M/S Iram Adnan & another VS Federation of Pakistan & others

D

JUDICIAL DEPARTMENT.

Writ Petition No.3483 I 20tl Mrs. Iram Adnan and AdnanZahir' Versus Federation of Pakistan and others Writ Petition No.35lt l2OLl Waqar Ahmad Mughal Versus Federation of Pakistan and others Writ Petition No.35 12 I 2OlL Shahid Aslam Mohar Versus Federation of Pakistan and others Writ Petition No.58 I 2Ol2 Abdur Rehman Dogar Versus Federation of Pakistan and others Writ Petition No.427 l2Ol2 Muhammad Akram Versus Federation of Pakistan and others

DATE OF DECISION:

PETITIONER BY: M/s Abdut Rahim Bhatti & Yasir Rahim Bhatti' [iuoiuiit in W.P Nos'3483 of 2011' 3511/2011 and 3512/2011.

iiii iitr,qrr Khatid Matuka, Advocate in W'P No'58 of 2012.

tui minu*mad lrshad Chaudhry, Advocate in WP No.427/2012.

STATE BY:

ii. C"irr-ud-Din Khart, Standing Counsel

FBR

Sa,eea Ahmad Zaidi, Advocate 'i*iui Ui.

RESPONDENIS BY Awan, S'O' Establishment Division Sreed

SHAIIKAT AZIZ SIDDIOUI; J:

BythissinglejudgmentWritPetitionNos.3483,3511,3512of2011and facts' off, as all petitions' almost have similar 58, 427 of 2012 are being disposed which involve common Points of law

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t b

B

W.P Nos.3483, 351'1, 3512 o1201'1, 58 & 42712012. 2

Facts presented through above mentioned Writ Petitions are as underl- Writ Petition No.3483 I 2Ol I Mrs. Iram Adnan and Adnan Zahit, Versus Federation of Pakistan and others

Petitioners of this writ petition joined civil service in 1985 after their selection in the Competitive Examination for Central Superior Services (CSS) held by Federal Public Service Commission and they were allocated lncome Tax Group (lnland Revenue Service). On completion of mandatory specialized training and courses, they assumed the charge of Assistant Commissioner (BS-17) lncome Tax. !n view of their excellent performance, they were promoted to the post of Deputy Commissioner, lncome Tax (BS-18) and on the basis of brilliant track record; they were further promoted to the post of Additional commissioner lncome Tax in (BS-19).

For their further promotion to (BS-20) petitioner were fully qualified and met the eligibility criteria, therefore, their cases were presented to Central Selection Board (CSB) but to the utter surprise of the petitioners, CSB in its meeting held on 3'd of October 2011 passed the order of their supersession. Petitioners were not informed about the reasons of their supersession, however, during the pendency of writ petition following reasons were communicated:-

"Since thev had not achieved the requisite threshold and their reputation, known to the Members of CSB, were of beinq corrupt and in-efficient". (emphasis provided).

Writ Petition No.31Ll I 2OlL.

Waqar Ahmad Mughal Versus Federation of Pakistan and others

petitioner of this writ petition Waqar Ahmad Mughal, is an officer of Accounts Group in BS-20 who has also been superseded on the ground of reputation iJ

W.P Nos.3483, 351 1, 3512 of 2011, 58 & 427 12012 3

and consequently awarded less marks, without confronting him with the same and thus was condemned unheard.

Writ Petition No.35 L2 I 2}ll Shahid Aslam Mohar Versus Federation of Pakistan and others Petitioner of this writ petition Shahid Aslam Mohar being an Officer of Railways (Transportation and Commercial) Group was earlier promoted in the year 2010 in BS-20 and his PERs for the year 2010 & 2011 were not available and that he was superseded without promoting any other officer to BS-21. The officer after his promotion remained on deputation with Benazir lncome Support Programme, Punjab, Lahore and is still there. He was not confronted with the allegation of corruption or of corrupt practices.

Writ Petition No.58 l2Ol2 Abdur Rehman Dogar ; Versus Fe{eration of Pakistan and others petitioner of this writ petition Abdur Rehman Dogar is serving as Director (BS-

20)with the Directorate of lntelligence & lnvestigation, (lnland Revenue Service), Federal Board of Revenue, Govt. of Pakistan. The respondents No.4 to 10 were junior officers who have been promoted to BS-21 while petitioner has been superseded.

petitioner's case for promotion to BS-21 was considered in the meeting of Central Selection Board (CSB) on 3'd October, 2011 and was superseded for the following reason:-

',professionalv not competent to hold senior assiqnment in BS'27 as assessed bv Departmental Representative. His total score of PER9, Traininq Evaluation Repoft and marks awarded bv the Boardwas below the prescribed score of 75." (emphasis provided)'

W.P Nos.3483, 351 1 , 351 2 ol 2011 , 58 & 42712012. 4

Writ Petition No.427 l2Ol2 Muhammad Akram Versus Federation of and others

Petitioner of this writ petition Muhammad Akram, is presently posted as Commissioner lnland Revenue, Zone-ll, RegionalTax Officer, Sargodha and serving in lncome Tax Department since 22-10-1985. He was promoted to Grade 19 on 08- 05-2001 on regular basis. Petitioner was in the seniority Iist at No.55 of BS-19 to be promoted in BS-20, but as per proceedings of the meeting of the Central Selection Board held on 3'd October,2011 other officers junior to petitioner in seniority have been promoted, superseding the seniority of petitioner vide promotion notification No.2491 -lR-l/201 1 dated 02-12-2011 .

In response to petitioner's request, following reasons/basis for not promoting was communicated to the petitioner vide CBR's letter No.22(1)/S- MIR/2OOBtEdox#176928-R dated 28-12-2011 which are as under:- "lncompetent and not above board in inteqritv. Unfit to hold hioher responsible post in BS-20 atso in view of Trainino repoft as well as the opinion of Departmental Repr*entative. His total score of PERs, Trainina Evaluation Reoofis and marks awarded bv the Board was below the prescribed score of 70". (emphasis provided).

ln response to notices issued official respondents appeared and filed report and parawise comments, however, none of the private respondents appeared.

t have heard the learned counsel for Petitioners and official Respondents at great length, crux of their pleadings and arguments are as under:-

PETITIONERS:

a That entire exercise canied out by fhe CSB rs based on a very dubious formula which is being applied on whims

W.P Nos.3483, 351 1, 3512 ot 2011, 58 & 42712012. 5

a Petitioners betonging to different groups have been superseded on the personal disliking of the members of CSB instead of any subsfance and conclusive evidence procured through due process of law

a General reputation and reports from secret agencies can never be made basrs of taking away valuable rights of any citizen of the lslamic Republic of Pakistan a Petitioners reached to the present sfafus on the basis of their performance, knowtedge, experience and achievements which they made in their respective field as CivilServanfs

a General reputation of being corrupt has always been a disputed question which even otherwise cannot be adjudged without confronting the person against whom such allegations are leveled

There is no rational, togic and prudence behind the formula of awarding marks for the purpose of promotion, deferment, and supersession

a Establishment Division ptaying havoc with the process of law and mandate of the dictums of the supeior courts of the country

a Reference of section 4(1)(b) of the Seruice Tribunal Act, 1973 has been made on the point of maintainabitity of writ petition against determination of fitness a That Federal Service Tribunal vide its Judgment dated 08-10-2008 had directed the Seuetary Establishment Division and Chairman FPSC to either lay down obiective criteria for owarding l5o/o martrs by CSB or withdran the same as it was in direct conflict with Supreme Court,s earlier order dated 25-09-2006. FST order had attainedfinality after Supreme Court of Pakistan had dismissed CPI-A on 14-07-2009'

RESPONDENTS:

a That seruice matters of Civilseryanfs fatl within the exclusive iurisdiction of the Service Tribunatin term of Section 3(2) of Seruice TribunalAct, 1973 read with Article

212 of the constitution of lslamic Republic of Pakistan'

a That, no infringement of any ight has been caused to petitioners, by viftue of supreme consideration of their promotion by csB, as rT has been held by the Hon'ble Court in iudgment repofted as PLD 1983 SC 652, not a That the recommendations of csB, being mandatory, appointing authoriu should promote any person without taking into consideration the recommendation of CSB' therefore, petitioners have no tocus standi to file the writ Petition.

W.P Nos.3483, 3511, 3512 ol 2011, 58 & 427 12012 6

a That, civit seruant cannot demand promotion as a right and granting or refusal of promotion is a matter which is the exclusive domain of GovernmenUExecutive Authorities That promotion to higher grade is always considered under relevant rules and regutations. Seniority rs nof the sole criteria for promotion and reasons for non- promotion have been communicated to the petitioners a That CSB on the basis of lfs collective wisdom decides/recommends the most suitable officers for promotion to higher grade a That promotion to setection posf is not based on mechanical or mathematicalformula only a That, no discrimination whatsoever has been committed with petitioners as for promotion to these posfs besrde s length of seruice. Other qualities like relevance of experience, circulation value, quality and output work, integrity, training, variety of experience are also examined by the CSB and thereafter promotion fo fhese posfs ts made on fhe basis of selection on merit in terms of Section 9(2) of the Civil Servanfs Act,1973 a That, the officers junior to the appellants/petitioner had better threshold and the CSB on the basis of its cottective wisdom, recommended their promotion over the petitioners a That, the posts carrying basic pay scale 20 falls in the middle management post and promotion to these posfs rs being made on the basts of se/ection on merit a That, in addition to the circulation value and varie$ of experience the incumbents are considered for promotion keeping in view pen picture drawn in the Performance Evatuation Repods, Training Evatuation Repofts, reputation of the officer about his integlg and performance as known to the Board Members and this potential cannot be judged by mathematicat formula on the basis of seniority cum ffness and the CSB have to apply'tts collective wisdom.

a That as per Promotion Policy 2007, 70% weight rs assrgned to the PERs of the officer, 15% weight is assigned to the training and 15% marks are reserued for the CSB

2.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 petitioners and objection raised by respondents.

For convenience, section 4(1Xb) of the Service Tribunal Act, 1973 is being provided hereunder:-

,,No appeat shal lie to a Tribunal against an order or decision of a depaftmental authority determining the fitness or otherwise of a person to be appointed to or hold a pafticutar post or to be promoted to a higher grade"

W.P Nos.3483,3511,3512 ot 2011,58 & 42712012. 7

Similarly, proviso to Sub-section (2) of Section 22 of Civil Servants Act, 1973 provides as under:-

"Provided that no representation shall lie on mafters relating to the determination of ffness of a person to hold a particular post or to be promoted to a higher post or grade".

Moreover, 2nd proviso to Rule 4(1) of Civil Servants Appeal Rules, 1977 states as herein below:- .Provided fufther 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."

3.As is evident from above provisions, 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 sought from the judgments reilorted as PLD 1989 SC-26, 2000 psc 599, PLD 2OO3 (SC) 175, 2OO1 PLC (CS) 878, 2003 PLC (CS) 503, (LHC) and order dated.20-05-2011 passed by learned single bench of lslamabad High Court in Writ petition No.1 160 of 2011. ln this view of the matter, it is held that writ petition on the issue brought before the court is maintainable.

4.The Central Selection Board in its meeting held in November,2007 decided to award its 15 marks on the basis of Members' views on the officer about his integrity, performance and pen picture in synopsis of PERs for the Iast 5 years and the Training Evaluation Reports. The CSB had also devised a key for award of marks, as under:

CATEGORY OF OFF IGERS. MARKS TO BE AWARDED

Outstanding 13 to 14 Very Good 10 to 12 Good 07 to 09 Average 04 to 06 Below Average 02 to 03

W.P Nos.3483, 3511, 3512 ot 201'l,58 & 42712012. 8

5.Learned Federal Service Tribunal, vide its judgment dated 08.10.2008 had, however directed the Secretary Establishment and Chairman, FPSC to either lay down objective criteria for award of 15 marks by CSB or withdraw the same as it was in direct conflict with Supreme Court's earlier order dated 25.09.2006. The order of the learned Federal Service Tribunal has attained finality after Supreme Court of Pakistan had dismissed the CPLA on 14.07.2009. ln its meeting held in Dec. 2009 the CSB had decided that the officers on the panel may fall in three categories i.e top most being Category-1, the middle one Category-ll and the remainder Category-lll and CSB marks may be awarded on the basis of officer's integrity, performance known to the Board's Members and the pen picture contained in the Performance Evaluation Reports and Training Evaluation Reports. Present CSB decided to continue with the said process as wellthe award of marks as under :-

CATEGORY MARKS

12TO 14

II 08TO11

llt 07 and below

The formula of allocation of 15 marks by the Central Selection Board is based on Members' view on the officers about his (i) integrity, (ii) performance (iii) pen picture in synopsis of performance evaluation reports (PERs) for the last five years and (iv) Training Evaluation Reports.

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. lncidentally, 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 pronouncements.

W.P Nos.3483, 351 1 , 3512 ol 2011, 58 & 42712012. I

7.ln a reported judgment, 2006 PLC (CS) 564 learned Division Bench of High Court of Sindh has held that the Bar of 212 of the Constitution is not attracted in cases relating to determination of fitness and further that the qualification score is to be taken into consideration in conjunction with other criteria such as seniority, length of service, varied experience, grading in NIPA course and also the crucial factor of quality and outpuUintegrity. lt has also been held that when a civil servant secures the prescribed threshold, he is entitled for promotion, if other factors are also satisfied. Even in the case of less than the prescribed score the other prescribed conditions would also be considered. All the Constitutional Petitions were allowed with the direction to reconvene the meeting of the Central Selection Board to make recommendation for promotion in accordance with law and in terms of directions contained in Para 20 of the Judgment. The judgments have been up-held by the Honourable Supreme court of Pakistan."

g. Latest dictum has been laid down in the case titled Secretary Revenue Division, CBR/Federal Board of Revenue, lslamabad Vs. Gul Muhammad and others reported as2011 SCMR 295, operative part of which is reproduced herein below:- ,'The above matter came up before this Court and the iudgment of the Servlce Tribunat was upheld vide cited iudgment decided on 25th Sept. 2006, conctuding para there from is reproduced herein below:-

Learned D.A.G, despite our repeated question, could not satisfy us on this aspect of the case, therefore, we are of the opinion that decision with regard to promotion of the Officer cannot be left on the discretion of Members of the Board' There must be some criteria to iudge the pertormance of a candidate because promotion was denied to the officer on the ground that he does not fulfill the criteria. When there is no criteria, then how a person can be denied promotion, therefore, the Seruice Tribunal has rightly obserued that the Board must bring more obiectivity in the criteria."

't0 W.P Nos.3483 , 3511 , 3512 of 2011 , 58 & 42712012.

ln pursuance of the above judgment of this Court, we have no reason to take different view other than which has already been expressed tn the said case. ln the circumstances, the relief has, therefore, been rightly granted to the respondents and petitions being without substance are hereby drsmlssed with costs, because knowing wellthat already a different view has already been taken by the Supreme Court, same point has again been agitated without any justffication. When we asked if order dated 29-03-2010 was implemented or not, learned counsel replied that promotion stood granted to the respondents. Be that as it may, the concerned authority of the depaftment is directed to comply with the order of the Seruice Tribunal, if not implemented as yet and submit report wilhin a period for seven days to Registrar for our perusal in Chambers."

g. ln my humble estimation issue before this court is not merely supersession of civil servants rather more serious to that, and it is dis-obedience 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. lt is constitutional obligation of the High Court to enforce the law declared by apex court through different pronouncements. lt 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 l .i and enforce the rights.

10.Article 1gg of the constitution makes it mandatory for all courts in Pakistan to surrender before any decision of court of apex and follow the same as law of the land. lt is not a matter of discretion but binding upon the courts and for convenience sake said article is reproduced herein below:-

"Article 189:- Decisions of Supreme Court binding on other courts:'

Any decision of the Supreme Court shatl, to the extent that it decides a question of law or is based upon or annunciates a principte of law be binding on all other courts in Pakistan"

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

W.P Nos.3483, 351 1 , 3512 ol 2011 , 58 & 427120'12. 1'l

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 judgmenUorder 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 benefit of promotion simply for the reason that some of the members of CSB had personal knowledge or in their estimation officer is

involved in corrupt practices? lt 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 in the incriminating material and other may be source of personal information, which no disciplinary understanding of law is just a hearsay. Admittedly at the time of CSB, proceedings against superseded civil servants were pending, on the ground of country are charges of corruption. Allegations of corruption against any citizen of the

W.P Nos.3483, 351 1, 3512 of 2011, 58 & 427 12012. 12

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 sociat life and at times proves fatal to his life. ln the era of awareness, rule of Iaw 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 malafide 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 lslamic Republic of Pakistan.

14.ln 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 dictums of court of apex, non-transparent, result of adamant approach, whimsical, sham, unprecedented, infringement to constitutiona! guarantees and principles of natural justice, therefore, same is set aside. The respondent judgment of Hon'ble Supreme ,Establishment Division is directed to implement the

Court, delivered in Civil Petitions Nos.1083, 58 to 60, 443 and 444 ol 2010, in its letter and spirit and restructure the formula of award of 15 marks, in accordance with guidelines provided therein. All the meetings of CSB, subsequent to the above pronouncement of Hon'ble Supreme Court, therefore, are declared as unconstitutional without jurisdiction and unjust which are held to be of no proceedings of consequence. The authorities concerned are directed to hold de-novo Central Selection Board and on the basis of restructured formula allthe superseded

W.P Nos.3483, 351 1 , 3512 ot 2011 , 58 & 42712012. 13

and deferred civil servants must be considered . again, as their supersession/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.

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JUDGE

APPROVED FOR REPORTING

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Uploaded By : Engr. Umer Rasheed Dar

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