' MUHAMMAD ANWAR KHAN KASI, CJ. --- This Writ Petition as well as W.P No. 2346/2014 pertains to identical question of law and facts and grievance of petitioners in both the petitions is against remand of their promotion cases by the Prime Minister, therefore, both the petitions are being decided through this consolidated Judgment.
2. The background of case is that petitioners are BS-20 Officers belonging to PAS [Pakistan Administrative Service], PSP [Police Service of Pakistan], FSP [Foreign Service of Pakistan], and petitioner No. 3 in Writ Petition No. 2346/2014 is Ex-Cadre BS-20 from Ministry of Railways. Cases of petitioners in W.P. No. 2026/2014 were recommended for promotion by the Central Selection Board in its meeting held on 11 to 14 and 27.2.2013 and confirmed at that time by the then Prime Minister, but subsequently the proceedings were set aside by the Hon'ble Supreme Court of Pakistan vide Judgment dated 3.10.2013 passed in Constitutional Petition No. 22/2013 titled as "Oriya Maqbool v.
Federation of Pakistan".
3. Subsequently, in view of the Judgment of the Hon'ble Supreme Court, meetings of Central Selection Board were held afre-h from 11 to 13.2.2014 wherein petitioners were considered by the Central Selection Board and the CSB forwarded their cases for approval to the Prime Minister of Pakitan, but the Chief Executive remanded their cases to the CSB on the ground that recommendations were not in conformity with directions of the Hon'ble Supreme Court in afore- mentioned judgment passed in case of "Oriya Maqbool". Impugned orders passed by the Chief Executive are being reproduced hereunder:- ' Subject: PROMOTION OF OFFICERS OF PAKISTAN ADMINISTRATIVE SERVICE FROM BS-20 TO BS-21 POSTS.
8. The Prime Minister has been pleased to approve the recommendations of. Central Selection Board for promotion of the following PAS officers from BS-20 to BS-21. {{TABLE}} Sr. No. Name of the officer Mr. Azmat Ali Ranjha Mr. Rizwan Bashir Khan
7. Mr. Tipu Mahabat Khan
9. Mr. Aftab Habib Mr. Tariq Masud (Capt.Rtd.)
Mr. Ali Zaheer Hazara Dr. Shujat Ali Mr. Orya Maqbool Abbasi Mr. Mohsin S.Haqqan Mr. Aijaz Ali Khan Mr. Shoaib Ahmed Siddiqui Mr. Zahid Saeed (Capt. Rtd.)
Mr. Shahid Ashra (TararCapt. (Rtd.)
Dr. Hamid Uwais Agha Mr. Altaf Ezid Khan Shah Sahib 30 Mr. Arbab M. Arif Mrs. Seema Najeeb Mr. Hasun lqbal Sardar Ahmad Nawaz Sukhera Mrs. Yasmeen Masood Mr. Muzaffar Mahmood Dr. Allah Bakhsh
40. Mr. Younis Dagha Mr. Shamail Ahmed Mr. Muhammad Misbah {{TABLE}}
9. Further, whilst examining the instant recommendations of the Central Selection Board, the Prime Minister is pleased to observe that the Board has failed to apply its mind and exercise its discretion in an objective manner in evaluating officers on the attribute of 'integrity'/general reputation/perception'. The CSB was required to be mindful that this attribute was inserted in the "Objective Assessm ent Form" in order for the CSB to evaluate officers not only on the basis of integrity as reported in the ACRS/PERs but also to form a collective opinion as to general reputation and perception of the officers under consideration in a reasonable, fair and equitable manner, and then to award marks out of maximum five. A mechanical exercise, without application of mind, to award marks for the attribute 'integrity'/general reputation/perception' on the basis of formally written reports is by no means, in consonance with the spirit of the Hon'ble Supreme Courts judgment in C.P No. 22/2013 and the essence of the objective Evaluation Form to be used by the CSB. The Prime Minister is pleased to observe that given the seniority, eminence and stature of the individual members of the. CSB.
Including its Chairman, it would opt have been problematic for the CSB to asses the general reputation/perception regarding officers under consideration, particularly after these officers had a service experience of around twenty-five years in full public view.
10. Therefore, in view of above observation, the Prime Minister does not deem it prudent and justified to approve the CSB recommendations forthwith in respect of officers, as to whom sufficient reasons exist for them to be considered as holding reputation of being corrupt or known to be dishonest or perceived to be so and desires that only officers with impeccable repute should be promoted in public interest.
11. The Prime Minister, therefore, whilst approving the CSB's recommendations regarding officers named in para-8 above, who clearly and unquestionably hold a public reputation and perception of being honest and not corrupt, is pleased to direct that, in respect of the following officer the. SB may reconsider their cases in merits next, meeting and .Assess: and evaluate them as the attribute integrity'/general 'reputation/Perception in a and objective manner. This exercise should be conducted so that the Judgment of the Hon'ble Supreme Court in CP No. 22/2013 is complied with in letter and spirit. The Objective Criteria Form, accordingly, should be read, applied and construed, not as a freestanding document, but an instrument to put the afore-stated judgment of the Hon'ble Supreme. Court to effect.
' Fresh recommendations regarding the following officers should, therefore, be resubmit after the next meeting of CSB. It may, however; L > noted that in order to protect these officers against any unfair detriment, the posts against which these officers were recommended by the CSB to be promoted to '3S-21 shall remain vacant until the matter is reconsidered by the CSB in its next meeting. Cases of the following officers are, therefore, returned to be submitted after re- examination:--- {{TABLE}} -Sr. No. Name of the officers
2. Mr. Abdul Jalil Mr. Rashid Bashir Mazari (Capt.Rtd.)
Mr. Fazal-ur-Rehman
8. Mr. Athar Hussain Khan Mr. Muhammad Rashid Mian Zulkarnain Aamir Major (Rtd)
12 Mr. Ahmad Yar Khan Sq.Ldr.
(Rtd)
Mr. Manzar Hayat Mr. Aftab Ahmad Maneka M-. Muhammad Aslam Hayat Mr. Javed Nisar Syed;
29. a Mr. Sajjad Ahmad
33. Mr. Imran Afzal Cheema
36. Mr. Saqib Aleem
39. Mr. Muhammad ljaz
41. Mr. Naveed Kamran Baluch Mr. Mukhtar Hussain Mr. Lqbal Ahmed Bablani {{TABLE}}
12. As regards the case of Mr. Farooq Ahmad Khan (appearing at Serial No. 1), the Prime Minister is pleased to observe that the officer is not fit as yet to be promoted to BS-21 on account of his palpable and manifest disinterest in his service. The officer remained on extra-ordinary leave for four years and then remained an OSD for another four years. It is also a matter of public knowledge that he remained engaged in setting up a business of his own during this period. During the ten years period between 2003 to 2012, he could earn PERs only for a period of less than three years.
The Prime Minister, therefore, is pleased to direct that his case may be reconsidered by the CSB to assess whether it is appropriate and fit for an officer, who has serious commercial interests elsewhere and not gained considerable experience during the last decade, to be promoted to a senior position in government ranks. The post, against which he was recommended to be promoted to BS-21 by the CSB, shall remain vacant until the CSB reexamines this matter and furnishes its recommendations.
13. The Prime Minister has been further pleased to approve the recommendations of the CSB for deferment of officers at para-4 (Table-II) of the summary and reservation of one vacancy in BS-21 for Mr. Aijaz Ahmad Mangi (PAS/BS-20) as stated in para-6 of the summary.
(Javaid Aslam)
' Secretary ' To the Prime Minister, ' 04-2014 ' Subject: PROMOTION OF BS-20 OFFICERS OF ' PSP TO THE POST OF ADDITIONAL IGP/EQUIVALENT (BS-21)
7. The Prime Minister has been pleased to approve recommendations of the Central Selection Board for promotion of the following PSP officers from BS-20 to BS-21. {{TABLE}} Sr.No. Sen. No. Name of officer
1. 5 Mr. Muhammad Amlish
2. 8 Mr. Munir Ahmad Chishti
3. 9 Sardar Abdul Majeed Khan
4. 13 Mr. Arif Nawaz Khan Capt. 0
5. 15 Mr. Amjad Javed Saleemi. {{TABLE}}
8. Further, whilst examining the instant recommendations of the Central Selection Board, the Prime Minister is pleased to observe that the Board has failed to apply its mind and exercise its discretion in an objective manner in evaluating officers on the attribute of 'integilty'/general reputation/perception.' The CSB was required to be mindful that this attribute was inserted in the "Objective Assessm ent Form" in order for the CSB to evaluate officers not only on the basis of integrity as reported in the ACRs/PERS but also to form a collective opinion as to general reputation and perception of the officers under consideration in a reasonable, fair and equitable manner, and then to award marks out of maximum five. A mechanical exercise, without application of mind, to award marks for the attribute 'integrity'/general reputation/perception /perception' on the basis of formally written reports is, by no means, in consonance with the spirit of the Hon'ble Supreme Court's Judgment in C.P No. 22/2013 and the essence of the Objective Evaluation Form to be used by the CSB. The Prime Minister is pleased to observe that given the seniority, eminence and stature of the individual members of the CSB, including its Chairman, it would not have been problematic for the CSB to assess the general reputation/perception regarding officers under consideration, particularly after these officers had a service experience of around twenty-five years in full public view.
9. Therefore, in view of above observation, the Prime Minister does not deem it prudent and justified to approve the CSB's recommendations forthwith in respect of officers, as to whom sufficient reasons exist for them to be considered as holding reputation of being corrupt or known to be dishonest or perceived to be so and desires that only officers with impeccable red be promoted in public interest. {{TABLE}} Mian Zulkarnain Aamir Major (Rtd)
Mr. Ahmad Yar Khan Sq. Ldr. (Rtd.)
Mr. Manzar Hayat Mr. Aftab Ahmad Maneka Mr. Muhammad Asia.' Hayat Mr. Javed Nisar Syed
29. Mr. Sajjad Ahmad.
33. Mr. Imran Afzal Cheema
36. Mr Saqib Aleem i
39. Mr. Muhammad ljaz 41 Mr. Naveed Kamran Baluch Mr. Mukhtar Hussain Mr. Lqbal Ahmad Babalani. {{TABLE}}
12. As regards the case of Mr. Farooq Ahmad Khan (appearing at Serial No. 1), the Prime Minister is pleased to observe that the officer is not fit as yet to be promoted to BS-21 on account of his palpable and manifest disinterest in his service. The officer remained on extra-ordinary leave for four years and then remained an OSD for another four years. It is also a matter of public knowledge that he remained engaged in setting up; a business of his own during this period. During the ten years period between 2003 to 2012, he could earn PERs only for a period of less than three years.
The Prime Minister, therefore, is pleased to direct that his case may be reconsidered by the CSB to assess whether it is appropriate and fit for an officer, who has serious commercial interests elsewhere and not gained considerable experience during the last decade, to be promoted to a senior position in government ranks. The post, against which he was recommended to be promoted to BS-21 by the CSB, shall remain vacant until the CSB reexamines this matter and furnishes its recommendations.
13. The Prime Minister has been further pleased to approve the recommendations of the CSB for deferment of officers at para-4 (Table-II) of the summary and reservation of one vacancy in BS-21 for Mr. Aijaz Ahmad Mangi (PAS/BS-20) as stated in para-6 of the summary.
(JavaId Aslai)
Secretary To the Prime Minister, 04-2014
4. Learned counsel submits that the CSB recommended 44 PAS officers and eleven PSP Officers, but the Prime Minister confirmed recommendations of 26 officers Ale remanded the cases of 18 officers in PAS and confirmed 06 PSP officers while remanded 05 officers in PSP. Similarly 08 officers of FSP were confirmed while 04 officers were remanded by employing discriminatory subjective, illegal and arbitrary manner. She added that the impugned order does not demonstrate any intelligible difference between the officers who have been promoted and those whose cases have been remanded.
5. It is next submitted that the Chief Executive passed the impugned order in a whimsical manner relying upon general perception and did not consider formerly written PER's of the candidates earned by them over a lengthy period of service.
6. It is further submitted that the CSB recommended their cases which shows that they scored more than three marks assigned to integrity/general reputation/perception in objective assessm ent form, because a candidate scoring less than three marks in this category cannot be recommended by CSB and in that perspective, order of the Prime Minister is illegal and arbitrary.
7. It is also averred that the observations and reasons recorded in the impugned order are perverse and amount to influence the function of CSB and if the impugned order is allowed to prevail, the CSB will become a defunct body which will not be able to recommend any person against the wishes of Prime Minister.
8. It is further contended that pursuant to Rule 15(2) of Federal Government Rules of Business, the discretion of Prime Minister is largely dependent upon summary placed before him which is required to be self-contained and objective, but where the CSB expressly recommended the petitioners, there was nothing adverse which could have provided room to the Chief Executive for declining the recommendations.
9. It is lastly submitted that the Hon'ble Supreme Court in case of "Orya Maqbool v. Federation of Pakistan" held that Central Selection Board is a semi-judicial forum authorized to examine the promotion cases of officers and in that context, it is totally uncalled for action for the executive authority to put aside the recommendations of semi-judicial forum.
10. Learned counsel added that under Section 9(3) of Civil Servants Act, 1973 and Rule 7 of Promotion Rules, 1993, it is mandatory for the executive authority to act upon the recommendations of Selection Board, while the executive authority declined promotion to the petitioners without assigning any reason.
11. Learned counsel relied on case-laws titled as "Muhammad Zahir Raja v. FOP etc." [2012 SCMR 971], "Muhammad Anis, etc. v. Abdul Haseeb, etc." [PLD 1994 SC 539], "Sunny Impex v. Director, Telegraph Stores SC Workshop" [PLD 1994 SC 553], "Abdul Malik v. Sabir Zameer Siddiqui" [1991 SCMR 1129]. "Dr. Sabir Zameer Siddiqui v. Mian Abdul Malik, etc." [1991 SCMR 1130]," Syed Mahmood Akhtar Naqvi v. FOP" [PLD 2013 SC 195], "Tram Adnan v. FOP, etc." [2012 PLC (C.S) 1355, "Tariq Aziz-ud- Din, etc. v. In Re" [2010 SCMR 1301], & "Orya Maqbool Abbasi v. FOP, etc." [201 4 SCMR 1817].
12. On the other hand, resoondents resisted the petition by filing parawise comments wherein it is submitted that writ petition is not maintainable doe bar contained in Article 212(2) of the Constitution and ,that under Rule 6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the appointing authority for the poet in BS-20 & above or equivalent is Prime Minister who is competent to decide matters regarding such appointments.
13. It is also submitted that under Section 22(2) of Civil Servants Act, 1973 no representation lies on the matter relating to determination of fitness of a person to be promoted to higher post or grade.
It is added -that under OM dated 22.9.1954, competent authority for giving final approval regarding promotion is vested ith unfettered powers to accept, reject or refer back the natter to the Central Selection Board for reconsideration.
14. Learned Standing Counsel countering the allegation of discrimination submits that pursuant to para 33 of Judgment passed by the Hon'ble Supreme Court, revised Promotion Policy, 2007 enjoys force of law and the CSB makes the recommendation in individual cases, therefore, there arises no question of discrimination where Prime Minister evaluated the cases on individual merits.
15. It is further submitted that the new objective assessment form, approved by the Prime Minister, for use of CSB aims at consideration of promotion on the basis of integrity and general reputation/perception and for this purpose five marks have been separately given. The members are required to allocate marks on the basis of record/performance as reflected in the PER, evaluation reports of training courses as well as their personal knowledge about integrity, efficiency of the officer and the said addition has been made in the light of Hon'ble Supreme Court Judgment in case of "Oriya Maqbool".
16. Heard and record perused.
17. Primarily, the objection upon jurisdiction in view of bar contained in Article 212(2) of the Constitution is set aside as the Federal Service Tribunal is not: functional. Guidance is solicited from judgment passed by the Hontle Supreme Court in case-law titled as Sarfaraz Saleem v. Federation of Pakistan [PLD 2014 SC 232] wherein it is held that " Bar on jurisdiction of High Court under Article 212(2) of the Constitution would not come into play till the Federal Service Tribunal was established in terms of Section 3(3)(a) of Service Tribunal Act, 1973 and it was actually functional so as to attend the grievance of a Civil Servant under its jurisdiction".
18. Adverting to the merits of case, the proposition involves various important questions namely:---
(i) What is the broader import of recommendations by Central Selection Board and what are the parameters of the authority to be exercised by the Prime Minister after receipt of recommendations by the Central Selection Board?
(ii) Whether the Central Selection Board did not adhere to the Promotion Policy;
(iii) When deferment can be ordered; &
(iv) Whether Central Selection Board adopted any distinct procedure for analyzing the cases of petitioners?
19. Promotion to BS 21 is governed by Section 9 of Civil Servants Act, 1973 and Rule 7 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 which read as following:- ' SECTION 9(3) of Civil Servants Act, 1973 ' Promotion to posts in basic pay scales 20 and 21 and equivalent shall be made on the recommendations of a selection board which shall be headed by the Chairman Federal Public Service Commission.
' Rule 7 of the Civil Servants Rules, 1973. Promotions and transfer to posts in basic pay scale 2 to 18 equivalent shall be made on the recommendation of the appropriate departmental promotion committee and promotions and transfer to posts in basic pay scales 19 to 21 and equivalent shall be made on the recommendation of the selection board."
20. The mechanism of Central Selection Board amplifies the principle of collective wisdom and dissolves the concentration of power in one person. Legislative intent is evident from use of word "SHALL", in Section 9(3) of Civil Servants Act, 1973 and Rule 7/of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 signifies the mandatory character of recommendations by Central Selection Board and under the scheme provided in the law, Prime Minister retains no authority to scrutinize the recommendations of the Board rather he shall act according to proposal of CSB except where procedural or compositional flaw is apparent and in that case the Chief Executive can remand the recommendations for reconsideration and removal of flaw.
21. The Law has neither bestowed omnipotent authority upon the Chief Executive nor the perception of superior political will is correct, because the spirit behind enactment of statutes such as Civil Servants Act, 1973 is to do away with the arbitrariness. Guidance is solicited from the case titled as Syed Mehmood Akhtar Naqvi v. FOP [PLD 2013 SC 195] wherein the Hon'ble Supreme Court held as follows:---
10. It is worth noting that the Constitutions of 1956 & 1962 contained Chapters outlining certain safeguards for the civil service. In the 1973 Constitution, the framers omitted a similar chapter from the Constitution and shifted the onus to ordinary legislation. The Law Minister at that time, who was steering the Constitution Bill informed the Constituent Assembly that in the past, Constitutional protection for civil servants had been granted "because those who served came from outside and they needed these protections in respect of service." However, since now " this country [was] being run by the leaders of the people" , such protections were no more necessary. The purpose of this change, therefore, was to [break] away from the past colonial traditions and to emphasize the point that civil servants were not entitled to "any superior or higher status" compared to other citizens. Another reason the Law Minister gave was that the "Constitution is the basic document providing the fundamentals and, this matter was not so fundamental as to be provided in the Constitution." "(Parliamentary Debates, 31st December, 1972 and 19th February, 1973). It was therefore, decided that, as stated in Articles 240, 241 & 242 of the Constitution, the matter would be dealt with through statutes. Such statutes were subsequently passed and include the Civil Servants Act, 1973. It may be emphasized that whatever else the intent behind these changes may have been, it could not have been meant to subjugate of civil servants to constantly changing political imperatives. The intent of the Constitution cannot but be a fuller realization of the goal set out in the speech of the country's founding father quoted earlier: "fearlessly, maintaining [the] high reputation, prestige, honour and the integrity of the civil service."
11.... It was in this spirit, i.e. Providing meaningful legal guarantees to civil servants and doing away with arbitrariness, that Parliament enacted statutes such as the Civil Servants Act, 1973. The very object of this statute is to legally regulate the appointment of persons to, and the terms and conditions of service of persons in, the service of Pakistan (Preamble). The rule of law is the key idea reflected in the whole scheme of the statute. This impression is textually reinforced by the express stipulation that appointment of civil servants shall be made only "in the prescribed manner". (S. 5) that the terms and conditions shall be only such as are "provided in [the] Act and the Rules "[S. 3(1)] and not be "varied to his disadvantage" [S.3 (2) and the promotions shall only be made on the basis of objective criteria such as "merit" [S. 9 (2) (a)] and "seniority-cum-fitness." [S. 9 (2) (b)].
12 This Court, in a number of precedents has interpreted and emphasized these very principles, some of which need to be reiterated at this point. Before that, however, we may note the percept and rule of public trust which forms the basis of this area of the law. This Court has repeatedly observed that "functionaries of the State are fiduciaries of the people and ultimately responsible to the people who are their pay masters." [Syed Yousaf Raze Gillani v. Assistant Registrar (PLD 2012 SC 466) affirming Muhammad Yasin v. Federation of Pakistan]. Most recently, in the case relating to dual nationality of Parliamentarian, we have reiterated that "all State authority is in the nature of a 'sacred trust' and its bearers should therefore be seen as fiduciaries" (Mehmood Akhtar Naqvi v.
Federation of Pakistan, Const. P.5/2012). One of the implications of this concept, highlighted in the case-law considered below, is that the matter of tenure, appointment, posting, transfer and promotion of civil servants cannot be dealt with in an arbitrary manner; it can only be sustained when it is in accordance with the law. Moreover, the use of the words 'in the public interest' in such matters are not fatuous or pointless, but emphasize the fiduciary nature of orders relating to tenure, posting etc. Thus a proposed decision which deviates from the accepted or rule-based norm without proper justification can be tested on the touchstone of a manifest public interest.
13. Tenure, appointment, promotion and posting/transfer are of utmost importance in the civil service. If these are made on merit in accordance with definite rules, instructions etc., the same will rightly be considered and treated as part of the terms and conditions of service of a civil servant. If, however, rules and instructions are deviated from and as a result merit is discouraged on account of favouritism, safari or considerations other than merit.:"
22. The discretion assigned to the competent authority under Rule 6 of Civil Servants (Appointment, Transfer & Promotion) Rules, 1973 are subjected to law and rules cannot be used in mechanical manner because every discretion is coupled with responsibility to use the same justly fairly and transparently. Guidance is solicited from case of "Tariq Aziz-ud-Din, etc. In respect of Human Rights Case [2010 SCMR 1301] wherein it is held that:--- "---Fair and transparent discretion, exercise of Action must be based on fair, open and just consideration to decide matters more particularly when such powers are to be exercised on discretion---Arbitrariness in any manner is to be avoided to ensure that action based on discretion is fair and transparent---Discretion is to be exercised according to rational reasons which means that; there be finding of primary facts based on good evidence and decisions about facts be made for reasons which serve the purpose of statute in an intelligible and reasonable manner---Actions which do not meet these' threshold requirements are considered arbitrary and misuse of power:--- - ' The Hon'ble Supreme Court in case of Orya Maqbool Case at pare 41 observed that "Central Selection Board, being semi-judicial forum, his been authorized to examine the cases of the officers justly and fairly. Semi-judicial character requires just and fair examination which does not correspond to the utilization of unauthentic knowledge. The criteria laid down by the Hon'ble Supreme Court for exercise of discretion includes ascertaining the facts on the basis of good evidence and when the observations of the I Chief Executive are examined on the above touchstone, no other conclusion can be drawn except that the observations were based on hearsay and superficial knowledge which cannot be presumed 'good evidence' by any stretch of evidence. Unfortunately, same stance has been taken before this Court which is not laudable at all, para 1 of the report reads as following"
"The CSB Board Members allocate marks on the basis of record/performance of the officer as reflected in the PERs, Evaluation Reports of training courses as well as personal knowledge of the Board members about integrity/efficiency of the officer as known to them. [underlining added]"
23. It is not just and proper that a person should act upon his personal knowledge because it might entail chaotic result as personal knowledge connotes action upon hearsay which cannot be called good evidence. Secondly, it deprives a person of the fundamental guarantee to defend notion adverse to his rights on the ground of adverse remarks in the PERs which can be defended through representation. Where a person is dealt on the basis of assumptions, it connotes that due process of law as enshrined in Article 10-A of the Constitution has been negated with violation of fundamental rights. The Hon'ble Supreme Court in case of Babar Hussain Shah v. Mujeeb Ahmed Khan [2012 SCMR 1235] held as follows:--- "Although from the very inception the concept of fair trial and due process has always been the golden principles of administration of justice but after incorporation of Article 10-A in the Constitution of the Islamic Republic of Pakistan, 1973 vide 18th Amendment, it has become more important that due process should be adopted for conducting a fair trial and order passed in violation of due process may be considered to be void."
24. Respondents have also fallen in grave error while interpreting the judgment of the Hon'ble Supreme Court in Orya Maqbool Case because the Hon'ble apex Court did not pass any direction regarding use of personal knowledge by the members of CSB. It would not be out of place to reproduce the directions passed by the Hon'ble Supreme Court in Orya Maqbool Case in para 50 of the Judgment:--- 50.................. Thus, it is held as under:-
(i) The petition under Article 184(3) of the Constitution has been held to be maintainable and is allowed.
(ii) The promotion from BS 20 to 21 against available vacancies has to be made in accordance with reserved quota for the promotion of different groups i.e. PAS, Secretariat etc., as a result whereof instead of cancelling the promotion of the officers from Sr. No. 57 to 80 all cases of promotion against 88 vacancies of BS-21 is hereby cancelled being void and unlawful and fresh exercise has to be undertaken alongwith the cases of the civil servants which have been remanded by the Lahore High. Court in Liaqat Ali Chughtaai case (PLD 2013 Lahore 413) and the cases decided Islamabad High Court in W.P No. 3483 of 2011. Consequently, notification of promotion of all the officers issued in pursuance of the recommendations of CSB held in 11th-14th February and 27th February, 2013 is hereby set aside with direction to the competent authority to undertake the process of the promotion to all of them as observed hereinabove strictly in accordance with law on merits under Section 9 of the Civil Servants Act, 1973, read with rules 7, 7-A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 as well as Promotion Policy as amended upto date, vide OM dated 13.1.2013.
(iii) The Government shall also undertake exercise to outline the objective criteria for promotion to make the civil servant an honest officer and free from political pressure as has been noted hereinabove.
25. So far as the objection "that promotion is not a vested right" is concerned, it is true but at the same time it cannot be lost sight of that protection under due process of law is guaranteed to every citizen under Article 4 of the Constitution and where an authority acts in derogation of law then such act can be assailed under Constitutional jurisdiction. Guidance is solicited from case of Tariq Aziz-ud-Din Supra wherein the Hon'ble Supreme Court held that promotion is not a right but an officer deserves that his case should be considered for promotion in accordance with law.
26. No reasons have been given by the competent authority which can be termed as violation of the promotion policy 2007. The inquiry into the credentials and lifestyle of the candidate requires proper modus operand to be laid down by the Competent Authority. The members of Board cannot be said to have failed to exercise the authority as no such procedure has been laid down for assigning marks in the prescribed Objective Assessment Form because they had recommended the candidates on the basis of PERs and other tangible material available.
27. Another objection taken by the respondents is that deferment does not run counter to the rights of the petitioners; therefore, the same cannot be challenged. In this connection it is ironical to note that in Oriya Maqbool Case the Hon'ble Supreme Court recorded same objection in para 28 of the Judgment and notwithstanding that objection the appeal was allowed as the impugned action was found violative of the law and Constitution. On the same analogy where the impugned deferments order is glaringly in violation of law and has been passed through arbitrary exercise of discretion, it can be rescinded.
28. Even otherwise deferment cannot be ordered under pick and choose and can only be passed on cogent reasons of procedural deficiencies which are not available in the present case.
29. Apart from above, the impugned order suffers from discrimination because the individual cases of all the candidates were recommended through uniform procedure, therefore, it is not tenable that in case of few officers, the recommendation was acted upon while some were declined on the flimsy ground of non-fulfilment of objective evaluation.
30. In view of above, impugned order is found to have been passed by exceeding the authority in violation of Article 25 of the Constitution, therefore, the same to the extent of present petitioners is set aside and the petitions are allowed. In consequence thereof, the respondents are directed to issue notification of petitioners' promotion w.e.f the date their colleagues were promoted. No order as to costs.