Full Judgment Text & Judicial Ruling

2006 P L C (C

2006 P L C (C.S) 564

[Karachi High Court]

Before: Sabihuddin Ahmed CJ and Ali Sain Dino Metlo, J

KHAN M. MUTIUR RAHMAN and others

Versus

GOVERNMENT OF PAKISTAN through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others

Constitutional Petitions Nos.-D1761 of 2002, D-829 and D-1060 of 2005, decided on 6th April, 2006.

(a) Constitution of Pakistan (1973)---

---Arts. 199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Promotion---Supersession---Penal pro forma referring to the civil servant's performance evaluation throughout his career showed that in B.S.20 he was given 09 `very good' and 02 `good' reports and there was not a single adverse or even average report---No penalty had ever been imposed on the civil servant and it was absolutely incomprehensible on what basis the Central Selection Board proceeded to observe that "he had a lack luster" career in BS.20 and three officers junior to him were recommended---Such an observation showed lack of bona fides ex facie and seriously impaired the credibility of the assessment by the Central Selection Board which required judicial intervention.

(b) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), Preamble---Constitutional jurisdiction of High Court under Art.199 of the Constitution---Scope---Bar of Art.212 of the Constitution---Extent---Execution of order of Service Tribunal, a forum of exclusive jurisdiction---Maintainability of constitutional petition under Art.199 of the Constitution---Principles---Whenever a valid and proper decision of a forum established by law was not being given effect, such omission on the part of government agencies . amounted to failure to perform a duty by law and in such cases, High Court always had the jurisdiction to issue a mandamus in terms of Art.199(l)(a)(i) of the Constitution.

A petition seeking to execute an order of a Service Tribunal of exclusive jurisdiction was not maintainable in view of the bar of jurisdiction of High Court under Article 212 of the Constitution. No doubt, Article 212(2) contains explicit constitutional mandate to the effect that "notwithstanding anything hereinbefore contained, where any administrative Court or Tribunal is established under clause (1) no other court shall grant an injunction, make any order or entertain any proceeding in respect of any matter to which the jurisdiction of such administrative Court or Tribunal extends."

Indeed, the expression "no other Court" included the High Court exercising constitutional jurisdiction. However, the question would be whether the jurisdiction of a Service Tribunal extends to the kind of matter involved in. Undoubtedly, the legislature has established Service Tribunal to adjudicate matters relating to terms and conditions of civil servants. Obviously, such decisions are required to be implemented. However, the Service Tribunals Act contains no provision relating to execution or enforcement of the decisions of such Tribunals. Even the power to punish for contempt on ground of defiance of Tribunal has not been conferred upon such Tribunals. In the circumstances, wherever a valid and proper decision of a forum established by law is not being given effect, such omission on the part of government agencies amounts to failure to perform a duty ordained by law. In such cases, a High Court always has the jurisdiction to issue a mandamus in terms of Article.199(1)(a)(i) of the Constitution.

(c) Service Tribunals Act (LXX of 1973)---

----S. 4---Promotion---Fitness of civil servant---Jurisdiction of Service Tribunal---Scope---Matter related to fitness of civil servant---While determining the fitness of civil servant the Selection Board might have applied a wrong or unlawful criterion, but the fact remained that the matter did pertain to fitness---Case of an ineligible person may not be required to be considered by the Selection Board at all and comparative merit could only be examined with respect to eligible candidates---Contention that judgment of the Service Tribunal inasmuch as the question related to the fitness of the civil servant to be promoted, was without jurisdiction, had force.

(d) Constitution of Pakistan (1973)---

----Art. 199---Constitutional - petition---Laches---Petitioner had been pursuing his remedies, albeit under a misconception of law---Constitutional petition could not be treated to be barred by lathes.

(e) Constitution of Pakistan (1973)---

----Arts. 199 & 212---Civil Servants Act (LXXI of 1973), Ss.4(1)(b) proviso (b) & 22(2), proviso---Constitutional petition---Maintainability---Bar of Art.212 of the Constitution---Scope---Department in the matter of representation of the civil servant taking up inconsistent position while interpreting S.22(2), Civil Servants Act, 1973 and S.4(1)(b) of the said Act---Both provisions were identical in terms and there could be no reasons for construing differently---Bar of Art.212 of the Constitution, in circumstances, was not attracted.

(f) Constitution of Pakistan (1973)---

----Arts.199 & 212---Constitutional jurisdiction of High Court---Scope---Civil service---Promotion---Civil servant could not claim promotion to a higher position as a matter of legal right; at the same time, it had to be kept in view that all public powers were in the nature of a sacred trust and its repositories were required to exercise same in a fair, reasonable and transparent manner strictly in accordance with law---Any transgression of such principles was liable to be restrained by the superior Courts in their jurisdiction under Art.199 of the Constitution---One could not overlook that even in the absence of strict legal right there was always of legitimate expectancy on the part of a senior, competent and honest career civil servant to be promoted to a higher position which could only be denied for good and proper reasons---Power on a public functionary itself implied a restraint in operating the power and excessive use of lawful power was itself unlawful.

Independent Newspaper Corporation v. Chairman, Fourth Wage Board and Implementation Tribunal 1993 SCMR 1533 quoted.

(g) Constitution of Pakistan (1973)---

----Art. 199---Constitutional jurisdiction of High Court--Scope---Civil service---Promotion---Assessment of an officer's performance during a year may completely depend on the subjective opinion of his Reporting Officer---Weightage required to be accorded to it for the purpose of determining fitness for promotion entails an objective assessment--Courts will not sit in judgment over subjective evaluation but would indeed be competent to examine whether the required objective criterion was followed---High Court, while observing that the recommendations of the Central Selection Board being not always consistent or in accordance with the required standards, was persuaded to issue directions required to be followed.

Indeed, posts in BS-21 were senior management positions requiring selection on the basis of merit and promotions to such posts could not be made in a mechanical manner and a variety of factors, such as examination of service records, evaluation reports of training institutions, record of disciplinary proceedings, reputation of integrity and efficiency, suitability for handling particular assignment, etc. had to be taken into consideration. It is also correct that a substantial amount of subjective evaluation of an officer's capabilities is involved: Therefore, normally questions of determination of fitness of a person to be promoted is not capable of being scrutinized on the basis of judicially manageable standards. Nevertheless, such subjective evaluation is to be premised on an objective criteria with the object of evolving such objective criterion, the Government itself has been issuing promotion policy guidelines and developed methods of quantifying confidential reports; which have been treated at par with statutory rules. It may be clarified that the assessment of an officer's performance during a year may completely depend on the subjective opinion of his Reporting Officer. The weightage required to be accorded to it for the purpose of determining fitness for promotion entails, an objective assessment. Indeed, the Courts will not sit in judgment over subjective evaluation but would indeed be competent to examine whether the required objective criterion was followed. Unfortunately, the recommendations of the Central Selection Board were not always consistent or in accordance with the required objective standards. High Court, in circumstances, was persuaded to issue a few directions required to be followed:

(i) Correctness of information: In the first instance, any observation made by the Central Selection Board regarding the past conduct or performance of an officer must be based on authentic and verifiable information to describe an officer's performance as lack luster in the face of 09 `very good', 02 `good' and not a single adverse or even average report defies all norms of objectivity and could vitiate the entire exercise.

(ii) Previous supersession: It has been noticed that the previous supersession of an officer has been treated as a ground for recommending supersession by a subsequent Selection Board despite the fact that it is repeatedly asserted that posts in BS-21 are selection posts and promotions are to be made on the basis of comparative excellence. In this context, a distinction ought to be kept in view between posts where promotion is made on seniority-cum-fitness basis and selection posts. Indeed, in the former case the supersession of a senior officer takes place only when he is found to be unfit for promotion and such finding of unfitness by the competent authority needs to be given weight. In selection posts, however, an officer may eminently be suitable for promotion but is superseded merely because a junior might be found to be comparatively more meritorious. In such cases,, therefore, the previous supersession of such officer must be completely ruled out of consideration and his merit must be ascertained in comparison to others so eligible.

(iii) Eligibility Threshold: There seems to be some confusion whether the minimum 75 marks requirement is a question relating to eligibility or fitness of a civil servant to be promoted. The Honourable Supreme Court has repeatedly held that for the purpose of Civil Servants Act, there is a marked distinction between the concept of eligibility and fitness. 'As held in Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 439), eligibility involves the legal qualification of a person to be appointed or promoted, whereas fitness relates to the suitability for such appointment. The question of eligibility has been held to be justiciable before a Service Tribunal as against that of fitness. Though the Selection Board may consider a person unfit for promotion on account of his low quantified score or even choose not to examine other factors in the case of an officer's scoring below a prescribed minimum, it would not be quite correct to describe it as an eligibility threshold. Primarily it is an important factor relating to the fitness of a person to be promoted.

(iv) Overall assessment: It has been noticed that the Central Selection Board has, mainly been considering the quantified score worked out on the basis of the nebulous criterion "overall assessment" with no reference to his quality and work output and integrity. Indeed, it is common knowledge that integrity and quality and output of work are crucial factors in the performance evaluation of a civil servant and other factors, if any, could only have secondary effect. It is not understandable, as for instance, in the present case how this officer was found to possess less than 75 marks under "overall assessment", whereas in terms of quality and output of work he obtained more than 85 and more than 90 in terms of integrity. Obviously, some altogether extraneous factors were considered while recording his "overall assessment". In any event, when the quantification formula requires as civil servant's performance to be quantified, apart from overall assessment, in terms of quality and work output as well as moral and intellectual integrity, non-consideration of the latter factors both for the purposes of determining the minimum threshold or for fitness by the Central Selection Board is entirely unwarranted. It may be added that Para 6(e) of the Guidelines for Central Selection Board contained at page 233 of the Estacode, 2002-03 Edition explicitly requires that marks calculated in respect of these two factors shall be crucial in determining the comparative merit of an officer (v) Staff College Training: It appears that undue emphasis has been accorded to an officer's performance in the training courses in Staff College. Indeed such training may be important before promotion as a general rule but it cannot be overlooked that officers above the age of 56 years have been exempted from such training and, therefore, high performance in such courses cannot be considered to weigh over several other important factors including an officer's overall performance of work during his entire career. At the same time when the Board's guidelines themselves stipulate that an officer's attendance of .such course will be treated as a regular posting and an ACR would be recorded in respect of his performance, the evaluation can only be treated as one ACR for the purpose of quantification and no more. It has been noticed that in the case of petitioner in the present case his supersession was approved by the Establishment Division on the ground of his being minus rating at the Staff College irrespective of other considerations, which was entirely unwarranted.

Khalid Jawed Khan for Petitioners (in C.P. No.D-1761 of 2002)

Shahenshah Hussain and Mr. Mansoorul Haq Solangi for Petitioner (in C.P. No.D-829 of 2005).

Dr. Farogh Naseem for Petitioner (in C.P. No.D-1060 of 2005).

Mehmood Alam Rizvi, Standing Counsel.

Syed Shahid Hussain, Syed Muhammad Iqbal Shah along with Hifzur Rehman, Addl. Secretary, Establishment Division and Ex Officio Secretary, Central Selection Board, for the Respondents.

Date of hearing: 3rd February, 2006.

JUDGMENT

SABIHUDDIN AHMED, C.J.---The petitioners in all these petitions are civil servants in the Income Tax Group and the petitions entail more or less similar facts and common questions of law and we therefore, decided to dispose them of by a common judgment. It might be necessary: however, to briefly recapitulate the facts of each case.

C.P. No.D-1761 of 2002:

2. Petitioner M. Matiur Rehman was serving in BS-20 and attended the 75th National Management Course at the Pakistan Administrative Staff College from 30th July to 1st December, 2001. According to him, he was required to write a Research Paper on the new Income Tax Ordinance, 2001., which was highly appreciated by his supervisor. He was admittedly recommended for promotion to BS-21 by the Central Selection Board on 31-12-2001 subject to certain conditions. According to the minutes of the meeting placed before the Court as well as the parawise comments filed on behalf of the Respondents Nos.2 and 3 though the "quantification threshold" of the Petitioner with respect to overall assessment was less than 75 (73), his Reporting Officer (Chairman CBR) stated that his ACRs for the period between 1-1-2000 and 30-6-2000 had been recorded and this was likely to raise his overall assessment to the prescribed threshold of 75. He also spoke highly of his professional competence and integrity. Accordingly the Board recommended his promotion subject to the following conditions:

(i) After inclusion of his ACR for 2000-2001 his score of O/A is raised to 75, and

(ii) His report from PASC, which was awaited, is found satisfactory.

Nevertheless, the Petitioner was one against considered for promotion in the subsequent meeting of the CSB dated 22-6-2002 but for some odd reasons his ACRs duly recorded and referred to in the previous meeting were not taken into consideration and his quantified score in terms of overall assessment was found to have been reduced to 72.6. Accordingly, he was recommended for supersession while four officers junior to him were approved for promotion.

3. The petitioner submitted representation against his supersession, which was withheld on the ground that no representation could be made on matters determining the fitness of a person to be promoted, whereupon this petition was filed. In the parawise comments it was acknowledged that the Chairman CBR stated that his quantification score was likely to rise above 75 but it was contended that the petitioner's performance at the Administrative Staff College was unsatisfactory. Subsequently, pursuant to the directions of the Court the minutes of the meeting of the Selection Board were also placed on record.

4. During the pendency of this petition two further meetings of the CSB were held in 2003 and 2004 respectively. In the first, his quantified score in terms of overall assessment was found to be 76.6, quality and work output at 85.6 and moral and intellectual integrity as 92 and 93 respectively. He was stated to have passed PASC course with B-minus grade. Nevertheless, he was recommended for supersession with the following observations:---

"This officer had a lack luster career in BS-20. He had achieved B-minus in PASC and was placed at 25 amongst 28 participants.",

5. Incidentally, in the record produced by the respondent himself along with the statement there is a "Penal pro forma" referring to the petitioner's performance evaluation throughout his career which shows that in BS-20 he was given 09 'very good' and 02 'good' reports and there was not a single adverse or even average report. No penalty had even been imposed upon him and it is absolutely incomprehensible on what basis the CSB proceeded to observe that "he had a lack luster" career in BS-20 and three officers junior to him were recommended. Such an observation we are constrained to mention lacks bona fides ex facie and seriously impairs the credibility of the assessment by the CSB requiring judicial intervention.

6. It may also be interesting to note that while the petitioner was conditionally approved for promotion in 2001 and superseded in 2002 on the ground that his already recorded ACRs for 2000-2001 raising his quantification score was not taken into consideration, in its meeting held in 2003 the CSB recommended another officer Raja Sikandar Khan for promotion without having earned a full year's ACR after his supersession in 2002 merely because the Reporting Officer informed the Board that he would be given a very good report when such report was due. Again in 2004 the petitioner was superseded, despite a quantification score of 77 in terms of overall assessment on the sole ground that "his performance in the Staff College was weak".

7. Be that as it may, when this petition came up for hearing on 26-5-2005, it was agreed amongst counsel for all the parties that the guidelines for National Management Courses organized by the Pakistan Administrative Staff College stipulated that an ACR was to be recorded in respect of an officer's performance at the aforesaid college, it would be included in his "blood count" (i.e. taken into consideration as one year's performance evaluation for determining his overall assessment). It was, therefore, agreed that had it already been done, the petitioner could be treated as eminently qualified for promotion and in case it had not been done it would be taken into consideration and his overall assessment would be re-determined. All learned counsel agreed that this appear to be fair and in accordance with law and the Respondents undertook to take appropriate action accordingly. The petition was disposed of in the above terms.

8. Nevertheless, though it was not disputed that the petitioner's performance at the Staff College was not quantified as an ACR in the subsequent Selection Board meeting dated 4th and 5th July, 2005, the petitioner was once against superseded despite an overall assessment score of 77 and 09 officers junior to him were recommended for promotion and the following reasons were assigned for his supersession: --

"Superseded in 2001 and 2002 on account of being below the required threshold and in 2003 and 2004 on comparative merit. The present CSB also superseded him on the criteria of excellence and comparative merit though he meets the required threshold."

Upon coming to know of such supersession the petitioner moved C.M.A. 3204/2005 alleging contempt of the authority of the Court on the part of the Federal Government and the Chairman, Central Selection Board. Notices were issued to the alleged contemnors and we decided to take up this application along with C.P. Nos.D-829/2005 and D-1060/2005.

C.P. No. 829 of 2005.

9. The petitioner has claimed that he was considered for promotion to BS-21 in 2002 having met all the required preconditions i.e. 76.3% marks in overall assessment, 83.9 in quality and output and 85.6 and 86.2 in moral and intellectual integrity respectively. He submitted a representation against his supersession, which was withheld on the ground that under the proviso to section 22 (2) of the Civil Servants Act no representation was maintainable in maters of determination of fitness of a person to be promoted to a higher post. Thereafter, the petitioner moved the Federal Service Tribunal against his supersession by way of Appeal No.98(K)(CS)/2004, which was allowed by judgment dated 3-6-2005 in the following terms:-

"19. The upshot of the above discussion is that the appeal is allowed as prayed and we direct the respondents for reconvene the meeting of the Central Selection Board and reconsider the appellant for promotion to the post of B-21 w.e.f. the date his juniors were promoted as the appellant not only meets the prescribed criteria for promotion but his record is better than the other respondents. This process of reconsidering the appellant's case should be completed within a period of 90 days under intimation to this Tribunal. Parties are left to bear their own costs."

10. It appears that even after the pronouncement of the aforesaid judgment, a meeting of the Selection Board was held and 09 officers junior to the petitioner were recommended for promotion. In this context it may be seen that while the petitioner figured at serial No.7 in the Seniority List with quantification score of 77, another officer at No.32 with the same score was recommended for promotion. The following reasons have been assigned for his supersession.

"Superseded in 2002, 2003 and 2004 on the basis of comparative batch merits. The present CSB also superseded him on the criteria of excellence and comparative merit though he meets the required threshold."

The petitioner has the thereafter invoked the constitutional jurisdiction of this Court seeking implementation of the judgment of the Federal Service Tribunal and a declaration that the recommendatory note of the CSB dated 5-7-2005 is liable to be set aside.

C.P. No.D-1060 of 2005:

11. Petitioner Malik Bashir Ahmed was considered for promotion on 26-8-2004 , with a quantification score of 77, whereas his immediate junior, i.e. Respondent No.4 was recommended. The reasons assigned for supersession at that time are stated to be as follows:--

"Although he fulfilled the minimum threshold of 75% his performance did not meet the criteria of comparative merit. His Staff College ranking represented 22 amongst 25 participants."

Once again he was superseded in terms of the recommendation dated 5-7-2005 with the following remarks:

"Superseded in 2004 on the basis of comparative merit. The present CSB also superseded him on the criteria of excellence and comparative merit though he meets the required threshold."

12. We have carefully heard Mr. Shahenshah Hussain, Dr. Farogh Nasim and Mr. Khalid Javed Khan on behalf of the petitioners and M/s. Mehmood Alam Rizvi, Standing Counsel, Mr. S.M. Iqbal Shah and Syed Shahid Hussain representing the respondents. We also had the benefit of the assistance of Mr. Hifzur Rehman, Additional Secretary, Establishment. Division who carefully explained serveral factors, which are taken into consideration by the Central Selection Board in making recommendations for promotion. We must acknowledge our gratitude for his assistance. However, before pronouncement upon the merits of the controversy, some preliminary objections relating to the jurisdiction of the Court and the maintainability of these petitions need to be disposed of.

13. It was urged with reference to C.P. No.D-829/2005 by Mr. S.M. Iqbal Shah that without prejudice to the respondents' case on merits, a petition seeking to execute an order of a Service Tribunal of exclusive jurisdiction was not…

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