deputy District Officer (P&D) (BPS-] 8) vide Notification dated J
1 1.10.2004, wherein the name of the respondent was mentioned t
at Serial No-3, while that of the appellant at Serial No-5. Seven
Deputy District Officers (P&D) (BPS-18) were promoted as District I
Officer (Administration, Accounts & Development) ( BPS-19) and 1
one as Additional Director Development by the Provincial Selection
Board No.11 held on 27.01.2010, wherein name of respondent is
mentioned at Serial No.2, while the appellant at Serial No.5,
3. It seems that the post of District Officer
(Administration, Accounts & Development) (BPS-19) was
abolished Vide Notification dated 07.11.2012, the appellant, an
officer in BPS- 19 in the Health Department, was declared surplus H
with immediate effect and under Rule 9-A of the Sindh Civil
Servants (Appointment, Promotion & Transfer) Rules, 1974 (the
Rule of 1974), his service was placed at the disposal of the a
surplus-pool 
of Services, 
General Administration and I
Coordination Department (SGA&CD), Government of Sindh.
Through a further Notification dated 1 0.01.2013, the appellant
was absorbed / inducted in the Provincial Secretariat Set-vice cadre
against an equivalent post of BPS- 19 with immediate effect. 
1r
Through further Notification dated 02 .07.2013, the absorption of
the appellant in the Provincial Secretariat Service was withdrawn.
The appellant made an application dated 25.07.2013 addressed to
the Chief Secretary, Government of Sindh requesting that he may :J
be posted/absorbed back against non-cadre position at Liaquat 1
University Hospital Hyderabad/Jamshoro by re-designating post I
Civil Appeal No. 1167 of 2020 
-
of BPS- 19, as Director (Administration, Accounts and
Development). The summary dated 12.12.2013 for the approval of
the Chief Minister, Sindh was initiated recommending re-
designation of one post on non-clinical side as Director
(Administration, Accounts & Development) (BPS- 19) for absorption
of the appellant. Vide Notification dated 09.01.2014, the appellant
was posted as a Project Director, Project Management &
Implementation Unit (PMIU), Education & Literacy Department.
Through the order of the Health Department, Government of
Sindh dated 09.11.2016, one post of Additional Medical
Superintendent (BPS-19), Liaquat University Hospital, Hyderabad
was sanctioned and re-designated as Director (Administration,
Accounts & Development) (BPS-19) on non-clinical side for
absorption of the appellant. Through Notification dated
25.11.2016, the appellant was absorbed as Director
(Administration, Accounts & Development) (BPS-19), Liaquat
University Hospital, Hyderabad. Through further Notification
dated 06.03.201.8, rules for appointment were amended and a
person specific post of Director (Administration, Accounts and
Development) in BPS-20 was created for the appellant in the
Health Department, Government of Sindh. Through further
Notification dated 01.06.2018, the appellant was promoted to the I
post of Director (Administration, Accounts & Development) in
BPS-20 on regular basis with immediate effect. The respondent
was aggrieved of this last mentioned Notification and thus,
submitted a departmental appeal. The respondent did not receive
response to the departmental appeal, therefore, he filed Service
Civil Appeal No. 1 167 of 2020
Appeal No.993 of 2018 in the Sindh Service Tribunal, Karachi (the
Tribunal). He made the appellant as Respondent No.4 in the said
service appeal and prayed that the promotion of the appellant as
Director (Administration, Accounts & Development) in BPS-20 be
cancelled and withdrawn, and the said post be filled up amongst
the most senior officers on the basis of seniority-cum-fitness and
in accordance with law. This service appeal of the respondent was
dismissed as premature vide order dated 30.08.20 19 and he was
allowed to file departmental appeal and then to file service appeal
within 90 days of filing of the departmental appeal. The
respondent seems to have filed departmental review
appeal/petition and getting no response on the same, again filed a
service appeal in the Sindh Service Tribunal. The appellant was
impleaded as Respondent No.5 in this service appeal. After
hearing the learned counsel for the parties, the Tribunal through
its impugned judgment dated 22.09.2020, disposed of the appeal
by noting, inter a/ia, as follows:-
"17. It was told to us that currently the
respondent No.05 has been relieved of the charge
of the post of BS-20 Liaquat University Hospital,
Hydcrabad/Jamshoro and he has reported to
Health Department. He is therefore to stay there
and be treated and posted in BS-19 like his
batch-mates obeying the judgment of the Hon'ble
Supreme Court in letter and spirit. His promotion
to BS-20 is set aside."
As noted above, the Tribunal has set aside the promotion of
the appellant as an Officer of BPS-20.
4. 
Learned counsel for the appellant has contended that
the very service appeal filed by the respondent before the Tribunal
Civil Appcal No.] 367 012020
was not maintainable and in this regard made reference to Section
4(b) of the Sindh Service Tribunals Act, 1973. He further
contended that the officers of the Health Department were
H
Considered for promotion by the Provincial Selection Board No.11 H
held on 27.1.2010 and the appellant so also the respondent and
other five officials were granted promotion from the post of Deputy
District Officer (Planning & Development) (BPS-18) to the post of
District Officer (Administration, Accounts and Development) (BPS-
19) and one as Additional Director Development. He further
contended that through the Sindh (Repeal of the Sindh Local
Government Ordinance, 2001 and Revival of the Sindh Local
Government Ordinance, 1979) Act, 2011 (the Act of 2011), the
Sindh Local Government Ordinance, 2001 was repealed and the i
Sindh Local Government Ordinance, 1979 was revived, and
further on Promulgation of the Act of 201 1, the posts held by the
appellant and the respondent were abolished and while the
appellant was placed in the surplus-pool the respondent
continued to work in the Health Department in BPS-19. He
contended that under Rule 9-A of the Sindh Civil Servants
(Appointment, Promotion and Transfer) Rules, 1974, the SGA&CD
being parent Department was competent to post the appellant in
any other department and could also be re-designated. He further
contended that having been posted as Additional Medical :1
Superintendent (BPS-1 .9) in Liaquat University Hospital,
Hyderabad and re-designated as Director (Administration
Accounts and Development) (BPS- 19) on non-clinical side, and the
said Hospital being attached department of the Health
Civil Appeal NO. 1167 of 2020 
- 6
Department,in terms of the recruitment rules, the post of Director
(Administration, Accounts and Development) (BPS-20) was Created
and the appellant was promoted to the said post. He contended
that there was no illegality in the promotion of the appellant and
in this respect relied upon the Cases of Shaft Muhammad Mughaj
V. SPrrc'tnn, 
'-.4-.-7-u_y - - -
(2001 SCMR 1446),
others (1995 SCMR 881), Miss Zubaicia Khatoon v: Mrs. Tehmjna
Safid Sheikh and others (2011 PLC (C.S.) 596), Messrs Associated
ccjrnt Companies Ltd v. Pakjctnn thrn,,1 a7--
!L! YJ!t L2Lore Range Lahore and 7 others (PLD 1978 SC
151), Dr. 
Hag v. The Province of Pun lab and others (1980
SCMR 972), A-b-d
ul Sattar v. Pprlc'rntinn
(2013 SCMR 911),
(1995
SCMR 1505), The Chairman, P.LA.0 and others v
(PLD 1990 SC 951), 
M.A. Ghafoor, Senior Mechanical OfJicer, H
Lahore v. Islamic Republic
QLE2±i5t4zithrough Secretary Establishment Division, Government
QstanJslamabadd24 others (2002 PLC (C.S.) 164]) and
Government of Balochistan throuq Secrptnn, Cnn ,:-,--- 
-
1Y4
seer (2009 PLC (C.S.) 513).
5. The learned Additional Advocate General, Sindh
appearing for the official respondents did not Oppose the
Contentions of the learned counsel for the appellant
.1
H
Civil Appeal No. J 167 of 2020
-7-
6. 
The respondent appeared in person and argued his !
case himself. He has Supported the impugned judgment and
contended that the appellant was junior to him since the initial
appointment and at no point of time the appellant was ever made
senior to him. He contended that a person specific post of Director 
I
(Administration, Accounts and Development) in BPS-20 was
created for the appellant and on the desire of the appellant, he
was also promoted to such post. He further contended that all
along special rules have been made for the appellant and he has
been favoured by the official respondents and in doing so, the
official respondents committed grave illegality, for that, he being
senior to the appellant in BPS-] 9 in the Health Department,his
case for promotion was not considered for the post of BPS-20.
7. 
The learned counsel for the appellant in the end has
contended that the very service appeal filed by the respondent
before the Tribunal was time barred.
8. 
We have considered the submissions made by the
learned counsel for the appellant as well as the learned Additional 
Ii
Advocate General, Sindh and the respondent who appeared in
person, and have also gone through the record of the case. 
:t
9. 
We will take up the question of limitation of filing of
service appeal by the respondent before the Tribunal in the first j
place. From the impugned judgment, we note that there is no
discussion by the Tribunal on the point of limitation of the service
appeal filed by the respondent before it but as the question of
limitation being also a question of law, we would like to address
the same. The appellant in the very memo of his service appeal
Civil Appeal No. 1167 or 2070
before the Tribunal has raised grievance against the order dated
01.06.2018 of promotion of his junior/batch-mate i.e. the
appellant from BPS- 19 to BPS-20 and has alleged that he has filed
appeal in the Office of the Secretary Health through proper
channel with an advance copy in the Office of the Worthy Chief
Minister and Secretary, SGA&CD but as no response was
received, he filed Service Appeal No.993 of 2018, in the Tribunal,
which was decided by the Tribunal vide its order dated
30.08.2019, which is as follows:-
"Learned Additional Advocate General present for
the respondents. He files statement whereby the
respondent No.] & 3 have adopted the written
statement filed by the respondent No.02. The
same is taken on record, copy supplied to the
appellant. When pointed out to the appellant that
the preliminary objections have been raised by the
respondents that his departmental appeal has
been filed before wrong forum and also the
appellant did not file the service appeal
immediately within the period of 30 days after the
lapse of 90 days of his departmental appeal.
Therefore he is supposed to wait for the final
decision in the departmental appeal.
After getting apprised of those objections, the
appellant request for passing any appropriate
order. The appeal being premature is dismissed.
The appellant shall be at liberty to correct his
steps under law and file appeal/review before the
competent authority to decide it. He shall be at
liberty to file appeal before this Tribunal in ease
his proper petition/review/appeal is not disposed
of within 90 days of the institution thereof.
Appellant has expressed his apprehension that
his fresh review/petition may not be received by
Cvil Appeal No. 1 167 of 2020
-9
the competent authority on that the learned
Additional Advocate General, Sindh assures that
when the Petition/ review/ appeal is ready for the
presentation he shall get it received by the
concerned authority."
10. 
Pursuant to the order of the Tribunal, the respondent
appears to have filed a review appeal/petition for cancellation of
promotion order of the appellant and having received no response,
again filed the service appeal before the Tribunal with the prayer
seeking, inter alia, that promotion of the appellant as Director
(Administration, Accounts and Development) (BPS-20) vide
Notification dated 01.06.2018 may be cancelled/withdrawn and
Promotion be made amongst the senior most officers, including
the respondent on seniority-cum-fitness basis. The contention of
the learned counsel for the appellant is that the limitati7n has to
be counted from 01.06.2018 , on which date the Notification of
Promotion to the post of BPS-20 of the appellant was issued. He
has contended that review appeal was filed by the respondent on
1 3-09.2019, was barred by one ye, three months and 12 days.
Though such a submission has been made by the learned counsel
for the appellant but has not taken into consideration that earlier
too the respondent had filed Service Appeal No.993 of 2018 and
the Tribunal vide its order dated 30.08.2019 dismissed the same
as premature and allowed the respondent to file appeal/review
before the competent authority and then he was at libert y to file
the appeal before the Tribunal within 90 days of filing of the
appeal/review. It is apparent from the document available at page-
91 of the paper book that the respondent has submitted the
Civil Appeal No. 1167 of 2020 
- lo-
review appeal/petition and the same was forwarded by the
Medical Superintendent, Peoples Medical College Hospital,
Nawabshah (Shaheen Benazir Abad) under his covering letter
dated 13.09.2019 to the Secretary, Government of Sindh, Health
Department, Karachi. Going through the order of the Tribunal
dated 30.08.2019, in which the appellant was duly represented
but he did not challenge the same, the respondent having
submitted the review appeal/petition in terms of the order of the
Tribunal and then filed the service appeal before the Tribunal on
24,12.2019, we are unable to find the service appeal to be time
barred as claimed by the learned counsel for the appellant.
11. The submission of the learned counsel for the
appellant 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 At, 1.973 (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. The respondent in
his service appeal before the Tribunal has made the following
prayer:
"Under the circumstances it is humbly prayed in
the interest of justice.
i. 
The promotion of Mr. Abdul Sattar
Jatoi as Director Administration Accounts &
Development BPS-20 be cancelled
immediately from 01.6-2018 and the same
may be filled by the way of promotion from
amongst the seniors including appellant on
the basis of fitness cum seniority in
accordance with law by modification of
rules of promotion.
Civil Appeal No. 1167 of 2020
ii.
The post of Director Administration
Accounts & Development/ Director
Development & Evaluation BPS-20 may be
created in any of similar institution viz Civil
Hospital 
Karachi/ PMC 
Hospital
Nawabshah / C MC Hospital Uarkana/
Directorate General Health Services Sindh,
Hyderabad as created at LMC Hyderabad
for promotion of Seniors with financial
benefits of same date (01 .06.20 18)
including appellant based on fitness cum
seniority in accordance with law.
iii.
Any other relief may be awarded as
deemed just and proper."
The above prayer shows that the respondent has challenged
the promotion of the appellant as Director (Administration,
Accounts & Development) (BPS-20) and has sought cancellation of
notification dated 01.06.2018 by which the appellant was
promoted. The respondent has also prayed that the post of
Director (Administration, Accounts & Development) (BPS-20) be
filled up by way of promotion from amongst the seniors including
the respondent on the basis of seniority-cum- fitness and in
accordance with law by modification of rules for promotion. The
respondent has also prayed that the post of Director
(Administration, Accounts & Development/ Director Development
& Evaluation (BPS-20) may be created in any of the similar
institutions viz Civil Hospital Karachi / PMC Hospital
Nawabshah / CMC Hospital, Larkana/ Directorate General Health
Services Sindh, Hyderabad, as is created in LMC Hyderabad.
12. It is to be noted that proviso (b) of Section 4 of the Act
of 1973, as 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
Civil Appeal No. 1167 of 2070 
- 12
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 servants whose case for promotion was considered
but found not fit to be promoted, such civil servants' service
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, has either been made by the departmental
authority nor the question of fitness of the appellant to be
promoted has at all been raised. The grievance: in the service
appeal filed by the respondent before the Tribunal was that the
departmental authority did not at all consider the case of the
appellant's own batch-mates including the respondent who were
working in the post of BPS-19 in the Health Department for
promotion to the post of BPS-20, in that, only the appellant was
picked up by the departmental authority for grant of promotion to
him in BPS-20 and the senior batch-mates of the appellant have
altogether not been considered for granting of promotion to the
post of BPS-20. 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.
U
Civil Appeal No.1 167 of 2020 
'IL
13. The next submission of the learned counsel for the
appellant is that on repeal of the Act of 2011, the post of District
Officer Planning and Development (BPS-19) in the Health
Department was abolished and the appellant was justifiably
placed in surplus-pool and being available in the surplus-pool
SGA&CD was competent to post the appellant in any other
department and on any other post.
14. 
We note that although the Act of 2011 was repealed
but the Health Department continued to operate, in that, as
contended by the learned counsel for the appellant himself, the I
respondent continued to serve the said department It seems that
out of all the District Officers (Administration, Accounts &
Development) (BPS-19) only the appellant's name appears to have
been put in surplus-pool, upon which the wish list of the
appellant started and through notification dated 02.07.2013, the
competent authority eagerly complied with such wish of the
appellant by inducting him in the Provincial Secretariat Service
cadre in the equivalent post of BPS-19 by notification dated
10.01.201.3. Such absorption/ induction of the appellant was
withdrawn on 02.07.2013, upon which the appellant himself
made an application dated 25.07.2013 to the Chief Secretary 
I
Government of Sindh requesting that he may be posted/absorbed
back against non-cadre Position at Liaquat University Hospital,
Hyderabad/J500 by re-designating his existing post of BPS-
19 as Director (Administration, Accounts and Development). On
this request of the appellant, summary dated 12.12.2013 was
floated for the approval of the Chief Minister, Sindh,
K,
Civil Appeal No. 1167 o12020 
- 14
recommending that one post of Additional Medical Superintendent
(BPS-19) in Liaquat University Hospital, Hyderabad may be re-
designated on non-clinical side as Director (Administration,
Accounts & Development) (BPS-19) and the appellant be absorbed
against such post. Vide notification dated 09.01.2014, the
appellant was posted as Project Director, Project Management &
Implementation Unit (PMIU), Education & Literacy Department.
This notification was cancelled /withdrawn vide notification dated
20.08.20 14 and the appellant was asked to report to his parent
department as District Officer (Administration, Accounts &
Development) (BPS-19). Through an order dated 09.11.2016, one
post of Additional Medical Superintendent (BPS-49), Liaquat
University Hospital, Hyderabad was sanctioned and re-designated
as Director (Administration, Accounts & Development) (BPS-19)
on non-clinical side for specific absorption of the appellant.
Through notification dated 25.11.2016, the appellant was
absorbed as Director (Administration, Accounts & Development)
(BPS-19) in the Liaquat University Hospital, Hyderabad. The wish
list of the appellant did not end there and the departmental
authority continued to be too eager to accommodate him to the
post of appellant's own desire. For doing so, through notification
dated 06.03.2018, the rules were amended, so that the appellant
could be appointed to the post of Director (Administration,
Accounts & Development) in BPS-20 in the Health Department.
This amendment in the rules was made person specific to
accommodate the appellant alone and the appellant, out of so
many other batch-mates in BPS-19 in the Health Department,
Civil Appeal No. 1167 of 2020 
- ' 
-
was granted promotion vide notification dated 01.06.2018 from
BPS-19 to BPS-20 and the post of Director (Administration,
Accounts & Development) was shown to be the post of BPS-20.
15.
The law regarding grant of promotion by the competent
authority is well settled that the competent authority while
considering grant of promotion is duty bound and obliged under
the law to consider merit of all the eligible candidates and after
due deliberations, to grant promotion to such eligible candidates
who are found to be most meritorious among them. The law does
not permit to the competent authority to just pick one specific
person and amend the rules for him and then create a post and
oblige and grant promotion to that one person. The rule is that the I
competent authority is bound to consider all eligible candidates
for promotion on merit. This is the requirement of Article 4 of the
Constitution of the Islamic Republic of Pakistan, 1973, which lays
down as a command that to enjoy the protection of law and to be
treated in accordance with law is the inalienable right of every
citizen, whoever he may be. Further Article 25 of the Constitution
as a Fundamental Right, prohibits discrimination and requires
that all citizens are equal before law and are entitled to equal
protection of law.
16.
As noted above, the respondent and the appellant were
appointed on 16.03.1992 as Planning Officers (BPS-17) in the
Health Department, Government of Sindh on the recommendation Fc
of the Sindh Public Service Commission, which contain the merit
list where the name of the respondent was mentioned at Serial
 
No.5, while the name of the appellant was mentioned at Serial
ii
Civil Appeal No. 1167 of 9.020
No.9. They were promoted together as Deputy District Officers
(P&D) (BPS-18) vide notification dated 11.10.2004, in which the H
name of the respondent was at Serial No.3, while that of the
appellant was at Serial No.5. The respondent and the appellant
were again promoted together as District Officers (Administration,
Accounts & Development) (BPS-19) by the Provincial Selection
Board No.11 on 27.10.201.0, wherein the name of the respondent
was at Serial No.2, while the appellant was at Serial No.5. They
continued to remain in BPS-19 while through the impugned
notification dated 01.06.2018, only the appellant was granted
promotion to the post of BPS-20 and that too by making specific
amendment in the rules and creating a post of Director
(Administration, Accounts & Development) in BPS-20.
17. It is an admitted fact that both the respondent and the I
appellant belong to one and the same cadre in the Health
Department, Government of Sindh and at the time when the
appellant was promoted to the post of BPS-20, the other batch-
mates of the appellant in BPS-19 in the Health Department who
were even senior to him from the very beginning of their service
career, were ignored, in that, their cases of promotion were not
put up before the competent authority for determination of their
merit for promotion to the post in BPS-20. It was not at all argued
before us that the respondent was not eligible to be considered for
promotion to the post of BPS-20 when the appellant was granted
promotion to the post of BPS-20. Right to promotion is not an
illusionary nor a perfunctory right which could be ignored
casually. Non-considering of an officer being equally eligible for
Civil Appeal No.] 167 of 2020 
-17-
promotion is a serious matter and not only undermines discipline
but creates serious bad blood and heart burning among the rank
and file of civil service. In the matter of civil service, there should
not at all be any instance where the competent authority is found
to be accommodating any one civil servant for grant of promotion
and availing of better service benefits leaving all other equals and
even seniors abandoned.
18. 
This Court in the case of Secretary Agriculturç
Government of the Punjab, Lahore vs. Muhammad Akram (2018
SCMR 349) has specifically held that the creation of a specific post
for the benefit of one specific civil servant was illegal. In the matter
of Contempt of Court Proceedings against Chief Scctary, Sindh
and other (2013 SCMR 1752) this Court has held that "the
impugned legislation on absorption is persons/class specific as it
extends favours to specific persons infringing the rights
guaranteed to all the civil servants under the service structure
provided under Articles 240 and 242 of the Constitution. ... In the
case in hand the impugned legislation, prima facie, has been
made to protect, promote and select specific persons who are close
to centre of power, and has altered the terms and conditions of
service of the civil servants to their disadvantage in violation of
Article 25 of the Constitution". It was also held that "no civil Ii
servant of a non-cadre post can be transferred out of cadre to be J
absorbed to a cadre post which is meant for recruitment through
competitive process". In the case of Baz Muhammad Kakar and
others vs. Federation of Pakistan and others (PLO 2012 SC 870) 
1
this Court observed as follows:
I
Civil Appeal No, 1167 or 2020 
18-
"The legislature cannot promulgate laws which
are persons/class specific as such legislation
instead of promoting the administration of justice
caused injustice in the society amongst the
citizens, who were being governed under the
Constitution."
19. In the famous case of Tang Aziz-ud-Din and others
(2010 SCMR 1301) leading with the question of promotion to civil
servants, this Court has observed as follows:
"27. ... It is a settled principle of law that object
of good governance cannot be achieved by
exercising discretionary powers unreasonably or
arbitrarily and without application of mind but
objective can be achieved by following the rules of
justness, fairness and openness in consonance
with the command of the Constitution enshrined
in different articles including Articles 4 and 25.
Once it is accepted that the Constitution is the
supreme law of the country, no room is kit to
allow any authority to make departure from any of
its provisions or the law and the rules made
thereunder."
It was further observed as under:
"it is the duty and obligation of the competent
authority to consider the merit of all the eligible
candidates while putting them in juxtaposition to
find out the meritorious amongst them otherwise
is one of the organs of the State i.e. Executive
could not survive as an independent organ which
is the command of the Constitution. Expression
'merit' includes limitations prescribed under the
law. Discretion is to be exercised according to
rational reasons which means that; (a) there be
Finding of primary facts based on good evidence;
and (b) decisions about facts be made, for reasons
 
which serve the purposes of statute in an
p
0
Civil Appeal No 1167 of 2070 
- 19-
intelligible and reasonable manner. Actions which
do not meet these threshold requirements are
considered arbitrary and misuse of power
20. We have also gone through the case law cited by the
learned counsel for the appellant and note that in Shafi
Muhammad Mughal's ease (supra) the DPC has considered the
ease of promotion of the petitioner therein along with respondent
No.6 therein and while he was superseded, respondent No.6 was
granted promotion to the rank of Superintendent of Police (BPS-
18), and while referring to the ease of Muhammad Anis and others
vs. Abdul Haseeb (PLD 1994 SC 539), the Court held as follows:
"1.3. Thus, it would seem that the expression
"eligibility" and "fitness" are distinct and are for
different purposes. The Legislature in its wisdom
has left the issue of fitness at the discretion of the
competent authority for the obvious reason that
the authority looking background and the
performance would be in a better position to
determine the issue of fitness than the Tribunal or
the Court. In this particular case, as is evident
from the report, referred to earlier, it is clear that
general reputation of the petitioner in the past
was not satisfactory, rather it was poor. Nothing
material has also been brought on record to
substantiate the plea that said Vigilance Report 
H
was false."
In Zafar igbal's case (supra) the petitioner was denied
promotion by the Departmental Promotion Committee on the
ground that he was not found fit for promotion, against which he
filed a service appeal before the Service Tribunal with the prayer of
granting him promotion on the basis of seniority. The Service
Civil Appeal No. 1167 of 2020 
20
Tribunal dismissed his service appeal, which order of the Tribunal
was maintained and leave was refused by this Court. In Miss
Zubaida Khatoon's case (supra) the Selection Board considered
the case of promotion of the respondent therein and found her
unfit for promotion, whereas the Selection Board promoted the
appellant therein. The respondent challenged the non-promotion
by the Selection Board by filing of a writ petition in the High Court
which was allowed and the notification issued by the Selection
Board was set aside. Leave to appeal was granted in the matter
and after elaborate consideration, this Court observed as follows:
"18. Learned counsel was specifically confronted
with the service profile of the respondent,
reproduced in paragraph 17 of the impugned
judgment and the comparative service record of
both the parties as given in paragraph 25 of the
impugned judgment. He could neither controvert
the factual aspect of the said comparative chart
nor could he join issue with the observations
made by the court which have been reproduced in
the preceding para. He mainly reiterated the
argument that the learned High Court could not
have embarked upon factual inquiry as the same
was neither tenable under Article 199 of the
Constitution nor permissible in view of the
specific bar contained in Article 212 of the 
F
Constitution. The argument of bar of jurisdiction
has already been repelled in above paragraphs. So
far as the contention that the learned High Court
could not undertake a factual inquiry is
concerned, the same is misplaced, first because
the High Court was not recording any new
evidence but was proceeding on the basis of the
admitted facts and second, if having examined the
admitted facts, it had come to the conclusion that
the authority had passed the order in colourable
Civil Appeal No. 1167 of 2020
exercise of powers conferred on it, or an authority
having power to promote or appoint to a
particular post had done so against the law or
without jurisdiction or while doing so as for mala
fide reasons had not taken into consideration the
relevant record, it could come in aid of person
aggrieved to redress the wrong. The impugned
judgment on that score is unexceptionable.
However, we find that after annulling the
notification which had been impugned before the
learned High Court, the court could not have
directed promotion of respondent No. 1 and
instead should have left the matter to be decided
by the Promotion Committee afresh as the said
authority was competent to pass appropriate
order after de novo exercise.
19. For what has been discussed above, this
appeal is partly allowed and while upholding the
impugned judgment insofar as it annulled the
notification dated 13-8-2001, we direct the
concerned Promotion Committee to decide the
matter afresh within two months of the receipt of
this judgment."
The cited cases on the question of jurisdiction of the
Tribunal are distinguishable on the sole ground that neither the
ease of respondent was placed before Departmental Promotion
Committee nor did it consider the case of promotion of the
respondent, who was eligible for being Considered for promotion
along with the appellant to the post of BPS-20. No fitness for
promotion of the respondent was at all determined.
21. 
Messrs Associated Cement Companies Ltd's ease
-21
(supra) and Dr. Ehsan-ul ..J-{aq's ease (supra) have been relied upon
by the learned counsel for the appellant to contend that the
respondent was not an aggrieved person and his terms and
Bench-I
'APPROVE]) FOR REPORTING'
Mahtab H. Sheikh/*
Announced on 10 61 2ø22 at
c.I
a 
Civil Appeal No.] 167 of 9,020 
22-
conditions of service were not adversely effected. We may note that
the very non-consideration of the respondent for grant of
promotion to the post of BPS-20 along with his batch-mates,
which included the appellant, whose case only out of the total
number of his batch-mates was considered for promotion and also
granted promotion by making amendments in the rules and
creating the post specifically for him, did make the respondent an
aggrieved person for that his right to be considered for promotion
along with his batch-mates was at all not dealt with by the
competent authority. The rule laid down in the two cited
judgments, therefore, does not apply to the case in hand.
22.
Abdul Sattar's case (supra), Anwarul Hag's case
(supra), the Chairman, PIAC's case (supra), M.A. Ghafoor's case
(supra) and Government of Balochistan's case (supra) are all relied
upon on the point of limitation of the service appeal filed by the
respondent. Such aspect of the matter has already been dealt with
hereinabove and apparently, the cited judgments have no
application to the case in hand.
23.
For what has been discussed above, we find no
illegality in the impugned judgment of the Tribunal and are notj
persuaded to interfere with the same. The appeal is, therefore,
dismissed.
