2018 PLP (C (PLC(CS)N)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioner has assailed the recommendations/decision of the Central Selection Board (hereinafter called as "CSB") dated 21.4.2014, 4.6.2014 and 10.9.2014 and consequently sought directions to the respondents for his ante-dated promotion to BS-21 from 26.04.2001 and proforma promotion to BS-22 w.e.f. 28.4.2004.

2. Briefly stated facts of the case are that the petitioner joined civil service of Pakistan in the year 1974 (Second Common) and was allocated to the District Management Group (DMG). He was considered for promotion from BS-20 to BS-21 by the Central Selection Board ("CSB") held in 2001, 2002, 2003, 2004, 2005 and 2006 but was recommended for supersession each time. In 2007 his case for promotion was deferred due to his incomplete Performance Evaluation Report ("PER"). He was again recommended for supersession by the CSB in 2008. However, the said supersession was converted into deferment by the competent authority, his case was once again considered by the CSB in its meeting held on 25th and 28th March, 2009 but this time too was recommended for supersession. He was lastly considered by the CSB in its meeting held on 9th and 10th December, 2009 and was recommended for deferment due to the reason that the officer after supersession on 25.3.2009, had not earned PER for one full year. He filed appeal before the Federal Service Tribunal ("FST") with the prayer that PERs earned by him in BS-19 during the period from November, 1992 to April, 1998 be treated as PER earned in BS-20 and re-quantified for the purpose of promotion to BS-21. The FST dismissed his appeal on 24.4.2004 with the observation that the respondent may re-examine the case of the appellant in its entirety and if it is found that the case registered against him was false and vexatious and that he was otherwise fit, a reference may be made to the President of Pakistan for the relief prayed, under section 23 of the Civil Servants Act, 1973. Pursuant thereto a summary was sent to the President of Pakistan through the Prime Minister which was turned down vide orders dated 27.1.2007. The order of the President was challenged in appeal before the FST which was dismissed, vide judgment dated 21.7.2009. Aggrieved, the petitioner filed CPLA before the August Supreme Court of Pakistan, which was allowed, vide judgment dated 26.3.2010. In compliance to the direction of the Hon'ble Supreme Court of Pakistan, the petitioner's case was reconsidered by the respondents and on recommendations of the CSB and approval of the competent authority, 13is promotion to BS-21 was notified on 30.3.2010. On the very next day i.e. 31.3.2010, the petitioner retired on attaining the age of superannuation. He was, however, refused promotion to BS-22 by the respondents in view of section 4(i) of the Civil Servants (Promotion to the Post of Secretary, BS-22 and Equivalent) Rules, 2010, which led him to file W.P.No.27499 of 2012. This Court, vide order dated 21.2.2013 disposed of the said writ petition with the following direction: "Request is reasonable. Let a copy of this petition along with its annexures be remitted to respondent No.3. He shall treat it as a part of representation dated 7.4.2011. He is directed to hear the petitioner and all other concerned parties and decide the matter in accordance with law through a reasoned order. The aforesaid shall be done within a period of six weeks from the date of receipt of certified copy of this order. The order passed shall be communicated to the Deputy Registrar (Judicial) of this Court." Pursuant to the aforesaid directions case of the petitioner was placed before the CSB for reconsideration of its earlier recommendations of supersessions in the years 2001, 2002, 2003, 2004,2005, 2006 and 2009 but the Board maintained its earlier decision of his supersession on each time.

3. The petitioner contends that the respondents withheld his promotion for about 18 years without any legal justification; that his deferment from 1992 to 1996 was without any just cause; that after judgment of the Hon'ble Supreme Court of Pakistan, the consequent considerations of the ACRs from 1992 onward having deemed to be that of higher post made it an admitted fact that he was wrongly prevented to assume the post of higher grade; that in view of dictum laid down in the case of "Mirza Noor Hussain v. Farooq Zaman and 2 others (1993 SCMR 305) he is entitled to the antedated promotion from such date which actually entitled him to hold the post retrospectively with all consequential benefits; that the petitioner has been deprived of his legitimate right without any legal justification and he has been deprived from promotion merely on technical grounds for which he was not responsible; that supersession of the petitioner stood abated in totality for all intents and purposes, therefore, he is entitled to antedated promotion; that the CSB in pursuance of the judgment of the Hon'ble Supreme Court of Pakistan recommended the petitioner's promotion through conversion of long standing supersessions into deferment and then finally the Establishment Division placed its recommendations in the shape of summary to the Prime Minister; that the respondents had no substance to decline antedated promotion to him after decision by the Hon'ble Supreme Court of Pakistan; that the respondents have failed to implement the judgment of the apex Court in letter and spirit. He adds that his promotion was deferred without any fault on his part, therefore, he was entitled to antedated promotion. He has placed reliance on the case of "Director General Intelligence Bureau, Islamabad and others v. Amir Mujahid Khan and others" (2010 PLC (C.S.) 946). He argued that the impugned supersessions from 2001 onward were imposed without providing him proper opportunity of hearing by the CSB or the competent authority, therefore, the same are not sustainable in the eyes of law. Relied on the cases of "The University of Dacca through its Vice-Chancellor and others v. Zakir Ahmed" (PLD 1965 SC 90), "Pakistan Chrome Mines Ltd. v. The Enquiry Officer, War Risk Insurance (Sindh and Balochistan) Ministry of Commerce and another" (1983 SCMR 1208) and "Pakistan and others v. Public at Large and others" (PLD 1987 SC 304). He next contended that his supersessions were converted into deferment in 2008 in all cases of supersessions and the respondents are misinterpreting the words " in all events of supersession". He lastly contended that the decision of his supersession/deferment in 2009 was not based on any material against him rather he earned very good PER for the year 2008.

4. Conversely, learned Deputy Attorney General for Pakistan submitted that the competent authority had converted only those supersessions which were considered and recommended by CSB in 2008 into deferments and not the earlier supersessions of the petitioner; that this point has also been clarified in the meeting of High Level FR-17(1) dated 25.7.2016 that only 2008 supersession of the petitioner was converted into deferment; that the petitioner was superseded for the first time in the year 2001 while the policy of informing reasons of supersession was introduced in 2007; that the petitioner was superseded in 2001 for the reasons that his quantified score was 68% which was far below the minimum threshold i.e. 75% for promotion to BS-21; that paragraph 12 of the minutes of the High Level Committee on FR-17(1) held on 25.7.2016 shows the reasons for supersession of the petitioner in the respective years; that the petitioner cannot be considered for antedated promotion to BS-22 as no Rules existed for promotion to BS-22 at the relevant time and according to Civil Servants (Promotion to the Post of Secretary, BS-22 and Equivalent) Rules, 2010 only those officers are eligible to be considered for promotion to BS-22 post who have completed at least two years service in post of BS-2I whereas the petitioner rendered only one day service in BS-21 before attaining the age of superannuation; that supersessions of the petitioner for the years 2001, 2002, 2003, 2004, 2005 and 2006 are still intact and have not been converted into deferment by the competent authority or any Court of law; that the CSB only recommended promotion of the petitioner in BS-21 in its meeting dated 27.3.2010.

5. Arguments heard. Record perused.

6. Perusal of the record shows that in compliance with the judgment dated 26.3.2010 of the August Supreme Court of Pakistan, the petitioner was promoted to BS-21 on 30.3.2010. As the petitioner was not granted ante dated promotion in BS-21 and refused BS-22 on the ground being not provided under the Civil Servants (Promotion to the post of Secretary, BS-22 and equivalent) Rules, 2010 he has approached this Court for implementation of the judgment of the August Supreme Court of Pakistan in letter and spirit. The petitioner has vociferously claimed that the Hon'ble Supreme Court of Pakistan in its findings has categorically found that he is entitled to be promoted to BS-22 and that he has been deprived of his legitimate right merely on technical grounds. He has read out from judgment of the Hon'ble August Supreme Court of Pakistan which is reproduced as under: "This petition has been filed for leave to appeal against the judgment dated 21.7.2009 passed by the Federal Service Tribunal, Islamabad, in Appeal No.20(R)CS/2008, whereby the appeal filed by the petitioner was dismissed.

2. We have heard the learned counsel for the petitioner and the Deputy Attorney General as well as the Secretary Establishment, who appeared on court notice.

3. A perusal of the impugned judgment indicates that the petitioner, who joined service in District Management Group, had been deprived from promotion of BPS-21/22 without any plausible reason though he had been running from pillar to post for redressal of his grievance. On having gone through the case file and the relevant documents, we are of the opinion that the petitioner has been deprived from his legitimate right without any justification and he was deprived from promotion merely for technical reasons, for which he is not responsible in any manner. There is no need to discuss the case of the petitioner viz private respondents for two reasons; namely, that the officers who were junior in seniority to him have already been promoted to grade 21/22, therefore, he is also entitled to be considered for promotion to grade-21/22 accordingly; secondly, he was deprived of his right without his fault.

4. It is to be noted that the petitioner's date of retirement is reaching within 6/7 days, if his grievance is not redressed at this stage, it would create further complications for him for getting the promotion in grade 21/22. Therefore, the judgment of the Service Tribunal is considered not be sustainable in the eyes of law. As the learned Service Tribunal had not decided the controversy in question after application of mind as is evident from paragraphs 7&8 of the impugned judgment. The learned Service Tribunal in fact had countersigned the departmental orders passed by the respondents against the petitioner without adverting to the facts and circumstances of the case in hand. The impugned judgment is not inconsonance with the law laid down by this Court in various pronouncements in the cases of "Ghulam Moh-ud-Din v. Chief Settlement Commissioner etc." (PLD 1964 SC 829), "Mollah Ejahar Ali v. Government of East Pakistan" (PLD 1970 SC 173) and "The Airport Support Services v. The Airport Manager, Quaid-e-Azam International Airport, Karachi and others" (1998 SCMR 2268).

5. Thus, the judgment of the FST is set-aside and case is set back to the Secretary Establishment, who undertakes to ensure the redressal of his grievance by considering his case for promotion to grade 21/22, in view of the seniority list and the rules on the subject, before the date of his superannuation, preferably. Petition is converted into appeal and allowed. No order as to costs." It is thus more than clear that the Hon'ble Supreme Court of Pakistan allowed the petitioner's appeal by holding in unequivocal terms that "the petitioner has been deprived from his legitimate right without any justification and he was deprived from promotion merely for technical reasons for which he is not responsible in any manner" (emphasis supplied). Though the August Supreme Court of Pakistan while allowing the petitioner's appeal sent his case back to the Secretary Establishment for redressal of his grievance but the findings recorded in the judgment qua entitlement of the petitioner has not been taken into consideration by the competent authority and he has been deprived of his established legitimate right of promotion in BS-21 and

22. It is also on record that in compliance with the direction of the Prime Minister the Secretary Establishment Division re-examined the case of the petitioner and submitted summary dated 20.9.2013 with the following recommendations: (i) The supersession of Mr. M.Y. Labib-ur-Rehman pertaining to years 2001, 2002, 2003, 2004, 2005, 2006 and 2009 may be converted into deferment. (ii) On approval of (i) above, the case of Mr. M.Y. Labib-ur-Rehman may be referred to FR-17 Committee of Finance division for antedated promotion to BS-21 from 9.10.2002 (instead of 30.3.2010) and proforma promotion to BS-22 from 4.5.2005 (the dates his junior batch mate, Mr. Sibtain Fazal Halim was promoted to BS-21 and BS-22).

7. The learned Deputy Attorney General while appearing in contempt petition filed by the present petitioner (Cr.Org. No.1801-W/ 2013), on 28.10.2013 stated that the summary for redressal of grievance of the petitioner has already been moved to the Prime Minister of Pakistan and approval of the same is awaited. He also undertook to follow up the matter to ensure that it is decided as expeditiously as possible. However, surprisingly, instead of obtaining approval of the summary placed before the Prime Minister the CSB reopened case of the petitioner of earlier supersessions once again after more than 14 years and after maintaining their previous recommendations refused to grant him antedated promotion to BS-21 and proforma promotion to BS-22. The petitioner was conveyed this decision through letter dated 10.9.2014. Such a conduct shown by the respondents smacks mala fide on their part. They have decided the issue of antedated promotion and proforma promotion of the petitioner in a fanciful and arbitrary manner. No doubt promotion is not the vested right of a civil servant but where he is fully qualified for promotion and there is no tangible clog in his service record, he has a right to expect that his case will be considered for promotion in accordance with law, rules, regulations and eligibility criteria / policy formulated for regulating promotion by the Government. Any breach or deviation therefrom for mala fide reasons or due to arbitrary act of his superiors or peers or the competent authority, is amenable to judicial review and the aggrieved person has a right to challenge the same before the Court of Law.

8. The respondents cannot withhold promotion of the petitioner on their own whims, caprice, unqualified personal opinion and mood without adverting to tangible evidence and material to be placed before the CSB forming part of the candidates record. The exercise of discretion vested with the respondents is circumscribed by principle of justice, due process, transparency and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment rules or regulations under which it is authorized to act. It cannot act in complete oblivion of the objective of such law, rule, regulation or established policy otherwise it will not be fair, reasonable and just exercise of powers. The preconditions imposed for exercise of such discretion should have been honoured and respected unless for valid reasons recorded in writing these were to be discarded. Therefore, unless the decision of the Authority was backed by some tangible material, it could not be said that the case of the petitioner for promotion was considered in accordance with law. The expression 'law' as used in Article 4 of the Constitution is to be used in every possible manifestation thereof, according to the circumstances of the matter which includes, but is not limited to, the duty of every public functionary to act in the matter justly, responsibly, fairly, transparently and in accordance with natural justice. In present case apparently the petitioner has been victimized with mala fide intention and for ulterior motives by his own colleagues in the Bureaucracy as nothing has been placed before this Court which could be termed as tangible material or evidence on the basis of which his promotion was suppressed or denied at the relevant times.

9. After conversion of supersessions of the petitioner by the Competent Authority in 2008 and particularly in view of findings of the Hon'ble Supreme Court of Pakistan in favour of the petitioner, there was no justification left with the respondents to refuse him ante dated promotion in BS-21 w.e.f. 09.10.2002 instead of 30.03.2010 and proforma promotion to BS-22 w.e.f. 04.05.2005 (the dates his junior batch mate Mr. Sabtain Fazal-e-Haleem was promoted to BS-21 and BS-22). By rendering the impugned decision the respondents have attempted to frustrate the order passed by the Hon'ble Supreme Court of Pakistan in favour of the present petitioner. In these circumstances, I am of the considered view that the impugned decision of the respondents is totally illegal and unjustified. The petitioner is entitled to antedated promotion as prayed for in the instant writ petition. He is also entitled to promotion in BS-22 w.e.f. 4.5.2005, the date when his junior batch mate Mr. Sibtain Fazal Halim was promoted. The argument of the learned Deputy Attorney General that as the petitioner has rendered only one day service in BS-21, therefore, under the existing Rules he is not eligible to be promoted to BS-22 has no force in the eyes of law for the simple reason that the petitioner has been held entitled to promotion in BS-21 antedated. The argument of the learned Deputy Attorney General that there did not exist any Rules at the relevant point of time for promotion to BS-22 is negated by Notification dated 26.12.2014, issued by Government of Pakistan, Cabinet Secretariat, Establishment Division whereby one Mr. Zia-ul-Islam, a retired BS-20 officer of DMG has been granted proforma promotion to BS-21 w.e.f. 12.9.2000 and to BS-22 w.e.f. 22.3.2004 for the purposes of arrears of pay and allowances only. Grant of same relief could not be refused to the petitioner.

10. For what has been discussed above, the instant writ petition is allowed with special cost of Rs.200,000/- (Rupees two hundred thousand only) for entangling the petitioner in unnecessary litigation for years together and intentionally frustrating the findings of the Hon'ble Supreme Court of Pakistan in his favour. The respondents are directed to grant antedated promotion to petitioner in BS-21 w.e.f. 9.10.2002 instead of 30.3.2010 and proforma promotion in BS-22 w.e.f. 04.5.2005 (the dates his junior batch mate was promoted to BS-21 and BS-22). The respondents shall issue the promotion order within a period of two months from the date of issuance of this order and submit compliance report to this Court through the Deputy Registrar (Judl.). ZC/M-182/L Petition allowed.