2003 PLP (C (PLC(CS))

(c) Qualifications: as prescribed by the relevant recruitment rules. (d) Relevance of experience: Possess experience relevant to the functions of the post to which promotion is being made. (e) Quality and output of "work" and "integrity" marks calculated in accordance with the formula in the Addendum shall be important factors in determining the comparative merit of an officer. (a) Qualifying service: Possess 17 years' service as an officer subject to the provisions contained in Establishment Division's O.M.No.1/9/80‑R‑II (A), dated 2‑6‑1983. (b) Eligibility threshold: Attain a minimum score of 70 marks in the C.R.S. in accordance with the formula given in the Addendum. (c) Qualifications: As prescribed by relevant recruitment rules. (d) Relevance of Experience: Possess experience relevant to the functions of the post to which promotion is being made. (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 due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well‑rounded experience should normally be preferred ‑ particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex‑cadre assignment may be considered a positive feature this would not be so where an officer has stayed away from his parent cadre for too long. (g) Training: Should have successfully completed a regular course, at NIPA or an equivalent course in another institution. 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 institutions for at least two years; or (iii) have attended a regular course at the Staff College/NDC; or (iv) have exceeded the age of 56 years. (a) Qualifying service: Possess 22 years' service as an officer subject to the provisions contained in Establishment Division's O. M. No. 1/9/80‑R‑II (A) dated 2‑6‑1983. (b) Eligibility threshold: Attain a minimum score of 70 marks in C.R.S. in accordance with the formula given in the Addendum. (c) Qualifications: As are prescribed by relevant recruitment rules. (d) Relevance of experience: Possess experience relevant to the functions of the post being filled 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. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments (on account of work load or its complexity) vis- a‑vis relatively routine duties particularly in the Secretariat: Depending on the posts to be filled, an officer possessing well -rounded experience with adequate exposure to difficult assignments should normally be preferred. (g) 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. (h) Top Management Potential: Since officers promoted to this level may be called upon to hold independent charge of a Ministry/Divisions 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."

22. Section 9 of the Act of 1973 deals with "Promotion". It may be regarding "selection post" or "non‑selection post". In case of selection post, as involved in these matters, the criterion for‑promotion is merit, while in case of non‑selection post it is done on the basis of seniority‑cum‑fitness. No civil servant can ask for promotion as a right, and the giving or refusal of promotion is a matter, which is within the exclusive domain of the government/executive authority. If a promotion is denied to a civil servant it could not be termed as denial of any fundamental right.

23. Perusal of section 9 of the Act of 1973 unequivocally postulates that criterion for selection for promotion to the higher‑grade rest upon decision of the competent authority. No other forum/authority can assume the duties, which specifically have been assigned to the competent authority.

24. The seniority is one of the factor, which is considered for promotion, but seniority done is not enough. Promotion is not automatic, but it depends upon so many other factors, such as, competence, availability of post and antecedent etc. None of these factors is less important than seniority. For promotion all these factors, on case‑to‑case basis, are to be determined.

25. On the basis of improved seniority, the benefit of promotion, as a matter of right in selection grade, could not be claimed nor the Tribunal was competent to grant it from back date, as it was explicitly beyond its jurisdiction. The requirements for promotion mentioned earlier were not examined by the competent authority at the relevant time, as such, the same could not be granted by the Tribunal.

26. It has been submitted on behalf of the respondents, who are likely to be benefited by the judgment of the Tribunal, that antedation of promotion is just a consequential relief and if this Court feels that the Tribunal could not do .so, complete justice be done by exercising powers under Article 187 of the Constitution and those benefits be extended to others also. Virtually, it is not a case of antedation, but of granting promotion from' back date to the retired officers, which could not be done under the rules.

27. The contention of learned counsel for the appellant (in Civil Appeal No. 1599 of 1999) is correct and the Tribunal could not antedate the promotion of Mr. Niazi. Besides, the judgment in Niazi's case was in personam and nut in rein. It is noted that in respect of seniority of Depuis Secretaries, SRO No.1238(I)/73 dated 22‑8‑1973 and Office Memorandum No.2/2/75‑ARC dated 21‑2‑1975 were issued. The former lays down that the appointment of cadre post of the rank of deputy Secretary could be made 'after 8 years' service as Assistant Commissioner or SDO or in an equivalent post, while in latter, it was modified as follows:‑‑ "

3. Deputy Secretary. ‑‑‑Appointment to the post of Deputy Secretary which shall be deemed to be a Post in Grade‑19, will be made in accordance with the following methods:‑‑ (i) By selection on the basis of examination and interview etc. held periodically for lateral entry to senior posts in the Federal Secretariat. (ii) By horizontal movement from other occupational groups of Grade‑19 officers or Grade‑18 officers having 12 years' service in Grade‑47 and above, who have been recommended by the Ministries/Division, Departments or Provincial Governments and have been found fit by the Central Section Board."

28. We agree with the findings of the Tribunal to the effect that prescribed length of service for promotion to B‑19 is 12 years in B‑17 and above.

29. On the subject of promotion, we refer to the following cases in support of our above conclusion. In the case reported as Muhammad Umar Malik v. Federal Service Tribunal and others (PLD 1987 SC 172), which was heard by a Bench of five Judges including the then Chief Justice, the following was held:‑‑ "Mr. Abid Hassan Minto, Advocate, when called upon to address arguments on merits, urged that the rules of promotion should not have been changed so as to affect adversely those already on the eligibilities list i.e. the combined list of the U.D.Cs. and S.G.Cs. In other words he was claiming a vested right in promotion for all the U.D.Cs. borne on the joint cadre on the date of its separation. The position of law on the subject is clear in view of numerous decisions of this Court, e.g. Government of West Pakistan v. Fidda Muhammad Khan PLD 1960 SC 45, Central Board of Revenue, Government of Pakistan v. Asad Ahmed Khan PLD 1960 SC 81, Province of West Pakistan v. Muhammad Akhtar. PLD 1962 SC 428, Manzur Ahmad v. Muhammad Ishaq PLD 1964 SC

17. No such vested right in promotion or rules determining eligibility for promotion exists." (Underlining is for emphasis). In another case reported as Muhammad Saleem Bhatti v. Secretary to Government of the Punjab, Agriculture Department, Lahore and 2 others (1985 PLC (C.S.) 26), the following was observed:‑‑ "

6. We have no dispute with the proposition so propounded before us on behalf of the respondent‑Departments through the learned District Attorney and have no hesitation to hold that pro forma promotion cannot be claimed as a right hued it is absolutely for the department to see that in the circumstances the civil servant can be granted pro forma promotion or not. In this case so before us we are in accord with the Department when we find that at this belated stage, if pro forma promotion is granted to the appellant from 1968 it will definitely change the entire structure of the cadre and will open floodgate of litigation amongst its strength." (Underlining is for emphasis). In a case from Indian Jurisdiction reported as R. Sampath v. The State of Madras and another (AIR 1962 Madras 485), the following was held:‑‑ "No civil servant has a claim to ask for promotion as of right and the giving or refusal promotion is a matter within exclusive discretionary domain of the executive authorities concerned in the matter." Another case form Indian Jurisdiction reported as M.A. Moqeem v File State of Mysore and others (AIR 1963 Mysore 219), the following was observed while dealing with the issue of promotion:‑‑ "It is, we think, clear that a variety of considerations govern the promotion of an employee none of which alone could render an employee suitable for promotion. Ordinarily, it would be for the State or the promoting authority to determine such suitability after an assessment of all relevant considerations, such as seniority, competence, rectitude, and antecedent official records, none of which is less important than the other, for the preservation of purity and efficiency in public service."

30. In the impugned judgment learned Tribunal, while directing to grant pro forma promotion to the respondent No. 1 in various grades from the date, Walayat Ahmed, respondent No.2 and other junior respondents were promoted, noted that such relief could be given in view of the case‑law sported in the cases referred to in para. 1 page 4 above. In the case at Sl. No. 1 (1973 SCMR 304), it was held that in the case of civil servant, who for no fault of his own was wrongly prevented from rendering service to the State in the higher post to which he way admittedly entitled he should be given salary for the higher post. The matter related to arrears of salary. Reliance is misplaced. In the instant case, it was never admitted by the Government that respondent No.1 was entitled to promotion from the date the Tribunal had granted. In the case at Sl. No.2 (1985 SCMR 1394) the appellant was awarded pro forma promotion and on the basis claimed arrears of pay. This case is also not attracted to the circumstances of these matters. In the case at S1.No.3 (PLD 1991 SC 1118), it was held that the question of pro forma promotion necessarily involves the question of fitness of a civil servant and that three things are to be seen, while considering a case of promotion viz. firstly, the rule of promotion i.e. is it of selection or of seniority‑cum‑fitness or of a seniority alone; secondly, where the promotion is to take place by seniority‑cum‑fitness; and thirdly, the question will be of fitness for promotion, Suffice it to say that in case of question of fitness, the jurisdiction of the Tribunal stands excluded. This case also does not support the contention of respondent No.

1. In the case at S1.No.4 (1996 SCMR 850), inter alia, the point under consideration was whether adverse remarks of A.C.R., which were not intimated to the civil servant could be made basis for order of reduction of civil servant claim for seniority/promotion by the authority. Above point has no nexus with the points involved in these appeals. Facts are distinguishable. In the case at Sl. No.5 (1988 SCMR 736), leave to appeal was granted, to consider whether the appellant was entitled to any financial benefits flowing from the notification assigning him seniority in the absence of retrospective promotion. In thin case, the respondent‑Department was directed to place the appellant's case before the Departmental Promotion Committee with all the relevant A.C.Rs. to consider his case for promotion as Superintending Engineer. It is significant to note that the Court itself had not granted promotion cut referred the case to Departmental. Promotion Committee: On the contrary, the observations made in this case support the view taken by us in these appeals.

31. In view of above, Civil Appeal No.1599 of 1999 (The Government of Pakistan through Establishment Division Islamabad v. Hameed Akhtar Niazi) is allowed and the impugned judgment of the Tribunal is set aside. In the light of above findings the Appeals Nos. 1600 to 1606 of 1999 also stand disposed of. M.B.A./G‑158/S Order accordingly.