' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of the learned Federal Service Tribunal (Islamabad) filed by the appellant against his supersession regarding promotion from BPS-19 to BPS-20 by the Central Selection Board. The Appeal was dismissed hence the Petition before this Court which was converted into an appeal vide leave granting order dated 8-3-2011 to consider the contention that as the appellant had an excellent record he was wrongly superseded.
2. Sahibzada Anwar Hamid, learned Advocate Supreme Court appearing for the appellant has firstly contended that throughout, the appellant had an excellent career and there is no doubt as to his integrity at all. In this regard he has referred to the synopsis of the appellant's PERs for the years February 2002 to December 2002 and from January, 2003 to May, 2003 and subsequently from May, 2003 to October, 2003 and thereafter for the years 2004 and 2005 onward wherein his integrity has been assessed to be above board and so also his performance has been reported to be very good and consequently he has been found fit for promotion. Secondly learned Advocate Supreme Court has submitted that insofar as the Central Selection Board's assessment is concerned the required threshold was 70 marks out of which he has received 64.28 marks. He was superseded on the ground of excellence and comparative merit. However nothing adverse vis-a-vis his integrity and efficiency was observed by the Central Selection Board. Per Learned Advocate Supreme Court as opposed to the appellant those who were promoted i.e. Mr. Abdul Razzaq Qureshi and some of the others had adverse entries in their PERs as well as the pro forma prepared by the Central Selection Board. Hence it is not understandable as to why an honest and hardworking officer has not been promoted in fact superseded whereas others who have a patchy career been favoured which can only lead to one conclusion that such persons perhaps had an unfair advantage over the appellant in terms of their connection with the concerned quarters.
3. Learned Advocate Supreme Court has therefore submitted that as promotion is based on seniority-cum-fitness and the latter being a subjective criteria, such discretion by the concerned authorities should be used fairly, reasonably and in accordance with the performance of the concerned officer and not in an arbitrary manner. Fn support of his submission he has relied upon Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad v. Gul Muhammad and others (2011 SCM R 295) and Tariq Aziz-ud-Din and others; in re (2010 SCM R 1301). Learned Advocate Supreme Court has further submitted that initially the appellant had secured 74.5% marks on his PERs but later on this was reduced to 64.5% on the basis of the new policy's sliding formula i.e. Best of the best which has given arbitrary powers to the Central Selection Board.
4. Raja M. Aleem Abbasi, learned D.A.-G. For the respondents has fully supported the impugned Judgment on the ground that insofar as fitness is concerned this is a subjective criteria and is therefore not justiciable. In this regard he has submitted that the Central Selection Board is composed of higher ranking officers whose collective wisdom cannot be questioned in any forum insofar as fitness for promotion is concerned. He has referred to the promotion policy contained in the ESTACODE for Grade-20 officers which clearly lays down that consideration for the same are the functions, variety and width of experience of the concerned officer which are all to be deduced from his record. Per learned DAG such record was so considered by the Central Selection Board and appellant was not found fit for the promotion. He has relied upon Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others (PLD 2008 SC 769), (ii) Zafar Iqbal and another v. Director Secondary Education, Multan Division and 3 others (2006 SCM R 1427) and Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539).
5. We have heard both the learned Advocate Supreme Court as well as the learned D.A.-G. And have perused the record.
6. It would be seen that eligibility for promotion and fitness therefor are two separate criteria and have been judicially recognized in a number of decisions i.e. Muhammad Anis and others (Supra).
Whereas eligibility relates primarily to the terms and conditions of A service and their applicability to the concerned civil servants, the question of fitness is a subjective evaluation on the basis of objective criteria and hence is not justiciable. In fact according to section 9(1) of the Civil Servants Act, 1973 a right has been confirmed to a civil servant to be considered for promotion if he is eligible on account of possessing the prescribed minimum qualification etc. However he has no vested B right to be promoted. In contrast section 4(1)(b) of the Service Tribunals Act specifically bars appeal to the Tribunal against the order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed or to hold a particular post or to be promoted to a higher grade. However having observed as much it would also be seen that the discretion so given to the concerned authorities in the matter of fitness etc. Of a civil servant for C promotion, has to be exercised in a fair, open and just manner which should be based on reasonable assessment of the concerned civil servant's performance and such exercise should not be arbitrary or colorable in any manner whatsoever. Seen in this context, in the present case, it appears that though the appellant had an excellent record yet he was superseded on the policy of best of the best. D Such policy essentially incorporates the desire of the Government to select civil servants who not only fulfil the essential criteria of eligibility but also that of fitness with regard to others who were considered for promotion. Simply stated it translates into a policy whereby if the candidates for promotion are equally poised vis-a-vis eligibility and fitness only that candidate should be selected who in some manner excels the others with respect to fitness. In this regard reference may be made to the cases of Secretary Revenue Division, CBR/Federal Board of Revenue, Islamabad (Supra) and Tariq Aziz-ud-Din and others: in re (Supra). In the latter case it has been observed that when considering the question of fitness the criteria of excellence in favour of a particular candidate should be based on reason and there should be something in writing which should influence the Central Selection Board while exercising their discretion in favour of a particular candidate. The above exercise is entirely missing in the case in hand since in the pro forma of the appellant prepared by the CSB only a bald observation is made that he could not come up to the required 70% threshold. In contrast we may observe that Mr. Abdul Razzaq Qureshi who had few adverse entries in his PERs which were reproduced in the pro forma prepared by the CSB has been promoted. This, in our view is an exercise of discretion by the concerned authorities which cannot be supported on any reasonable interpretation of either the law in this respect or the facts of the case.
7. Consequently for the foregoing reasons this Appeal was allowed vide a short order to the extent that the case of the appellant for promotion from BPS-19 to BPS-20 would be considered by the Central Selection Board in its next meeting and if he is found fit for promotion he would take seniority from the date his batchmates were promoted.