' SYED MANSOOR ALI SHAH, J.--- Brief facts of the case are that petitioner is a civil servant in BS-21 and currently posted as Ambassador to the Kingdom of Spain. The case of the petitioner was put up for promotion before the High Powered Selection Board ("Board") in its meetings held on 9-9- 2010 and 11-10-2010 but on both occasions she was not recommended for promotion. The grievance of the petitioner is that she fully qualifies for promotion under Civil Servants (Promotion to the post of Secretary, BS-22 and equivalent) Rules, 2010 ("RULES") but for reasons unknown to her, she has been successively deferred. Learned Counsel for the petitioner while referring to the record' which was placed before the Board submitted that the petitioner fully meets the requirements for promotion under. Rule 4 of the RULES and her promotion has been deferred without any lawful justification.
2. Learned Deputy Attorney General submitted that the instant .Petition is not maintainable under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 as it relates to terms and conditions of service. He further submitted while referring to the parawise comments filed by the Ministry of Foreign Affairs, Islamabad that the petitioner was awarded adverse remarks in her Performance Evaluation Reports (PERs) for 1989 and 1990.. He referred to Para 9 of the parawise comments which state: "After detailed examination of the officer's performance, career profile, as well as, comparison with others on the panel; the Board did not recommend the officer for promotion." Para 11 of the same parawise comments provides: "It is also pertinent to mention that the Performance Evaluation Report of the officer for the year 2009 was missing at the time of the meetings of the High Powered Selection Board. Despite repeated requests to submit PER forms to the reporting Officer, the officer failed to do so." Para d-i of the same comments states: "High Powered Selection Board recommends the promotion of the posts of BS-22 (sic), keeping in view inter alia, the pen picture in the PER, variety of experience and reputation of the officers known to the Board Members. It is, therefore, essential that in addition to the relevance of experience, these officers must also have a sufficient variety ' The record was summoned by the Court and placed on the record by the D.A.-G. {{FOOT NOTE}} ' of experience so that they acquire an overview of the functions performed by these organizations within the broader framework of Government's overall objectives/activities to ensure smooth and effective management and they can lend pragmatism to policy formulation in assignments at the headquarters and abroad. Thus, an officer only fulfilling the eligibility conditions, cannot claim promotion as a matter of right, nor, does the. Selection Board recommend him or her as a mechanical exercise."
3. Arguments heard, record perused.
4. Addressing the preliminary objection, raised by the learned Deputy Attorney General, promotion to the post of BS-22 is based on suitability, fitness and eligibility of the candidate as provided in Rule 4 of the RULES which also finds support in Tariq Aziz-ud-Din and others, (2010 SCMR 1301).
Therefore, appeal under section 4 of the Civil Service Tribunals Act, 1973 is not available to the petitioner as the matter pertains to fitness cum eligibility, as a result, bar under Article 212 of the Constitution is not attracted to the present case. Preliminary objection is, therefore, overruled.
5. Pursuant to the judgment of the august apex court reported as Tariq Aziz-ud-Din and others (2010 SCMR 1301), Federal Government framed Civil Servants (Promotion to the post of Secretary, BS-22 and equivalent) Rules, 2010 ("RULES"). Rules 3 and 4 provide as under:--- "3. Manner of Promotion.--- (1) The posts in BS-22 in the Federal Government shall be filled in by promotion from amongst the officers specified in sub-rule (2) with the approval of the appointing authority on the recommendations of the Board."
(2) The officers holding post in Basic Scale 21 on regular basis in an All Pakistan Service or as the case may be, a civil service of the Federation or a post in connection with the affairs of the Federation and possessing the length of service and fulfilling other conditions specified in rule 4, shall be eligible for promotion to a post in Basic Scale 22 in the respective service, group or cadre to which the officer for the time being belongs: ' Provided that the post of Secretary in BS-22 in the Secretariat Group may be filled in by promotion in the public interest from amongst officers of regularly constituted Occupational Groups and Services possessing the length of service and fulfilling other conditions specified in rule-4, holding, on regular basis, posts in Basic Scale 21.
(3) Nothing in this rule shall prevent a post in Basic Scale 22 or equivalent already reserved for initial appointment in accordance with the method of appointment laid down under sub-rule (2) of rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, in filling such post in accordance with such method."
"4. Length of service and other conditions for promotion.--- An officer shall possess the length of service and fulfil the following conditions for promotion to a post in Basic Scale 22 including the post in BS-22 as Secretary in the Secretariat Group or equivalent in the regularly constituted Occupational Groups and Services in the Federal Government;
(i) Twenty-five years' service in Basic Scale 17 and above, excluding the period of suspension not counted as duty and extraordinary leave, and has completed at least two years in a post in Basic Scale 21;
(ii) at least three "very good" reports during the last six years;
(iii) No penalty under Government Servants (Efficiency and Discipline) Rules, 1973 or under the Removal from Service (Special Powers) Ordinance, 2000 (since repealed) has been imposed upon him during his tenure in BS-21; and
(iv) Possesses sufficient variety of experience.
Explanation.--- For the purpose of this rule, experience in the Secretariat or, as the case may be, in any field office shall be an added qualification."
6. The Board while considering the case of the petitioner for promotion has given the following recommendations in the two meetings:--- Recommendations in Meeting dated 9-9-2010 of the Board 2Ms.
Humaira HassanThe record of the officer and the opinion of the Secretary concerned were considered in detail. In view of the latest performance of the officer inprofessional diplomatic position, the Board observed that the officer did not meet the criteria of excellence as compared to her peers to meet the requirement of higher position of BS-22. The Board did not recommend the officer for promotion. (underlining supplied)
Recommendations in Meeting dated 11-10-2010 of the Board.
2.Ms. Humaira HassanIn the last Board meeting held on 9-9-2010 the officer was not recommended for promotion on account of her latest performance in professional diplomatic position.
The Board did not find any fresh grounds to modify its earlier decision and recommended her deferment. (underlining supplied)
7. The above recommendations show that what weighed with the Board was the "latest performance in professional diplomatic position" of the petitioner in deferring her case for promotion twice. The Deputy Attorney General on the direction of the court had placed on record the dossier of service record of the petitioner which was placed before the Board in the aforementioned meetings. The record includes: (i). Performance Evaluation Reports (PERs) (2004 to 2008), (ii). Panel Pro forma. (iii) Seniority List of officers (iv) Panel of FSP Officers for promotion to BS- 22 (v) Annual Confidential Reports (ACRs) (which form part of Performance Evaluation Reports (PERs). Perusal of the above record shows that there is nothing in the service record of the petitioner that casts a shadow on the "latest performance in professional diplomatic position" of the petitioner. Performance is to be gauged from the Performance Evaluation Reports (PERs), which were placed before the Board. These Reports rated the petitioner as "VERY GOOD" for years 2004, 2005, and 2007, while the Report for the year 2006 rates the petitioner as "OUTSTANDING" and simply "GOOD" for the year 2008. The Joint Secretary, Establishment Division, as well as, the Director General (Personnel), Ministry of Foreign Affairs, who appeared in person also failed to refer to any document in the service dossier that could justify the above recommendations of the Board against the petitioner. The parawise comments. Filed by the Ministry of Foreign Affairs, Government of Pakistan and referred to above do not find mention in the recommendations of the Board and in any case are not relevant for the purposes of Rule 4 of the RULES.
8. Rule 3 (2) of the RULES provides that Officers holding post in Basic Scale 21 on regular basis and possessing the length of service and fulfilling other conditions specified in Rule 4, shall be eligible for promotion to a post in Basic Scale-22 in the respective service, group or cadre to which the officer for the time being belongs. Rule 4 provides the length of service and other conditions for promotion to post in Basic Scale.22. The Board has to decide the fitness and eligibility of the petitioner strictly within the four corners of the framework provided in sub-rules (i) to (iv) of Rule 4 of the RULES. The recommendations of the Board show that either the Board failed to apply its mind to the service dossier of the petitioner or then placed reliance on irrelevant considerations simultaneously failing to apply their mind to the relevant considerations as provided under Rule 4.
9. It is settled principle of administrative law that discretion cannot be based on irrelevant considerations or exercised leaving out relevant considerations. Board while exercising its discretion to formulate recommendations had to balance and structure its considerations in terms of Rule 4. Reliance of High Powered Selection Board on irrelevant considerations and neglecting relevant considerations upsets the equilibrium of discretion, leading to an unstructured and disproportionate decision which is bad in law and ultra vires the RULES. "When exercising a discretionary power a decision-maker may take into account a range of lawful considerations.
Some of these are specified in the statute as matters to which regard may be had. Others are specified as matters to which regard may not be had. There are other considerations which are not specified but which the decision-maker may or may not lawfully take into account. If the exercise of a discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account (expressly or impliedly), a court will normally hold that the power has not been validly exercised."' "A power conferred on an administrative authority by a statute must be exercised on the considerations relevant to the purpose for which it is conferred. Instead, if the authority takes into account wholly irrelevant or extraneous factors, the exercise of power by the authority will be ultra vires and the action bad. It is settled law that where a statute requires an authority to exercise power, such authority must be satisfied about existence of the grounds mentioned in the statute.
The courts are entitled to examine whether those grounds existed when the action was taken. A person aggrieved by such action can question the legality of satisfaction by showing that it was based on irrelevant grounds. Thus, the existence of the circumstances is a jurisdictional fact and open to judicial review ... An administrative authority cannot take into account irrelevant or extraneous considerations. Likewise, it cannot ignore relevant, valid and germane matters. If it fails to consider relevant factors, the exercise of power would be bad and the action illegal and ultra vires."3
10. It has also been pointed out that the recommendations of the Board are not communicated to the candidates as no such provision exists 2 ' De Smith's Judicial Review. Harry Woolf, Jeffrey Jowell, Andrew Le Sueur, p.280 ' Law of Writs. V.G. Ramachandran's ps-728 and 742 {{FOOT NOTE}} ' under the RULES. The petitioner before approaching this court had no information why her case for promotion to BS-22 was deferred. This undesired and unnecessary ring of secrecy leaves the civil servant groping in an abyss of uncertainty, which besides lowering her morale and confidence restricts her right to access to justice. It is axiomatic that the petitioner in order to challenge the decision or recommendations of the Board must at least have a copy of the decision/recommendations. On the other hand, this closed circuit decision making can be a source of nepotism and undue favouritism. Good governance rests on accessibility, accountability, predictability, transparency, participation, consensus, efficiency, effectiveness, inclusiveness and ethics.' It has also been settled now that seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure.' Section 24A(2) of the General Clauses Act, 1897 states as under:- "(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially." (emphasis supplied)
11. Even otherwise, right to due process under Article 4 read with the newly added fundamental rights to fair trial and access to information under Articles 10-A and 19-A of the Constitution, respectively, do not permit that an order affecting the prospects of promotion of a civil servant is withheld from him. Additionally, under Freedom of Information Ordinance, 2002 ("Ordinance"), final orders or decisions' of a public body form part of public records which should be made available to the public especially the officers against whom the said orders are passed. The fact that adverse order or decision against any officer is recorded in the minutes of meetings of any public body does not exclude it from being a public record in terms of section 8(b) of the Ordinance. Any adverse order or decision against an officer or any member of the public retains its independent status as a public record under section 7 of the Ordinance and it matters less if the same has been incorporated or recorded as a part of any minutes of a meeting. It is also ' Muhammad Aslam v. Vice-Chairman and others 2010 PLC (C.S.) 266.
' Reference: Aman Ullah Khan and others v. Federal Government of Pakistan and others PLD 1990 SC 1092 and Tariq Aziz-ud-Din and others 2010 SCMR 1301 ' Section 7 of the Freedom of Information Ordinance, 2002. {{FOOT NOTE}} ' observed that the minutes of meetings excluded under section 8(b) of the Ordinance are minutes dealing with the internal workings of the public body which do not affect the rights of the members of the public or in this case of a civil servant. Board is under a constitutional and legal obligation to communicate its recommendation (decision) to the concerned civil servant and not to keep it under wraps to the disadvantage and inconvenience of the civil servant.
12. For the above reasons, the recommendations dated 9-9-2010 and 11-10-2010 of the High Powered Selection Board given in the case of the petitioner are bad in law and therefore set aside for having been arrived at without application of mind, based on irrelevant considerations and without factoring in the relevant considerations as provided under Rule 4 of the RULES. The Board is directed to reconsider the case of the petitioner afresh for promotion to BS-22 in its upcoming meeting and to exercise its discretion strictly in accordance with the RULES and communicate a copy of the same to the petitioner in the light of the principles discussed above.
13. For the above reasons, this petition is allowed.