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Petitioner: LIAQAT ALI CHUGTAI VS Respondent: FEDERATION OF PAKISTAN through Secretary JUDGMENT
Court Name: Lahore High Court Judge(s): Syed Mansoor Ali Shah Title:LIAQAT ALI CHUGTAI vs FEDERATION OF PAKISTAN through Secretary
JUDGMENT
Reported As: PLD 2013 Lahore 413 Result: Petitions allowed Judgment JUDGMENT SYED MANSOOR ALI SHAH, J.--- This judgment will decide the instant petition along with writ petitions listed in Schedule-A, as they raise common questions of law and facts. 2.. Brief facts of the case are that the petitioners, who are senior officers (in BS-19 and BS-20) of Pakistan Railway, were considered for promotion by the Central Selection Board ("CSB") under the Revised Promotion Policy dated 24-10-2007 ("Policy") for the following posts: Sr.No.Name of the Petitioner/gradeW.P. No. Considered for promotion to the post of: 1 Liaqat Ali Chugtai 25301/2011 Chief Mechanical Engineer (BS-20) 2 Syed Hassan 25300/2011 Chief Mechanical Engineer (BS-20) 3 Muhammad Nawaz 25299/2011 Chief Mechanical Engineer (BS-20) 4 Imtiaz Hussain Rizvi 26541/2011 Railways Transportation (Trafic) and Commercial Group from BS-20 to BS-21 5 Ahsan Mehmood Mian 25302/2011 Additional General Manager/Passenger (BS- 21) 3. According to the Policy, CSB is to award marks to the officers, under consideration, out of a total of 15 marks, in addition to the marks already tabulated.In the following manner:---
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Sr.No. Factor Remarks 1 Quantification of PERs relating to present grades - @ 60 % previous grades - @ 40%70% 2 Training Evaluations reports in ratio of 60% : 40%15% 3 Evaluation by CSB 15% 100%
According to the Policy the threshold marks or Aggregate Marks of Efficiency Index for promotion to BS-20 and BS-21 are as under:--- Sr.No.Basic Pay Scale Aggregate Marks of Efficiency Index 1. BS-20 70 MARKS 2. BS-21 75 MARSK 4. In the present cases, CSB awarded the following marks to the petitioners on the basis of the reasons recorded hereunder:--- Sr.No. Name of Officer Marks out of 15 Reasons 1. Liaqat Ali Chughtai 1 Reputed to be known corrupt and dishonest 2. Syed Hassan 1 Reputed to be Corrput. Incompetent 3. Muhammad Nawaz 1 Reputed to be known corrupt and dishonest. 4. Syed Imtiaz Hussain Rizvi 2 Known dead corrupt 5. Ahsan Mahmood Mian 2 Known to be corrupt. Incompetent. No fit to hold senior position. As a result the petitioners were superseded because their marks did not add up to meet the minimum requirement of Aggregate Marks of Efficiency Index mentioned above. 5. The grievance of the petitioners is two fold: First, the award of 15 marks by CSB is not based on any structured objective criteria. Second, the process of evaluation adopted by CSB lacks due process and fairness, in as much as, opinions and personal impressions, of some of the Members of CSB, adverse to the interest of the petitioners have been relied upon by the CSB without adequate disclosure of the same to the petitioners and without affording them an opportunity to defend themselves. This has also resulted in abuse and failure of discretion exercised by CSB in awarding the marks to the petitioners. 6. It is vehemently submitted that the REASONS recorded in the Minutes of the Board, reproduced above, against the petitioners have no nexus with the record (service dossier) placed before the CSB, in as much as, there is no document in the dossier that can even remotely establish that the petitioners are "corrupt" or "incompetent," 7. Learned Deputy Attorney General for Pakistan representing the Establishment Division raised preliminary objection that the present petition is not maintainable under Article 212 of the Constitution and placed reliance on Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCMR 2280). He went on to say that the courts have in the past refrained from interfering in the subjective assessm ents/ opinions of the Central Selection Board and relied upon Dr. Omer
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Farooq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others (2008 PLC (C.S.) 1012) and Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960) besides unreported judgments of this court and the Islamabad High Court i.e, W.P. No,9703 of 2009 (dated 2-4-2010), W.P. No,7677 of 2011 (15-6-2011), W.P. No,1152 of 2011 (dated 22-6-2011) and W.P. No,603 of 2009 (1-7-09) in support of this submission. 8. On merits learned Deputy Attorney-General referred to the Minutes of the Meeting of Central Selection Board held on 23rd, 24th September and 3rd October, 2011, whereby a criteria was developed for award of 15 marks by the Central Selection Board and submits that the said criteria is fair and transparent. Learned Deputy Attorney-General categorically submitted that the reasons given in the recommendations whereby the petitioners have been declared to be corrupt or incompetent is based on the opinion of one of the Members of the Central Selection Board and is not borne out from the dossier of the petitioner placed before the CSB. This fact has also been confirmed by the representatives of the respondents namely: Messrs Muhammad Awais Kundi, Joint Secretary, Establishment Division, Shamas-ud-Din Baloch, Section Officer, Establishment Division, Islamabad and Bilal Ahmad, Assistant, Ministry of Railways. 9. Learned counsel for respondent Pakistan Railways submits that the Service Dossier prepared for Central Selection Board by the Pakistan Railways carries the Performance Evaluation Reports ("PERs") spanning over several years and the Training Evaluation Reports. He submits that there is no finding in these Reports that could remotely lead the CSB to arrive at reasons recorded in the impugned minutes/decision of the CSB. He submitted that the reasons and the consequent marks awarded to the petitioners are based on personal opinion of the Members of the Board (most probably the erstwhile Secretary Railways, who was then the Member of CSB'). 10. Learned counsel for the private respondents i.e,, officers who have been promoted, submits that total score of the petitioners in Performance Evaluation Reports and the Training Evaluation Reports is below the prescribed threshold of 70 and 75 marks (as applicable), therefore, it is an exercise in futility to discuss the merits of the criteria framed or the award of 15 marks by CSB. Learned counsel referred to unreported order of this Court dated 15-6-2011 passed in W.P. No 7677 of 2011 in support of this contention. 11. Arguments heard, record perused. 12. These cases pertain to promotion of the petitioners to SELECTION posts in BS-20 and BS-21. Appointment through promotion to SELECTION posts is based on MERIT, which requires subjective assessm ent regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility. The impugned decision of supersession of the petitioners by the CSB is, in effect, determination of their fitness for the posts in question. It is settled law that assessment of fitness and suitability are excluded from the ambit of the Services Tribunal under section 4 of the Federal Service Tribunals Act, 1973. Reliance for convenience is placed on Mian Abdul Malik v. Dr. Sabir Sameer Siddiqui and 4 others, (1991 SCMR 1129), Government of A Punjab, through Secretary Health Department, Civil Secretariat, Lahore and another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala (2000 SCMR 1805) and Mushtaq Hussain Shah v. Director, Food, Lahore Region and others, (1990 SCMR 1492). As a consequence, the bar contained under Article 212 is not attracted to the present cases. The preliminary objection raised by the learned DAG is, therefore, over-ruled. On the objection whether this court can interfere in the subjective assessment of the CSB, it is observed that this is not the case here. It is not the subjective assessment of the CSB which is under challenge here but infact the process adopted by CSB in arriving at the said subjective assessm ent. It is now settled that subjective assessment by a public authority must rest on an open and transparent objective criteria. B The subjectivity of CSB must filter through clearly defined parameters, criteria and standards. Subjective assessment does not empower or grant a license to a public authority to exercise discretion without first structuring it.
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13. The objection by the learned counsel for the private respondents that as the petitioners have failed to meet the threshold marks of 70 or 75 respectively, the issue of CSB adopting an objective criteria or the process employed by CSB is irrelevant. This submission is without force for the reason that the marks awarded by CSB (out of a total of 15 marks) have to be added to the quantified marks of PERs and Training Evaluation Reports in order to tabulate the Aggregate Marks of Efficiency Index. Theoretically, for the sake of argument, if more marks were awarded to the petitioners (out of a total of 15 marks) they would have successfully crossed the threshold requirement and be promoted. The order of this court relied upon by the learned counsel turns on its own facts and is not relevant to issue in hand. 14. The legislative background relating to promotion to Selection post of BS-20 and BS-21 is as follows:--- (i) Section 9(2)(a) of the Civil Servants Act, 1973 provides that promotion to selection post shall be made on the basis of selection on merits, while subsection (3) provides that the said promotion shall be made on the recommendation of a Selection Board constituted by the Federal Government. (ii) Rules 7, 7-A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 reiterate that promotion to BS-20 shall be made on the recommendation of the Selection Board and only such persons as possess the qualification and meet the conditions laid down for the purpose of promotion to a post shall be considered by the Central Selection Board. (iii) Preamble to the Revised Promotion Policy (October, 2007)2 provides:--- . a comprehensive criteria for selection for promotion/deferment/super-session, which is measurable to the extent possible, comparable with regard to performance of each officer on the panel and is based on tangible record duly placed on the dossier and also re-defines discretion, of the members and the Boards and, to lay down as to how more objectivity can be brought in the recommendations of the Selection Board". (emphasis supplied) (iv) The Policy provides for "Comprehensive Efficiency Index" for promotion. The minimum threshold of marks for promotion to various scales is as follows:--- Basic Pay Scale Aggregate Marks of Efficiency Index BS-20 70 BS-21 75 (v) Revised Promotion Policy provides that an officer meeting the Aggregate Marks of Efficiency Index cannot be superseded. (vi) Clause 7 of the said Policy provides for Quantification of Performance Evaluation Reports ("PERs"), Training Evaluation and CSB evaluation. For the purpose of consideration by the CSB, PERs are to be quantified according to the form given in the Addendum to the existing Promotion Policy'. The Policy allocates following marks for quantification of PERs/Training Evaluation Reports and CSB evaluation:--- Sr.No. Factor Remarks 1 Quantification of PERs relating to present grades - @ 60 % previous grades - @ 40%70% 2 Training Evaluations reports in ratio of 60% : 40%15% 3 Evaluation by CSB 15% 100% (vii) Revised Guidelines with addendum for Central Selection Board'provide under clause 4 "that posts in BS-20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers
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must also have sufficient variety and width of experience ... Variety of experience includes experience in the field, corporations, attached departments, different Ministries/Divisions. (emphasis supplied) (viii) For promotion to middle management posts (BS-20) a civil servant must fulfil the following requirements:--- (a) Qualifying Service -- Possessing 17 years service; (b) Eligibility Threshold -- attain a minimum score of 70 marks; (c) Qualifications--- as prescribed by relevant recruitment rules; (d) Relevance of Experience; (e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum; (f) Variety of Experience.-The Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature; (emphasis supplied) (g) Training. (ix) Posts carrying BS-2l fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil servant must fulfil the following conditions for promotion to senior management post:-- (a) Qualifying Service - Possessing 22 years service; (b) Eligibility Threshold - attain a minimum score of 75 marks; (c) Qualifications - as prescribed by relevant recruitment rules; (d) Relevance of Experience; (e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum; (t) Variety of Experience - the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments Depending on the post to be filled, an officer possessing well-rounded experience with adequate exposure to difficult assignments should normally be preferred; (g) Training. (h) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice. (emphasis supplied) (x) Addendum dealing with the quantifying the Confidential Reports,5 deals with overall assessm ent, quality and output of work, as well as, integrity of the officer while quantifying the confidential reports. (emphasis supplied) 15. The dossiers of the petitioners carrying the PERs and the Training Evaluation Reports duly quantified as per formula provided in the Revised Promotion Policy were placed before the Central Selection Board in its meetings held on 23rd and 24th September, 2011 and 3rd October, 2011. CSB referred to extracts of earlier meetings leading to the settlement of the final criteria for the grant of
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15 marks to the petitioners. Relevant extracts of the minutes of the meetings of the CSB are reproduced hereunder: Paragraph 6: "It was informed that CSB in its meeting held in November, 2007 had decided to award its 15 marks on the basis of Members views on the officer about his integrity, performance and pen picture in synopsis of PERs for the last five years and the training evaluation reports." (emphasis supplied) Paragraph 8: "In its meeting held in December 2009, the CSB had decided that the officers on the panel may fall in three categories i.e,, top most being Category-I, the middle in Category-II and reminder in Category-III and CSB marks may be awarded on the basis of officer's integrity, performance known to the Board's Members and the pen picture contained in the performance evaluation reports and training evaluation reports. CSB decided to continue with the said process as well as the award marks as under:-- (emphasis supplied) Category Marks I 12-14 II 8-11 III 7 and below Paragraph 9: "CSB agreed that the officers with very good record (even meeting the required threshold without marks allocated to the Board), but with doubtful integrity, poor/bad reputation, or reputed to be corrupt as known to the Chairman/Board's Members shall not be recommended for promotion." (emphasis supplied) 16. From the above it is clear that the CSB consciously adopted a policy to place reliance on the personal views and impressions of the Members regarding the integrity and reputation of the officers under consideration. Extracts of the meetings show that the following has been consistently recorded by the CSB while discussing different panel of officers:--- "The Board keeping in view the updated record position, integrity and performance of the officers known to the Board Members, as well as, the pen-picture of the officers contained in the PERs and Training Evaluation Reports evaluated each officer in order of seniority." (emphasis supplied) The personal views or opinions of the Members regarding integrity and performance of the petitioners do not stem from the record i.e,, the service dossier of the officers placed before them or arise from any tangible evidence tabled before the CSB. The REASONS like "reputed to be known corrupt and dishonest." or "known to be dead corrupt." or "professionally not strong" or "incompetent." "dead corrupt" or "corrupt" do not correlate to the service dossier of the petitioners which was placed before the CSB and, which has been examined by this Court minutely. This fact has also been confirmed by the representatives of the respondents namely: Messrs Muhammad Awais Kundi, Joint Secretary, Establishment Division, Shamas-ud-Din Baloch, Section Officer, Establishment Division, Islamabad and Bilal Ahmad, Assistant, Ministry of Railways. CSB had to meticulously review the service dossier of the officers under consideration and formulate a collective opinion. However, the reasons given were purely on the basis of the personal opinions of the Members and it appears that the service dossier was not considered, even to counter the verbal opinions expressed in the meetings by some of the Members. It is pertinent to refer to the constitution of the CSB which has been placed at Schedule-B of this judgment. Perusal of the composition of the CSB shows that CSB comprises 12 members belonging to different provinces. It is, therefore, difficult to imagine that all the Members knew about the inefficiency and performance of the petitioners, hence, personal opinion of some Members seems to have been casually adopted by the rest of the Members without independent application of mind and without carrying out a punctilious review of the service record of the petitioners. The process adopted by CSB
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negates the very purpose of a central selection board which is expected to form a collective view after independent application of mind to the facts and circumstances of each case. 17. CSB has failed to notice that the Revised Promotion Policy framed by the Federal Government (ESTA Code Enclosure at Sr. No,163) which enjoys the force of lawprovides for guidelines for the CSB to follow. I reproduce the relevant portions for ready reference: {{FOOT NOTE}}For example: Item No,12, Item No,28 of the Minutes of the Meetings held on 23rd, 24th September, and 3rd October, 2011. Reliance is placed on PLD 2008 SC 769; 1991 SCMR 628 AND 1996 SCMR 1297. {{FOOT NOTE}} For BS-20 "Variety of Experience - the Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body of an ex-cadre assignment may be considered a positive feature; (emphasis supplied) For BS-21 Variety of Experience - the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessm ent under the criterion may require some distinction between hard or taxing assignments. ... Depending on the post to be filled, an officer possessing well-rounded experience with adequate exposure to difficult assignments should normally be preferred; (emphasis supplied Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice. (emphasis supplied) 18. I also reproduce the preamble to the Policy, which besides being instructive, sets the mechanism and structure for subjective assessment by CSB:-- .... a comprehensive criteria for selection for promotion/ deferment/supersession, which is measurable to the extent possible, comparable with regard to performance of each officer on the panel and is based on tangible record duly placed on the dossier and also re-defines discretion, of the members and the Boards and, to lay down as to how more objectivity can be brought in the recommendations of the Selection Board". (emphasis supplied) 19. CSB instead of evolving a criteria for award of 15 marks on the basis of the Revised Promotion Policy placed reliance on the personal opinions of the Members and also went against the Policy in resolving that:-- "CSB agreed that the officers with very good reports (even meeting the required threshold without marks allocated to the Board), but with doubtful integrity, poor/bad reputation, or reputed to be corrupt as known to the Chairman/Board's Members shall not be recommended for promotion." 20. The legal questions that arise, in this case have been noted above. They relate to subjective objective criteria and the process of evaluation adopted by CSB. I take up the process of evaluation first. 21. CSB is free to formulate its opinion on the basis of the evidence before them which is the complete service dossier of the Officers which comprises PERs for the last over 15 years and Training Evaluation Reports. The said reports are also duly quantified through a meticulous mathematical process as narrated in the Addendum to the Promotion Policy. The said quantification fully covers overall assessm ent, quality and output of work, as well as, integrity of the officers under consideration. 22. In case, CSB relies on any other evidence collected through its own source (Promotion Policy does not specifically provides for this) in 'addition to the service dossier of the officers, CSB is bound
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to confront the same to the officer under consideration and only after granting an opportunity of defence to the said officer regarding the new evidence 'being introduced, place reliance on it and not otherwise. This due process seems to be starkly missing in the present case. 23. Pakistan is a constitutional democracy which rests on rule of law which in turn is pillared on fairness and due, process. Now with Article 10A of the Constitution, it is a fundamental right of the petitioners that the process of determination of civil and criminal rights must at every step pass the test of fairness and procedural propriety. There is no room for CSB to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by Member(s) of CSB. Without the Member(s) first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration, the Board cannot place reliance on the said evidence. Syed Jamshed Ali, J (as he then was) speaking for the Division Bench of this Court in Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others, [(2003 PLC (C.S.) 503)] held:--- "A bare allegation of one of the members of the Selection Board, against whom there is an uncontroverted allegation of personal malice, not supported by any tangible material and not even justified when he was called upon to submit comments to this writ petition, could not, therefore, be accepted as a valid ground to supersede the petitioner. We are quite mindful that the Selection Board comprises of very high personage with variety of experience and wisdom yet they are human beings and cannot be said to be in fallible. Such a presumption is neither warranted by reality nor supported by the history. We are…
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