1995 PLP (C (PLC(CS))

(14) If any order passed happens to contravene a law, rule or policy, it shall be the duty of the next below Officer to point out this to the authority passing the order." In view of the abovementioned provisions, we are satisfied that Secretary General, Establishment Division, as well as the Secretary, Ministry of Information, were within their jurisdiction to point out the contravention of law, rule or policy, as the case of the appellant was not processed through normal channel of Central Selection Board and it was a gross violation of the rules.

7. Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provides procedure for appointments and promotions of the civil servants. Rule 7 ibid is relevant and is reproduced below. "

7. Promotion and transfers to posts in basic pay scales 2 to 18 and equivalent shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Basic Pay Scales 19 to 21 and equivalent shall be made on the recommendations of the Central Selection Board." Therefore, it is the requirement of law that promotions of civil servants in BPS 19 to BPS‑21 shall be processed and routed through the Central Selection Board and any promotion made otherwise cannot be deemed to be regular promotion in the eyes of law.

8. Promotion policy, made under the Civil Servants Act, 1973 and the rules made thereunder, is contained at SI. No. 172, at page 242 c ESTACODE, 1989 Edition, lays down guidelines for the Department Promotion Committees and the Central Selection Boards for regulating the cases of promotions of civil servants. The relevant provisions of the policy relevant in the instant case, are at page 249 of ESTACODE, 1989 Edition, and paragraph 6 thereof provides that a civil servant must fulfil the following conditions for promotion to BPS‑21, which is a senior top management post. (a) Qualifying service : 22 years. (b) Eligibility threshold minimum score of 75 marks in the ACRs. (c) Qualifications: as are prescribed by relevant recruitment rules. (d) Relevance of experience: possess experience relevant to the functions of the post being Filed by promotion. (e) Quality and output of work and integrity marks calculated in accordance with the formula in the addendum shall be a crucial factor in determining the comparative merit of an officer. (f) 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. (g) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. (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. According to the abovementioned instructions issued by the President, which have the force of rules, the mandatory conditions for conferring eligibility of a civil servant for consideration for promotion to BPS‑21, inter alia, are that he should have 22 years service; minimum score of 75 marks of ACRs and should have successfully completed regular course at the Pakistan Administrative Staff College/National Defence College, and the admitted position is that the appellant, at the relevant time, i.e. on 17‑7‑1993 when Prime Minister sent note, had neither completed 22 years service nor had undergone/completed training at Pakistan Administrative Staff College and further he was also not senior, but junior most, and as such, is no circumstances, he was eligible for consideration for promotion to BPS‑

21. His case was not processed through the Central Selection Board under the relevant provisions and guidelines. Therefore, Secretary‑General, Establishment Division rightly pointed out this violation of Prime Minister, and after due consideration, in all fairness, department referred the panel of nine officers to the Central Selection Board I which included the name of the appellant also, as against one clear vacancy, a panel of three officers was to be referred. The case was considered by the Central Selection Board in its meeting held on 10‑10‑1993 although the Board recommended the name of respondent No. 4, Mr. Khawaja Ijaz Sarwar for promotion to B‑21 but recommendation of the Board was not agreed by the Caretaker Information Minister. The history of the case shows that a Summary was submitted to the Prime Minister, by the Caretaker Minister for Information and Broadcasting recommending a fresh review of all eligible candidates and this recommendation was approved by the Caretaker Prime Minister and the recommendations were communicated by the Additional Secretary (FA), Prime Minister's Secretariat on 18‑10‑1993, a few hours earlier than the Caretaker Prime Minister was replaced by an elected Prime Minister. The Ministry of Information referred the matter to the Establishment Division for advice, as previously the case was not routed through that Division. The Establishment Division advised that Summary for the Prime Minister may be prepared with full details through the Establishment Division for obtaining necessary orders of the Prime Minister. The case was also reviewed by the Review Committee in its meetings held on 31‑10‑1993 and 2‑11‑1993, as per directions of the Prime Minister and its recommendations were as under: "...The Committee observed that the recommendations in favour of Khawaja Ijaz Sarwar for his promotion from BPS‑20 to BPS‑21 made by Central Selection Board‑I in its meeting, dated 10th October, 1993 is in order and the case may be submitted to the Prime Minister for approval:" Accordingly, a Summary for the Prime Minister was prepared by the Ministry of Information on 8‑11-1993 giving full details alongwith the recommendations of the Review Committee, and routed the same through Secretary‑General, Establishment Division, for approval of the Prime Minister. The Establishment Division after examining the Summary recommended the case and endorsed and Summary for approval of the Prime Minister vide u.o. dated 16‑11‑1993. Finally, the Prime Minister approved the recommendations of the Central Selection Board for promotion of respondent No. 4, Mr. Khawaja Ijaz Sarwar, to BPS‑21, and the Additional Secretary (FA), Prime Minister's Secretariat communicated the decision to the Information Secretary vide u.o. dated 1st December, 1993. In view of the aforementioned facts, there appears no illegality in the proceedings, nor any discrimination or violation of any rule, and the appeal does not merit consideration. .

9. Let us now deal with the legal objections raised by the respondents with regard to maintainability of appeal. The Prime Minister sent a note to Secretary‑General, Establishment Division on 17‑7‑1993 but the notification was not issued and it was proper time for the appellant to have made representation to Prime Minister which he failed and waited till notification of respondent No. 4 for promotion to BPS‑21 was issued on 1‑12‑1993, and filed a representation only on 30‑12‑1993 to the Secretary, Ministry of Information. So far as first cause of action was concerned, he was supposed to file representation within thirty days to competent Authority which he failed to do and made this issue time‑barred. The application for condonation of delay has been filed on the ground that the appellant has preferred this appeal against final order in appeal dated 6‑3‑1994, whereby his representation dated 30‑12‑1993 against the promotion of Mr. Khawaja Ijaz Sarwar, was withheld, and this appeal is in time. There is no cavil about this proposition, but the appellant's main grievance is that in pursuance of the Prime Minister's orders dated 17‑7‑1993, Notification of his promotion to BPS‑21 was not issued, and as stated above, this appeal is hopelessly time‑barred as far as this relief is concerned. Therefore, we find no cogent grounds for condonation of delay because the fact is that the appellant has been able to place on record each paper, including notings on summaries and he was well‑aware of the position and could have got his grievance redressed in time.

10. As regards second cause of action against promotion of respondent No. 4, although the appeal is in time, but it is hit by proviso (b) to section 4(1) of the Service Tribunals Act, 1973, as in matters of promotion the jurisdiction of the Tribunal is barred and is limited to the extent of eligibility and this Tribunal only can go into the question as to whether there has been gross injustice or mala fide in dealing the case of an aggrieved civil servant, but, as already observed, the appellant in his second round was eligible for promotion to BPS‑21 and cases of officers of BPS‑20 of Information Group were placed before the Central Selection Board, including the appellant, though being junior most at S.No. 9 of the seniority list. Respondent No. 4 fulfilled the requisite requirements of rule and after due selection by a duty constituted CSB‑I, was considered fit and approved for promotion to BPS‑21 and since the factum of eligibility has been determined by the competent authority, and no mala fide has been shown or proved. On the contrary, the Ministry by placing three first names or one vacancy placed panel of 9 officers and appellant being last man was also considered and it is admitted fact that respondent No. 4 according to seniority was at S. No. 3, while appellant at S. No. 9.

11. The third prayer made by the appellant relates to payment of arrears of pay of the post in B‑20 and B‑21 against which he worked while he was in B 19 and B‑

20. This matter is altogether different for which he is at liberty to take up the case with the department independently as there is neither any impugned order nor any appellate order, as such at this stage while dealing with this appeal, we cannot pass any order with regard to this part of relief.

12. For the foregoing reasons, the appeal fails on merit as well as on legal grounds and is accordingly dismissed with costs. H.B.T./1010/Sr.F Appeal dismissed.