Rashid Mahmood Ansari, Member.--By this judgment in Appeal No, 1293(R)CS/2003, we intend to dispose of both the captioned appeals since both involve similar questions of law and facts.
2. In Appeal No, 1293(R)CS/2003, the appellant has impugned the recommendations dated 4.7.2003 of the Central Selection Board and the subsequent orders dated 13.8.2003 and 18.8.2003 whereby officers, namely, Mr. Muzzafar Alam and Mr. Abdus Salam Arshad, who were junior to the appellant were promoted as Chief Engineers (BS-20) and the appellant was superseded. His departmental representation dated 30.8.2003 was rejected vide appellate order dated 23.10.2003.
3. Briefly stated, the facts of the case are, that the appellant was appointed as Assistant Engineer in the respondent-department in 1968. He was promoted as XEN (BS-18) in 1976 and as Superintending Engineer (BS-19) in 1986. He claims to have an unblemished service record and had earned good/very good ACRs, except the ACR for 2000 which was average and also contained some adverse remarks. He filed an Appeal (No, 523(R)CS/2001) in this Tribunal against the adverse remarks which consequent to the judgment dated 9.9.2002, stood expunged. However the overall grading of "average" remained unchanged.
4. On 4.7.2003 a meeting of the Central Selection Board was held to consider promotions to the posts of Chief Engineers (BS-20). The appellant who was at the top of the seniority list was considered alongwith a number of officers junior to him. The Selection Board recommended three officers namely Mr. Abdus Salam Arshad, Mr. Muhammad Muzzafar Alam and Ch. Muhmmad Yousaf for promotion whereas the appellants (Mr. Muhammad Younas and Mr. Ajaz Oslum Khaleel) alongwith others were recommended for supersession. It so happened that Ch. Muhammad Yousaf died on 18.7.2003 and the remaining two officers i.e Mr. Abdus Salam Arshad and Mr. Muhammad Muzzafar Alam were promoted in BS-20 as Chief Engineers vide orders date 18.8.2003 and 13.8.2003 respectively. Against his supersession, the appellant submitted a departmental representation dated 30.8.2003 which was rejected vide appellate order dated 23.10.2003 in terms of proviso to Section 22(2) of the Civil Servants Act, 1973 and Rules 2(2) and 4(1) of the Civil Servants (Appeals) Rules, 1977. Hence the instant appeal.
5. Rao Fazal Khan Akhtar, Advocate argued on behalf of appellants. He submitted that the appellant's quantified score for overall assessment was 75 which was much above the eligibility threshold of 70 marks and he fulfilled the criteria laid down in the Promotion Policy which entitled him to be promoted but he was superseded. According to him the appellant had a sealed right to challenge it in the light of the ruling of Hon'ble Supreme Court of Pakistan in the case reported as PLD 2003 Supreme Court 175 in which it was held that where the Rules, Regulations and Policy had been framed for regulating appointment and promotion, any breach or deviation from them for mala fide reason or due to arbitrary act of Competent Authority, would entitle an aggrieved person to challenge the same. Also relying on the case reported as 2006 SCMR 1240 the learned counsel contended that the respondent-department had no right to effect any change in the Promotion Policy until the same was approved by the Establishment Division. He further submitted that even if the junior officers have had higher quantified score than the appellant, they could not be given preference over the appellant and relied on the rulings of this Tribunal in the cases reported as 1994 PLC (CS) 1055, 2004 PLC (CS) 1520 and 2006 PLC (CS) 1081.
6. Rao Fazal Khan Akhtar further argued that the appellant was denied the right of reconsideration for promotion, even though vacancies had arisen again due to the demise of Ch. Muhammad Yousaf on 18.7.2003 even before his promotion could be notified. Also, consequent to the retirement of Mr. Muzzafar Alam on 17.8.2003 and of Mr. Abdus Salam Arshad on 10.11.2004 two more vacancies had occurred.
7. Mr. Haider Hussain, Advocate also argued on behalf of both the appellants. At the outset he stated that the jurisdiction of the Tribunal can not be barred even in cases involving the question of the fitness for promotion where the right to consider civil servant for promotion had been by passed in violation of promotion policy as held by the Hon'ble Supreme Court of Pakistan in the case reported as PLJ 2002 SC 1165. He also contended that the appellants had been illegally denied the promotion which they otherwise deserved on merit and in such a case they can not be denied the benefits even after retirement and placed reliance on the case reported as 2002 SCMR 911. He further argued that the Selection Board's recommendation to supersede the appellants was not based on tangible evidence and therefore it cannot be said that cases of the appellants were considered in accordance with law and relied on the ruling of the Hon'ble Lahore High Court in the case reported as 2004 TD (Service)
49. As regards the question of physical infirmity of Mr. Ajaz Oslum Khaleel, the learned counsel stated that the Medical Board had declared him fit for promotion. In this regard relying on the ruling of the Hon'ble Lahore High Court in the case reported as 2003 PLC (CS) 1161, the learned counsel argued that absolute discretion of the Government, even if provided in the rules, the decision to finally accept or reject a candidate was to be taken in a just, fair, and proper manner. He further argued that being engineers, the appellants were professionals and if their service record was satisfactory then nothing could stand in the way of their promotion.
8. The respondents have vehemently opposed the appeal in their objections. Mr. Aslam Uns, Advocate argued on behalf of the respondents. He submitted that both the appellants, Mr. Muhammad Younas and Mr. Ajaz Oslum Khaleel had retired from service on reaching the age of superannuation on 28.8.2004 and 27.8.2006 ,respectively and now they could not be granted promotion in terms of the law laid down by the apex Court in the case reported as 2003 PLC (CS)
212 in which it was held that promotion from back date to the retired civil servant can not be granted. He also contended that posts in BS-19 and above are selection posts and promotion to these posts are determined on the basis of merit and seniority was of secondary importance.
9. We have heard the learned counsel for the appellant and the respondents. The record has also been perused.
10.It would be apt to mention here that as explicitly stated in the Promotion Policy (SI. 153, Page 228, ESTACODE 2000), confidential reports are not the sole criterion for promotion to selection posts.
The obvious corollary is that the tangible criteria based on the quantified score can not serve as the sole criteria for determining the fitness for promotion. The tangible criteria nevertheless plays a greater role in determining the eligibility for promotion. On the other hand, for the purpose of determining fitness for promotion there are certain intangible factors also which can not be ignored. Some factors in the confidential reports like overall assessment, quality & output of work etc can be quantified and given a tangible form. On the other hand there are some intangible factors, like academic qualifications, the experience possessed by a civil servant and its relevance to the post to which promotion is being made, and the comments including pen-picture given in the confidential reports by the reporting officer/countersigning officer are no less important in the process of determination of fitness for promotion. Also, Integrity of a civil servant is crucially important in regard to his fitness for promotion. In our opinion integrity and reputation are two faces of the same coin and therefore in this process the competent authority can not shut its eyes to the integrity and reputation of an officer while considering the question of fitness for his promotion. In short, in fitness for promotion, both tangible and intangible factors are to be taken into consideration. If based on tangible factors alone, the determination of fitness for promotion were to become more or less a mechanical exercise which can be carried out by a computer instead of a DPC/Selection Board/competent authority. It is on account of the intangible factors in addition to the tangible factors, that the determination of fitness for promotion is termed as the subjective evaluation based on objective criteria.
11. As regards the present case, a panel of 8 officers was considered by the Selection Board to fill in 3 posts of Chief Engineers. Their quantified score under various heads of the ACRs which was considered by-the Selection Board is given in the following matrix: S.No, Name of OfficerO.A.Q&OPMoralIntel
1. Mr. Muhammad Younas 75 8591 92 2.Mr. Ajaz Oslum Khaleel 72 7790 88
3. Mr. Abdus Salam Arshad 76 8797 97
4. Mr. Bashir Ahmed Malik 75 8393 96
5. Mr. Syed Sarwar Shah 57 7085 85
6. Mr. M. Muzaffar Alam 79 8995 95 7.Mr. Muhammad Yousaf Ch.86 94100 100
8. Mr. Anwar-ul-Haq 67 8298 98 It is significant that the Selection Board had held its meeting on 4.7.2003 and therefore on the basis of format of ACRs in vogue at the time, had considered the quantified score under various heads as shown in the matrix above. However it was after 19.12.2003, that with the change in the format of the ACRs, the quantified score under the head of overall assessment only assumed pivotal importance.
12. The Selection Board had recommended Mr. Abdus Salam Arshad, Mr. Muzaffar Alam and Ch. Muhammad Yousaf for promotion. It would be seen from the matrix given in Para 10 above that the quantified score of all the three officers was more than the two appellants under every head. It therefore can not be denied that the tangible service record of the officers recommended for promotion was much better than that of the appellants. Furthermore there was nothing adverse in the intangible service record of the recommended. Obviously the aforementioned three officers merited recommendation by the Central Selection Board.
13.It is significant that consequent to the vacancies which occurred due to the demise of Ch. Muhammad Yousaf on 18.7.2003 and the subsequent retirement of Mr. Muzaffar Alam on 17.8.2003 and of Abdus Salam Arshad on 10.11.2004, it was possible to consider the appellants again only after earning one more ACR i,e, ACR 2003 as was intimated by the Establishment Division vide letter dated 15.11.2003. The respondents have stated in their objections in regard to Ground No, 7 that the promotion case containing names of six SEs including the name of the appellant was processed vide E in C's Branch Letter No, 1579/8/11/EID-I dated. 9.1.2004 against two vacant posts of Chief Engineers and was forwarded to the Establishment Division for placing the case before the Central Selection Board. In any case the appellant's promotion did not materialise before his retirement. As regards the question of physical infirmity of Mr. Ajaz Oslum Khaleel standing in the way of his promotion, the Central Selection Board had recommended him for supersession not because of his physical infirmity but because he did not meet the criteria of excellence and comparative merit and his juniors were found to be better qualified.
14.The case of the appellants is that in matter of promotion, seniority can not be ignored and the appellants deserved to be promoted ahead of their juniors since both of them were the senior- most officers in the panel which was considered by the Selection Board and they also fulfilled the criteria as laid down in the Promotion Policy. The appellant's contention is that it is mandatory that seniority of a civil servant should be assigned due weightage even for selection posts. Referring to the instructions of the Establishment Division contained in Page 227 (Sl. No, 151) of the ESTACODE 2000, Mr. Haider Hussain, Advocate had contended that the importance of seniority is such that even if a junior person completes the length of service whereas the senior has not done prescribed service, then the junior person should not be considered for promotion even for a selection post.
There can be no cavil about the fact that seniority cannot be ignored in considering promotion to both the selection posts as well non-selection posts. In fact the criteria of promotion to a non- selection post, is determined on seniority-cum-fitness basis. On the other hand in the case of selection posts, seniority matters but not to the exclusion of merit. In the case of promotion to a selection post, seniority can be the deciding factor only if other things are equal. In the case of the appellant, his service record was not as good as that of the officers recommended for promotion.
15.According to the Promotion Policy (Sl. No, 153, page 228, ESTACODE 2000), for promotion in BS- 20, a panel of officers ESTACODE three officers for each vacancy is required to be considered by the Selection Board. For selection posts, till 19.12.2003 entries under overall assessment, quality and output of work and integrity in all the ACRS of the eligible candidates were quantified according to the given formula and these marks played a crucial factor in determining the comparative merit of officers for promotion to selection posts. The qualification formula is intended to structure the discretion of the Selection Board to ensure just and fair treatment to the candidates for promotion.
It was in accordance with these instructions that the panel of officers was considered by the Selection Board on 4.7.2003. This panel was based on the seniority of eligible candidates and the contention of the appellant that seniority of the appellants was ignored is without foundation. The fact of the matter is that on the basis of seniority, the names of both the appellants were placed at the top of the panel. However if the contention of the appellant is that since they fulfilled the eligibility criteria, the Selection Board should not have considered other officers junior to them, then it would in effect mean promotion on the basis of seniority-cum-fitness and not merit. That would have been in contravention of the Promotion Policy which explicitly stipulates that promotion to selection posts would be based on merit. We therefore find no force in the contention of the appellants that on the basis of seniority, they had a prior claim to promotion. The fact remains that by seniority, they were placed at the top of the panel and their service record was examined before others but the criteria of promotion on merit as stipulated in Promotion Policy made it incumbent on the Selection Board to consider the service record of other eligible officers also. We are of the considered opinion that no violation of the Promotion Policy had occurred in the supersession of the appellants.
16.In view of the foregoing, the appeal is dismissed.
17.This judgment will, mutatis mutandis, apply to Appeal No, 1294(R)CS/2003 also.
18.No order as to costs. Parties be informed.
Sd/- Member 19.Mr. Justice (R) Tanvir Bashir Ansari, Chairman.--I have had the privilege of going through the judgment rendered by my learned brother Mr. Rashid Mahmood Ansari, Member. It is a noteworthy exposition of law as it relates to the criteria to determine the eligibility and fitness of a person for promotion to the next higher grade. The learned Member has noted that the criteria for promotion in non-selection post is determined on the basis of seniority-cum-fitness, while in the case of selection posts seniority matters but not to the exclusion of merit. In this context he has ably laid down the rule of the tangible and intangible factors which together form the basis of quantification. It means the sum total of all qualities such as intelligence, integrity, hard work, leadership, output, time management, obedience and so on that are to be considered as attributes of an official. The quantification score however, is not the only factor to be considered for promotion to a selection or non-selection post. Seniority is an indispensable feature which under lines all promotions. This important factor is not quantified. It falls neither in the tangibles nor intangibles. Thus when we talk of merit with regard to a selection post we do not consider seniority alone or excellence depicted in the quantification score in isolation. "Merit" for the purpose of promotion to a selection post, actually means the quantification based upon the combined effect of seniority and quantification. None can be sacrificed at the altar of the other. It is this judicious manner and approach according to which the discretion of the CSB or DPC must be structured.
20.I however, find myself in respectful disagreement with my learned brother that merely placing the names of both the appellants at the top of the panel fulfilled the requirement of active consideration of their cases. For promotion to selections posts, merit of the respective candidates has to be assessed after determining the weightage which has to be given to seniority in selecting or not selecting a candidate for promotion. Merely placing the senior candidates ahead of the others on the panel but not assessing the intrinsic value of seniority and its effect upon the out come shall give rise to the mechanical exercise which has so strongly been shunned by my learned brother.
21.This inherent attribute of seniority has been recognized in promotion Policy of various establishments. For instance in the promotion Policy framed by WAPDA on 18,05.2002 it is stipulated that the senior officer qualifying departmental examination within three consecutive chances and promoted later than his juniors would retain his inter se seniority. A reference can also be made to Sl. No, 151 Page 227 of the ESTACODE 2000 to the effect that even where a senior person has not done prescribed minimum length of service, the junior as a rule, should not be considered even if he fulfils the prescribed length of service condition. Under Sl. No, 151(2), even for "selection" posts, the persons have to be considered in the order of their seniority. As stated supra this consideration in the order of seniority must be a meaningful consideration.
22.In the present case, when the Central Selection Board met on 04.07.2003, the appellants' claim based upon seniority with eligibility threshold was pitted against the superior quantification score of the recommendees of the Selection Board. The discretion to be made in such matters has to be exercised judiciously with utmost care and caution. Which of the two factors, seniority or excellence is to take precedence has to be decided according to the realization of the degree of preponderance and prevalence of one over the other. In some cases the difference between the quantified merit of a junior officer may be so substantial that it may be considered to out weigh seniority while in others seniority might be given more weightage when compared with more quantified score. As observed hereinbefore seniority is an unquantifiable factor. But its inherent value can be ascertained from length of service, the maintenance of performance consistently over that period, the legitimate expectancy for improvement in the prospects of service and last but the least proximity of superannuation. Having said so, when the case in hand is viewed in this context one feels satisfied that the decision of the CSB in recommending the promotion of appellants' juniors on 04.07.2003 does not suffer from any infirmity and does not offend against the promotion Policy as explained by my learned brother as well as hereinbefore pointed out. It is also admitted that the appellants have since retired from service. Promotion as claimed did not materialise before their retirement. The appellants cannot derive any benefit from the dictum laid down in 2002 SCMR 911 Province of Sindh Vs. Malik Ghulam Hussain, as no claim of the appellants had matured into a right before their retirement. Resultantly, there is no merit in the appeal which is dismissed.