ABDUL HAFIZ MIRZA (MEMBER).--- The appellant is aggrieved by the impugned Notification, dated 4- 5-2005 whereby the appellant was superseded while his juniors were promoted to BPS-22. He filed departmental appeal on 1-6-2005 which was not responded. The appellant filed this appeal before the Tribunal on 24-9-2005 with the prayer that this Tribunal may direct the competent authority to grant pro forma promotion to the appellant from BPS-21 to BPS-22 with effect from the date his juniors were promoted with all consequential benefits.
2. The brief facts of the case as narrated in the memo. Of appeal are that the appellant joined the Police Service of Pakistan on 1-10-1970. He was promoted step by step over the years. His last promotion in BPS-21 was on 2-4-2002 and the name of the appellant appears at SJ. No,16 of the seniority list of PSP Officers (BPS-21) circulated on 2-2-2003.
3. The appellant argued his case personally and contended that he was fully eligible and fulfilled the requisite criteria for promotion to BPS-22 but was ignored without assigning any reason. The competent authority had no legal justification to ignore the appellant. In his memo. Of appeal, the appellant has argued that "there is no question of fitness involved for the grant of promotion to BPS-22 but as a general rule where right to consider a civil servant for promotion has been by- passed in violation of rules; Service Tribunal can examine question of his fitness as well. The appellant has been ignored in violation of the policy/rules of promotion and therefore, can approach this Honourable Tribunal". The appellant was ignored for promotion in an arbitrary manner in utter disregard of promotion rules. The factum of ignoring the appellant in such manner negates the principle of legitimate expectancy where the appellant though fully qualified in respect of the length of service, experience and quantification was not promoted by the competent authority without assigning any reason, which is violative of section 24-A of the General Clauses Act, 1897.
4. Replying upon 1999 SCMR 1605 and 2004 SCMR 1747, the appellant contended that as held by the Honourable Supreme Court of Pakistan, "If an officer is superseded, not only the reasons should be recorded but it should be supported by tangible material". The competent authority while forming opinion for the grant of promotion did not take into consideration the relevant law while ignoring the appellant and promoting his juniors. No doubt, the competent authority has the discretion to promote a civil servant to BPS-22 but such discretion is bound by reason and should be used in conformity with statute. It must not be arbitrary.
5. Relying upon 2003 PLC (C.S.) 503 the appellant argued that a civil servant has no right to promotion, yet he is entitled to be considered for promotion. The right to be considered for promotion contemplated by section 9 of the Civil Servants Act, 1973 is neither illusionary nor a perfunctory ritual. -Withholding of promotion is a major penalty under Government Servant E&D Rules, 1973. Therefore, before a civil servant is condemned by withholding promotion from him, he has a right to insist that material on the basis of which he is being deprived of promotion should be disclosed to him and should be allowed an opportunity to clear himself. Withholding of promotion of officer, unless opinion of the competent authority is backed by some tangible material, would mean that the case was not considered in accordance with law. The consideration of promotion is to be based not only on relevant law and rules but also backed by some tangible material which could be lawfully taken into consideration.
6. In support of his claim for pro forma promotion, the appellant has relied upon 2005 PLC (C.S.)
440 and 2000 PLC (C.S.) 600 and stated that in accordance with the provisions of FR17(1), the President may, if satisfied that a civil servant who was entitled to be promoted from a particular date and for no fault of his own, was wrongly prevented from rendering service to. The Federation in the higher post, order that that civil servant would be paid the arrears of the pay and allowances of higher post through pro forma promotion or up gradation arising from the ante-dated fixation of his seniority.
7. The appellant has further observed that in accordance with the dictum laid down in 2003 PLC (C.S.) 503, treatment of civil servants in accordance with law and in a just and fair manner in the matter of advancement of their career is of paramount importance for good governance.
Otherwise, his commitment to the job, dedication to duty, his power to take decision and even his integrity might be confined to a casualty ward.
8. The respondents in the written objections filed by them contended that the appellant's prayer for pro forma promotion is misconceived as no case for pro forma promotion is made out. Grant or refusal of promotion falls within the exclusive domain of the executive authority of the Government.
The respondents argued that the fulfillment of the eligibility conditions only establishes the right of a civil servant to be considered for promotion but this right for consideration is distinguishable from promotion itself which is not a right as clearly laid down in the proviso below subsection (2) of section 22 of the Civil Servants Act, 1973. Thus, a person fulfilling the eligibility condition for promotion cannot claim promotion as a matter of right. Since officers promoted to management level may be called upon to hold independent charge of a Ministry/Division or to head a major Corporation, the Authority to promote such level has to satisfy itself about the officer's maturity, balance and ability to assume such top management positions.
9. The respondents further contended that the Prime Minister is the competent authority for approving promotion to BPS-22 and the decision is taken after taking into account the entire service record of the officers and comparison thereof. The appellant's departmental appeal was filed having no merit for consideration under the proviso of subsection (2) of section 22 of Civil Servants Act, 1973 which indicates that no representation lies on the matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade.
10. The, learned counsel for the respondents argued that the appellant's case was considered with due diligence by the competent authority. A civil servant cannot ask for promotion as a matter of right. The appellant's right to be considered for promotion has not been denied to him. There has been no denial of any fundamental right or violation of any act/law. The learned counsel for the respondents also relied upon 1999 SCMR 1605 but submitted that it was a leave granting order which does not support the appellant's case as made out in the following extracts therefrom:-- "The tests for eligibility are objective and open to scrutiny by a judicial forum, in the instant case by a Tribunal of exclusive jurisdiction namely, the Service Tribunal. Besides, if eligible to be promoted, it is the right of a person, in whom the eligibility resides, to be considered for such promotion. On the other hand, fitness of a person to be appointed or promoted to a particular post or grade involves a degree of subjective evaluation on the basis of objective criteria and, as a rule, an opinion so formed, is not open to judicial scrutiny."
11. The learned counsel for the respondents further argued that denial of promotion to a civil servant cannot be termed as a major penalty as the officer is likely to be considered for promotion again and may also be approved for promotion in future. While considering any officer for promotion, all aspects of his service record are examined including his commitment, dedication and power to make decision etc. In comparison with other officers. The learned counsel for the respondents submitted that the promotion 'to the posts in BPS-22 fall outside the purview of the Central Selection Board and as such, the case-laws relied upon by the appellant wherein the deliberations or working of the Central Selection Board have been called in question are not relevant to the appellant's case and the appellant has not quoted any case-law relating to promotions from BPS-21 to BPS-22.
12. The respondents were asked to lay before the Tribunal the process that was adopted to promote officers to BPS-22 in his own discretion by the Prime Minister and also produce the relevant documents to prove that the appellant's case was duly considered in accordance with that process. The respondents clarified as under:--- "Seniority Lists of all the regular BS-21 officers of District Management Group, Secretariat Group and Police Service of Pakistan were informally provided to the Prime Minister's Secretariat. After going through the record of eligible officers, that Secretariat vide u.o. Dated 4th May, 2005 intimated the names of officers promoted from BS-21 to BS-22. The names so intimated included the names of Mr. Asad Jehangir and Mr. Rifat Pasha P.S.P. Their promotion was notified on 4th May, 2005."
' It may be recalled that Messrs Asad Jehangir and Rifat Pasha are the private respondents in this appeal who, despite notices, neither filed objections nor appeared personally or through their counsel on any date of hearing and are, therefore, not interested in contesting this appeal.
13. The appellant discussed at length the issue of competence and jurisdiction of the Prime Minister in promotions to BPS-22: The appellant's contention was that these promotions were required to be made on the basis of seniority and nothing else. The appellant also placed on record lengthy written arguments in this regard and quoted quite a few case-laws to support his contention. The principal argument was that in 1998, BPS-22 posts were made selection posts by amending the Civil Servants Appointment, Promotion and Transfer Rules, 1973. This amendment was repealed in November, 1999. The appellant's contention was that it implied that the posts in BPS-22 reverted back to seniority-cum-fitness criteria. As the appellant's seniority is undisputed and there is nothing in his record or long service career which would render him unfit for promotion, the appellant claimed that he had a prior right to be promoted to BPS-22.
14. This appeal has two dimensions. Firstly appellant's own case for promotion in his cadre i.e, Police Service of Pakistan. Both the private respondents belong to Police Service even though the P.M.'s orders, dated 4-5-2005 promoted 15 officers of different Cadres and Groups to BPS-22. One or two officers belonging to other Groups were promoted against the posts in the Secretariat Group. The second dimension is of the sole discretion exercised by the Prime Minister in these promotions.
Taking up the first issue of the appellant's own promotion in BPS-2-2, whether in his own Group or against a post in Secretariat Group, copies of panel proforma submitted to the Prime Minister for "exercise of his discretion" were called for and perused. This record confirmed that the appellant's case was duly submitted to/placed before the Prime Minister along with a list of 26 officers of Police Service in BPS-21, twenty-one of whom including the appellant were being considered for BPS-22 fdr the first time. Comparing the service record of the appellant as reflected in the panel pro forma, we find that that the appellant's service record, ACR quantification, grading in Staff College/NDC courses etc. Are as good, if not better, as of the two private respondents who stood promoted from that panel. Nothing adverse has been indicated to us by the respondents which could stand in the way of the appellant's promotion and no reasons have been recorded for not promoting the appellant. We, therefore, direct that the appellant's case be again placed before the Prime Minister for promotion to BPS-22.
15. As regard the other dimension of Prime Minister's sole discretion, the respondents conceded that their are no codified rules or guidelines for promotion to BPS-22. During the arguments, without saying it in so many words, they implied that the purpose of amending the Rules in 1999 to the effect that the posts in BPS-22 are not considered to be selection posts was not to revert them to seniority unfitness formula but to bring them in the purview of Prima Minister's discretion. We do not consider that it is a satisfactory state of affairs. The respondents would be well advised to prescribe guidelines for promotion to BPS-22 also so that even if discretion is to be exercised at any stage, it is seen to be exercised fairly, judiciously, without favour and indiscriminately.
16. The appeal stands disposed of in terms of paras.14 and 15 above.
17. Parties be informed. No order as to costs.