NISAR HUSSAIN SHAIKH vs PROVINCE OF SINDH R — 2025 PLC(CS) 1084 KARACHI-HIGH-COURT-SINDH

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NISAR HUSSAIN SHAIKH VS PROVINCE OF SINDH R. 3---Constitution of Pakistan, Arts. 175 & 199---Fundamental Rules, F.R. 17---Promotion---Constitutional petition---Maintainability---Post of Chief Chest Specialist (BS-20)---Eligibility criteria---Determination---Fixation of ratio between Post Graduate Doctors and Diploma Holder Doctors for appointment and promotion in Specialist Cadre---Petitioner during his service claimed promotion against the post of Chief Chest Specialist, which was regretted due to non-availability of vacancy in his cadre---Petitioner after his retirement filed constitutional petition for grant of proforma promotion concealing the factum as to rejection of his earlier claim of promotion---Validity---Promotion is not a vested right of a civil servant---Case of petitioner having been considered for promotion to the said post was regretted on account of availability of any vacancy under the Category of Diploma Holder Doctors---Petitioner instead of challenging such decision of Provincial Selection Board before competent forum/(Services Tribunal) filed constitutional petition before High Court by concealing the said decision, which, prima facie, established that petitioner had approached the High Court with unclean hands---To seek equitable relief under writ jurisdiction petitioner was to demonstrate his bona fides---Department had dealt with the petitioner in accordance with law---Petitioner failed to point out departure by respondents from rules while dealing with the case of petitioner, thus, no declaration could be granted in favour of petitioner as he had been dealt with by the Department in accordance with law---Criteria laid down by the Health Department for appointment and promotion of Specialist Cadre Doctors was well within the bounds of law, in line with statutory provisions and did not require interference---It is prerogative of the executive bodies to make rules---Courts have always respected mandate given to legislative and executive bodies to make laws and frame rules, provided that the subordinate legislation/rules are not in conflict with the statutory provisions or are person specific or based on mala fides---Constitutional petition was dismissed, in circumstances. arts. 175, 199---Fundamental Rules, F.R. 17---Proforma promotion---Entitlement---Scope---Proviso to F.R. 17 was omitted by Finance Division, as such benefit of proforma promotion under F.R. 17 was only available to civil servants retiring before cut-off date and as the petitioner retired after the cut-off date of the said notification, thus, such benefit was not available to him---Concept of proforma promotion or promotion with retrospective effect to a retired civil servant is alien to the scheme of law---Sindh Civil Servants act, 1973 and Sindh Civil Servants (appointment, Promotion and Transfer) Rules, 1974, being governing laws in matters of appointment and promotions do not contain any provision entitling a civil servant for proforma promotion after retirement and in absence of any laws conferring rights of proforma promotion to the retired civil servants, High Court cannot issue writ directing the public sector organizations/entities/departments to do an act otherwise not permissible under the law.

NISAR HUSSAIN SHAIKH vs PROVINCE OF SINDH R — 2025 PLC(CS) 1084 KARACHI-HIGH-COURT-SINDH

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