SC rules on promotions: Justice Minallah authors 6-page judgment

Says promotion neither vested right nor claimable with retrospective effect

ISLAMABAD:

The Supreme Court has ruled that promotion is neither a vested right nor something that can be claimed with retrospective effect.

The decision came as the top court overturned the judgment of the Federal Service Tribunal Islamabad in a high-profile promotion case.

Justice Athar Minallah, who authored the six-page judgment, elaborated the law, stating that an employee may claim under the relevant laws 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.

It stated that 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.

The judgment noted that it was a settled law that there is no vested right in promotion nor the rules that determine the eligibility criteria for promotion.

"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.”

The court posed a question as to whether the rules for promotion conferred a vested right and whether they could not be altered to the disadvantage of the civil servant awaiting promotion.

"The court affirmed its consistent view that in the context of promotion, the competent authority is entitled to formulate rules in the interest of efficiency of service and that they can also be subjected to change,” the ruling read.

It was further held that where no vested right exists, if a principle of policy is given effect and the principle of policy is such it has not matured into a vested right then it cannot be said that in the absence of the vested right, the principle of policy should not be recognised or enforced.

The facts of that case were also distinguishable. In the case at hand, no rules were made to govern or regulate the appointment to the post of the reader before prescribing the criteria, conditions and mode of appointment through the SRO of 2009.

“There was no vested right that had accrued in favour of the respondents, working against the post of assistant, to be appointed to the post of the reader through promotion. The question of alteration of a right to their detriment or disadvantage did not arise."

The judgment notes that the competent authority is empowered to prescribe criteria and conditions relating to eligibility for promotion. "The formulation and creation of a recruitment policy falls within the exclusive domain of the competent authority and it cannot be subjected to judicial scrutiny unless it infringes vested rights or is in violation of the law.”

It further highlighted that every recruitment and selection process formulated by the competent authority is presumed to be regular and aimed at choosing the most suitable person for a given position.

The recruitment and selection policy formulated by the competent authority cannot be substituted by a court or tribunal, nor questioned, unless its implementation infringes vested rights or is in violation of the law.

Justice Athar Minallah noted that in the case at hand, the respondents did not have a vested right to claim to be considered for promotion against the post of the Reader, nor to take away the prerogative of the competent authority to formulate a recruitment and selection process relating to the post of the reader.

"The tribunal had transgressed its jurisdiction by questioning the policy formulated by the competent authority and substituting it by its own. The reasons recorded in the order dated 18.01.2017, whereby the representations were dismissed, were in accordance with the principles of fairness and not unreasonable,” the verdict stated.

“The policy regarding appointment against the post of the Reader notified vide the SRO OF 2009 has been found to be unimpeachable, reasonable and not in conflict with any vested right of the respondents.”

"The rules notified vide the SRO of 2009 were competently framed, without prejudicing vested rights and, therefore, they could not have been ordered to be modified by the Tribunal. The impugned judgment, therefore, is not sustainable in law,” the apex court declared.