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Petitioner: GOVERNMENT Of PAKISTAN VS Respondent: HAMEED AKHTAR NIAZI, ACADEMY OF ADMINISTRATIVE, TRAINING WALTON, LAHOREHonorable Justice NAZIM HUSSAIN SIDDIQUIMian Saeedur Rehman Farrukh,M. Bilal
2003 P L C (C
2003 P L C (C.S.) 212
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, Hamid Ali Mirza and Sardar Muhammad Raza Khan, JJ
GOVERNMENT Of PAKISTAN through Establishment Division, Islamabad and 7 others
Versus
HAMEED AKHTAR NIAZI, ACADEMY OF ADMINISTRATIVE, TRAINING WALTON, LAHORE and others
Civil Appeals Nos. 1599 to 1606 of 1999, decided on 11th October, 2002.
(On appeal from the judgment dated 7‑12‑1998 of Federal Service Tribunal, Islamabad passed in Appeal No. 124(L) of 1980).
(a) Civil Servants Act (LXXI of 1973)‑‑‑
‑‑‑‑S.9‑‑‑Service Tribunals Act (LXX of 1973), S.4‑‑‑Promotion‑‑‑Selection post and non‑selection post‑‑‑Criterion for promotion‑‑‑Jurisdiction of Service Tribunal‑‑‑Scope‑‑‑Criterion for promotion in case of selection post is merit, while in case of non‑selection post it is on the basis of seniority- cum‑fitness‑‑‑Criterion for selection for promotion to the higher grade rests upon decision of the Competent Authority‑‑‑No other forum/Authority can assume the duties, which specifically have been assigned to the Competent Authority‑‑Seniority is one of the factors, which is considered for promotion, but seniority alone is not enough‑‑‑Promotion is not automatic but it depends on many other factors, such as, competence, availability of post and antecedents etc. and none of the said factors is less important than seniority and for promotion all these factors, on case‑to‑case basis, are to be considered‑‑‑Benefit of promotion, on the basis of improved seniority, as a matter of right in selection grade, cannot be claimed nor the Service Tribunal in appeal is competent to grant the same from back date, as the same is explicitly beyond its jurisdiction‑‑‑Requirements for promotion having not been examined by the Competent Authority at the relevant time, promotion could not be granted by the Service Tribunal‑‑‑Civil servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter, which is within the exclusive domain of the Government/Executive Authority‑‑‑If promotion is denied to a civil servant it could not be termed as denial of any fundamental right.
Muhammad Umar Malik v. Federal Service Tribunal and others PLD 1987 SC 172; Muhammad Saleem Bhatti v. Secretary to Government of Punjab, Agriculture Department, Lahore and 2 others 1985 PLC (C.S.) 26; R. Sampath v. The State of Madras and another AIR 1962 Mad. 485 and M.A. Moqeem v. The State of Mysore and others AIR 1963 Mys. 219 ref.
1973 SCMR 304; 1985 SCMR 1394; PLD 1991 SC 1118; 1996 SCMR 850 and 1988 SCMR 736 distinguished.
(b) Civil service‑‑
‑‑‑‑Promotion‑‑‑Promotion from back date to the retired civil servant cannot be granted.
(c) Civil service‑‑‑
‑‑‑‑Promotion‑‑‑Service Tribunal could not antedate the promotion.
(d) Civil service‑‑
‑‑‑‑ Promotion‑‑‑Prescribed length of service for promotion to B‑19 is 12 years in B‑17 and above.
Sardar Muhammad Aslam, Dy. A.‑G. and Anwar H. Mir, Advocate ‑on‑Record (absent) for Appellant (in C. A.No.1599 of 1999).
K.M. Samadani, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Appellant (in C.As.Nos.1600, 1601, 1603 to 1606 of 1999).
Mian Saeedur Rehman Farrukh, Advocate Supreme Court and Sh. Salahud Din, Advocate‑on‑Record for Appellant (in C.A.No.1602 of I 999).
M. Bilal, Senior Advocate Supreme Court, Babar Bilal, Advocate Supreme Court and M.A. Zaidi, Advocate‑on‑Record for Respondent No. 1 (in C. A. No. 1599 of 1999).
Aleem Mahmood (in person), Abdul Hameed Qureshi (in person), Akbar Hayat Gandapuri (in person) and S.A. M. Walidi (in person).
Nemo for the Remaining Respondents.
Date of hearing: 13th June, 2002.
JUDGMENT
NAZIM HUSSAIN SIDDIQUI, J.‑‑‑This judgment will dispose of Civil Appeals Nos. 1599 to 1606 of 1999, in which common questions of acts and law are involved and the same are directed against the judgment fated 7‑12‑1998 of learned Federal Service Tribunal, Islamabad, whereby Appeal No. 124(L)/1980 filed by respondent No.1, Hameed Akhtar Niazi, was allowed with the following observations:‑‑
"After having considered all the material on record and the contentions of the learned counsel for the parties we accept the appeal tiled by Hameed Akhtar Niazi with costs. He was senior to Walayat Ahmed. Respondent No.2, who was promoted and given seniority in BPS‑20 with effect from 4‑8‑1979. The appellant was eligible for promotion as he entered into Government service in Grade‑17 on 1‑4‑1963 and promoted as Deputy Secretary on 9‑4‑1973. His name was required to be placed before the Central Selection Board, which was not done. He was subsequently promoted in BPS‑20 on 17‑8‑1980. The appellant stated before us that he retired from service in BPS‑21. His promotion in BPS‑20 and BPS‑21 indicate that there was nothing adverse against him, which could prevent him from promotion to higher grades. It is directed that the appellant shall be given ex post facto pro forma promotion in various grades from the dates. Walayat Ahmed, respondent No.2, and other junior respondents were promoted. Due to revision of seniority, the pay and pension of the appellant shall be re‑fixed and he would be entitled to pecuniary benefits. Necessary notification shall be issued within a reasonable time. Law has been laid down in cases of the Province of the Punjab through the Secretary, Services and General Administration, Lahore v. Syed Muhammad Ashraf (1973 SCMR 304), Syed Sultan Shah v. Government of Balochistan and another (1985 SCMR 1394), Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118), Abdul Jabbar Khan v. Government of Sindh through Chief Secretary, Karachi, and 5 others (1996 SCMR 850) and Iftikharullah Malhi v. Chief Secretary and another (1998 SCMR 736) that a civil servant who is entitled to be promoted from a particular date was, for no fault of his own, wrongly prevented from rendering service to the Federation in the higher post, such civil servant shall be paid arrears of the pay and allowances of such higher post through pro forma promotion or up‑gradation arising from the ante‑dated fixation of his seniority. Following the aforesaid decisions of the Honourable Supreme Court, we have given the above mentioned direction for re‑fixation of pay, pension etc. of the appellant and his entitlement to pecuniary benefits.
2. Civil Appeal No. 1599 of 1999 has been filed by the Government of Pakistan through Establishment Division, while the remaining Appeals Nos.1600 to 1606 have been preferred by appellants, Hamid Ahmed Qureshi, A.W. Kazi, Dr. Zafar Altaf, Javed Masood, Pervez Masood. Aminullah Chaudhry and Tariq Sultan respectively being aggrieved by tile judgment delivered in Appeal preferred by respondent No. 1, Hameed. Akhtar Niazi.
3. Vide order dated 13‑12‑1999, leave to appeal was granted in these matters. It is noted that on behalf of private appellants viz. in Civil Appeals Nos. 1600 to 1606 of 1999 it was urged that they were C.S.P. Officers and when they were posted as Deputy Secretaries, they were already holding posts in BPS‑18, therefore, their services in BPS‑18 were to be counted, while fixing their seniority in the cadre of Deputy Secretary. It was also urged on their behalf that the post of Deputy Secretary was declared as cadre post and for promotion to this cadre post the requirement under Notification S. R. O. No.1238(1)/73 dated 21‑8‑1973 was that the person having 8 years' service, as Assistant Commissioner or SDO in the different CSP service, was eligible for appointment as Deputy Secretary. Also, it was urged that the rule, which was promulgated by the President of Pakistan under Rule 3 of Civil Service of Pakistan (Composition and Cadre) Rules, 1954, was altered through Office Memorandum dated 20‑5‑1974 issued by the Establishment Division. It was contended that statutory rule referred to above could not be changed through an Office Memorandum. It was' further contended on their behalf that learned Tribunal had no jurisdiction to direct promotion of Hameed Akhtar Niazi various grades from the date when Walayat Ahmed, who was respondent No.2 in the appeal filed before the Tribunal, was promoted, as it was beyond its jurisdiction.
4. The case of respondent No. 1, Hameed Akhtar Niazi. Before Tribunal was that he entered into the then Pakistan Military Land and Cantonments Service on the basis of the Competitive Examination held in June, 1960. He was transferred to the Central Government in President s Secretariat etc. and then to the Planning Division, on 14‑1‑1971. He was promoted as Deputy Secretary, on regular basis on 9‑4‑1973 and posted in Establishment Division. The respondent No.1 has stated that as a result of SRO No.1237(1 /73), dated 21‑8‑1973, he became a Member of All Pakistan Unified Grades (A.P.U.G.). Later on Secretariat Group was constituted in APUG under O.M. No.212/75 ARC, dated 12‑4‑1976. Option was sought and he opted for the Secretariat Group.
5. According to the respondent No. 1, the Gradation List of Deputy Secretaries of the Secretariat Group was prepared in accordance with tile Provisions of section 8(4) of the Civil Servants Act, 1973, hereinafter referred to as the "Act of 1973", and in the list circulated in June, 1976, his same appeared at Sl. No.69. The respondent No.1 has alleged that in August 1979 several persons belonging to the erstwhile Civil Service of Pakistan (C.S.P.) were promoted to the rank of Joint Secretaries, but the name was not put up before the Central Selection Board (C.S.B.) for consideration and promotion, as such. Thereafter, number of officers, whose names either appeared below him in the 1976`s Gradation Last or did not appear therein at all, were promoted: He made representations to the Establishment Division and no reply was given to him. In June, 1980, he made another representation to the Establishment Division, requesting that his name be placed before Central Selection Board for consideration and promotion. The Establishment Division, however, through their Letter No.55/11/79/AV, dated 12‑3‑1‑980 had informed him that "no officer junior to Mr. H. Akhtar Niazi has so far been promoted".
6. The respondent No.1 mentioned that besides Gradation List of 1976, the Establishment Division had also filed a Gradation List before this Court on 6‑12‑1979 in compliance of order of this Court for inspection of Mr. Israrul Haq, who was a respondent in Appeal No.37/79. In that Gradation List, the respondent was placed at Sl. No.36.
7. He concluded that former C.S.P. Officers, who were ineligible or were junior to him, were promoted earlier to him, depriving him from legitimate right of promotion. The date of birth of respondent No.1 19‑2‑1935.
8. In Civil Appeal No. 1600 of 1999 preferred by Hameed Ahmed Qureshi 15 persons have been shown as respondents. He maintained that respondents Nos.2 to 15 of said appeal were promoted as Joint Secretaries. (BPS‑20) between the period from 4‑8‑1979 to 30‑5‑1980, as shown in the Gradation List (C‑6). He was promoted as Joint Secretary in BPS‑20 on 17‑8‑1980. According to him, the "next below rule" had opened the door to favouritism and nepotism and was not correctly interpreted and applied with reference to this case. He claimed that a civil servant entitled to the promotion but not promoted for no fault of his shall be paid arrears of pad and allowances of higher post through pro forma promotion or up-gradation. On 4‑12‑1962 he joined civil service through Competitive Examination held in the year 1961 and in 1966 was promoted to Senior Scale. On 1‑7‑1970 he took over as Deputy Secretary, Finance Department, Government of N.‑W.F.P. In 1978, he was appointed as Secretary. Cooperatives Department, Punjab and was also promoted to BPS‑20. He maintained that Mr. Hameed Akhtar Niazi was inducted into cadre and service much later to him, as such, he could not claim seniority over him. He submitted that impugned judgment is liable to be set aside.
9. Appellant. A. W. Kazi (Civil Appeal No. 1601 of 1999) has cited 16 respondents in his memo of appeal. He joined Civil Service of Pakistan on 18‑12‑1965. He was granted senior scale of pay in September, 1970 and held various posts of Additional Deputy Commissioners, Deputy Secretary. Additional Secretary in Sindh Government, Commissioner Sukkur Division: arid Secretary of the Department of Communication and Works, Service and General Administration and Finance under the Sindh Government. In 1989, he was posted, as Joint Secretary in the Cabinet Division. He was not a party in the appeal before Federal Service Tribunal. He also prayed for setting aside impugned judgment on the grounds, which has been urged by the Federal Government and by other private appellants.
10. Appellant, Dr. Zafar Iltaf (Appeal No.1602/1999) has cited as many as 90 respondents in his appeal and prayed for setting aside the impugned judgment more or less on the same grounds raised by Government of Pakistan and other private appellants. He joined Civil Service of Pakistan on 18‑12‑1965. He was promoted to Senior Scale in February, 1970 and held various posts. In April, 1991, he was promoted to Grade No.21 and posted as Additional Secretary Incharge Agricultural Research Division, Government of Pakistan and Ex Officio Chairman, Pakistan Agricultural Research Council, Islamabad till first November, 1993.
11. Appellant, Muhammad Javed Masood, (Appeal No.1603/1999) has cited 16 persons as respondents. He joined civil service in 1965 and held various posts. He was promoted to Senior Scale of C.S.P. in 1969 arid he completed 8 years service in C.S.P. before the Civil Servants Act or Civil Service Reforms were introduced. He also claimed that respondent No.1, Hameed Akhtar Niazi, was inducted in cadre and service much later to him therefore, he could not claim seniority over him. His appeal is time‑barred by 35 days, the delay, under the circumstances, is condoned.
12. Appellant, Pervaiz Masood (Appeal No.1604 of 1999) has cited as many as 16 respondents. He joined civil service on 15‑10‑1963 and was posted on various posts. Presently, he is serving in Grade‑22.
His appeal is tune‑barred by 41 days, the delay, under the circumstances, is condoned.
13. Appellant, Aminullah Chaudhry (Appeal No. 1605 of 1999) has cited 16 as respondents. He joined civil service in October, 1967. He assailed the impugned judgment of the Tribunal on various group including misreading, misinterpretation and not examining the facts in their true perspective. His appeal is time‑barred by 110 days, the delay, under the circumstances, is condoned.
14. Appellant, Tariq Sultan (Appeal No.1606 of 1999) has cited as many as 16 respondents. He joined civil service in October, 1967 and assailed the judgment of the Tribunal on the grounds raised by other appellants. His appeal is time‑barred by 110 days, the delay, under the circumstances, is condoned.
15. The Appeals Nos.116(R) of 1981 and 124(L) of 1980 being identical were disposed of by the Tribunal by a single judgment dated 11‑12‑1986, which was impugned before this Court.
16. It was contended before the Tribunal in aforesaid appeals that after the enforcement of the Act of 1973, the seniority had to be determined in terms of section 8 of Act of 1973 and it was immaterial if a former C.S.P, officers had or had not served as Deputy Secretary, that the cadre of Civil Service of Pakistan (C.S.P.) having become defunct since 1973, no one could claim seniority on the basis of his employment in the former C. S. P. cadre, that according to Para. 8 of Sl. No.18 (pages 766‑‑868 of ESTACODE, 1983 Edition), the seniority of all the Deputy Secretaries had to be reckoned from the date of continuous regular officiation as Deputy Secretary or in a post in Grade 19, whichever is earlier, that according to Para. 3(ii) of O.M.No.2/2/75‑ARC dated 21‑2‑1975 the post of Deputy Secretary could be filled in by a person, who had rendered 12 years' service to Grade‑17 and above, that in view of said memorandum it was not possible or legal for the Government to promote the respondents Nos.2 and 3 namely, Walayat Ahmed and Syed Sarfraz Ali Shah from the date when they had rendered only 8 years of service. On behalf of the Government it was submitted before the Tribunal that prior to formation of Secretariat Group, officers of C.S.P. cadre were appointed as Deputy Secretaries irrespective of seniority on the basis of suitability and availability and that officers in senior scale (Grade‑18) were eligible for appointment as Deputy Secretaries, if they had 8 years' service, that the post of Deputy Secretaries for C.S.P. Cadre was never a promotion post and all senior scale (C.S.P.) Officers irrespective of their seniority could be appointed as Deputy Secretaries on completion of 8 years' service in junior C. S. P. and senior C. S. P. scales, that the post of Deputy Secretary was a tenure post and the Deputy Secretary had to go back as Deputy Commissioner if the exigency of the service so required:
17. Above decision of Tribunal was challenged before this Court by respondent No. 1 Hameed Akhtar Niazi, and leave to appeal was granted. This Court remanded the matter to the Tribunal having observed that relevant provisions pertaining to the appointment to the post of Deputy Secretary and Seniority were not taken into consideration, while deciding these appeals. The Tribunal in compliance of the judgment of this Court issued notices to the parties and heard the arguments. After doing this exercise, the Tribunal held as follows:‑
"It is evident from the various lists issued by the Establishment Division that the appellant was appointed as Deputy Secretary on regular basis with effect from 9‑4‑1973. This fact is not disputed by the respondent‑Department. Walayat Ahmed, respondent No.2, was the senior most amongst the respondents. Provisional Gradation List dated 20‑11‑1973 shows that he was appointed as Deputy Secretary on 1‑6‑1973. His date of seniority in Grade‑19 has been mentioned as 1‑6‑1973. Gradation List of Deputy Secretaries of the Secretariat Group issued on 1‑10‑1975 indicates that the date of appointment of the appellant as Deputy Secretary and date of seniority has been recorded as 9‑4‑1973, while that of respondent No.2 as 1‑6‑1973 (mentioned at Serial Nos.91 and 99 respectively). Same was the position of the appellant and respondent No.2 in the final Gradation List issued on 14‑6‑1976 where the names of the appellant and respondent No.2 appear at Serial Nos.69 and 74 respectively, leaving no room of doubt that the appellant was senior to respondent No.2. This final Gradation List dated 14‑6‑1976 was acted upon by the respondent‑Department. The position did not change even up to 6‑12‑1979, when Gradation List was produced before the Supreme Court under the orders of the Honourable Judges in another Appeal No.37 of 1979. In that list, the names of the appellant and respondent No.2 appear at Serial Nos.36 and 41 respectively. The position, however, changed when another Gradation List of Secretariat Group (Grade‑19) was issued but not circulated, which, according to the appellant, was issued surreptitiously. This list did not see the light of the day as seniority of officers of defunct C.S.P. was changed on the basis of 'next below ride' and all the respondents alongwith some others were shown as senior to the appellant. This aspect has already been discussed in the earlier paras. and we need not repeat it. "
18. It appears that after the remand the Tribunal issued a public notice to the leading newspapers of the country inviting applications rot impalement in the remand case No.124‑K/80. Accordingly, thereafter many C.S.P. Officers were impleaded as respondents and a consolidated list was prepared, which showed 15 as appellants and 72 as respondents in the remand proceedings, including 22 officers of the defunct C.S.P. The C.S.P. Officers did not appear before the Tribunal despite individual notices were sent to them.
19. It is evident from record that almost all the appellants; except Tariq Sultan and Aminullah Chaudhry, have now retired. Now stress is only on the point that benefits extended to respondent No. 1 be also extended about 40 non‑civil servants pursuance to the impugned judgment of the Tribunal.
20. The respondent No. 1, and others who were opposing the claim of respondent No. 1, have already retired and availed the benefit arose therefrom. It would be an exercise in futility to examine the issue of seniority inter se of the retired officers.
21. Promotion to Selection Post is always to be processed through the Central Selection Board. In the ESTACODE 2001 at pages 284 to 287, the requirements for promotion to Grades 19, 20 and 21 respectively are as follows:‑‑
FOR GRADE‑19
(a) Qualifying service: Possess 12 years' service as an officer subject to the provisions contained in Establishment Division's O.M.No.1/9/80‑R‑II (A), dated 2‑6‑1983.
(b) Eligibility threshold: Attain a minimum score of 60 marks in the C.Rs. in accordance with the formula given in the addendum.
(c) Qualifications: as prescribed by the 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 important factors in determining the comparative merit of an officer.
FOR GRADE 20
(a) Qualifying service: Possess 17 years' service as an officer subject to the provisions contained in Establishment Division's O.M.No.1/9/80‑R‑II (A), dated 2‑6‑1983.
(b) Eligibility threshold: Attain a minimum score of 70 marks in the C.R.S. in accordance with the formula given in the Addendum.
(c) Qualifications: 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 a 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 unattractive areas. While some exposure 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
(ii) have served on the directing staff of a training institutions for at least two years; or
(iii) have attended a regular course at the Staff College/NDC; or
(iv) have exceeded the age of 56 years.
FOR GRADE 21
(a) Qualifying service: Possess 22 years' service as an officer subject to the provisions contained in Establishment Division's O. M. No. 1/9/80‑R‑II (A) dated 2‑6‑1983.
(b) Eligibility threshold: Attain a minimum score of 70 marks in C.R.S. in accordance with the formula given in the Addendum.
(c) Qualifications: As are prescribed by relevant recruitment rules.
(d) Relevance of experience: Possess experience relevant to the functions of the post being filled by promotion.
(e) "Quality and Output of Work" and "Integrity": Marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit of an officer.
(f) Variety of experience: the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments (on account of work load or its complexity) vis- a‑vis relatively routine duties particularly in the Secretariat: Depending on the posts to be filled, an officer possessing well -rounded experience with adequate exposure to difficult assignments should normally be preferred.
(g) Training: Should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. This requirement will be waived for officers who:‑‑
(i) have served as head of a training institution for at least one year; or
(ii) have served on the directing staff of a training institution for at least two years; or
(iii) have exceeded the age of 56 years.
(h) Top Management Potential: Since officers promoted to this level may be called upon to hold…
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