Facts leading to this writ petition are that the petitioner being eligible for promotion to BS-20 in the Police Group of Pakistan was considered by the Central Selection Board in its meeting held on 3.10.2000, the petitioner's juniors were promoted but the promotion of the petitioner was withheld who approached Federal Service Tribunal in Appeal No, 307-LCS/2001. This appeal was allowed through judgment dated 9.8.2004 in the following terms: "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 03.1012000. We are cognizant of the fact that we have issued directions for his promotion from a specified dated as in our view his super cession was not legally sustainable ab-initio as he meet all the requirements of the Promotion Policy and instructions/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 03.10.2000 i,e, the date on which his juniors were promoted."
2. The judgment of the Federal Service Tribunal was challenged before the Hon'ble Supreme Court of Pakistan in Civil Appeal No, 426/2005 which was decided through judgment dated 7.3.2007 and the petitioner's promotion case was sent back to the Central Selection Board for reconsidering within a period of three months after receipt of the copy of the judgment and it was also directed by the apex Court that; "the Central Selection Board after having taking into consideration the case of the respondent, if did not agree to promote him shall convey reasons of the same to him as well so he may make improvement if need be, enabling him self for considering his case for promotion in future."
3. After the directions issued by the Hon'ble Supreme Court of Pakistan the petitioner's case was reconsidered by the CSB in its meeting held on 11.2.2008 but the petitioner was informed in the following terms: The Board wanted to further watch the performance of the officer."
4. After having received the decision of the CSB the petitioner approached this Court through WP.No, 3175/2008, which was allowed through order, dated 8.5.2008 and the concluding para is reproduced as under: The case is remanded to the Secretary Establishment Division, Islamabad with a direction to place the same before the Central Selection Board in its' forthcoming meeting for reconsideration of the petitioner's case afresh for promotion to BS-20, in the light of observations recorded in this judgment and particularly the promotion case be considered w,e,f, year 2000, when the colleagues of the petitioner were promoted and the petitioner was wrongly superceded.
11. If Central Selection Board is not holding it's meeting in the next two months then in the circumstances of the case the petitioner's promotion case be finalized by circulation. The entire exercise be completed within a period of two months from today positively under intimation to the Deputy Registrar (Judi.) of this Court. The writ petition is allowed in the above term."
5. The learned counsel for the petitioner submits that after the judgment of this Court dated 8.5.2008 the petitioner was again non-suited and the petitioner's juniors were promoted which has caused a serious prejudice and prayed that petitioner he promoted on the basis of his excellent record which is much better against those who have been promoted through CSB's recommendations dated 18.7.2008.
6. The case was fixed for preliminary hearing on 23.7.2008, when the learned Deputy Attorney General for Pakistan was called and directed to requisition the record of the Central Selection Board pertaining to the impugned controversy, comments could not be filed even on 19.8.2008, 26.8.2008, 09.9.2008 arid 17.9.2008, however, on 18.9.2008 Syed Asghar Ali, Joint Secretary, Establishment Division, Islamabad appeared in Court and submitted comments and undertook to produce the minutes of the CSB on 22.9.2008. Today the Section Officer of the Establishment Division, Islamabad appeared on behalf of respondents and produced the minutes of the CSB, which reveals that the CSB repeated the same wording against the petitioner's name, i,e, Board wants to watch further performance of the officer.
7. On 26.8.2008 and 17.9.2008 the learned Deputy Attorney General for Pakistan argued the case at length on the point of maintainability of writ petition however, today the Section Officer have produced the record of the Central Selection Board and submits that petitioner's case shall be reconsidered in the next meeting also.
8. Arguments heard; available record perused.
9. So far the question of maintainability is concerned suffice it to refer the order/judgment passed by this Court in case of the petitioner dated 8.5.2008 (W.P. No, 3175/2008) and there is no need to repeat the findings on this point, hence the contentions of the learned Deputy Attorney General for Pakistan in respect of maintainability of writ petition are repelled.
So far the merit of the case is concerned, some aspects are undisputed even today and those are:- -
(i) The petitioner joined Police Service of Pakistan after qualifying the CSS Examination held in 1977.
(ii) Served in various assignments in NWFP, Sindh, Punjab and Federal Government as Assistant Superintendent of Police/Superintendent of Police and also as Senior Superintendent of Police.
(iii) The petitioner was promoted to BS-18 in 1983 and promoted to BS-19 in the year 1997. (iv) The petitioner held the field appointments as SP Faisalabad and Bhakkar.
(v) Presently serving as AIG Training for the last more than four years.
(vi) His entire service record is unblemished, neither any penalty (minor or major) is available in his record nor any adverse remark is communicated to him till to date.
(vii) During his recent posting since 2003, no complaint whatsoever is made against him from any quarter and even today the Section Officer confirms that the petitioner's record is up to the mark/unblemished.
(viii) The petitioner was superseded in its meeting held on 22.6.2000 by the CSB which was declared illegal by the Federal Service Tribunal through its judgment dated 9.8.2004, however, the Hon'ble Supreme Court of Pakistan referred back the petitioner's case to CSB for reconsideration with a specific direction that if the CSB finds something adverse against the petitioner, the reasons for non-suiting him must be conveyed to the petitioner meaning thereby that the super session was remained converted into Deferment even by the apex Court.
(ix)The petitioner's case was reconsidered by the CSB in compliance to the apex Court's directions but the judgment of the Hon'ble Supreme Court of Pakistan was not complied with in letter and spirit i,e, no reasons whatsoever was conveyed to the petitioner meaning thereby that practically the departmental Authorities committed a contempt by not complying with the directions of the Hon'ble Supreme Court of Pakistan in letter and spirit.
10. The petitioner field writ petition, which was decided on 8.5.2008 and the CSB was directed to reconsider his case within a period of two months, the petitioner's case was reconsidered but in a matter of routine and this consideration cannot be termed a valid consideration because the outcome of the consideration clearly reveals that CSB just repeated its observations/findings, which were made after remand by the Hon'ble Supreme Court of Pakistan.
11.When these factual aspects are evident from the record, no other conclusion can be drawn except that the CSB is determined not to recommend the petitioner for promotion despite the fact that their action is based on no reason at all.
12. There are certain facts which are to be resolved through this writ petition and those are that not only the present petitioner but a generation of civil servants has suffered from the exploitation of law in providing a mechanism whereby a transparent system of checking the fitness of a civil servant to be promoted could be brought under scrutiny or judicial check.
13. The petitioner in the instant case has become eligible for promotion since 20(H) and every time his case is presented to the CSB, he is superseded or deferred on flimsy grounds and stated to be not fit for promotion as of yet. When such a situation arises where a civil servant is sure to think that he is fully eligible as well as fit for promotion then can he approach a judicial forum where his grievance may be redressed and he be allowed an opportunity to show that he is in fact fit for promotion to the higher grade?
14. The answer to this question is; firstly a civil servant can approach the departmental Authorities and further on the Service Tribunal, in case where he challenges his eligibility to be promoted, the civil servant however cannot challenge the assessm ent of the departmental Authorities on any forum where the question as to his fitness is concerned and to be promoted a civil servant has to be both eligible and fit for promotion.
15.The main impediments in way of scrutinizing process of assessing fitness of a civil servant by the departmental Authorities i,e, the Central Selection Board/DPC is found in three main statutory enactments relating to civil servants in Pakistan i,e,; Section 22 of the Civil Servants Act, 1973. Section 4(1)(B) of Service Tribunals Act, 1973.
Provisions of the Civil Service Appeal Rules, 1977.
16.In the first provision of law the most important Part is the proviso, which specifically bars the right to representation in matters relating to the determination of fitness of a civil servant to hold a particular post or be promoted to a higher post or grade. Consequently, an aggrieved civil servant has absolutely no forum whatsoever where he may complain of any injustice or discrimination in matters relating to or determining his fitness for a job or promotion. 17.The only remedy available to such a civil servant is to allege illegality or malafide of the concerned Authorities in determining his fitness but proving such malafide or illegality is undoubtedly a very hard task.
18.The other statute mentioned above also have similar provisions which bar any Appeal, Review or representation in matters relating to determination of fitness of a civil servant thereby leaving civil servant strained in the middle of no where without any remedy whatsoever and at the mercy of Central Selection Board/DPC.
19. The apex Court had a regular view on the matter and has held in a number of cases that although promotion is not a vested right of a civil servant, however, where the issue is regulated by Rules or Policy then these Rules and Policies should be followed in letter and spirit and any deviation from those Rules/Policy may bring the department under scrutiny.
20. It has further gone on to state in a case reported as 1990 SCM R 999 that malafide action of the Authority would tantamount to a breach of terms and conditions of Service of the aggrieved civil servant and that in case of promotion such malafide action can be looked into and if established, appropriate relief may be given.
21. Even though the apex Court has given some respite to civil servant, who only where they can establish that the Authority has acted malafidely or in contravention to any Rules or Policy, but there are other numerous situations where civil servant can be deprived of promotion without any proof of malafide and without contravening any Rules or Policy for example in the present case where it might chose not to hold present petitioner fit for any reason without being tainted with malafide intention and may defer such a person like petitioner more than once. In this case where the civil servant is eligible and has no adverse service record established he may also be deprived of promotion and thereby discouraged in working harder for getting promotion like the petitioner.
22. In such circumstances, the Courts uptil now have only issued directions to the concerned Authorities to reconsider the case of the civil servant in a fair and transparent manner without any hint of malafide.
23.In my view the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 has a very wide range of powers, thus it is held that the scope of the powers cannot be limited to just issuing a directions to the concerned Authorities to reconsider a civil servant in a transparent manner as according to my understanding the scope of powers entrusted upon the High Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 cannot only direct to require Government Authorities/Authorities in doing acts according to law and moreover required them to operate in a fair manner in accordance with fundamental rights and in accordance with law specially where no alternate remedy is available to the aggrieved party. The essence of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 is Judicial Review of acts of Public Functionaries and can be invoked only by such person who has no other remedy available in law.
24. The present petitioner in the instant writ petition is strained in the middle of two forums.
25. Firstly the Service Tribunal, where he cannot go for any appeal, review or representation by virtue of the proviso contained in Section 22 of the act mentioned above and; 26.Secondly the High Court which tends to be limited albeit unjustifiably in power to just issue a direction and not make an order for promotion because the final Authority determining the fitness of a civil servant to hold a particular post should always be the department itself which has a better understanding of the concerned civil servant as contended by the departmental Authorities.
27. In my view the High Court can interfere in the process of promotion and make a final order as to promotion of a civil servant because the High Court can similarly be assigned the task of evaluating the fitness of a civil servant to be promoted to a higher grade but by looking at the service history/record of the civil servants. At the end of the day the departmental promotion committee or the CSB also objectively evaluates the record of civil servant, which can equally be done by the higher Courts as well. However, a final order determining the fitness of a civil servant to be promoted to a higher grade should only be given where a' civil servant, upon record, has been unjustifiably deprived of promotion even though he is fully eligible and on the basis of his record, fully fit for promotion. In this way, the very old and time wasting lacuna in the law can be cured if the High Court exercises its Constitutional powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 in determining the fitness of a civil servant upon his record until legislature amends the law in any other way.
28. Once again the determination fitness of civil servant shall remain the sole domain of the CSB/departmental Authorities but the High Court would only come into play where the departmental Authorities/CSB is complained of either malafide action or where it is complained of undue delaying the case of a civil servant with no reason whatsoever. This would not only provide a remedy to a number of civil servants but would also save their time in going from pillar to post in search of a remedy.
29. In the present case from all angles if it is examined, it is held that the petitioner's entire service record is unblemished, having no penalty whatsoever even a minor one throughout his service record, despite clear directions by the apex Court to the CSB to record reasons and communicate to the petitioner if the petitioner is found unsuitable but surprisingly despite all these the departmental Authorities/CSB seems to be adamant to frustrate the object of law, not to comply with the directions of the Hon'ble Supreme Court of Pakistan in letter and spirit and have decided to see the petitioner superannuated without having promotion.
30. In the attending circumstances, the writ petition is allowed the action of the Central Selection Board whereby the petitioner is again remained under watch is declared illegal and is set aside.
The competent Authority is directed to issue the petitioner's promotion order and that too it be effected from the date of the petitioner's eligibility.
In arriving this conclusion I can safely rely on a recent judgment reported as Federation of Pakistan v. Ameer Zaman Shanwari (2008 SCMR 138).