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Petitioner: AHMED SAEED SIDDIQUI VS Respondent: PAKISTAN through Secretary EstablishmentHonorable Justice Aziz-Ur-RehmanMuhammad Farogh Naseem,Zakir Leghari and S. Nooruddin Ahmed
2015 P L C (C.S.) 923
[Sindh High Court]
Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ
AHMED SAEED SIDDIQUI and others
versus
PAKISTAN through Secretary Establishment and others
Constitutional Petitions Nos.D-786, D-787 and D-4054 of 2014, decided on 22nd September, 2014.
(a) Civil Servants Act (LXXI of 1973)---
----S. 22---Federal Service Tribunals Act (LXX of 1973), S.4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Promotion of the civil servants to selection posts from BS-20 to BS-21 and from BS-19 to 20---Bar contained under Art.212 of the Constitution---Scope---Deferment of the civil servants (petitioners) by the Central Selection Board---Petitioners earned "good", "very good", "excellent" and "outstanding performance" evaluation in their ACRs/PERs throughout their service career---Appointment through promotion to 'selection' posts was based on 'merit', which required subjective assessment regarding "fitness" and "suitability" of the officers, to the said posts subject to their eligibility---Petitioners being senior officers with unblemished record were not recommended for promotion by the Central Selection Board, whereas officers juniors to petitioners were recommended for promotion without any lawful justification---Validity---Appointment through promotion against the selection posts was purely based on merits---Promotion to such posts required "subjective assessment viz-a-viz "fitness" and "suitability"---"Assessment of fitness" and "suitability" were excluded from the ambit of Service Tribunal under S.4 of the Federal Service Tribunals Act, 1973---Constitutional petitions were maintainable, in circumstances.
Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Tariq Aziz-ud-Din and other's case 2010 SCMR 1301 and Orya Maqboo1 v. Federation of Pakistan and others 2014 SCMR 817 ref.
Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 and Shabir Ahmed v. Kiran Khursheed and others 2012 CLC 1236 rel.
(b) Civil Service---
----Selection Board (public authority)---Selection of officers---Subjective assessment---Scope---"Subjective evaluation" was to be based on an "objective criteria"---In the present cases, the deferment of the petitioners' promotions was on account of "undisclosed reasons"---"Objective assessment" for promotion and determining the fitness was required to be made under the law.
Khan M. Mutiur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others 2006 PLC (C.S.) 564 rel.
(c) Civil Servants Act (LXXI of 1973)---
----S. 9---Constitution of Pakistan, Arts.10A, 14, 18, 199 & 212---Constitutional petition---Right to fair trial---Inviolability of dignity of man, etc.---Scope---Deferment of the civil servants (petitioners) by the Central Selection Board---Evaluation of integrity and performance of the civil servants---Jurisdiction of High Court in matters pertaining to non-consideration for promotion--- Scope--- Reliance on personal opinion of the Central Selection Board for such evaluation---Validity---Matters pertaining to the appointment, posting, promotion and consideration for promotion of civil servants needed to be dealt with in a fair manner otherwise any treatment given in violation of Art.10-A of the Constitution would be open to challenge under Art.199 of the Constitution---In the present case, the "adverse remarks" made by Central Selection Board were not only arbitrary, but also against the Fundamental Rights of the petitioners as provided under Arts.9, 14 & 18 of the Constitution---Violation of the Fundamental Rights, indeed, could validly be challenged by a civil servant by means of filing of the Constitutional petition---Action or inaction which was arbitrary and not supported by materials on record or otherwise based on "undisclosed" materials could validly be challenged through filing of constitutional petition under Art.199 of the Constitution---Merit based decisions made by the Central Selection Board without violation of the Fundamental Rights could only be barred under Art.199 of the Constitution and not otherwise---Non-consideration of the petitioners' cases for promotion could validly be challenged under Art.199 of the Constitution.
Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 rel.
(d) Civil Servants Act (LXXI of 1973)---
----S. 9---Constitution of Pakistan, Arts.4, 10-A & 199---Constitutional jurisdiction of High Court---Scope---Equal protection of law---Doctrine of fairness and due processes---Scope---Arbitrary acts were always to be open to correction by High Court---Petitioners, in the present case, had no vested right to be promoted, but yet under S.9 of the Civil Servants Act, 1973, they were entitled to be considered for promotion---Junior officers had been considered for promotion, which was nothing but a glaring violation of Art.4 of the Constitution, particularly when the left out officers were eligible for promotion---Arbitrary decision would always be open to correction under the exercise of constitutional jurisdiction---Petitioners' deferment for promotion by Central Selection Board while placing reliance on the personal opinion of departmental representative, ex-facie was contrary to the "doctrine of fairness and due processes" as provided under Art.10-A of the Constitution.
Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413 rel.
(e) Service Tribunals Act (LXX of 1973)---
----S. 3(2)---Constitution of Pakistan, Arts.4, 199 & 212---Constitutional jurisdiction of High Court---Scope---Promotion Policy---Bar of Art.212 of the Constitution and S.3(2) of the Service Tribunals Act, 1973---Scope and extent---Instructions issued and contained in the Estacode etc. had the force of law and as such the same were to be followed strictly---High Court, despite the bar contained in Art.212 of the Constitution and S.3(2) of the Service Tribunals Act, 1973 had ample jurisdiction to give direction to the public functionaries to perform their functions strictly in accordance with law while exercising its functions under Art.199 of the Constitution in view of Art.4 of the Constitution---Guidelines regarding "promotion policy" ought to be based on "objective criteria" and 'subjective evaluation" of confidential reports etc.---Guidelines issued by the Government itself from time to time were to be treated at par with statutory rules---"Revised Promotion Policy" framed by the Federal Government (Estacode, enclosed at Serial No.163) enjoyed the force of law.
Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others PLD 2008 SC 769 rel.
(f) Relevant provisions of service laws---
----Constitution of Pakistan, Arts.4, 10A & 199---Constitutional petition---Promotion---Rights to equal protection of law and fair trial---Scope---Disclosure of adverse materials to be used against a person and affording opportunity of defence---Scope---Without disclosure of adverse materials and affording opportunity of defence, nevertheless, the petitioners were deprived of their promotion which act of the Central Selection Board was not only "unfair" but also against the principles of natural justice and spirit of Arts.4 & 10-A of the Constitution.
Tanvir Ashraf v. Riasat Ali and 5 others 2004 YLR 659 and Muhammad Jameel and 45 others v. Taluka Nazim, Taluka Municipal Administration Khairpur and 5 others 2014 PLC (C.S.) 479 rel.
Muhammad Farogh Naseem for Petitioners (in C.Ps. Nos.D-786 and D-787 of 2014).
Muhammad Jamshid Malik for Petitioner (in C.P. No.D-4054 of 2014).
Asif Hussain Mangi, Standing Counsel (for Respondents Nos.1 and 3).
Zakir Leghari and S. Nooruddin Ahmed, FBR Coordination (Legal), Karachi for Respondent No.2 (in C.P. No.D-786 of 2014).
Kafeel Abbasi and S. Nooruddin Ahmed, FBR Coordination (Legal), Karachi for Respondent No.2 (in C.P. No.D-787 of 2014).
Date of hearing: 13th August, 2014.
JUDGMET
AZIZ-UR-REHMAN, J.--- Through this common judgment we intend to dispose off the above Constitutional Petitions i.e. C.P. No.D-786 of 2014 (Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment and others) C.P. No.D-787 of 2014 [Dr. Aftab Imam v. Pakistan through Secretary Establishment and others] and C.P. No.D-4054 of 2014 [Muhammad Saeed Nashir v. Federation of Pakistan through Secretary Establishment and others] which pertain to the similar issue of promotion from BPS-20 to BPS-21 or BPS-19 to BPS-20 [in the case of petitioner in C.P.No.D-4054 of 2014] coupled with for seeking direction to the respondents, inter alia, to consider the petitioners for promotion. Almost, common prayers have been sought by the petitioners in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014 [hereinafter the 1st two C.Ps.] which read as follows:---
(a) Declare the meeting and decisions of the CSB dated 13-2-2014 in respect of promotion from BS-20 to BS-21 of officers of the Inland Revenue to be completely mala fide, without any basis, illegal, arbitrary, void ab-initio and of no legal effect, while setting aside the same;
(b) direct the respondents to consider the petitioner for promotion in BS-21.
(c) declare Office Memorandum dated 12-10-2012 (Annex-C to the petition) to be completely without jurisdiction, illegal, void ab initio and of no legal effect;
(d) permanently and pending disposal of the main petition restrain the respondents, their officers/agents from notifying any persons junior to the petitioner in BS-21 in the Inland Revenue Service of the FBR;
(e) direct the respondents to submit before this honourable Court the entire minutes and record of the CSB dated 13-2-2014, the Performance Evaluation Reports (PERs) of petitioner, his entire data and record in respect of SMC and NMC training programmes, so also the precise reasons given by CSB for the discretionary deferment to the petitioner;
(f) award costs and special costs;
(g) award any other relief deemed fit.
2. The only difference in the 'prayer clause' sought by the petitioner viz. Muhammad Saeed Nashir in C.P.No.D-4054 of 2014 [hereinafter the 3rd C.P.] is to the extent of his Grade [i.e. BPS-19] and promotion from BPS-19 to BPS-20. Rest of the prayers are almost the same.
3. The relevant facts in the backgrounds are as follows:---
4. That the petitioners in C.P. No.D-786 of 2014 and C.P. No.D-787 of 2014 are working in the Inland Revenue in the BPS-20 and have the required length of service in BPS-20 for promotion to BPS-21. Per respondents version, under the 'Promotion Policy' as prescribed in the Estacode, the necessary requirements for the officers in BPS-20 for promotion into BPS-21 are as under:---
"(a) the officers should have undertaken 22 years of service in BS-17 and above;
(b) the blood count of the officers should be 75%."
5. Per 'Promotion Policy' as prescribed in the Estacode, the blood count as averred by the petitioner is arrived at in the following manner:---
"(a) 75% marks are attributed to the quantification of the Performance Evaluation Reports (PERs) (formerly known Annual Confidential Report i.e. ACRs). The PER quantification is to be made as per the mathematical formula given in the Promotional Policy/Estacode;
(b) 15% marks are attributed towards training. The officers in BS-20 have to undertake training at the National Management College (Administrative Staff College), now known as the National Management Course (NMC);
(c) 15% marks are attributable solely at the discretion of the Central Selection Board (CSB) i.e. the respondent No.3."
6. According to the petitioners, in terms of S.I. No.160 [Estacode], the seniors officers cannot be left out or ignored for promotion much-less when they possess/have attained the requisite eligibility requirements of working. Per averments, made in C.P.No.D-786 of 2014 and C.P. No.D-787 of 2014, both the petitioners therein have not been recommended for promotion in BPS-21. So also the petitioner viz. Muhammad Saeed Nashir in C.P.No.D-4054 of 2014 was not recommended for promotion from BPS-19 to BPS-20 in the Board meeting of CSB held on 13th February, 2014.
7. The respondent No.3, as averred, held its' meeting on 13th February, 2014. The petitioners in the first two C.Ps. besides being seniors officers with un-blemished record and lawfully acquired blood count, however, were not recommended for promotion to BPS-21 by the Central Selection Board [in short CSB] in its meeting held on 13th February, 2014. While, officers juniors to them, per reliable source, were recommended for promotion without any lawful justification. The reasons for not recommending the petitioners, however, were not conveyed to petitioners. Rather to say, the petitioners were ignored for extraneous reasons despite having attained the required blood counts etc.
8. Under the aforesaid scenario, the petitioners herein have not only challenged the failure of respondents to consider the petitioners for promotion in BPS-21 or BPS-20 [in the case of 3rd petitioner] but also the decision taken by the CSB in its' meeting held on 11th, 12th and 13th February, 2014 wherein the cases of petitioners, nonetheless, were deferred.
9. Per averments, the failure/refusal of the respondents to consider the petitioners for promotion in BPS-20 to BPS-21 [in the case of 1st two petitioners] and BPS-19 to BPS-20 [in the case of 3rd petitioner], is not only mala fide, illegal, void ab initio but also without jurisdiction. The mala fides of the respondents can be appreciated from the facts that although the petitioners had successfully completed NMC [National Management Course] and all along their performance was also extolled by their reporting countersigning officers. All the petitioners, no doubt, had earned good, very good, excellent and outstanding performance evaluation in their ACRs/PERs throughout their career spending over years but they were ignored by CSB in its' meeting held on 13th February, 2014 for un-known reasons.
10. Moreover, the respondents in a manner completely without jurisdiction and illegally prescribed 'Office Memorandum' dated 12-10-2012 stating the 'revision of Promotion Policy'. Such 'Revision, of Promotion Policy' has no legal sanction behind it. The 'Office Memorandum' it is worth to note is against the very percept of 'structuring the discretion'. Per stand taken by the respondents, once the PER reflects the work of civil servant satisfactory, then there would be no justification to have prescribed, such 'revision of Promotion Policy', conferring absolutely 'subjective discretion' on the respondents. 'Office Memorandum' in view of this position is completely illegal, without jurisdiction and, of course, cannot be given effect to it on any ground whatsoever.
11. The above 1st two petitions bearing C.Ps.Nos.D-786 and 787 of 2014 when came-up before the court on 19-2-2014, then besides issuing notice to the respondents and learned D.A.-G., the following order was passed:---
"19-2-2014
Dr. Muhammad Farogh Naseem, Adv. for the petitioner.
1. Urgency granted.
2. It is inter alia contended by the learned counsel that the petitioner is performing his duties in BS-20 in the Inland Revenue and according to the Promotional Policy as prescribed in the Estacode the petitioner is entitled for promotion from BS-20 to BS-21. It is further stated that the petitioner is in service for the last 22 years. A meeting of Central Selection Board (CSB) was held on 13-2-2014 for the promotion of 17 officers in BS-21 of the Inland Revenue and according to the information the petitioner was also recommended for promotion in BS-21, but he came to know that despite being senior, having an unblemished record and huge length of service his recommendation for promotion in BS-21 was not considered.
Issue notice to the respondents as well as to DAG. Meanwhile, one post in BS-21 (Inland Revenue) shall not be filled by promotion of any junior officer till next date of hearing."
9. Likewise, when the 3rd C.P.No.D-4054 of 2014 came-up before the court on 7-8-2014, then the following order was passed:---
"7-8-2014
Mr. M. Jamshed Malik advocate for petitioner
1. Urgent application is granted.
2. Exemption application is granted subject to all just exceptions.
3 and 4. It is, inter alia, contended by the learned counsel for petitioner that the petitioner is presently working in Inland Revenue Department in BS-19 and has the acquired length of service in grade BS-19 so as to be promoted to grade BS-20. As per learned counsel for petitioner the respondent No.3 in its Minutes held on 11th, 12th and 13th February, 2014 for consideration of promotion recommended promotions of 46 officers in BS-19 of the Inland Revenue Department but it did not recommend the petitioner to promote him. As per learned counsel for petitioner the action of respondent No.3 is illegal and mala fide. Learned counsel for petitioner states that in similar and identical circumstances some other officers have also challenged such Promotion Policy by filing of C.P.No.D-787 of 2014 in which on 19-2-2014 restraining order was passed after issuing the notice to the learned D.A.G. to the effect that one seat in BS-20 (Inland Revenue) shall not be filled in by promotion of any junior officer till next date of hearing. Learned counsel for petitioner submits that same treatment may also be extended to the petitioner as this case is identical and similar to the case of petitioner who has filed C.P.No. D-787 of 2014, Issue notice to the respondents as well as learned D.A.G.
Till next date of hearing one another seat of post of BS-20 (Inland Revenue) Department shall not be filled-in by promotion of any junior officer. As other similar and identical petition is fixed on 13-8-2014 this petition be also fixed together aforementioned petition on the same date and before the same Bench."
10. Upon service, only the respondent No.2, filed their comments in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014 wherein inter alia, the locus standi of the petitioners as well as the accrual of any 'cause of action' in their favour was denied. The infringement of any right was also denied. Per respondents' version, the present petitions as framed and filed by the petitioners besides misleading are misconceived. Passing of any 'adverse order' against the petitioners was also denied. Moreover, per respondents' stand, the Service Matters of civil servants, purely fall within the exclusive jurisdiction of the Federal Service Tribunal [in short FST] thus the same under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be agitated in the Constitutional Petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On this score alone, as per contentions of the respondents, the present petitions are liable to be dismissed in limine, as the petitioners have wrongly invoked the jurisdiction of this court.
10. The petitioners, per respondents' stand, have no legal rights to contest their non-promotion muchless in view section 22 of the Civil Servant Act, 1973 which provides that no representation shall lie on the matters pertaining of determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Indeed, consideration for promotion is a right of civil servant, but such promotion is not a vested right of the petitioners. No doubt, pre-requisite ingredients, for consideration of promotion is the length of service and seniority but the competent authority, however, can also consider overall record of the civil servants including their seniority, variety of experience, integrity, reputation and equality of service. The petitioners' cases, per averments, no doubt, were placed for consideration of promotion before Central Selection Board [in short CSB] in its' meeting held on 13-2-2014, however, their cases were deferred by CSB with the following remarks:---
"The departmental representative Chairmen FBR stated before the Board that he was not satisfied with recent performance of the officers. He recommended to put the officer under observation in order to assess his performance. The Board considering all the facts agreed with officer with direction of Chairman FBR to come up with clear recommendation in next CSB meeting".
11. According to the respondents' version, the cases of petitioners will be placed for consideration before the Central Selection Board [CSB] for promotion in its' next meeting whenever it is held in accordance with 'Promotion Policy'. The competent authority while, considering the promotion of the petitioners amongst others will consider the commitment of the petitioners to job, dedication to duty, power to take decision, acceptance to responsibility integrity and variety of experience etc. The petitioners, however, presently, did not possess the requisite requirements for promotion as such were deferred. The comments/opposition of the petitioners on the point of legality and jurisdiction of 'Office Memorandum' dated 12-10-2012 besides un-called, baseless are without any legal footings.
14. On 13-8-2014, when the above petitions came-up before us, we heard Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.P.No.D-786 of 2014 and C.P.No.D-787 of 2014, Mr. M. Jamshid Malik, learned counsel for petitioner in connected C.P.No.D-4045 of 2014, Mr. Kafeel Ahmed Abbasi, learned counsel for the respondent No.2, Mr. Zakir Laghari, learned counsel for respondent No.2 in C.P. No.D-786 of 2014 along with Mr. S. Nooruddin Ahmed, Co-ordinator [Legal] Karachi and Mr. Asif Hussain Mangi, learned Standing counsel for respondents Nos.1 and 3 and with their valuable assistance also scanned the record available before us.
15. Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.Ps.Nos.D-786 and D-787 of 2014, vehemently contended that the respondents failure/refusal to consider the cases of the petitioners for promotion in BPS-21 besides, mala fide, illegal, void ab initio, without jurisdiction is of no legal effect. The mala fides of the respondents, are evident from the record. Both the petitioners [in the 1st two C.Ps.] have the outstanding PER for the period 1-12-2012 to 3-3-2012. The non-availability of their PER for the remaining period of service in PBS-20 is not due to the petitioners' fault and/or negligence. The petitioners, rather had successfully completed NMC training. All along, the performance evaluation of the petitioners remained 'satisfactory', 'good', 'very good' and 'excellent' as per their PER/ACRs of their careers spending over years.
16. Dr. Muhammad Farogh Nasim, learned counsel for the petitioners [in the 1st two C.Ps.] further urged, that 'Office Memorandum' dated 12-10-2012 is without jurisdiction and seemingly has been issued in a mala fide and illegal manner. Firstly there is no legal sanction behind the 'Office Memorandum' and secondly such 'Office Memorandum' is against the percept of 'structuring the discretion'. According to the learned counsel, once the PERs/ACRs reflect work of the civil servant satisfactory then there would be no justification of prescribing such a revision of the promotion policy', conferring absolutely 'subjective discretion' on respondents. In view of this position as well, 'Office Memorandum' dated 12-10-2012 is without jurisdiction and illegal.
17. Learned counsel for petitioners in the 1st two C.Ps., next argued that the 'adverse remarks' made while, considering the cases of the petitioners by CSB not only are mala fide but also not supported by any materials available on record. Per learned counsel, due to such 'adverse remarks' the petitioners nonetheless were denied their promotions. Such denial of promotion is not only illegal but also without any lawful justification. According to Mr. Farogh Nasim, learned counsel for petitioners in 1st two C.Ps., the bar of jurisdiction under Article 212 of the Constitution does not apply as there is no impugned order and the cases of the petitioners otherwise, pertain to fitness to hold higher post and promotion and prospect of promotion only.
18. In support of his contentions, Mr. Farogh Nasim, learned counsel for the petitioners in 1st two C.Ps. placed reliance on the following cases :---
(i) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195]
(ii) Tariq Aziz-ud-Din and others [2010 SCMR 1301]
(iii) Orya Maqbool v. Federation of Pakistan and others [2014 SCMR 817]
(iv) Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lahore 413].
19. Apart from the above case-laws, the learned counsel also placed reliance on an unreported judgment dated 19-12-2012 passed in C.P.No.D-3430 [Saleem Butt and others…
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