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Petitioner: TANVEER AHMAD KHAN VS Respondent: REGISTRAR, LAHORE HIGH COURT, LAHOREHonorable Justice Syed Mansoor Ali ShahSyed Ijaz Qutab
2013 P L C (C.S.) 248
[Lahore High Court]
Before Ijaz ul Ahsan and Syed Mansoor Ali Shah, JJ
TANVEER AHMAD KHAN
Versus
REGISTRAR, LAHORE HIGH COURT, LAHORE and 3 others
Service Appeal No.2 of 2009, decided on 16th January, 2013.
(a) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---
----Rr. 26, 7 & 20---Lahore High Court Notification No.10218/Gaz.1.V.Z.2 (a), dated 10-7-2009---Promotion to post of Deputy Registrar, (Lahore) High Court---Selection process ---Power of competent authority/Chief Justice to appoint or promote any person/officer ---Scope---Promotees/respondents were promoted to the post of Deputy Registrar, (Lahore) High Court by the impugned order of Chief Justice---Appellant, who was Reader, was superseded by the promotees, contended that impugned order of promotion did not furnish any reasons for superseding him; that despite being senior to the promotees he was not promoted; that no "objective criteria" had been evolved for selection to the post of Deputy Registrar, therefore, the impugned order amounted to discrimination---Promotees contended that they were preferred over the appellant because of their better educational qualification, and that under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules, the Chief Justice of the Lahore High Court had unlimited powers to appoint and promote any officer of the High Court ---Validity---Service record of appellant and promotees showed that one of the promotees and the appellant had the same educational qualification, and that appellant was senior to some of the promotees--- Impugned order failed to furnish reasons as to why the appellant stood superseded when his service record and educational qualification were at par with one of the promotees---Impugned order also did not state as to why said promotee was selected for promotion when four other Readers in the selection pool, holding better educational qualification, were ignored---Recruitment under R.7 of the High Court Establishment (Appointment and Conditions of Service) Rules from amongst the pool of officers awaiting promotion on the basis of an open, transparent and intelligent objective criteria followed by a speaking order, was in the public interest and in the larger interest of the institution--- Power of selection under R.7 of the said Rules could not be used to select or pick and choose any officer of liking from amongst the officers without considering all the officers awaiting promotion in the pool---Although educational qualification was a valid parameter for the purpose of selection posts but was not the sole parameter---Power vested with the competent authority/Chief Justice under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules did not vest him with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Rule 26 could not be invoked to pick and choose any officer awaiting promotion or otherwise without first considering all the officers in the pool---Impugned order of promotion to the extent of one of the promotees, who was junior to the appellant and possessed the same educational qualification, was set aside in circumstances and appellant was promoted as Deputy Registrar, w.e.f. 10-7-2009, without back benefits, while the remaining promotees were to retain their inter-seniority as maintained prior to their promotion---High Court directed that all appointments and promotions to selection posts should be made in accordance with R.7 of High Court Establishment (Appointment and Conditions of Service) Rules by considering the service record and other antecedents of the officers by employing an objective criteria, and that Registrar, High Court should place all the orders passed by the competent authority (now or in the past) under R.26 or R.7 (without consideration of the officers in the pool) before the competent authority for appropriate orders in accordance with law---Appeal was allowed accordingly.
Service Appeal No.10 of 1999 distinguished.
Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 rel.
(b) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---
----Rr. 24 & 20 & Schedule II ---Order of appointment or promotion to the post of Deputy Registrar, Assistant Registrar and Private Secretary made by Chief Justice of the High Court---Appeal against such an order---Scope---Where the order passing authority was the Chief Justice of the High Court, the appellate authority against such an order would be a bench of two judges of the High Court.
Service Appeal No.10 of 1999 distinguished.
(c) Civil service---
----Selection-post---Suitability of candidate, determination of---Merit---Scope---Selection post was to be filled purely on merit by carefully evaluating the suitability of the officer for the post---Suitability of the officer for a selection post, was not to be simply gauged on the basis of seniority or eligibility but required a deeper subjective assessment of the meritoriousness of a candidate---To evaluate merit, the ability and achievement demonstrated by the officer in the post held by him played a pivotal role---Competent authority, therefore, had to devise a strategic formulae or intelligent objective criteria or smart parameters that were geared towards evaluating the suitability of the candidate and helped select the best person for the job.
Tariq Aziz-ud-Din and others's 2010 SCMR 1301 rel.
(d) Civil service---
----Selection-post---Selection process---"Discretion" of competent authority---Scope---Discretion at work behind the selection process must be structured, rational, logical and objective---Discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Intelligent objective criteria or smart parameters were tools for the selecting authority to logically fashion its discretion---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness.
Tariq Aziz-ud-Din and others's case 2010 SCMR 1301; Imran Hussain v. Water and Power Development Authority through Chairman WAPDA and 4 others PLD 2010 Lah. 546; Corruption in Hajj Arrangements in 2010 PLD 2011 SC 963; Muhammad Yasin v. Federation of Pakistan through Secretary, Establishment Division, Islamabad and others PLD 2012 SC 132; Messrs Gadoon Textile Mills and 814 others v. WAPDA and others 1997 SCMR 641; Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.
(e) Civil service---
----Selection-post---Selection order made by competent authority---Scope---Non-speaking selection order---Effect---Exercise of structured discretion was incomplete if it was not translated into a speaking order, furnishing reasons---Unreasoned and non-speaking order generated mistrust, suspicion, dubiety and frustration amongst the officers and compelled them to harbour doubts about the recruitment process hence lowering the prestige and credibility of the selection process and as a result of the institution---Such an order also had a dispiriting effect on the officers who continued to work with wavering interest and loyalty thus putting down the overall productivity of the institution.
Messrs Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others 1998 SCMR 2268; Liaqat Ali Memon and others v. Federation of Pakistan and others PLD 1994 SC 556; Secretary to Government of N.-W.F.P. and another v. Muhammad Nawaz and another PLD 1996 SC 837; Rukhsar Ali and 11 others v. Government of N.-W.F.P. through Secretary Education, Peshawar and 3 others 2003 PLC (C.S.) 1453; Pakistan International: Airlines Corporation through Chairman and others v. Shahzad Farooq Malik and another 2004 SCMR 158 and Ashfaq Hussain v. Government of the Punjab and others 2011 PLC (C.S.) 799 rel.
(f) Civil service---
----Selection-post---Criteria for selection---Seniority of candidate---Significance---Seniority was not the determining factor in a selection post but could tilt the scales in favour of the senior officer in case of a tie.
Tariq Aziz-ud-Din and others's case 2010 SCMR 1301 and Liaqat Ali Chugtai v. Federation of Pakistan through Secretary Railways and 6 others 2012 PLC (C.S.) 1062 rel.
(g) High Court (Lahore) Establishment (Appointment and Conditions of Service) Rules---
----Rr. 26 & 7---Constitution of Pakistan Arts.4, 10A & 25---Power of competent authority/Chief Justice of the (Lahore) High Court to appoint or promote any person/officer of the High Court---Scope---Power vested with the competent authority/Chief Justice under R.26 of High Court Establishment (Appointment and Conditions of Service) Rules did not vest him with unfettered and unguided power to override the regular selection process under R.7 of the said Rules or to brush aside the vested rights of officers, who were awaiting their turn to be considered for promotion---Such an interpretation would offend the constitutional obligation of due process and fair trial under Arts.4 and 10A of the Constitution---Rule 26 of High Court Establishment (Appointment and Conditions of Service) Rules could not equip the competent authority with the license to pick and choose any officer for promotion as that would be facially discriminatory, offending Art.25 of the Constitution---Rule 26 of High Court Establishment (Appointment and Conditions of Service) Rules appeared to empower the competent authority with unabridged power but in substance the said Rule itself regulated and harnessed the power by providing its exercise "in a manner as may appear to him [competent Authority] to be just and equitable"---Power vested under R.26 was an exception and had a limited use and could be invoked in special emergent circumstances---For purposes of appointment and promotion R.26 of High Court Establishment (Appointment and Conditions of Service) Rules would be available to the competent authority only when all the officers available in the talent pool for appointment or promotion to the post in question had been duly considered and not found suitable through a speaking order---Exercise of such special power was harnessed by strict requirement of detailed deliberations by the competent authority followed by a well-reasoned order that would justify side tracking the normal procedure under the Rules.
Muhammad Iqbal Khokhar and 3 others v. The Government of the Punjab, through the Secretary to Government of the Punjab, Lahore and 2 others PLD 1991 SC 35 and Manzoor Hussain and 2 others v. Muhammad Ashraf and another 1999 PLC (C.S.) 279 rel.
(h) Discretion---
----Exercise of---Principles---Discretion without a uniform yardstick or a formula was a loose jumble of haphazard human subjectivity, which was inescapably susceptible to error and indubitably arbitrary, ex facie discriminatory, highly irrational and illogical---Administrative compulsion and wisdom to structure discretion was to remove human subjectivity from exercise of discretion---Constitutional and jurisprudential importance of structured discretion was that it nursed the requirement of due process, fairness and fair trial and safeguarded the discretion against the vice of discrimination and arbitrariness.
Syed Ijaz Qutab for Appellant.
Shahid Mubeen along with Hafiz Muhammad Sajjad, Assistant Registrar (Gazette-II), Lahore High Court, Lahore.
Respondents Nos.2 to 4 in person.
Syed Aamir Ali, Assistant Registrar (Legislation), on Courts' call.
Date of hearing: 22nd November, 2012.
JUDGMENT
SYED MANSOOR ALI SHAH, J.--- This is an appeal under Rule 241 of the High Court Establishment (Appointment and Conditions of Service) Rules2 ("Rules") against order dated 10-7-2009 passed by the Hon'ble Chief Justice of this Court (also referred to as the "Competent Authority" or "HCJ) under Rule 7 of the Rules and notified3 on the same day whereby nine, (9) officers of this Court were promoted to the post of Deputy Registrar (BS-19) from amongst the Private Secretaries, Readers and Assistant Registrars of this Court.
2. The main grievance of the appellant, who is a Reader of this Court, is that the impugned order of promotion passed by the Competent Authority does not furnish any reasons for promoting respondents Nos.2 to 4 (also Readers of this Court) and for superseding the appellant. He submits that his service record is at par with the respondent officers besides being senior to them (in the seniority list of the Readers) still he has not been promoted. He submitted that no "objective criteria" has been evolved for selection to the post of Deputy Registrar, therefore, the impugned order amounts to discrimination.
3. Learned counsel representing the Registrar of this Court, Hafiz Muhammad Sajjad, Assistant Registrar (Gazette-II) Lahore High Court and respondents Nos.2 to 4 appearing in person collectively made their submissions. They raised a preliminary objection at the outset that the instant appeal against order of promotion passed by the Competent Authority under Rule 7 of the Rules is not maintainable and placed reliance on an unreported judgment of the Division Bench of this Court dated 12-12-2001 passed in Service Appeal No.10 of 1999 which holds that appeal under Rule 24 is provided only against an order of seniority under Rule 20(c).
4. On merits, they submitted that respondents Nos.2 to 4 were preferred over the appellant because of their educational qualification. They referred to the decision of the Competent Authority dated 30-9-2008 whereby Masters or an LLB degree was set as qualification for the candidates to be considered for promotion to the post of Deputy Registrar (BS-19). They further submitted that, it is assumed, that the competent Authority, being the Chief Justice of this Court, must have carefully examined the service record and other antecedents of the candidates hence there is no requirement for the impugned order to carry reasons. It was also contended that under Rule 26 of the Rules, the Hon'ble Chief Justice has unlimited powers to appoint and promote any officer of this Court, therefore, the grievance of the appellant is unfounded.
5 Arguments heard. Rules and the original record maintained by the Assistant Registrar (Gazette-II) have been perused.
PRELIMINARY OBJECTION.
6. High Court Establishment (Appointment and Conditions of Service) Rules have been promulgated in exercise of powers conferred by Paragraph 6 of Part-II of the Third Schedule to the Constitution of the Islamic Republic of Pakistan, 1956 read with Article 227(5) of the said Constitution.4
RULE 24.
7. Under Ruler 24 an appeal is available against an order passed under Rules 20 and 23 of the said Rules before the Authorities indicated in Schedule-II of the said Rules (Schedule-II has been reproduced at the end of this judgment for ready reference). Rules 7 and 20 provide as under:---
Rule 7. "The Posts of, Deputy Registrar, Assistant Registrar and Private Secretary to the Chief Justice shall be filled by selection by the Chief Justice and that of the Personal Assistant to the Registrar by the Registrar ordinarily from the High Court establishment, provided that where the appointment is made from outside, the provisions of rule 6(i) shall apply."
Rule 20. "Subject to the provisions of rule 7, all matters relating to appointment, promotion and seniority shall be decided by the Registrar, if specially empowered; or in the absence of such powers by the Administrative Judge; provided that an appeal shall lie against;
(a) An order of substantive appointment, by promotion or otherwise to a permanent post or pensionable post the maximum pay of which is Rs.60 or more per mensem;
(b) An order of temporary appointment which is to last for more than three months in respect of a post, the maximum pay of which is Rs.60 or more per mensem, and
(e) An order fixing the seniority of any member of the establishment,
Such appeal shall lie to the authorities indicated in Schedule-II attached to these rules." (emphasis supplied)
8. Perusal of the above provisions, inter alia, show that appointment or promotion to the post of Deputy Registrar, Assistant Registrar and Private Secretary shall be through SELECTION by the Hon ble Chief Justice. It further shows that appeal will lie against an order of appointment, promotion or seniority before the appellate authorities mentioned in Schedule II. In case the order is passed by the HCJ the appellate authority is a bench of two judges of this Court. In other matters the appeal lies before the Administrative Judge or the Chief Justice. The unreported judgment cited by the learned counsel for the Registrar passed by the learned Division Bench of this Court dated 12-12-2001 passed in Service Appeal No.10 of 1999 proceeds on the assumption that appeal is available only against an order of seniority under Rule 20(c) and fails to consider that appeal is also available against orders of appointment, promotion and temporary appointment as provided under Rules 20(a) and (b). It appears that the Bench was not properly assisted and Rules 20(a) and (b) were not brought to their notice.
9. For the above reasons we are of the view that all the orders envisaged in sub-rules (a), (b) and (c) of Rule 20 are appealable before the appropriate appellate authority as provided in Schedule-II read with Rule 245 of the Rules. The preliminary objection raised by the respondents, therefore has no force and is hereby overruled.
ON MERITS.
10. Assistant Registrar (Gazette-II) of this Court submitted that in the year 1998 the matter regarding promotion to the post of Deputy Registrar was placed before the then Hon'ble Chief Justice (Mr. Justice Rashid Aziz Khan) who passed the following order:---
"Promotion to the post of Deputy Registrar shall be made in rotation from amongst the three feeding Cadres, namely, the Private Secretaries, Readers and Superintendents (now Assistant Registrars)."
11. Thereafter, the then Hon'ble Chief Justice vide order dated 30-9-2008 set qualifications for the officers to be considered for promotion to the post of Deputy Registrar in the following manner:---
"Master degree or equivalent in any subject from a recognized university or institution or LL.B."
Keeping in view the above decisions, the Private Secretaries, Readers and Assistant Registrars of this Court have been promoted to nine vacant posts of Deputy Registrar through impugned order on rotational basis. Respondents emphasized that only officers holding Masters or LLB degree could be considered for the post of Deputy Registrar; hence the appellant was rightly superseded.
12. The impugned order dated 10-7-2009 passed by the Hon'ble Chief Justice is as follows:---
Hon'ble Chief Justice 18. Taking into consideration the educational qualification and perusing the service record of the officers, following promotions are made to the posts of Deputy Registrars from the dates mentioned against each officer:--
1.
Pervaiz Khalid, Private Secretary
With immediate effect to make up the previous deficiency.
2.
Muhammad Sarwar, Private Secretary
With immediate effect
3.
Abdul Hafeez, Reader
With immediate effect
4.
Abid Hussain Bokhari, Assistant Registrar
With immediate effect
5.
Muhammad Asghar, Private Secretary
With immediate effect
6.
Iftikhar Ahmed Samdani, Reader
With immediate effect
7.
Sheikh Muhammad Nadeem, Assistant Registrar
With immediate effect
8.
Arshad Mahmood Baig, Private Secretary
With immediate effect
9.
Riaz Hussain Shahid, Reader
w.e.f. 1-8-2009.
(emphasis supplied) (KHAWAJA MUHAMMAD SHARIF) CHIEF JUSTICE 10-7-2009
The Notification issued in pursuance to the above order is as follows:---
LAHORE HIGH COURT, LAHORE NOTIFICATION No.10218/Gaz.1.V.Z.2(a) Dated Lahore the 10th July, 2009 The Hon'ble Chief Justice has been pleased to select and promote the following officers of this Court, as Deputy Registrar (BS-19), Lahore High Court, Lahore, in the public interest, with immediate effect:--- 1. Mr. Pervaiz Khalid, Private 2. Mr. Muhammad Sarwar, Private Secretary 3. Mr. Abdul Hafeez, Reader 4. Mr Abid Hussain Bokhari, Assistant Registrar 5. Mr. Muhammad Asghar, Private Secretary 6. Mr. Iftikhar Ahmad Samdani, Reader 7. Sheikh Muhammad Nadeem, Assistant Registrar. 8. Mr. Arshad Mahmood Baig, Private Secretary. 9. Mr. Riaz Hussain Shahid, Reader; (w.e.f. 1-8-2009). (emphasis supplied) (ABDUL SATTAR ASGHAR) DISTRICT AND SESSIONS JUDGE (ESTT.) FOR REGISTRAR
13. It needs to be seen whether the above orders have been passed after considering the educational qualification and service record of the officers. Summary of the service record of 14 Readers was placed before the Competent Authority for three posts of Deputy Registrar on rotational basis from amongst the Readers. Notification6 dated 6-11-1997 showing, inter se, seniority of the appellant and respondents 2 to 4 has been placed on the record as Mark "A" and is undisputed. The following extract shows the service record put up before the Competent Authority pertaining to the appellant and the Readers who were selected i.e. respondents 2 to 4. Further perusal of the record shows that the service record of the other Readers was also in the same format:---
Tanvir Ahmed Khan Appellant B.A.
Abdul Hafeez Respondent No.2 B.A., LL.B.
Iftikhar Ahmad Samdani Respondent No.3 B.A., LL.B.
Riaz Hussain Shahid Respondent No.4 B.A.
He joined as junior clerk on 26-7-1980 He was appointed as Assistant during the year 1986. He was appointed as Reader in the year 19977 He is being considered for promotion of Deputy Registrar for first time. Presently, no departmental inquiry/proceedings are pending against him.
He joined in this Court as Stenographer in the year 1994. He was appointed as Reader on 6-11-1997. He is being considered for promotion of Deputy Registrar for first time. Presently, no departmental inquiry/proceedings are pending against him.
He started his career as junior clerk in 1979 and promoted as Senior Clerk in the year 1982. He was recruited as Reader in 1997. He is being considered for promotion of Deputy Registrar for first time. At present, no departmental enquiry is pending against him
He started his career as junior clerk (w.e.f. 28-10-1979) 8. He was selected as Junior Translator and then promoted as Senior Translator in 1997 He was recruited as Reader in 1997 He is being considered for promotion of Deputy Registrar for first time. At preset no departmental enquiry is pending against him
From the above information it is noticed that the selection was based on the following factors:---
(i) Educational qualifications;
(ii) A brief service record of the officers, establishing their inter se seniority;
(iii) That the officers were being considered for the post for the first time;
(iv) That no departmental proceedings were pending against the said officers.
14. The above record establishes that respondent No.4 and the appellant have the same educational qualification i.e., B.A. Additionally, the appellant is senior to respondents No.2 to 4. The impugned order reproduced above, fails to furnish reasons why the appellant (who was senior to respondent No.4) stood superseded in the above facts and circumstances of the case when the record and educational qualification of the appellant and respondent No.4 were at par. It is also not clear why respondent No 4 was selected for promotion when four other Readers9 in the pool (two of them senior to respondent No.4) holding higher educational qualification i.e., an LLB degree were ignored.
RULE. 7:-
15. Under Rule 7 of the Rules, the post of Deputy Registrar is to be filled by Selection by the Hon'ble Chief Justice. It settled legal position10 that selection post is to be filled purely on merit11 by carefully evaluating the suitability of the officer for the post, while non-selection post is to be filled on the basis of seniority-cum-fitness. In a selection post, suitability of the officer is not to be simply gauged on the basis of seniority or eligibility but requires a deeper subjective assessment of the meritoriousness of a candidate. To evaluate MERIT, the ability and achievement demonstrated by the officer in the post held by him…
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