2006 PLP (C (PLC(CS))

ALI NAWAZ CHOWHAN, J.

Muhammad Akbar Khan Hoti, petitioner, belongs to the Federal Service and he is presently a sitting Director, Passport Circle, FIA, Rawalpindi. 2.? His grievance is that the Central Selection Board did not consider his case for promotion along with the cases of his peers and who brushed it aside merely on the reports of Intelligence Agency without any probe or investigation to the effect whether the reports of the agency were duly verified by competent persons. ?

3. According to the learned counsel for the petitioner, the petitioner had an extraordinary career in service. His bloodcount was 78 and there were no adverse entries in his Annual Confidential Report. With this kind of a background the report of the agencies could not have been given a weightage as these reports were prepared without proper investigation on the basis of cursory opinions and without finding out whether the informant was a person probably interested in giving adverse reports against the petitioner for his own motives. 4.? Learned counsel for the petitioner went on to say that fairness demanded that the agencies reports, even if their confidentiality was to be kept intact, were required to be brought to the notice of the petitioner with the purpose that he may clarify the position or he may controvert the basic allegation which these reports may be highlighting.

5. It is further stated that even if an adverse report is recorded against any officer, the practice so far had been that the affected officer is notified about that report so that in all fairness he could answer as to why the report was written against him. That this practice had been always followed. Why the reports which stood in the way of the petitioner and were surreptitiously recorded, were not brought to his notice for submitting any explanation? This is a mystery. Anyway a reference in this connection is made to the case of Pir Muhammad Qureshi v. Chairman POF Board, Wah Cantt. and others (1998 PLC (C.S) 476.

6. In their comments the Department has stated that blemish was on the integrity of the petitioner so far as the reports are concerned. Dilating on this, the learned counsel for the petitioner stated that a challenge to somebody's integrity was a very serious allegation and in such an eventuality it was necessary to call his explanation. 7.? It is stated by the learned counsel for the petitioner that Estacode prescribed a procedure for dealing with the question of integrity. He referred to Instruction S.-I.No.172-A of the Estacode. The Estacode is rather more specific with respect of promotion for the posts in basic pay scale 19 or higher and the learned counsel refers to the following guidelines from the Estacode:- "

3. For selection posts, entries under "quality and output of work" and "Integrity" in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These Marks shall be a crucial factor in determining comparative merit of officer for promotion to selection posts." And, further guidelines in this regard are also given in Estacode which are reproduced below: "(a). Qualifying Service: possess 17 years service as an officer subject to the provisions contained in Establishment Division's O.M. No.1/9/80-Respondent-II(A), dated 2-6-1983. (b) Eligibility threshold: attain a minimum score of 70 marks in the CRs in accordance with the formula given in the Addendum. (c) Qualifications: as prescribed by relevant recruitment rules. (d) Relevance of Experience: possess experience relevant to the functions of the post to which promotion is being made. (e) Quality and Output of Work' and "Integrity": marks calculated in accordance with the formula in the Addendum shall be a crucial factor in determining the comparative merit .of an officer. (f) Variety of experience: the Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature this would not be so where an officer has stayed away from his parent cadre for too long. (g) Training: should have successfully completed a regular course at NIPA or an equivalent course in another institution. This requirement will be waived for officers who: (i) have served as head of a training institution for at least one year; or (ii) have served on the directing staff of a training institution for at least two years; or (iii) have attended a regular course at the Staff College/NDC; or ??????????? (iv) have exceeded the age of 56 years. .

8. It is stated that the reports by the agencies shall always be inferior in worth to the reports formulated according to the Estacode. These latters will be more reliable, scientific and since these are written by immediate higher authorities, will be more authentic.

9. When a reference is made to CSB, it usually consists of five documents which are CP-1 to

5. It is stated that in these documents no importance is attached to the Intelligence Agencies reports even with respect to the factum of the integrity of the person.

10. So, the argument is that nobody can be refused promotion on the basis of an agency's report which may be totally baseless and may have been procured for ulterior motives and reasons.

11. Learned counsel has further placed his reliance on an unreported case cited as Commissioner Rawalpindi Division and others v. Malik Tariq Rahim, Extra Assistant Commissioner/City Magistrate, Gujrat where the following observation made by the apex Court being relevant is reproduced below:- "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, A.S.C. 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 the direction 'that respondent be dealt with in accordance with law. Promotion of the respondent would however be subject to the fate of this petition."

12. According to the learned counsel, as a sequel to what has been observed by the apex Court, the Punjab Government as a policy, decided not to depend on the intelligence reports. While meeting objections with respect to Article 212, he has stated that Federal Service Tribunal cannot go into the question of promotion. In this connection, a reference is made to section 4(1)(b) Service Tribunal Act, 1973. The following judgments are relied upon by the learned counsel for the petitioner in this connection:- Muhammad Zafar Abbasi v. Government of Pakistan (2003 PLC (C.S.)

503. M.A. Rafiq v. M.D. Power WAPDA (1990 SCMR 927). M. Ehsanul I-Iaq v. Secretary to Government of Pakistan (1997 PLC (C.S.) 127).

13. The ACRs are losing their sanctity because the reporting officers often get influenced one way or the other or may have prejudice or a bias. But this is not something universal. Therefore, this Court cannot agree with the learned counsel for the petitioner that the intelligence reports were totally worthless and are not to be considered at all. Every Government entertains these reports for knowing the facts which are not ascertainable otherwise. But the question is, can these reports be taken as gospel truth when these dilating on the integrity of a civil servant. The answer is yet but not without a strong corroboration coming from the annual confidential reports prescribed by the law and the procedure.

14. Anyhow, a report from the Intelligence Department with respect to a government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception which an immediate boss of a civil servant may have. Therefore, when ACRs are discarded, the intelligence report cannot take their place absolutely as this can lead to very dangerous results. At the most an overall picture can be drawn ' based on the statements in the ACRs and the intelligence reports.

15. The CSB in this case has not ascertained from the entire material placed before it as to what was the integrity of the petitioner for purposes of consideration of his promotion case. It simply brushed aside the dossier on the basis of intelligence report even without asking the petitioner any question. It did not even ascertain who was the author of the report. If the report was given by a Grade IV Officer it would not be wise to depend on such a report.

16. Therefore, the CSB has not applied its mind to the case of the petitioner. As the CSB has not applied its mind, this Court has no hesitation in issuing a mandamus to the CSB to look into the entire record of the petitioner and then consider the reports on the basis of their intrinsic value and determine whether this was a fit case for promotion or not.

17. Because we are merely issuing a mandamus and asking the CSB to do things which were required to be done under the law, the provisions of Article 212 of the Constitution do not place any impediment. The CSB is directed to determine these questions raised before this Court within a period of two months from today. Disposed of. S.A.K./M-155/L????????????????????????????????????????????????????????????????????????????????? Petition disposed of.