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Petitioner: MRS. AYESHA MOEEN VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD
2001 P L C (C
2001 P L C (C. S.) 498
[Federal Service Tribunal]
Before Abdul Razzaq A. Thahim, Chairman, Aftab Ahmed, Muhammad Raza Khan and Noor Muhammad Magsi, Members
Mrs. AYESHA MOEEN and 3 others
versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 2 others
Appeals Nos. 167, 168, 169 and 170(R) of .1997, decided on 30th June, 1997.
Civil service----
----Promotion---ESTACODE 1989 Edn.; Serial No. 189, para. 2(b)--- Recommendation , of Central Selection Board---Review---Ministry of Education processed promotion cases of Assistant Professors from BPS-18 to BPS-19 and placed those cases before Central Selection Board and Board. in its meeting cleared cases of civil servants, but did not approve cases of opposing civil servants---Recommendations of Central Selection Board were placed before Competent Authority, but Competent Authority with some observations referred back cases to Ministry of Education---Ministry of Education revised the cases in the light of observations of Competent Authority and again submitted cases to Central Selection Board and Board in its meeting considered revised proposal of Competent Authority and approved the promotions of opposing civil servants against which civil servants had got grievance-- -Contention of civil servant was that Central Selection Board in its earlier meeting having recommended promotion of civil servants, Competent Authority was bound to accept reconsideration of Central Selection Board and Competent Authority had no locus standi to refer back the cases---Contention of civil servant was repelled in view of the fact that para. 2(b), Serial No. 189, ESTACODE, 1989 had clearly -provided that in case Competent Authority had disagreed with the recommendations of Central Selection Board, the case should be returned to Central Selection Board for reconsideration---Central Selection Board being a recommendatory body its recommendations were not binding on Competent Authority as alleged by civil servants and Competent Authority in its wisdom had got the discretion to refer back cases---Cases of civil servants as well as opposing civil servants having duly been reconsidered by Central Selection Board according to their seniority and good performance on basis of their A.C.Rs., as per promotion policy, no illegality had been committed in their cases.
PLJ 1995 SC 371; PLD 1988 SC 155; 1995 SCMR 650; 1994 PLC (C.S.) 854; PLD 1994 SC 539; 1996 SCMR 165; 1997 PLC (C.S.) 216; 1985 SCMR 699; 1995 SCMR 955; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Faris Rehman Khan v. Federation of Pakistan 1995 SCMR 579; Federation of Pakistan v. Israrul Haq PLD 1981 SC 531; M. Y. Amir & Co.'s case 1995 SCMR 922 and 1992 PLC (C.S.) 1374 ref.
Hafiz S.A. Rehman for Appellants. Khalid Abbas Khan, Federal Counsel alongwith Muhammad Munir Naqvi, AEA, Ministry of Education, Ratique Malik, Director, Model Colleges and Abdul Hakim Rahi, Establishment Division.
Raja Muhammad Asghar Khan for the Private Respondents Nos.8 to 10, 20, 21, 24, 25 and 28.
Bashir Ansari for the Private Respondent No.23.
Aminur Rehman for the Private Respondent No.27.
Date of hearing: 11th June 1997.
JUDGMENT
ABDUL RAZZAQ A. THAHIM (CHAIRMAN). ---These four Appeals Nos. 167-R of 1997, 168-R of 1997, 169-R of 1997 and 170-R of 1997 have been tiled by Mrs. Ayesha Moeen, Mrs. Asya S. Javaid, Mrs. Parveen Irshad and Mrs. Shahida Sheikh, involve common questions of facts and law, therefore, we propose to dispose of these appeals by this single judgment.
2. Briefly the facts are that the appellants are working as Assistant Professors (BPS-18) in Islamabad Model College for Girls. The promotion cases of Assistant Professors from BPS-18 to BPS-19 were processed by- the Ministry of Education and were placed before the Central Selection Board-II in its meeting held on 4-7-1996 and it is stated that promotions of the appellants were cleared by the CSB-II while the cases of respondents were not approved. The recommendations of the Board were placed before the Competent Authority but he with some observations referred back the cases to the Ministry of Education. The Ministry of Education, the parent department of the appellants and private respondents, revised the cases in the light of observations of the Competent Authority and again submitted the cases to the Central Selection Board. The Board in its meeting held on 27-10-1996 recommended the promotions and Competent Authority approved the promotions, whereafter the notification, dated 11th November, 1996 whereby promotions of 30 Assistant Professors (Ex-Senior Teachers) in BPS-18 (female) to the post of Associate Professors (BPS-19) were notified with effect from 4th November, 1996. The appellants being aggrieved with these promotions tiled departmental appeals on, 3rd December, 1996 to the Prime Minister and having received no reply they have approached this Tribunal under section 4 of the Service Tribunals Act, 1973 with the prayer that the notification, dated 1lth November, 1996 whereby private respondents were promoted be declared as having been issued illegally, without any lawful authority, violative of the rules, law and instruction; and that posts carrying BPS-19 are selection posts and promotion against those posts can only be made on the criteria laid down in ESTACODE and that post of Associate Professor (BPS-19) cannot be considered on the sole ground of seniority-cum-fitness. It is further prayed that recommendations of the Central Selection Board in the meeting held on 4-7-1996 whereby appellants were promoted be notified and respondents Nos. l and 2 i.e. the Secretary, Establishment Division and Secretary Ministry of Education may be directed to issue notification of the promotion of the appellants as Associate Professors (BPS-19). 3. Notices were issued to the respondents. Comments have been tiled on behalf of private respondents No.8 to 10, 20, 21, 23, 24, 25 and 28 and we have heard the parties at length.
4. Mr. Hafiz S. A. Rehman, Advocate has appeared on behalf of the appellants. It is argued that the appellants were cleared for promotion in the earlier CSB meeting held on 4-7-1996 but notification of their promotions was not issued with mala tide intention and it is contended that the competent Authority was bound to accept the recommendations. of the CSB and the appellants are entitled to be promoted. It was argued that on the basis of a letter of the Establishment Secretary, the matter was reviewed and according to lacy, the Secretary Education has no locus standi to refer back the case. His case is that promotion policy has been ignored as post of Associate Professor (BPS-19) is a selection post, and the criteria applied by second CSB meeting held on 27-10-1996, the Promotion Policy has been ignored and the Ministry has not treated these posts as selection posts. It is submitted that discretion exercised by the authorities is not on merit. On this, Mr. Hafiz S.A. Rehman has referred to PLJ 1995 SC 371; PLD 1988 SC 155; 1995 SCMR 650; 1994 PLC (CS) 854; PLD 1994 SC 539; 1996 SCMR 165 and 1997 PLC (C.S.) 216. Appellants Mrs. Shahida Sheikh and Mrs. Asya S. Javaid also requested the Tribunal to argue their case and they were allowed. They contended that they are highly qualified, having so many Diplomas and Degrees etc. and long experience, and they had preferential right for promotion over and above the respondents who were only MAIM.Sc.
5. Mr Bashir Ahmed Asnari, Advocate appearing on behalf of private respondent 23 argued that all these promotions have been made under Promotion Policy and the Guidelines for considering the cases for promotion. He has taken us to the provision given in Promotion Policy (IV) and clause (III) of the Guidelines as given in the ESTACODE It is argued that these posts are not supervisory posts and question of threshold etc. in the case of promotions in B-19 is not applicable. He has referred to PLD 1995 SC 579 and submitted that procedure for selection by the CSB is discussed by Their Lordships in this case. He argued that there was no earlier recommendation from the Central Selection Board and if at all there was any consideration, the competent authority had a power to refer back the case to the parent department for reconsideration. Mr. Raja Muhammad Asghar Khan, Advocate appearing for some of the private respondents Nos. 8 to 10, 20, 21, 24, 25, and 28 submitted that all the respondents who have been promoted are senior most and CSB had considered their seniority and other aspects. It is submitted that the appellants are junior and no injustice has been done to the appellants. He argued that selection has been made according to seniority and he referred to Serial No. 203 and Serial No. 178 of ESTACODE. It is further submitted that the appellant Mrs. Asya S. Javaid in appeal No. 167 (R) of 1997 had not completed 7 years service in B-18, therefore, she was not even eligible for consideration for promotion. Mr. Aminur Rehman Khan, Advocate appearing for respondent No.27 submitted that appellant Mrs. Shahida Sheikh in Appeal No. 170 (R) of 1997 was not eligible for consideration for promotion as she had not completed the requisite period of service in BPS-17. He referred to 1985 SCMR 699. It is submitted that when a mistake is brought to the notice of the authorities, the said mistake could be rectified and there is no illegality. He referred to 1995 SCMR 955. Mr. Khalid Abbas Khan. Federal Counsel for the official respondents argued that promotions which were long awaited had been made after proper assessment and the Establishment Division, the competent Authority, did not accept the earlier proposal of the CSB and rightly referred back the case to the Ministry of Education with some observations. It is argued that cases of the appellants for promotion alongwith those who were promoted vide notification dated 11-11-1996 were placed before the CSB in the meeting held on 27-10-1996 but only 31 posts were available and they were promoted and there is no question of supersession for which the appellant had no grievance and their cases could be considered as and when the posts are made available according to law. Mr. Khalid Abbas Khan, was assisted by Mr. M.M. Naqvi, AEA, Ministry of Education, Mr. M. Rafique Malik, for D.G. Education and Mr. Abdul Hakim Rahi, on behalf of Establishment Division.
6. Before embarking on the merits of the case, it is pertinent to mention some facts and developments which took place during the pendency of the decision of the CSB. One Miss Gulshan Baig (who is respondent No.28) filed Constitutional Petition No. 1214 of 1996 in the Lahore High Court, Rawalpindi Bench, Rawalpindi, wherein the Establishment Division, Ministry of Education and two appellants, namely Mrs. Ayesha Moeen and Shahida Sheikh and three others, who were said to be Assistant Professors and those two appellants were shown as Senior Teachers were made party. The case of the appellant, who has now been promoted, before the High Court was that she had 28 years unblemished service and had not been promoted on mala fide grounds to accommodate influential persons though being junior, her case was that there was no adverse record to her credit. The High Court on 18-8-1996 directed the Secretary, Ministry of Education to depute some responsible officer to attend the Court on 20-8-1996 alongwith the record pertaining to promotion cases of the respondents and the proceedings of the CSB. When this petition came up for hearing on 20-8-1.996, the record was not produced. The matter again came up for hearing on 21-8-1996 when Assistant Educational Adviser, Mr. Muhammad Ismail appeared and stated that Joint Educational Adviser was unable to attend the Court as he was busy in a Seminar. Parawise comments were filed but record was not produced. The Deputy Attorney-General was directed to produce the ACRs of the appellants and the respondents and the proceedings of the CSB dated 4-7-1996 and the petition was adjourned for 22-8-1996. In the meanwhile, the connected Writ Petitions Nos. 1089, 1088, 1129, 1130, 1131, 1132, 1133, 1134 of 1996 were placed before the High Court and status quo was granted. The grievance in those petitions was that junior persons were being promoted ignoring the rules of seniority-cum-?fitness on extraneous considerations. It was stated at the bar that many of the officers who were apprehending that they would not be promoted made representations to the Ministry of Education a result where of, the recommendations of the CSB-II are being reviewed in the establishment Division. In this situation status quo order was modified by the High Court to the extent that pendency of these writ petitions will be no bar to the Establishment Division, Ministry of Education, CSB or any other authority to take fresh recommendations and orders in accordance with law and it was made open to the petitioners that if any adverse order is passed, they can make appropriate application for amendment in the writ petitions. It was also observed by the High Court that needless to say that rule of seniority-cum?-fitness will be observed while passing final orders. Further, development took place when Mr. Hafiz S.A. Rehman, Advocate tiled Miscellaneous Application No.2793 of 1996 on behalf of appellants and he had a grievance that notification on the basis of recommendations made after the order dated 22-8-1996 be stayed. This petition was dismissed on 31-10-1996. The matter was taken to Supreme Court and C.P.L.A. No. 631 of 1996 was tiled by Miss Qudsia Fatima; Mrs. Shahida Sheikh and Mrs. Ayesha Mueen. The Supreme Court in the order, dated 17th November, 1996 observed that since leave is being sought against the interlocutory order passed by High Court in the writ petition which are pending and have been filed respondent No.l before us and grievance of the petitioner is that they were not heard when the interlocutory order was passed, directions were issued to High Court by the Supreme Court to dispose of main petition which were nine in number finally after hearing all the parties concerned. The High Court in pursuance of the Supreme Court order fixed the petitions of Mr. Hafiz S.A. Rehman on 11-12-1996 as he was not heard on 11-12-1996 but there was no appearance and his petition was dismissed for non-prosecution, and the matter regarding promotions was processed afresh also on the basis of the High Court order, irrespective of other factors as given by the competent Authority while remanding the case to the Ministry of Education.
7. The CSB-II in its meeting held on 4-7-1996 considered the promotion cases of various categories of Male and Female from BPS-18 to BPS-19. The categories formulated by the Ministry of Education were as under:
(1) Promotion of Assistant Professor. (Ex-Vice Principal) (BPS-18) (Male) to the posts of Associate Professor (BPS-19).
(2) Promotion of Assistant Professor (Ex-Vice Principal) (BPS-18) (Female) to the posts of Associate Professor (BPS-19).
(3) Promotion of Assistant Professor (Ex-Senior Teachers) (BPS-18) (Male) to the posts of Associate Professor (BPS-19).
(4) Promotion of Assistant Professor (Ex-Senior Teachers) (BPS-18) (Female) to the posts of Associate Professor (BPS-19).
The recommendations of the CSB were examined in the Establishment Division. The Establishment Division vide its Office Memo. dated 5thSeptember, 1996 directed the Ministry of Education .that in view of the development which took place and came to the notice of the Ministry and before approving the recommendations of the Board, the entire proposal may be reviewed in consultation with the Establishment Division by thrashing out the above issues. The clarification with regard to the number of posts and other factors was referred back to the CSB and the Board in its meeting held on 27-10-1996 considered the revised proposal and approved the promotions of the private respondents against which the appellants have got the grievance. The Board unanimously recommended the cases of private respondents for promotion and on the basis of these recommendations, 31 posts of Female Associate Professors were notified, which are now impugned before us. From the minutes of the meeting held on 27-10-1996, it is clear that the Board examined the record of the officers in order of seniority and their quantified scores of good performance as reflected against each, and recommended promotion of 31 Female Officers as Associate Professors (BPS-19).
8. The facts in the background of these appeals are that the Government introduced a 4-tier scheme in the Islamabad Model Colleges/Schools, after being declared the employees as civil servant on the pronouncement of the Supreme Court of Pakistan in the case reported in PLD 1990 SC 612 (Mrs. M. N. Arshad v. Miss Naeema Khan). There were four categories as notified in the Rules, viz Lecturers (BPS-17), Assistant Professors (BPS-18), Associate Professors (BPS-19) and Professors (BPS-20). The posts were created in various categories. The CSB considered the promotion cases which are relevant for the purpose of these appeals, from BPS-18 to BPS-19; but in Grade-18 there were two categories, as it is mentioned in caption of promotion, therefore, one of Vice-Principals who were directly appointed in BPS-18 and the Senior Teachers (Selection Grade-18). The dispute between both the categories came before this Tribunal in appeals with regard to seniority and litigation continued with Vice-Principals that they be promoted to BPS-19. The Tribunal did not agree but decided that their cases to be routed through the SCB as prescribed by law. This matter went to the Supreme Court. Time limit of three months was given to the Ministry of Education to finalise the case of Vice-Principals for promotion. It was a matter of 1993 but the Ministry on one pretext or the other did not process their cases for promotion for three years, and the result was that this Tribunal was constrained to issue contempt of court notice to the then Secretary, Ministry of Education. However, it is immaterial at this stage but since the CBS-II in their meeting held on 4-7-1996 considered the cases category wise for promotion as Associate Professor (BPS-19) and the cases of Vice-Principals were separately processed and promotions of the Vice-Principals have not been challenged in these appeals, therefore, we had given background. The second category was of senior Teachers (Selection Grade-18) and they were designated as Assistant Professors and their cases, who are now impugned before us, are being dealt with by this Tribunal independently. Therefore, we have only to confine the dispute of promotion to the extent of Senior Teachers (Senior Teachers (Selection Grade-18)/ re-designated Assistant Professors. The case of the appellants as well as the private respondents fall in that 'category.
9. The main objection taken by the learned counsel for the appellants is that after the cases were processed by the CSB and cleared by it in the meeting held on 4-7-1996, the notification should have been issued but on the other side this objection was repelled and it was stated that the competent Authority could refer back the cases if he finds any infirmity. Before we come to the other points, we want to resolve this issue in the light of rules and the law laid down by the Supreme Court.
10. Mr. Bashir Ahmed Ansari, the learned counsel for private respondent No.23 referred to Serial No. 189 (Page 279 of ESTACODE 1989 Edition) and submitted that under paragraph 2 (b) (ibid) in case of competent Authority disagreed with the recommendations of the CSB, the case should have been returned to the Board for reconsideration. He also referred to 1995 SCMR 579 (Faris Rehman Khan v Federation of Pakistan). In this case, the recommendation of the CSB was returned by the Secretary, Establishment Division and Their Lordships did not approve this practice as Secretary, Establishment Division was not competent Authority but held that under Serial No. 189, the advice could be returned to the Board for further review only in case the Prime Minister or Minister disagrees with the view of the Selection Board so only competent authority could refer back the case. In these appeals, competent Authority is Secretary Establishment and cases were tightly returned. For the sake of convenience, we reproduce Serial No. 189 in extenso:
"Serial No. 189: Convention regarding acceptance of recommendations of the Selection Board.--The Administrative Enquiry Committee reviewed the working of the Selection Board and in their Report made the following recommendations:
(a) that both for protection of Ministers and in the interests of sufficient working, the rules about the Selection Board be closely adhered to;
(b) that there should be a convention whereby the advice of the Selection Board should be accepted quickly and automatically except in wholly exceptional cases.
2. Government considered these recommendations and their orders are as follows:--
(a) Accepted:
(b) Government have decided that there should be a Convention whereby the advice of the Selection Board should be accepted quickly save in exceptional cases: and that if the Prime Minister or the Minister concerned disagrees with the view of the Selection Board, the cases should be returned to the Board for further consideration, and a decision taken by the Prime Minister only after the further views of the Board have been placed before him."
This question came up for adjudication before the Supreme Court in Civil Petition for Leave to Appeals Nos. 301 of 1990 and 302 of 1990 tiled by Muhammad Akbar and K. Naseem Ahmed, decided vide judgment dated 27-11-1990 and Their Lordships relying on PLD 1981 SC 531 (Federation of Pakistan v. Israrul Haq) held that recommendations of the CSB could exceptionally be overruled by the competent Authority. It is thus clear that under Serial No. 189, the competent Authority could refer back the case and this was actually done in this case. The reasons in doing so are contained in the Office Memorandum, dated 5th September, 1996 and it is reproduced herein below:
"Subject: 1. Promotion of Assistant Professor (EX-VICE Principal) (BPS-18) (Male) to the Post of Associate Professor (BPS-19).
2. Promotion of Assistant Professor (Ex-Vice Principal) (BPS-18) (Female) to the Posts of Associate Professor (BPS-19).
3. Promotion of Assistant Professor (Ex-Senior Teachers) (BPS-18) (Male) to the posts of Associate Professor (BPS-19).
4. Promotion of Assistant Professor (Ex-Senior Teachers) BPS-18) (Female) to the posts of Associate Professor (BPS-19).
The undersigned is directed to state that four separate promotion proposals, indicated in the subject, were considered by the Central Selection Board in its meeting held on 4-7-1996. However, before the Board's recommendations could be put up to the competent Authority for his approval, following facts, which have substantial bearing on the case, were brought to the notice of Establishment Division:
(a) The performance Evaluation Reports of many officers are without the counter signature of the countersigning authorities (Education Secretary's D.O. Letter No. F. 10-13/94-MS. dated 23-7-1996 refers).
(b) It has been observed that the column 'Quality and Output of Work' is not available in the performance Evaluation Report Forms used to the Islamabad Model College from the years 1982-92. It has also been noticed that almost all of the Senior Teachers who were recommended for supersession by the Board in its meeting held on 4-7-1996, were so recommended as their scores under 'Quality and output of work' were below the minimum threshold. It has further come to light that during their service period prior to 1982 the majority of these affected teachers have been graded 'Average' under 'Quality and Output of Work'. However during the same period, they were given appreciation commendation certificates and shields by the concerned authorities in recognition of theirs, 'Outstanding' performance, in terms of 100% results etc. Under their spirit of the Promotion- Policy their assessment under. 'Quality and Output of work should reflect their actual performance. Hence a policy decision is required to be taken on this aspect of issue (Representations made by Mrs. Sohila Ansari, Miss Gulshan Baig, etc refer).
(c) Some of the reports of Syed Arif Hussain on the panel have been (found) tampered with as also confirmed from the perusal of his PERs. for 1976 and 1980 (His representation dated 17-7-1996 refers).
(d) The date of regular appointment of Miss Gulshan Baig, Assistant is Professor Islamabad College for Girls has been shown as 12-8-1978 instead of 13-8-1977 as appeared from the record. (Islamabad) College for Girls Office Orders No. ICG/029/PC/1529 dated 28-3-1989 and No. D. 7845/F.7-86/ICG dated 5-2-1990 and charge & assumption report dated 13-8-1977).…
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