1989SCMR808 (PLP)

(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All‑Pakistan Services, by or under Act of Majlis‑e‑Shoora (Parliament); and (b) in the case of the services of a Province and posts in connection with the affairs of a Province, by or under Act of the Provincial Assembly. In pursuance of the above mandate, the Civil Servants Act, 1973, was promulgated on 26th September, 1973, to regulate the appointment of persons to, and the terms and conditions of service of persons in the service of Pakistan. According to section 3 of this Act, "the terms and conditions of service of a civil servant shall be as provided in this Act and the rules". And section 9 of this Act provides that "a civil servant possessing such minimum qualification as may t be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs". The term "prescribed" is defined in clause (f) of section 2 of the Act to mean "prescribed by rules". The relevant "rules" in this regard are the "Civil Servants (Appointment, Promotion & Transfer) Rules, 1973". Rule 8 of these "rules" is relevant for our present purposes. It reads: "

8. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be." The case of the present petitioner is that by issuance of certain promotion policies, the matter of promotions has been made determinable by y these policies instead of by the "rules" as is required by section 3 of the Civil Servants Act, 1973. In this connection, the petitioner has drawn our attention to the memoranda issued by the Establishment Division on the subject of "Promotion Policy" and has submitted that the Promotion Policy suffers from a number of inconsistencies and elements of arbitrariness which were pointed out in the appeal before the Service Tribunal and also during the hearing. Even the A.C.R. form on which quantifications arc based, lacks comprehensiveness, consistency and it has no mention of quantification. The column of outstanding carrying 10 marks is not printed on the form. Such policy cannot, it is claimed, to have been validly made under any law. It is further submitted that promotions under section 9 of the Civil Servants Act are to be made on the basis of selection on merit and in the case of non‑selection posts on the basis of seniority‑cum‑fitness. Further under Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, these are to be made on the recommendation of the Central Selection Board or the Departmental Promotion Committee. As such the Selection Authority as defined under section 2(i)(h) is the exclusive authority to consider and recommend promotions and no policies can be framed to limit the jurisdiction of the Selection Authority. It is argued that Promotion Policy, if allowed to continue affects the service conditions of the petitioner, is a source of legitimate concern not only to the petitioner but also to the entire community of civil servants. The frequency with which changes have been made in the policy clearly indicates that it is being manipulated and has potential for mala fide manipulation. The policy has eroded the inherent jurisdiction of the Departmental Promotion Committee/Central Selection Board which is the only legal and statutory "selecting authority" to make selections for promotions. These statutory authorities are required by the law to keep "such minimum conditions as are laid down under the rules" in mind while making selections and taking the so‑called "ineligible" cases outside the purview of the consideration by the Departmental Promotion Committee or the Central Selection Board is against the law and rules. In fact, the promotion policy has taken the subject of selection virtually out of the purview of the Departmental Promotion Committee and the Central Selection Board who are now reduced to mere "rubber stamps". According to the petitioner, the inherent power and jurisdiction of the Selection Board to assess the suitability of the officer from his overall performance remains unabridged under the law as held by the superior Courts. Policies cannot be allowed to narrow, limit or restrict this jurisdiction. Moreover, since the "Selecting Authority" and the Civil Servant concerned have no means to know if the Quantification has been correctly and honestly worked out, total reliance on these figures worked out by some officials of the respondent cannot be lawfully placed and, therefore, the whole concept of Quantification becomes unreliable and vulnerable to manipulation. This being unjust cannot be lawful. The above submissions, inter alia, require further consideration. Leave granted The appeal shall be made ready on the present record with liberty to the parties to add further documents, if any and put up for hearing on a very early date. AA./M‑721/S Leave to appeal granted.