2017 PLP (C (PLC(CS))

SHAUKAT AZIZ SIDDIQUI, J.

Through this Single Judgment, I intend to dispose of Writ Petitions Nos.1269, 1359, 1383, 1401, 1415, 1416, 1418, 1426, 1429, 1432, 1439, 1440, 1446, 1447, 1451, 1453, 1454, 1462, 1464, 1466, 1472, 1484, 1496, 1501, 1503, 1504, 1505, 1506, 1507, 1509, 1511, 1518, 1523, 1524, 1540, 1542, 1561, 1562, 1564, 1565, 1566, 1568, 1583, 1588, 1589, 1607, 1612, 1657, 1756, 1955, 1961, 2033, 2058, 2095, 2137 of 2015, Writ Petitions Nos.3656 of 2014 and 1855 of 2013 as through all these Writ Petitions similar questions of law and facts regarding the denial of promotion to the petitioners in light of the recommendations of the high powered selection board (HPSB) and Central Selection Board (CSB) have been raised.

2. In all these Writ Petitions almost similar prayers have been made and the gist of the prayers made by petitioners through above mentioned Writ Petitions is as follows:- i. That to set aside the impugned decision of the Central Selection Board taken in its meetings dated 05.05.2015 and 07.05.2015 qua recommendation of respondents for promotion, by declaring the same illegal, unlawful, unconstitutional and void ab initio: ii. To reconsider petitioners for promotion on the basis of their PERs and TERs and grant the same with all consequential and back benefits w.e.f. the date their junior colleagues were recommended as such. iii. That the 5 marks meant for integrity/general reputation/ perception to be awarded by CSB on the basis of structural formula have wrongly been reserved for the said purpose and the same have been given overriding affect on the remaining 10 marks, therefore, be reviewed. iv. The operation of impugned minutes of the CSB may be suspended and to restrain the respondents from issuing notification of promotion till the final disposal of writ petitions.

3. Petitioners presented the facts and their respective stance is as under:- Service Promotion from Grade 21 to 22: Petitioner Syed Ijaz Hussain, filed Writ Petition No.1269/2015 stating therein that he presently has been working in BS-2l with more than 5 years and 3 months service experience having earned very good PERs for the last six years. That his name was placed at serial No.2 of the seniority list, but he was deferred for promotion and those who were recommended for promotion, were the ones placed at serial Nos.1, 5, 7, 8 and 11.

4. Zafar lqbal Qadir, petitioner filed Writ Petition No.1607/2015 stating therein that he was serving in BS-21 with more than 5 years and 5 months service in the said grade having earned one outstanding and five very good PERs during the last 6 years. He also served as acting secretary (BS-22) to lead IT and Telecommunication Division in the Federal Government since January, 2013 till appointment of new incumbent in office. That he was placed at serial No.19 of the seniority list considered during the meeting of 22nd September, 2014 but was deferred for promotion and those who promoted ahead of petitioner were placed at serial Nos.20, 21, 22, 23, 25, 26 and

27. That the name of petitioner was on the top in the subsequent two meetings of High Power Selection Board, held in January 2015 but again he was deferred. Particulars of both the petitioners along with reason for deferment are reduced into the following table:- SERVICE PROMOTION FROM GRADE 21 TO 22 Sr. No. TITLE WRIT PETITION NUMBER SUPERSESSION DEFERMENT COMPOSITION OF CSB CHALLANGED

1. Syed Ijaz Hussain (IRS) W.P. No.1269/15 X To call for a special report for at least six months of the officer to be placed before the board in the next meeting.

2. Zafar Iqbal Qadir (PAS) W.P. No.1607/15 X Case is sub judice before the Hon'ble Islamabad High Court as well as performance on merit. Both the petitioners have challenged their deferment inter alia on the grounds that the High Powered Selection Board while formulating their recommendations is to be guided by the judgments of superior courts of the country upon the basis of which Establishment Division notified a policy vide No.SRO-789/1/2010 dated 16.08.2010. That as per policy, the officer in BS-21 is now required to meet the conditions for promotion as contained in Rule 4 of Civil Servants (Promotion to the post of Secretary BS-22 and equivalent) Rules, 2010 which are as under:- a. Twenty-five years service in BS-17 and above. b. At least two years in a post in BS-21. c. At least three "Very Good" reports during the last six years. d. No penalty under Government Servants (Efficiency and Discipline) Rules, 1973 or under the Removal from Service (Special Power) Ordinance, 2000. (e) Possesses sufficient variety of experience.

5. It is contended that although petitioners fulfilled all of the above requirements still they have been deferred for promotion. That as ordained by Section 9(2)(a) of the Civil Servants Act, 1973 and conclusively decided by the Hon'ble Supreme Court in Tariq Aziz-ud-Din's case reported as 2010 SCMR 1301, promotion to BS-22 can take place strictly and only on merit on the basis of criteria set forth for promotion. That no doubt the appointing authority is vested with the executive authority to appoint civil servants in BS-22, however this authority is to be exercised in accordance with law and the settled principles in this regard and merit is not to be judged on personal whims rather it is to be gathered from the officer's track record. That although the power to promote and appoint a civil servant in BS-22 is a statutory power, which has to be guided by the mandatory provision of Section 24-A of General Clauses Act, which says that such powers "shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment." That petitioners have not been treated reasonably, fairly and justly which certainly is against the advancement of law in general and Civil Servants Act in particular. That in absence of any adverse finding or recommendation against petitioners, they have an accrued right and genuine expectation to be promoted as per their seniority to BS-22 and in case of denial of such right, not only the reasons must be recorded but same should also be supported by tangible material duly conveyed to the petitioners. That withholding of petitioner's promotion tantamount even temporarily to subjecting them to a major penalty which could not be done without due process of law and in absence of tangible material available on record and an opportunity of being heard, as such petitioners have been subjected to humiliation without any reasons, that too in violation of Article 14 of the Constitution. That it is settled law laid down by the august Supreme Court of Pakistan that civil servant is entitled for promotion with effect from the date his juniors have been promoted as such. Reliance in this regard has been placed on the case law reported as PLD 1991 SC

118. Service Promotion from Grade 20 to 21:

6. These petitioners are civil servants belonging to different occupational groups including the incumbents of Ex cadre posts and they are aggrieved of their denial of promotion to the next higher post through deferment/supersession, despite meeting the laid down criteria such as seniority, length of service, experience, required quantification of their performance evaluation reports (PERs)/training evaluation reports (TERs) on the basis of award of 15 marks by the Central Selection Board (CSB) particularly the modus operandi of awarding five crucial marks and consequently the categorization to A, B and C. Those placed in category C were not to be promoted, while considering the cases of promotion to the next higher post, with the approval of competent authority. Some of the petitioners are aggrieved by deferring their cases on the sole ground that the board wanted to further watch all aspects of promotion including integrity for a period of one year. It is the stance of petitioners who are seeking their promotion from Grade 20 to 21 that they joined Civil Services after being declared successful in the Competitive Examination (CSS). Since then, they have been rendering meritorious services on various positions in various departments and law agencies. That throughout Petitioners have long and illustrious career, spreading over decades and have earned "outstanding and very good Annual Confidential/Personal Evaluation Reports (PERs)". Further averred that Petitioners integrity has never been called into question by any Reporting/Assessing Officers or by the countersigning superiors on their (PERs). That a meeting of Central Selection Board took place on 05.05.2015 and in subsequent meetings wherein the Petitioners were placed along with their colleagues before CSB to be considered for promotion to BPS-21 but in sheer violation to rules, petitioners have been deferred/superseded without any reason. That as Section 9 of the Civil Servants Act, 1973 read with Rule 7 of the Civil Servant (AP&T) Rules, 1973, a civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to higher post for the time being reserved under the rules for departmental promotion in service or cadre to which he belonged. However, in the matter in hand, the Central Selection Board has acted in oblivion to the aforementioned provision of law and Petitioners have been deprived of their lawful right without any fault attributable to them. That the impugned action is violative of law laid down by the august Supreme Court of Pakistan through judgment reported as 2010 SCMR 1301 (Tariq Aziz-ud-Din Case) wherein it has been categorically held that denial from the consideration for promotion is a major penalty, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of. It is the duty of competent Authority to consider the merit of all the eligible candidates while putting them in juxtaposition, to find out the meritorious amongst them. Merit includes limitations prescribed under the law. Discretion is to be exercised according to rational reasons which means that there be finding of primary facts based on good evidence, decisions about facts be made for reasons which serve the purpose of statute in an intelligent and reasonable manner. Actions which do not meet these threshold requirements are considered arbitrary and misuse of power. It was further held that the object of good governance cannot be achieved without application of mind. Such objectives cannot be achieved by exercising discretionary powers unreasonably, arbitrarily and without application of mind. Rather such objectives can be achieved by following rules of justness, fairness and openness in consonance with command of Constitution.

7. That the impugned action of the official Respondents is also repugnant to Articles 25, 37 and 38 of the Constitution of the Islamic Republic of Pakistan 1973 as the Petitioners have not only been treated discriminately by the official Respondents as they recommended for promotion, similarly rather badly placed persons but the Petitioners have been deprived of their lawful right of future prospects, hence the impugned action of the Respondents is liable to be interfered with on the basis of law laid down by the Superior courts of Pakistan in cases reported as 2003 SCMR 291; 2004 PLC (C.S.) 586 and 2010 PLC (C.S.)

515. That as per section 24A of the General Clauses Act and instructions contained in ESTACODE 2007 at pg.251, page 9, as well as law laid down by the Superior Courts of Pakistan, the Departmental Authorities are bound to decide the grievance of their subordinates with application of independent judicial mind, fairly, justly and with reasons and those reasons must be communicated to the concerned, whereas in the instant matter the official Respondents have acted in sheer violation of cases reported as 1998 SCMR 2268 and 2011 SCMR

1. That the impugned office Memorandum dated 10.02.2014, copy whereof is annexed herewith and marked B whereby 15 marks have been placed at the discretion of the CSB is structured in utter violation of the dicta laid down by this honorable court as well as Honorable Supreme Court of Pakistan as the same is tainted with malice and mala fide for the simple reason that 5 marks meant for integrity/general/ reputation/ perception have not only been wrongly reserved for the said purpose but the same have been given over riding effect on the remaining 10 marks due to the note contained under the said formula saying that getting less than 3 out of 5 marks under this parameter will result in supersession by the CSB which means nothing but to brush aside the entire record of a candidate including assessment on his integrity as set out in the PERs under the carpet and to make the said structuring ineffective and give the CSB veto power by resorting the position prior to the aforesaid judgments which amounts to sheer contempt of court, hence the same is liable to be set aside.

8. Learned Counsel for Petitioners M/s Hafiz S.A Rehman, Muhammad Munir Paracha, Abdul Raheem Bhatti, Abdur Rehman Siddiqui, Barrister Masroor Shah, Muhammad Shabbir Bhutta, Fiaz Ahmad Jandran, Saeed Khursheed Ahmed, M. Kowkab Iqbal, Barrister Muhammad Shoaib Razzaq, Ahsan Hameed Dogar and Mansoor Beg, Advocates, on the question of maintainability of the writ petitions particularly with reference to adverse aspersion/deferment amounting to superannuation has made reference to Section 4 of the Service Tribunals Act, 1973 which reads as follow: Section 4-1(b) of the Service Tribunals Act, 1973:-- "No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade." Proviso to Subsection (2) of Section 22 of Civil Servants Act, 1973 regarding right of appeal or representation, also bars appeal/ representation against matters relating to determination of fitness, the same is reproduced below: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a post". That the promotion policy specifically envisaged is a power of the Central Selection Board/Departmental Promotion Committee which are as under:- 1. 2nd proviso to Rule 4(1) of Civil Servants Appeal Rules, 1977 clearly states as under:- Provided further that no appeal or review shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."

2. Proviso to Subsection (2) of Section 22 of Civil Servants Act, 1973 regarding right of appeal or representation also bars appeal/ representation against matters relating to determination of fitness, the same is reproduced below: "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade."

3. No person can be left remedy less under the law as per dictum laid down by the Hon'ble Supreme Court of Pakistan, in the case reported as PLD 1989 SC

26. That this Hon'ble Court, therefore, has the exclusive jurisdiction to entertain the matter and redress the grievances accrued to the petitioners as laid down by the Hon'ble High Court in the case reported as 1993 PLC (C.S.) 576, the relevant portion whereof is reproduced as under:- "(a) Constitution of Pakistan, 1973.... Art. 199

Punjab Service Tribunal Act (IX of 1974), S. 4

Fitness or suitability of civil servant for being considered for promotion

Jurisdiction to resolve such question did not vest in the Service Tribunal

High Court is the proper forum to adjudicate upon such matter in exercise of its Constitutional Jurisdiction."

9. Learned counsel added that this Hon'ble Court in the case of Iram Adnan and others v. FOP etc. reported as 2012 PLC (C.S.) 1355 and Hon'ble Lahore High Court in case of Liaqat Ali Chughtai v. Federation of Pakistan etc., reported as 2012 PLC (C.S.) 1062 and august Supreme Court of Pakistan in the case of Oriya Maqbool Abbasi reported as 2014 SCMR 817 have already provided the guidelines, although stance of the respondents is that new policy and formula is based on the ratio of these judgments but in fact this formula has frustrated these judgments. The modus operandi of the Central Selection Board qua so-called deferment has almost all the attributes of the supersession, in which the requirement of earning one full year ACR before the consideration of the officers against the higher post, reference is invited to the promotion policy (Estacode 2007). That in fact, the so-called supersession, is a device to punish the officers for no good reason particularly when they have already earned outstanding reports which is the highest grade in the quantification of the Performance Evaluation Reports. It is not a simple deferment but question of integrity and performance has been linked, showing the real mala fide intention of the CSB/competent authority when nothing tangible is available on record on such account. The instant deferment for all practical purpose, is adverse order after having been made by the CSB with reference to determination of fitness which is obviously outside the scope of Federal Service Tribunal under Section 4(1)(b) of the Service Tribunal Act, 1973. That the supersession has been labeled as deferment in order to deceive the officers for promoting their blue eyed at the cost of the petitioners, knowing well all vacancies by that time would be filled leaving no room for consideration of promotion of officers so deferred by the Central Selection Board.

10. It is further contended that the question of mala fide of law and facts in this case is floating on the surface of the record of the minutes of the Central Selection Board and the same may graciously be perused to arrive at a just and fair conclusion. That the question of determination of fitness in all the cases is obvious and question of maintainability of the writ under Article 199 of the Constitution of Pakistan is beyond any doubt. In this respect the latest view of the Hon'ble Supreme Court of Pakistan as laid down in C.P.No.66 of 2009 vide order dated 01.04.2015 is very obvious. That the Hon'ble Supreme Court of Pakistan in another recent judgment Secretary Establishment Division v. Aftab Ahmed Manikan reported as 2015 SCMR 1006 has drawn a distinction between Articles 212(2) and 199 regarding question of maintainability of the writ petition and finally held that a writ in a promotion matter where question of fitness is involved, is maintainable. As regards the reports of the agency on the integrity of the civil servant, it is pertinent to submit that there is a specific reference on the point in Part-III, Sr.No.2 regarding integrity [morality, uprightness and honesty] and in all the cases officers having decades of service at their credit, earning reports from variety of Reporting and Countersigning Officers of integrity could not be sacrificed at the altar of agency reports and that too without confronting to the civil servant. The Hon'ble Supreme Court of Pakistan vide order dated 24.04.2001 (available on pages 112 and 113 of W.P.No.2058/2015) passed in C.A. No.295/2001 (Commissioner Rawalpindi Division v. Malik Tariq Rahim) laid down the law in this regard. That the Hon'ble Supreme Court of Pakistan in the Case reported as PLD 1986 SC 168 has also authoritatively held, that any secret report not disclosed to the accused civil servants could not be used against them. Reliance is also placed on PLD 2012 SC 106, PLD 1965 SC 90 and PLD 1968 Lahore 1630.

11. That the reasons for deferment despite fulfilling all the conditions as laid down in the Revised Promotion Policy, 2007 the three writ petitioners i.e. Writ Petition No.1383/2015 (Khawaja Adnan Zaheer v. Federation of Pakistan, Writ Petition No.1501/2015 (Dr. Lubna and others v. Federation of Pakistan) and Writ Petition No.2058/2015 (Ghulam Hyder Khaskheli v. Federation of Pakistan and others) were deferred with the reasons "the CSB recommended him for deferment for the reason that the Board wanted to further watch his work related performance for a period of one year" The performance of the aforementioned petitioners were either outstanding or very good during a period of at least three years and in the case of Ghulam Hyder Khashkheli, he is retiring on 29th July, 2015 (now retired) and this fact was on record before the Central Selection Board. One of the ingredient of an officer superseded is to earn one full year report before consideration for promotion to the next higher post, therefore, the impugned deferment order made by the CSB/competent authority is in fact, supersession under the garb of deferment. In the case of Writ Petition No.1561/2015 (Tariq Mahmood Javaid v. Federation of Pakistan and others) and Writ Petition No.1562/2015 (Muhammad Yasin Shar v. Federation of Pakistan and others), the officers belong to Secretariat Group having experience on the side of Secretariat work and they are entitled for promotion to the next higher post in the Secretariat Group by meeting all the conditions as laid down in the Revised Promotion Policy, 2007. They have also been deprived of promotion on flimsy grounds and the same has not been communicated despite a mandatory provision in the aforesaid policy. Their deferment also amounts to supersession and merits consideration for promotion from the date their juniors were promoted to the next higher post. The next case i.e. Writ Petition No.1657/2015 (Sohail Akhtar v. Federation of Pakistan and others), in this case the petitioner was deferred for not doing mandatory course for promotion to BS-20 despite being on the technical specialized side and also been exempt from doing such course after having crossed the prescribed age of 58 years as per laid down criteria in the Revised Promotion Policy of 2007. The factum of exemption with reference to his date of birth was on the top of the proforma of the officer's record and could have easily been noticed before deferring the officer for promotion to the post of Chief Engineer (BS-20).

12. In the case i.e. Writ Petition No.1756 (Fasih-ud-Din v. The State), learned counsel for petitioner Sardar Taimoor Aslam, Advocate contended that Petitioner provided a copy of the letter of the NAB authorities during the course of arguments which clearly stated that the Petitioner was exonerated from the NAB proceedings as far back in 2013 which speak volumes of the approach of the Promotion Committee. The departmental proceedings initiated in view of the NAB proceedings from which the Petitioner was exonerated were also closed due to the same fact. Without prejudice to the aforementioned, the grounds raised by the Respondents for recommending the deferment of Petitioner is belied of any logic and finds no basis in law. The Honorable Superior Courts have held time and again that mere pendency of proceedings is no ground for deferment and non-consideration. Reliance in this regard is placed on 2007 SCMR 1355, 2009 PLC (C.S.) 40, 2007 PLC (C.S.) 716, 2007 PLC (C.S.) 811, 2011 PLC (C.S.) 534 Sindh High Court. Further discrimination was also argued and it was averred that two of the PSP officers namely Majeed Marwat and Suleman have been promoted in the present impugned meeting to grade 21 and both of them have NAB proceedings pending against them. Furthermore there are also a few other officers who have been promoted and have NAB trials pending against them in the learned Accountability Courts. Learned counsel prayed for acceptance of the Petition while quashing the decision of the CSB and to issue a direction to them for promoting the Petitioner to BPS-20 with all back benefits.

13. Petitioner, Farooq Amin Qureshi through Writ Petition No.1447 of 2015 contended that on 28.08.2006, he was victimized by the CSB on its recommendations to competent authority, by superseding him for promotion to BS-20, relying on the fake intelligence reports which were prepared malafidely. The Hon'ble High Court set aside the supersession of petitioner as not being sustained according to law and ordered to promote the petitioner from the date when his juniors were promoted i.e. 12.12.2006 (copy of Honorable Sindh High Court order placed at pages 41-53 of titled writ petition) but respondents did not implement said order and subsequent orders passed in contempt proceedings in letter and spirit at the relevant time, meanwhile those juniors got further promotions and now they are in BS-22 and few are also the members of present CSB. That Petitioner remained out of Police cadre posts from 1999 to 2010 due to political victimization. That petitioner was posted in Punjab Government as DIG Inspection and Vigilance and Project Director Model Police Stations Punjab from 2011 to 2014 and raised the infrastructure of model police stations which had been appreciated by the present Government of Punjab. That in previous CSB meeting held in February 2014 Petitioner's PERs and TERs score was 73.29 marks and was placed in "A" category and CSB awarded 11 marks (out of 15 marks at its disposal which includes the 5 (five) marks (1/3rd weightage) under Integrity/General reputation parameters. Petitioner got total Score of 84.29 as per promotion policy framed in the light of Supreme Court's judgment in C.P.No.22/2013 after keeping in view the record position, integrity, performance of the petitioner known to the Board members as well as pen picture of the petitioner contained in his PERs and training evaluation reports. The CSB recommended the petitioner for promotion to BS-21. However, petitioner's case was referred back to CSB by the worthy Prime Minister for review/reconsideration inspite of "Good" integrity report as learnt to be prepared in 2014 by Government of Pakistan Intelligence Bureau Lahore, Punjab Province where petitioner served from 2010 to 2014 as D.I.G. Inspection and Vigilance Punjab. That the CSB of 7th May, 2015 recommended him for deferment for one year to observe his work related performance. The petitioner's ACR of 2014 which is reportedly very good was also available with respondents at that time but was ignored as it appears that CSB had already made up its mind to defer the petitioner on vague grounds as to observe his work related performance for further one year. That no question on the work related performance of the petitioner was raised in CSB meeting held in February 2014, when petitioner was recommended for promotion to BS-21 with total Score of 84.29 but surprisingly was raised by CSB on 7th May, 2015 which shows mala fide intentions of the respondents as the petitioner has been punished by the respondents for knocking the doors of superior courts for justice against non-compliance of court orders. That the reason on which the current CSB deferred the petitioner is the follow-up of the deferment of petitioner by CSB in 2013 wherein distorted facts were placed before the CSB that petitioner has not commanded any range hence not recommended for promotion to BS-21.This was done in reaction to the contempt applications filed by the petitioner for non-compliance of the Sindh High Court orders of 18-10-2010, 18-12-2012 and 8-2-2013.The respondents after non-compliance of court orders deferred the petitioner unlawfully and then filed their CPLA No.254 of 2013 before the Hon'ble Supreme Court of Pakistan against the Honorable Sindh High Court order for promotion of petitioner in BS-21 on the ground of work related performance. The petitioner filed his concise statement in reply to the CPLA wherein it was submitted before apex court that petitioner had commanded the largest range of country i.e. Karachi for one year and commanded many districts for more than four years. The Hon'ble Supreme Court of Pakistan dismissed their CPLA and acknowledged and approved the work related performance of the petitioner for all intent and purposes from 12.12.2006 which is for the next promotion of the petitioner in BS-21 in its judgment dated 14.05.2013 which has attained finality and the same cannot be questioned again by CSB or the competent authority. That the CSB of 7th May, 2015 changed its opinion without any tangible material available against the petitioner at the time of meeting which clearly shows that the CSB has acted with mala fide intention and neglected its own recommendations of 2014 on the basis of same material for promotion of the petitioner from BS-20 to BS-21. That the Hon'ble Supreme Court of Pakistan in its judgment passed in CPs.Nos.41 and 66/2015 directed the CSB to re-examine the cases on the basis of the criteria already set for promotion but the CSB did not act judiciously and justly and violated the Supreme Court's orders and was influenced in making above recommendations for deferment of the petitioner and did not apply independent mind as directed by the august Supreme Court of Pakistan.

14. Learned Counsel for Petitioners Mr. M. Aftab Alam Rana ASC in Writ Petitions Nos.1446 and 1511 of 2015, contended that petitioner Munir Khan Khilijis fully qualified for promotion to BS-20, as being senior, holding the post of BS-20 on current charge basis, no penalty, no inquiry, no notice, no adverse ACR, is on his account yet his junior is promoted. Whereas as per Instructions, Rules and law only a qualified/ eligible person could be appointed on current charge and the same amounts to promotion.

15. Regarding petitioner Rana Luqman in Writ Petition No.1511 of 2015 learned counsel contended that he was allocated Income Tax Group (Now IRS) after qualifying CSS exam. in 1984. Petitioner served the department as Income Tax Officer/Assistant Commissioner, Deputy Commissioner Income Tax, Additional Commissioner Income Tax/ Additional Commissioner Income Tax Inland Revenue and Commissioner Inland Revenue, which shows variety of experience as well. That whole of the service record of petitioner is completely unblemished, ACRs are either very good or excellent and this contention is not in the air rather could be ascertained from the record. That petitioner earned number of promotions on the basis of his performance only. The department earlier refused to promote the petitioner to BS-20 on the same allegations and as such he filed Writ Petition No.323/2012, which was clubbed with another Writ Petition No.3483/2012 titled as: Ms. Irani Adnan etc, however before announcement of the Judgment the respondent promoted the petitioner to BS-20 vide Notification dated 11.03.2013 meaning thereby that the whole record up to 11.03.2013 was up to the mark as on the basis of the said good record petitioner was allowed promotion to BS-20. That Petitioner is again denied promotion to BS-21 without any reason while number of juniors were promoted. Petitioner filed the instant writ petition and on the direction of this Hon'ble Court, department filed reply and informed that the petitioner has been deferred but again without any reason. This Hon'ble Court again directed the department to produce reasons and then it was informed that the petitioner is deferred as "the Board want to further watch his performance for a period of one year in all aspects including integrity." But again no reason is given that as to why and on what basis the Board came to this conclusion. That petitioner produced before this Hon'ble Court Certificate dated 20.06.2013, Pay Slips and a chart showing that the petitioner was awarded Performance Allowance due to his excellent performance for the last many years. No adverse ACR, No Notice and so much so no inquiry etc is pending.

16. On the point of Writ Jurisdiction of High Court, Learned counsel referred to Section 9 of Civil Servant Act, 1973 and contended that the language of this section shows that only the cases of eligible/qualified civil servants are placed before the Board and Board has to determine the fitness for promotion as such any order of Board regarding fitness could be challenged before this Hon'ble Court. That under Section 22 (Proviso) read with Section 4(1)(b) of Service Tribunal Act, no departmental appeal lies against the order of grant/denial of promotion. In this regard, learned counsel for petitioners placed reliance on the following case laws:- 2012 PLC (C.S.) 1355, Iram Adnan case Hafiz Muhammad Anees case Writ Petition No.1169/2013 dated 30.05.2013 Civil Petition No.472/2014 dated 27.04.2015 2005 PLC (C.S.) 974 (d) (e) (f) 2007 SCMR 682 2014 PLC (C.S.) 1134 2015 SCMR 1006

17. It is further contended that Consideration for promotion is an inalienable right which could not be denied. The consideration must be serious, reasonable, fair, bona fide, honest and in genuine application of mind and appreciation of comparative rights and record. The object of consideration should be to grant promotion not to deny the same, reliance is placed on case laws reported as 2009 PLC (C.S.) 40, PLD 2010 SC 857 at 870, 2014 PLC (C.S.) 1134. That in view of judgments of Apex court reported as 2008 PLC (C.S.) 1121 at 1125, 2010 SCMR 1301 withholding of promotion is a major penalty. That pending inquiry/minor penalty is no bar for promotion 2009 PLC (C.S.)

40. That reasons and material for denial of promotion must be communicated/ confronted and in this regard reference is made to Esta Code, 2007 + Promotion Policy. P.251, 2003 PLC (C.S.) 503 at 513.That Seniority plays a very important role in the career of civil servants as such promoting juniors and leaving seniors is illegal. Seniority even in selection posts of BS-20 to BS-22 plays pivotal role reliance is placed on case law reported as 2010 SCMR 130.

18. Learned counsel for Petitioner, in Writ Petitions Nos.1524 and 2137 of 2015 Mr. Aziz Nishtar, Advocate contended that Petitioner's case (in W.P. No.2137/2015) was deferred for 6 months during May 5-11, 2015 meetings without realizing that he was going to retire on 14.8.2015 on attaining the age of superannuation. That even the respondents in parawise comments {para 8(ii)} have intimated that petitioner's case of promotion will be considered in the next scheduled meeting of CSB in 3rd week of September, 2015 as per their letter No.3/1/2015-CP-VI dated 21st May, 2015. Interestingly the respondents have once again not taken the cognizance of the fact that the petitioner was going to retire on 14.8.2015 much before scheduled CSB meeting in September, 2015. The above scenario clearly shows that the petitioner's promotion case is being dealt by the CSB and now by the respondents not only whimsically but also without application of mind. That CSB worked against the constitutional provision and against the law violating the spirit of the Hon'ble Supreme Court Judgment dated 22.04.2015.

19. On the other hand, Mr. Afnan Karim Kundi, learned Addl. Attorney General, assisted by Mr. Jehangir Khan Jadoon, learned standing counsel made submissions that for purposes of judging the maintainability and merits of the writ petitions, it is necessary to first determine which order holds the field whereby the petitioners could consider themselves aggrieved within the contemplation of Article 199(1)(a) of the Constitution and contended that admittedly, all recommendations of both supersession and deferment impugned by the petitioners have not been approved by the competent authority. Instead, an order of deferment for a short period till next meeting of the CSB has been passed by the competent authority in the cases of all the petitioners without exception. Resultantly, all the petitioners shall be considered afresh for promotion in the next CSB meeting already scheduled and announced to be held in September, 2015. It is thus an incontrovertible factual position that the order or decision holding field at present is only the competent authority's order/decision of deferment for a short period till September, 2015. The recommendations of CSB of both supersession and deferment for a longer period of six to twelve months are no more in the field. This also shows that the competent authority's order/decision of deferment is in fact a beneficial order as compared to the recommendations made by CSB, in that, not only supersession have been converted, into deferment but longer deferments have also been cut short to a much shorter period till September, 2015 when the next CSB will consider all the petitioners for promotion again. The petitioners further stand to benefit by retaining their seniority with their batch when promoted after deferment. That the competent authority while not approving the CSB's recommendations had no option but to refer the cases back for fresh consideration by CSB for the purposes of promotion in accordance with the statutory mandate of section 9 of the Civil Servants Act, 1973 (CSA) and rules 7 and 8 of the Civil Servants (Appointment, Transfer and Promotion) Rules, 1973 (ATP Rules) requiring promotion to be made on the recommendations of CSB.

20. Learned AAG further contended that it is important to understand here that upon consideration of an eligible civil servant, there could only be two possible outcomes i.e. either (a) he/she is determined to be fit or unfit for promotion and accordingly recommended for promotion or supersession; or (b) determination of fitness is postponed for some reason resulting in deferment of his/her case for the time being. "Deferment" thus means to defer the very determination of fitness of a civil servant and to consider his/her case afresh at a subsequent meeting of CSB. The word deferment has been defined in the Black's Law Dictionary (Eighth Edition) as "act of delaying; postponement".

21. Learned Additional Attorney General next contended that in view of foregoing factual position the following are the implications for maintainability of the writ petitions: a. Petitions not challenging the competent authority's order/ decision are not maintainable since the order holding field has neither been appended therewith nor assailed therein to begin with. Admittedly, none of the petitioners have sought amendment to their petitions or prayer clauses therein to pose challenge to the order/decision of the competent authority, nor have they placed the impugned order on record. All oral arguments addressed at the bar on behalf of the petitioners were also solely targeted at and challenging the merits of CSB's recommendations, which has now become a sheer academic exercise. In their present form, the petitions failing to challenge the competent authority's order/decision are not maintainable. b. Petitions challenging CSB's recommendations which are no more holding field - having not been approved by the competent authority and having been nullified by the competent authority's order/decision of deferment for a short period till September, 2015 - are not maintainable as they have become infructuous. c. Even otherwise mere recommendations by the CSB do not afford an actionable cause to the petitioners whereby they could be considered "aggrieved" within the contemplation of the Article 199(1)(a) of the Constitution. Recommendations alone do not constitute an adverse order unless approved by the competent authority and resulting in passing of an adverse order as envisaged to be passed and communicated to the concerned civil servant under paragraph 9 of the Promotion Policy of 2007 (revised till date). Reliance is placed on 1995 SCMR 876. d. That the superior Courts have been assuming jurisdiction in service matters of civil servants pertaining to promotion only where an appeal to FST is not allowed under paragraph (b) of the proviso to section 4(1) of STA, 1973. On the other hand, Article 212(1)(a) of the Constitution read with section 3(2) of STA, 1973 vest "exclusive jurisdiction" in FST "in respect of matters relating to the terms and conditions of service of civil servants". Promotion is admittedly part of the terms and conditions of service of civil servants. Needless to state that the writ jurisdiction of this Hon'ble Court invoked by the petitioners under Article 199 of the Constitution is "Subject to the Constitution" as evident from the opening phrase of Article

199. Also the relevant Constitutional provisions i.e. (a) Article 212(1) vesting exclusive jurisdiction in FST being an administrative tribunal established pursuant to the said Constitutional provision; and (b) Article 212(2) creating Constitutional bar on the jurisdiction of other Courts including this Hon'ble Court - both start with a non obstante clause i.e. "Notwithstanding anything hereinbefore contained" thereby giving it an overriding effect over Article 199 which is contained before Article 212 in the Constitution. This is besides the fact that remedy before FST would by definition be considered an alternate adequate remedy within the contemplation of Article 199(1) of the Constitution. e. Petitioners cannot be considered "aggrieved" of the order/ decision of deferment made by the competent authority, whereas a civil servant must be "aggrieved" of an order to be able to agitate the jurisdiction of both FST (under section 4 of STA, 1973) and this Hon'ble Court (under Article 199(1)(a) of the Constitution). Indeed, in the petitioners' case, the competent authority has not approved CSB's recommendations of supersession and longer deferment and has instead passed an order/decision of simple deferment for a short period till September, 2015. f. It is now well-settled that promotion cannot be claimed by the petitioners as a vested right and in the absence of a legal grievance as discussed in the preceding submissions, superior Courts of the country have always refrained from entertaining writ petitions in such cases. Reliance is placed on Government of Pakistan v. Hameed Akhter Niazi (PLD 2003 SC 110) which holds at para 22 as under: "

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." [Emphasis added] g. Only a few petitions have challenged the Establishment Division's Office Memorandum No.F.1/1/2012-CP-2 dated 10.02.2014 ("OM") annexed therewith the Objective Assessment Form for allocation of fifteen (15) discretionary marks to be given by CSB to each candidate for promotion. What has been challenged is the provision made therein that should a civil servant score less than three (3) marks out of five (5) marks allocated to the head "Integrity/General Reputation/Perception", then he/she may be superseded or deferred by the CSB at its discretion with reasons recorded in writing. It may be mentioned that any challenge to the aforesaid OM would also be maintainable only before FST by way of an appeal in its exclusive jurisdiction vested under Article 212(1)(a) of the Constitution read with sections 3(2) and 4(1) of STA, 1973. This is because the OM clearly pertains to the terms and conditions of service of civil servants in terms of affecting their prospects for promotion. It is now well-settled that anything affecting prospects for promotion is not of itself a determination of fitness for promotion but a method or means of such promotion which can be agitated before FST as part of the right of an eligible officer to be considered for promotion. Hence, a writ petition would not be competent under Article 199 of the Constitution. This is besides the fact that appeal before FST would by definition constitute an alternate adequate remedy envisaged under Article 199(1) of the Constitution. Reliance is placed on I.A. Sherwani's case (1991 SCMR 1041), wherein the august Supreme Court authoritatively held at paragraph 10 thereof as under: "

10. From the above cited cases, it is evident that it has been consistently held inter alia by this Court that a civil servant if is aggrieved by a final order, whether original or appellate, passed by a departmental authority in respect of his terms and conditions, his remedy, if any, is by way of an appeal before the Service Tribunal even where the case involves vires of a particular Service Rule or a notification or the question, whether an accused civil servant can claim the right to be represented by a counsel before the Enquiry Officer. We are inclined to hold that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of subsection (1) of section 4 of the Act in order to file an appeal before the Service Tribunal. ... However, we may clarify that a civil servant cannot by-pass the jurisdiction of the Service Tribunal by adding a ground of violation of the Fundamental Rights. The Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights ..." [Emphasis added] h. Even otherwise, what the OM provides for is something belonging to the domain of Promotion Policy of the Government. It is the discretion of the Government to introduce and revise its promotion policy from time to time and the Court cannot substitute the policy decision with its own opinion. Revised Promotion Policy of 2007 together with OM dated 10.02.2014 that allocates fifteen (15) marks to the discretion of the CSB and the manner in which it is done are policy decisions and it is the exclusive domain of the government to prescribe qualifications for a particular post which is not justifiable as a policy matter before this Hon'ble Court. If the Court ventures upon giving its own policy view, there will be no end to suggestions on how to structure the Promotion Policy in terms of weight assigned to the discretionary marks of CSB and the various components thereof. The collective wisdom of the members of CSB drawn from amongst senior-most members of federal bureaucracy also including two Parliamentarians (comprising one Opposition member) are to be trusted since no perfect objective criteria could ever be made and an element of subjectivity based on trust will stay there. Indeed, this Hon'ble Court too would not venture upon giving its own assessment criteria. i. Lastly, this Hon'ble Court's jurisdiction is governed by the Constitution and the law as discussed above. Having no jurisdiction in the matter and the petitions being not maintainable, this Hon'ble Court cannot assume jurisdiction on the notion of simply applying its earlier judgment(s) to examine if the same were followed or not. These are neither contempt nor execution proceedings. Such an exercise could only be undertaken by the forum/Court of competent jurisdiction, which if at all is FST in the instant cases.

22. Learned AAG further contended that it is worth to note that the petitioners' counsel have all only argued against the CSB's recommendations without saying anything substantial against the competent authority's order/decision of deferment. It is thus requested that since all petitioners are in any case being considered afresh for promotion in the CSB meeting to be held shortly, therefore, indulging into merits of the case would be an unnecessary strain on the precious time of this Hon'ble Court. However, since this Hon'ble Court has so desired, thus the submissions on merits are being made without prejudice to the Federation's arguments on maintainability of these petitions. It may also be highlighted that examining the CSB's recommendations and its application of the provisions of revised Promotion Policy of 2007 including the Objective Assessment Criteria developed in light of the superior Courts' judgments, would merely be an academic exercise since the CSB's recommendations are no more in the field and Courts do not indulge in a mere academic exercise. Nonetheless, following are the arguments on merits. That the CSB has a statutory role as envisaged in section 9 of CSA, 1973 read with rules 7 and 8 of APT Rules. A distinction ought to be kept in mind between selection and non-selection posts. For selection posts, an officer may "eminently be suitable for promotion but is superseded merely because a junior might be found to be comparatively more meritorious" (2006 PLC (C.S.) 564). The legislature in its wisdom has thus conferred a role upon the CSB to assess/evaluate officers and make recommendations for promotions to selections posts. The wisdom of the legislature vis- -vis statutory role of the CSB to undertake the aforesaid process of "selection" is certainly not under challenge before this Hon'ble Court. The nature of a "selection" process thus also be borne in mind while discussing merits of the petitioners' case which remains undisputed.

23. It is argued that Section 9 of CSA, 1973 and Promotion Policy, 2007 (revised till date) give rationale/justification for giving overriding effect to the recommendations of the CSB. Section 9(3) of CSA, 1973 states that promotion in post of BPS-20 and 21 and equivalent shall be made on the recommendations of a Board (CSB) which shall be headed by the Chairman FPSC. It means that the recommendations of CSB will form the basis for selection of civil servants for promotion. The CSB's role is thus by definition an overbearing and overriding one. Accordingly, in any assessment criteria for promotion, CSB's own assessment and determination of an officer's fitness for promotion to a selection post shall be pivotal and instrumental. Likewise, the weight assigned to Performance Evaluation Reports (PERs) and Training Evaluation Reports (TERs) earned by an officer shall be proportionate but not overwhelming. In view of this, in the revised Promotion Policy of 2007, due to the respective importance of different components of assessment individually and collectively, an overriding effect has been given to the assessment made by CSB in the following two ways: i. If the officer is allotted less than 3 marks under the column/head of "integrity/general reputation/perception" in the Objective Assessment Form, then CSB may supersede or defer him with reasons to be recorded in writing regardless of his evaluation in other areas. This is because of the importance attached to this head in light of the recent judgments of the superior Courts to ensure an honest bureaucracy at the highest level of governance. ii. If the officer is placed in Category C after collective assessment/ evaluation of various components stipulated in the Objective Assessment Form where categories include Category A (11 to 15 marks), Category B (06 to 10 marks) and Category C (00 to 05 marks), then also he may be superseded on an overall basis. In both `i' and `ii' above, CSB's assessment has been given overriding effect over the PERs and TERs. It is further submitted that while `i' above has been impugned before this Hon'ble Court, 'ii' has not been challenged by any of the petitioners. Hence, even if `i' is declared illegal, the overriding effect of CSB's assessment under 'ii' above shall remain valid. That the CSB makes recommendations purely on merit based on the collective wisdom and knowledge of the CSB members acquired over more than thirty (30) years of their service. The attribute of "integrity/general reputation/perception" was inserted in the Objective Assessment Form for the CSB to evaluate officers not merely on the basis of integrity as reported in the PERs/TERs but also to form collective opinion as to the general reputation and perception about officers in a reasonable, fair and equitable manner. Giving overriding effect to the five (05) discretionary marks regarding integrity, general reputation and/or perception is fully in consonance with the spirit of the judgment of Orya Maqbool Abbasi's case (2014 SCMR 817).

24. That fifteen (15) marks to be allocated by the CSB are discretionary marks and are distinct from the 85 marks based on PERs and TERs. These fifteen discretionary marks are based on the collective wisdom and personal and shared knowledge of the CSB members. If the overriding effect of CSB's discretionary marks is taken away, then its role would become redundant and this will be in violation of the statutory mandate of section 9 of CSA 1973 requiring promotions to be made on the recommendations of CSB. Moreover, following illegalities, anomalies and scope for manipulation and bias will arise: a. Much greater reliance and importance would then be attached to the individual assessments of Reporting and Countersigning Officers writing the officers' PERs and TERs. This will clearly be more subjective as these are personal opinions whereas proceedings of the CSB, due to its wide composition and senior level participation, makes it far more objective in its deliberations. If at all a member is biased in favour of or against an officer under consideration for promotion, the open deliberations and frank discussion at the CSB neutralizes such bias. b. On the other hand, there is no open or frank discussion by the Reporting or Countersigning Officers who individually put their personal opinions on the PERs/TERs which are not open to discussion with anyone else. c. Such a scenario leading to greater element of subjectivity and risk of personal bias would be against the spirit of judgments rendered by the superior Courts in Irum Adnan (2012 PLC (C.S.) 1355), Orya Maqbool supra and Liakat Ali Chugtai (PLD 2013 Lahore 413). d. It will also promote a culture of sycophancy where officers would leave no stone unturned to appease their Reporting and Countersigning Officers to have favourable PERs/TERs. e. Moreover, it is a ground reality that due to cultural and social reasons, the quality of PERs and TERs cannot always be trusted and the possibility of being influenced and of under or over-estimation of an officer cannot be ruled out. f. Also the PERs and TERs are basically an indicator of the officer's performance at posts in previous pay scales which do not involve the same type of middle and senior management work and qualities as required for senior positions in BPS-20 and

21. Then, the same lot of officers will subsequently also be considered for promotion to the most senior management level of BPS-22. Hence, the CSB's assessment comprising BPS-22 officers employing their collective wisdom and knowledge, must prevail over the PERs and TERs penned down by Reporting and Countersigning Officers. g. Lastly, the column "Fitness for promotion" in the PERs is only an assessment by the Reporting Officer which makes an individual eligible to be considered for promotion by CSB and cannot be treated at par with CSB's assessment. Whereas recommendation for promotion by CSB is based on a collective assessment by all members of the CSB employing their combined knowledge and wisdom.

25. It is further argued that there has been neither specific instance nor allegation of mala fides cited or leveled by the petitioners against any member of the CSB nor has there been any material placed before this Hon'ble Court to substantiate their claims, if any, of prejudice caused to the petitioners. In the absence of any specific instances of mala fides alleged by petitioners, the allegations of mala fides are worth no consideration by this Hon'ble Court. That Promotion of a civil servant is an administrative order based purely on performance and conduct of a civil servant. Normally, these two aspects are not measured by any set criteria but are normally known by other colleagues, senior and junior officers. This reputation reaches every corner of the civil service. That the reasons for deferment or supersession are not required to be recorded on the Objective Assessment Form by the CSB. These are recorded in the minutes only. There is no specific requirement to always have any tangible material, such as intelligence reports etc., presented before the CSB for allocation of the discretionary marks by the CSB. Usually, the CSB has before it the panel proforma which includes the record of the officer, length of service, PERs and TERs, postings held in present scale, and information regarding disciplinary proceedings (if any). In the instant cases, the CSB members used their collective wisdom and acquired knowledge for allocation of discretionary marks in each case.

26. It is maintained that the nature of a selection process for promotion to selection posts is inherently different from disciplinary proceedings. The following are the points in this regard: a. Disciplinary proceedings wherein element of stigma is involved mandatorily requires following due process as elaborated in the Government Servants (Efficiency and Discipline) Rules, 1973. This involves detailed proceedings, including confronting the accused officer with the incriminating material, a meaningful opportunity of defense, examining and cross-examining witnesses, etc. A certain standard of proof must be met before the accused officer could be penalized and stigmatized. This also includes the right of appeal. b. On the other hand, for selection posts, comparatively more meritorious officers are selected and appointed based on the collective wisdom of the CSB and the fact that a senior officer is not promoted having been found not fit for promotion due to lesser comparative merit does not attach any stigma. This also applies to an officer not promoted due to a negative general reputation or perception about him or his integrity, which simply results in leaving him out of competition for promotion. The proceedings of CSB are confidential and its assessment is expressed in numerical terms without any specifics about the lower merit or negative perception or reputation of the officer being made public. As such, based on general reputation and perception, it does not necessarily require any tangible material, nor the need for confronting the same to the officer concerned. This is also why no right of appeal exists against a determination of fitness as the legislature presumed that being found unfit for promotion does not involve any stigma. The Courts should defer to the wisdom of the legislature in keeping the sanctity of CSB's proceedings and not to lightly disturb the CSB's recommendations and findings of fitness or otherwise regarding an officer.

27. That the last meeting of CSB which was held in May, 2015 was initially scheduled to be held in January, 2015. Due to restraining orders from the Hon'ble Lahore High Court, the same could not be convened. Had the meeting of CSB been held in January, 2015, the PERs of 2013 would have been considered because PERs for the year 2014 i.e. the last calendar year were not due as per PER policy. Further, as per august Supreme Court's decision dated 22.04.2015 in Aftab Maneka's Case (Civil Petition No.41/2015 and Civil Petition No.66/2015), the CSB had to make recommendations for promotion within a period of 30 days and competent authority had to be finalized within 15 days of the submissions of the recommendations. Keeping in view of the said judgment, the competent authority, in relaxation of the policy, allowed considering the PERs up to year 2013 during the CSB proceedings of May, 2015. As per policy/practice an officer can be deferred or superseded by the CSB if he is beneficiary of the NRO, convicted by any court of law or formal disciplinary proceedings have been initiated against him under E&D Rules, 1973. However, as per NAB's letter dated 17.04.2005, all civil servants whose cases are pending with NAB can be considered for postings/promotions on merit in order to make them fair and just chance for their progression. Accordingly, Mr. Mazhar-ul-Haq Kaka Khel, a PSP officer has been promoted to BS-20 by the CSB despite the fact that an enquiry against him was pending before the NAB. As per Establishment Division's record, no information regarding plea bargaining of the respondent No.13 i.e. Mr. Mazhar-ul-Haq Kaka Khel in W.P. No.1565/2015 titled "Waqar Haider v. FOP etc." with NAB was available before and during the proceedings of the CSB in May 2015. The CSB during its proceedings held in May, 2015 has not allocated 18 marks out of 15 discretionary marks to any of the promoted officer. It is, however, pertinent to mention that the CSB can allocate more than 15 marks to a certain officer who is exempted from mandatory training(s) because in that case the CSB has up to 30 discretionary marks as per Promotion Policy, 2007 amended from time to time.

28. Further argued and denied that Dr. Lubna Naeem was awarded full fifteen (15) discretionary marks by the CSB. Dr. Lubna Naeem, an officer of an Attached Department of Capital Administrative Development Division was awarded fifteen (15) marks by the CSB out of 30 marks as she was exempted from mandatory trainings in line with the Promotion Policy, 2007 amended from time to time.

29. Learned counsel for private respondents M/s. Muhammad Shoaib Shaheen, Muhammad Umair Baloch, Imran Fazal, Misbah Gulnar Sharif, Zafar lqbal Chaudhry, Khalid Waheed Khan, Ambreen Khan, Muhammad Asif Gujjar, Ijaz Anwar, Rai Azhar lqbal Kharal, Barrister Jawad Niazi and Sajid Ijaz Hotiana and Ms. Naveeda Noor, Advocates adopted the arguments advanced by learned Additional Attorney General and Standing Counsel. I have heard learned counsel for the parties and have also perused the record.

30. The learned Additional Attorney General has raised the objection of maintainability of all these Writ Petitions by arguing that in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan. The learned Additional Attorney General has referred to the case of Mr. Khalid Mehmood Watoo v. Government of Pakistan and others (1998 SCMR 2280). Conversely the learned counsel representing the petitioners have contended that the writ petitions are competent as the determination of eligibility and fitness of a government servant for the purpose of promotion is not related to the terms and conditions of his service. Having considered the respective contentions pro and contra to the question of maintainability of the writ petitions, it is observed that as per section 4(1)(b) of the Service Tribunal Act, 1973, the Federal Service Tribunal has no jurisdiction on the controversy of the determination of fitness and suitability of a person for a job and for promotion. In the case of Mrs. Irum Adnan and others v. Federation of Pakistan and others reported as 2012 PLC (C.S.) 1355 this court observed as under:- ("First aspect, which requires determination is that, whether, this court has the jurisdiction to adjudicate upon the matter and issue appropriate writ, in the light of the prayer made by the petitioners and objection raised by the respondents. For convenience, section 4(1)(b) of the Service Tribunal Act is being provided hereunder:- "No appeal shall lie to a tribunal against an order or decision of a department authority determining the fitness or otherwise of a person to be appointed to or whole a particular post or to be promoted to a higher grade" Similarly proviso to subsection (2) of section 22 of Civil Servants Act, 1973 provides as under:- "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade". Moreover second proviso to Rule 4(1) of Civil Servants Appeal Rules, 1977 states as herein below: "Provided further that no appeal or review shall lie on matters relating to determination of a fitness of a person to hold a particular post or to be promoted to a higher post or grade". As is evident from above provision, no remedy by way of filing appeal etc is provided to Civil Servant against determination of fitness, therefore, this aspect itself is a ground to invoke the constitutional jurisdiction of this court. In this regard guidance has been sort from the judgments reported as PLD 1989 SC 26, 2000 PSC 599, PLD 2003 SC 175, 2001 PLC (C.S.) 878, 2003 PLC (C.S.) 503, LHC and order dated 20.5.2011 passed by learned single Bench of Islamabad High Court in Writ Petition No.1160 of 2011. In this view of the matter it is held that writ petition on the issue brought before the court is maintainable").

31. The above quoted view expressed by this court in the case of "Mrs. Irum Adnan" is supported by the judgment of Hon'ble Lahore High Court with the title of Liaqat Ali Chugtai v. Federation of Pakistan and others reported as PLD 2013 Lahore

413. The above referred decisions of this court and the Hon'ble Lahore High Court were also referred with approval in the reported judgment of the august Supreme Court of Pakistan in the case of Orya Maqbool Abbasi and Federation of Pakistan and others 2014 SCMR 817.

32. The basic question involved in all these petitions is the question of determination of fitness and the same has been done by the CSB and subsequent conversion of supersession into deferment carries no material difference and in such circumstances the petitions are maintainable under Article 199 of the Constitution in view of the clear bar as contained in Section 4(1)(b) of the Service Tribunal Act, 1973. The said provision of the Act ibid is reproduced below for purpose of easement:- Section 4 (1) (b) of the Service Tribunal Act, 1973: "4(1)(b) ......no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade"

33. In an unreported judgment dated 27.04.2015 passed in C.P.No.472/2014 titled Umar Farooq v. Govt. of Pakistan, through Secretary Establishment Division, Islamabad whereby the question of deferment was finally authoritatively determined by the Full Bench of the apex court in the following terms: "

3. Having considered the above circumstances and also having heard learned counsel for both sides we are clear that there was no good reason for not recommending the promotion of the petitioner Umar Farooq. It is to be noted that the High Court has not taken the above circumstances into account but has proceeded on the premise that "the promotion to a selection post is not a right, but a civil servant can be considered for the posts. "This point of view was also advanced before us on behalf of the government but in our view it is not valid because the decision of the HPSB cannot be arbitrary or without reason. In the present case the HPSB not only acted arbitrarily but also unfairly and contrary to the merit, earned by the petitioner in his service. The petitioner was only seeking promotion to BS-22 and was not asking for posting to any specific government office. There was no justification for deferring the petitioner.

4. In the forgoing circumstances, the impugned judgment rendered by the High Court is set aside and so is the order of the HPSB deferring the petitioner. Since the petitioner quite evidently was fit and qualified for promotion and since he has already retired after attaining the age of superannuation, the issue remains one of pensionary benefits only. We are not in any doubt that he was entitled to promotion in BS-22. We therefore, order that he shall stand promoted w.e.f. 28.12.2012 i.e. The date on which the respondent Mr. Munir Qureshi, 11 years the petitioner's junior, was promoted to BS-22. The petition is converted into appeal and is allowed accordingly."

34. The learned counsel for the petitioners have heavily placed reliance on the judgments of the Hon'ble Supreme Court and High Courts in the cases reported as 2010 SCMR 1301, 2014 SCMR 817, 2012 PLC (C.S.) 1355, 2012 PLC (CS) 1062 and 2006 PLC (C.S.) 564 with particular reference to a judgment of the Division Bench of the Lahore High Court, Lahore reported as 2003 PLC (C.S.) 503 titled Muhammad Zafeer Abbasi v. Federation of Pakistan and others and also referred to another unreported order dated 01.04.2015 passed in Civil Appeal No.66 of 2009 dealing with the question of deferment/ supersession firstly decided by the Lahore High Court, Lahore in favour of the petitioners and the Government filed the appeal before the Hon'ble Supreme Court of Pakistan. The operative part of the order in paras-2 and 3 is reproduced below for ready reference: "

2. However, since this is the second round of litigation and the respondent had retired on 23.7.2009 after superannuation, we have no desire to remand the case to the High Court once again. We had required the Federation to show us the reasons why the respondent was not promoted. The relevant record has been produced before us. The ACRs signed and countersigned by the responsible senior Police Officers have stated that the respondent is a good officer who is also upright and honest. Nevertheless the CSB has variously reported that he does not enjoy a good reputation. When we questioned the learned DAG to let us know the basis of this opinion formed by the CSB, he was not in a position to do so although the entire record of the Establishment Division relating to the respondent officer has been produced before us. The same is also being returned to the Establishment.

3. Since there appears to be no apparent basis for the opinion formed by the CSB resulting in deferment/supersession of the respondent, we find that the opinion of CSB is unjustified. We may also state that the Establishment Division needs to look into this matter to improve its functioning so those senior offices of the Government who have spent more than 30 years in government service are not dealt with arbitrarily. If indeed the respondent did not enjoy a good reputation, perhaps this should have been documented or in the alternate those reporting officers should have been questioned who have stated that the respondent was a very diligent, competent, honest and good officer". In view of the above discussion, there is left no hesitation that all these writ petitions are maintainable as in all these writ petitions the petitioners have challenged the criteria on the basis of which the fitness of the petitioners for promotion is determined by the HPSB and CSB.

35. Before dilating upon the other issues involved in these petitions I find it appropriate to provide particulars of all the petitioners in a chart as under:- SERVICE PROMOTION FROM GRADE 21 TO 22 Sr. No. Title Writ Petition Number Super- Session Defer-ment Composition of CSB Challenged

1. Syed Ijaz Hussain (IRS) W.P. No.1269/15 X To call for a special report for at least six months of the officer to be placed before the board in the next meeting.

2. Zafar Iqbal Qadir (PAS) W.P. No.1607/15 x Case is sub judice before the Hon'ble Islamabad High Court as well as performance on merit. SERVICE PROMOTION FROM GRADE 21 TO 22 Sr. No. Title Writ Petition Number Super-sessions Defer-Ment Composition of CSB Challenged

1. Akbar Aleem Shamim (PAS) W.P.1359/15 x To observe his work related performance for a period of (06) six months.

2. Khawaja Adnan Zahir (IRS) W.P.1383/15 x To further watch his work related performance for a period of (01) one year.

3. Qaiser Majeed Malik (PAS) W.P.1401/15 x No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 72.15 C 5 77.15

4. Badar Zaman (PSP) W.P.1415/15 Was no considered by the board.

5. Malik Tahir Sarfraz (Pak Administrative Service) W.P.1418/15 x To further watch his work related performance for a period of (01) one year.

6. Imran Tariq (PCS) W.P.1426/15 x To further watch his work related performance for a period of (01) one year.

7. Khawaja Umar Mehadi (PCS) W.P.1439/15 x To further watch his work related performance for a period of (01) one year.

8. Ghani-ur-Rehman Wazir (PSP) W.P.1440/15 No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 72.71 C 05 77.71

9. Farooq Amin Qureshi (PSP) W.P.1447/15 x To further watch his work related performance for a period of (01) one year.

10. Syed Zulfiqar Ali Shah Kazmi (PCS) W.P.1451/15 x To further watch his work related performance for a period of (01) one year.

11. Aftab Ahmed Cheema (PSP) W.P.1454/15 x Disciplinary proceedings under Govt. Servant (E & D) Rules, 1973.

12. Tariq Hayat Khan (PAS) W.P.1462/15 x No reason provided Per Train-ing Award of Marks by CSB Total Score Category Marks 71.09 C 05 76.09

13. Shah Muhammad Jamal (FSP) W.P.1472/15 x No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 73.72 C 05 78.72

14. Shoaib Bashir Khan (P&D & R) W.P.1484/15 x Marks awarded by the board were below the prescribed score of 75.

15. Sheraz Mirza (IRS) W.P.1496/15 x To further watch his work related performance for a period of (01) one year.

16. Kamran Fazal (PSP) W.P.1503/15 x Watch of work performance in all aspects including integrity for a period of one year.

17. Muhammad Rafiq Khan (Pak Railways) W.P.1504/15 x Marks awarded by the board were below the prescribed score of

75. Per Train-ing Award of Marks by CSB Total Score Category Marks 65.95 C 05 70.95

18. Syed Imtiaz Altaf (PSP) W.P.1509/15 No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 71.08 C 05 76.08

19. Rana Muhammad Luqman (IRS) W.P.1511/15 x Watch of work performance in all aspects including integrity for a period of one year.

20. Ghulam Sawar Jamali (PSP) W.P.1540/15 x Watch of work performance in all aspects including integrity for a period of one year.

21. Rana Muhammad Iqbal Khan (PSP) W.P.1564/15 x To further watch his work related performance for a period of (01) one year.

22. Muhammad Shafique (PSP) W.P.1583/15 x Watch of work performance in all aspects including integrity for a period of one year.

23. Muhammad Akram Khan (BOI) W.P.1955/15 x To further watch his work related performance for a period of (01) one year

24. Gulab Zamir W.P.1961/15 x The board after examining the record of the case did not recommend the official for grant of Proforma promotion.

25. Ghulam Hyder Khashheli (EOE) W.P.2058/15 x Watch of work performance in all aspects including integrity for a period of one year.

26. Ejaz Asad Rasul (Ministry LJ and HR) W.P.2137/15 X Watch of work performance in all aspects including integrity for a period of 6 months. SERVICE PROMOTION FROM GRADE 19 TO 20 Sr. No. Title Writ Petition Number Super-sessions Defer-ment Composition of CSB Challenged

1. Riaz Hussain (Secretariat Group) W.P.1416/15 x PER of the officer for the years 2010 to 2013 are disputed. To get the disputed PERs from the right reporting officer.

2. Zahid Rashid (AGP) W.P.1429/15 x No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 71.7 C 4 75.7

3. Suresh Mal (Ministry Housing and Works) W.P.1432/15 x Seat Kept Reserved for the officer on the super-annotation of the officer on the vacancy of Chief Engineer BS-20.

4. Munir Khan Khiliji (Pak Railways) W.P.1446/15 x Marks awarded by the board were below the prescribed score of

70. Per Train-ing Award of Marks by CSB Total Score Category Marks 57.58 B 10 67.58

5. Muhammad Shoaib (PSP) W.P.1453/15 x Watch of work performance in all aspects including integrity for a period of one year.

6. Mushtaq Ahmed Qureishi (Railways) W.P.1464/15 x Marks awarded by the board were below the prescribed score of

70. Per Train-ing Award of Marks by CSB Total Score Category Marks 54.36 B 10 64.36

7. Babar Sikandar (IB) W.P.1466/15 x Watch of work performance in all aspects including integrity for a period of one year

8. Lubna Ayub and 05 others (IRS) W.P.1501/15 x Watch of work performance in all aspects including integrity for a period of one year.

9. Younas Ali Khan (Pak Railways) W.P.1505/15 x To further watch his work related performance for a period of (01) one year.

10. S. Asif Mateen Zaidi (Pak Railways) W.P.1506/15 x No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 67.43 C 05 72.43

11. Samin Ullah Khan Gandapur (Pak Railways) W.P.1507/15 x No reason provided. Per Train-ing Award of Marks by CSB Total Score Category Marks 70.73 C 05 75.73

12. Abid Mehmood Khan (Pak Railways) W.P.1518/15 x To further watch his work related performance for a period of (01) one year.

13. Muhammad Farooq Azam (PSP) W.P.1523/15 x Watch of work performance in all aspects including integrity for a period of one year

14. Muhammad Zahid Mahmood (Ministry of Water and Power) W.P.1524/15 The item was not considered by the board due to the unavailability of the Secretary, Ministry of Water and Power.

15. Hafiz Zafar Ali Malik (PS) W.P.1542/15 X Watch of work performance in all aspects including integrity for a period of one year

16. Tariq Mehmood Javaid and 04 others (Secretariat Group) W.P.1561/15 x For incomplete PER record (2008, 2009, 2010, 2011, 2012, 2013 (pt)].

17. Muhammad Yaseen Shar and 3 others (Secretariat Group) W.P.1562/15 x Officer should serve in federal secretariat for one year for want of assessment in own cadre.

18. Waqar Haider (PSP) W.P.1565/15 x Marks awarded by the board were below the prescribed score of

70. Per Train-ing Award of Marks by CSB Total Score Category Marks 60.44 C 4 64.44

19. Mukhtar Ahmed Baig (Defence Ministry) W.P.1566/15 x To further watch his work related performance for a period of (01) one year.

20. Asif Samad (Ministry of Defence) W.P.1568/15 x To further watch his work related performance for a period of (01) one year.

21. Haroon Khan (CAAD) W.P.1588/15 x To further watch his work related performance for a period of (01) one year.

22. Shahid Hussain (Ministry of Defence) W.P.1589/15 Official not considered for want of vacancy.

23. Sohail Akthar (Housing and Works) W.P.1657/15 x Mandatory training not done.

24. Fasihuddin (PSP) W.P.1756/15 x Disciplinary proceedings initiated by NAB Peshawar against the officer on allegation of corruption defined in section 9(a) of NAO, 99.

25. Muhammad Arif (information and broadcasting) W.P.2033/15 x To further watch his work related performance for a period of (01) one year.

26. Humayun Iqbal Shami (Staff welfare) W.P.2095/15 x To further watch his work related performance for a period of (01) one year.

27. Muhammad Ayub Minhas (Intelligence Bureau) W.P.3656/14 and W.P.1612/15 x Marks awarded by the board were below the prescribed score of

70. Per Train-ing Award of Marks by CSB Total Score Category Marks 59.38 C 05 64.38

28. Muhammad Ayub Minhas (Intelligence Bureau) W.P.1855/13 X Marks awarded by the board were below the prescribed score of

70. Per Train-ing Award of Marks by CSB Total Score Category Marks 58.63 B 7 65.63 It is the case of the respondents themselves that new Policy/Formula has been introduced in the light of judgment passed by this Court, in the case titled "Mrs. Iram Adnan and others v. Federation of Pakistan and others" reported as 2012 PLC (C.S.) 1355, therefore, propriety demands that practice/policy prevailing prior to above mentioned judgment may be provided and this aspect is to be scrutinized as to whether new formula/policy is in consonance with the judgment supra or not? In this regard, the stance of the Government of Pakistan, Cabinet Secretariat (Establishment Division) conveyed to Members of CSB, is being reproduced herein below:- "The Board was apprised that Ms. Iram Adnan and Mr. Khawaja Adnan Zaheer officers of Inland Revenue Service filed a Writ Petition No.3483/2011 in the Islamabad High Court against their supersession for promotion from BS-19 to BS-20 on the recommendations made by the CSB in its meeting held on 31-10-2011. The Honorable Islamabad High Court in its judgment dated 20-03-2012 read with order dated 13-02-2014 in Writ Petition No. 3483/2011, filed by Iram Adnan and others inter-alia directed as under:-- "In this view of matter, instant writ petitions are allowed, formula of award of 15 marks on the discretion of CSB is declared as illegal, superficial, unconstitutional, against the dictums of Court of Apex, non-transparent, result of adamant approach, whimsical, sham, unprecedented, infringement to constitutional guarantees and principles of natural justice, therefore, same is set aside. The respondent Establishment Division is directed to implement the judgment of Hon'ble Supreme Court delivered in Civil Petitions Nos.1083, 58 to 60, 443 and 444 of 2010 in its letter and spirit and restructure the formula of award of 15 marks in accordance with guidelines provided therein. The authorities concerned are directed to hold de-novo proceedings of Central Selection Board and on the basis of restructured formula all the superseded and deferred civil servants must be considered again, as their supersessions/ deferment on the basis of existed formula applied by CSB is totally illegal. However, civil servants who earned the promotion, without superseding other civil servants shall continue to hold their present posts and positions."

16. The Board was accordingly informed that in compliance of order of Islamabad High Court the officers who were deferred/superseded by the CSB in its meeting held in 2010 and 2011 will be reconsidered on the revised objective assessment criteria and separate minutes will be issued for the de-novo consideration.

17. The members of Board were briefed among others on the legal framework of promotion, which is reproduced as under:- (a) In the terms of Section 9 of Civil Servants Act, 1973, promotion is to be made to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which a Civil Servant belongs. (b) BS-21 posts are selection posts, selections to which are required to be made on merit in terms of Section 9 of Civil Servants Act, 1973. (c) Detailed guidelines for the CSB were contained in the Revised Promotion Policy, 2007 read with earlier policy of 1985. (d) Posts in BS-20 are also selection posts. Field offices are generally headed by the officers in this scale. It was therefore, essential that in addition to the relevance of experience, these officers must also have a sufficient variety and width of experience. (e) An officer on training abroad or posting abroad in our embassies can be considered. His/her promotion, however, to be actualized upon return, in case such positions do not exist over there. (f) An officer on posting with Foreign Government, International Organization or private agencies shall be considered upon return and after earning PER for 12 complete months. In case the officer has earned part PER for less than 12 months in a calendar year then a special report for the period of deficiency earned in next calendar year shall be taken into account to complete the requirement of twelve months for this purpose. The requirement to earn PER in relation to period of deputation is 3 months for period upto one year, 6 months for 1-3 years and 12 months for 3-5 years. (g) An officer superseded earlier shall be considered after earning PER for one full year. In case the officer has earner part PER for less than 12 months in a calendar year then a special report for the period of deficiency earner in next calendar year shall be taken into account to complete the requirement of twelve months for this purpose. (h) In case of non-earning of PER of complete one year for no fault of the officer (i.e. remained OSD, on mandatory/non-mandatory training and awaiting posting/actualization of promotion) then special report for the period of deficiency earned in next year shall be taken into account to complete 12 months. (i) As per policy, the marks allocated for qualification of PERs, Training Evaluation and Evaluation by CSB Members are as under: Quantification of PERs 70 Marks Present Grade 60% 42 Marks Previous Grade(s) 40% 28 Marks Marks of Training Evaluation Reports 15 Marks For promotion to BS-21 9 Marks NDU/NMC Training (60% weightage) NIPA Training 6 Marks (40% weightage) Evaluation by CSB 15 Marks (j) Doctors, Teachers, Professors and Research Scientists were exempted from mandatory training. In their cases, CSB will award marks out of 30 marks. (k) Officers having attained age of 58 years were exempted from mandatory training. (l) In case of officers exempted from training, their marks for exemption from training were added to the marks to be awarded by CSB. (m) 22 and 17 years service in BS-17 and above was required for promotion to BS-21 and BS-20, respectively, provided that where initial appointment of a person not being a person in Government service, take place in a post in BPS-18, 19 or 20, the length of service shall be reduced as prescribed. (n) Conditions for deferment (i) Having not undergone the prescribed training. (ii) Non submission of Part-I of PERs by the concerned officer to his Reporting Officer in respect of his service in the present grade and the preceding grade. (iii) Incomplete record or where the Board wants to watch the performance of the officer further or for any reason to be recorded in writing. (iv) Pendency of disciplinary or departmental proceedings. (v) Deputation abroad to a foreign government, private organization or international agency. (vi) Seniority being sub judice. (o) In terms of Rule 7(A)(2) of Civil Servants (APT) Rules, 1973 notwithstanding anything contained in FR 17, the officer who expires or superannuates after the recommendations of the CSB and before issuing of the notification, shall stand exempted from assumption of the charge of the higher post.

38. The Board was informed that in the light of Supreme Court's judgment in C.P. No.22/2013, the Prime Minister was pleased to approve new Objective Assessment Form (Annex-III) for CSB in 2014. The new form has focused separately on professional competence and integrity/general reputation. In the Form, new attributes namely professional/expertise and functional ability and leadership, have been added in addition to already existing attributes of quality and output of work, variety and relevance of experience, personality profile and conduct, discipline and behavior. Whereas the attribute of Top Management Potential has been substituted by Estimated Potential for middle/higher management. The attribute of integrity/general reputation/perception has been separately given 5 (five) marks (1/3rd weightage) with the condition that an officer under consideration, getting less than three (3) out of five (5) under integrity/general reputation parameter may be deferred or superseded by the CSB at their discretion but with reason to be recorded in writing.

39. According to revised Objective/Assessment Form three categories of officers A, B and C were introduced and incorporated in the Revised Promotion Policy, 2007, which are as under:- Category Range of Marks A 11-15 B 06-10 C 00-05 In case of exemption from mandatory training, the range of marks is as under:- Category Range of Marks 21 Marks (NIPA/SMC Exempted) 24 Marks (NMC/NDU/Exempted) 30 Marks (Both NMC/NDU and NIPA SMC Exempted) A 15-21 17-24 21-30 B 08-10 09-16 11-20 C 00-07 00-08 00-10

40. Further, in case of selection posts, an officer meeting the aggregate threshold shall also be superseded if CSB places him/her in category-C, as per amendments introduced in para 4(b) of Revised Promotion Policy.

41. The Board was apprised that the last meeting of CSB was held in February 2014. The recommendations of CSB were accordingly submitted to the Prime Minister for approval being the appointing authority. However, the Prime Minister referred back the cases of approximately 89 officers to the CSB for reconsideration by keeping the vacancies reserved for them. Aggrieved of such decision of the Prime Minister some referred back officers approached various Courts of law. The Honorable Courts of law in some cases inter-alia directed for issuing of promotion notification of the referred back officers, from the dates their other colleagues were notified for promotion. Establishment Division filed CPLA against such orders in the Supreme Court of Pakistan. The Honorable Supreme Court reserved the judgment in the CPLA filed by the Division which was announced on 22-04-2015. The Honorable Supreme Court in its order dated 22-04-2015 inter-alia directed as under:- "For the foregoing reasons, both the petitions are converted into appeal and allowed. The impugned judgments of the High Courts are set-aside and the Writ Petitions filed by the respondents are dismissed. The Board shall re-examine the case of the respondents on the basis of the criteria already set for determining the, fitness or otherwise of the civil servants for promotion without, in any way, being influenced by the observation made in the summary for the return of the recommendations to the Board. Since the promotion of the respondents have been pending for the last so many years. Let the Board make its recommendations within a period of 30 days and competent authority shall finalize their case within 15 days of the submission of the recommendations." 42 The Board was informed that the PERs for 2014 have become due for consideration of promotion to BS-21 and BS-20 in terms of para 2.37 of AGPE, 2004. As the Board was being convened in compliance of orders of Hon'ble Supreme Court and deadline of 30 days, the Prime Minister was pleased to approve to consider the PER record of the officers up to 2013 in the CSB.

43. The CSB was also informed that in terms of guidelines for submission of proposals for CSB issued by Establishment Division in 1974, 1998 and lastly in July 2010, furnishing complete information/ documents and calculation of score of the officers with accuracy, was the responsibility of the sponsoring Division. Further it was the responsibility of the Departmental Representatives who attended the meeting of CSB to apprise the Board, whether or not any departmental proceedings were pending against the officers whose cases were being considered by the Board.

44. The Revised Promotion Policy, 2007 provides that if seniority of a civil servant is sub judice, he/she may be deferred for promotion. The issues were discussed at length and CSB was of the view that if seniority of a Civil Servant has only been challenged in a Court of law and no restraining order issued by the Court is in field then the officer will be considered according to existing approved seniority list. The Board therefore, decided to consider such cases for promotion where the seniority is only subjudice but no restraining order in field. Board also noted that the Establishment Division's O.M. No.1/3/2007-CP-II, dated 19th January, 2012 states that reasons for supersession/deferments must be conveyed to the officers recommended as such. It was, therefore, decided by the Board that the officers recommended for deferment/ supersession may be informed by respective service administration about reasons for their supersession/deferment as already provided in the Promotion Policy. The Administrative Divisions/ Departments would be responsible not only to convey them the decision of the Board, after approval of the competent authority, to the officer concerned but also make sure that the report of the prescribed period may be placed next year before CSB.

45. That the CSB agreed to reiterate/adopt the following principles across the board for the sake of added transparency and objectivity:- (a) As per policy, more weightage will be given to the performance of the officer in his recent scale. (b) As informed by Establishment Division the PERs of all officers will be considered until 31-12-2013. (c) In the cases where special reports are required, the same will be entertained as per policy. (d) Officers on probation shall not be considered for promotion to the next higher scale. (e) The officers shall be placed in any one of the three categories (A, B, C) by the Board keeping in view the parameters/attributes as given in the new Objective Assessment Form and shall be assigned marks accordingly. (g) Missing PERs up to an accumulated length of one year will be considered for recommendations for promotion, subject to satisfactory completion of record. (h) Sub judice cases of seniority will warrant deferment only if there is a restraining order by the courts. (i) Retired officers will be considered on court orders only and they would be recommended to FR-17 Committee for consideration, if find fit. (j) All discussion in the meeting will be non-attributable except when there is a dissent and the dissenting member wants it to be recorded.

46. After providing the above perspective, it would be advantageous to provide the legal framework for promotion and its procedure provided in the Civil Servants Act, 1973 and the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. The provision of Section 9 of Civil Servants Act, 1973 read with rules 7, 8 and 8-A of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are reproduced below for ease of reference:- Section 9. "Promotion (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a [higher] post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs provided that the posts of (a) Additional Secretary and Senior Joint Secretary may, in the public interest, be filled by promotion from amongst officers of regularly constituted Occupational Groups and services holding, on regular basis, posts in Basic Pay Scale 20; and (b) Secretary may, in the public interest, be filled by promotion from amongst officers of regularly constituted Occupational Groups and services holding, on regular basis, posts in Basic Pay Scale 21; In such manner and subject to such conditions as may be prescribed.] (2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed:- (a) in the case of a selection post, on the basis of selection on merit; and (b) in the case of a non-selection post, on the basis of seniority cum-fitness' [(3) Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a Selection Board which shall be headed by the Chairman, Federal Public Service Commission]." Rules 7, 8 and 8A of Civil Servants (Appointment, Promotion and Transfer) the Rules, 1973. 7. "Promotions and transfer to posts in basic pay scales 2 to 18 and equivalent shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfer to posts in basic pay scales 19 to 21 and equivalent shall be made on recommendations of the Central Selection Board."

8. Only such persons as possess the qualification and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board as the case may be. 8-A. No promotion on regular basis shall be made to posts in basic pay scales (17) and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed from time to time. The above statutory provisions of law and rules are the basic foundations for consideration of promotion of civil servants. The posts are divided into Non-Selection posts [promotion based on seniority cum fitness basis] and Selection Posts[meant on merit].

47. The Federal Government felt the need to meet functional requirements duly supplemented by comprehensive and consistent set of policy guidelines for Central Selection Board (CSB)/Departmental Promotion Committee (DPC) and consequently framed its first promotion policy on 31st October, 1982 for Federal Government employees regulating their promotions in BS-18 to BS-21 with specified criteria laid down therein after the approval of the President of Pakistan under the Law. The salient features as enunciated in the original Promotion Policy inter alia provided basic eligibility such as length of service, training courses, experience, blood counts in terms of quantification score of Performance Evaluation Reports for selection posts in BS-19, 20 and

21. Under the aforesaid policy there were no marks with the Central Selection Board nor any mark for mandatory training course. Normally the civil servants eligible for promotion and meeting with the quantification score were considered and recommended by the CSB/DPC and promoted. However, by the end of 1999 after the change of civil Government with that of Military Government, the new un-codified policy commonly known as "Best of the Best" was introduced with the field check reports from Agencies. The civil servants aggrieved of the new methodology adopted by the CSB assailed the same in the superior courts and the said policy did not stand to judicial scrutiny. Even with this background the then Cabinet Secretary moved a Summary for Prime Minister on the point of agency reports which is reproduced in extenso:- "GOVERNMENT OF PAKISTAN CABIENT SECRETARIAT CABINET DIVISION SUMMARY FOR THE PRIME MININTER. "Subject: USE OF INTELLIGENCE REPORTS IN CSB PROCEEDINGS A deleterious practice has emerged in the proceedings of Central Selection Board whereby reports from Intelligence Agencies are used by its Chair to supersede officers on behalf of CSB. This practice is an innovation not supported by the law or rules on the subject.

2. It is against the Constitution, law and rules to use Intelligence Reports which, if adverse to an officer's interest, are not conveyed to an affected officer nor is the principle of " "Audi-Alteram-Partem" applied. This practice is at variance with Supreme Court's established judgments. In fact, these reports are not even provided to members of CSB. It is merely announced that the Intelligence Agencies have not cleared such and such officer.

3. In a number cases, the Intelligence Reports have turned out to be palpably wrong. The cases of Mr. Abdul Raul Khan (DMG) and Mr. Akbar Hoti (PSP) spring readily to mind. By the time the record is set right, incalculable harm has been caused to the affected officers.

4. The Prime Minister is requested to intervene against this unconstitutional and illegal practice. If deemed appropriate, this proposition may be got verified at the level of Law Division as well as the Attorney General of Pakistan so that two authoritative opinions are available to the Prime Minister.

5. Cabinet Division proposes that if Intelligence Reports have to be made mandatory for decision ranking, a proper system needs to be instituted. This will require issuance of proper instructions under APT Rules, 1973. The gist of adverse reports should be served upon a concerned officer. A committee of 3 senior most Federal Secretaries and representative of concerned agencies may then take a collective decision, or sent its recommendations to the Prime Minister for a decision.

6. Cabinet Division submits the proposal in para 5 for consideration and orders of the Prime Minister so that the system in vogue which is patently irregular, and invidiously demeaning for civil servants, may be suitably rationalized. Prime Minister 's Secretariat, (Mr. Khalid Saeed, Principal Secretary to the Prime Minister), Ibd. Cab. Div. 1/1/2006-PS/CS dated 30th October, 2006. The Hon'ble Supreme Court of Pakistan while dealing with such issue of civil servant in C.A.No.295 of 2001 passed order dated 26.04.2001 which is as follows:- "We have considered this aspect of the case. Prima facie, we are of the view that there is force in the contention raised by Mr. Samdani, ASC inasmuch as, the intelligence reports which were never conveyed to the respondent cannot form the basis for withholding the promotion of the respondent. In this view of the matter, we vacate the interim order with direction that respondent be dealt with in accordance with law. Promotion of the respondent would however be subject to the fate of this petition."

49. The Federal Government in October, 2007 issued a Revised Promotion Policy and also made changes mutatis-mutandis in the basic promotion policy of 1982 and all posts in BPS-19 have been taken out of the category of selection posts while posts in BS-20 and BS-21 continued to be selection posts. The quantification score for promotion to BS-18 to BS-21 under the said Revised Policy (in ESTACODE Edition 2007 Volume-I) was determined as under: "DEVELOPMENT OF COMPREHENSIVE EFFICIENCY INDEX FOR PROMOTION/ DEFERMENT/ SUPERSESSION:- a) The minimum threshold of marks for promotion to various scales shall be as per following table: Basics Pay Scale Aggregate marks of Efficiency Index BPS-18 50 BPS-19 60 BPS-20 70 BPS-21 75 (h) The Selection Board shall recommend the officers on the panel securing requisite % and above in the efficiency index for promotion unless deferred (in order of seniority, depending upon the number of vacancies). No officer, meeting the aggregate threshold, shall be superseded. The senior officers, if not recommended for promotion on account of low threshold, shall be superseded whereas the junior officers, if not recommended for promotion for want of vacancies, shall be deemed not to have been considered." Minimum length of service for eligibility for promotion to posts in Grades 20 and 21 are 17 years service in Grade-17 and above and 22 years service in Grade-17 and above respectively.

50. The quantification of Performance Evaluation Reports/Training Evaluation Reports and CSB Evaluation under the Revised Promotion Policy of 2007 is as follows: QUANTIFICATION OF PERS, TRAINING EVALUATION AND CSB EVALUATION. For the purpose of consideration by the CSB, the PERs will be quantified according to the formula given in the addendum to the existing Promotion Policy (Sl.Nos.162 and 63) with the following modifications:-- a) . (b) The following marks will be allocated for quantification of PERs, Training Evaluation Report and CSB evaluation. S.No. Factor Marks 1 Quantification of PERs relating to present grade and previous grade(s) @ 60% .. 40% 70%

2. Training Evaluation reports in ratio of 60% : 40% 15%

3. Evaluation by CSB 15% Total 100% TRAINING EVALUATION REPORTS. a) A total fifteen (15) marks shall be allocated to the Training Evaluation Reports (Nine marks @ 60% for the training in the existing BPS and Six marks @ 40% in the preceding BPS). For example, in the case of promotion to BPS-21 posts, marks for NMC/NDC training will be awarded out of nine marks and marks for NIPA training will be awarded out of six marks.

51. The civil servants aggrieved under the Revised Promotion Policy filed writ petition against the order of their supersession/deferment in the Islamabad High Court, Islamabad and this Court decided the writ petition on 20.03.2012 also dealing with the award of 15 marks by the CSB. While considering the cases of promotion of officers in BS-20 and BS-21 this Court also dealt with the question of integrity of the civil servants in paras 6, 9, 11, 12, 13 and 14 and the same are reproduced as follows:- "

6. Award of 15 marks by CSB resulting into grant of promotion or denial to the same brings noticeable proportion of litigation before the High Courts, Service Tribunals and ultimately apex court. Incidentally, mechanism in which these marks are awarded and the manner in which this formula being applied has received displeasure from the superior courts and observations about same have already been made, through different pronouncement.

9. In my humble estimation issue before this court is not merely supersession of civil servants rather more serious to that, and it is disobedience of judgment of Hon'ble Supreme Court, frustrating the directions contained therein and malicious act to undermine the efforts of building the culture of rule of law. It is constitutional obligation of the High Court to enforce the law declared by apex court through different pronouncements. It really is beyond comprehension that executive functionaries would become insensitive about any judgment containing direction to them, by ignoring it or keeping aside the same. Any court of law does not render the judgment for academic discussion but with the object and purpose to undo the wrong and enforce the rights.

11. Unfortunately, trend of showing defiance, disobedience and non-compliance of the orders of the superior court is on increase and this is the appropriate time where High Court must become more vigilant and enforce its authority for the implementation of the orders of the Hon'ble Supreme Court and persons on the helm of affairs who through cryptic approach are found in ridiculing the orders, must be dealt with strictly in accordance with law.

12. I have no hesitation in observing that after clear direction by the Hon'ble Supreme Court, through judgment supra all the proceedings of Central Selection Board, in violation of observations/directions of apex court, have no sanctity whatsoever. The executive functionaries are expected to act in aid of order passed by the superior courts and implement the same in the spirit in which they are passed. It is common observation that when some decision by executive functionaries is taken in violation of any judgment/order of the superior courts, beneficiaries of such order show arrogance and deprived show their dismay about the judicial system.

13. It is simply unbelievable that civil servants having stinking reputation of involvement in the corrupt practices would be kept in service with a license to pollute the entire system. When it comes to taking action against such element, no evidence or substance is found to warrant action against them. Now, question arises that how can those civil servants be denied befit of promotion simply for the reason that some of the members of CSB had personal knowledge or in their estimation Officer in involved in corrupt practices? It is amazing to note that, no officer against whom presumption of corruption is made confronted with such suppositions and even interviewed to seek explanation about any impression lurking in the minds of learned members of CSB. One reason of not confronting could definitely be, want of incriminating material and other may be source of personal information, which in the understanding of law is just hearsay. Admittedly at the time of CSB, no disciplinary proceedings against superseded civil servants were pending, on the ground of charges of corruption. Allegations of corruption against any citizen of the country are serious but when such type of allegations are leveled against civil servants and that too of top or middle management, repercussion of such allegations are found more than serious and grave in nature. Such allegations against highly placed civil servant besides bringing stigma to his career disrupt entire fiber of his family, professional and social life and at times proves fatal to his life. In the era of awareness, rule of law and judicial activism, it is unexpected of the executive functionaries, to play with the careers of civil servant on hypothesis, surmises and with subjective approach. The superior courts of the country have jealously safeguarded the rights of citizens and always disapproved, actions taken with mala fide intention, ulterior motives and nefarious designs. Subjective formula being followed is like declaring civil servants as "good guy" and "bad guy" which is in direct violation of Articles 3, 4, 5, 9, 10-A, 14, 25 of the Constitution of the Islamic Republic of Pakistan.

14. In this view of the matter instant writ petitions are allowed, formula of award of 15 marks on the discretion of CSB is declared as illegal, superficial, unconstitutional, against the dictum of court of apex, non-transparent, result of adamant approach, whimsical, sham unprecedented, infringement to constitutional guarantees and principles of natural justice, therefore, same is set aside. The respondent Establishment Division is directed to implement the judgment of Hon'ble Supreme Court, delivered in Civil Petitions Nos. 1083, 58 to 60, 442 and 444 of 2010, in its letter and spirit and restructure the formula of award of 15 marks, in accordance with guidelines provided therein"

52. The same ratio decidendi of the afore cited judgment in Writ Petition No.3483 of 2011 [titled Mrs. Iram Adnan v. Federation of Pakistan and others reported as 2012 PLC (C.S.) 1355 came in the case of Liaquat Chughtai from Hon'ble Lahore High Court reported as PLD 2013 Lahore 413 and both were quoted with approval in the case of Oriya Maqbool Abbasi [2014 SCMR 817]. The Establishment Division vide O.M dated 12th October, 2012 issued revision of promotion policy-restructuring of criteria for award of marks reserved for Central Selection Board and according to said formula , the CSB shall place the officer in any of the following categories and assign appropriate marks accordingly: SL No. Category Range of Marks

1. Category-A = 11-15 2 Category-B = 06-10

3. Category-C = 00-05

53. Under para 2(1) (b) further clarifies that an officer meeting the aggregate threshold shall also be superseded if CSB places the civil servant in Category - C. Learned counsel for the petitioners laid much emphasis that this is somewhat an overriding effect not warranted under the judgments of Mrs. Iram Adnan and Liaquat Chughtai through which a well balanced and structured criteria was intended to come in existence so as to award of any possibility of arbitrary and unfair treatment to the civil servant contrary to his merit earned in his service. They have drawn the attention of the court to the aforesaid O.M. and the proforma of objective assessment by CSB as annexures I and II with the comments filed in the writ petitions and duly relied upon by the respondent Establishment Division could, in no way, cause interminable difficulties in way of career progression of the civil servants particularly by using 5 marks as a tool to place in Category-C on integrity/general reputation/ perception on the basis of PERs/TERs/Opinion of the Board bypassing unblemished service record including the PERs containing column on Integrity both general and Intellectual [Honest and straightforward] duly assessed by different Reporting Officers and Countersigning Officers closely watching the work and conduct spanning over decade and decade.

54. Vide office Memorandum dated 12th October 2012, Government of Pakistan, Cabinet Secretariat, Establishment Division issued changes made in the policies/guidelines. For the sake of convenience, said office Memorandum is reproduced hereunder:- OFFICE MEMORANDUM Subject: REVISION OF PROMOTION POLICY -- RESTRUCTURING OF CRITERIA FOR AWARD OF MARKS RESERVED FOR CENTRAL SELECTION BOARD. The undersigned is directed to say that the instructions contained in the Promotion Policy, 1982 and the Guidelines for Departmental Promotion Committees/Central Selection Boards issued under Establishment Division's d.o. letter No.10(3)/81-CP-I(Pt), dated 31-10-1982, read with Revised Promotion Policy, contained in this Division's O.M. No.1/3/2007-CP-II, dated 24th October, 2007, amended from time to time; have been reviewed on the basis of recommendations by a Committee on the subject.

2. With approval of the Competent Authority, the following changes are hereby made in the said policies/guidelines:-- a. The existing parameters/attributes namely (1) Quality and Output of Work (2) Variety and Relevance of Experience (3) Top Management Potential contained in the Guidelines of CSB attached with Promotion Policy, 1982 read with Revised Promotion Policy, 2007 shall continue to apply for consideration of civil servants for promotion, deferment and supersession. b. New Parameters/attributes namely (1) Integrity/General Reputation/Perception (2) Personality Profile and (3) Conduct, discipline and behavior are added in the said Guidelines attached with 1982 Policy. c. "Quality and Output of Work" and "Integrity" contained in the Guidelines attached with 1982 Policy as well as relevant boxes in the PER Farms, deleted in 2003, are revised. Changes in the PER forms being issued separately. d. A new Objective Assessment Form (Annexure-A) for assessment of each officer on the panel by CSB against the attributes namely (1) Quality and Output of Work (2) Integrity/General Reputation/ Perception (3) Variety and Relevance of Experience (4) Top Management Potential (5) Personality Profile and (6) Conduct, discipline and behavior is hereby introduced. e. The said Objective Assessment Form shall be placed before the CSB along with panel proforma of every officer for his/her objective evaluation by the CSB. The Board shall assess each officer on the panel on the basis of said parameters/attributes. After assessment/evaluation, the CSB shall place the officer in any of the following categories and assign appropriate marks accordingly:-- S. No. Category Range of Marks

1. Category A 11 to 15

2. Category B 06 to 10

3. Category C 00 to 05 f. Sub-Para (4) of Revised Promotion Policy, 2007 provides that the officers securing requisite percentage of marks viz: 70 to 75 will be promotion to BS-20 and 21 respectively. The said para is modified as under:-- (b) The Selection Board shall recommend the officers on the panel securing requisite % and above in the efficiency index for promotion unless deferred (in order of seniority, depending upon the number of vacancies). An officer meeting the aggregate threshold shall also be superseded if CSB placed him in Category-C. The senior officers, if not recommended for promotion on account of low threshold, shall be superseded whereas the junior officers if not recommended for promotion for want of vacancies shall be deemed not to have been considered." g. The aforementioned criteria for award of 15 marks by the CSB shall henceforth be treated as part of the Guidelines for Selection Board attached with Promotion Policy, 1982.

3. The Promotion Policy, 1982 read with Revised Promotion Policy, 2007 as well as the Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy shall be deemed to have been modified to be above extent.

4. Instructions contained in the Promotion Policy, 1982 read with Revised Promotion Policy, 2007, as amended from time to time, and Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy in so far as not inconsistent with the provisions of this OM shall remain in force.

5. Subject to the provisions of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and such other rules made under the Civil Servants Act, 1973, the Civil Servants shall be considered for promotion to higher post in accordance with the Promotion Policy issued by the Federal Government for the time being in force. The amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 shall be notified separately.

6. The Ministries/Divisions are requested to bring this decision to the notice of all attached Departments/Sub-ordinate Officers under their administrative control for compliance. The proforma for objective assessment by the Central Selection Board is also produced as under:- Government of Pakistan Ministry of__________ OBJECTVE ASSESSMENT BY CENTRAL SELECTION BOARD Officer's Name ______________ Seniority No.___________ Group/Service/Cadre: _________ Present Scale____________ S. No. Parameters/ Attributes Total Marks Marks Assigned 1 Output of work and quality of work 10 2 Variety and Relevance of Experience Secretariat/ Field Postings, Federal/ Provincial Government Postings, Leadership/ Routine Postings, Deputation/ Foreign Postings. 3 Professional Expertise 4 Personality Profile (As known to the Board Members) 5 Conduct, Discipline and Behaviour (Observation by RO/CO during last 05 years OR as known to the Board Members) 6 Functional Ability and Leadership 7 Estimated Potential for Middle/Higher Management Based on PERs and Training Evaluation Reports, Management Skills, Ability to take decisions, Strategic Thinking, Leadership Qualities, Drive for Results and Accomplishments in BPS-19 and 20 in policy formulation and implementation 8 Integrity/General Reputation/ Perception on the basis of PERs/ TERs/ Opinion of the Board (emphasize provided) 5 9 Total Marks by CSB 15 10 Overall Category Cat-A Cat-B Cat-C (11-15) (06-10) (00-05) * An officer under consideration, getting less than 3 out of five under this parameter may be deferred or superseded by the CSB at their discretion but with reasons to be recorded in writing (underlining is mine)

55. The Award of 15 marks under the new Policy with overriding effect of 5 marks on face of it is like empowering CSB with the sword of veto. For example, if some civil servant earned 75 marks from his PRs, SMC, etc. those marks will reduce to naught, if learned Members of CSB are not persuaded to award him 3 marks out of 5 marks. This power is not only arbitrary, fanciful, but against all norms of justice, fair play and transparency. The Superior Courts of the country have held time and again that on the basis of dubious formula and whimsical approach accrued valuable rights cannot be frustrated.

56. The case of the petitioner Syed Ijaz Hussain in W.P. No.1269/2015 and Zafar Iqbal Qadar in W.P. No.1607/2015 is that they have been serving in BS-21; that they possess all the codal formalities to be considered and promoted to the post of BS-22 but the HPSB deferred their promotion without any lawful justification. It is observed that in the case of Syed Ijaz Hussain, HPSB has deferred his case for promotion with the observation that his special report for at least 6 months be placed before the board in the next meeting and in the case of Zafar Iqbal Qadar, he is deferred with the observation that his case is sub judice before Hon'ble Islamabad High Court as well as performance on merit. It is observed that in the case of Tariq Aziz ud Din and others reported as 2010-SCMR-1301, the issue before the august Supreme Court of Pakistan was with regard to promotion from BS-21 to BS-22 and deferment of some of the civil servants. In that case the august Supreme Court of Pakistan observed as under:- "Before parting with the judgment, we may observe that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written constitution wherein important role of implementation has been assigned to the bureaucracy. Civil Service is the backbone of our administration. The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merit in accordance with law and constitution, without favoritism or nepotism. It is time tested recognized fact that institution is destroyed if promotion/appointments are made in violation of law. It will, in the ultimate result, paralyze automatically. The manner in which the instant promotions in the civil services have been made, may tend to adversely affect the existence of this organ. Honestly, efficiency and incorruptibility are the sterling qualities in all fields of life including the administration and services. These criteria ought to have been followed in the instant case. Fifty four persons were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which is likely to destroy the service structure. No doubts petitioner/affectee officers had no right to be promoted yet in accordance with section 9 of the CSA-1973, they were at least, entitle to be considered for promotion. The right contemplated in section 9 Supra is neither illusionary nor a perfunctory ritual and withholding of promotion of a officer is a major penalty in accordance with Civil Servants (Efficiency and Disciplinary) Rules, 1973, therefore, consideration of an officer for promotion is to be based not only on the relevant law and the rules but also to be based on some tangible material relating to merit and eligibility which can be lawfully taken note of. According to Article 4 of the Constitution the word "law" is of wider import and in itself mandatorily cast the duty upon every public functionary to act in the matter justly, fairly and without arbitrariness".

57. In the same judgment the august Supreme Court of Pakistan observed that the Rules rescinded on 4th April, 1998 should be re-enacted. In view of the said advice of the august Supreme Court of Pakistan, the establishment division framed the rules for promotion to BS-22 which are "Promotion to the post of Secretary BS-22 and Equivalent Rules, 2010". After the framing of the said rules, now the promotions from BS-21 to BS-22 can only be made within the frame work of these rules and if an employee is to be deferred or ignored, that ought to be within the mandate of these rules. Perusal of these rules provides that the HPSB would consider the cases of civil servants serving in BS-21 for promotion to BS-22 if they meet the following conditions:- a. 25 year in BS-17 and above b. At least two years in post in BS-21. c. At least three very good reports during the last six years. d. No penalty under Government Servant (Efficiency and Discipline) Rules, 1973 or under the Removal from Service (Special Power) Ordinance, 2000. e. Possess sufficient verity or experience.

58. The available material along with the comments of respondents reveals that both the petitioners possessed the mandatory conditions provided in Rule 4 of Promotion to the Post of Secretary BS-22 and Equivalent Rules, 2010 to be considered for promotion. There is no cavil to the contentions of the learned Additional Attorney General that no civil servant including the petitioners has any vested legal right to be promoted. Yet the rules of Promotion to the Post of Secretary BS-22 and Equivalent Rules, 2010 provides a vested legal right to a civil servant serving in BS-21 and possessing the conditions provided in Rule-4 to be considered for promotion in accordance with law. The discretion is still vested with the authority i.e. HPSB to recommend or defer the promotions but this discretion is subject to the principles settled through the rules and provided in the verdicts of the Constitutional courts. The reasons for the deferment of both the petitioners have been already quoted and now it is to be determined that whether the authority i.e. HPSB has exercised discretion in accordance with law or this exercise has resulted in discrimination to the petitioners. As per Civil Servants (Efficiency and Discipline) Rules, 1973 withholding of promotion is described as a major penalty and this penalty can only be inflicted by proceedings against a civil servant under the said rules. In the case of Tariq-Aziz ud Din the august Supreme Court of Pakistan with reference to the discretion observed as under:- "The above principles are being consistently, reiterated in the cases of Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14, Director Food, N.W.F.P and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others (PLD 2001 SC 1), Chief Secretary Punjab and others v. Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab and another v. Secretary Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others (AIR 199I SC 101). In the case of Abdul Wahab (ibid), this court while dealing with the subject of structuring of discretion observed as follows:- "Discretionary power conferred on government should be exercised reasonably and subject to existence of essential conditions, required for exercise of such powers within the scope of law. All judicial quasi, Judicial and administrative authorities while exercising mandatory or discretionary jurisdiction must follow the rule of fair exercise of power in a reasonable manner and must ensure dispensation of justice in the spirit of law. Seven instruments that are the most useful in structuring of discretionary power are open plans, open policy statement, open rules, open findings, open reason, open precedents and fair informal procedure. Power to exercise discretion would not authorize such authorities to act arbitrarily, discriminately and mala fidely. They have to act without any ulterior motive").

59. The above principles of structuring of discretion actually has been derived from the concept of rule of law which, inter alia, emphasize that action must be based on fair, open and just consideration to decide the matters more particularly when such powers are to be exercised on discretion. In other words, the arbitrariness in any manner is to be avoided to ensure that the action based on discretion is fair and transparent. The Indian Supreme Court in the case of Delhi Transport Corporation (ibid), while examining a proposition of law, in view of the facts of the case mentioned therein concerning the removal of an employee under Regulation 9(b), where opportunity of hearing was not to be provided before taking action, made the following observation: "Any action taken without any modicum of reasonable procedure and prior opportunity always generates an unquenchable feeling that unfair treatment was meted out to the aggrieved employee. To prevent miscarriage of justice or to arrest a nursing grievance that arbitrary, whimsical or capricious action was taken behind the back of an employee without opportunity, the law must provide a fair, just and reasonable procedure as is eligible in a given circumstances as adumbrated in proviso to Art.311(2) of the Constitution. If an individual action is taken as per the procedure on its own facts its legality may be tested. But it would be no justification to confer power with discretion on any authority without any procedure which would not meet the test of justness, fairness and reasonableness envisaged under Arts.14 and 21 of the Constitution. In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within defined limits. The rule of law from this point of view means that decision should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule it is unpredictable and such a decision is the antithesis of a decision taken in accordance with rule of law. (See Dicey

"Law of the constitution" 10th Edn., Douglas, J in United States v. Wunderlich, (1951) 342 US 98, "when it has freed man from the unlimited discretion of some ruler

Where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes "means should discretion be guided by law. It must be governed by rule, not by humor; it must not be arbitrary, vague and fanciful. As followed in this court in "S. Jaisinghani v. Union of India "(1967) 2 SCR 703: (AIR 1967 SC 1427)"

60. In the case in hand learned counsel for the respondents has argued that the competent authority has exercised discretion justly and fairly following the recognized principles but it is observed that the findings of the authority i.e. HPSB are self explanatory that the decision of deferment of the petitioners has not been made in accordance with law as in the case of petitioner Syed Ijaz Hussain, it is mentioned that his special report for at least six months be placed before the Board in the next meeting without providing that whether his dossier was not sufficient to arrive at some solid conclusion justifying his promotion or his aspersion. It is not provided that his performance was not up to the mark or that he does not possess the requisite length of service or that he managed to obtain PERs or that he was proceeded under the disciplinary rules or that he was lacking the requisite experience. There is no mention in the observation of the authority that why juniors to the petitioner were given preference over him. There is absolutely no mention that the authority had provided the opportunity of hearing to the petitioner to satisfy the reservation of the authority before inflicting the major penalty of withholding promotion. The impugned recommendation of HPSB neither fulfills the requirements of section 24-A of General Clauses Act nor the Constitution and the Rules governing the issue. Similar is the case of petitioner Zafar Iqbal Qadar as in his case the authority observed that case was sub judice before this court as well as performance on merit. It is not provided that on what specific issue the petitioner did not perform as per the requirement of the job and how he managed to secure very good PERs.

61. Looked from whatever angle, it is evident that the authority has not applied its mind while exercising its discretion to promote the officers serving in BS-21 to BS-22 and it has resulted in pick and choose in the exercise of discretion. Having observed that the petitioners were eligible for promotion, yet not promoted and juniors promoted, it had militated against the command of Article 4 of the Constitution according to which it is an inalienable right of individual to be dealt in accordance with law and the law on the subject is section 9 of CSA, 1973 and Rules of promotion to BS-22 of 2010. It is further observed that Article 25 of the constitution guarantees equal treatment of the citizens. This protection can only be denied in peculiar circumstances of the cases on the basis of reasonable classification founded on intelligible differentiation, which distinguishes persons or things clubbed together from those who have been left out. However, the available material reveals that the authority/HPSB has made no effort to bring the cases of promoted officers under any reasonable classification so as to distinguish their cases from those of the petitioners. The crux of the discussion is that, the order of the aspersion of the petitioners is not stainable.

62. As far as the cases of the petitioners who have been deferred to be promoted from BS-20 to BS-21 and from BS-19 to BS-20, it is observed that federal system of government was introduced in the sub-continent through Government of India Act, 1935 and the spirit of that Act was kept in the Constitution of 1973. The concept of all Pakistan Service was introduced in 1935 vide section

263. Perusal of this section reveals that the independence of provinces was not curtailed by the Federal Government and in pursuance of an agreement between the Provinces and Federation all Pakistan Services were created to be regulated under the CSB (Composition and Cadre) Rules, 1954. The constitutional protection to the civil servants was withdrawn first time when the Constitution of 1973 was framed and in terms of Article 240 it was provided that the terms and conditions of Civil Servant shall be determined by an act of Parliament and as such Civil Servants Act, 1973 was promulgated to regulate the service of the Federal Government Employees. Section 9 of CSA, 1973 deals with promotion of Civil Servants up to BS-21 and the procedure has been laid in the Appointment, Promotion and Transfer Rules, 1973. The establishment division issued the instructions with respect to the promotion policy and the guidelines for Departmental Promotion Committees/Central Selection Boards vide DO letter No.10(3)/81-CP-i(PT) dated 31.10.1982. Subsequently establishment division revised the said policy vide office memorandum dated 24.10.2007 and the quantification score for promotion to BS-18 to BS-21 under the said revised policy was determined.

63. The moot point in the listed cases is the award of five marks and consequently the placement in categories A, B and C by the Central Selection Board keeping in view the integrity of the officers under consideration for promotion to the next higher post in BS-20 and BS-21 before CSB and whether the O.M. dated 12th October, 2012 was issued strictly in accordance with the spirit of the judgment rendered by this Court in the case of Mrs. Iram Adnan or not.

64. The judgment of this Court in the case of Mrs. Iram Adnan followed by another judgment of Lahore High Court, Lahore in the case of Liaquat Ali Chughtai leave no manner of doubt regarding reconsideration of cases of the Civil Servants for promotion to higher post in a just and fair manner by restructuring the criteria of award of 15 marks by the CSB. The restructured criteria by the Establishment Division vide O.M. dated 12.10.2012 has been minutely scrutinized in the light of the law laid down in the aforesaid judgments which were also quoted with approval by the Hon'ble Supreme Court of Pakistan in the case of Oriya Maqbool Abbasi. The earlier mode of award of 15 marks was stuck down, being totally discretionary and arbitrary. The restructured formula vide Office Memorandum dated 12-10-2012 giving more discretion without tangible material on point of integrity of the civil servants while awarding 5 crucial marks and consequently placement in categories A, B and C is clearly against the essence of the aforesaid judgments and therefore, the same is not tenable and cannot be allowed to block the promotions of the civil servants by arbitrary placement in category "C" without recording any reason or referring any tangible material. I have also noticed that the CSB in certain cases without looking into the record available before it, recommended for deferment for one year when the said civil servant was about to retire on attaining the age of superannuation and in another case as discussed in para supra reflects that the officer was recommended for deferment on the sole ground of not having done the mandatory training course which he was otherwise exempted under the promotion policy being above the age of 58 years. In other cases the officers despite earning outstanding reports were recommended for deferment to watch their performance for one year. These are the detailed reasons for the short order passed on 27th July, 2015 which reads as follows:- "For the reasons to be recorded later on instant writ petition as well as connected Writ Petitions Nos.1359, 1383, 1401, 1415, 1416, 1418, 1426, 1429, 1432, 1439, 1440, 1446, 1447, 1451, 1453, 1454, 1462, 1464, 1466, 1472, 1484, 1496, 1501, 1503, 1504, 1505, 1506, 1507, 1509, 1511, 1518, 1523, 1524, 1540, 1542, 1561, 1562, 1564, 1565, 1566, 1568, 1583, 1588, 1589, 1607, 1612, 1657, 1756, 1955, 1961, 2033, 2058, 2095, 2137 of 2015, 3656 of 2014 and 1855 of 2013 are allowed by declaring that formula of award of 15 marks at the disposal of CSB with overriding effect of 05 marks and thereby placing the civil servants in categories A, B and C is against the dictums laid down by the Hon'ble Supreme Court in the case of Orya Maqbool Abbasi reported as 2014 SCMR 817 and judgment passed by this Court in Iram Adnan's case reported as 2012 PLC (C.S.) 1355, on the basis of which purportedly new policy was framed. The discretion of award of marks by the CSB cannot being the ACRs/TERs evaluation into naught and CSB can only grant marks out of 15 at its discretion and marks of quantification to be added in making recommendations for promotion. The entire process carried out by CSB on the basis of formula introduced through Policy of 2012 resulting into deferment/supersession of petitioners is declared as illegal, without jurisdiction, in violation of law laid down by the Superior Courts and offensive to the accrued valuable rights of civil servants."

65. In this view of the matter, the Establishment Division is directed to reframe the formula by taking away the overriding effect of the marks to be awarded by CSB and categorization into A, B and C and place the cases before CSB in the light of the judgments mentioned above, within one month. The assessment shall be made on the basis of entire performance and in case any tangible material asking question about integrity of civil servant is available, he may be confronted with the same and then any opinion of deferment or supersession may be made but not on the basis of hypothesis and reputation in air. The cases of employees of BS-21 for promotion to BS-22 be placed before the High Powered Selection Board within one month. ZC/116/Isl. Order accordingly.