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Petitioner: LIAQAT ALI CHUGTAI VS Respondent: FEDERATION OF PAKISTAN through Secretary RailwaysHonorable Justice Syed Mansoor Ali ShahAli Akbar Qureshi,Hafiz Ahsan Ahmad Khokhar
2012 P L C (C.S.) 1062
[Lahore High Court]
Before Syed Mansoor Ali Shah, J
LIAQAT ALI CHUGTAI
Versus
FEDERATION OF PAKISTAN through Secretary Railways and 6 others
Writ Petitions Nos.25301, 25300, 25299, 26541 and 25302 of 2011, heard on 17th February, 2012.
(a) Federal Service Tribunals Act (LXX of 1974)---
----S. 4---Constitution of Pakistan, Arts.199 & 212---Constitutional petition---Maintainability---Bar contained under Art.212 of the Constitution--- Applicability-- - Supersession of the civil servants (petitioners) by the Central Selection Board---Present constitutional petitions pertained to promotion of the civil servants to selection posts in BS-20 and BS-21---Appointment through promotion to 'selection' posts was based on 'merit', which required subjective assessment regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility---Impugned decision of supersession of the civil servants was, in effect, determination of their fitness for the posts in question---Assessment of fitness and suitability were excluded from the ambit of the Service Tribunal under S.4 of the Federal Service Tribunals Act, 1974, therefore, bar contained under Art.212 of the Constitution was not attracted to the constitutional petitions---Constitutional petitions were maintainable, in circumstances.
Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Dr. Omer Farooq Zain v. Bahauddin Zakariya University, Multan through Vice-Chancellor and 6 others 2008 PLC (C.S.) 1012; Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others 2008 SCMR 960; W.P. No.9703 of 2009; W.P. No.7677 of 2011; W.P. No.1152 of 2011 and W.P. No.603 of 2009 ref.
Mian Abdul Malik v. Dr. Sabir-Zameer Siddiqui and 4 others 1991 SCMR 1129; Government of 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 rel.
(b) Civil Service---
----Selection Board (public authority)--- Selection of officers---Subjective assessment--- Scope--- Exercise of discretion--- Scope--- Subjective assessment by a public authority must rest on an open and transparent objective criteria---Subjective assessment did not empower or grant a licence to a public authority to exercise discretion without first structuring it.
(c) Civil Servants Act (LXXI of 1973)---
----S. 9(2)(a)---Civil Servants (Appointments, Promotions and Transfers) Rules, 1973, Rr.7, 7-A & 8---Constitution of Pakistan, Arts.10A, 14 & 199---Constitutional petition---Right to fair trial---Scope---Inviolability of dignity of man, etc.---Scope---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the minimum requirement of Aggregate Marks of Efficiency Index---Evaluation of integrity and performance of the civil servants---Reliance on personal opinion and impression of Members of the Central Selection Board for such evaluation---Validity and legality ---Central Selection Board 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---Personal views or opinions of the Members regarding integrity and performance of the civil servants did not stem from the record i.e., the service dossier of the officers placed before them or arose from any tangible evidence tabled before the Central Selection Board---Reasons provided by the Board for superseding the civil servants did not correlate to their service dossier, which were placed before the Board-- Central Selection Board had to meticulously review the service dossier of the officers under consideration and formulate a collective opinion, but the reasons given for superseding them were purely on the basis of the personal opinions of the Members and it appeared that the service dossier was not considered---Central Selection Board was composed of 12 Members belonging to different provinces and it was difficult to imagine that all the members knew about the inefficiency and performance of the civil servants, hence, personal opinion of some members seemed 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 civil servants---Such process adopted by Board negated the very purpose of a Central Selection Board which was expected to form a collective view after independent application of mind to the facts and circumstances of each case---Central Selection Board had failed to notice that the Revised Promotion Policy framed by the Federal Government [ESTA Code (Federal Government) Enclosure at Sr. Nos.162 & 163] which enjoyed the force of law provided for guidelines for the Board to follow---Board instead of evolving a criteria on the basis of the Revised Promotion Policy placed reliance on the personal opinions of the Members and also went against the said Policy---Where Central Selection Board had relied on other evidence collected through its own source in addition to the service dossier of the officers, it was bound 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---Such due process seemed to be missing in the present case, therefore, there was no room for Board to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by its Members without first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration---Process employed by the Board of placing reliance on the personal opinion of the Members of Central Selection Board was an affront to fairness, due process and Art.10A of the Constitution---Impugned recommendations of the Board were also offensive to Art.14 of the Constitution which provided that dignity of man was inviolable---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was therefore set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.
W.P. No.7677 of 2011 ref.
PLD 2008 SC 769; 1991 SCMR 628; 1996 SCMR 1297; 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 Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others 2003 PLC (C.S.) 503; Tanvir Ashraf v. Riasat Ali and 5 others 2004 YLR 659 and Kanda v. Government of Malaya 1962 AC 322 rel.
(d) Civil Servants Act (LXXI of 1973)---
----S. 9(2)(a)---Civil Servants (Appointments, Promotions and Transfers) Rules, 1973, Rr.7, 7-A & 8---Constitution of Pakistan, Art.199---Constitutional petition---Supersession of the civil servants (petitioners) by the Central Selection Board for failing to meet the set criteria i.e. the minimum requirement of Aggregate Marks of Efficiency Index---Whether said criteria was 'structured objective criteria and whether collective discretion of Central Selection Board had been lawfully exercised---Determination---Collective discretion of the Central Selection Board had been pegged on personal opinions of some of the Members of the Board and instead of relying on the criteria and factors mentioned in the Revised Promotion Policy [ESTA Code (Federal Government) Enclosure at Sr. Nos.162 & 163], the Board developed its own criteria, which was not sufficiently structured or elaborately tailored to reflect thorough deliberation and proper analytical assessment of the officers to be promoted by the Board---Slackness in the criteria adopted by the Board, questioned the transparency of the process and therefore weakened the credibility of the selection---Criteria adopted by the Board did not set parameters or standards that could determine as to who was to be rated "outstanding" or "below average."---Key determining factors needed to be spelled out in writing and corresponding weightage allocated from the very start---Discretion devoid of any prefixed evaluation structure resulted in an unguided and unfettered exercise of power which was facially discriminatory and hence bad in law---Constitutional petition was allowed, selection process carried out by Central Selection Board was declared unconstitutional and illegal and was set aside and the Central Selection Board was directed to formulate a well thought out objective criteria in accordance with the Revised Promotion Policy and consider the cases of the civil servants afresh.
(e) Constitution of Pakistan---
----Art. 10A---Right to fair trial---Scope---Disclosure of material to be used against a person---Scope---Where prejudicial allegations were to be made against a person, he must normally be given particulars of them before the hearing so that he could prepare his answers---Such a person must also be enabled to controvert, correct or comment on other evidence, or information that might be relevant to the decision and influential material on which the decision maker intended to rely---Where relevant evidential material was not disclosed at all to a party which was potentially prejudiced by it, there was prima facie unfairness, irrespective of whether the material in question arose before, during or after the hearing.
(1962) 2 WLR 1153 (PC); PLD 1989 SC 335; DeSmith's Judicial Review, 6th Edition pp.389-391; (1970) 2 QB 417; University of Dacca v. Zakir Ahmed PLD 1965 SC 90 and Natwar Singh v. Director of Enforcement and another (2010) 13 Supreme Court Cases 255 ref.
(f) Civil service---
----Selection Board (public authority)---Selection of officers---Procedure adopted offending natural justice---Effect---Decision affecting legal rights of an individual which was arrived at by a procedure which offended against the principles of natural justice was outside the jurisdiction of the decision-making authority.
(1980) AC 718 rel.
(g) Constitution of Pakistan---
----Art. 14---Inviolability of dignity of man, etc.---"Dignity of man"---Definition and scope ---Dignity of man was that valued and serene condition in a person's social and individual life which was violated when he was, publicly or privately, subjected by another to offensive and degrading treatment, or when he was exposed to ill-will ridicule disesteem or contempt---Dignity in humans involved the earning or the expectation of personal respect or of esteem and it was something that was inherently a person's God-given inalienable right that deserved to be protected and promoted by the Government and the community---Human dignity was in itself enshrined as the corner stone of society from the very beginning of civilization and was the foundation, the cause and end of all social institutions, therefore, all social institutions, governments, states, laws, human rights and respect for persons originated from the concept of dignity of man or his personhood---Any attempt to undermine the dignity of a human being would also undermine the very foundation and support upon which an orderly society was structured. University of Pretoria v. Tommie Meyer Films (Edms) Bpk 1979 1 SA 441(A). and JEAN FREDERIC PONOO v. ATTORNEY-GENERAL [2010] SCCC 4 rel.
(h) Constitution of Pakistan---
----Art. 14---Inviolability of dignity of man, etc.---Scope---Value of human dignity was not only concerned with an individual's sense of self-worth, but also constituted an affirmation of the worth of human beings in the society and included the intrinsic worth of human beings shared by all people as well as the individual reputation of each person built upon his or her own individual achievements---Value of human dignity, therefore, valued both the personal sense of self-worth as well as the public's estimation of the worth or value of an individual.
Khumalo v. Holomisa 2002 (5) SA 401 rel.
(i) Civil service---
----Selection Board (public authority)----Members of Selection Board (public officials)---Selection of officers---Criteria---Discretion of public authority and public officials---Nature and scope---Discretion vested in a public authority was a sacred trust exercised by the public officers as trustees---Public officials did not act for their own sake but rather for the sake of the public interest---Role of the public official in a democracy, like the role of the state itself, was to serve the interest of the public and its members---Exercise of discretion was not a casual affair driven by personal likes or dislikes---Structuring of discretion meant that the authority must first apply its mind to tailor an intelligent objective criteria that was best suited for the selection of the officers under consideration and then begin the process of selection, which must be based on relevant considerations required for selecting the best officer for the job.
Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.
(j) Discretion---
----Public authority---Discretion of public authority and public officials---Nature and scope.
Imran Hussain's case PLD 2010 Lah. 546; The Judge in a Democracy - Aharon Barack, p.220; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti, 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 ref.
Ali Akbar Qureshi for Petitioners.
Ms. Shaista Qaisar, Deputy Attorney General for Pakistan.
Hafiz Ahsan Ahmad Khokhar for Respondents.
Hafiz Tariq Nasim for Private Respondents.
Muhammad Awais Kundi, Joint Secretary, Establishment Division.
Shamas-ud-Din Baloch, Section Officer, Establishment Division, Islamabad.
Bilal Ahmad, Assistant Ministry of Railways.
M. Nadeem Ahmed Sohail and Nadir Hussain Shah Gilani Civil Judges/Research Officers, Lahore High Court Research Centre for Research Assistant.
Date of hearing: 17th February, 2012.
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/ grade
W. 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 (Traffic) 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:---
Sr. No.
Factor
Remarks
1
Quantification of PERs relating to present grade - @ 60 %previous grades - @ 40%
70%
2
Training Evaluations reports in ratio of 60% : 40%
15%
3
Evaluation by CSB
15%
Total
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 MARKS
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 Corrupt. Incompetent
3.
Muhammad Nawaz
1
Reputed to be know corrupt and dishonest.
4.
Syed Imtiaz Hussain Rizvi
2
Known dead corrupt
5.
Ahsan Mahmood Mian
2
Known to be corrupt. Incompetent. Not 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 ab use 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 assessments/ opinions of the Central Selection Board and relied upon Dr. Omer 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 CSB1).
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 assessment 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, 1974. Reliance for convenience is placed on Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others, (1991 SCMR 1129), Government of 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 assessment. It is now settled that subjective assessment by a public authority must rest on an open and transparent objective criteria. 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.
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…
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