' JEHAN ZAIB BURKI (MEMBER).--- By this judgment we propose to dispose of the title appeals which have identical points of law and facts. In the interest of brevity, we would be referring to facts given in the appeal of Mr. Azhar Hassan Nadeem as with few variations of dates relating to notifications for promotion of the appellants or the dates of filing of their respective departmental appeals/service appeals, the basic facts are similar in nature and contents.
2. The appellants were aggrieved with the impugned notification, dated 5-8-2003 (which was 8-8- 2003 in the case of appellant Maj. (R) Muhammad Habib Khan, 5-8-2003 for Maj. (R) Habibullah Khan Niazi and 25-9-2003 for Mr. Shahid Hassan Qureshi). Whereby they were promoted from BPS- 20 to BPS-21 with immediate effect instead of the date when their juniors were promoted. The appellants preferred departmental appeals on various dates which, however, remained unresponded. Resultantly, they filed their instant appeals before the Tribunal on dates mentioned against their names in the table given on the table of this judgment.
3. Briefly speaking the appellants have stated that the Central Selection Board (hereinafter referred to as C.S.B.) in its meeting held on 9-8-2002 had recommended their names for promotion from BPS-20 to BPS-21. However, while the minutes of the Central Selection Board meeting referred to above were in the process of submission to the competent authority for approval, certain affected officers reportedly launched a campaign through the media and other influential quarters for review of their cases. Thereafter, it was decided to reconvene the Central Selection Board meeting on 6-9-2002. Consequently, the names of the appellants were dropped from the list of those recommended for promotion from BPS-20 to BPS-21.
4. The appellants further stated that they approached the Honourable Lahore High Court through Writ Petition No,20100 of 2002 against non-grant of their promotions. During the adjudication of the writ petition, cases of the appellants were processed by the Central Selection Board and resultantly the appellants were promoted to BPS-21 as already referred to at para.2 ante. After the said promotions, the writ petition became infructuous and was disposed of accordingly vide the Honourable Lahore High Court's order, dated 24-7-2003.
5. It has been contended by the appellants that they had been promoted from BPS-20 to BPS-21 on the basis of the same service record by the subsequent Central Selection Board (in its meeting held on 18-6-2003) vide the impugned notifications referred to above. According to the appellants, they preferred departmental appeals to the competent authority praying for placing their names at the appropriate places after restoring their original seniority by converting their supersession into deferment with all consequential benefits. However, the departmental appeals of the appellants were not responded to within statutory period due to which the instant appeals before the Tribunal were filed.
6. It has been contended by the appellants that they had been superseded for promotion on the same record on which they were subsequently promoted. This clearly indicated that they were always fit for promotion but had been ignored on some extraneous considerations by the Central Selection Board in their meeting held on 6-9-2002. It was argued by the appellants that under such circumstances they should not have been treated as superseded which had resulted in the loss of their original seniority. It has been argued by the appellants that they should have been promoted from the same date as their juniors since they had been considered and promoted on the same record as had already been perused by the Central Selection Board during their meeting held on 6-9-2002. Promoting the appellants from a later date was not justified on any tangible ground. The impugned order of promotion is required to be amended in order to place the appellants at the proper places in the Gradation List of Police Service of Pakistan. The appellants, stated that they had been superseded in an arbitrary and whimsical manner by a self-tailored policy of the Central Selection Board on 6-9-2002 called the "best of the best" which had no nexus with the policy guidelines and promotion rules. The appellants state that the respondents had indulged in absolute discretion under the cover of the said policy. In this connection, the appellants have relied on a judgment reported as 2003 PLC (C.S.) 1161(b) which observed as under:-- "Concept of absolute discretion does not exist in law as it was wholly incompatible with the guarantee provided by Article 4 of the Constitution of Pakistan, 1973. "Absolute discretion" was a ruthless master and unless it was structured, it was likely to be abused. Such a provision would be ex facie discriminatory."
' It was argued that the appellants despite being senior as per seniority list and having good service record had not been considered for promotion within time, without any valid reason, and their juniors had been promoted. It was, therefore, prayed that the appellants promotion may be antedated with effect from the date their juniors had been thus, promoted.
7. It was argued by the appellants that prior to Central Selection Board meeting held on 6-9-2002, the promotion to Selection Posts was granted in accordance with policy guidelines and rules. The qualification of the confidential reports played a major role apart from seniority and other criteria.
This procedure had been adopted for a very long time and it had attained the status of a law. As such, the Central Selection Board meeting of 6-9-2002 by adopting a new method for selection had violated the invoice promotion policy. The appellants have drawn our attention to the Honourable Supreme Court of Pakistan's ruling reported vide 1999 SCMR 1605 whereby it was held that:-- "If an officer is superseded, not only the reasons should be recorded but it should be supported by tangible material. The Central Selection Board while formulating its recommendations for consideration of the civil servant is to be guided primarily by the promotion policy, the A.C.Rs,, relevant instructions issued from time to time by the Establishment Division and of course, can taken into consideration any material which may have bearing on the fitness and suitability of an officer for promotion."
' No such course of action was followed by the Central Selection Board on 6-9-2002 (not 6-9-2003 as erroneously mentioned in the appeals) who had superseded the appellants in violation of the afore-mentioned law laid down by the Honourable Supreme Court of Pakistan. The appellants have also drawn attention to another ruling of the Honourable Supreme Court of Pakistan vide 2002 SCMR 1056 wherein it was held that:-- "Civil servant bypassed in violation of the promotion policy, Federal Service Tribunal can examine the question of fitness of such civil servant."
8. The respondents have vehemently resisted the appeals and have stated that these were time- barred. Moreover, it has been contended that the appellants had not been recommended for promotion to BPS-21 by the Central Selection Board meeting held on 6-9-2002. Subsequently, only appellants Azhar Hassan Nadeem and Shahid Hassan Qureshi were recommended for promotion to BPS-21 by the Central Selection Board meeting held on 18-6-2003 and had been promoted accordingly. It was further argued that according to the Government servants (Seniority) Rules, 1993, only civil servants whose cases were deferred while their juniors were promoted to the higher post were eligible to take their seniority with their original batch. The appellants had been superseded and had been subsequently promoted and as such had lost their seniority. It was further argued that no representation lay on matters relating to determination of a person to hold a particular post or to be promoted to a higher post or grade. It was further deposed that the Central Selection Board makes selections on comparative merit and same record can be construed in comparison with different results. The C.S.B. Had made selection of the best officers on the criterion of excellence and comparative merit. The promotion policy had been followed strictly by the Central Selection Board. Fulfilment of prescribed eligibility conditions only establish the right of a civil servant to be considered for promotion. However, the right of consideration is distinguishable from promotion itself which is not a right as laid down in the Civil Servants Act, 1973.
A person fulfilling the conditions of eligibility for promotion cannot claim promotion as a matter of right. It was further stated that use of the words "best of the best" was only an elaboration of the existing policy. According to the respondents, the Central Selection Board in their meeting held on 6-9-2002 had recommended the appellants for supersession against their juniors who were considered to be better qualified for manning the post of Inspectors-General. The respondents have stated that no separate minutes of the meeting held on 9-8-2002 had been recorded.
9. The private respondents have also filed their objections to the appeals and have argued that the appeals were time-barred. They further stated that a superseded officer could not claim seniority over those officers who had superseded him and had been promoted earlier.
10. The private respondents also denied the allegation made by the appellants that some of them who had been adversely affected in the matter of promotion during meeting of the Central Selection Board held on 9-8-2002 had managed a review of their cases and had caused the reconvening of the Central Selection Board meeting on 6-9-2002 due to which the names of the appellants, earlier recommended for promotion on 9-8-2002 had been dropped from the list of those recommended for promotion as a result of the Central Selection Board meeting held on 6-9- 2002. The private respondents have stated that the appellants had been correctly placed at various serial numbers of the Gradation List on the basis of the date of their promotion to BPS-21.
The private respondents argued that the appellants had not been found fit for promotion on the basis of comparative merit vis-a-vis the respondents by the Central Selection Board in its meeting held on 6-9-2002. In the subsequent meeting of the Central Selection Board held after promotion of the private respondents to BPS-21, the comparative merit of the appellants had been considered and compared with the service record of other officers who had not yet been promoted and the appellant had been found fit for promotion at a subsequent stage. The contention of the appellants that they had been promoted on the same record was, therefore, not correct as they had not been promoted on the basis of the same comparative merit as considered by the Central Selection Board during the meeting held on 6-9-2002.
11. We have heard the learned counsel for the parties and have perused the relevant record.
12. The respondents have contended that the appellants had failed to challenge their supersession within the prescribed period of limitation before an appropriate forum. Hence, the appeals were liable to be dismissed on the point of limitation. In this connection, it was argued by the learned counsel for the appellants that they had filed a Writ Petition No,20100 of 2002 against their supersession. However during pendency of the said writ petition, the cases of the appellants had been reconsidered and they had been promoted to the post of BPS-21 on various dates during the year 2003. The writ petition had thus, become infructuous and had been disposed of by the Honourable Lahore High Court vide their order, dated 24-10-2003. Thereafter, the appellants had filed departmental appeals/representations for restoration of their seniority before the competent authority which had remained unresponded. Thereafter, they had filed their instant appeals before the Federal Service Tribunal. In their instant appeals before the Tribunal, the appellants had challenged the impugned notification of their respective promotion from BPS-20 to BPS-21 whereby they had been promoted with immediate effect instead of from the date their juniors had been promoted.
13. In this connection, it would be pertinent to bear in mind that the appellants had prayed that their supersession recommended by the Central Selection Board-I in its meeting held on 6-9-2002 may be converted into deferment and their original seniority in the Police Service of Pakistan may be restored. In other words, the appellants had challenged the order of their supersession passed subsequent to the meeting of the Central Selection Board-I held on 6-9-2002. It is further to be noted that the promotion of the private respondents had been notified vide the respondents order, dated 19-10-2002. As such, the appellants were required to challenge the validity of the afore- mentioned order of promotion of private respondents dated 19-10-2002. The objection of the respondents with regard to the instant appeals having been filed beyond the prescribed period of limitation is, therefore, correct. However, the appellants have raised important questions relating to the method of manner of consideration of their cases in the Central Selection Board meeting held on 6-9-2002 which need to be addressed and settled. The appellants have alleged that they had been superseded on 6-9-2002 but had been promoted as a result of the Central Selection Board meeting held on 18-6-2003 on the basis of the same record. The appellants had further contended that they had been recommended for promotion from BPS-20 to BPS-21 during the course of a meeting of the Central Selection Board-I held on 9-8-2002 but had been dropped for such promotion when the same Central Selection Board-I held its meeting on 6-9-2002 due to extraneous reasons. The above contention of the appellants is too serious and sensitive to be brushed aside merely on the point of limitation. It has been repeatedly held by the Honourable Supreme Court of Pakistan that litigants are not to be non-suited for technical reasons including limitation. Rather, the Honourable apex Court has always encouraged decision of cases on merits.
14. The learned counsel for the appellants, during arguments, has drawn our attention to the ruling of a Full Bench of the Honourable Supreme Court of Pakistan reported vide 2003 PLC (C. S.) 796 wherein it had been held that it lay within the discretion of the Service Tribunal to condone delay in the filing of appeals. The Honourable apex Court, making a reference to an earlier judgment reported vide 1999 SCMR 880 had quoted the same as under:- "The question as to condonation of delay being the discretion of the Tribunal, the findings cannot be set aside on technical ground alone."
' It was further held by the Honourable Suprethe Court of Pakistan as under:-- "Besides above references, decision of the cases on merit have always been encouraged instead of non-suiting the litigants for technical reasons including on limitation. In this behalf good number of precedents can be cited where question of limitation was considered sympathetically after taking into consideration the relevant facts... There are cases where even delay has been condoned by the Tribunal without receiving application from the appellant but no interference was, made by this Court on the premises that Service Tribunal had passed order in exercise of its discretionary powers."
15. The Honourable apex Court, on the same point, quoted further from another of its earlier judgment reported vide 1991 SCMR 1765 which read as under:-- ".... As regards, the question that no application for condonation of delay had been filed by the respondent, the matter being one of discretion, the finding of the Tribunal cannot be set aside on a technicality alone..."
16. It was finally held by the Honourable Supreme Court of Pakistan as under:--- "Thus, above discussion persuades us to hold that interference in the order of the Service Tribunal, condoning the delay in filing of appeals before it would not advance the cause of justice, therefore, contention of learned counsel for the appellant-Company in this behalf being devoid of force is accordingly repelled."
17. In view of the above-quoted landmark rulings of the Honourable apex Court, we condone the delay in filing of the instant appeals before us by the appellants. The matter is too serious and sensitive to be dismissed on the point of limitation.
18. The appellants have contended that they had been recommended for promotion from BPS-20 to BPS-21 during a meeting of the Central Selection Board held on 9-8-2002. In order to verify this assertion of the appellants, the respondents were directed to submit minutes of the meeting of the Central Selection Board held on 9-8-2002. The respondents have submitted combined minutes of the two Central Selection Board meeting held on 9-8-2002 and 6-9-2002. The Tribunal enquired from the respondents as to why minutes of two meetings of the Central Selection Board held on 9- 8-2002 and 6-9-2002 had been recorded together? To this, the departmental representative of respondent No,1 could not give any plausible explanation and merely repeated the statement that the minutes of the two meetings had been recorded electively. The appellants, however, vehemently asserted that collective recording of minutes of the two Central Selection Board meetings held with a time gap of nearly one month had been done in order to cover up the fact that the appellants had been approved for promotion in the first meeting of the C.S.B. Held on 9-8- 2002 whereas they had been dropped from the list of officers recommended for promotion in the second meeting of the Central Selection Board-I held on 6-9-2002, for extraneous considerations.
The joint recording of minutes of two meetings of the Central Selection Board separated by a period of not less than one month was certainly an unusual and extraordinary action on the part of respondent No,
1. Even if the business of the first meeting of the Central Selection Board held on 9- 8-2002 could not be completed on the same date and was required to be postponed to 6-9-2002, it was incumbent on the respondents to have recorded the proceedings of the two meetings separately. Moreover, they should have recorded the reasons for postponing the meeting to another date. The fact that we do not find any explanation whatsoever for collective recording of minutes of the two meetings referred to above, we are constrained to conclude that this omission on the part of respondent No,1 was either due to gross negligence and carelessness or was the outcome of some other extraneous consideration as alleged by the appellants. Ordinarily, such a serious lapse, deliberate or inadvertent, should have rendered the proceedings of the two meetings of the Central Selection Board held on 9-8-2002 and 6-9-2002 as null and void and would have been set aside by us altogether. However, we refrain from taking that action as a period of nearly four years has already elapsed between that event and now. Moreover, the setting aside of the proceedings of the two Central Section Board meetings referred to above at this stage, would create a number of administrative problems and complications. Some of the officers recommended for promotion from BPS-20 to BPS-21 as a result of the two Central Selection Board meetings referred to above have since been promoted to BPS-22 also. Some officers have since retired. Other intricate problems of inter se seniority would also be created if the proceedings of the said two Central Selection Board meetings were set aside at this point of time. However, it is directed that the matter of collective recording of the minutes of the two Central Selection Board meetings held so far apart, without a plausible justification for the same, would be placed before the competent authority i,e, Prime Minister of Pakistan by respondent No,1 with these observations of the Tribunal for his information and further action as deemed appropriate by him.
19. Going into merits of the appeals, we find that the appellants had contended that they had been superseded for promotion from BPS-20 to BPS-21 by the CSB meeting held on 6-9-2002. However, they had subsequently been recommended for promotion on the same record during the course of CSB meeting held on 18-6-2003. The respondents have denied this argument of the appellants and had stated that two of the appellants namely Maj. (R) Muhammad Habib Khan and Maj. (R)
Habibullah Khan Niazi had not been recommended for promotion by the CSB meeting held on 18- 6-2003. As a matter of fact, they had been approved for promotion by the competent authority itself. Moreover, during arguments on 8-3-2006, it was contended by the departmental representative of respondent No,1 that the Annual Confidential Reports of the appellants for the yeat 2002 had also been presented before the Central Selection Board meeting held on 18-6-2003 whereas this was not the case at the time of holding of the Central Selection Board meeting on 6- 9-2002. It was further contended that the Panel of officers, who had been considered in the Central Selection Board meeting held on 6-9-2002 was different than the Panel considered during the Central Selection Board meeting held on 18-6-2003. As such, the comparative merit of the appellants vis-a-vis the private respondents approved for promotion on 6-9-2002 and the Panel of officers considered for promotion on 18-6-2003, was bound to be different. Therefore, it was contended by respondent No,1 as well as by the private respondents that the appellants had been recommended for supersession on 6-9-2002 by the Central Selection Board on different record and comparative merit as compared to the one evaluated during the Central Selection Board meeting held on 18-6-2003.
20. As regard the contention of the respondents that there was change in the service record of the appellants as presented in the two Central Selection Board meetings held on 6-9-2002 and 18-6- 2003 by addition of one more A.C.R. (for the year 2002) we do not find that addition of one more A.C.R. To the service record as presented before Central Selection Board on 18-6-2003 had made any material difference to the respective merit of the appellants vis-a-vis the private respondents.
This argument of the respondents could have been of some significance if any of the appellants had been confirmed to have been awarded any adverse A.C.R. Prior to 6-9-2002. Had this been the case, the respondents could have justifiably asserted that the addition of a good A.C.R. Of the appellants had off set the adverse impact of such an adverse A.C.R. On the record of the appellants as it was considered on 6-9-2002. Since this was not the case, we find that this argument of the respondent was without any weight and the same is overruled.
21. The respondents argued that the private respondents were found to be better qualified for manning the post of Inspector-General of Police as they possessed a higher quality comparative merit as compared to the appellants. The respondents have argued that they had been found by the Central Selection Board to be better qualified to man the post of I.-G.P. On the basis of their possessing a better comparative merit as compared to the appellants. In order to evaluate this argument, we found it necessary to analyse the ingredients of which comparative merit is composed of. We examined the guidelines laid down for Departmental Promotion Committee/Central Selection Board and found the "Quality and Output of work" and "Integrity" marks calculated in accordance with the prescribed formula are required to be considered as a crucial factor in determining the comparative merit of an officer. In other words, a vital factor detecting the comparative merit of the officers concerned for promotion from BPS-20 to BPS-21 should be the marks obtained by each officer under the head of "Quality of Output of work" and under the head of "Integrity". Comparative merit is not an intangible which is invisible. On the contrary, comparative merit of each officer considered by a D.P.C. Or C.S.B. Should be clearly visible on their service record presented before such a forum. Otherwise, how would it be determined? It would be extremely pertinent to once more reproduced here the sterling observations of the Honourable Supreme Court of Pakistan contained in their Lordship's judgment reported vide 1999 SCMR 1605 as under:-- "If an officer is superseded, not only the reasons should be recorded but it should be supported by tangible material. The Central Selection Board while formulating its recommendations for consideration of the civil servant is to be guided primarily by the promotion policy, the A.C.Rs,, relevant instructions issued from time to time by the Establishment Division and of course, can take into consideration any material which may have bearing on the fitness and suitability of an officer for promotion."
22. Even a bare perusal of the above quoted observations of the Honourable apex Court is enough to determine what "comparative merit" is made of. It comprises tangible material such as the promotion policy, the A.C.R.'s relevant instructions issued from time to time by the Establishment Division and any material which may have bearing on the fitness, and suitability of an officer for promotion. Comparative merit is thus, very much clearly visible material, for all to see. As a matter of fact, the policy of qualification of the marks of an officer's A.C.Rs,, under various columns, was adopted to ensure an objective assessment of the comparative merit of all considered for promotion rather than a subjective evaluation, based on hearsay and gossip and personal experiences of C.S.B. Members. We may add that the performance of officers achieved by them in the promotion examination/training undertaken by them was another factor necessary to be considered to determine what comparative merit was.
23. Viewed at from the above criterion, we find that the appellants had secured far better marks in the columns relating to "Quality and Output of Work" as wall as "Integrity" (Moral/Intellectual) as compared to some of the officers recommended for promotion. Similarly, the appellants Overall Qualification (Q.A.) made on the basis of their A.C.Rs, was also far better as compared to some of the officers recommended for promotion. A few examples in this regard would be sufficient to prove our point. The tables given below would illustrate the point:--- {{TABLE}} S. No, Names Senio- Q.A. Q & O.P. Mdral Intellect Training/ Grading
1. Maj. (R) Sikandar Muhammad 02 76 82 93 93 Average
2. Maj. (R) Zia-ul-Hassan Khan 09 77 86 88 88 Outstanding
3. Mr. Asad Jahangir Khan 10 51 89 93 93 A-1
4. Maj. (R) Muhammad Akram 11 80 84 87 88 A-1
5. Mr. Akhtar Hayat 19 80 81 93 92 Outstanding
6. Mr. Farid Nawaz 20 77 77 87 87 A-1
7. Mr. Jahangir Mirza 22 79 86 94 92 A
8. Mr. Masood Ahmed 27 80 89 99 98 B+
9. Mr. Muhammad Riffat Pasha 29 79 91 91 95 DEE Very Good
10. Malik Naveed Khan 30 86 85 90 90 Last 70%
11. Mr. Irfan Mahmood 34 84 82 87 87 A-I
12. Syed Irshad Hussain 35 . 79 86 88 89 A-I
13. Mr. Tariq Pervaiz 36 86 92 95 94 A
14. Mr. Ahmed Naseem 39 86 91 92 92 B
15. Mr. Muhammad Yagoob 42 85 88 90 90 A
16. Dr. Muhammad Shoaib 43 90 99 98 94 Exempted
17. Mr. Muhammad Sharif Virk 44 79 90 92 92 Last 70%
18. Mr. Shaukat Javed 49 84 93 94 96 Very Good 1 Table-II OFFICERS RECOMMENDED FOR SUPERSESSION SI. No, Seniority No, Name of Officer Q.A. Q & O.P. Moral Intell Training/ Grading
1. 3 Maj. (R) Muhammad Habib Khan 83 89 91 92 Outstanding
2. 7 Maj. (R) Habibullah Khan Niazi 80 88 91 89 A-I
3. 13 Mr. Shahid Hussain Qureshi 83 84 85 85 A-1
4. 37 Mr. Azhar Hassan Nadeem 81 93 90 91 A-I {{TABLE}]
24. The appellant Major (R) Muhammad Habib Khan had obtained 83 marks in the column relating to his Overall Quantification (Q.A.). This Overall Quantification (Q.A.) in the case of Major (R)
Sikandar Muhammad Zai one of the officers recommended for promotion was 76 whereas that of another officer similarly recommended for promotion i,e, Mr. Farid Nawaz was 77, of Maj. (R)
Muhammad Akram Chaudhry was 80, of Mr. Jehangir Mirza also recommended for promotion was 79, of Mr. Muhammad Riffat Pasha also recommended for promotion was 79 and Syed Irshad Hussain recommended for promotion was 79.
25. In the column relating to "Quality and Output of Work" (Q&OP), the appellant Major (R)
Muhammad Habib Khan had obtained 89 marks as against the following officers recommended for promotion whose marks for the same column are given against their names below:--
(1) Major (R) Sikandar Muhammad Zai 82
(2) Major (R) Muhammad Akram Chaudhry 84
(3) Mr. Akhtar Hayat 81
(4) Mr. Farid Nawaz 77
(5) Mr. Jahangir Mirza 86
(6) Malik Naveed Khan 85
(7) Mr. Irfan Mahmood 82
(8) Syed Irshad Hussain 86
(9) Mr. Muhammad Yaqoob 88
26. The appellant Major (R) Muhammad Habib Khan had obtained 91 and 92 marks respectively in the column relating to his "Moral and Intellectual Integrity". As against that, the following officers recommended for promotion had obtained the marks under the same heads as mentioned against their names, in the same order:--
(1) Major (R) Muhammad Akram Chaudry, 87, 88
(2) Mr. Farid Nawaz 87, 87
(3) Mr. Irfan Mahmood 87, 87
(4) Syed Irshad Hussain 88, 89
(5) Mr. Muhammad Yaqoob 90, 90
27. In the case of appellant Major (R) Habib Ullah Khan Niazi his overall quantification under the heads (Q.A.) was 80 as compared to the following officers who had been recommended for promotion:--
(1) Major (R) Sikandar Muhammad Zai 76
(2) Mr. Farid Nawaz 77
(3) Mr. Jahangir Mirza 79
(4) Mr. Riffat Pasha 79
(5) Syed Irshad Hussain 79
28. In the column relating to "Quality and Output of Work", the appellant Major (R) Habib Ullah Khan Niazi had secured 88 marks as against the following officers recommended for promotion:--
(1) Major (R) Sikandar Muhammad Zai 82
(2) Major (R) Muhammad Akram Chaudhry 84
(3) Mr. Akhtar Hayat 81
(4) Mr. Farid Nawaz 77
(5) Jahangir Mirza 86
(6) Malik Naveed Khan 85
(7) Mr. Irfan Mahmood 82
(8) Syed Irshad Hussain 86
29. The appellant Major (R) Habib Ullah Khan Niazi had obtained 89 marks respectively in the column of "Moral and Intellectual Integrity" respectively as against the following officers who had been recommended for promotion:--
(1) Major (R) Muhammad Akram Chaudhry 87, 88
(2) Mr. FarId Nawaz 87, 87
(3) Mr. Irfan Mahmood 87, 87
30. The appellant Mr. Shahid Hassan Qureshi had obtained 83 marks under the head of his Overall Quantification (Q.A.) as against the following officers recommended for promotion:-
(1) Major (R) Sikandar Muhammad Zai 76
(2) Mr. Farid Nawaz 77
(3) Major (R) Muhammad Akram Chaudhry 80
(4) Mr. Jahangir Mirza 81
(5) Mr. Akhtar Hayat 80
(6) Syed Irshad Hussain 79
(7) Mr. Riffat Pasha 79
31. Under the head of "Quality and Output of Work" (Q&OP), the appellant Mr. Shahid Hassan Qureshi had obtained 84 marks as against the following officers recommended for promotion.
(1) Major (R) Sikandar Muhammad Zai 82
(2) Mr. Akhtar Hayat 81
(3) Mr. Farid Nawaz 77
(4) Mr. Irfan Mahmood 82
32. Under the head "Moral and Intellectual Integrity", the appellant Shahid Hassan Qureshi had obtained 85 and 85 marks, respectively. However, under these heads, the officers recommended for promotion were found to have secured better marks.
33. The appellant Mr. Azhar Hassan Nadeem had obtained 81 marks under the head of his "Overall Quantification" (Q.A.) as against the following officers recommended for promotion:-
(1) Major (R) Sikandar Muhammad Zai 77
(2) Major (R) Muhammad Akram Chaudhry 80
(3) Mr. Farid Nawaz 77
(4) Mr. Jahangir Mirza 79
(5) Mr. Muhammad Riffat Pasha 79
(6) Syed Irshad Hussain 79
34. Under the head of "Quality and Output of Work" (Q&OP), the appellant Mr. Azhar Hassan Nadeem had obtained 93 marks as against the following officers recommended for promotion:--
(1) Major (R) Sikandar Muhammad Zai 82
(2) Mr. Asad Jahangir Khan 89
(3) Major (R) Muhammad Akram Chaudhry 84 (4). Mr. Akhtar Hayat 81
(5) Mr. Farid Nawaz 77
(6) Mr. Jahangir Mirza 86
(7) Malik Naveed Khan 85
(8) Mr. Irfan Mahmood 82
(9) Syed Irshad Hussain 86
(10) Mr. Muhammad Yaqoob 88
35. The appellant Mr. Azhar Hassan Nadeem had obtained 90 and 91 marks respectively relating to his Moral and Intellectual Integrity respectively as against the following officers recommended for promotion:-
(1) Major (R) Muhammad Akram Chaudhry 87, 88
(2) Mr. Farid Nawaz 87, 87
(3) Mr. Irfan Mahmood 87, 87
(4) Syed Irshad Hussain 88, 89
36. The appellants were also found to have secured better grading in their promotion training courses as compared to some of the officers recommended for promotion. A glance at the relevant column of the table appended above would be enough to substantiate this point.
37. In addition to the above, we also called for and examined the synopsis of A.C.Rs, of the appellants since the year 1996 upto the year 2001 (last five years) to serem if any adverse remarks were contained in these A.C.Rs, which may have promoted the Central Selection Board to supersede them. However, our examination of the synopsis of A.C.Rs, in respect of the appellants reveals that the appellant Muhammad Habib Khan's A.C.R. For the year 1996 had been graded as "Outstanding",, of-1997 as 'Very Good', of 1998 and 1999 as 'Outstanding' while for the year 2001 it had been graded as "Very Good". The A.C.R. For the year 2000 had not been initiated as he had served under three different initiating officers, each of whom had served for less than 3 months in the organization due to which his A.C.Rs, in question could not be initiated. In all the A.C.Rs, he had been declared "fit for promotion".
38. As regards the appellant Mr. Habib Ullah Khan Niazi, his A.C.Rs, for the years 1996, 1997 and 1998 had been graded as "very good" whereas his A.C.R. For the year, 1999 had been graded as "outstanding". His A.C.R. For the year 2000 was "good" and for the year 2001, it was graded as "very good". He had been declared "fit for promotion" in all his A.C.Rs,
39. In the case of appellant Mr. Shahid Hasan Qureshi, his A.C.R. For the year 1996 was not initiated due to reason that either the period served under a reporting officer was less than 3 months or the report was not required due to his being under training in the Pakistan Administrative Staff College at that time. His A.C.R. For the year 1997 was graded as "Very Good" whereas for the years 1998 and 1999 it had been graded as "Outstanding". It had been graded as "very good" for the year 2000. It was graded as "very good" and "outstanding" for the year 2001. He was declared "fit for promotion" in all his A.C.Rs,
40. As regards the appellant Mr. Azhar Hassan Nadeem, his A.C.R. For the year 1996 was graded as "Outstanding", for the year 1997 it was "Good" for the year 1998 it was "Very Good", for 1999 it was "Very Good", for the year 2000 it was "Good" and for the year 2001 it was graded as "Good". He had been declared "fit for promotion" in all his A.C.Rs,
41. The above details have been mentioned to point out that the appellants who had been superseded by the Central Selection Board meeting held on 6-9-2002 had secured better marks under all the relevant heads of their A.C.Rs, than some of the officers who had been recommended for promotion, especially under the vital columns "Quality and Output of Work" and "Integrity"
(Moral/Intellectual) which according to the promotion policy were required to be considered as crucial factors in determining the comparative merit of an officer. Their A.C.Rs, also depicted them as "outstanding" or "very good" officers who were assessed as "fit for promotion" from the rank of Deputy Inspector-General of Police to Inspector-General of Police by various very senior officers who had occasion to watch their performance from very close quarters. We fail to understand as to how the Central Selection Board had determined the comparative merit of some of the officers recommended for promotion to be better than the comparative merit of the appellants. As a matter of fact, the Central Selection Board in their meeting on 6-9-2002 were conscious of the above fact which is evident from the following observation contained at para.10 of the minutes of the meeting held on 6-9-2002 which is reproduced below:-- "The following officers who fulfilled the prescribed qualifications for promotion and some of whom had higher quantification of A.C.Rs, than those of officers recommended for promotion, were recommended for supersession because their juniors were considered to be better qualified for manning the post of I.-G.P. And, therefore, were recommended in preference to them."
42. The above observation of the Central Selection Board is clear indication that despite the appellants having secured much better marks under the columns of "Quality and Output of Work".
"Integrity" (Moral/Intellectual) and "Overall Quantification of A.C.Rs," (Q.A.), they, were still arbitrarily recommended for supersession, for reasons known only to the Central Selection Board.
43. During arguments, it was contended by the respondents that the Tribunal had no jurisdiction under the law to look into the matter of fitness for promotion. Ordinarily, this argument would be valid and the Tribunal would not look into the matter of fitness for promotion. However, it has been held by the Honourable Supreme Court of Pakistan that the Tribunal could examine the question of fitness for promotion if it was claimed before it on the strength of arguments that an eligible officer had been bypassed for promotion in violation of the promotion policy etc. In this connection we rely on a judgment of the Honourable Supreme Court of Pakistan reported vide 2002 SCMR 1056.
The relevant portion in reproduced below:-- "(6) As far as fitness of a civil servant to hold a next higher post is concerned it depends 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 invoice 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. Relevant para. Therefrom is reproduced hereinbelow:-- "However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed. If, therefore, either all the necessary material is not put up before the Authority deliberating upon the matter of appointment or promotion or obviously misleading material is put up or manifest acts of commission or omission, as regards vital data, are involved the subjective exercise may not qualifying as such and may irretrievably be conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to considerations of eligibility than of fitness and, all things being equal, be open for scrutiny before a legal forum. In the instant proceedings, the objective factors were the working paper etc. And the recommendation of the Board. On such material, another had to determine the fitness and while such determination may be beyond judicial scrutiny, the necessary steps leading to the same i,e, the objective factors may not always be so. See inter alia, Muhammad Anwar v. Secretary Establishment Division PLD 1992 SC 144, Federation of Pakistan v. Muhammad Qaiser Hayat Khan 1994 SCMR 544, Walayat Ali Mir v.
Pakistan International -Airlines 1995 SCMR 650, Secretary, Narcotics Control Division v. Muhammad Sajjad 1997 PLC (C.S.) 167, Pakistan Broadcasting Corporation v. Nasiruddin 1997 PLC (C.S.) 931 and- S.T. Rehman v. Government of Pakistan 1997 PLC (C.S.) 1207."
44. The above ruling of the Honourable Supreme Court of Pakistan leaves no doubt that the Tribunal was fully competent to examine the question of fitness for promotion, if, as in the instant appeals, it was alleged that the appellants had been bypassed/superseded in violation of the promotion policy in question.
45. In their objections, the respondents had also stated that the appellant major (R) Muhammad Habib and Major (R) Habibullah Khar Niazi had been recommended for supersession during the C.S.B. Meeting held on 18-6-2003 also. This objection of the respondents does not carry any weight as the above recommendation for supersession a the two officers had not been approved by the competent authority i,e, the Prime Minister of Pakistan. Moreover, the appellants had agitated the matter of their illegal supersession by the C.S.B. Meeting held on 6-9-2002 which issue was primarily, the subject-matter of the appeals filed by them before this Tribunal. Hence, this objection of the respondents is dismissed, being devoid of merit.
46. In view of the foregoing discussion, we accept the contention of the appellants that they had been superseded in an arbitrary manner and that they had been subsequently promoted on more or less the same service record. By examining the Minutes and the Working Paper for the Central Selection Board meeting held on 6-9-2002, we find that the appellants had possessed better comparative merit as compared to some of the officers recommended for promotion. Even the Central Selection Board meeting held on 6-9-2002, as already pointed out elsewhere in this judgment, was also aware of this fact and had stated so in black and white that the appellants had higher quantification of A.C.Rs, than those officers recommended for promotion. It was indeed an arbitrary exercise of authority on the part of the Central Selection Board who had superseded the appellants for promotion without finding anything adverse in their service record and as pointed out by us in the preceding paragraphs, by failing to examine and evaluate that the appellants definitely enjoyed and possessed better comparative merit vis-a-vis some of the officers recommended for promotion when viewed in the context of quantification of marks achieved in the Overall Quantification of A.C.Rs, (Q.A.) as well as in the columns relating to "Quality and Output of Work" and "Integrity" (Moral as well as Intellectual). The Central Selection Board failed to appreciate that the appellants had scored much better grades in the mandatory promotion training at the Pakistan Administration Staff College as compared to some of the officers recommended by them for promotion. Under the circumstances, we find that the appellants had been superseded illegally and in violation of the promotion policy during the course of the Central Selection Board meeting held on 6-9-2002. Ordinarily, we would have set aside the proceedings of the Central Selection Board meeting held on 6-9-2002 due to tie serious acts of omission and commission discussed above and for the gross lapse of respondent No,1 for their failure to ensure separate recording of minutes of the two C.S.B. Meetings held on 9-8-2002 and 6-9-2002 (see details in para.18 ante).
However, we are refraining from taking the said action as it would open up a Pandora's Box at this belated' stage and create other serious administrative complications (discussed in detail in para.18 ante). But it does not mean that the wrong done to the appellants is not to be rectified and they are left to suffer due to no fault on their part. As such, we convert the appellants' supersession into deferment from the same date i,e, 6-9-2002. The respondents are further directed to antedate the promotion of the appellants accordingly and restore their original seniority as it existed prior to 6- 9-2002. As a result of this action, the appellants would be entitled to all the back-benefits.
47. There shall be no order as to costs. Parties be informed.