Full Judgment Text & Judicial Ruling

2006 P L C (C

2006 P L C (C.S.) 1081

[Federal Service Tribunal]

Before Justice (R) Amanullah Abbasi, Chairman and Muhammad Iqbal Khan, Member

ABDUL GHAFFAR MIAN

Versus

GOVERNMENT OF PAKISTAN, CABINET SECRETARIAT, ESTABLISHMENT DIVISION through Secretary to Government of Pakistan, Islamabad and 6 others

Appeal No.307(L)CS of 2001, decided on 9th'August, 2004.

(a) Civil Servants Act (LXXI of 1973)---

----S.22(2)---Civil Servants (Appeal) Rules, 1977, R.4(1)---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Appellant, who met all conditions prescribed for promotion to BPS-20 in Promotion Policy, had been superseded and respondents, who were junior to him, were promoted without indicating any solid reason for his supersession---Appellant during his 23 years service before his supersession, had held 'important and critical Secretarial as well as field positions/assignments in Provincial and Federal Governments. and he enjoyed unblemished record of service---Appellant was never communicated any adverse remarks or counselled about any lapse or deficiency in performance of his duties---Overall quantification score of appellant was 88 whereas score for quality and out-put of work and integrity, both moral and intellectual was 74,77 & 78 respectively---Minimum bench marks for promotion to BPS-20 were 70 marks in overall quantification score and same for quality and output of work and integrity---Other requirements as prescribed in Promotion Policy were also fulfilled by appellant---Respondent Authority had alleged that appellant had earned a large number of average reports which compared him unfavourably with private respondents who had been promoted---Further allegation was that appellant did not enjoy reputation of a clean officer in the department---Validity---Appellant, despite average reports, was promoted to BPS-19 in 1997 and average reports were not adverse reports---Such average reports, in circumstances should not create any impediment in the way of promotion of appellant to higher post of BPS-20 when his overall quantification score admittedly was more than private respondents who were promoted---No stigma was attached to reputations of appellant and no evidence to that effect was discernible either from his ACR's or any other adverse communication available on record---Appellant had never been communicated any remarks regarding his reputation being not a clean officer--No evidence was on record to show that appellant had a bad reputation--Justice had not been done to appellant and Central Selection Board had itself ignored its own paradigm to select "the very best from amongst the best"---Appellant had requisite seniority, quantification score par excellence, variety of experience---Despite meeting all requirements as laid down in Promotion Policy, appellant had been superseded--Appellant undoubtedly being the best out of the lot, was dropped for no rhyme or reason---Authority was directed that appellant be promoted with effect from date his juniors were promoted---Since appellant had suffered for none of his fault, he would also be entitled to consequential benefits effective from date his juniors were promoted.

PLD 2003 SC 175; 2001 SCMR 1446; PLD 2003 SC 110; 2003 PLC (C.S.) 212; 2001 PLC (C.S.) 157; 2002 SCJ 93; 2001 UC 610; NIR Civil Lahore 559; 1999 TD (Service) 62; 1990 SCMR 927; 1990 SCMR 1321; 2003 PLC (C.S.) 503; 2001 PLC (C.S.) 878; 1995 SCMR 650; 2002 PLC (C.S.) 1002; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129; Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muhammad Rahim Khan v. The Chief Secretary N.-W.F.P. and 4 others 1999 SCMR 1605; Government of Pakistan v. Hamid Akhtar Niazi 2003 TD (Services), 89; Dr. M. Yousaf v. Government of Punjab the Punjab Service Tribunal 2002 PLC (C.S.) 1071 and Khalid Mehmood v. Secretary Government of Sindh 2002 TD (Service) 69 ref.

(b) Civil Servants Act (LXXI of 1973)---

----S.9---Promotion to BPS-20---Criteria for promotion to a post in BPS-20, detailed.?

(c) Civil Servants Act (LXXI of 1973)---

----S.9---Promotion---Considerations for---Integrity, quantification of---Considerations for promotion to a higher position, depended not only on seniority, but also on other factors such as competence, availability of posts and antecedents which were also taken into consideration---Integrity was also quantified in terms of marks---Minimum benchmark for integrity was 70 marks for qualifying a Government servant for consideration for promotion to BPS-20 Post---Integrity could not be quantified in terms of marks as it should always carry 100 marks as same should be 100%---If it fell short of that level, it could be safely presumed that integrity of that particular civil servant was questionable to the extent of shortfall from maximum of 100 marks or 100%.?

C.M. Sarwar for Appellant.

Javed Aziz Sindhu for Respondents along with Mehboob Alam Section Officer, Establishment Division as Departmental Representative.

Date of hearing: 28th July, 2004.

JUDGMENT

MUHAMMAD IQBAL KHAN (MEMBER)---The appeal is directed against order dated 18-1-2001 whereby the representation of the appellant dated 20-10-2000 for review of his case for promotion to BPS-20 was rejected under Section 22(2) of Civil Servants Act, 1973 read with Rule-4(1) of the Civil Servants (Appeal) Rules, 1977.

2. Briefly stated the facts of the case are that the appellant Mr. Abdul Ghaffar Mian joined the Police Service of Pakistan (PSP) after qualifying the C.S.S. examination held in the year 1977. He served in various assignments in the NWFP, Sindh, Punjab and in the Federal Government as Assistant Superintendent Police (ASP), Superintendent Police (SP) and also as Senior Superintendent Police (S.S.P.). He was promoted to BPS-18 in 1983 and further promoted to BPS-19 in the year 1997. He also held the field appointments as S.P, Faisalabad and Bhakkar. The appellant was however, superseded for promotion to BPS-20 by the Central Selection Board (CSB-1) in its meeting held on 24-6-2000. The private respondents Nos.2 to 7 who were junior to him were however, promoted to BPS-20. The appellant represented against his supersession on 20-10-2000 which was rejected on 18-1-2001 but was communicated to the appellant on 1 -2-2001. The appellant filed his service appeal in the Federal Service Tribunal on 10-2-2001.

3. The learned counsel for the appellant forcefully argued that the appellant met all the conditions prescribed for promotion to BPS-20 in the Promotion Policy and yet has been superseded and the private respondents Nos.2 to 7 who were junior to him were promoted without indicating any solid reason for his supersession. It was also argued that during his 23 years stint of service before his supersession, the appellant had held important and critical secretarial as well as field positions/assignments in the Provincial and Federal Governments. It was also argued that the appellant enjoyed unblemished record of service and he was never communicated any adverse remarks or counselled about any lapse or deficiency in the performance of his duties. The counsel referred to rulings reported in PLD 1994 SC 539 and PLD 2003 SC 175 in support of his contention.

4. The counsel representing the respondents-department vehemently opposed the appeal and stated that promotion is not a vested right of any civil 'servant. It was argued that recommendations of the CSB-1 were based on the prescribed law, rules and no deviation thereof was made while considering his case for promotion to BPS-20. The learned counsel also referred to Section 22(2) of the Civil Servants Act, 1973 read with Rule-4(1) of the Civil Servants (Appeal) Rules, 1977 and Section 4(1)(b) of Service Tribunals Act, 1973 whereby no representation, appeal lies in matters relating to determination of fitness of an officer for promotion to a higher post. It was also argued that BPS-20 post is a selection post which does not involve criteria of seniority-cum-fitness. It was further argued that private respondents Nos.2 to 7 enjoyed higher merit compared to the appellant and as such they were considered and approved for promotion to BPS-20. It was pointed out that the appellant earned a large number of average reports which compared him unfavourably with the private respondents. It was also pointed out that the appellant did not enjoy reputation of a clean officer in the department. Finally, the counsel referred to rulings contained in 2001 SCMR 1446 and PLD 2003 SC 110.

5. Heard the counsel and perused the record.

6. It will be appropriate at the outset to refer to the recent judgment of the Federal Service Tribunal dated 3-7-2004 in Appeal No.818(R)CS/2002 which deals with the apprehensions of the learned counsel for the respondents comprehensively. The relevant portions of the judgment ibid are reproduced below:--

"8. The core issue in this appeal is the Appellant's supersession by CSB for promotion to B-20. We will first address the concerns of the Respondents' side against this appeal. The standard arguments by the Respondents' learned Counsel were as under:

(i) Promotion is not a vested right of any civil servant.

(ii) Appeal against promotion is not maintainable under section 4(1)(b) of the Service Tribunals Act, 1973 and section 22 of Civil Servants Act, 1973.

(iii) FST has no jurisdiction to question the wisdom of the CSB.

(iv) Appeal for promotion against a selection post is not sustainable as it is based on the "best of the best" policy.

(v) CSB duly considered the Appellant and decided to supersede him in view of his indifferent service record.

The learned Counsel for the Respondent cited ruling of the Hon'ble Supreme Court in the case of Government of Pakistan and others v. Hamid Akhtar Niazi reported in 2003 PLC(CS)212 wherein it has been held as under:--

"22. Section 9 of the Act of 1973 deals with "Promotion". It may be regarding "Selection post" or "non-selection post". In case of selection post, as involved in these matters, the criterion for promotion is merit while in case of non-selection post it is done on the basis of seniority-cum-fitness. No civil servant can ask for promotion as a right, and the giving refusal of promotion is matter, which is within the exclusive domain of the government/executive authority. If a promotion is denied to a civil servant it could not be termed as denial of any fundamental right.

23. Perusal of Section 9 of the Act of 1973 unequivocally postulates that criterion of selection for promotion to the higher-grade rest upon decision of the competent authority. No other forum/authority can assume the duties, which specifically have been assigned to the competent authority.

Respondents' learned Counsel also referred to the Hon'ble Supreme Court's ruling in the case of Shafi M. Mughal v. Secretary Establishment reported in 2001 SCMR 1446 wherein it was maintained by their Lordships as follows:-

"11. It is settled law that Service Tribunal has no jurisdiction against an order or decision of a departmental authority determining the fitness or otherwise of a person for promotion to higher post or grade."

Respondents' learned Counsel also recalled the ruling of the Hon'ble Lahore High Court in the case of Ghulam Jilani v. Government of Punjab reported in 2001 PLC(CS) 157 wherein it was decided as under:--

"The trend of the judicial authority on the subject, therefore, is fairly indicative that in a matter relating to the promotion of a civil servant it is the competent Authority alone which has the exclusive authority to determine the fitness or otherwise of a civil servant on the basis of subjective evaluation of the record of the civil servant and interference by any other forum (Tribunal or Court) as far as possible is not visualized. That appears to be the reason that the same has been kept out of purview of the appellate jurisdiction of the Service Tribunal even. What at the most a civil servant can claim is that he is entitled to be considered for promotion but has no right to be declared by the Court that he is fit for promotion; that is a domain of the competent Authority alone."

Beside these rulings cited by the learned Counsel for .the Respondent, we are also conscious of other rulings of the Hon'ble Supreme Court wherein similar principles have been prescribed. In their ruling reported in 2001 PLC (C.S.) 1298 their Lordships ruled that promotion is not a vested right. Almost identical Similar principles are also enshrined in the rulings reported in PLD 2003 SC 110, 2001 PLC (C.S.) 452, NLR Civil Lahore 559, 1999 TD(Service) 62, 1990 SCMR 927 and 1990 SCMR 1321.

9. The underlying rationale of these rulings cited above are that every civil servant eligible for promotion who meets all the requirement of promotion has an inalienable vested right to be considered for promotion by the competent forum which should have all details of his service career and he should meet the prescribed criteria as laid down by the Government in its Promotion Policy but cannot claim promotion as a matter of right. Further, that no forum can sit on judgment of the relevant Selection/Promotion Board as to whether a civil servant has been correctly recommended for promotion, deferment or supersession.

10. With this backdrop, now the question arises whether a civil servant who is aggrieved by the adverse decision of the CSB can agitate his grievance before the FST and whether this Tribunal can intervene in the light of the provisions of the section 4(1)(b) of the Service Tribunals Act, 1973 which, inter alia, reads as under:--

"(b) no appeal shall lie to a Tribunal against an order or 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 grade; "

The plain reading of this section bars the FST from entertaining such appeals for promotion but the parameters of section 4(1)(b) of the Service Tribunals Act, 1973 have, however, been enlarged by various rulings of the Hon'ble Supreme Court which has substantively and substantially broadened the jurisdiction of this Tribunal in promotion matters. In this context, we refer to the recent ruling of the apex Court reported in 2003 PLC(CS) 503 and 2001 PLC(CS) 878 wherein objective evaluation of the civil servant's service record by the Selection Board is stressed while considering him for promotion and also that promotion is a vested right of a civil servant. The operative part of Hon'ble Supreme Court's orders read as under:--

2003 PLC(CS) 503

"7. The decision as to fitness and suitability of an officer for promotion may be subjective but it has to be arrived at by applying an objective process to ensure that the course of justice is not deflected."

"8. The Annual Confidential Reports may not be conclusive to determine fitness and suitability of an officer for promotion yet if an officer is to be superseded on the allegation of doubtful reputation, the opinion decision of the Selection Board must be based on some tangible material.

"10. The formula for quantification of the Confidential Reports has also been appended to these guidelines, according to which, deduction of marks has been provided for major penalty and the adverse remarks and the formula to work out aggregate score of integrity' has also been specified. The quantification formula aforesaid indicates that even the officers upon whom major penalty has been imposed or adverse A.C.Rs are recorded do not become outcast for purpose of promotion. Thus, quantification of the C.Rs. is of paramount importance. This quantification formula, in our view, is intended to structure the discretion of the Board to ensure just and fair treatment to the contenders for promotion."

(Underlining is done by us for emphasis)

2001 PLC(CS) 878

"Thus, promotion, in the prescribed manner, through prescribed forum and under the orders of the competent authority is one of the vested rights of the civil servant, subject to criteria laid down under relevant laws."

(Underlining is done by us for emphasis)

We also rely on the ruling reported in PLD 2003 SC 175 which reads as under:--

"6. Lengthy arguments were addressed by the learned counsel for the parties on the question of existence or otherwise of a vested right to claim pro forma promotion. We need not discuss the same in view of the observations made in Walyat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650) that although the dictum that no employee has a vested right for promotion is correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent Authority would entitle an aggrieved person to challenge the same."

(Underlining is done by us for emphasis)

Furthermore, Hon'ble Supreme Court in its ruling in the case of Zafar Ullah Baloch v. Government of Balochistan reported in 2002 PLC(CS) 1002 have ruled as under:-

"5. Undoubtedly eligibility for promotion of the aggrieved person can be subjected to judicial scrutiny by the Service Tribunal because it relates to the terms and conditions of his service as it has been held by this Court in number of reported judgments. For ready reference reliance is placed on the case of (i) Mian Abdul Malik v. Dr. Sabir Zameeer Siddiqui and 4 others (1991 SCMR 1129), (ii) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539).

6. As far as fitness of a civil servant to hold a next higher post is concerned is dependent upon his performance which he had been showing during the period prescribed for promotion to next grade and it is to be determined on the basis of material placed before competent authority including Annual Confidential Reports etc. The performance is to be evaluated on quantifying the marks secured by him as per the in vogue formula and where a right to consider him for promotion has been claimed on the strength of arguments that he has been bypassed in violation of the Promotion Policy etc. the Service Tribunal can examine the question of his fitness as well as held by this Court in Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. and 4 others (1999 SCMR 1605)."

(Underlining is done by us for emphasis)

In its latest judgment, the Hon'ble Supreme Court in the case of Government of Pakistan v. Hamid Akhtar Niazi PLD 2003 SC 110 has ruled that the Selection/Promotion Board have to formulate their recommendations in respect of civil servants' promotion strictly in accordance with the Promotion Policy and Government's rules on the subject. The relevant portion of the said judgment is as under:--

"(a) Promotion-

Promotion to selection post is always to be processed through the Central Selection Board in accordance with requirement of Estacode, 2001 (pages 284 to 287) for promotion to grade 19, 20 and 21 respectively."

In the case of Dr. M. Yousaf v. Government of Punjab the Punjab Service Tribunal in its ruling reported in 2002 PLC (CS) 1071 laid down the following principle:-

"5. In the matter of promotion learned Court held that there was no cavil that no employee has vested right of promotion which may be correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach and deviation either due to any mala fide reasons or due to arbitrary act of competent authority would entitle aggrieved person to challenge the same."

Sindh Service Tribunal in its judgment in the case of Khalid Mehmood v. Secretary Government of Sindh, Livestock and Fisheries Department reported in 2001 PLC (C.S.) 654 enunciated the following principle:--

"Under such circumstances the scope of the present appeal is confined before this Tribunal to see whether the Departmental Promotion Committee evaluated the appellant in accordance with the principle laid down by the Hon'ble Supreme Court of Pakistan and as well as the promotion Policy. If there is no error apparent on the face of record nor there is any violation of the principle to evaluate the officer for further promotion. We are mindful that the fitness so determined by the Departmental Promotion Committee will be out of the place of our jurisdiction, the objection which has accordingly been taken before us by the learned Assistant Advocate-General Sindh.

In case we find conclusion arrived at by the Departmental Promotion Committee was in violation of principle of promotion policy and so also the law laid down by the Hon'ble Supreme Court of Pakistan on the subject we would be within our jurisdiction to hold that appellant is entitled to the Pro forma Promotion from the date his juniors were promoted. Therefore, another feature of this appeal is that whether relief, appellant is entitled to or can be granted, would be grant of proforma promotion and not the assessment of fitness because the DPC determines the fitness for promotion at a particular time."

(Underlining is done by us for emphasis)

In the case of Muhammad Rahim Khan v. Secretary, N.-W.F.P. reported in 1999 SCMR 1605, the Hon'ble Supreme Court ruled as under:

"We would, therefore, grant leave to the petitioner to consider whether the material placed before the Provincial Selection Board, truly and faithfully, reflected the qualifications of the contestants and whether on the basis of the available criteria the recommendation of the Selection Board was or was not influenced in a manner, affecting correct appraisal and assessment of respective merits of the contestants, of which the Board was the repository and which clearly, must have weighed with the competent Authority in determining the relevant fitness. "

7. We feel that the above judgment has succinctly addressed the apprehension and concerns of the respondent-department. In peculiar circumstances when parameters of the Promotion Policy are violated, FST has the jurisdiction to intervene if approached to provide redressal to the grievances of the civil servants as the succeeding paras of this order will manifest. The focus will be on the case of the appellant.

8. Against the above backdrop, let us now carefully peruse the features of the Promotion Policy and thereafter to judge whether the appellant measured upto the requirements prescribed in the said Policy. The Promotion Policy contains the following criteria for promotion to a post in BPS-20:--

5. Posts carrying basic pay scale 20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers must also have a sufficient variety and width of experience so that:

(i) They acquire an overview of the functions performed by these organizations within the broader framework of government's overall objectives activities to ensure smooth and effective management at the field level; and

(iii) they can lend pragmatism to policy formulation in assignments at the Secretariat.

Variety of experience would include experience in .the field, corporations, attached departments, different Ministries Divisions and in our Missions abroad. For promotion to middle management posts, a civil servant must fulfil the following requirements:

(a) Qualifying Service: possess 17 years service as an officer subject to the provisions contained in Establishment Division's O. M. No. 19 XO-R-II(A), dated- 2-6-19K.V.

(b) Eligibility threshold: attain a minimum score of 70 marks in the CRs in accordance with the formula given in the Addendum.

(c) Qualification: as prescribed by relevant recruitment rules.

(d) Relevance of Experience: possess experience relevant to the functions of the post to which promotion is being made.

(e) Quality and Output of Work and "Integrity": marks calculated in accordance with the formula in the Addendum shall be crucial factor in determining the comparative merit of an officer.

(f) Variety of experience: the Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in un-attractive areas. While some ex osure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature this would not be so where an officer has stayed away from his parent cadre for too long.

(g) Training: should have successfully completed a regular course at NIPA or an equivalent course in another institution. This requirement will be waived for officers who:--

??????????? (i) have served as head of a training institution for at least one year: or

(iii) have served on the detecting staff of a training institution for at least two years; or

(iii)…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from FEDERAL-SERVICE-TRIBUNAL
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant