2011 PLP (C (PLC(CS))

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.

Listed petitions have been filed for leave to appeal against the orders/judgments of the Federal Service Tribunal, Islamabad passed on different dates, wherein plea of petitioner to deny promotion to the respondents on the policy of best of best has not been accepted.

2. Learned counsel conceded that in the case of Federation of Pakistan through Secretary Establishment v. Liaqat Ali and Tauqir Ahmad Faiq (Civil Petitions Nos.836 and 837 of 2006) decided on 25-9-2006, this Court had declined to accept the plea on the principle of best of best. On our enquiry whether in pursuance of the said judgment of this Court, criteria for promotion on the formula of best of best was available, learned counsel could not answer affirmatively and to our satisfaction. It is to be noted that Service. Tribunal, vide judgment dated 22-7-2006 decided two appeals bearing Nos. 1059(R)CS of 2004 and 2(R)CS of 2005 (Liaquat Ali and Mr. Tauqir Ahmad Faiq), wherein formula of best of best was discussed. Relevant paras from the said judgment are reproduced herein below:-- "(14) The question remains as to what is that criteria of excellence? Further if the comparative merit is in favour of Mr. A if factor X is taken into account and in favour of Mr. B if factor Y is taken into consideration, how is one balanced against the other? It is recalled here that Establishment division themselves have contended that promotion depends upon multiplicity of factors and not upon ACR score only. What is missing in the Board's recommendations is as to what criteria of excellence is being followed and how are conflicting factors weighed or balanced while determining the comparative merit. The outcome of consideration by the Board, not only of appellants' cases but of others whose promotion is denied on the same ground smacks of arbitrariness, whims and personal likes and dislikes. No grounds for not coming upto the criteria of excellence have been given in any case. Undoubtedly, such criteria itself has not been defined. (15) We are of the view that though such criteria can fit in the promotion policy as observed by Lahore High Court, which should be defined to bring more objectivity in the Board's functions. Observations to this effect have been made earlier also in this Tribunal's judgments. (One such judgment is in Appeal No.1438(R)CS of 2003 dated 12-8-2005 in case of Mr. Khurshid Naeem Malik v. Establishment division). Till then, supersessions on this ground will not meet the test of judicial scrutiny. We, therefore, accept these appeals and convert the appellants supersession on both occasions into deferment and direct the respondents to place their case again for promotion to BPS-21 in the next Board meeting. Separately, the Establishment division should bring more objectivity in the criteria for excellence and comparative merit by defining it further and given more specific, detailed and well argued reasons for denying promotion to an officer who is eligible and fulfils the requisite criteria, length of service, training requirement, relevant experience etc." The above matter came up before this Court and the judgment of the Service Tribunal was upheld vide cited judgment decided on 25th September, 2006, concluding Para therefrom is reproduced herein below:-- "(2) Learned D.A.-G., despite our repeated question, could not satisfy us on this aspect of the case, therefore, we are of the opinion that decision with regard to promotion of the Officer cannot be left on the discretion of Members of the Board. There must be some criteria to judge the performance of a candidate because promotion was denied to the officer on the ground that he does not fulfill the criteria. When there is no criteria, then how a person can be denied promotion, therefore, the Service Tribunal has rightly observed that the Board must bring more objectivity in the criteria." In pursuance of the above judgment of this Court, we have no reason to take different view other than which has already been expressed in the said case. In the circumstances, the relief has, therefore, been rightly granted to the respondents and petitions being without substance are hereby dismissed with costs, because knowing well that already a different view has already been taken by the Supreme Court, same point has again been agitated without any justification. When we asked if order dated 29-3-2010 was implemented or not, learned counsel replied that promotion stood granted to the respondents. Be that as it may, the concerned authority of the department is directed to comply with the order of the Service Tribunal, if not implemented as yet and submit report within a period of seven days to Registrar for our perusal in Chambers. H.B.T./S-48/SC Order accordingly.