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Petitioner: Sikandar Hayat Maken VS Respondent: Federation of Pakistan, etc
Court Name: Islamabad High Court Judge(s): Athar Minallah, Lubna Saleem Pervez Title: Sikandar Hayat Maken vs Federation of Pakistan, etc Case No.: W.P. No. 08 of 2020 Date of Judgment:2020-09-29 Reported As: 2020 IHC 148, 2021 [M] CLR 358, KLR 2022 Labour & Service 1 Result: Petition dismissed
Judgment JUDGEMENT ATHAR MINALLAH, CJ. Through this consolidated judgment, we will decide the petitions listed in "Annexure-A" , attached thereto. 2. The petitioners in all these petitions are civil servants. They had joined their respective occupational groups after they were appointed on the basis of a competitive selection process. They were initially appointed in BS-17 and thereafter , from time to time, promoted to higher grades. Some petitioners are in BS-19 while others in BS-20. The petitioners were eligible to be considered for promotion to the next higher grade and, therefore, their respective service dossiers and other documents were forwarded by the Establishment Division so that the record could be placed before the Central Selection Board [hereinafter referred to as the "Board "]. The Board, after deliberation in each case, recommended supersession of the petitioners and consequently their cases were sent to the competent authority , i.e. the Prime Minister , for consideration of the recommendations. The Prime Minister , after satisfying himself regarding the reasons recorded by the Board, gave his approval and consequently the petitioners stood superseded. The petitioners have, therefore, challenged their supersession by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as the "Constitution" ]. 3. It would be beneficial for the adjudicatio n of these petitions to refer to some other relevant facts and provisions of law. Pursuant to clause (a) of Article 240 of the Constitution, the Majlis-e-Shoora (Parliament) has enacted the Civil Servants Act 1973 [hereinafter referred to as the "Act of 1973" ] with the object to regulate the appointment of persons to, and their terms and conditions in, the Service of Pakistan. The Act of 1973: 4. Clause (b) of section 2 of the Act of 1973 has defined the expression "civil servant". Sub section (1) of section 9 provides that a civil servant, possessing such minimum qualifications as may be prescribed, shall be eligible for
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promotion to a higher post, for the time being reserved under the rules for departm ental promotion in the service or cadre to which he/she belongs. The proviso has drawn a distinction between posts and has provided that such posts will be filled in accordance with the manner and subject to such condition s as may be prescribed in this regard. Sub section (2) of section 9 provides that a post referred to in sub section (1) may either be a selection or a non-selection post to which promotion shall be made as may be prescribed. Promotion to a selection post is based on 'merit' and in case of a non-selectio n post the criterion is 'seniority-cum-fitness'. Sub section 3 has made promotion to the posts of BS 20 and BS 21 subject to recommendations made by the Board headed by the Chairman of the Public Service Commission [hereinafter referred to as the "Commission" ]. Section 25 provides that the President, in this behalf may make such rules as appear to the latter to be necessary or expedient for carrying out the purposes of the Act of 1973. The President, pursuant to the said powers, has authorized the Prime Minister to make the rules vide notification dated 27.02.1998 and a copy thereof is attached herewith as "Annexure-B" . In exercise of powers conferred under the Act of 1973 the President has made the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 [hereinafter referred to as the "Rules of 1973]. Rules of 1973: 5. Rule 2 defines various expressions. "Selection Board" has been defined as meaning a Board constituted by the Federal Government for the purpose of selection for promotion or transfer to the posts in BS-19 to BS-21 and equivalent and consisting of such persons as may be appointed by the government from time to time. Rule 3 describes the different modes of making appointments against posts. One of the modes is by promotion in accordance with Part-II of the rules ibid. Rule 7, inter-alia, provides that promotion to posts in BS-19 to BS-21 and equivalent shall be made on the recommendations of the Selection Board. Rule 7-A provides that the competent authority may approve the promotion of an officer from the date when the recommendation of the Board is made. Rule 8 provides that only such persons who possess the prescribed qualification s and conditions for promotion shall be considered by the Central Selection Board. Rule 8-A prescribes that completion of minimum length of service, attending training or passing departmental examinations, as may be prescribed from time to time, are mandatory for being considered. It may be noted, therefore, that to be considered for promotion is a right, unless the civil servant fails to fulfill the required qualifications or to meet the prescribed conditions. Promotion is not one of the terms and conditions and thus does not give rise to the accrual of a right. From 1982 till 05.12.2019, the terms and conditions for promotion were prescribed by the competent authority through policies issued from time to time. However , after the judgment rendered by the august Supreme Court in the case titled 'Federation of Pakistan through Secretary Establish ment Division and others v. Dr Muhammad Arif and others' [2017 SCMR 969] the competent authority had constituted a Special Task Force to recommend reforms in the civil service, inter alia, with the object to comply with the principles and law laid down by the apex Court. Later the competent authority , in the light of the recommendations made by the Task Force, and in exercise of powers conferred under the Act of 1973 read with notification, dated 27.02.1998, made the Civil Servants Promotion (BPS- 18 to BPS-21) Rules, 2019 [hereinafter referred to as the "Rules of 2019" ]. Rules of 2019: 6. Rule 2 defines various expressions. The expressions 'deferment', 'promotion ' and 'supersession' have been defined in clauses (h), (m) and (o) of rule 2 respectively . Rule 2(i) defines the expression 'service dossier' as meaning the detailed record and information with regard to an officer. Rule 3 describes, inter-alia, the composition of the Board. Rule 6 has prescribed the eligibility criteria for consideration for promotion and the minimum criteria has been set out in clauses (a) to (f) there of. Rule 7 (a) to (k) describe the conditions for deferment. The conditions for supersession have been set forth in rule 8. The quantification criterion/formula regarding Performance Evaluation Report [hereinafter referred to as the "PER" ], Training Evaluation Reports [hereinafter referred to as the "TER" ] and evaluation by the Board has been described in Rule 18 and it is reproduced as follows: "18. Quantification of PERs, training evaluation reports and CSB, DSB and DPC evaluation.-- (1) For the purpose of consideration by the CSB, DSB and DPC, the PERs shall be quantified in accordance with the formula as set out in Schedule III. (2) For the purposes of promotion to BPS-18, the PERs shall have the weightage of hundred percent.
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(3) For the purposes of promotion to the posts in BPS-19, BPS-20 and BPS-21, the following quantification method shall be followed namely:-- (a) PERs in respect of two preceding BPS or the last fifteen years whichever is more shall be quantified. If the service of an officer in present and previous BPS is less than fifteen years then the deficiency shall be met by taking into account the PERs of next lower BPS, which shall be bracketed with the PERs of preceding BPS. Quantification of PERs relating to present and previous BPS will have a ratio of 60%:40%; (b) the marks mentioned in column (3) of the table below shall be allocated for quantification of PERs, training evaluation report and CSB and DSB evaluation as mentioned in column (2) of the Table namely:- TABLE S. No.Factor Marks (1) (2) (3) 1. Quantification of PERs 40% 2. Training Evaluation Reports (TERs)30% 3. valuation by CSB and DSB 30% 4. Total 100% (C) the objective assessment form as set out in Schedule-IV to these rules shall be placed before the CSB and DSB along with panel proforma of every officer for objective evaluation. The CSB and DSB shall assess each officer on the panel on the basis of parameters and attributes as given in the respective objective assessment form for promotion; (d) the, CSB or DSB, as the case may be, shall apply its collective judgment to determine the fitness for promotion to selection posts as per parameters given in the objective assessment form and shall award marks to an officer and place him in category A, B or C in accordance with the classification given in the following Table, namely:- TABLE Category Marks (1) (2) A 21 to 30 B 11 to 20 C 01 to 10 (e) in such cases whereby a civil servant was not required to undergo mandatory training, weightage of PERs shall be 50% and marks out of 50% shall be awarded by the CSB and DSB; and (f) in case, a civil servant has been appointed in the cadre in the present scale, his/her PERs of the present scale shall be given the total weightage assigned to the PERs in the Table under clause (b)." Schedule-IV of rule 18 (3)(c) is attached herewith as "Annexure-C" . The Board: 7. As already noted above, in the case of the petitions in hand, the competent authority had constituted the Board vide notification dated 14-01-2020, a copy whereof is attached herewith as "Annexure-D" . It is obvious from its composition that it includes a large number of civil servants who have reached the highest echelon of the civil service i.e. BS 22. It included the highes t ranking civil servants from each province i.e. the Chief Secretaries and the respective Inspector Generals of Police. The appointments against such highest ranking posts in the provinces are made by the Prime Minister in consultation with the chief executives of the respective provinces. It would definitely not be unreasonable to presume that endeavour would always be made to select the most competent and well reputed civil servants to be posted against such responsible and challenging posts. The Board, therefore,
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consisted of highest ranking civil servant s who are presumed to be competent and well reputed. The Board also included highest ranking civil servants holding responsible positions in the Federal Government. The respective departments were represented by high ranking officials who gave detailed briefin gs to the Board regarding each civil servant. Besides the civil servants, the Board also included two chosen representatives of the people as observers. The complete service record of each civil servant was placed before the Board. The composition of the Board in the case of the petitioners was so expansive that it had virtually ousted the probability of one or even a few members influencing the others. The evaluation was made by the most senior peers who have reached the highest ranking posts. Their collective subjective evaluation and judgment, based on careful consideration of the service records, reports and/or information cannot be brushed aside lightly or ignored, unless arbitrariness, mala fide or malice can demonstrably be shown to float on the surface of the record. The expansive composition of the Board definitely lends credibility and solemnity to its proceedings and a heavy onus would be required to be discharged by a candidate to establish otherwise. The collective judgment of this large assemblage of civil servants, presumed to be well reputed, is a shield and an effective antidote against arbitrariness or unfair treatment of the candidates. Lack of trust in such an expansively constituted high powered forum or to doubt the fairness of its proceedings on mere vague assertio ns would not be justified nor reasonable. Moreover , the proceedings relating to the Board were only one component of the process of promotions. The second stage was equally important i.e. when the record along with the recommendations was placed before the competent authority , the Prime Minister . As would be discussed later, the role of the Prime Minister is not ministerial nor perfunctory . The latter is expected to apply his mind and conduct such inquires as deemed appropriate so as to satisfy himself regarding the fairness and validity of the proceedings and recommendations of the Board. This adds to and fortifies the credibility and sanctity of the proceedings before the Board. There is, therefore, a presumption of regularity , fairness and good faith attached to the proceedings and recommendations' of the Board which can only be rebutted if convincingly established otherwise. Arbitrariness, unfairness or mala fide must be apparent and float on the surface of the record so as to cast doubt or discredit the validity of the proceedings . The nature of the functions performed by the Board and the status or object of its proceedings are similar to the functions of the Judicial Commission established for considering and recommending elevations and confirmation of superior court judges. In each High Court similar forums have been established for the purpose of promotions in the District judiciary . Likewise, the Promotion Boards constituted by the respective branches of the Armed Forces also have the same role and functions. The fundamental concept and principle is the same; collective evaluation by senior most wise peers on the basis of record, inquiries and information, in order to select the most suitable candidate to fill a post. The peers are the best judges to evaluate candidates for filling a post because they have the requisite experience and knowledge regarding the requirements of the particular post. The process in the case of the petitioners: 8. The petitioners, along with other civil servants, were considered by the Board in its meetings which were held in January , 2020. The Board, after consider ing and deliberating each case and the respective service records, made its recommendations. The details of the recommendations are highlighted in "Annexure-E" attached hereto. It is to be noted that 155 eligible civil servants were considered for promotion to the post of BS-21. 59 were found fit for promotion while 24 were recommended to be superseded. 66 civil servants were not found eligible and, therefore, their cases were deferred. In the case of 06 officers, the Board was of the opinion that their performance was required to be observed for a specified period before they could be considered again. Likewise, in the case of civil servants who were considered for promotion to the post of BS-20, 126 out of 294 were recommended for promotion, 132 were deferred on the ground of being ineligible and, in the case of 18, the Board was of the opinion that their performance was required to be further observed. 18 were recommended for supersession. The petitioners were amongst those who were recommended to be superseded. The recommendations were placed before the Prime Minister who, after satisfying himself regarding the authenticity thereof gave approval in the case of the petitioners. 9. With the consent of the learned counsels for the petitioners, six questions were framed vide order dated 27.04.2020, and they were as follows;
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i. Whether the Rules of 2019 were in conformity with the principles and law enunciated by the august Supreme Court in various judgments, particularly in the case of 'Federation of Pakistan through Secretary Establishment Division and others v . Dr Muhammad Arif and others' [2017 SCMR 969 ]. ii. If the answer to the above question was in the negative, then what would be the fate of proceedings which had led to supersession being af firmed by the Prime Minister? iii. The validity and status of thirty (30) marks assigned to the Board? iv. Whether in the case of the petitio ners the recommendations were based on irrelevant considerations, extraneous reasons and thus malafide in law and facts. v. Whether the petitioners have been treated differently , giving rise to a breach of the fundamental right guaranteed under Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973. vi. Whether the Board had acted fairly by exercising discretion in accordance with the settled principles. Petitioners' argument: 10. Arguments on behalf of the petitioners were led by Mr Abdur Rahim Bhatti, learned ASC. The other learned counsels were also individually heard and some have placed on record elaborate written arguments along with copies of judgments. The gist of the arguments advanced on behalf of the petitioners is; a) The Rules of 2019 are ultra vires of Articles 240 and 260 of the Constitution and the law laid down by the august Supreme Court in the cases of "Dr Muhammad Arif and others" supra , "Tariq Aziz ud Din and others; in re: human rights case nos. 8340, 9504-G, 13936-G, 13635-P and 14306-G to 143309-G of 2009, decided on 28th April, 2010 [2010 SCMR 1301 ], "Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment Division and others" [2014 SCMR 817], "Secretary Establishment Division, Govt. of Pakistan v. Aftab Ahmed Manika and others" [2015 SCMR 1006 ], "Mrs Irum Adnan and others v. Federation of Pakistan and others" [2012 PLC (CS) 1355], "Liaqat Ali Chugtai v. Federation of Pakistan through Secretary , Railways and 6 others" [PLD 2013 Lah. 413], "Muhammad Zafeer Abbasi, Deputy Secretary , Ministry of Kashmir Affairs and Northern Areas and Safron, Govt. of Pakistan, Pak Secretariat, Islamabad v. Govt. of Pakistan through its Secretary , Establishment Division (Cabinet Secretariat, Cabinet Block, Constitution Avenue, Islamabad and 4 others" [2003 PLC (CS) 503], "Syed Ijaz Hussain v. Federation of Pakistan and others" [2017 PLC (CS) 1 15]. b) Reliance could not have been placed by the Board on such material which contained adverse information unless the affected civil servant had been confronted and given a reasonable opportunity to explain his/her stance. The Board could only have considered tenable and cogent material and the evaluation recorded in PERs and TERs could not have been disregarded; the Rules of 2019 are liable to be struck down because they have been framed in breach of the law laid down by the august Supreme Court; the Rules of 2019 do not provide for a structured objective criteria; personal knowledge and opinion of the Board members cannot influence the evaluation. c) Reasons recorded by the Board for recommending supersession are based on personal knowledge, perceptions and opinions of the members of the Board; the Board was not authorized to consider any information other than PERs and TERs and the service dossier; reports submitted by various intelligence agencies cannot be relied upon unless the civil servant has been confronted therewith and an opportunity is afforded to him to give an explanation; the failure to disclose the material which adversely affects the evaluation if not disclosed is a violation of the fundamental rights guaranteed under Article 10-A of the Constitution. d) The objective criteria described in Schedule-IV of the Rules of 2019 is not in consonance with the principles and law laid down by the apex Court becaus e it gives an opportunity to the member s of the Board to form personal opinions, particularly regarding integrity; opinions formed on the basis of person al knowledge are arbitrary and illegal; the objective criteria described in Schedule-IV is not different than the one which was previously struck down by the august Supreme Court; it is obvious from the reasoning recorded by the Board in each case relating to the petitioners, that the members had formed opinions on the basis of hearsay , gossip etc., rather than placing reliance on credible documents placed in the service dossier; the competent authority could not have altered the qualification formula to the disadvantage of the petitioners; the latter were eligible and, therefore, they ought to have been considered on the basis of the promotion policy which was in then field prior to making of the Rules of
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2019; the Rules of 2019 had materially altered the evaluation from PERs and TERs by giving preference to the discretion of the members of the Board; the President had not delegated the power to make rules to the Prime Minister; the assessment/evaluation made by the Board was whimsical and the exercise entirely based on pick and choose in an arbitrary manner . e) The fundamental rights of the petitioners guaranteed under Article 25 of the Constitution were violated because other similarly placed eligible civil servants were treated differently; the objective criteria and the manner in which it was applied by the Board is discriminatory , non transparent and in breach of the principles of fairness. f) A competitive analysis of all eligible civil servants will establish that the petitioners have been treated differently; the Board had exercised discretion in an arbitrary , unstructured and whimsical manner; by giving preference to the evaluation of the Board over the PERs and TERs renders the entire process illegal and without lawful authority; in individual cases, recommendations were made for extraneous and irrelevant considerations; mala fide both in law and facts; minor observations recorded in TERs could not have been relied upon; g) The evaluation was made on the basis of vague and ambiguous information rather than adopting an objective criteria confined to the service dossier; the adverse recommendations were made without interviewing the petitioners and denying them the right of a fair trial. h) The discretion exercised by the Board was contrary to the settled principles; the petitions are maintainable because the question of "fitness" is not justiciable before the learned Federal Service Tribunal in the light of section 4(1) of the Federal Service Tribunal Act, 1973 [hereinafter referred to as the "FST Act of 1973" ]; the recommendations which led to supersession of the petitioners were in violation of the fundamental rights guaranteed under Article 14 of the Constitution. Response of the Federation: 11. Chaudhry Amir Rehman, Additional Attorney General, has pleaded the case on behalf of the Federation. He has also submitted written arguments along with the case law he has relied upon. They have been placed on record. A summary of his arguments is as follows; I. Pursuant to the judgment rendered by a learned Division Bench of this Court in the case titled "The Secretary Establishment Division, Government of Pakistan v. Dr Muhammad Arif and others" [2018 PLC (C.S.) 907] and that of the august Supreme Court in the case titled 'Federation of Pakistan through Secretary Establishment Division and others v. Dr Muhammad Arif and others' [2017 SCMR 969] the Federal Government constituted a Task Force to propose reforms relating to the civil service, particularly to give effect to the aforementioned judgments; in the light of the proposals by the Task Force and after extensive deliberations, the Rules of 2019 were made by the competent authority; II. in order to remove any vagueness or ambiguity , a well thought objective criteria was prescribed keeping in view the law laid down by the apex Court; the objective criteria prescribed under the Rules of 2019 and Schedule-IV attached thereto is primarily based on tangible material i.e. dossier/documentary evidence; III. the composition of the Board was incre ased and more than two dozen officers in BS-22 were included; the Chief Secretaries and Inspector Generals of Police of respective provinces were included as members of the Board; the petitioners have not alleged bias or mala fide against the members of the Board nor has any document been placed on record in this regard; the Board, after considering the record placed before it, had thoroughly discussed each case and thereafter made recom mendations; the functions of the Boar d and decisions taken by the competent authority , i.e. the Prime Minister, are of a nature that do not require affording a hearing to each individual; the august Supreme Court in the case "Secretary Establishment Division, Govt. of Pakistan, Islamabad v. Aftab Ahmed Manika and others " [2015 SCMR 1006 ] has laid down the law and has determine d the scope of functions of a Board; IV. the dossier , inter-alia, includes reports received from various sources, PERs, TERs, a brief submitted by the parent Department of the civil servant etc; V. the sanctity of the proceedings of the Board and its integrity and validity cannot be doubted unless it can be demonstrably shown…
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