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Petitioner: TARIQ AZIZ UD DIN and others VS Respondent: FEDERATION OF PAKISTAN
Court Name: Supreme Court of Pakistan Judge(s): Iftikhar Muhammad Chaudhry, Ghulam Rabbani, Chaudhry Ijaz Ahmed Title: TARIQ AZIZ UD DIN and others vs FEDERATION OF PAKISTAN Case No.:Human Rights Cases No, 8340, 9504-G, 13936-G, 13635-P & 14306-G to
JUDGMENT
Reported As: PLJ 2011 SC 137 Result: Petition accepted Judgment JUDGMENT Ch. Ijaz Ahmed, J.--Facts in brief, relevant for disposal of instant HR Cases, are that one Mr. Tariq Aziz-ud-Din from the Foreign Service Group, moved an application dated 6th November, 2009, addressed to Chief Justice of Pakistan, stating therein that Government of Pakistan has made promotions of officers of various occupational groups, including Foreign Service group to which he also belong, from BS-21 to BS-22, in total violation of Constitutional basis and principles of merit, seniority and fair play. He added in the application that the competent authority has no arbitrary power under the law to pick and choose on his whims although he sits as head of Selection Board. It is averred by him that in this way his fundamental right to expect a fair career progression has been violated as his juniors have been promoted while superseding him without any justification. The application was registered as HR Case No, 8340-G/2009. 2. Initially, the comments on the above said application were called from the Secretary, Ministry of Foreign Affairs, Government of Pakistan, however, ultimately the matter was ordered to be fixed in Court with notice to the Attorney General for Pakistan, Secretaries, Establishment and Foreign Affairs Divisions, applicant and all those officers who had been superseded as well as to the officers promoted by the Federal Government to be served through Secretary Establishment. In the meantime, some of the other affectees also approached the Court by way of filing separate applications, which were also registered as HR Cases, titled above and clubbed together. 3. Subsequently, Mr. Muhammad Akram Sheikh, Sr. ASC, Mr. M. Ikram Chaudhry, ASC, Dr. Muhammad Aslam Khaki, ASC, Mr. Afnan Karim Kundi, ASC and Mr. Haider Hussain, ASC appeared on behalf of the applicants/officers who have not been promoted, whereas .Mr. Abdul Hafeez
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Pirzada, Sr. ASC appeared on behalf of Federation of Pakistan through Establishment Division. Likewise, Mr. Anwar Mansoor Khan, Attorney General for Pakistan appeared on Court's notice. On the other hand the officers promoted to BS-22 except few also appeared in response to the notices. 4. Mr. Muhammad Akram Sheikh, Sr. ASC appearing on behalf of the petitioners argued that:-- (a) In terms of Sections 9(1)(b) and 9(2) of Civil Servants Act, 1973 [hereinafter referred to as `CSA, 1973'], the Civil Servants (Appointment and Tenure of Post in BPS-22) Rules, 1993 [hereinafter referred to as 'CSR, 1993'] were framed but these rules were rescinded on 4th April, 1998. In such situation, it is the responsibility of the Government to frame rules with regard to terms and conditions of the services of the Civil Servants in BS-22 and if there is no rules or law made in this regard, then it is called exploitation, within the meaning of Article 3 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as the Constitution']. (2) Section 9(2) of the CSA, 1973, mandates that recruitment should be made on merit, therefore, when merit comes, it excludes discretion. [Reliance placed on Lahore Development Authority v. Shamim Akhtar (2003 MLD 1549) and Adil Hamid v. Azad Jammu and Kashmir Govt. (1991 PLC (CS) 1195)]. (c) Despite framing of rules, if some discretion is left, it should be structured discretion, based on seven instruments of structuring of discretion and scope of that structuring of discretion is left only after framing of rules in the manner prescribed. (d) When a criterion is to be structured by rules then the only rules are to be made applicable and nothing else and if no law or rules are framed then the Judge made laws shall fill in the vacuum. (e) Merit of course can be taken into consideration with respect to the eligibility but eligibility does not militate against merit. [Reliance placed on Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), Fazali Rehmani v. Chief Minister, NWFP (PLD 2008 SC 769) and Tanvir Shaukat u. District and Sessions Judge, Narowal (2009 SCMR 764)]. (f) The promotion relates to the right to life of a civil servant because depriving him from the ultimate glory of his service i,e, BS-22, for which he had made sacrifices, would tantamount to scuttle of his right to life in terms of Article 9 of the Constitution. (g) There are neither any rules, guidelines nor compulsions, therefore, the discretion of the Prime Minister, governing the transfers and promotions to BS-22 would negate the entire Esta. Code. [Referred to page 257 of the Esta. Code, 2007 Ed. (regarding Selection Board)]. (h) Discretion vested in the competent authority is a sacred trust, which is to be exercised with application of mind to ensure equality of opportunity as envisaged in Article 2A of the Constitution. [Reliance placed on Chairman RTA v. Pak. Mutual' Insurance Co. (PLD 1991 SC 14), Director Food, NWFP v. Madina Flour and General Mills (Pvt.) Ltd. (PLD 2001 SC 1) Chief Secretary Punjab v. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab v. Secretary, Gout. of Balochistan (2009 SCMR 1354) and Delhi Transport Corpn. u. D.T.C. Mazdoor Congress (AIR 1991 SC 101)]. He concluded his arguments by saying that the petitioners are claiming their right guaranteed by the Constitution and policy of merit, which obliges the trustees of the State powers i,e, the chosen representatives to exercise such power with all the conditions prevalent between the trustee and beneficiary. He also referred to the seniority list submitted by the Federal Government, demonstrating that the persons having just few months' service in BS-21 have been promoted whereas no reason either for selection or rejection has been assigned. 5. Mr. Afnan Karim Kundi, ASC appearing for some of the affectee officers, while adopting the arguments of Mr. Muhammad Akram Sheikh, Sr. ASC, added that:-- (a)An effort has been made by the Establishment Division in its comments/reply to the applications of the affectee officers, to strike some balance in terms of the Provincial representation in BS-22, however, the Provincial quota is only applicable to appointments initially made and not to be observed while making promotions, for which the criterion is performance,
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service record and seniority. (b)While making promotions, gender balance is being struck by the Federal Government while picking up a person much below in the seniority just because she is a lady. Consideration of gender is not a criterion for promotion specially to the selection posts, where promotions have to be made on merit alone. (c)The promotions in question were made without assigning any reasons regarding exercise of such discretion, which is in violation of Section 24-A of the General Clauses Act. 6. Mr. M. Ikram Chaudhry, learned ASC for one of the affectee officers, after giving the service history of the petitioner, argued that:-- (a)The competent authority has to exercise the discretion in the public interest with transparency, which lacks in the instant case. [Reliance placed on Zia Ullah Khan v. Govt. of Punjab (PLD 1989 Lahore 554)]. ' (b)When no reason has been assigned either for selection or rejection, therefore, it precisely means that the rule of pick and choose was the prime consideration and there is no transparency in the exercise of discretion by the competent authority. [Reliance placed on Aman Ullah Khan v. Federal Government of Pakistan (PLD 1990 SC 1092), Pak. Mutual Insurance Co.'s case (PLD 1991 SC 14) and Abu Bakar Siddique v. Collector of Customs (2006 SGMR 705)]. He concluded his submissions while arguing that although seniority is not the only consideration but it is to be observed to some extent, whereas, in instant case the opportunity to be considered for promotion has not been provided to the petitioner. 7. Dr. Aslam Khaki, ASC appeared on behalf of affectee officers, and argued that:- (a) Discretion must be based upon reasons but in the instant case, the petitioners represented by him have not been considered rather ignored, as such they have been condemned unheard against the principle of audi alteram partem. (b)When there is no law on a subject, the principles of natural justice would be applicable. (c)The competent authority was vested with powers to frame rules in terms of Section 9 of CSA, 1973, but the same has not been done, which shows the mala fide on its part. (d)According to the injunctions of Islam as well as under Article 2A of the Constitution and the principles of policy, everything should be done on merit with justice. [Referred to the Holy Quran (Surah-e-Al-Nisa verse 135)], (e)Some of the persons, who were even not eligible for promotion being not part of any occupational group and even not falling within the category of civil servants, such as officers of National Assembly and NLC, have been promoted in violation of rules and law. 8. Mr. Haider Hussain, ASC gave the service record of the petitioner represented by him and argued that:-- (a)The discretion is bound by the rule of reasons, which must be guided by law and must not be used in an arbitrary, vague and fanciful manner. [Reliance placed on Zubair Ahmad v. Shahid Mirza (2004 SCMR 1747)]. (b)Civil servant has a right to be considered for promotion and similarly to be disclosed the reasons for not being promoted. [Reliance placed on Muhammad Zafeer Abbasi v. Govt. of Pakistan (2003 PLC (CS) 503)]. (c)The four officers promoted in the occupational group of the petitioner i,e, the Audit Department, even do not qualify for promotion, as they had never served in BS-21 in that occupational group. 9. On the other hand Mr. Abdul Hafeez Pirzada learned Sr. ASC, appearing for the Federation of Pakistan, through Secretary Establishment Division, argued that:-- (a) The material for promotions of all these officers was sent to the Prime Minister in November, 2008 which contains the service record of the entire 267 officers in Grade 21. This record remained
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with the Prime Minister for consideration until September, 2009 (almost for a period of 10/11 months), therefore, the competent authority has made these promotions with due application of mind. (b)This Court does not sit as a Court of appeal over the exercise of power by a lawful authority as it has only to satisfy itself as to whether the reducible minimum requirements of good governance have been complied with or not, and the benefit of doubt, if any, will go in favour of the validity of the action taken by the competent authority and not against it. Onus, therefore, very heavily lies upon the person coming to challenge that there has been a foul play in the exercise of executive discretion. (c)The Officers who are working in BS-21 and have not been promoted to BS-22, shall continue to be eligible for, promotion to BS-22 in future, therefore, there is no question of supersession. (d)Originally only eight persons, who were not promoted, out of 213, approached this Court, whereas a vast majority of them have not come to the Court for the redressal of their grievance and some of them have made the representation before the competent authority for revisiting of their cases. (e)In order to see whether the discretion has been exercised properly or not by the competent authority, this Court has to scrutinize each and every case individually in order to severe the good from the bad. (f)The principles of seniority, fitness and aptness, as claimed by the affectee officers, are not applicable in a case of promotion from BS-21 to BS-22. (g)The Rules were framed during the time of caretaker government by virtue of SRO 1047(I)/1993 dated 23rd October 1993 in respect of BS-22, which were rescinded in the year 1998 through notification dated 4th April 1998 and since then the Judge made laws have taken effect, therefore, the Court has to satisfy itself in favour of validity of an action, rather than to strike it down, particularly when it will affect a lot of innocent and deserving persons. (h)The discretion exercised by the competent authority can only be challenged on the grounds of illegality, bias or malice or mala fide, and proceedings being corum non judice, but in the instant case at the best, the question is of irrationality or lack of procedural propriety, which even has not been substantiated at all by the petitioner/affectee officers. (j)The competent authority has exercised the discretion after considering record of each person, with due application of mind, though the satisfaction will not be the same as that of the Court but it cannot be said that the competent authority has not applied its mind. (k)Instant cases are not maintainable as the applicants have failed to show as to how their right to life being a fundamental right is affected in view of the fact that they are only entitled to be considered for promotion and even promotion is not a right, especially when they Will continue to be considered for promotion every time when there are vacancies.
and Apart from this right no other right has been pleaded or claimed. A right to be considered for promotion cannot be equated with right to life or right to access to justice, etc. under Articles 9 and 25 of the Constitution. In absence of violation of any fundamental rights, although the matter is of great public importance, this Court may not exercise jurisdiction under Article 184(3) of the Constitution, as these are individual grievances. (1) Immediately prior to promotions, eleven Additional Secretaries from BS-21 were acting as Secretaries holding independent Divisions, whereas three Inspectors General of Police and three Chief Secretaries were also working on acting charge basis, and their performance was known to the competent authority, which was one of the consideration for promotion. (m)While making -the promotion under challenge, the competent authority had tried to maintain
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gender balance. [Referred to Articles 27(1) read with 34 and 37(f) of the Constitution]. (n)The competent authority has also tried to observe the quota while making the promotions under challenge, as interpreted by this Court in number of judgments to be the basic feature of the Constitution. (o)When actions are taken in exercise of executive discretion, the Courts of Appeal in England have introduced new element in the doctrine of promissory estopple 'of proportionality'. In future, this Court would be called upon to judge such actions on the doctrine of proportionality i,e, is the action proportionate to the requirement or not. [Referred to Council for Civil Service Unions (CCSU) v. Minwter for the Civil Service [1984] 3 All ER 935 (administrative actions subject to judicial review) and R v. Secretary of State [1985] 1 All ER 40 - [the doctrine of proportionality in the law of estopple]. (p)The grievance of the petitioner/affectee officers are personal in nature and not that of public importance. [Reliance placed on All Pakistan Newspapers Society v. Federation of Pakistan (PLD 2004 SC 600)]. (q)Absence of rules will not render any action, otherwise lawfully taken, to be unlawful. The words 'necessary or expedient' used in Section 25 of CSA, 1973 are not mandatory but directory in nature. (r)Although, the exercise of discretion by the competent authority is subject to judicial review but the standard required for judicial review will have to be different in case of civil servant, who is already part and parcel of the State vis-a-vis the citizen who seeks remedy against the Government. (s)If the affectee officers are aggrieved from the order of promotion under challenge, they should go and seek individual remedy before the competent forum and not through the instant proceedings. He concluded his arguments while saying that according to his instructions, the Government will frame rules with prospective effect in view of the fact that if the rules are made retrospectively it will cause difficulties because some delegated legislation creates rights ex post facto. 10.In rebuttal Mr. Muhammad Akram Sheikh, Sr. ASC added with respect to the question whether fundamental rights are involved or not, that it is not the case of promoted or ignored employees, rather it is a case running the Government in accordance with the Constitution and the Rules of Business. According to him right to employment is a public' undertaking as a fundamental right, derivable from Article 9 of the Constitution. He referred to Pakistan Muslim League (N) v. Federation of Pakistan (PLD 2007 SC 642) and Rules 5(10)(c), 15(2) & (4) of the Rules of Business. Lastly he referred to Sajjad Ahmed Javed Bhatti v. Secretary, Establishment Division [2009 PC (CS) 981] whereby the Service Tribunal directed the Establishment for framing of Rules. 11.Mr. Ikram Chaudhry, ASC placed on record extract from the American Constitution (Para 1 from page 12) on the point that whether the king is the law or the law is the king. He also referred to the book Fundamental law of Pakistan by A.K. Brohi to elaborate public policy and public interest. 12.Mr. Afnan Karin Kundi, ASC argued that the admission made by the counsel for the Federation of Pakistan to the effect that there is need to make the rules as required by Section 9(1) of CSA, 1973, concedes our entire case as if there is need to make rules now, then there was always need to have made rules well in time. While referring to Rule 8-B of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, he added that the senior most officer should be given the acting charge, therefore, the consideration prevailed upon the competent authority that 17 officers were already functioning in BS-22 on acting charge basis, conceded my case because the seniority is the determining factor for promotion to BS-22. 13.Mr. Anwar Mansoor Khan, learned Attorney General for Pakistan made his submissions as under:-- (a) Section 9 of CSA, 1973 has two portions i,e, eligibility and how selection is to be made. Section
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9(1) provides firstly, the eligibility for promotion having minimum qualification as may be prescribed, in the cadre to which he belongs, and secondly the proviso provides that promotion to the post of Secretary be made in the public interest, therefore, every person in BS-21 will be eligible if he possesses minimum qualification and distinction between this promotion and normal promotion is in the 'public interest'. (b) Section 9(2) of CSA, 1973 emphasized upon the word `merit' so the eligibility for the purpose of promotion is not the sole consideration as thereafter 'merit' will come. So all the persons are eligible and merit is to be looked into amongst them. [Reliance placed on Muhammad Yousaf v. Abdul Rashid (1996 SCMR 1297)]. (e) Once a person comes within the ambit of Section 9(1) of CSA, 1973 then the factum of his being acceptable, appropriate, approved and befitting will not be considered. [Reliance placed on Muhammad Anis's case Supra]. (d) The sole criterion for selection post is merit. [Reliance placed on Ghuman Singh v. State of Rajasthan {(1971) 2 SCC 452}, State of West Bengal v. Manas Kumar Chakrabarti (AIR 2003 SC 524) and Union of India and others Versus Lt. Gen. Rajendra Singh Kadyan and another {(2000) 6 SCC 698}. (e) There is no dispute qua the power of this Court to review any order passed by Executive. [emphasized upon the word `any']. However, if a person, who feels aggrieved from a particular order, unable to show as to with what he is aggrieved and the reasons to which he is aggrieved, then it will not be appropriate to throw away an order passed by the executive, unless there is something so specific. (f In absence of rules, when there is complete practice for the past so many years and it is continuing everyday, therefore, if the competent authority has passed an order on the basis of custom and well known principles regarding consistent departmental practice then malice or mala fide cannot be attributed to it. (g)For the past 60 years, whilst a promotion is made in BS-22, there has not been a single occasion where a summary has been moved for promotion and only the files are being sent to the Prime Minister, who examines them and choose to pass an order. This custom and practice has been followed in the instant case and has not been deviated from. (h)The competent authority has exercised its discretion properly, keeping in view the settled principles of discretion. (j) Section 9(3) of the CSA, 1973 places a restriction upon the competent authority that the promotion to the post of BS-20 & 21 shall not be made without the recommendations of the Selection Board, whereas, for promotion to the post of BS-22, there is no such restriction and it is left on the `assessm ent' of the competent authority to select the person upon whom he has reasonable confidence, from those who are eligible, as such now the question of seniority towards eligibility goes out, that is why the lawmaker has omitted the word 'BS-22' from this Section. (k) It is duty of the Court to interpret and explain the law; when we expand the scope of a certain law, we have to remain within the parametets of the law. If the Court ultimately came to the conclusion that promotion to BS-22 had to be made in the same manner as provided for BS-20 or 21, then the Court is expanding the scope of law. [Referred to R (Pro-Life Alliance) v. BBC (2003) 2 All ER 977]. 14. Notices were also issued to the officers promoted to BS-22 to provide them opportunity to appear and make submissions in support of their cases. They appeared in-person on 12th & 15th February, 2010 and explained their service profile and stated that vested rights had accrued to them vide impugned notifications. According to them they were promoted purely on merit and they had not exercised any political or other influence and the information of their promotion was conveyed to them through news, release in electronic or print media. It was their case that have
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un-blemished service record and lot of experience to perform their duties in different capacities. During the service they had secured higher education, passed the departmental examinations and courses with distinction, therefore, they were promoted by the competent authority by comparing their qualifications, experience. ability, eligibility with the officers who were not promoted. Some of them stated, they were going to retire on attaining the age of superannuation after availing the benefits of BS-22, therefore, justice demands that notification should not be set-aside otherwise their reputation would be damaged. The officers of the police group submitted that they belonged to discipline force and Officer in BS-21 is equal to Major General and Officer in BS-22 is equal to Lt. General, therefore, seniority is not a criterion and the competent authority has discretion to promote any officer. They added that it would not be in the interest of justice and in case notifications are set aside, it would be difficult for them to perform their duties, removing their badges of ranks and down grading from BS-22 to BS-21. 15. Since the cases are required to be decided on the basis of facts and figures and not in vacuum, it is necessary to reproduce hereinbelow service record of officers promoted and non-promoted from BS-21 to BS-22 along with relevant details:-- (a) List of Officers of the District Management Group (DMG) BS-21 Officers who were promoted vis- a-vis who were not promoted to BS-22 Posts on or after 04.09.2009. {{TABLE}} Sr.#Seniority Position in BS-21.Name of the OfficerDate of JoiningDate of Notification of Promotion to BS-21Remarks 1 1 Mr. Muhammad Asadullah Sheikh01.12.197330.05.2009 Not promoted 2. 2Syed Tanveer Abbas Jeffery20.02.1976 11.08.2003Not promoted 3 3Mr. Muhammad Athar Tahir12.03.1977 11.08.2003Promoted 4.4Mr. Shahid Hussain Raja21.03.197720.07.2004Not promoted 5. 5Mr. Shaukat Hayat Durrani21.03.197708.09.2003Not promoted 6. 6 Mr. Neguib Ullah Malik00.10.197320.07.2004Promoted 7. 7 Mr. Asif Bajwa 21.03.197708.07.2004Promoted 8. 8Mr. Abdul Ghaffar Soomro21.03.197706.08.2004Promoted 9. 9 Capt.(R) Akhtar Munir Murwat26.08.197419.09.2005Not promoted 10. 10.Syed Muhammad Hamid20.02.197603.01.2006Not promoted 11. 11Oamar Zaman Major (R)01.06.198219.09.2005Prompted 12. 12Mrs. Farkhanda Waseem Afzal08.03.197824.09.2005Not promoted-
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13. 13Mr. Hassan Waseem Afzal08.03.197824.09.2005Not promoted 14. 14Mr. Muhammad Javed Malik .08.03.197824.09.2005Not promoted 15. 15Mr. Hafeez-ur- Rehman08.03.197824.12.2005Not promoted 16. 16Mr. Saeed Ahmad Khan08.03.197814.10.2005Not promoted 17. 17Mr. Imtiaz Hussain…
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