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Official Citation: 2024 IHC 192017
Court / Jurisdiction: Islamabad High Court
Parties: Amir Mujahid Khan vs FOP etc.
Ruling Summary: This decision was rendered by the Islamabad High Court, officially reported as 2024 IHC 192017. In this matter between Amir Mujahid Khan 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: 18-NOV-2024 CASE NO: Writ Petition-3695-2023 CITATION: 2024 IHC 192017 PARTIES: Amir Mujahid Khan VS FOP etc. LAW / SECTION: - SUBJECT: Service, Promotion REMARKS: A Deputy Director General of IB files this writ against his deferment by CSB. Seeks his promotion. Also challenges the promotion of two DDGs as Joint DGs. ============================================================ JUDGMENT SHEET IN THE ISLAMABAD HIGH COURT, ISLAMABAD JUDICIAL DEPARTMENT
W.P. No.3695 of 2023 W.P. No.3364 of 2013 Amir Mujahid Khan Versus Federation of Pakistan and others Akhtar Hussain Shah Versus Oil and Gas Development Company Limited and another
Date of Hearing: 13.11.2024. Petitioner by: Ms. Nazish Muzaffar, Advocate along with the petitioner. Respondents by: Mr. Arshid Mehmood Kiani , learned Deputy Attorney-General. Mr. Abdul Rehman Khan , Advocate for respondents No.4 and 5. Mr. Waqas Haral, Section Officer (Litigation), Establishment Division. Mr. Shahzad Saleem, ASI, Intelligence Bureau. _____________________________________________________________________
MIANGUL HASSAN AURANGZEB, J :- Through the instant writ petition the petitioner, Amir Mujahid Khan , seeks a direction to the respondents to promote him against one of the two vacant posts of Joint Director General (BPS -21) in the Intelligence B ureau ( “IB”) with effect from the date when meetings of the Centra l Selection Board ( “CSB”) were held from 01.08.2023 to 04.08.2023 during which the petitioner was considered for promotion but was recommended to be deferred. 2. Learned counsel for the petitioner submitted that the petitioner had been denied promotion on whimsical grounds; that one of the grounds stated in the letter dated 07.09.2023 from the IB for not promoting the petitioner was that he had a “mixed reputation;” that the term “mixed reputation” has not been defined in the Civil Servants Act, 1973 or th e Rules made thereunder; that the grounds on which the CSB recommended the petitioner’s deferment are not sustainable in the law; that the petitioner has had an unblemished service record ; that the petitioner is the victim of structured engineer ing by resp ondent No.3 who was the representative of the IB on the CSB; that in the process of 2 W.P. No.3695/2023
promotion, less meritorious officers have been promoted; that the CSB did not take into consideration the fact that for gallantry , the petitioner had been awarded Tamgha-i-Shujaat; that the petitioner’s Performance Evaluation R eport (“PER”) for the period between 16.09.2022 and 31.12.2022 was deliberately withheld; that one day before the meetings of the CSB, the petitioner was informed that his complete record had been sent to the Establishment Division but that was not so; and that the petitioner had made serious allegations against respondent No.3 , who took decisions which operated to the petitioner’s detriment in the proceedings before the CSB. 3. Learned counsel for the petitioner further submitted that with the imposition of the major penalty of compulsory retirement on the petitioner, the instant petition is not rendered infructuous inasmuch as if this Court refers the petitioner’s case for proforma promotion to the CSB , he has a chance of getting better pensionary benefits. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. 4. On the other hand, learned Deputy A ttorney-General submitted that vide notifica tion dated 08.10.2024 issued by the IB, major penalty of compulsory retirement has been imposed on the petitioner; that although the petitioner had preferred an appeal against the imposition of the said penalty but the same has not been decided as yet; tha t since presently the petitioner is no longer in service, the instant writ petition merit s dismissal on this ground alone; that since the petitioner is no longer a civil servant, his case for promotion cannot be placed before the CSB; and that even otherwise the grounds on which the petitioner’s promotion was deferred are adequate and sustainable in law. Learned Deputy Attorney-General prayed for the writ petition to be dismissed. 5. I have heard the contentions of the learned counsel for the petitioner an d the learned Deputy Attorney -General and have perused the record with their able assistance. 6. Indeed, vide notification dated 08.10.2024 issued by the IB Division, major penalty of compulsory retirement has been imposed 3 W.P. No.3695/2023
on the petitioner. It has been c onfirmed by the representative of the said Division that the petitioner has already preferred an appeal against the said penalty and the matter is pending before the appellate authority. 7. The question that now needs to be det ermined is whether this Court can refer the petit ioner’s case for promotion to the CSB even though he is no longer a civil servant. Vide Office Memorandum (“OM”) dated 30.08.2022 issued by the Finance Division, the FR - 17(1) Committee was dissolved. Earlier, on 20.05.2022 the Finance Division had issued an OM containing the instructions of the Prime Minister to the effect that the FR -17(1) Revised Guidelines , 2015 shall stand redundant / withdrawn with effect from 20.05.2022. Paragraph 5 of the said OM provides inter alia that on specific Court orders, the cases of retired civil servants can be placed before the relevant forum, Selection Board / Promotion Committee for consideration strictly in accordance with the relevant rules / law. I n my view such orders can be passed by the Court o nly if it comes to the conclusion that prior to his retirement a civil servant was wrongfully prevented from being considered for promotion or that the decision of the CSB / Departmental Promotion Board either to defer or supersede such civil servant is wh olly unlawful, irrational or perverse. 8. In the case at hand, the petitioner was considered for promotion to BS -21 by the CSB in its meetings held between 01.08.2023 and 04.08.2023. Therefore, it cannot be said that he was wrongfully prevented from being considered for promotion. In deciding to defer the petitioner’s promotion, the CSB has recorded the following reasons:- “i. During 04 years service in BS -20, his maximum tenure of posting in any assignment is less than 08 months except the last assignment as DDG (C I) where his tenure is around 11 months. ii. After his promotion to BS -20, he was assigned to work as head of CR HQ, Islamabad on 09.08.2019 which is considered as Bureau’s elite unit but the officer had to be removed on 24.02.2020 i.e. just afte r 06 months due to unsatisfactory performance. 4 W.P. No.3695/2023
iii. The officer was again given an independent assignment as head of Northern Region HQ, Rawalpindi in February 2020 where he served for around 05 months (28.02.2020 to 05.08.2020) only. iv. Subsequently he was posted as head of CTIT setup, PPHQ, Lahore on 19.08.2020. This has been one of the high performing setups of the Bureau. Instead of going with momentum of tremendous achievements and improving it, he simply clogged and destroyed the system. He had to b e posted out on 04.11.2020 i.e. within 03 months and posted elsewhere. He was given 02 other assignments i.e. CI and Security sections in PPHQ during the period from 04.11.2020 to 12.03.2021 in quick successions but had to be removed from there as well. v. After getting disappointed over his successive failures, he was posted back to IB HQ on 12.03.2021 but was made OSD/closed to Admn without any assignment, However, PERs given by the same DG IB do not commensurate with his performance during the said periods. vi. After change of command, he was given posting on 16.09.2022 with the hope that he will perform better. During the period, besides failures on professional front, his integrity also came under question when he furnished false information in his Par t-I & II of the PER (Sep - December 2022) ostensibly to circumvent initiation of his PER. vii. On 21.03.2023, the officer was accordingly advised in writing to improve upon his conduct and professional integrity and desist from indulging in unnecessary correspondence to avoid wastage of precious time and resources of the organization. viii. On 17.08.2023, JDG (CI) being dissatisfied with his performance issued him a Letter of Advice conveying therein to take due interest in official work. ix. Moreover, on the observation of Establishment Division, he was issued Letter of Advice by DG IB on 30.08.2023 for directly approaching the Establishment Division on matters related to CSB and persistent practice of flouting office discipline.”
9. It is not for this Court , while exercising Constitutional jurisdiction, to substitute its views about the fitness of a civil servant for promotion with those of the CSB which were recorded on the basis of the collective wisdom of the members of the CSB. The mere fact that the pet itioner may have been given a performance evaluation which operated to his detriment cannot be overturned in collateral proceedings in which the Court is to judicially review the decision making process by the CSB leading to his deferment. Against such a PER, the petitioner has got 5 W.P. No.3695/2023
other remedies available to him under the law. Since I have not been given any reason to hold that the decision making process by the CSB leading to the petitioner’s deferment suffers from any invalidity, irrationality or procedu ral impropriety, and since I cannot substitute my views about the petitioner for those recorded by the CSB for not recommending him for promotion, I do not find any merit in the instant petition, which is accordingly dismissed. There shall be no order as to costs.
(MIANGUL HASSAN AURANGZEB) JUDGE
ANNOUNCED IN AN OPEN COURT ON 18.11.2024.
(JUDGE)
Ahtesham*