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Petitioner: ATHAR HUSSAIN KHAN VS Respondent: FEDERATION OF PAKISTAN through Principal SecretaryHonorable Justice Mrs. Ayesha A. MalikMs. Asma Jehangir and Haris Azmat,Ch. Amir Rehman
2015 P L C (C.S.) 547
[Lahore High Court]
Before Mrs. Ayesha A. Malik, J
ATHAR HUSSAIN KHAN and others
Versus
FEDERATION OF PAKISTAN through Principal Secretary and others
Writ Petition No.11192 of 2014, decided on 22nd December, 2014.
Constitution of Pakistan---
----Arts. 199 & 212---Federal Service Tribunals Act (LXX of 1973), S.4--- Constitutional petition--- Civil service--- Promotion--- Objective criteria---Attributes of integrity, general reputation and perception---Scope---Discrimination---Petitioners were recommended for promotion by Central Selection Board but Competent Authority referred their cases back for reconsideration on the attributes of integrity, general reputation and perception---Plea of petitioners was that they had been discriminated against and that the attributes of integrity, general reputation and perception were not an objective criteria on the basis of which promotion could be denied---Validity---Petitioners were considered for promotion by the Central Selection Board and were recommended for the same having fulfilled the objective criteria---Names of the petitioners were provided in the list of employees recommended for promotion---Attributes of integrity, general reputation and perception were out of five marks---If an employee under consideration had earned less than three marks, he might be deferred or superseded by the Central Selection Board with reasons to be recorded in writing---If an employee had earned three marks then he/she should be awarded five marks---Summary placed before the Competent Authority had provided for the marks as per the objective criteria---Marks for petitioners on attributes of integrity, general reputation and perception were five as they had earned three marks---No specific information was available before the Competent Authority on the basis of which it could have concluded that Central Selection Board did not give due consideration to the attributes of integrity, general reputation and perception in the case of petitioners---Authority could not have singled out the cases of petitioners on the ground that Central Selection Board had decided upon the attributes of integrity, general reputation and perception in a mechanical manner without due consideration--- Competent Authority had recorded that the recommendations being confirmed were for those employees who had the public reputation and perception of being honest and not corrupt---Nothing was before the Competent Authority on the basis of which it could have come to such conclusion---Competent Authority had promoted some and referred others for reconsideration without just cause which was discrimination---Decision of Competent Authority was not fair and transparent as no reason had been given for such decision---Authority was required to give basis for its decision so as to ensure transparency, fairness and good governance---Petitioners had a right to be considered for promotion which would include the right to know as to why their cases had been singled out---Subjective attributes with regard to integrity and reputation would not play a dominant role in the promotion of senior civil servants---Authority should give due consideration to the collective wisdom of Central Selection Board on the attributes of integrity, general reputation and perception as same were not objective in nature---Authority should rely on the collective wisdom of Central Selection Board which had objectified the assessment---Civil servants should be promoted on the basis of an objective criteria which could be assessed and graded in a fair manner to ensure transparency and good governance---No justification existed to require the Central Selection Board to deliberate further on integrity, general reputation and perception---Such attributes had been factored into the objective assessment criteria and were subject to collective wisdom and a formula for assessment---No re-assessment on such attributes could be ordered unless concrete material was provided which would justify rethinking integrity, general reputation and perception---Decision of Authority was discriminatory which would amount to abuse of discretion---Said decision of re-assessment on attributes of integrity, general reputation and perception was not based on any cogent reason which was set aside---Attributes of integrity, general reputation and perception would relate to the fitness of employee---Assessment of employees for fitness had been excluded from the ambit of S.4 of Federal Service Tribunals Act, 1973---Bar of Art.212 of the Constitution was not attracted to the present case---Authorities were directed to promote the petitioners forthwith from the same date when other recommendations were approved and notified---Constitutional petitions were accepted in circumstances.
Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817; Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others PLD 2013 SC 195; Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354; Habibullah Energy Limited and another v. WAPDA through Chairman and others PLD 2014 SC 47; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others PLD 1973 SC 144; Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others PLD 2003 SC 110 and Asdullah Mangi and others v. Pakistan International Airlines Corporation and others 2005 SCMR 445 ref.
Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others 2014 SCMR 817 rel.
Ms. Asma Jehangir and Haris Azmat for Petitioners (in W.P. No.11192 of 2014).
Haris Azmat and Ali Saleem for Petitioners (in W.P. No.28201 of 2014).
Saad Rasul for Petitioners (in W.P. No.14612 of 2014).
Dr. Ikram ul Haq and Mansoor Beg for Petitioners (in W.Ps. Nos.12094 and 3340 of 2014).
Riaz Ahmad Tahir for Petitioners (in W.Ps. Nos.17924 and 17944 of 2014).
Said Ijaz Hotiana for Petitioners (in W.P. No.19657 of 2014).
Ch. Amir Rehman, D.A.-G. along with Shams-ud-Din, Section Officer, Establishment Division, Islamabad for Respondents.
Ibrar Ahmad for Respondent FRB (in W.P. No.14612 of 2014).
Izhar ul Haq for Respondent FRB (in W.P. No.12094 of 2014).
Date of hearing: 11th December, 2014.
JUDGMENT
MRS. AYESHA A. MALIK J.--- This common judgment decides upon the issues raised in the Writ Petitions detailed in Schedule 'A', appended with this judgment.
2. The petitioners are civil servants in BS-20. The petitioners were recommended for promotion by the Central Selection Board (CSB), however the Competent Authority, being the Prime Minister referred their cases back to the CSB for reconsideration on the attributes of integrity, general reputation and perception. The grievance of the petitioners is that they have been discriminated against and that the attributes of integrity, general reputation and perception are not an objective criteria on the basis of which promotion can be denied.
3. The petitioners in W.Ps. Nos.12094, 3340 and 14612 of 2014 belong to the Inland Revenue Service. The petitioner in W.P. No.17924 of 2014 belongs to Railways (Commercial and Transportation) Group. The petitioner in W.P. No.17944 of 2014 belongs to the Railways (Civil Engineering Department). The petitioners in W.P. No.19657 of 2014 belong to the Income Tax Group. The petitioner in W.P. No.28201 of 2014 belongs to Pakistan Administrative Service Group. The grievance of all the petitioners in the stated Writ Petitions is identical to that of the petitioners in W.P. No.11192 of 2014.
4. Mr. Haris Azmat and Mr. Ali Saleem, Advocates for the petitioners (in W.P. No.28201 of 2014), Mr. Riaz Ahmad Tahir, Advocate for the petitioners. (In W.Ps. Nos.14612 and 17944 of 2014) and Mr. Sajid Ijaz Hotiana, Advocate for the Petitioners (in W.P. No.19657 of 2014) adopted the arguments made by the learned counsel for the Petitioners in W.P. No.11192 of 2014).
5. The facts of the case are that the petitioners are all civil servants in the Pakistan Administrative Service Group (PASG) in BS-20. The promotion of the petitioners from BS-20 to BS-21 is through selection and recommendation by the CSB. As per Promotion Policy 2007, 70% marks are allocated to the quantification of Personal Evaluation Reports (PER) in the previous and present grades while 15% of the marks are allocated to the quantification of the Training Evaluation Reports (TER) and the remaining 15% marks are allocated for evaluation by the CSB. The minimum marks required are 75%. The recommendations of the CSB are then forwarded to the Competent Authority, being the Prime Minister, for appointment. The grievance of the petitioners is that they were recommended by the CSB, however the Competent Authority did not confirm the recommendations of the petitioners and instead sent the matter back to the CSB for reconsideration with respect to attributes of integrity, general reputation and perception. In terms of the summary issued by the Prime Minister's Office dated 3-4-2014, the Competent Authority observed that CSB failed to apply its mind and exercise its discretion in an objective manner in evaluating the attributes of general reputation and perception with reference to the petitioners. The CSB was required to be mindful of these attributes which were inserted in the objective assessment form in order for the CSB to evaluate officers not only on the basis of integrity as reported in the ACRs and PERs but also to form a collective opinion as to the general reputation and perception of the officers for consideration in a reasonable, fair and equitable manner. The Competent Authority was of the opinion that the CSB had made its recommendations in a mechanical manner without application of mind. He therefore, required the CSB to reassess the general reputation and perception related to the petitioners.
6. Learned counsel for the petitioners argued that the petitioners were promoted in February 2013, however on account of the case titled Orya Maqbool Abbasi v. Federation of Pakistan through Secretary Establishment and others (2014 SCMR 817) before the Hon'ble Supreme Court of Pakistan, their promotions/appointments were withdrawn. Subsequently the petitioners were again considered by the CSB and were recommended for promotion. Out of 124 officers in BS-20, 45 were recommended for promotion. The Competent Authority promoted 37 officers and deferred the promotion of 18 officers which included the petitioners. Learned counsel argued that the deferment of promotion of the petitioners on the ground that the CSB had not applied its mind and did not give due weightage to attributes of integrity, general reputation and perception is contrary to the dicta laid down in 2014 SCMR 817 (supra). Further argued that the selection of some officers from those recommended and deferment of others, tantamounts to abuse of discretion. She argued that there is no basis or objective criteria which compelled the Competent Authority to promote some and defer others. She further argued that it was an exercise of pick and choose because the CSB was told to rethink the attributes of integrity, general reputation and perception with respect to the petitioners whereas the recommendations of the other officers on these attributes were not questioned. This amounts to abuse of discretion and discrimination.
7. She further argued that in terms of the dicta laid down by the Hon'ble Supreme Court of Pakistan, the discretion to award marks on the basis of integrity, general reputation and perception cannot be exercised subjectively or on the basis of personal information, opinion and perceptions. The decision must be based on information which is based on the record. She argued that the Competent Authority was not justified to pick out certain officers for promotion and require the re-assessment of others on their general reputation and perception. She argued that good governance is based upon a transparent decision making process. The service record of the petitioners was before the CSB and the Competent Authority, in which there is no room for perceptions. She further argued that the case of the petitioners was sent back to the CSB by the Competent Authority without assigning any reason, without any explanation as to why their cases were singled out. Learned counsel for the petitioners places reliance on the cases titled Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others (PLD 2013 SC 195), Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others (PLD 2013 Lahore 413), 2014 SCMR 817 (supra) and Abdul Wahab and another v. Secretary, Government of Balochistan and another (2009 SCMR 1354). She further argued that discretion wherever and by whomever exercised must be structured and is never absolute. It is also subject to judicial review. Reliance has been placed on the case titled Habibullah Energy Limited and another v. WAPDA through Chairman and others (PLD 2014 SC 47).
8. Mr. Saad Rasul, Advocate for the petitioner (In W.P. No.14612 of 2014) argued that in his case the petitioner is a civil servant of the Internal Revenue Service, posted as Commissioner Inland Revenue Service (BS-20), Regional Tax Office, Lahore. He has an unblemished service record, of over 35 years which includes about 30 years of service in the Federal Board of Revenue. As a testament to his unblemished career, the petitioner has been appreciated by the Full Bench of the Hon'ble Supreme Appellate Court of Gilgit Baltistan vide its order dated 12-10-2009 and judgment dated 5-10-2010 in SMC No.13/2009. He further argued that no disciplinary or departmental proceedings are pending against the officer. The petitioner secured the highest marks in his evaluation made by his parent department being the FBR as well as in the PER, TER and yet he was not approved by the Competent Authority. Learned counsel argued that by sending the petitioner's recommendation for reconsideration by the CSB, the Competent Authority ignored the dicta laid down in the case cited at 2014 SCMR 817 (supra). No cogent reason has been given for reconsideration and there is nothing on the service record which justifies such a decision.
9. Dr. Ikram ul Haq and Mr. Mansoor Beg, Advocates for the petitioners (In W.Ps. Nos.12094 and 3340 of 2014) argued that the petitioners belong to Inland Revenue Service. In the cases of the petitioners, the Prime Minister only confirmed 11 officers out of 16 in W.P. No.12094 of 2014, and 17 in W.P. No.3340 of 2014, recommended by the CSB. No reasons have been conveyed for this decision. Learned counsel stated that under section 9(3) of the Civil Servants Act, 1973, (1973 Act) promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman Federal Public Service Commission. Further argued that Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (1973 Rules) also requires the Competent Authority to act on the recommendation of the CSB as it says Promotions and transfer to posts in basic pay scales 2 to 13 and equivalent shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfer to posts in basic pay scales 19 to 21 and equivalent shall be made on the recommendation of the Selection Board. Learned counsel further argued that section 9(3) of the 1973 Act and Rule 7 of the 1973 Rules contain the word 'shall' confirming that these provisions are mandatory and not mere directory. The deliberate use of the word 'shall' in the statute and corresponding rules make it clear that the recommendations of the CSB are mandatory in nature and the Prime Minister has to act on the same. Learned counsel further argued that the decision of the Competent Authority to send the recommendations back to the CSB for reconsideration is not based on any record nor is there any reason available. Learned counsel argued that promotion cannot be decided on the basis of personal information, opinion or perception as held in the case cited at PLD 2013 Lahore 413 (supra).
10. Report and parawise comments have been filed by the respondents. Learned D.A.-G. raised an objection with respect to the maintainability of these petitions on the ground that the bar of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution) is applicable. However this ground was over-ruled by this Court, given that the attributes of integrity, general reputation and perception relate to the fitness of officers for the post in question and it is settled law that assessment of officers for fitness is excluded from the ambit of the Service Tribunal under section 4 of the Federal Service Tribunals Act, 1973 (Act of 1973). Therefore the bar of Article 212 of the Constitution is not attracted to the present cases.
11. The next objection raised by the learned D.A.-G. was that the order of the Competent Authority was not justiciable because it is an interim order and on the ground that the order itself protects the rights of the petitioners by keeping their seats vacant until the matter is reconsidered by the CSB. Learned D.A.-G. argued that this Court cannot interfere with an interim order. Furthermore given that the seats have been kept vacant, the petitioners have no grievance and no cause of action against the respondents. Learned D.A.-G. placed reliance on the case titled Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144). Learned D.A.-G. argued that the petitioners have no vested right on the basis of which these petitions have been filed. A civil servant cannot ask for promotion as of right and the refusing of promotion falls within the exclusive domain of the executive authority. In the event that a promotion has been denied it cannot be termed as a denial of any fundamental right and therefore the petitions are not maintainable. Reliance has been placed on the case titled Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others (PLD 2003 SC 110). Learned D.A.-G. further argued that no case of discrimination is made out. The executive is required to provide similarity of treatment but is not required to give identical treatment. Due process was followed and the Competent Authority has not deferred the cases of the petitioners nor any adverse remarks have been issued against the petitioners. Simply reconsideration has been called for while ensuring that the seats remain vacant so as not to prejudice the rights of the petitioners. Reliance has been placed on the case titled Asdullah Mangi and others v. Pakistan International Airlines Corporation and others (2005 SCMR 445). Learned D.A.-G. further argued that the recommendations of the CSB are advisory in nature and are not binding on the Competent Authority. Reliance has been placed on the case titled Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 114).
12. With respect to the issue raised against the criteria of integrity, general reputation and perception, learned D.A.-G. stated that these are objective in nature and have been made a part of the Promotion Policy, 2007 after the case cited at 2014 SCMR 817 (supra) giving full consideration to the dicta of the Hon'ble Supreme Court of Pakistan. Learned D.A.-G. further argued that the recommendations of the CSB are to be given weightage by the Competent Authority, however ultimately it is his prerogative. In these cases as per the summary, he required a clear decision on the attributes of integrity, general reputation and perception, hence he asked the CSB to reconsider the cases of the petitioners with specific reference to the said attributes.
13. Heard the learned counsel for the parties and gone through the record available on the file.
14. All the petitioners have challenged the decision of the Competent Authority wherein he has referred their cases back to the CSB for reconsideration on attributes of integrity, general reputation and perception. The learned D.A.-G. raised an objection with respect to the maintainability of these petitions on the ground that the decision of the Competent Authority being an interim order could not be interfered with because it fell within the domain of the executive authority and that it protects the rights of the petitioners by keeping their seats vacant until the matter is finally decided. In the cases before the Court, the petitioners were all duly considered for promotion by the CSB and were recommended for promotion having fulfilled the objective criteria set out in the Promotion Policy, 2007. The Competent Authority approved the promotion of some candidates while in the case of the petitioners, he was of the opinion that the CSB did not apply its mind to the attributes of integrity, general reputation and perception. So far as the petitioners are concerned, he required a comprehensive and objective decision from the CSB as per the dicta laid down in the case cited at 2014 SCMR 817 (supra). The learned D.A.-G. was asked to show the documents and the record on the basis of which the Competent Authority came to the conclusion that the CSB did not apply its mind to the case of the petitioners. The learned D.A.-G. placed a summary prepared for the Competent Authority with reference to the recommendations of the CSB. The CSB recommended 45 candidates out of 124. Table No.1 in the summary provides for the Total Score of PER and Training of the officers recommended for promotion and the marks awarded to them by the CSB. For the purposes of the dispute before this Court, marks awarded by the CSB are relevant. The names of the petitioners are provided in the list of 45 officers recommended for promotion. The learned D.A.-G. has placed before this Court the objective assessment criteria for the CSB. The objective assessment criteria before the CSB is as follows:---
S.No.
Parameters/Attributes
Total Marks
Marks Assigned
1.
Output of Work and Quality of Work
2.
Variety and Relevance of Experience Secretariat/Field Postings; Federal/Provincial Government Posting; Leadership/Routine Postings; Deputation/Foreign Postings.
3.
Professional Expertise.
4.
Personality Profile (As known to the Board Members)
5.
Conduct, Discipline and Behaviour [Observation by RO/CO during last 05 years OR as known to the Board Members]
6.
Functional Ability and Leadership
10
7.
Estimated Potential for Middle/ Higher Management Based on PERs and Training Evaluation Reports: Management Skills, Ability to take decisions, Strategic Thinking, Leadership Qualities, Drive for Results and Accomplishments in BPS-19 and 20 in policy formulation and implementation.
8.
Integrity/General Reputation/ Perception On the basis of PERs/TERs/Opinion of the Board
5
9.
Total Marks by CSB
15
10.
Overall Category Cat A Cat B Cat-C (11-15) (06-10) (0-05)
The attributes of integrity, general reputation and perception are out of five marks and if an officer under consideration gets less than three marks, he may be deferred or superseded by the CSB at their discretion with reasons to be recorded in writing. If the officer gets 3 marks, he is awarded 5 marks. The summary placed before the Competent Authority provided for the marks awarded by the CSB as per the Objective Assessment Criteria. The marks shown are out of 30. The marks for all petitioners on attributes of integrity, general reputation and perception are 5 because they got the required 3 marks. There is no specific information before the Competent Authority on the basis of which he could have concluded that the CSB did not give due consideration to the attributes of integrity, general reputation and perception in the case of the petitioners. The learned D.A.-G. also confirmed that no other material or information was placed before the Competent Authority. Therefore based on summary, the Competent Authority could not have singled out the cases of the petitioners on the ground that the CSB decided upon the attributes of integrity, general reputation and perception in a mechanical manner without due consideration. The Competent Authority as per the minutes has recorded that the recommendations being confirmed are for those officers who unquestionably have the public reputation and perception of being honest and not corrupt. To the mind of this Court, there is nothing before the Competent Authority on the basis of which he could have come to this conclusion. The Competent…
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