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Petitioner: AFZAL MUHAMMAD FAROOQ VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, CABINET SECRETARIAT, ISLAMABAD
1998 P L C (C
1998 P L C (C.S.) 1175
[Karachi High Court]
Before Wajihuddin Ahmed, C.J. and Raja Qureshi, J
Syed AFZAL MUHAMMAD FAROOQ
versus
SECRETARY, ESTABLISHMENT DIVISION, GOVERNMENT OF PAKISTAN, CABINET SECRETARIAT, ISLAMABAD and 2 others
Constitutional Petition No. 1643 of 1996, decided on 17th April, 1998.
(a) Constitution of Pakistan (1973)--
----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S. 4-- Constitutional petition---Maintainability---Jurisdiction of High Court in service matters, though was excluded under Art. 212 of Constitution of Pakistan (1973) and S. 4 of Service Tribunals Act, 1973, but was excluded only in respect of the cases in which Service Tribunal under subsection (1) of S.4 had the jurisdiction---Where the Service Tribunal did not have jurisdiction to adjudicate upon a particular type of grievance, jurisdiction of High Court would remain intact---Want of jurisdiction of any Tribunal would attract jurisdiction of High Court under Art. 199 of Constitution of Pakistan (1973)---High Court could exercise its jurisdiction under Art. 199 of Constitution of Pakistan (1973) in respect of matters in which no appeal lay to a Tribunal against an order or decision of a Departmental Authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade---Constitutional petition filed by petitioner/civil servant was maintainable despite bar of Art. 212 of Constitution of Pakistan (1973), which was not absolute and provisions of SA(1)(b) of Service Tribunals Act, 1973 were attracted.
Aish Muhammad v. Government of Pakistan 1985 SCMR 774; Accountant-General, Balochistan v. Abdul Majeed 1990 SCMR 790; Government of N.-W.F.P. Health Social Welfare v. Dr. Sh. Muzaffar Iqbal 1990 SCMR 1321; Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui 1991 SCMR 1129; S.T. Rehman v. Government of Pakistan 1998 SCMR 103; M. Ilyas v. Secretary to Government of Punjab 1998 PLC (C.S.) 36; Javid Iqbal v. Secretary (Establishment Division) 1998 PLC (C.S.) 42; Shaheen Akhtar v. Government of Punjab 1998 PLC (C.S.) 70; Islamic Republic of Pakistan v. Dr. Safdar Mahmood PLD 1983 SC 100; M. Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Mujeebullah Aiiaz v. Director-General, Telephones and Telegraphs PLD 1980 Quetta 68 and LA, Sherwani v. Government of Pakistan 1991 SCMR 1041 ref.
(b) Service Tribunals Act (LXX of 1973)---
----S. 4---Civil Servants Act (LXXI of 1973), S. 22---Promotion-- Entitlement---Civil servant and opposing civil servant both were found eligible to be considered for promotion---Opposing civil servant was considered alongwith civil servant and was declared fit for promotion despite opposing civil servant lacking training of N.I.P.A. which was mandatory requirement for promotion---Two marks for serving in Pakistan Air Force Academy which were to be included in qualification of civil servant, were not included in his A.C.R. whereas such marks were included in A.C.R. of opposing civil servant---Wrong formula for qualification of eligibility threshold had been adopted by Authority mala fidely in respect of civil servant---Notification of promotion of opposing civil servant was declared illegal, unlawful and of no legal consequence in circumstances and Authorities were directed to consider question of fitness of civil servant and opposing civil servant afresh within specified period.
(c) Constitution of Pakistan (1973)---
----Art. 199---Service Tribunals Act (LXX of 1973), S. 4---"Eligibility" and "fitness" for promotion---Distinction---Determination---Question of eligibility for promotion being related to terms and conditions of service, Tribunal would have jurisdiction to determine same, whereas question of fitness for promotion had been considered to be a subjective evaluation on the basis of objective criterion where substitution for opinion of Competent Authority was not possible by that of a Tribunal or of a Court---Tribunal had no jurisdiction on the question of fitness, but Tribunal had jurisdiction to go into question of eligibility being a term of service---Right to be considered for promotion where person was eligible for promotion, was a vested right, but if eligible person was not considered for promotion and person otherwise not qualified was promoted illegally or against rules, aggrieved person could enforce his right to be considered for promotion or object to person not qualified for promotion, being promoted, by invoking Constitutional jurisdiction, since such an issue would not fall within purview of Service Tribunal.
Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539; Muttaqi Hussain Rizvi v. Province of Sindh PLD 1978 Kar. 703 and Abdul Bari v. Government of Pakistan PLD 1981 Kar. 290 ref.
S.M. Ismail Shah for Appellant. Syed Tariq Ali for Respondents Nos. l and 2 Niaz Ahmed Khan for Respondent No.3.
Date of hearing: 31st March; 1998.
JUDGMENT
RAJA QURESHI, J. ---Constitutional jurisdiction has been invoked by the petitioner under Article 199 of the Constitution seeking the following reliefs:--
"(a) The petitioner may be saved from injustices, humiliation and financial losses to the tune of Rs.5,60,000.
(b) The notification No.M-1 (49)/95 dated 14-7-1996 may be declared illegal, void and be ordered to be cancelled.
(c) The petitioner be restored forthwith to the post of Director-General on which he was working prior to 14-7-1996.
(d) The respondents Nos. l and 2 may be directed to regularize the petitioner as Director-General, Pakistan Meteorological Department with effect from 14-1-1996."
In order to secure the aforementioned relief, it has been contended by the petitioner before us that he has been working in Pakistan Meteorological Department for the last 38 years, and during the course of his service no adverse remarks have been established against him. He is stated to have been promoted in BPS-18, Senior Meteorologist and BS-19 as Director. He had also been acting as Director-General, Meteorological Services with effect from. 14-1-1996 up to 14-7-1996. Such acting charge was acquired by the petitioner by virtue of him being the senior-most Director in the Department. Grievance of the petitioner before us is that instead of regularizing the petitioner as Director-General, the respondents Nos.1 and 2 have mala fidely promoted the respondent No.3, as Director-General vide Notification bearing No.M-1 (49) dated 14-7-1976. It has further been contended that the petitioner would stand retired upon attaining the age of super-annuation on 7-9-1998 which is likely to result into financial losses to the petitioner which have been computed as follows:--
"(1) In service losses during 1996 up to 1998 Rs.1,50,000.
(2) Pension losses:
(a) monthly loss Rs.2,000 p.m.
(b) total loss over gratuity Rs.4,00,000.
Total Rs. 5,50,000."
Series of mala fides at the hands of the respondents Ms. l and 2 have been attributed by the petitioner to his disadvantage in service which would be dealt by us hereinbelow.
That in order to demonstrate mala fides on part of the respondents Nos.1 and 2 favouring respondent No.3, the petitioner has drawn our attention to various aspects whereby rules and instructions of the Establishment Division have been violated while dealing with the case of the petitioner for promotion to the post of Director-General, Pakistan Meteorological Department.
Firstly A.C.Rs. of 1995 are stated to have not been included in the process of quantification, mala fidely by the respondents Nos.1 and 2 who had abstained to follow the procedure contained in the "Guide to Performance Evaluation" at page 26, para. 2.39 (a) (i). Additionally non -inclusion of A.C.Rs. of 1995 in quantification has been canvassed before us to be violative of the Establishment Division O.M. No.43/1/78-C.P., dated 21-12-1978, which provides that in the event of retirement of a Government officer, he should be asked to write/countersign report on the Officers and staff who have worked under them for more than three months before his retirement. On failure of preparation of such reports prior to retirement having been made by the Retiring Officer, an alternate procedure has been provided which could result into the formation of A.C.Rs. which was not done according to the petitioner for the year 1995.
Secondly, A.C.Rs. of 1993 are stated to have been scrapped and have not been included in the process of quantification, being violative of the "Guide to Performance Evaluation". It has been contended that 1993 A.C.Rs. were raised by the then Director-General under whom the petitioner had worked but the same were subsequently scrapped at the level of the Ministry of Defence, without intimating the petitioner which has caused fewer A.C.Rs. in BS-19. This act on part of the respondents Nos. l and 2 was canvassed before us to have been mala fidely motivated, and was violative of Establishment Division O.M. No.6/1/70-A-I1, dated 2-3-1970 and O.M. No.6-5-72-A-II, dated 17-6-1972 which provides that in the event when no Officer is available to write or countersign the report, the Administrative Division has to make a reference to the Establishment Division seeking guidance to meet the situation. It is further required to be ensured that the report does not remain unwritten. However, in the instant case scrapping of A.C.Rs. of 1993 has resulted into fewer A.C.Rs. in BPS-19.
Thirdly the petitioner has contended that writing and countersigning of 1986 A.C.Rs. by unconcerned officer has resulted in degradation in the A.C.Rs. for the year 1986. He has canvassed before us that his A.C.Rs. of the year 1986 were raised by Mr. Arshad Noor Khan, Director for the whole year of 1986 whereas he had actually worked under Mr. S.A. Kazmi, the then Director-General who had to raise the 1986 A.C.Rs. only for the period of January up to June, 1986. Hence according to the petitioner the grade awarded to the petitioner by unconcerned officer was violative of Establishment Division Order OM-6-1-69-A-II(BT), dated 1-7-1972 and O.M. No.6-3-87-BT-II, dated 8-11-1987, which provides that the question of recording of confidential report in respect of officers who may have worked with a Reporting Officer for a minimum period of three months during a year has been considered. The Establishment Division's order further provides that the Countersigning Officer is required to obtain separate report from each of the reporting Officer, with whom the officer concerned has worked during the year. Upon examining such reports, the Reporting Officer may exercise his discretion to decide which of those reports should be accepted. Alternately, he is required to record his own report after examining the reports of the Reporting-Officer, with whom the officer has worked during each calendar year. This process is further clarified that if major period in a calendar year is spent by an officer under different Reporting Officers for less than three months on each occasion, then where a major period of the calendar year is covered by a regular report, the performance evaluation report for the period of less than three months is not required to be initiated. Based on non-compliance of these instructions the petitioner has contended to have been adversely affected.
Fourthly, non-communication of adverse A.C.Rs. of 1976 and 1979 had been canvassed before us to be an act tainted with malice. It is contended that no adverse remarks were communicated or established during the 38 years' service of the petitioner but two reports are being counted adversely against the petitioner. It seems that there are prescribed steps required in establishing an adverse remark including acknowledgment of adverse A.C.Rs. which were actually not signed by the petitioner or acknowledged. Moreover formal decision thereof by the competent Authority was neither made, nor communicated to the petitioner. Consequently, the said adverse remarks are canvassed before us to have become void in terms of instructions 3.1 (vii) which provides that a confidential report co4taining adverse remark should not be taken into consideration, until they have teen communicated in writing to the officer concerned and a decision is taken on his representation, if any. Such steps having not been taken, the said adverse `reports are not required to be taken into consideration the process of quantification for ascertaining the fitness of the petitioner for promotion to BS-20.
Fifthly the petitioner has contended that he was not recalled from his deputation at Saudi Arabia to consider his case for promotion to the post of Director of Pakistan Meteorological Department in 1988 mala fidely by the respondents Nos. l and 2. He has further contended that in 1988 promotion to the post of Director of the Department was processed while the petitioner was stated to be on deputation abroad. He further submitted that he was neither given intimation notice, nor was he asked to return to Pakistan which is a requirement under the Establishment Division Order No.10(3)/81-CP1(PT), dated 31-10-1982. To substantiate his contention our attention has been invited to para. 7 envisaged in the Chapter of Promotion Policy in ESTACODE which requires that a civil servant on deputation to a foreign Government. International agency or a private organization abroad, will be considered for promotion only on his return to Pakistan. He will be given intimation and asked to return to Pakistan before his case comes up for consideration for promotion in accordance with the seniority position. If he fails to return, he will not be considered for promotion. Such an officer will have to earn at least one Confidential Report after his return to Pakistan before he is considered for promotion. These rules and instructions framed 'by the Establishment Division were canvassed before us to have been mala fidely violated which resulted into causing fewer A.C.Rs. in BS-19. Additionally, such acts helped in accommodating the respondent No.3 in the then available vacancy of Director for promotion. Similarly, in 1991 same lapses were canvassed to have been repeated by the respondents Nos. l and causing fewer A.C.Rs. in BS-19.
Sixthly, the promotion of the respondent No.3 was contended to have been made mala fidely by the respondent No. l without the respondent tvo.3 having N.I.P.A. training. It was contended that the respondent No. l was selected in the first instance, and only thereafter was sent on N.I.P.A. training, which negates the mandatory instructions and rules issued by the Establishment Secretary D.O. Letter No.10(10)/85-CP., dated 15-5-1981. Para. 1(c)(v) providing that N.I.P.A. training is a prerequisite for Officers below the age of 56 for promotion to BPS-20.
Seventhly two marks have not been included mala fidely' by the respondents Nos. l and 2 in favour of the petitioner for having served a training institute which is required to be done. According to the petitioner he has served at the P.A.F. Academy, Risalpur for three years and three months which would entitle him for addition of two marks in quantification for serving at such a training Institute as is envisaged in the Establishment Division O.M. No.10(10)/85-CP-1, dated 4-2-1986 requiring addition of 2 marks to officers who have served specialized training in any particular cadre for a period of two years or more.
Lastly, the petitioner has canvassed before us that a wrong formula for quantification of eligibility threshold has been adopted by the respondents Nos.l and 2 mala fidely being violative of Establishment Secretary DO Letter No.10(10)/85-CP-1, dated 15-5-1985 corrected vide Establishment Division OM.10(10)/85-CP-1, dated 11-8-1985, as amended vide Establishment Division O.M. No.10(10)/85-CP-1, dated 4-2-1986. It has been contended before us that application of wrong formula on the basis of fewer A.C.Rs. void A.C.Rs. and ignoring the petitioner posting at P.A.F. Academy, Risalpur, has been made by the respondent despite the fact that the petitioner was a senior-most Director in the department and had been given current charge of Director-General, Meteorological Service. The A.C.Rs. grading awarded to the petitioner, during the petitioner service in BPS-17 and above are as follows:--
"(a) B-17 5 Average 6 Good (Good + average)
(b) BS-18 5 Good 2 Very Good,
(c) BS-19 (1993) written by then D.G. but scrapped by Aviation Division."
According to the petitioner the formula applied for calculation of eligibility threshold viz. (6 x B) + (4 x A) is wrong and not justified and the formula applicable to the petitioner would be (5 x c) + (3 x b) + (2 x a) where A.B.C. have the usual meaning as defined in the addendum of promotion policy. Hence on the bais of correct formula viz. (5 x c) + (3 x b) + (2 x a) coupled with disregarding void A.C.Rs. of the petitioner in the process of quantification, the same works out to be as follows:--
5/8.0(+)3 x7.3 +2 x6.1=74.1.
For serving P.A.F. Academy, Risalpur 2.0 total 76.1."
Keeping in view the eligibility threshold of 70 required for a promotion to BS-20, the petitioner submits to have exceeded the same.
On the other hand, the learned Standing Counsel representing the respondents Nos. l and 2 has raised a preliminary objection to the exercise of jurisdiction by this Court under Article 199 of the Constitution. Such objection is based on Article 212 of the Constitution rendering such-like matters to be adjudicated by the Federal Services Tribunal. On the factual plain it has been contended by the learned Standing Counsel, that the petitioner has been superseded on account of his quantification score being less than the requisite 'threshold. The petitioner was canvassed before us to have earned adverse remarks twice in has entire service. Mala fides have been denied by the respondents Nos. l and 2. According to the respondents Nos. 1 and 2, the promotion to the post of Director-General, Meteorological Service has been made in accordance with the promotion policy of the Government on the basis of seniority-cum-fitness. The promotion is stated to have been made strictly in accordance with law. In so far as grading of A.C.Rs. of 1986 and Director's promotion of 1988, the contention has been resisted by the respondents Nos. l and 2 by only submitting the same to be incorrect. In respect of A. C.Rs. of 1993, the respondents Nos. l and 2 have taken a position that A.C.Rs. of 1993 of all the Directors was not raised on account of death of the then Director-General Meteorological Services, whereas A.C.Rs. of 1995 was stated by them to be not quantified as it was not received by them in due time and the case had already been sent to the Establishment Division. As per the counter-affidavit sworn on behalf of the respondents Nos. l and 2, A.C.Rs. of the petitioner relating to 1976 and 1979 have been shown to be adverse A.C.Rs.. Stand of the petitioner to have earned two points has also been denied by the respondents Nos. l and 2 that the petitioner having remained in P.A.F. for about three years, yet, did not qualify for having these two makes as the petitioner had never informed the Department of the certificate possessed by him. Finally the respondents Nos. l and 2 have stated that the confidential reports have been quantified in accordance to the addendum for quantifying the Confidential Reports, and keeping in view the guidelines for Departmental Promotion Policy of the Government as per the Establishment Division D. O. Letter No.10(3)/81-CP 1/3, dated 31-10-1982. Consequently, according to the respondents Nos. l and 2 the quantification of the petitioner was less than the requisite threshold and it was in these circumstances that he stood superseded and was not recommended by the Central Selection Board-II. It has, however, been contended by the learned Standing Counsel that the A.C.Rs. of the year 1995 of the petitioner as well as of his other colleagues could have been taken into consideration, but after expiry of the prescribed date i.e. 28-2-1996. It seems that the Selection Board had met and considered the promotion on 30-1-1996, being one month earlier and, therefore, C.R. of the year 1995 in respect of all the five officers of BS-19 were not taken into consideration. According to the respondents Nos. 1 and 2, the then Director-General Mr. M. Qasim Malik had expired on 20th September, 1993 resulting into the current charge having been gone to the senior-most Director Mr. Ghulam Farid, as per Government policy and therefore, Mr. Ghulam Farid holding the current charge could not have written A.C.Rs. of officers being of similar status. The Secretary Defence was stated to have expressed his inability to make an objective assessment of the officer, and accordingly a certificate was stated to have been recorded in the A.C.Rs. of all the Directors. Two adverse reports for the years 1976 and 1979 are canvassed against the petitioner resulting into deduction of 2 marks from his total overall quantification as per the quantifying policy. In so far as the petitioner contention to be recalled from deputation, it has been contended that the petitioner was aware of the fact that the case of his promotion was pending in the Ministry of Defence, and yet he did not revert back to Pakistan. It has surely been conceded that the petitioner was neither intimated nor recalled back from his deputation. Consequently, respondent No.3 was upon consideration recommended for promotion to the post of Director-General, but subject to successful completion of N.I.P.A. training course. Respondent No-3 was stated to have only been notified after he has successfully completed the N.I.P.A. training course. In so far as serving a training Institute is concerned, respondents Nos. l and 2 have taken the position that the petitioner's serving at the P.A.F. Academy, Risalpur was never informed by the petitioner to the Department and further there was nothing to indicate that the petitioner was engaged in teaching at the P.A. F. Academy, Risalpur.
The learned counsel for the respondent No.3 has primarily raised objection to the maintainability of the present petition in the light of the dictam laid gown by Supreme Court of Pakistan in 1985 SCMR 774 (Aish Muhammad v. Government of Pakistan), 1990 SCMR 790 (Accountant General, Balochistan v. Abdul Majeed), 1990 SCMR 1321 (Government General, Health Social Welfare v. Dr. Sh.- Muzaffar Iqbal),.1991 SCMR 1129 (Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui) l998 SCMR 103 (S.T. Rehman v. Government of Pakistan) 1998 PLC (C.S.) 36 (M. Ilyas v. Secretary to Government of Punjab), 1998 PLC (C.S) 42 (Javid Iqbal v. Secretary, (Establishment Division), 1998 PLC (C.S.) 70 (Shaheen Akhtar v. Government of Punjab), P1.D 1983 SC 100(paras. 17 and 18 Republic of Pakistan v.. Dr. Safdar. Mahmood) and, PLD 1994 SC 539. (M. Anis v. Abdul Haseeb).
In addition to the aforementioned reported judgments the learned counsel has further contended that the relief sought by the petitioner relates to his terms and conditions of the petitioner service, jurisdiction for which is exclusively vested with the Federal Service Tribunal and the same could not be granted by this Court in exercise of jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan.
We have considered the submissions made before us by the parties to the aforementioned proceedings, and have examined the record and the case-law placed before us alongwith the relevant rules and instructions.
The petitioner and the respondent No.3 were eligible to be considered for promotion and such exercise was undertaken by the respondents Nos. l and 2. As such the case in hand is not one of those where eligibility which directly relates to the terms and conditions of service is involved.
Having dilated upon the factual controversy raised by the parties before us, we would, in the first instance, like to deal with the preliminary objection as to the maintainability of the present petition on the ground that the same is barred under Article 212 of the Constitution, and is consequently not maintainable. In order to examine the question of maintainability in the instant case provisions of Article 212 of the Constitution and section 4 of the Service Tribunals Act, 1973 hereinafter referred to as the "Act" needs to be examined. Section 4(1)(b) of the Act reads as follows;--
"4(b) Anneal to Tribunals. ---(I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within 30 days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal:
Provided that (a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .…
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