2021 PLP (C (PLC(CS))

ANWAAR HUSSAIN, J.

Through instant petition, the petitioners, who are former Supervisors of Federal Board of Revenue (hereinafter called "the FBR"), have made the following prayer: " it is most respectfully prayed that the instant writ petition may kindly be accepted; the impugned Order No.RTO-05/7(252)/1137/Admn. dated 22.11.17 of the respondent No.2 may graciously be set aside and the respondents be directed to promote the petitioners as Office Superintendent from date of vacancy in the supreme inters of justice."

2. Briefly stated facts of the case are that petitioner No.1 was appointed as Lower Division Clerk in the FBR on 26.04.1977. He was promoted as Upper Division Clerk and then as Supervisor on 04.08.2000. Petitioner No.2 was appointed as Upper Division Clerk on 19.03.1981 and promoted as Supervisor on 04.08.2000. As per seniority list of Supervisors issued in the year 2014, petitioner No.2 stood at Sr. No.4 and petitioner No.1 at Sr. No.15. Petitioner No.1 and petitioner No.2 retired from service on 17.05.2015 and 16.09.2015 respectively. During 15 years of service of the petitioners as Supervisors, meeting of Departmental Promotion Committee (hereinafter referred to as "the DPC") was never convened on administrative grounds and the petitioners were constrained to file Writ Petition No.5610/2015 in which direction was passed to Chief Management of FBR to decide the grievance of the petitioners through a speaking order.

3. Report and parawise comments were obtained from respondent-FBR. Preliminary objection as regards bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has been taken while relying upon Indus Trading and Contracting Company v. Collector of Customs (Preventive) Karachi and others (2016 SCMR 842), National Assembly Secretariat through Secretary v. Manzoor Ahmed and others (2015 SCMR 253) and Government of Sindh through Secretary Education and Literacy Department and others v. Nizakat Ali and others (2011 SCMR 592). It has been further stated in the report and parawise comments that since the post of Office Superintendent (IR) has been upgraded from BS-13 to BS-16, therefore, FBR referred the case to Establishment Division for amendment in the Recruitment Rules pertaining to the post of Office Superintendent. Matter remained pending with the Establishment Division and due to administrative reasons, meeting of DPC could not be held before 30.06.2016. The respondent department promoted the eligible Supervisors/Head Clerks/Assistants to the post of office Superintendents on merit on 20.01.2017. Petitioners Nos.1 and 2 got retired from Government Service on 17.05.2015 and 16.09.2015 respectively on attaining the age of superannuation much before the day DPC meeting took place. It is further stated in the report and parawise comments that both the Ex-Supervisors were no more in service even at the time of initiation of promotion process. Therefore, mere filing of the earlier writ petition before this Court before retirement would not entitle the petitioners to promotion.

4. Learned counsel for the petitioners submits that the petitioners were eligible for promotion during the currency of their service. It is only due to slackness on part of the respondent department that despite being eligible under the applicable rules, their case for promotion was not considered as no DPC was convened and hence, their legitimate right of expectancy was frustrated. Reliance is placed on Tariq Aziz-ud-Din and others (2010 SCMR 1301). As regards bar contained in Article 212 of the Constitution, learned counsel for the petitioners submits that if a civil servant is otherwise eligible for promotion, bar contained in Article 212 is not attracted in terms of Section 4 of the Federal Service Tribunal Act, 1973. Places reliance on Dr. Syed Sabir Ali v. Government of the Punjab through Secretary, Health Punjab and others (2008 SCMR 1535) and Secretary School of Education and others v. Rana Arshad Khan and others (2012 SCMR 126) to aver that pro forma promotion can be granted to a reiterated civil servant.

5. Conversely, learned counsel for respondent department reiterated the stance taken in report and parawise comments filed. He submits that the promotion is not a vested right; that the petitioners are claiming pro forma promotion when they are no more in service; that DPC can only be convened for those who are in service; that new rules have been promulgated for civil servants who are in service and not for those who have been retired. He lastly submits that factual controversy is involved in the matter as the petitioners are not eligible for the promotion after their retirement.

6. Arguments heard and record perused.

7. Before adjudicating the case on merits, the issue of maintainability of the instant petition needs to be addressed. There is no cavil to the proposition that Service Tribunals, which are established pursuant to the provisions of the Constitution, have exclusive jurisdiction with regard to and over the matters related to the terms and conditions of a civil servant. However, it is settled law that the terms "eligibility" and "fitness" in relation to the promotion entail different connotations. Question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, Service Tribunal has jurisdiction in the matter; however, question of fitness is a subjective evaluation on the basis of objective criteria when substitution for an opinion of the competent authority is not possible by that of Service Tribunal or of a Court, and therefore, Service Tribunal has no jurisdiction on the question of fitness. Reliance is placed on Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). In this regard, the facts of the cases referred by the learned counsel for the respondents, to substantiate his legal objection as to maintainability are distinguishable from the controversy in this constitutional petition.

8. In the instant case, there is no denial that the petitioners remained in service for fifteen years as Supervisors, which is fairly a long period during which admittedly no DPC meeting was held for no fault on the part of the petitioners. Similarly, seniority of the petitioners during their service is also admitted. The eligibility of the petitioners during the currency of their service with respondent department has neither been refuted nor denied anywhere in the report and parawise comments. In fact, the averments made in para 3 of the petitioner that the Member Inland Revenue, Federal Board of Revenue, Islamabad directed all the Chief Commissioners, Director General Inland Revenue and Director General Computer Wing, Inland Revenue vide letter dated 30.12.2014 for completion of service records of Supervisors, UDCs etc., to process their promotion cases have been admitted as a documented fact. Moreover, in para 6 of the reply to the contents of the writ petition, on merits, it has been stated as under: "It is submitted that since the post of Office Superintendent (IR) has been upgraded from BS-13 to BS-16 therefore, FBR referred the case to Establishment Division for amendment in the Recruitment Rules of the post of Office Superintendent. Matter remained pending with the Establishment Division and due to administrative reasons Departmental Promotion Committee (DPC) meeting could not be held before 30.06.2016 which was after the retirement of the petitioners." A bare perusal of above referred response of the department indicates that the petitioners were eligible as per rules applicable when the petitioners were in service and were due for their promotion before their superannuation. However, the same could not be materialized merely on account of failure of the respondent department to convene and conduct DPC on administrative ground. This is not a plausible reason for denying promotion to a civil servant who was otherwise eligible under the law to be promoted. In such like situations where the right of a civil servant to be considered for promotion gets frustrated during the service, the Constitutional Courts have recognized the right of such civil servants to be considered for grant of pro forma promotion even after their superannuation. In Dr. Syed Sabir Ali Case supra, the august Supreme Court of Pakistan held a civil servant to be entitled to consideration for pro forma promotion as per his entitlement if he was prevented to get the promotion. Similarly, in Rana Arshad Khan Case supra, the Hon'ble Supreme Court held that a civil servant should not be made to suffer on the basis of lapse on part of the department and when the working papers were prepared for the promotion of civil servant while he was in service, their superannuation is not an impediment for grant of pro forma promotion. Moreover, this Court in Arshad Ali v. WAPDA and others (2020 PLC (C.S.) 1226) has held that it is fundamental right of a civil servant to be promoted even after his retirement by awarding pro forma promotion provided such right accrued during his service and his case could not be considered for no fault of his own and that he should not be penalized for lapses and negligence on part of the department, which precisely is the position in the instant case as well.

9. Perusal of record also reveals that in the instant case, the post of Supervisors and Office Superintendent were upgraded on 26.11.2011 and the petitioners who were Supervisors were entitled to be promoted as superintendent; however, they were denied the promotion on ground of administrative reasons, which are not even spelled out in the Impugned Order, which prima facie is a non-speaking order and thus not sustainable under the law. It is admitted position in the instant case in terms of response contained in para 3 read with para 6 of the reply of the respondents that there is no fault on part of the petitioners in relation to their promotion, which is also evident from the fact that pursuant to the direction passed in W.P. No.5610/2015, the Chief Management FBR heard the petitioners on 21.04.2015 and outcome thereof was intimated to them vide letter dated 04.06.2015 by Secretary (Mgt-IR-IV) in the following manner: "

2. Since the post of Office Superintendent (IR) has been upgraded from BS-13 to BS-16, therefore, FBR referred the case to Establishment Division for amendment in the Recruitment Rules of the post of Office Superintendent. Matter is still pending with Establishment Division and is being pursued for early reply. On finalization of Recruitment Rules, case for promotion of petitioners along with other eligible officials will be considered accordingly." (Emphasis supplied) A plain reading of the last three lines from the letter dated 04.06.2015 reveals that there is no issue as regards the eligibility of the petitioners when they were in service; however, they have been denied promotion, which is contrary to the doctrine of legitimate expectancy and on the basis of same, pro forma promotion can be claimed even after the retirement as held in Arshad Ali Case supra. In fact, allowing pro forma promotion acts as a balancing tool against departmental slackness or apathy in not considering the case of a civil servant for promotion during his service despite being eligible.

10. The upshot of the above discussion is that this petition is allowed and the Impugned Order is set aside. The respondents are directed to re-consider the petitioners for pro forma promotion to the post of Supervisor in accordance with law and in the light of judicial pronouncements of the Hon'ble Supreme Court on grant of pro forma promotion to a retired civil servant. As the petitioners have already stood retired, therefore, their promotion, if granted on reconsideration, will not affect the seniority of any person already in the service. No order as to cost. MQ/M-120/L Petition allowed.