2000 PLP (C (PLC(CS))

MUHAMMAD RAZA KHAN (MEMBER)‑‑‑The present appeal is directed against a condition imposed on the appellant vide order dated 31‑12‑1996 whereby his promotion as Senior Joint Secretary in BPS‑21 was approved and notified, however, the promotion was subjected to completion of the NDC/PASC Course. The contention of the appellant is that while serving as Joint Secretary (BPS‑20) he had already participated in an Advanced Level Management Course at Oxford and, therefore, he can be exempted from participation in NDC Course. It is further stated that the appellant was recommended for the NDC/PASC course, however, due to exigencies of service, he was not spared by the Minister or the Ministry concerned, rather a reference was initiated for exemption the appellant from the said course which was not finally approved. Thus, the impugned conditions in the said notification were challenged by the appellant, initially vide a departmental appeal dated 18‑1‑1997, and after waiting for statutory period for 90 days the present appeal was filed primarily with the prayer that the said condition be set aside and the appellant may be allowed the benefit of promotion with consequential benefits in (BPS‑21) w.e.f. 31‑12‑1996.

2. The respondents contested the appeal. It was stated in comments that the appellant was nominated to attend the Advance Management Course but he was not spared by the Ministry of Finance and, therefore, he did not attend the course. It was also stated therein that the Advance Level Management Course at Oxford was a short course and cannot be deemed to be a substitute for a regular course of PASC/NDC, which was a pre‑requisite for promotion to BPS‑21.

3. We have listened to the arguments on behalf of the parties and perused the record. The controversy can be analysed for discussion into three sections. Firstly whether the said course was compulsory and promotion could not be affected prior to the successful completion of the said course. Secondly whether the appellant was personally responsible for not participating in the course and Thirdly whether any exemption could be allowed or has been allowed in this regard.

4. Promotion is normally made on the basis of "seniority‑cum‑fitness for non‑selection posts and on the basis of "selection on merits" for selection posts under section 9 of the Civil Servants Act, 1973. The senior position in BPS‑21 is certainly a selection post and, therefore, in accordance with section 9 of the said Act a "civil servant possessing such minimum qualification, as may be prescribed, shall be eligible for the higher post" and, therefore, if a civil servant has the prescribed minimum qualification, he has a right to be promoted under the statute. The term "prescribed" used in section 9 means prescribed by Rules as per clause (f) of subsection (1) of section 2 of the Civil Servants Act. Therefore, it has to be provided in the A rules that a particular minimum qualification is required for promotion‑to a particular post. The said Rules in the form of Civil Servants (Appointment, Promotion and Transfer) Rules are already in the field and frequent amendments are made therein to provide for minimum qualification for various cadres and posts. The Rules framed under section 25 of the Civil Servants Act are required to have the concurrence of the President or a Competent Authority. The terms "minimum qualification" normally refers to the educational qualification completed with the prescribed training and, therefore, a particular course, if desired to be included as a part of minimum qualification required for promotion to the higher post, has to be approved and notified as a part of the Rules framed under section 25 of the Civil Servants Act. Representative of the respondent department could not point out any rule whereunder the said training has been mentioned to be a part of the minimum qualification. The statutory Rules under section 25 of the Act carry a much higher value than the subordinate legislation in the form of administrative instructions or decisions. Thus, since the said training is not proved to have been prescribed in the Rules as the "minimum qualification required for promotion" and the promotion of a Civil Servant cannot be denied on any ground other than the Rules, therefore, the condition imposed for the promotion of the appellant appears to be violative by section 9 of the Act.

5. It was pointed out that in accordance with the guide‑line for the DPC/CSB contained at pages245 and 262 of the ESTACODE (1989 edition) at serial No.172(a) it has .been provided in sub‑para.(g) of para. 6 as follows:‑‑ "Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College. This requirement will be waived‑for officers who: (i) have served as head of a training institution for at least one year; or (ii) have served on the directing staff of a training institution for at least two years; or (iii) have exceeded the age of 56 years." The perusal of the above paragraph shows that it was a part of the General Instructions and do not amount to the minimum qualification being the basic requirements for promotion under section 9 of the Civil Servants Act as the said requirements have not been notified as a part of the Rules approved by the competent Authority.

6. Examining the requirements of training from another view point, one comes to conclusion that under the General Guideline for the proceedings of the Selection Board it has been provided that there will be three options for a CSB while considering the cases of eligible civil servants for promotion to the higher post; (a) Either the Civil Servant concerned is recommended for promotion to the next higher post or; (b) he is recommended for supersession or; (c) the consideration of promotion of civil servant is deferred. Under sub‑para. (iv) of para. (I) of the guide‑lines, if a civil servant who has not undergone the prescribed training or passed the departmental examination the consideration of his" promotion can be deferred by the CSB." In the instant case there is no proof that the CSB had deferred the consideration of promotion of the appellant on this ground, rather it appears that the CSB has IC recommended the appellant for promotion and the competent Authority has approved the same. However, the condition has been imposed while issuing notification regarding the said promotion. Thus, the said condition had no legal validity. There is a wide difference between the concepts of deferment for consideration and that of a conditional promotion. If the consideration is deferred the CSB due to deficiency of training, the case is neither placed before the authority nor the promotion is notified. However, it appears that this was not the case and the appellant was duly considered, recommended and approved ‑for promotion. The imposition any conditions by any other authority has, no legal force because such a condition has not been provided in any provision and would amount to the violation of statutory right of Civil Servant under section 9 of the Civil Servants Act.

7. As it will appear from the discussion in the foregoing paragraph that the proper assistance was not extended on behalf of the department, and the standing counsel has not been approached to clarify the legal position and hence the above observation are made on the basis of deductions from the available record. The above finding is further strengthened by the fact that after the issuance of notification an effort has been made to impose such a condition with regard to two other officers who have already been notified as promoted without the imposition of such a condition. After the filing of the present appeal, vide letter dated 12‑3‑1997 the Establishment Division has asked for the approval of the competent Authority for the imposition of the similar conditions with regard to two officers. This shows that such condition was neither imposed by the CS13 nor by the competent Authority. The CSB could recommend a person for promotion with conditions. The Board has either to recommend a civil servant for promotion unconditionally or defer his consideration for promotion. This will, therefore, conclusively prove that imposition of condition was an afterthought.

8. The other ground, which has to be examined, is whether the appellant was responsible for not participating in the said course or whether he was not allowed to participate therein. In the later situation whether a person can be penalised for the fault of others. The comments filed by the department has stated in para. 3 that the‑appellant did not attend the management course at PASC as according to him he was not spared by the Ministry of Finance" and in para. 4 of the comments it is stated that" each time he did not attend the course on one reason or the other. "These are self‑conflicting replies. There is no proof at all that the appellant had, at any stage, expressed his inability to participate in the said course. There is no intimation that the appellant had any motive for non‑participation therein. Thus, if he was not spared by the Ministry of Finance or, for that matter, by the Minister of Finance, dire to the exigencies of service, the appellant cannot be put to a loss for no fault on his part. It was not sufficient for the department to have stated that he was not appeared by the Ministry of Finance "according to him" a civil servant is being deprived of a statutory right contained in section 9 of the Civil Servants Act, such a denial can only be justified on the clear proof of fault on the part of the Civil Servant concerned. Statutory rights cannot be denied on suppositions and presumptions. Thus, we have to hold that the appellant was not personally responsible for not attending the course. He cannot be penalized for the fault of the department or the urgencies in the interest of public service.

9. With regard to exemption from participation in the said course it may be stated that in accordance with the instructions quoted hereinbefore the participation in the said course can be waived in case of having served in a training institution as a head of the institution or as a Member of the directing staff. The said requirement can also be relaxed in case of Civil Servant who has exceeded the age of 56 years. However, the appellant has pointed out the names of few officers, for whom the requirement of particular training was not considered to be a hindrance in their promotion. The comments of the department have confirmed that the contention of the appellant with regarded to the said precedent cases was correct and the said officers were allowed the benefit of promotion. The refusal to extend such benefit to the appellant was an act on discrimination.

10. On the basis of the above discussion we accept this appeal, modify the notification-dated 31‑12‑1996 and delete the condition annexed to the name of the appellant on serial No.52 thereof. In consequence thereof the E appellant will be entitled to all the benefits of promotion with effect from 31‑12‑1996, however, it will be open to the respondent department to nominate him for training of the Advanced Level Management Course with the next three years as per practice of the Establishment Division in the two earlier cases.

11. No order as to cost.

12. Parties be informed accordingly. H.B.T./216/ST/F Appeal accepted.