2007 PLP (C (PLC(CS))

UMAR ATA BANDIAL, J.

The order of this Court passed on 4-10-2006 is in the 'following terms: "The learned counsel for the petitioner submits that the petitioner was considered but declined promotion to Grade 21 by the Central, Selection Board (CSB) on 31-7-2006. Although a NAB inquiry for corruption launched against the petitioner had been dropped as conveyed by NAB's letter dated 16-5-2006 addressed to respondent No.2, nevertheless the petitioner's penal pro forma forwarded to the CSB on 28-4-2006 by the respondent No.2 was not corrected so that on 31-7-2006 the CSB proceeded on the basis that said NAB inquiry was still pending against the petitioner. Learned counsel submits that as a result of the false statement about the petitioner being under investigation for a reprehensible act, the petitioner was wrongly deprived of promotion and the CSB recommended another candidate junior to the petitioner for promotion. Mala fides are alleged against respondent No.2 by the petitioner. The denial of right to be fairly considered for promotion is urged as the petitioner's gravamen. This is compounded by the availability of only one post of Grade 21 in the railway service and that the petitioner small attain superannuation on 30-11-2006. (2) Specific query was raised by the Court in its order, dated 29-9-2006 as to when the respondent No.2 received NAB's letter dated 16-5-2006. Today the learned Deputy Attorney-General has placed on record a statement dated 4-10-2006 signed by a subordinate of respondent No.2. It fails to answer the query posed by the Court. But it is stated that closure of inquiry against the petitioner was intimated to the Ministry by NAB's letter dated 4-8-2006. Yet the statement also mentions that respondent No.2 was aware of the termination of NAB's proceedings against the petitioner and reported the same to the CSB on 31-7-2006 which turned down the petitioner's promotion due to adverse intelligence reports, output and reputation. The query made in order dated 29-9-2006 shall be answered by the respondent No.2 as presently from the statement on his behalf it appears that NAB's letter dated 16-5-2006 was never posted. The signed minutes of the CSB proceedings reported by the learned Deputy Attorney-General to have been received last week by the respondent No.1, are also summoned for confirmation of the foregoing narrative submitted on behalf of respondent No.2."

2. The respondent No.2 has filed parawise comments today. These reproduce the minutes of the CSB that record the decision taken in the case of the petitioner. This is as follows: "His performance did not meet the criteria of excellence and comparative merit. An inquiry is under process of finalization of NAB Lahore against the officer. The Board in its collective wisdom decided to supersede him." It is obvious that an untrue statement about a pending NAB inquiry against the petitioner constitute one of two considerations for superseding him. The Court cannot assess the relative impact of this reason on the CSB's decision in the matter. However, its gravity cannot be discounted. Clearly, the CSB was misinformed about the petitioner's record and was impaired in taking a fair decision in the matter of the petitioner's promotion.

3. The parawise comments explain that NAB's letter, dated 16-5-2006 addressed to respondent No.2, which was seen and initialed by him, was erroneously placed in a file kept in a branch in the Ministry altogether different from the one dealing with the petitioner's promotion case. Consequently, the petitioner's penal promotion or forma forwarded to the CSB could not be corrected. It is reiterated that adverse intelligence reports about the petitioner was considered by the CSB to reject his candidacy. However, these considerations do not find any mention in the signed minutes of the CSB as a ground on which the petitioner was superseded. Nor do the minutes indicate that the respondent No.2 informed the CSB about the closure of NAB's enquiry against the petitioner, although the former has claimed so in the statement of 4-10-2006 to the Court, and as he had seen NAB's letter dated 16-5-2006. Contradictions between the statement dated 4-10-2006 filed in Court for the respondent No.2 and parawise comments aside, the explanation given in the parawise comments admits a serious lapse in the performance of official duties by functionaries in the Ministry of Railways. A huge but false stigma of a corruption inquiry was allowed to undermine the petitioner's prospect for promotion in his career. Such treatment is callous; it leads to unfairness and causes resentment and a sense of injustice in the victim. Not surprising, therefore, the petition alleges malice. Although negligence and indifference in the discharge of official function may lead to the same consequences as malice, but the latter cannot be presumed to infect the respondent's actions. There is no animus visible from the present record and therefore, the allegation of malice levelled in the petition is rejected. Be that as it may, the factual explanation given in the parawise comments is found to be unsatisfactory. The petitioner has suffered on account of a false representation about his service record before the CSB that has side tracked his case of promotion to the next grade which he may have expected as a crowing milestone at the fage-end of his career. The injustice worked in this case needs to be corrected in order that the law may take its course.

4. At this point it is important to consider the jurisdictional maintainability of the relief claimed in the petition. Section 4(1)(b) of Service Tribunals Act, 1973 excludes from the Tribunal's scrutiny, matters about the fitness of a Government servant to be promoted to a higher grade. Therefore, the bar under Article 212 of the Constitution does not apply to promotion matters falling under section 4(1)(b) (ibid). The pendency of a NAB corruption inquiry against a Government servant prima facie affects his fitness and suitability for promotion. Whether the CSB acted lawfully in considering the petitioner's case for promotion is therefore, a matter that is, liable to judicial scrutiny. Reference is made to Dr. Ahmed Salman Waris v. Dr. Naeem Akhtar and 5 others PLD 1997 SC

382. Furthermore, the allegation that the CSB's action was prompted by omission of material information from its perusal, discloses non-transparency and neglect of duty. Such an allegation of abuse of authority in a fitness for promotion matter is also subject to our judicial c view. In the context of CSB proceeding the Honourable Supreme Court in C.Ps. Nos.215-K to 217-K of 2006 titled Government of Pakistan and others v. Iqbal Ahmad Khan Matiur Rehman and another approved the course adopted by the Honourable Sindh High Court in the following terms: "(5) After a thorough perusal of the judgment, we are of the opinion that the learned High Court had ordered reconvening the meeting of the CSB to make recommendations for promotion of the respondents only. Therefore; it had passed a just and proper order which needs no interference in exercise of the power under Article 185(3) of the Constitution of the Islamic Republic of Pakistan, 1973. (6) Thus, for the foregoing reasons, all the petitions are dismissed and leave to appeal is declined." The underlying judgment of the learned Sindh High Court in the aforesaid case is reported as Khan M. Matiur Rehman v. Government of Pakistan 2006 PLC (C.S.) 564.

6. This dispute concerns a matter of promotion which is one of the terms and conditions of service of the civil servant. The jurisdictional competence of this Court in such matters has already been adverted above. To elaborate the point learned counsel for the petitioner has aptly referred to the judgment in Muhammad Zafar Abbasi v. Government of Pakistan 2003 PLC (C.S.) 503, wherein the following observation has been made: "(11) 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 infallible. Such a presumption is neither warranted by reality nor supported by' the history. We are also mindful that we cannot substitute the opinion of the Selection Board' with our own opinion yet we may observe here that if the opinion as to unsuitability of an officer for promotion is not based on any material, the decision based thereon is rendered arbitrary and open to correction by this Court in exercise of Constitutional jurisdiction. (15) Before parting with this judgment we may like to observe that treatment of the Civil Servants in accordance with law and in just and fair manner in the matter of advancement of their career is of paramount importance for good governance otherwise his commitment to the job, dedication to duty, his power to take decision and even his integrity might be confined to casualty ward."

7. Based on the foregoing discussion it is concluded from the record that a mistaken statement about the petitioner was made before the CSB on account of which he has suffered in the matter of his promotion. The Court is also cognizant of the fact that in such-like matters, the exercise of constitutional jurisdiction by the High Court to correct the injustice has met with approval from the Honourable Supreme Court in the Iqbal Ahmed Khan Matiur Rehman case, (supra). Accordingly, the Court feels fortified in declaring the impugned decision of supersession of the petitioner by the CSB recorded in the minutes of its meeting dated 31-7-2006 to be contrary to the record and, therefore, illegal and without lawful authority. Consequent upon such declaration the respondent No.1 is directed to reconvene the meeting of the CSB to reconsider the case of the petitioner for promotion. The scheduling of the meeting shall be expedited to take account of the fact that the petitioner is retiring in the next month. The CSB shall however, in its review of the petitioner's case act strictly on the basis of the record and in accordance with law. The record shall include a copy of this judgment which shall be provided to the members of the CSB ahead of their deliberations in the promotion matter of the petitioner. Disposed of. F.B./A-121/L Petition dismissed.