Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: PANAH ALI JUMANI VS Respondent: SECRETARY, ESTABLISHMENT DIVISION, ISLAMABADHonorable Justice JUSTICE (R) TANVIR BASHIR ANSARIM. Shoaib Shaheen,M. Aslam Uns
2008 P L C (C
2008 P L C (C.S.) 648
[Federal Service Tribunal]
Before Justice (R) Tanvir Bashir Ansari, Chairman and Zaheer Ahmed, Member
PANAH ALI JUMANI
Versus
SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD and 3 others
Appeal No.17(Q)C.S. of 2006, decided on 1st December, 2007.
Civil Servants Act (LXXI of 1973)---
---Ss. 8 & 9---Service Tribunals Act (LXX of 1973), S.4---Promotion---Entitlement---Appeal to Service Tribunal---Respondent, despite being junior to appellant, superseding him, was promoted---Appellant earned promotion first from BS-17 to BS-18 and then from BS-18 to BS-19 in the order of merit---Appellant, as Superintending Engineer in BS-19, earned two `very good' and seven `good' A.C.Rs. and was never rated as 'average' or `below average'. in BS-19---Appellant had also been admittedly put in the qualifying service in the respective grades necessary for promotion to the next higher grade---Appellant had crossed the eligibility threshold having secured quantification score of 71---Character traits of the appellant also reflected positive trend and did not indicate any negative element---Appellant was never subjected to any disciplinary proceedings as per record and had also secured 56% result of NIPA as against 54% obtained by the respondent---Only factor which tilted the balance in favour of his junior (respondent) was the quantification score of 72 as against the score of 71 of the appellant which according to the Central Selection Board, was sufficient to out-weigh the factor of seniority extending in favour of appellant---Validity---Held, that was not a sufficient consideration for the supersession of the appellant---Seniority was an element that would inhere in all civil servants and was an inalienable right for being considered for promotion, unless taken away by the existence of some tangible negative factor existing against him---No such factor existed which could militate against such right of appellant---Seniority was an unquantifiable factor, but it certainly would imply the maintenance of good performance consistently over a longer period of time when compared with his junior counterpart---Seniority factor must form an integral feature while calculating or determining the 'comparative' excellence or merit---Mere placing of name of an official higher in the seniority list in the panel to be considered for ,promotion, was not meaningful consideration of the factor of seniority---If seniority was not to be given due weightage, it would reduce the exercise of a mechanical feature only---Supersession of appellant was converted into deferment and authorities were directed to consider case of promotion of appellant in accordance with law.
M. Shoaib Shaheen for Appellant.
M. Aslam Uns for Respondents along with Rashid Sohail, S.O. Establishment Division, Syed Naveed Raza, Assistant, PWD and Abdus Saboor, Assistant as Department Representative.
Date of hearing:- 1st December, 2007.
JUDGMENT
JUSTICE (R) TANVIR BASHIR ANSARI (CHAIRMAN).---This appeal is directed against the original order, dated 18-1-2005 whereby the respondent No.4 was promoted to BS-20 after superseding the appellant. The appellant preferred a departmental appeal dated 14-2-2005 which was not responded to which occasioned the filing of the instant appeal.
2. Briefly the facts are that the appellant joined Government service on 26-2-1975 in the capacity of Assistant Executive Engineer (BS-17) duly recommended by the Selection Board/Federal Public Service Commission. The appellant was promoted to the post of Executive Engineer (BS-18) on 5-12-1981 and Superintending Engineer (BS-19) on 26-5-1994.
3. The Ministry of Housing and Works proposed to fill five posts of Chief Engineers (BS-20) in Pakistan P.W.D. and for this a panel of 15 officers including the appellant was considered by the Selection Board. Through Notification of promotion issued by the Government of Pakistan, Ministry of Housing and Works vide No.F-1(4)/2004-Admn.III, dated 18-1-2005, the respondent No.4 who was junior to the appellant was promoted in supersession of the appellant.
4. The learned counsel for the appellant assails the order of supersession on the ground that throughout his career, the service record of the appellant has been exemplary. As Superintending Engineer, the appellant earned two "very good" A.C.Rs. while the remaining seven A.C.Rs. were recorded as "good". There was no "average" or "below average" report in respect of the appellant. The entire service career of the appellant was unblemished. The over all assessment of his character traits has been favourable. No adverse A.C.R. has ever been communicated to him. Further as per the record of the appellant the appellant has quantification score of 71 and had obtained 56% marks in NIPA as against 54% marks of the respondent No.4. It is contended that in view of the aforesaid it was not justifiable for the Central Selection Board to supersede the appellant qua respondent No.4 on the ground that "although he (appellant) made the minimum required threshold, his 'performance did not meet the criteria of excellence and comparative merit".
It is further contended that the right to be considered for promotion is neither illusory nor unreal. In case of supersession a civil servant has a right to know the reasons and the substance on the basis of which he is dubbed as "not meeting criteria of excellence and comparative merit".
5. On the other hand it is contended on behalf of the respondents that promotion to a selection post is to be made in accordance with the merit and seniority is relevant only to the extent that the officers on the panel are to be considered for promotion in the order of their seniority. It is submitted that accordingly the case of the appellant was considered in that order but as the respondent No.4 had a better quantification score of 72 as against 71 of the appellant, the appellant was recommended for supersession as his performance did not meet the criteria of excellence and comparative merit as compared with respondent No.4.
6. Arguments have been heard and record perused.
7. It is not denied by the respondents that the appellant earned promotion first from BS-17 to BS-18 and then from BS-18 to BS-19 in the order of merit. As Superintending Engineer (BS-19) the appellant earned two "very good" and 'seven "good" A.C.Rs. He was never rated as "average" or "below average" in BS-19. The appellant had also admittedly put in the qualifying service in the respective grades necessary for promotion to the next higher grade. He had crossed the eligibility threshold having secured quantification score of 71. The character traits of the appellant also reflected positivity and did not indicate any negative element. The appellant was never subjected to any disciplinary proceedings as per record made available to this Court. He had also secured 56% result of NIPA as against 54% obtained by the respondent No.4. The only factor which tilted the balance in favour of his junior (respondent No.4) was the quantification score of 72 as against score of 71 of the appellant. This according to the Central Selection Board was sufficient to outweigh the factor of seniority extending in favour of the appellant.
8. In our view this was not a sufficient consideration for the supersession of the appellant. Seniority is an element that inheres in all civil servants and is an inalienable right for being considered for promotion unless taken away by the existence of some tangible negative factor existing against him. We are unable to discover any such factor which could militate against such a right. The quantification score (a marginal 1 mark difference between the appellant and the respondent No.4) is not the only factor to determine comparative excellence and merit. It appears to be too simplisitic an approach. Seniority is an unquantifiable factor but it certainly implies the maintenance of good performance consistently over a longer period of time when compared with his junior counterpart. The seniority factor must form an integral feature while calculating or determining the "comparative" excellence or merit.
9. We are also of the view that mere placing of name of an official higher in the seniority list in the panel to be considered for promotion is not meaningful consideration of the factor of seniority. If seniority is not to be given due weightage, it would reduce the exercise of a mechanical feature only.
10. For the foregoing reasons we convert the supersession of the appellant into deferment and direct the respondents Nos.1-3 to consider the case of promotion of the appellant in accordance with law and observations hereinabove made in the forthcoming meeting of the C.S.B.
11. No order as to costs.
12. Parties be informed accordingly.
H.B.T./11/FST Order accordingly.