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Official Citation: 2024 IHC 195926
Court / Jurisdiction: Islamabad High Court
Parties: Dr. Muhammad Hamid Ali vs FOP etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 195926. In this matter between Dr. Muhammad Hamid Ali and FOP etc., the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
COURT: Islamabad High Court (Honourable Mr. Justice Miangul Hassan Aurangzeb) AUTHOR JUDGE: Honourable Mr. Justice Miangul Hassan Aurangzeb DECISION DATE: 16-DEC-2024 CASE NO: Writ Petition-2872-2023 CITATION: 2024 IHC 195926 PARTIES: Dr. Muhammad Hamid Ali VS FOP etc. LAW / SECTION: - SUBJECT: Service, Appointment REMARKS: Petitioner applied for the post of Trade and Investment Officer at Pakistan Trade Missions abroad. He qualified written test and was called for interview. Despite being called for an interview, alleges that his interview has not been taken. ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT W.P.No.2872 of 2023 W.P. No.3364 of 2013 Dr. Muhammad Hamid Ali Versus Federation of Pakistan and others Akhtar Hussain Shah Versus Oil and Gas Development Company Limited and another
Date of Hearing: 04.12.2024 Petitioner by: M/s Afnan Karim Kundi and Muhammad Bin Abdullah , Advocates , along with petitioner in-person. Respondents by: Mr. Abdul Khaliq Thind, learned Deputy Attorney-General. Mr. Rizwan Sh abbir Kayani, Advocate for respondents No.4 and 5. Mr. Azmat Bashir Tarar, learned Assistant Attorney-General. M/s Muhammad Ashraf, Deputy Secretary and Pir Jameel Hussain, Section Officer, Ministry of Commerce. Raja Saim ul Haq Satti, Legal Advisor and Mr. Aijaz Rasool, Section Officer , Establishment Division _____________________________________________________________________________
MIANGUL HASSAN AURANGZEB, J :- Through the instant writ petition the petitioner, Dr. Muhammad Hamid Ali , who is a BS -20 officer from the Trade and Commerce Group, has questioned the legality of the process adopted by the Ministry of Commerce, Government of Pakistan for the selection of Trade and Investment Officers (“TIOs”) for posting at Pakistan‟s Trade Missions abroad. 2. In July 2023, the Ministry of Commerce published an advertisement inviting applications from inter alia government officers serving in BS -18 to BS -20 fulfilling the requisite eligibility criteria for selection as TIOs in Pakistan‟s Trade Missions Abroad. The written test was to be conducted by the Lahore University of Management Sciences, and the interviews of the successful candidates were to be conducted by a seven -member Interview Board which included the Secretary, Ministry of Commerce . The selection process of the TIOs was to be in accordance with the Policy Guidelines for Selection, Appointment and Posting of Trade and Investment Officers (BS -18 to BS-20) in Pakistan‟s Trade Missions Abroad (“Policy Guidelines” ) contained in the Office Memorandum (“OM”) dated 03.07.2023 issued by the Ministry of Commerce. 2 W.P.No.2872/2023
3. As per the Policy Guidelines, officers who did not have complete Performance Evaluation Reports ( “PERs”) for the past five years at the time of the interviews with minimum average of „very go od‟ or total of 45 out of 50 marks in the PERs were ineligible for appointment as TIOs. As per the promotion policy issued by the Establishment Secretary on 15.05.1985 (Serial No.154, Chapter II of E sta Code), the overall grading in PERs are allocated the following marks:-
4. In response to the said advertisement, the petitioner participated in the competitive process and pass ed the written test conducted on 06.08.2023 by securing 64.5 marks . Thereafter, vide email dated 12.09.2023, the petitioner was called to appear in an interview scheduled to be held on 21.09.2023 at 11:00 am. The petitioner asserts that he was at the desig nated venue for the interview on the said date but was not interviewed, and that no reason was given for not interviewing him. 5. The Ministry of Commerce had prepared p roformas containing information about officers applying for appointment as TIOs. The proforma prepared with respect to the petitioner shows that for the period between 13.07.2022 and 31.12.2022, his PER w as “awaited.” The petitioner, on 24.08.2023, submitted his PER form for the said period to the Secretary, Ministry of Commerce, who gave t he petitioner an overall grading of „good.‟ This PER, as per the Ministry of Commerce, did not pose as an impediment in the petitioner‟s consideration for appointment as TIO. 6. As per the said proforma, for the period between 04.05.2020 and 05.08.2020 when the petitioner served as Director General, Trade Development Authority of Pakistan ( “TDAP”), he was given 10 marks , which is commensurate with an „outstanding‟ PER. 7. Aggrieved by the decision of the Ministry of Commerce not to interview him, the pet itioner filed the instant writ petition on 22.09.2023. Sr.# Overall Grading Marks (i) Outstanding 10 (ii) Very Good 8 (iii) Good 7 (iv) Average 5 (v) Below Average 1 (vi) Poor 0 3 W.P.No.2872/2023
After this Court issued notices to the respondents on 25.09.2023, the Section Officer of the Ministry of Commerce appeared before this Court on 27.09.2023 and took the position that the reason for not interviewing the petitioner was that he had not fulfilled the eligibility criteria set out in paragraph 1(d) of annex -A to the Policy Guidelines , which required a candidate to have a minimum average of „very good‟ PERs in the last five years. The said Ministry‟s view was that the petitioner could not have been given 10 marks for his PER for the period between 04.05.2020 and 05.08.2020 (94 days) as the reporting officer for the period between 18.06.2020 and 05.08.2020 (52 days) could not have recorded his PER for the period between 04.05.2020 and 16.06.2020 (42 days) when he was not the petitioner‟s reporting officer. 8. On 27.09.2023, this Court directed the Secretary, Ministry of Commerce to afford an opportunity of a hearing to the petitioner and decide h is grievances through a reasoned order. It was not until 04.12.2023 that the Joint Secretary (Human Re source Management), Ministry of Commerce brought on record the order dated 06.11.2023 passed by the Secretary, Ministry of Commerce. 9. Between 25.09.202 3 and 06.11.2023 , much correspondence took place between the Ministry of Commerce and the Establishment Division over the subject of whether the petitioner‟s PER recorded on 16.02.2021 for the period between 04.05.2020 and 05.08.2020 was valid. The Establishment Division‟s OM dated 09.10.2023 shows that the claim regarding the validity of the petitioner‟s PER for the period between 04.05.2020 and 05.08.2020 was valid in terms of paragraph 2.44 of the Guide to Performance Evaluation ( “PER Guide”). Furthermor e, the Establishment Division , in its OM dated 24.10.2023 , opined that the petitioner‟s PER having been countersigned by the countersigning officer on 16.02.2021 was sufficient documentary evidence that he had accepted the PER which was initiated by the pe titioner‟s reporting officer for the period between 18.06.2020 and 05.08.2020. After getting two views set out in the aforementioned Office Memoranda of the Establishment Division which were not to the liking of the Ministry of Commerce, further correspondence took place which culminated in the Establishment Division‟s OM dated 03.11.2023 , the contents whereof were in conformity 4 W.P.No.2872/2023
with the views of the said Ministry. The operative portion of the said OM is reproduced herein below:- “i. The period mentioned in the PER of Dr. Muhammad Hamid Ali (BS - 20/CTG) is 04.05.2020 to 05.08.2020. Whereas, the actual period of Reporting Officer (R.O) was from 17.06.2020 to 5.8.2020 (52 days). Further, at the time of initiating of PER, the Calendar year 2020 was not complete. Therefore, the period in which the said PER has been initiated is factually incorrect which makes the comments of RO & CO irrelevant. Ministry of Commerce may take action in the light of Para-2.32 of AGPE-2004. ii. In order to invoke Para -2.44 of AGPE -2004, the procedure needs to be followed mentioned therein i.e. the countersigning officer may obtain separate reports from each of the reporting officers with whom the officer concerned has worked during the year. After examining their reports, he may exerci se his discretion to decide which of those reports should be accepted. Alternatively, he may himself write the report after examining the reports of the reporting officers with whom the officer concerned worked during the year.”
10. On 27.12.2023, this Court passed the following order:- “This case was heard at length. The only impediment before the petitioner to be eligible for consideration for appointment as Trade Officer in Pakistan‟s Diplomatic Missions Abroad is the non -fulfillment of the criteria set out in paragraph -1(d) of the Polic y Guidelines for Selection, Appointment and Posting of Trade and Investment Officers (BS -18 to BS21) in Pakistan‟s Trade Missions Abroad issued by the Ministry of Commerce through office memorandum dated 03.07.2023, whic h requires an officer to have complete Performance Evaluation Reports (“PERs”) for the last five years, and furthermore, requires the minimum average of “very good” ACRs. The petitioner served as Director General, Trade Development Authority of Pakistan du ring the year, 2020. For the period commencing from 04.05.2020 to 16.06.2020, his Reporting Officer was different from the one for the period between 17.06.2020 to 05.08.2020. The petitioner‟s Reporting Officer for the period between 17.06.2020 to 05.08.20 20 recorded the petitioner‟s PERs and so did the Countersigning Officer. However, since the petitioner‟s Reporting Officer for the period between 04.05.2020 to 16.06.2020 had been transferred, his PERs recorded by the Reporting Officer were not available. It is the non -availability of the petitioner‟s PERs recorded by the Reporting Officer for the said period, which is causing the impediment for his consideration for appointment as Trade Officer in Pakistan‟s Diplomatic Missions Abroad. Mr. Kashif Manzoor M alik, Joint Secretary, Ministry of Commerce is in attendance and submits that during the period between 04.05.2020 to 16.06.2020 the present worthy Secretary, Ministry of Commerce was the petitioner‟s Reporting Officer, he can record the petitioner‟s PERs for the said period i.e. 04.05.2020 to 16.06.2020. Let the Worthy Secretary, Ministry of Commerce record the petitioner‟s PERs for the said period and thereafter immediately send the same to the Countersigning Officer. Let a report in this regard be submit ted to the Court on the next date of hearing.”
5 W.P.No.2872/2023
11. On 10.11.2024, the Joint Secretary (Human Resource Management), Ministry of Commerce brought on record a report according to which the Secretary, Ministry of Commerce, in his capacity as the petitioner‟s reporting officer for the period between 04.05.2020 and 16.06.2020, had given the petitioner an overall grading of „average‟ in his PER for the said period. The countersigning officer had agreed with the reporting officer. As a result of this, the 10 marks earlier given to the petitioner stood reduced to 5 causing him to be ineligible for appointment as TIO. This Court directed the Ministry of Commerce to produce the petitioner‟s PER for the period between 04.05.2020 and 16.06.2020 recorded by the Secretary, Ministry of Commerce. On 26.02.2024, the petitioner‟s PERs for the said period also counter-signed by the countersigning officer was shown to this Court as well as the learned counsel for the petitioner. 12. On coming to know about this PER, which also contained adverse remarks about the petitioner, he, on 16.01.2024, filed a review application seeking recall of the order dated 27.12.2023 referred to herein above. 13. Learned counsel for the petitioner, after narrating the facts leading to the filing o f the instant petition, submitted that the petitioner had two different reporting officers for t he period between 04.05.2020 and 05.08.2020 (94 days ); that the first reporting officer was for the period between 04.05.2020 and 16.06.2020 (42 days), and the second reporting officer was for the period between 18.06.2020 and 05.08.2020 (52 days); that the reporting officer for the period between 18.06.2020 and 05.08.2020 filled the petitioner‟s PER form for the entire period between 04.05.2020 and 05.08.2020 (94 days), and this is something for which the petitioner cannot be blamed ; that since the countersigning officer had countersigned the petitioner‟s PER for the entire period of 94 days, the same could not be re-opened as there is sanctity attached to a PER once it is recorded; that recalling of PERs cannot be undertaken in collateral proceedings such as the process for selection of TIOs; that no other candidate has been subjected to such thorough scrutiny of his PERs; that the present Secretary, Ministry of Commerce remained silent for three years until he became the petitioner‟s cadre administrator and in collateral proceedings for the selection of TIOs, he, as one of the members of the Interview Board, raised the issue regarding the 6 W.P.No.2872/2023
petitioner‟s PER for the period between 04.05.2020 and 16.06.2020 on the basis of his personal knowledge; that respondent No.5, who was the petitioner‟s countersigning officer, had used derogatory language against the petitioner in the written comments; that the said countersigning officer had taken a volte-face by giving the petitioner an „outstanding‟ grading on 16.02.2021 and subsequently on 08.01.2024 downgrad ed it to „average‟ for the very same period; that in the earlier PER dated 16.02.2021 for the period between 04.05.2020 and 05.08.2020, the countersigning officer had written that he knew the petitioner fairly well and agreed with the reporting officer to give the petitioner an overall grading of „outstanding; ‟ that in the subsequent PER dated 08.01.2024 for the very same period, the same countersigning officer wrote that he knew the petitioner very little and agreed with the reporting officer by giving him an overall grading of „average;‟ and that the petitioner has been dealt with unfairly which needs to be remedied in th e Constitutional jurisdiction of this Co urt. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. 14. On the other hand, learned counsel for Mr. Muhammad Sualeh Faruqui (respondent No.4 ) and Mr. Arif Ahmed Khan (respondent No. 5) who were impleaded as respondents vide this Court‟s order dated 26.02.2024, submitted that as per the p roforma with respect to the petitioner prepared by the Ministry of Commerce during the selection process, the petit ioner‟s PER for the period between 13.07.2022 and 31.12.2022 w as „awaited‟; that when the proforma was prepared the petitioner had not even initiated the PER for the said period; that on 24.08.2023, the petitioner submitted his PER form for the said period to the Secretary, Ministry of Commerce, who gave him an overall grading of „good;‟ that the said „awaited‟ PER did not pose as an impediment before the petitioner in his consideration for appointment as TIO; that in terms of paragraph 6.7(2) of the PER Guide, the officer being reported upon is to fill in the name / designation of the reporting and countersigning officers and dispatch a certificate to the officer in -charge entrusted with the maintenance of the evaluation records on the same date the PER is forwarded to the reporting officers; that the petitioner, while initiating his PER for the entire period between 04.05.2020 and 05.08.2020 , did not 7 W.P.No.2872/2023
disclose to the countersigning officer that Mr. Riaz Ahmad Sheikh had remained the petitioner‟s reporting of ficer only for the period between 18.06.2020 and 05.08.2020 (52 days); that Mr. Riaz Ahmad Sheikh was the petitioner‟s batch mate and could not have evaluated the petitioner for the period between 04.05.2020 and 1 6.06.2020 (42 days) when he was not the petitioner‟s reporting officer; that in terms of paragraph 2.45 of the PER Guide, the petitioner‟s PER for the period between 04.05.2020 and 05.08.2020 issued on 16.02.2021 was irregular, and therefore the petitioner could not have been given the benefit of t he overall grading of „outstanding‟ in the said PER; that it is during the selection process for the appointment of TIOs that the Ministry of Commerce gained knowledge of such irregularity; that the petitioner‟s reporting officer for the period between 18.06.2020 and 05.08.2020 was Secretary, T DAP, who is now the Secretary, Ministry of Commerce , and was a member of the Interview Board constituted in terms of the Policy Guidelines; that in pursuance of the order dated 27.12.2023 passed by this Court, the pet itioner‟s countersigning officer for the period between 04.05.2020 and 16.06.2020 issued the petitioner‟s PER and gave him an overall grading of „average;‟ that the petitioner‟s evaluation carried out by the countersigning officer occurred after taking int o consideration the petitioner‟s evaluation carried out by the two reporting officers during the period between 04.05.2020 and 05.08.2020; and that since the petitioner was not able to satisfy the requisite eligibility criteria of having minimum average of „very good‟ PER for the last five years, he could not be selected and posted as TIO. Learned counsel for respondents No.4 and 5 prayed for the writ petition to be dismissed. 15. The learned Additional Attorney-General and the learned counsel for the Establishment Division adopted the arguments of the learned counsel for respondents No.4 and 5. 16. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the f iling of the instant writ petition have been set out in sufficient detail in paragraphs 2 to 12 above and need not be recapitulated. 8 W.P.No.2872/2023
17. In order for an officer to be eligible to participate in the competitive process for appointment as TIO, paragraph 1(d) of Annex-A to the Policy Guidelines require s the officer to have complete PERs for the last five years with a minimum average of „very good. ‟ After the petitioner competed in the selection process and gained 64.5 % marks in the written test, he was informed vide email dated 12.09.2023 that he had to appear for an interview on 21.09.2023. In the writ petition, the petitioner has pleaded inter alia that on 21.09.2023, he was not interviewed. The Ministry of Commerce justifies this by asserting that the petit ioner was ineligible to participate in the competitive process in terms of paragraph 1(d) ibid. 18. After this Court vide order dated 27.09.2023 required the Secretary, Ministry of Commerce to afford an oppo rtunity of a hearing to the petitioner, the Secr etary did so and thereafter passed order dated 06.11.2023 holding that the petitioner was not eligible for appointment as TIO on the gro und that his PER for the year 2020 was irregular. This conclusion was drawn on the strength of paragraph 2.32 of the PER Guide which in essence provides that keeping of record of the PERs for periods less than three months was irregular and that such PERs should be removed and destroyed. For the purposes of clarity, the said paragraph is reproduced herein below:- “The writi ng and keeping on record of reports for periods of less than three months was irregular according to the relevant instructions on the subject. In order to bring about uniformity in practice for those already written and for future it has been decided that all such reports which have found their way in the character roll dossiers of the officers should be removed from the character roll dossiers and destroyed. A note at the appropriate place in the dossier should be kept stating that the Evaluation report fo r the period, such and such, which was for less than three months and earlier included in the character roll at page (such and such) has been removed in accordance with the relevant instructions. This would avoid the necessity of renumbering the pages and eliminate the risk of removal of other reports.”
19. The Ministry of Commerce takes the position that Mr. Riaz Ahmad Shaikh who had served as Secretary , Trade and Development Authority of Pakistan (“TDAP”), had remained the petitioner‟s reporting officer only for the period of 52 days (i.e. between 18.06.2020 to 05.08.2020) and could not have given him a PER for the period between 04.05.2020 and 16.06.2020 (42 days) when he was not his reporting officer . Mr. Riaz Ahmad Shaikh had given the petitioner a PER for the period of 94 days (i.e. 9 W.P.No.2872/2023
between 04.05.2020 and 05.08.2020). The petitioner‟s reporting officer for the period between 04.05.2020 and 1 6.06.2020 (42 days) was Mr. Sualeh Ahmad Faruqui, who during 2020 served as Secretary, TDAP and is now the Secre tary, Ministry of Commerce. He had not given the petitioner a PER for the period between 04.05.2020 and 1 6.06.2020 (42 days) before the petitioner applied for appointment as TIO. 20. Since Mr. Riaz Ahmad S haikh had remained the petitioner‟s reporting officer for a period of less than three months, the PER given by him to the petitioner, even though it was endorsed by the countersigning officer, was irregular and liable to be removed from the character roll dossiers and destroyed in term s of paragraph 2.32 of the PER Guide. It would have been a different matter had the petitioner‟s reporting officer for the period between 04.05.2020 and 1 6.06.2020 had also given him a PER as in such an eventuality, the petitioner‟s PERs for the period of 42 days (i.e. betwee n 04.05.2020 and 1 6.06.2020) and 52 days (i.e. between 18.06.2020 and 05.08.2020) would have been sent to the countersigning officer who, in terms of paragraph 2.44 of the PER Guide would have had to exercise his discretion to decide which of the two repor ts he was to accept. For the purposes of clarity, paragraph 2.44 ibid is reproduced herein below:- “Officer who has worked for less than three months with a Reporting Officer – The question of recording of Evaluation reports in respect of officer who may n ot have worked with a reporting officer for a minimum period of three months during a year has been considered. It has been decided that in such cases the countersigning officer may obtain separate reports from each of the reporting officers with whom the officer concerned has worked during the year. After examining their reports he may exercise his discretion to decide which of those reports should be accepted. Alternatively, he may himself write the report after examining the reports of the reporting offi cers with whom the officer concerned worked during the year.”
21. Realizing that Mr. Riaz Ahmad Shaikh could not have given the petitioner a PER for the period of 52 days when he had not remained his reporting officer, and since the petitioner‟s reporting officer for the period between 04.05.2020 and 16.06.2020 ( 42 days ) was presently serving as the Secretary, Ministry of Commerce, this Court , in good earnest with the purpose of rectifying the deficiency in the petitioner‟s PER for the period between 04.05 .2020 and 16.06.2020 (42 days) , vide order dated 10 W.P.No.2872/2023
27.12.2023 required the Secretary, Ministry of Commerce to record the petitioner‟s PER for the said period of 42 days. 22. The petitioner was most uneasy with the said order dated 27.12.2023 and after his P ER for the period between 04.05.2020 and 16.06.2020 was recorded on 08.01.2024 by the reporting and the countersigning officer s, he filed review application (R.A.No.02/2024) seeking recall of this Court‟s said order. 23. As mentioned above, the Secretary, Ministry of Commerce was one of the seven officers on the Interview Board for the selection of TIOs. He had remained the Secretary, TDAP in the year 2020 and in that capacity he was the petitioner‟s reporting officer for 42 days between 04.05.2020 and 16.06.2020 and would have remembered that…
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