Full Judgment Text & Judicial Ruling

2017 P L C (C.S.) 115 [Islamabad High Court] Before Shaukat Aziz Siddiqui, J Syed IJAZ HUSSAIN Versus FEDERATION OF PAKISTAN and others Writ Petitions Nos.1269, 1523, 1566, 1453, 1454, 1429, 1383, 1501, 1561, 1562, 1657, 2058, 1359 1401, 1416, 1418, 1426, 1432, 1462, 1464, 1466, 1484, 1503, 1504, 1505, 1506, 1507, 1518, 1540, 1446, 1511, 1440, 1509, 1564, 1565, 1583, 1612, 1496, 1439, 1451, 1472, 1542, 2033, 1568, 1589, 1607, 1961, 1588, 1415, 1447, 1955, 2095, 1756, 1446 of 2015, 1855 of 2013 and 3656 of 2014, decided on 27th July, 2015. (a) Civil Servants Act (LXXI of 1973)--- ----S. 9---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, Rr.7 & 8---Revised Promotion Policy, 2007, Para.2(i)(b)---Service Tribunals Act (LXX of 1973), S.4(1)(b)---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan, Arts.199, 212, 4 & 25--- Constitutional petition--- Maintainability--- Civil service---Promotion of an employee---Fitness, determination of---Criteria---Assessment by Central Selection Board---Bypassing of service record---Effect---Discretion, exercise of---Equal treatment of citizens---Placement in categories to the employees to be promoted---Scope---Promotion of petitioners/employees was denied due to recommendations of Central Selection Board---Contentions of petitioners/employees was that they fulfilled the requirements for their promotion but they had not been treated reasonably, fairly and justly---Validity---Service Tribunal had no jurisdiction on the controversy of determination of fitness and suitability of a person for a job and for promotion---Constitutional petitions were maintainable as petitioners-employees had challenged the criteria on the basis of which the fitness for promotion was determined---Civil servant had vested legal right to be considered for promotion in accordance with law---Withholding of promotion was a major penalty which could be inflicted by proceedings against a civil servant under the rules---Any action must be based on fair, open and just consideration and arbitrariness should be avoided---Decision of deferment of petitioners/employees had not been made in accordance with law---Nothing was on record as to why juniors to the petitioner/ employees were given preference over them---No opportunity of hearing was provided to the petitioner/employees before inflicting major penalty of withholding promotion---Impugned recommendations of Central Selection Board did not fulfill the requirements of S.24-A of General Clauses Act, 1897---Authority had not applied its mind while exercising its discretion to promote the employees which had resulted in pick and choose---Every individual had an inalienable right to be dealt with in accordance with law---Equal treatment of citizens had been guaranteed by the Constitution which could be denied only in peculiar circumstances of the case---Formula for giving more discretion without tangible material on point of integrity of civil servants and consequently placement in categories was against law---Authority could not be allowed to block the promotions of civil servants by arbitrary placement in category without recording any reason or referring any tangible material---Establishment Division of the Government was directed to reframe the formula by taking away the overriding effect of the marks to be awarded by Central Selection Board and categorization and place the cases before Central Selection Board within specified period---Assessment should be made on the basis of entire performance and in case of any tangible material asking question with regard to integrity of civil servant was available then he might be confronted with the same and any opinion of deferment or supersession might be made but not on the basis of hypothesis and reputation in air. Tariq Aziz-ud-Din's case 2010 SCMR 1301; PLD 1991 SC 118; 2003 SCMR 291; 2004 PLC (C.S.) 586; 2010 PLC (C.S.) 515; 1998 SCMR 2268; 2011 SCMR 1; PLD 1989 SC 26; 1993 PLC (C.S.) 576; Liaqat Ali Chughtai v. Federation of Pakistan an others 2012 PLC (CS) 1062; Secretary Establishment Division v. Aftab Ahmed Manikan 2015 SCMR 1006; PLD 1986 SC 168; PLD 2012 SC 106, PLD 1965 SC 90; PLD 1968 Lah. 1630; 2007 SCMR 1355;2009 PLC (C.S.) 40; 2007 PLC (C.S.) 716; 2007 PLC (C.S.) 811; 2011 PLC (C.S.) 534; 2005 PLC (C.S.) 974; 2007 SCMR 682; 2014 PLC (C.S.) 1134; 2009 PLC (C.S.) 40; PLD 2010 SC 857; 2008 PLC (C.S.) 1121; 2003 PLC (C.S.) 503; 2010 SCMR 130; Government of Pakistan v. Hameed Akhter Niazi PLD 2003 SC 110; I.A. Sherwani's case 1991 SCMR 1041 and 2006 PLC (C.S.) 564 ref. Iram Adnan and others v. FOP and others 2012 PLC (C.S.) 1355; Oriya Maqbool Abbasi's case 2014 SCMR 817; Khalid Mehmood Watoo v. Government of Pakistan and others 1998 SCMR 2280; Liaqat Ali Chughtai v. Federation of Pakistan and others PD 2013 Lah. 413; 2012 PLC (C.S) 1062; 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 rel. (b) Constitution of Pakistan--- ----Arts. 199 & 212---Service Tribunals Act (LXX of 1973), S.4(1)(b)---Promotion of an employee---Determination of eligibility and fitness---Constitutional petition---Maintainability---Service Tribunal had no jurisdiction on the controversy of determination of fitness and suitability of a person for a job and for promotion---Constitutional petition would be maintainable when criteria on the basis of which the fitness for promotion was determined had been challenged. (c) Civil service--- ----Civil servant had vested legal right to be considered for promotion in accordance with law. (d) Constitution of Pakistan--- ----Art. 4---Rule of law---Scope---Every individual had an inalienable right to be dealt with in accordance with law. (e) Constitution of Pakistan--- ----Art. 25---Equality of citizens---Scope---Equal treatment of citizens had been guaranteed by the Constitution. Hafiz S.A. Rehman Advocate Supreme Court and Muhammad Anwar Mughal for Petitioners (in W.Ps. Nos.1523, 1566, 1453 and 1454 of 2015). Muhammad Munir Paracha, Advocate Supreme Court and Nauman Munir Paracha AHC for Petitioner (in W.P No.1429/2015). Abdul Rahim Bhatti and Yasser Rahim Bhatti for Petitioners (in W.Ps. Nos.1383, 1501, 1561, 1562, 1657 and 2058 of 2015). Abdur Rehman Siddiqui and Ch. Asghar Ali for Petitioners (in instant petition as well as Writ Petitions Nos. 1359, 1401, 1416, 1418, 1426, 1432, 1462, 1464, 1466, 1484, 1503, 1504, 1505, 1506, 1507, 1518, and 1540 of 2015). Muhammad Aftab Alam Rana for Petitioners (in W.P. Nos.1446 and 1511 of 2015). Barrister Masroor Shah for Petitioners (in W.Ps. Nos.1440, 1509, 1564, 1565 and 1583 of 2015). Fiaz Ahmed Jandran for Petitioners (in W.Ps. Nos.1855/2013, 3656/2014 and 1612/2015). Mansoor Beg for Petitioner (in W.P No.1496 of 2015). Saeed Khursheed Ahmed for Petitioner (in W.Ps. Nos.1439 and 1451 of 2015). Muhammad Shabbir Bhutta for Petitioners (in W.Ps. Nos.1472, 1542 and 2033 of 2015). Ahsan Hameed Dogar for Petitioners (in W.Ps. Nos.1568, 1589, 1607 and 1961 of 2015). Barrister Muhammad Shoaib Razzaq and Zulfiqar Ali Safdar for Petitioners (in W.P. No.1588 of 2015). Petitioner in person (in W.Ps. Nos.1415, 1447 and 1955 of 2015). M. Kowkab Iqbal for Petitioners (in W.P No.2095/2015). Sardar Taimoor Aslam for Petitioner (in W.P No.1756 of 2015). Ghulam Rasool Bhatti for Petitioner (in W.P No.1446/2015). Afnan Karim Kundi, Addl. Attorney General and Jehangir Khan Jadoon, Standing Counsel. Ms. Naveeda Noor, Advocate for Respondents Nos.3 to 14 (in W.P No.3656/2014 and Respondents Nos.3 to 7 in W.P. No.1466/2015). Muhammad Shoaib Shaheen and Muhammad Umair Baloch for Respondent No.5 in instant petition and for respondents Nos.5 to 8 (in W.P No.1432 of 2015). Imran Fazal for Respondent No. 6 in instant writ petition and for FBR (in W.Ps. Nos.1426 and 1451 of 2015). Mrs. Misbah Gulnar Sharif for Respondent (FBR) in instant writ petition as well as (in W.Ps. Nos.1383 and 1439 of 2015). Zafar Iqbal Chaudhry and Khalid Waheed Khan for Respondents Nos.4 to 7 (in W.P No.1383 of 2015). Ms. Ambreen Khan for Respondent No.4 (in W.P No.1464/2015). Muhammad Asif Gujjar for Respondents Nos. 9, 10 and 15 (in W.P No. 1401 of 2015). M. Aurangzeb Daha, Senior Prosecutor NAB (in W.P No.1415/2015). Respondent No.6 in person (in W.P No. 1484 of 2015). Ijaz Anwar for Respondent No.12 (in W.P. No.1503/2015), Respondent No.24 (in W.P No.1540/2015) and respondent No.3 in W.P. No.1454 of 2015). Rai Azhar Iqbal Kharal, Advocate for Pakistan Railways (in W.Ps. Nos.1446, 1464, 1504 to 1507 and 1518 of 2015). Barrister Jawad Niazi for Respondent (in W.P No.1588 of 2015). Sajid Ijaz Hotiana for Respondent No.7 in instant Petition. Abdul Saboor and Naveed Dar, Assistants, M/o Housing and Works. Mohsin Raza Gondal, Deputy Director on behalf of Respondent No.4 (in W.P. No. 2058/2015). Zeeshan Raza Zaidi, Section Officer, Establishment Division. Dates of hearing: 1st, 2nd, 6th, 7th and 8th July, 2015. JUDGMENT SHAUKAT AZIZ SIDDIQUI, J.--- Through this Single Judgment, I intend to dispose of Writ Petitions Nos.1269, 1359, 1383, 1401, 1415, 1416, 1418, 1426, 1429, 1432, 1439, 1440, 1446, 1447, 1451, 1453, 1454, 1462, 1464, 1466, 1472, 1484, 1496, 1501, 1503, 1504, 1505, 1506, 1507, 1509, 1511, 1518, 1523, 1524, 1540, 1542, 1561, 1562, 1564, 1565, 1566, 1568, 1583, 1588, 1589, 1607, 1612, 1657, 1756, 1955, 1961, 2033, 2058, 2095, 2137 of 2015, Writ Petitions Nos.3656 of 2014 and 1855 of 2013 as through all these Writ Petitions similar questions of law and facts regarding the denial of promotion to the petitioners in light of the recommendations of the high powered selection board (HPSB) and Central Selection Board (CSB) have been raised. 2. In all these Writ Petitions almost similar prayers have been made and the gist of the prayers made by petitioners through above mentioned Writ Petitions is as follows:- i. That to set aside the impugned decision of the Central Selection Board taken in its meetings dated 05.05.2015 and 07.05.2015 qua recommendation of respondents for promotion, by declaring the same illegal, unlawful, unconstitutional and void ab initio: ii. To reconsider petitioners for promotion on the basis of their PERs and TERs and grant the same with all consequential and back benefits w.e.f. the date their junior colleagues were recommended as such. iii. That the 5 marks meant for integrity/general reputation/ perception to be awarded by CSB on the basis of structural formula have wrongly been reserved for the said purpose and the same have been given overriding affect on the remaining 10 marks, therefore, be reviewed. iv. The operation of impugned minutes of the CSB may be suspended and to restrain the respondents from issuing notification of promotion till the final disposal of writ petitions. 3. Petitioners presented the facts and their respective stance is as under:- Service Promotion from Grade 21 to 22: Petitioner Syed Ijaz Hussain, filed Writ Petition No.1269/2015 stating therein that he presently has been working in BS-2l with more than 5 years and 3 months service experience having earned very good PERs for the last six years. That his name was placed at serial No.2 of the seniority list, but he was deferred for promotion and those who were recommended for promotion, were the ones placed at serial Nos.1, 5, 7, 8 and 11. 4. Zafar lqbal Qadir, petitioner filed Writ Petition No.1607/2015 stating therein that he was serving in BS-21 with more than 5 years and 5 months service in the said grade having earned one outstanding and five very good PERs during the last 6 years. He also served as acting secretary (BS-22) to lead IT and Telecommunication Division in the Federal Government since January, 2013 till appointment of new incumbent in office. That he was placed at serial No.19 of the seniority list considered during the meeting of 22nd September, 2014 but was deferred for promotion and those who promoted ahead of petitioner were placed at serial Nos.20, 21, 22, 23, 25, 26 and 27. That the name of petitioner was on the top in the subsequent two meetings of High Power Selection Board, held in January 2015 but again he was deferred. Particulars of both the petitioners along with reason for deferment are reduced into the following table:-

SERVICE PROMOTION FROM GRADE 21 TO 22

Sr. No.

TITLE

WRIT PETITION NUMBER

SUPERSESSION

DEFERMENT

COMPOSITION OF CSB CHALLANGED

1.

Syed Ijaz Hussain (IRS)

W.P. No.1269/15

X

To call for a special report for at least six months of the officer to be placed before the board in the next meeting.

2.

Zafar Iqbal Qadir (PAS)

W.P. No.1607/15

X

Case is sub judice before the Hon'ble Islamabad High Court as well as performance on merit.

Both the petitioners have challenged their deferment inter alia on the grounds that the High Powered Selection Board while formulating their recommendations is to be guided by the judgments of superior courts of the country upon the basis of which Establishment Division notified a policy vide No.SRO-789/1/2010 dated 16.08.2010. That as per policy, the officer in BS-21 is now required to meet the conditions for promotion as contained in Rule 4 of Civil Servants (Promotion to the post of Secretary BS-22 and equivalent) Rules, 2010 which are as under:- a. Twenty-five years service in BS-17 and above. b. At least two years in a post in BS-21. c. At least three "Very Good" reports during the last six years. d. No penalty under Government Servants (Efficiency and Discipline) Rules, 1973 or under the Removal from Service (Special Power) Ordinance, 2000. (e) Possesses sufficient variety of experience. 5. It is contended that although petitioners fulfilled all of the above requirements still they have been deferred for promotion. That as ordained by Section 9(2)(a) of the Civil Servants Act, 1973 and conclusively decided by the Hon'ble Supreme Court in Tariq Aziz-ud-Din's case reported as 2010 SCMR 1301, promotion to BS-22 can take place strictly and only on merit on the basis of criteria set forth for promotion. That no doubt the appointing authority is vested with the executive authority to appoint civil servants in BS-22, however this authority is to be exercised in accordance with law and the settled principles in this regard and merit is not to be judged on personal whims rather it is to be gathered from the officer's track record. That although the power to promote and appoint a civil servant in BS-22 is a statutory power, which has to be guided by the mandatory provision of Section 24-A of General Clauses Act, which says that such powers "shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment." That petitioners have not been treated reasonably, fairly and justly which certainly is against the advancement of law in general and Civil Servants Act in particular. That in absence of any adverse finding or recommendation against petitioners, they have an accrued right and genuine expectation to be promoted as per their seniority to BS-22 and in case of denial of such right, not only the reasons must be recorded but same should also be supported by tangible material duly conveyed to the petitioners. That withholding of petitioner's promotion tantamount even temporarily to subjecting them to a major penalty which could not be done without due process of law and in absence of tangible material available on record and an opportunity of being heard, as such petitioners have been subjected to humiliation without any reasons, that too in violation of Article 14 of the Constitution. That it is settled law laid down by the august Supreme Court of Pakistan that civil servant is entitled for promotion with effect from the date his juniors have been promoted as such. Reliance in this regard has been placed on the case law reported as PLD 1991 SC 118. Service Promotion from Grade 20 to 21: 6. These petitioners are civil servants belonging to different occupational groups including the incumbents of Ex cadre posts and they are aggrieved of their denial of promotion to the next higher post through deferment/supersession, despite meeting the laid down criteria such as seniority, length of service, experience, required quantification of their performance evaluation reports (PERs)/training evaluation reports (TERs) on the basis of award of 15 marks by the Central Selection Board (CSB) particularly the modus operandi of awarding five crucial marks and consequently the categorization to A, B and C. Those placed in category C were not to be promoted, while considering the cases of promotion to the next higher post, with the approval of competent authority. Some of the petitioners are aggrieved by deferring their cases on the sole ground that the board wanted to further watch all aspects of promotion including integrity for a period of one year. It is the stance of petitioners who are seeking their promotion from Grade 20 to 21 that they joined Civil Services after being declared successful in the Competitive Examination (CSS). Since then, they have been rendering meritorious services on various positions in various departments and law agencies. That throughout Petitioners have long and illustrious career, spreading over decades and have earned "outstanding and very good Annual Confidential/Personal Evaluation Reports (PERs)". Further averred that Petitioners integrity has never been called into question by any Reporting/Assessing Officers or by the countersigning superiors on their (PERs). That a meeting of Central Selection Board took place on 05.05.2015 and in subsequent meetings wherein the Petitioners were placed along with their colleagues before CSB to be considered for promotion to BPS-21 but in sheer violation to rules, petitioners have been deferred/superseded without any reason. That as Section 9 of the Civil Servants Act, 1973 read with Rule 7 of the Civil Servant (AP&T) Rules, 1973, a civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to higher post for the time being reserved under the rules for departmental promotion in service or cadre to which he belonged. However, in the matter in hand, the Central Selection Board has acted in oblivion to the aforementioned provision of law and Petitioners have been deprived of their lawful right without any fault attributable to them. That the impugned action is violative of law laid down by the august Supreme Court of Pakistan through judgment reported as 2010 SCMR 1301 (Tariq Aziz-ud-Din Case) wherein it has been categorically held that denial from the consideration for promotion is a major penalty, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of. It is the duty of competent Authority to consider the merit of all the eligible candidates while putting them in juxtaposition, to find out the meritorious amongst them. Merit includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that there be finding of primary facts based on good evidence, decisions about facts be made for reasons which serve the purpose of statute in an intelligent and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power. It was further held that the object of good governance cannot be achieved without application of mind. Such objectives cannot be achieved by exercising discretionary powers unreasonably, arbitrarily and without application of mind. Rather such objectives can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution. 7. That the impugned action of the official Respondents is also repugnant to Articles 25, 37 and 38 of the Constitution of the Islamic Republic of Pakistan 1973 as the Petitioners have not only been treated discriminately by the official Respondents as they recommended for promotion, similarly rather badly placed persons but the Petitioners have been deprived of their lawful right of future prospects, hence the impugned action of the Respondents is liable to be interfered with on the basis of law laid down by the Superior courts of Pakistan in cases reported as 2003 SCMR 291; 2004 PLC (C.S.) 586 and 2010 PLC (C.S.) 515. That as per section 24A of the General Clauses Act and instructions contained in ESTACODE 2007 at pg.251, page 9, as well as law laid down by the Superior Courts of Pakistan, the Departmental Authorities are bound to decide the grievance of their subordinates with application of independent judicial mind, fairly, justly and with reasons and those reasons must be communicated to the concerned, whereas in the instant matter the official Respondents have acted in sheer violation of cases reported as 1998 SCMR 2268 and 2011 SCMR 1. That the impugned office Memorandum dated 10.02.2014, copy whereof is annexed herewith and marked B whereby 15 marks have been placed at the discretion of the CSB is structured in utter violation of the dicta laid down by this honorable court as well as Honorable Supreme Court of Pakistan as the same is tainted with malice and mala fide for the simple reason that 5 marks meant for integrity/general/ reputation/ perception have not only been wrongly reserved for the said purpose but the same have been given over riding effect on the remaining 10 marks due to the note contained under the said formula saying that getting less than 3 out of 5 marks under this parameter will result in supersession by the CSB which means nothing but to brush aside the entire record of a candidate including assessment on his integrity as set out in the PERs under the carpet and to make the said structuring ineffective and give the CSB veto power by resorting the position prior to the aforesaid judgments which amounts to sheer contempt of court, hence the same is liable to be set aside. 8. Learned Counsel for Petitioners M/s Hafiz S.A Rehman, Muhammad Munir Paracha, Abdul Raheem Bhatti, Abdur Rehman Siddiqui, Barrister Masroor Shah, Muhammad Shabbir Bhutta, Fiaz Ahmad Jandran, Saeed Khursheed Ahmed, M. Kowkab Iqbal, Barrister Muhammad Shoaib Razzaq, Ahsan Hameed Dogar and Mansoor Beg, Advocates, on the question of maintainability of the writ petitions particularly with reference to adverse aspersion/deferment amounting to superannuation has made reference to Section 4 of the Service Tribunals Act, 1973 which reads as follow: Section 4-1(b) of the Service Tribunals Act, 1973:-- "No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." Proviso to Subsection (2) of Section 22 of Civil Servants Act, 1973 regarding right of appeal or representation, also bars appeal/ representation against matters relating to determination of fitness, the same is reproduced below: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a post". That the promotion policy specifically envisaged is a power of the Central Selection Board/Departmental Promotion Committee which are as under:- 1. 2nd proviso to Rule 4(1) of Civil Servants Appeal Rules, 1977 clearly states as under:- Provided further that no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade." 2. Proviso to Subsection (2) of Section 22 of Civil Servants Act, 1973 regarding right of appeal or representation also bars appeal/ representation against matters relating to determination of fitness, the same is reproduced below: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade." 3. No person can be left remedy less under the law as per dictum laid down by the Hon'ble Supreme Court of Pakistan, in the case reported as PLD 1989 SC 26. That this Hon'ble Court, therefore, has the exclusive jurisdiction to entertain the matter and redress the grievances accrued to the petitioners as laid down by the Hon'ble High Court in the case reported as 1993 PLC (C.S.) 576, the relevant portion whereof is reproduced as under:- "(a) Constitution of Pakistan, 1973.... Art. 199---Punjab Service Tribunal Act (IX of 1974),…

Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.

Related Legal Research & Directories

• Browse all judgments from Islamabad High Court
• Search Pakistani statutes: Constitution of Pakistan 1973, PPC, CrPC, CPC & Family Laws
• Analyze this case with Al Wakeelo AI Legal Assistant