' MUHAMMAD IQBAL KHAN (MEMBER)---The appeal is directed against order dated 18-1-2001 whereby the representation of the appellant dated 20-10-2000 for review of his case for promotion to BPS-20 was rejected under Section 22(2) of Civil Servants Act, 1973 read with Rule-4(1) of the Civil Servants (Appeal) Rules, 1977.
2. Briefly stated the facts of the case are that the appellant Mr. Abdul Ghaffar Mian joined the Police Service of Pakistan (PSP) after qualifying the C.S.S. Examination held in the year 1977. He served in various assignments in the NWFP, Sindh, Punjab and in the Federal Government as Assistant Superintendent Police (ASP), Superintendent Police (SP) and also as Senior Superintendent Police (S.S.P.). He was promoted to BPS-18 in 1983 and further promoted to BPS-19 in the year 1997. He also held the field appointments as S.P, Faisalabad and Bhakkar. The appellant was however, superseded for promotion to BPS-20 by the Central Selection Board (CSB-1) in its meeting held on 24-6-2000. The private respondents Nos.2 to 7 who were junior to him were however, promoted to BPS-20. The appellant represented against his supersession on 20-10-2000 which was rejected on 18-1-2001 but was communicated to the appellant on ) -2-2001. The appellant filed his service appeal in the Federal Service Tribunal on 10-2-2001.
3. The learned counsel for the appellant forcefully argued that the appellant met all the conditions prescribed for promotion to BPS-20 in the Promotion Policy and yet has been superseded and the private respondents Nos.2 to 7 who were junior to him were promoted without indicating any solid reason for his supersession. It was also argued that during his 23 years stint of service before his supersession, the appellant had held important and critical secretarial as well as field positions/assignments in the Provincial and Federal Governments. It was also argued that the appellant enjoyed unblemished record of service and he was never communicated any adverse remarks or counselled about any lapse or deficiency in the performance of his duties. The counsel referred to rulings reported in PLD 1994 SC 539 and PLD 2003 SC 175 in support of his contention.
4. The counsel representing the respondents-department vehemently opposed the appeal and stated that promotion is not a vested right of any civil servant. It was argued that recommendations of the CSB-1 were based on the prescribed law, rules and no deviation thereof was made while considering his case for promotion to BPS-20. The learned counsel also referred to Section 22(2) of the Civil Servants Act, 1973 read with Rule-4(1) of the Civil Servants (Appeal) Rules, 1977 and Section 4(1)(b) of Service Tribunals Act, 1973 whereby no representation, appeal lies in matters relating to determination of fitness of an officer for promotion to a higher post. It was also argued that BPS-20 post is a selection post which does not involve criteria of seniority-cum-fitness.
It was further argued that private respondents Nos.2 to 7 enjoyed higher merit compared to the appellant and as such they were considered and approved for promotion to BPS-20. It was pointed out that the appellant earned a large number of average reports which compared him unfavourably with the private respondents. It was also pointed out that the appellant did not enjoy reputation of a clean officer in the department. Finally, the counsel referred to rulings contained in 2001 SCMR 1446 and PLD 2003 SC 110.
5. Heard the counsel and perused the record.
6. It will be appropriate at the outset to refer to the recent judgment of the Federal Service Tribunal dated 3-7-2004 in Appeal No,818(R)CS/2002 which deals with the apprehensions of the learned counsel for the respondents comprehensively. The relevant portions of the judgment ibid are reproduced below:-- "8. The core issue in this appeal is the Appellant's supersession by CSB for promotion to B-20. We will first address the concerns of the Respondents' side against this appeal. The standard arguments by the Respondents' learned Counsel were as under:--
(i) Promotion is not a vested right of any civil servant.
(ii) Appeal against promotion is not maintainable under section 4(1)(b) of the Service Tribunals Act, 1973 and section 22 of Civil Servants Act, 1973.
(iii) FST has no jurisdiction to question the wisdom of the CSB.
(iv) Appeal for promotion against a selection post is not sustainable as it is based on the "best of the best" policy.
(v) CSB duly considered the Appellant and decided to supersede him in view of his indifferent service record.
' The learned Counsel for the Respondent cited ruling of the Hon'ble Supreme Court in the case of Government of Pakistan and others v. Hamid Akhtar Niazi reported in 2003 PLC(CS)212 wherein it has been held 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 refusal of promotion is 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.
23. Perusal of Section 9 of the Act of 1973 unequivocally postulates that criterion of selection for promotion to the higher-grade rest upon decision of the competent authority. No other forum/authority can assume the duties, which specifically have been assigned to the competent authority.
' Respondents' learned Counsel also referred to the Hon'ble Supreme Court's ruling in the case of Shafi M. Mughal v. Secretary Establishment reported in 2001 SCMR 1446 wherein it was maintained by their Lordships as follows:- "11. It is settled law that Service Tribunal has no jurisdiction against an order or decision of a departmental authority determining the fitness or otherwise of a person for promotion to higher post or grade."
' Respondents' learned Counsel also recalled the ruling of the Hon'ble Lahore High Court in the case of Ghulam Jilani v. Government of Punjab reported in 2001 PLC(CS) 157 wherein it was decided as under:-- "The trend of the judicial authority on the subject, therefore, is fairly indicative that in a matter relating to the promotion of a civil servant it is the competent Authority alone which has the exclusive authority to determine the fitness or otherwise of a civil servant on the basis of subjective evaluation of the record of the civil servant and interference by any other forum (Tribunal or Court) as far as possible is not visualized. That appears to be the reason that the same has been kept out of purview of the appellate jurisdiction of the Service Tribunal even. What at the most a civil servant can claim is that he is entitled to be considered for promotion but has no right to be declared by the Court that he is fit for promotion; that is a domain of the competent Authority alone."
' Beside these rulings cited by the learned Counsel for the Respondent, we are also conscious of other rulings of the Hon'ble Supreme Court wherein similar principles have been prescribed. In their ruling reported in 2001 PLC (C.S.) 1298 their Lordships ruled that promotion is not a vested right.
Almost identical Similar principles are also enshrined in the rulings reported in PLD 2003 SC 110, 2001 PLC (C.S.) 452, NLR Civil Lahore 559, 1999 TD(Service) 62, 1990 SCMR 927 and 1990 SCMR 1321.
9. The underlying rationale of these rulings cited above are that every civil servant eligible for promotion who meets all the requirement of promotion has an inalienable vested right to be considered for promotion by the competent forum which should have all details of his service career and he should meet the prescribed criteria as laid down by the Government in its Promotion Policy but cannot claim promotion as a matter of right. Further, that no forum can sit on judgment of the relevant Selection/Promotion Board as to whether a civil servant has been correctly recommended for promotion, deferment or supersession.
10. With this backdrop, now the question arises whether a civil servant who is aggrieved by the adverse decision of the CSB can agitate his grievance before the FST and whether this Tribunal can intervene in the light of the provisions of the section 4(1)(b) of the Service Tribunals Act, 1973 which, inter alia, reads as under:-- "(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;"
' The plain reading of this section bars the FST from entertaining such appeals for promotion but the parameters of section 4(1)(b) of the Service Tribunals Act, 1973 have, however, been enlarged by various rulings of the Hon'ble Supreme Court which has substantively and substantially broadened the jurisdiction of this Tribunal in promotion matters. In this context, we refer to the recent ruling of the apex Court reported in 2003 PLC(CS) 503 and 2001 PLC(CS) 878 wherein objective evaluation of the civil servant's service record by the Selection Board is stressed while considering him for promotion and also that promotion is a vested right of a civil servant. The operative part of Hon'ble Supreme Court's orders read as under:-- 2003 PLC(CS) 503 "7 The decision as to fitness and suitability of an officer for promotion may be subjective but it has to be arrived at by applying an objective process to ensure that the course of justice is not deflected."
"8 The Annual Confidential Reports may not be conclusive to determine fitness and suitability of an officer for promotion yet if an officer is to be superseded on the allegation of doubtful reputation, the opinion decision of the Selection Board must be based on some tangible material.
"10. The formula for quantification of the Confidential Reports has also been appended to these guidelines, according to which, deduction of marks has been provided for major penalty and the adverse remarks and the formula to work out aggregate score of integrity has also been specified.
The quantification formula aforesaid indicates that even the officers upon whom major penalty has been imposed or adverse A.C.Rs are recorded do not become outcast for purpose of promotion. Thus, quantification of the C.Rs, is of paramount importance. This quantification formula, in our view, is intended to structure the discretion of the Board to ensure just and fair treatment to the contenders for promotion."
(Underlining is done by us for emphasis)
' 2001 PLC(CS) 878 "Thus, promotion, in the prescribed manner, through prescribed forum and under the orders of the competent authority is one of the vested rights of the civil servant, subject to criteria laid down under relevant laws."
(Underlining is done by us for emphasis)
' We also rely on the ruling reported in PLD 2003 SC 175 which reads as under:-- "6. Lengthy arguments were addressed by the learned counsel for the parties on the question of existence or otherwise of a vested right to claim pro forma promotion. We need not discuss the same in view of the observations made in Walyat Ali Mir v. Pakistan International Airlines Corporation (1995 SCMR 650) that although the dictum that no employee has a vested right for promotion is correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent Authority would entitle an aggrieved person to challenge the same."
(Underlining is done by us for emphasis)
' Furthermore, Hon'ble Supreme Court in its ruling in the case of Zafar Ullah Baloch v. Government of Balochistan reported in 2002 PLC(CS) 1002 have ruled as under:-- "5. Undoubtedly eligibility for promotion of the aggrieved person can be subjected to judicial scrutiny by the Service Tribunal because it relates to the terms and conditions of his service as it has been held by this Court in number of reported judgments. For ready reference reliance is placed on the case of (i) Mian Abdul Malik v. Dr. Sabir Zameeer Siddiqui and 4 others (1991 SCMR 1129), (ii) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539).
' As far as fitness of a civil servant to hold a next higher post is concerned is dependent upon his performance which he had been showing during the period prescribed for promotion to next grade and it is to be determined on the basis of material placed before competent authority including Annual Confidential Reports etc. The performance is to be evaluated on quantifying the marks secured by him as per the in vogue formula and where a right to consider him for promotion has been claimed on the strength of arguments that he has been bypassed in violation of the Promotion Policy etc. The Service Tribunal can examine the question of his fitness as well as held by this Court in Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And 4 others (1999 SCMR 1605)."
(Underlining is done by us for emphasis)
' In its latest judgment, the Hon'ble Supreme Court in the case of Government of Pakistan v. Hamid Akhtar Niazi PLD 2003 SC 110 has ruled that the Selection/Promotion Board have to formulate their recommendations in respect of civil servants' promotion strictly in accordance with the Promotion Policy and Government's rules on the subject. The relevant portion of the said judgment is as under:-- "(a) Promotion- ' Promotion to selection post is always to be processed through the Central Selection Board in accordance with requirement of Estacode, 2001 (pages 284 to 287) for promotion to grade 19, 20 and 21 respectively."
' In the case of Dr. M. Yousaf v. Government of Punjab the Punjab Service Tribunal in its ruling reported in 2002 PLC (CS) 1071 laid down the following principle:-- "5. In the matter of promotion learned Court held that there was no cavil that no employee has vested right of promotion which may be correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach and deviation either due to any mala fide reasons or due to arbitrary act of competent authority would entitle aggrieved person to challenge the same."
Sindh Service Tribunal in its judgment in the case of Khalid Mehmood v. Secretary Government of Sindh, Livestock and Fisheries Department reported in 2001 PLC (C.S.) 654 enunciated the following principle:-- "Under such circumstances the scope of the present appeal is confined before this Tribunal to see whether the Departmental Promotion Committee evaluated the appellant in accordance with the principle laid down by the Hon'ble Supreme Court of Pakistan and as well as the promotion Policy. If there is no error apparent on the face of record nor there is any violation of the principle to evaluate the officer for further promotion. We are mindful that the fitness so determined by the Departmental Promotion Committee will be out of the place of our jurisdiction, the objection which has accordingly been taken before us by the learned Assistant Advocate General Sindh.
In case we find conclusion arrived at by the Departmental Promotion Committee was in violation of principle of promotion policy and so also the law laid down by the Hon'ble Supreme Court of Pakistan on the subject we would be within our jurisdiction to hold that appellant is entitled to the Pro forma Promotion from the date his juniors were promoted. Therefore, another feature of this appeal is that whether relief, appellant is entitled to or can be granted, would be grant of proforma promotion and not the assessm ent of fitness because the DPC determines the fitness for promotion at a particular time (Underlining is done by us for emphasis)
' In the case of Muhammad Rahim Khan v. Secretary, N.-W.F.P. Reported in 1999 SCMR 1605, the Hon'ble Supreme Court ruled as under:-- "We would, therefore, grant leave to the petitioner to consider whether the material placed before the Provincial Selection Board, truly and faithfully, reflected the qualifications of the contestants and whether on the basis of the available criteria the recommendation of the Selection Board was or was not influenced in a manner, affecting correct appraisal and assessment of respective merits of the contestants, of which the Board was the repository and which clearly, must have weighed with the competent Authority in determining the relevant fitness."
7. We feel that the above judgment has succinctly addressed the apprehension and concerns of the respondent-department. In peculiar circumstances when parameters of the Promotion Policy are violated, FST has the jurisdiction to intervene if approached to provide redressal to the grievances of the civil servants as the succeeding paras of this order will manifest. The focus will be on the case of the appellant.
8. Against the above backdrop, let us now carefully peruse the features of the Promotion Policy and thereafter to judge whether the appellant measured upto the requirements prescribed in the said Policy. The Promotion Policy contains the following criteria for promotion to a post in BPS-20:--
5. Posts carrying basic pay scale 20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers must also have a sufficient variety and width of experience so that:--
(i) They acquire an overview of the functions performed by these organizations within the broader framework of government's overall objectives activities to ensure smooth and effective management at the field level; and
(ii) they can lend pragmatism to policy formulation in assignments at the Secretariat.
' Variety of experience would include experience in the field, corporations, attached departments, different Ministries Divisions and in our Missions abroad. For promotion to middle management posts, a civil servant must fulfil the following requirements:--
(a) Qualifying Service: possess 17 years service as an officer subject to the provisions contained in Establishment Division's O.M.No,19 XO-R-II(A), dated 2-6-19K.V.
(b) Eligibility threshold: attain a minimum score of 70 marks in the CRs in accordance with the formula given in the Addendum.
(c) Qualification: 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 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 un-attractive areas. While some ex osure 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 detecting 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
9. The appellant's career profile contained in the pro forma attached with the working paper for the CSB reads as under:-- ' For promotion to BS-20:- Penal Pro forma Seniority No,9 Confidential As on 22-5-2000 Name Service/Group Domicile Date of joining Service Mr. Abdul PSP AJ&K 21-3-1977 Ghaffar Mian (BS-17)
Date of Birth 23-7-1949 Date of Superannuation on 22-7-2009 Education Qualification: MA. Economics Date of Promotion BS-18 13-8-1983 BS-19 16-8-1997 Training Courses Grade Achieved 74th Advance Course in Management. NIPA, Lahore_ A V.Good QUANTIFIED SCORE OF ACRS. {{TABLE}} Overall Quality and output of work Integrity Average reports Adverse reports Awaited reports Moral Intell 88 74 77 78 08(1983 Ot 1987) - - Ot 1986 2nd Pt 1987, 1989 1990 2nd Pt .
Adverse Remarks: Nil Penalties, if any imposed Nil under E&D rules: Postings held: BS-17 ASP, Mardan ASP, Abbottabad.
SDPO/ASP, Abbottabad SDPO/ASP, Bahawalpur BS-18 SDPO/ASP, Bahawalpur Add.SP, Faisalabad SP, Special Branch, Lahore SD, Bhakkar Deputy Director, FIA, Islamabad BS-19 Dy. Director, M/o Interior, Islamabad OSD Establishment Division, Islamabad Dy. Director, M/o Interior, Islamabad OSD, Govt. Of Sindh, Karachi SSP, Sukkur.
OSD, Establishment Division, Islamabad Dy. Director, Federal Control Room, M/o Interior, Rawalpindi Note:- Competed two years mandatory field posting"
' Perusal of the above document would show that the overall quantification score 6f the appellant is 88 whereas his score for quality and output of work and integrity both moral and intellectual is 74, 77 and 78 respectively. The minimum bench mark for promotion to BPS-20 are 70 marks in the overall quantification score and the same for quality and output of Work and integrity. The document also indicates that the appellant earned some part average reports in 1983, 1985, 1986, 1987, 1989 and 1990. The other requirements as prescribed in the Promotion Policy are fulfilled by the appellant as succinctly reflected in the pro forma ibid. The minutes of the meeting contained the following recommendations in respect of the appellant.
"The Board noted that the officer received Average reports during the years 1983, 1985, 1986, 1987, 1989 & 1990 which compared him unfavourably with other officers being considered for selection on merit. The Board was also apprised that he did not carry the reputation of a clean officer. The Board therefore considered him unfit for promotion."
Recommendation:---The Board recommended him for supersession."
' The recommendations of the Board can be bifurcated into two parts as shown below:--
(1) Part average reports.
(2) Reputation not as a clean officer.
10. The overall quantification score of the appellant is 88 marks which also included quantification of his overall ACRs, in his entire service career including his part average ACRs, The overall quantification of the appellant is more than that of the private respondents Nos.2 to 7. Moreover, the average reports are related to the parts of the years as indicated and do not reflect his performance during the whole year. Apart from this, we should not loose sight of the fact that despite existence of the average reports the appellant was promoted to BPS-19 in the year 1997.
The apex court has held in a number of its famous decisions that average reports are not adverse reports as these under the rules are not communicated to the officers concerned and therefore they do not have the opportunity to defend their position against these reports. We, therefore, feel that these part average reports should not create any impediment in the way of promotion of the appellant to a higher post of BPS-20 when his overall quantification score was admittedly more than those of the respondents Nos.2 to 7. Regarding (2) above it is mentioned that no such stigma is attached to the reputation of the officer as no evidence to this effect is discernible either from his ACRs or any other adverse communication available on record. Admittedly, the officer has never been communicated any remarks regarding his reputation being not a clean officer. We have carefully perused the record to find any evidence which could show that appellant have had a bad reputation. No such evidence is found by us. It appears that some member of the Selection Board expressed adverse opinion about the appellant during the course of the meeting which was made the basis of his supersession.
11. It will be observed that in view of the existence of a comprehensive Promotion Policy as well as enlargement of the jurisdiction of the Tribunal as indicated in the rulings mentioned in the Tribunal judgment of 3-7-2004, the discretion of the Board has been confined to ensure fulfilment of requirements of the Promotion Policy. In our opinion therefore, the Board does not have the discretion to go beyond the parameters of the Promotion Policy and the rulings of the apex court.
Going beyond the scope of Policy would show disregard for the rule of law. We also recognize the fact that it is not the intention of the Board to manifest itself in this mould but since no tangible reasons based on solid evidence are given for the supersession of the appellant. Action would reflect arbitrariness and capriciousness on the part of the Board. There is no denying the fact that quantification score based on the entire service record of the government servants encompasses all Their characteristics/traits both in their capacity as individual/human being and as a public servant. The quantification score offers the best paradigm to judge an officer's points of strengths and weaknesses as an individual as well as public servant in its entirety. If we go through the ACR form it will be seen that no aspect of a government servant's public or private life has escaped the attention of the intention of the framer of the format.
12. Let us now address the concerns of the respondent-department who have referred to case laws reported in 2001 SCMR 1446 and PLD 2003 SC 110 although these have been dealt with comprehensively in the Tribunal judgment dated 3-7-2004 reproduced in para-6 of this order.
' Some aspects of these case laws need some more elaboration. The relevant portion of the judgment reads as under:- "2001 SCMR 1446
13. Thus, it would seem that the expression "eligibility" and "fitness" are distinct and are for different purposes. The Legislature in its wisdom has left the issue of fitness at the discretion of the competent authority for the obvious reason that the authority looking background and the performance would be in a better position to determine the issue of fitness than the Tribunal or the Court. In this particular case, as is evident from the report referred to earlier, it is clear that general reputation of the Petitioner in the past was not satisfactory, rather it was poor. Nothing material has also been brought on record to substantiate the plea that said Vigilance Report was false.
Supreme Court declined to interfere with the orders of the Authorities.... Leave to appeal was refused."
' The above judgment is not applicable in respect of the appeal being considered here. In the reported case, Director Vigilance of the Ministry of Railways communicated adverse reports about Mr. Shafi Muhammad Mughal (the appellant) which is reproduced below:-- "2001 SCMR 1446 ' DPC for third time was held on 11-3-2000. The Petitioner was superseded on the report dated 17-2- 2000 of Brig (Retd) Tariq Mahmood, Director Vigilance, Government of Pakistan, Ministry of Railways, Headquarters Vigilance Directorate, Lahore, which is as follows:-- 'General Reputation: ' Mr. Muhammad Shafi Mughal is an irresponsible and a corrupt officer. He has a history of misusing authority for personal gains. He does not offer any respect to his colleagues or subordinates. Before the recent change in command, he was reportedly involved in case of bribery and other such misdoing. He was recently overheard cribbing, his financial conditions, which can be longer cater for his luxurious life style. It is widely discussed that his subordinates take turns to pay or his office tea etc. Comments ' The officer does not enjoy good reputation. It is however, difficult to find out his past misdeeds/bribery etc., as no proof could be found, but mere an example of an officer making his peon office staff to pay for his tea expenditure, makes him a doubtful character and unbecoming of an officer."
13. In the case of the appellant no adverse report from any agency was placed on record. It seems as mentioned elsewhere in this order, the appellant was susperseded possibly on the verbal remarks of some member of the Board which were not reflected in his service record.
14. The other ruling referred to by the learned counsel for the respondent-department is contained in PLD 2003 SC 110 which is the same as reported in 2003 PLC(CS) 212 and as mentioned in para 8 of the Tribunal judgment of 3-7-2004. Operational parts of the judgment (a) and (b) are reproduced below for convenience:-- "2003 PLC(CS) 212
(a) Civil Servants Act (LXXI of 1973) ---S.9---Service Tribunals Act (LXXI of 1973), S.4--Promotion---Selection post and non-selection post--Criterion for ,promotion---Jurisdiction of Service Tribunal---Scope---Criterion for promotion in case of selection post is merit, while in case of non-selection post it is on the basis of seniority- cum-fitness--Criterion for selection for promotion to the higher grade rests upon decision of the Competent Authority---No other forum/Authority can assume the duties, which specifically have been assigned to the competent Authority-Seniority is one of the factors, which is considered for promotion, but seniority alone is not enough---Promotion is not automatic but it depends on many other factors, such as, competence, availability of post and antecedents etc, and none of the said factors is less important than seniority and for promotion all these factors, on case-to-case basis, are to be considered---Benefit of promotion, on the basis of improved seniority, as a matter of right in selection grade, cannot be claimed nor the Service Tribunal in appeal is competent to grant the same from back date, as the same is explicitly beyond its jurisdiction---Requirements for promotion having not been examined by the Competent Authority at the relevant time, promotion could not be granted by the Service Tribunal---Civil servant cannot ask for promotion as a right, and granting or refusal of promotion is a matter, which is within the exclusive domain if the Government/Executive Authority---If promotion is denied to a civil servant it could not be termed as denial of any fundamental right.
(b) Civil service--- ---Promotion---Promotion from back date to the retired civil servant cannot be granted."
15. We feel that the above ruling does not operate adversely in the case of the appellant. It would show that consideration for promotion to a higher position depends not only on seniority but also on other factors such as competence, availability of posts and antecedents which are also taken into consideration. The appellant met all the requirements of the Promotion Policy. The appellant enjoyed unblemished record of service his antecedents involving versatile and varied experience both in the secretarial and field appointments and quantification score of 88 marks provided adequate testimony for his fitness for promotion to the next higher position of BPS-20. The judgment ibid related to an officer who had retired from service and demanded promotion from back date which could not be granted to him. The appellant is a serving officer who possesses excellent record of service and no complaint about him being not a clean officer in black and white is available on record.
16. The appellants last five (5) years reports as provided to the CSB-1 by the Establishment Division read as under:-- "SYNOPSIS OF ACRs ' Name of the officer with designation: Abdul Ghaffar Mian, F'SP,SSP ' Educational Qualification: B.A. Hons. M.A. Economics Year Posting Overall Grading Fitness for promotion Pen picture
(a) Pen Picture (b) Counselling (c) Assessment of performance Reporting Officer (with name & Designation) Countersigning Officer with name and Designation 1994 O.S.D. - Report not required.
Establish inent Division 1-1-95 to -do- - - Report not required 30-8-95 12-9-95 Deputy V/Good Fit for A mature and well An excellent to 31-12- Director accelerated groomed officer with officer.
95 FCR, Ministry of Interior promotion pleasing habits. He performed his job quite well. Suitable for desk jobs as well as field duties. Recommended for promotion. , (Abdul Rauf Chaudhry). Joint Amenable to advice. Secretary, Mk)
Interior.
(a) His overall contribution to functioning of the officer was substantial. Recommended for foreign advanced police course.
(Fadhil Hussain Khan Yousaf Zai)
Lt/Col/Director, FCR, Rawalpindi 1996 Deputy Director
(a) , FCR, Ministry of Interior V.Good Fit Smart, honest and diligent officer who displayed keenness and works with enthusiasm. He is emotionally stable, preserving and adaptable.
(b) Amenable to advice.
(c) The officer contributed actively in the overall efficiency of the organization. His assessment regarding political and law and order situations were most helpful appropriate and accurate (Fadhil Hussain Khan Yousaf Zai)
LA/Col/Director, FCR, Rawalpindi The assessment of the reporting officer is endorsed. , (Abdul Rauf Chaudhry). Joint Secretary, Mbo Interior, 1-1-97 to
(a) 18-4-97 Deputy Director FCR, MA) Interior Outstan- ding Fit A very sound and well balanced officer who has shown outstanding output during the period under review. The officer bear high moral integrity and excels.- in his overall conduct. The depth of perception in monitoring the crime and political situation in the country and overall intelligent and analytical work manifested by him is equal by few. He is result oriented in his professional duties and proved to be very responsible as Director.
His reliability and dependability has , been remarkable.
(b) Amenable to advice.
(c) His contribution toward the overall routine work and functions of the FCR has been extremely useful and note worthy. In the discharge of his duties. Fie has been punctiliously exact. He has shown exemplary professional skills throughout the year. Specially during the political/judicial crises in the country. He shall be- I agree with the reporting officer.
(Akhtar Ahsan Joint Secretary, Mb o Interior. proved to be a great value in any intelligent security and administrative organization.
(Fadhil Hussain Khan Yousaf Zai)
Lt/Col/Director, FCR, Rawalpindi 19-4-97 Deputy Outstan- Fit The officer is I agree with the to 31-12- Director ding extraordinary sound in his reporting 97 , FCR, Ministry . Of Interior professional ability and has shown outstanding output during the period under report. His depth of perception in monitoring crime and political situation in the country and overall intelligence work manifested by few. The officer is result oriented in his departmental efforts and proved to be an excellent Deputy Director, FCR. He shall be proved to be of a great value in the field. Officer.
(Akhtar Ahsan)
Joint Secretary Amenable to advice.
(a) His contribution towards the overall functioning of FCR has been extremely useful and noteworthy. He had displayed exemplary professional skills and capability throughout the year.
(Aurangzed Khan)
Director, FCR 1-1-98 to Deputy ' Outstan- Fit The officer has An outstanding 30-8-98 Director Ministry of ding , FCR, multidimensional traits of leadership and has vast and diversified experience as a senior police officer. Police Officer.
(Akhtar Ahsan)
Joint Secretary Interior . He has developed a knack to accomplish assignment to their logical conclusion. The officer was posted to FCR till September 1995. He is long over due for field postings as part of carrier planning . Ministery of Interior Amenable to advice.
(a) His overall performance was laudable and he put forth useful recommendation for streamlining the FCR functioning.
(Aurangzeb Khan) Director, FCR 31-8-98 Attended Report not required. to 19-12- N1PA 98 course 1999 Deputy Outstan- Fit I agree with the
(a) Director , FCR, ding The officer has shown outstanding output during his tenure and excels in his overall official conduct and excels in his overall official conduct. Reporting officer.
(Akhtar Ahsan)
Joint Secretary The officer completed more than 4 years in the FCR and is long overdue for posting in the field. is amenable to advice.
(b) He carried out duty cheerfully and contributed effectively to the functioning of the FCR.
(Aurangzeb Khan)
Director, FCR ' The synopsis of his ACR as indicated above would provide enough proof about his impeccable performance and integrity.
17. At this stage we would also like to glance through the comparative quantification score of the ACRs of respondents Nos.2 to 7 vis-a-vis the appellant which is as under:-- S.No Respondents OA Q&OP Integrity Training Grading Moral Intellectual 1 Mr. Tariq Saleem 87 91 95 95 NIPA/"A= V.Good"
2 Mr. Javed Noor 86 95 98 98 NIPA/"Outstanding"
3 Mr. Aftab Sultan 84 91 95 95 NIPA/"Outstanding"
4 Mr. Shamsul Hassan 85 87 95 94 NIPA/"A=., V.Good" '
5 Mr. Humayun Raza 81 91 93 93 NIPA/"A= Shafi V.Good"
6 Mr. Altaf Qamar 84 91 92 93 NIPA/"A= V.Good"
Mr. Abdul Ghaffar 88 74 77 78 NIPA/"A= Mian(Appellant) V.Good" {{TABLE}} ' It will be observed that appellant's overall quantification score of 88 is more than respondents Nos.2 to 7, who in the above Table appear at Serial Nos.1 to 6. His quantification score for quality and output of work and integrity both moral and financial is more than the minimum benchmark of
70. His report from the Training Institute NIPA also compares favourably with all respondents except respondents appearing at serial Nos.2 & 3 in the Table above. We are surprised to see that one Mir Ikram-ul-Haq not impleaded by the appellant as party having quantification score of 70 and whose part ACR for the year 1997 and complete ACRs for 1998 & 1999 were not available and who was junior to the appellant by four positions, was also cleared in the same meeting of the CSB-1 subject to satisfactory ACRs, It will be interesting to glance through the recommendations of the CSB-1 in respect of Mir Ikram-ul-Haq which are reproduced below:-- "The Board was of the view that the officer enjoyed excellent reputation for his work and conduct.
He fulfilled all the requirement laid down for promotion to BS-20. There was nothing adverse on record against him. However his reports for the years 1997, 1998 & 1999 were found missing. The Board observed that non-availability of these ACRs should not be allowed to stand in the way of promotion of such an excellent officer.
Recommendation.---The Board recommended him for promotion subject to satisfactory completion of reports of 1997 (pt), 1998 and 1999.
' It is strange that the Board cleared him for promotion despite his three (3) reports were not available and his overall quantification score was 70 marks which is minimum prescribed for promotion to BPS-20 post. Normally, Mir Ikram-ul-Haq should have been deferred and his case placed before the next meeting of the Board as and when his three (3) ACRs would have become available. In his case the Board considered it appropriate that non-availability of his ACRs should not be allowed to stand in the way of promotion of an "excellent officer" who barely qualified for promotion in terms of the overall quantificaiton score. His clearance by the Board pending availability of his three (3) ACRs provided him with a leverage to request and pressurize the concerned Reporting/Countersigning Officers for favourable ACRs, The appellant who enjoyed the highest overall quantification score of 88 was not considered as unfortunately the same amount of generosity as shown to Mir Ikram-ul-Haq by the Board was not accorded to him.
18. Here we would also like to comment upon the aspect of quantification of integrity which until recently was emphasized more than the overall quantification score of an officer. It is surprising that integrity was also quantified in terms of marks. The minimum benchmark for integrity was 70 marks for qualifying a government servant for consideration for promotion to BPS-20 post. In our view L integrity cannot be quantified in terms of marks as it should always carry 100 marks or should be 100%. If it falls short of that level, it can be safely presumed that the integrity of that particular government servant is questionable to the extent of the shortfall from the maximum of the 100 marks or 100%. The integrity of the respondents Nos.2 to 7 also suffers from shortfall from the maximum of 100% and as such in terms of the above observation, the respondents also cannot said to be officers of clean reputation. The appellant thus squares with the respondents as they do not have any edge over him. The differential in marks assigned could be attributed to the whims of the different Reporting/Countersigning Officers. Quality and output and integrity column are also included in the overall quantification score and as such their separate quantification tantamounts to doubly calculating quality and output of work and integrity once in overall quantificaiton and then individually. This flawed methodology serves as a double edge sword for certain officers who could thus become victim of double jeopardy. It seems that this was a reason that quantification of quality and output of work and integrity has been recently done away with vide letter dated 19-12- 2003 which is reproduced hereunder:- "GOVERNMENT OF PAKISTAN CABINET SECRETARIAT ESTABLISHMENT DIVISION No,3/11/2003-CP-II Islamabad, the 19th December, 2003 ' Subject:- PERFORMANCE EVALUATION REPORT (PE)
' The undersigned is directed to say that columns of "Quality & Output of Work and Integrity" are no longer in the revised Performance Evaluation Report Form. As a result, only the quantified score of of in "Overall Assessm ent" shall, henceforth, be taken into account by the Central Selection Board
(CSB) while considering promotion of officers to next grade.
(Sd.)
(Muhammad Ashraf Awan) Section Officer (CP-H)"
' The emphasis now is on the overall assessment of an officer which in the case of the appellant is the highest in the penal of officers who were recommended for promotion to BPS-20 by the CSB-1.
19. It will also be interesting to closely go through the preamble to the minutes recorded by the CSB-1 as contained in paras 2 to 4 in its meeting of 24-6-2000. For convenience it is reproduced below:-- "2. The Board was apprised that posts falling in BS-20 and BS-21 were selection posts and promotion against these posts were required to be on the basis of selection on merit in terms of Section 9(2)(a) of Civil Servants Act, 1973. The Board observed that it had been conferred the onerous responsibility of selecting officers who would form a talent pool for the highest positions in the civil service. The officers to be selected would be the policy makers and planners of the future.
Therefore, the process of selection against higher management posts was undeniably linked to the issue of good governance. The Board observed that simple criteria of seniority coupled with scrutiny of Performance Evaluation Reports would fail to deliver the results. Writing of ACRs had deteriorated over time, losing objectively, and hence, validity. In fact it was the responsibility of the Board to select "the very best from amongst the best". For this purpose multiple criteria were required to be kept in view. Seniority would ensure eligibility for consideration, PERs would be given due weight-age tempered with the officer's variety of experience. Assessment reports of training institutions would be given special importance. The Board members would be expected to present their personal views about the conduct and work of officers. Due cognizance would be taken of general reputation of officers regard to work and conduct. In short, the Board resolved that it would apply the criteria of excellence while making its recommendations.
3. The Board further resolved that the "Guidelines for DPCs, CSBs", circulated by the Establishment Division would be strictly followed while making recommendations for promotion.
4. The Board decided that it was necessary for the Secretaries of the sponsoring Ministry/Division to be present in the Board's meeting during the consideration of agenda item(s) pertaining to that Ministry/Division. In case of absence of a Secretary, agenda item(s) would not be taken up for consideration"
' Unfortunately the CSB-1 has violated its solemn resolve as enunciated above by discriminating the appellant vis-a-vis the private respondents. The appellant had the requisite seniority, quantification score par excellence, variety of experience both secretarial and field and a very good report from NIPA. Despite meeting all requirements as laid down in the Promotion Policy as also emphasized in the preamble to the minutes of the Board, the appellant has been superseded.
It will be pertinent to refer to the underlined portion of the above preamble which we have done for emphasis. The members of the Board were expected to present their personal views about the work and conduct of officers. This obviously refers to those members who have supervised the work and conduct of the officers concerned and have also expressed their views about such officers in their Annual Evaluation Reports. The views of members not connected with the work of the officers concerned would have no weight and if expressed would at best be based upon conjectures and surmises. Obviously, the logic behind the underlined portion of the above preface is certainly not to grant unbridled powers to the members to express off the cuff views about a particular officer as they deemed appropriate at the spur of the moment. In that case the forum of the CSB-1 could be used as an instrument of persecution and vendetta rather than of justice. If the above expression is taken in its literal sense that any member can express his opinion without having supervised the work of the officer then on the contrary the officers having less than the prescribed quantification score but are showered with kudos and accolades by members in the course of the meeting should also be recommended for promotion, their quantification score notwithstanding. We have not come across any such case and rightly so because it would render the quantification regime ineffective and dysfunctional. Resultantly, the entire system based on quantification of marks would go hay wire. If this course of action is not acceptable without hard evidence, how the other course of orally denigrating an officer without tangible evidence can be accepted. The emphasis now is on the overall quantification of an officer which in the case of the appellant is the highest among panel of officer who were recommended for promotion to BPS-20 by the CSB-1 in its meeting held on 24-7-2000.
20. Having critically analyzed the appeal in all its dimensions, we have observed that justice has not been done to the appellant. The Board itself ignored their own paradigm to select "the very best from amongst the best". The appellant undoubtedly being the best out of the lot was dropped for no rhyme or reason. Accordingly, we direct that the appellant be promoted with effect from the date his juniors were promoted vide order dated 3-10-2000. We are cognizant of the fact that we have issued directions for his promotion from a specified date as in our view his supersession was not legally sustainable ab initio as he met P all the requirements of the Promotion Policy and striations/guidelines issued by the Establishment Division from time to time and the criteria evolved by the Board itself as indicated in the preamble to the minutes referred to above. Moreover, since the appellant suffered for none of his fault he shall also be entitled to consequential benefits effective from 3-10-2000 i,e, the date on which his juniors were promoted.
21. No order as to costs. Parties be informed, accordingly.