' CH. IJAZ AHMED, J.---The appellants filed appeal against the impugned judgment of the Service Tribunal dated 19-3-2009 wherein the appeal of respondent No,1 was accepted by the Service Tribunal.
2. Necessary facts out of which the present appeal arises are that respondent was appointed as Medical Officer (BS-17) in Federal Government Services Hospital, Islamabad, with effect from 9-7- 1974 through Federal Public Service Commission. Subsequently she was promoted to the posts of Associate Surgeon (BS-18), Surgeon (BS-19) and Consultant Surgeon (BS-20). Her case was placed before the Central Selection Board in its meeting held on 31-12-2003; Central Selection Board failed to recommend the name of the respondent against the available vacancies of BS-21. Respondent being aggrieved filed Appeal No,815(R) CS/2008 before the Federal Service Tribunal, Islamabad, on 13-9-2008 with the following prayer:-- "In view of the above, the Appellant humbly prays that any recommendation for change or relaxation of criterion/policy of the Federal Government contained in O.M. Dated 29-12-2001 of the Establishment Division may kindly be set aside and the respondents may be ordered to grant BS-21 to the Appellant on meritorious grounds being fully qualified therefore in terms of O.M. Dated 29-12- 2001 w.e.f, 10-3-2008."
' The learned Service Tribunal accepted her appeal vide impugned judgment dated 19-3-2009.
Appellants being aggrieved filed C.P.No,898 of 2009 before this Court which was fixed on 21-7-2009 for hearing and leave was granted in the following terms:-- "We have heard the learned counsel for the petitioners, learned counsel for the Caveator and have also seen the available record. Leave is granted, inter alia, to consider:--
(i) Whether the policy of the Government was in conflict with the fundamental rights or ultra vires or mala fides;
(ii) Whether the grant of higher pay scale on the basis of meritorious service is part of terms and conditions of service of a civil servant;
(iii) Whether it is not for the competent authority to determine the eligibility of a civil servant for grant of a higher grade; and
(iv) Whether the Federal Service Tribunal was competent to set aside the policy framed by the Government."
3. Learned counsel for the appellants submits as under:--
(i) That learned Service Tribunal had no authority whatsoever to set aside the policy framed by the Government or amendments made therein.
(ii) That policy of the appellants is not in conflict with the fundamental rights or ultra vires or mala fides.
(iii) That grant of higher pay scale on especially meritorious service is not included in terms and conditions of the civil servant. It is the prerogative of the competent authority to determine the eligibility of a civil servant for grant of higher grade.
4. Learned counsel for the respondent has supported the impugned judgment.
5. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. The learned Service Tribunal had considered all the pleas which are raised before us and were rejected with cogent reasons as is evident from paras 8 to 18 of the impugned judgment. The learned Service Tribunal after perusal of the available record had given finding of fact against the appellants whereas the learned counsel for the appellants has failed to point out any piece of evidence or any document which was misread or non read by the learned Service Tribunal in the impugned judgment. The learned Service Tribunal as mentioned above, after proper appreciation of the record, had accepted the appeal of the respondent by summarizing the facts in paras. 17 and 18 which are reproduced hereunder:-- "17. Perusal of record leads to the following conclusions:--
(i) Establishment Division O.M. Dated 29-12-2001 laid down four conditions which were to be fulfilled for grant of BS-21 to the technical and professional officers on account of meritorious services. All the four conditions were required to be fulfilled.
(ii) The said O.M. Did not confer any authority on the Selection Committee to relax any criteria prescribed therein.
(iii) Working papers for the meetings of the Special Selection Committee and Minutes of the Committee were not prepared on the basis of criteria for grant of BS-21 as prescribed in Establishment Division O.M. Dated 29-12-2001. Resultantly there is no conclusive evidence that all the prescribed four conditions were fulfilled by the doctors who were recommended grant of BS-21 by the Special Selection Committee.
(iv) The respondents prepared and circulated final combined seniority list of BS-20 officers of Ministry of Health and its attached/subordinate offices dated 7-8-2006. Respondents have not denied this combined seniority list.
(v) In the seniority list dated 7-8-2006 name of the appellant appears at serial No,13, whereas BS-21 was allowed to doctors at serial No,15 and Physiotherapist at serial No,16 of the list. Grant of BS-21 to two officers shown junior to the appellant in the final combined seniority list confirms violation of the principles of seniority. 4
(vi) Recommendation was made for grant of BS-21 to Dr. Mashoor Alam Shah whose name was not even included in the penal of 10 doctors for consideration and recommendation for grant of BS-21.
(vii) The prescribed criteria of 80% of ACRs in BS-20 and above was fulfilled by the appellant. The appellant percentage of Very Good ACR was reflected as 85.5% in para 2 of the minutes of Selection Committee held on 31-12-2003. In the minutes of the meeting of Section Committee held on 18-7-2007, the percentage of Very Good ACRs in BS-20 and above of the appellant was shown at 87.5%. Finally, in the working paper dated 5-3-2008 for the Special Selection Committee, the name of the appellant was placed at serial No,4 of the panel. Her ACRs percentage was shown as 90.09% as Very Good in BS-20. In the remarks column it was also stated that she fulfilled eligibility criteria. Only one more doctor at serial No,13 was shown to fulfil the eligibility criteria. However, the meeting of the said Selection Committee does not appear to have been held till the date of hearing of this appeal.
(viii) Grant of BS-21 to doctors who did not meet the prescribed criteria is a clear violation of the criteria prescribed by the Government. The appellant was informed on 2-1-2007 by respondent No,2 that the Special Selection Committee did not recommend the name of the appellant "due to non-availability of vacancy". This reply is not tenable because the vacancies were filled by doctors who had only 36% and 45% of Very Good ACRs in BS-20 as against the score of 87.5% of the appellant.
(ix) Record has established that four doctors were recommended for grant of BS-21 by the Special Selection Committee in its meeting held on 31-12-2003 when their percentage of Very Good ACRs was graded as low as 25%, 41.6% and 75%, whereas, he appellant was ignored. Two doctors with percentage of Very Good ACRs of only 36% and 45% were recommended for grant of BS-21 in the meeting held of the Selection Committee held on 18-7-2007. The reporting officers of these five doctors did not assess them as Very Good while assessing their performance on yearly basis, but the Special Selection Committee in its undisclosed wisdom and in exercise of authority not conferred on it, i.e,, to relax the prescribed criteria for grant of BS-21 on meritorious services, recommended grant of BS-21.
18. On the basis of the above conclusions, the appellant has wrongly been denied grant of BS-21.
She fulfilled the criteria for grant of BS-21 on the basis of meritorious service while he was in service.
Had the five doctors who did not fulfil the condition of 80% Very Good ACRs in BS-20, not been given BS-21, in violation of policy, the appellant would have made it to BS-21. We, therefore, direct that her case be placed before he Special Selection Committee for grant of BS-21 from the date it was due to her by reckoning posts that were filled by others who did not fulfil the prescribed criteria. We place reliance on the judgment of the honourable Supreme Court cited as 2008 SCMR 1138 and 1995 SCMR 650. In these judgments the apex Court granted benefit of promotion from the date it was due despite retirement of the appellant."
6. We have re-examined the evidence on record in the interest of justice and fairplay. We do not find any infirmity or illegality in the conclusion arrived at by the learned Service Tribunal. The learned Service Tribunal had decided the case in accordance with law, rules and regulations on the subject as is evident from the conclusions arrived at by the Service Tribunal as mentioned herein above. The impugned judgment is in accordance with the dictum laid down by this Court in various pronouncements including I.A. Sherwani's case (1991 SCMR 1041). The action of the appellant is not in consonance with Article 25 of the Constitution as is revealed from the contents of paras 8 to 18 of the impugned judgment. After addition of section 24-A in the General Clauses Act, it is the duty and obligation of the public functionaries to redress the grievances of the citizens/their sub-ordinates with reasons as law laid down by this Court in Messrs Airport Services' case (1998 SCMR 2268). We may observe that since Pakistan is founded on the basis of religion of Islam, efforts should be made to bring out an egalitarian society based on Islamic concept of fairplay and social justice. Therefore public functionaries are expected to act fairly and justly in a manner which should not give to any one any cause of complaint on account of discriminatory treatment or otherwise. A Division Bench of the Lahore High Court has laid down the following principle in Muhammad Zafar Abbasi's case (2003 PLC (C.S.) 503):-- "The Central Selection Board while formulating their recommendation for consideration of the competent authority is to be guided primarily by the Promotion Policy, the C.Rs,, the 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. However, if he has to be superseded not only the reason should be recorded but it should be supported by tangible material."
7. It is settled principle of law that this Court while exercising power under Article 212(3) of the Constitution cannot substitute its own D finding in place of finding of the Service Tribunal. It is also settled proposition of law that no employee has a vested right in promotion but where rules, regulations and policy have been framed for appointment or promotion for mala fide reasons or due to arbitrary act of the competent authority, aggrieved person would be entitled to challenge it.
See Muhammad Inshaullah's case (PLD 1988 SC 155). Even otherwise no question of public importance has been raised in terms of Article 212(3) of the Constitution.
8. In view of what has been discussed above this appeal has no merit and the same is dismissed.