AZIZ-UR-REHMAN, J.--- Through this common judgment we intend to dispose of the above Constitutional Petitions i,e, C.P. No,D-786 of 2014 (Ahmed Saeed Siddiqui v. Pakistan through Secretary Establishment and others) C.P. No,D-787 of 2014 [Dr. Aftab Imam v. Pakistan through Secretary Establishment and others] and C.P. No,D4054 of 2014 [Muhammad Saeed Nashir v.
Federation of Pakistan through Secretary Establishment and others] which pertain to the similar issue of promotion from BPS-20 to BPS-21 or BPS-19 to BPS-20 [in the case of petitioner in C.P.No,D- 4054 of 2014] coupled with for seeking direction to the respondents, inter alia, to consider the petitioners for promotion. Almost, common prayers have been sought by the petitioners in C.P.No,D-786 of 2014 and C.P.No,D-787 of 2014 [hereinafter the 1st two C.Ps.] which read as follows:-- -
(a) Declare the meeting and decisions of the CSB dated 13-2-2014 in respect of promotion from BS-20 to BS-21 of officers of the Inland Revenue to be completely mala fide, without any basis, illegal, arbitrary, void ab-initio and of no legal effect, while setting aside the same;
(b) direct the respondents to consider the petitioner for promotion in BS-21.
(c) declare Office Memorandum dated 12-10-2012 (Annex-C to the petition) to be completely without jurisdiction, illegal, void ab initio and of no legal effect;
(d) permanently and pending disposal of the main petition restrain the respondents, their officers/agents from notifying any persons junior to the petitioner in BS-21 in the Inland Revenue Service of the FBR;
(e) direct the respondents to submit before this honourable Court the entire minutes and record of the CSB dated 13-2-2014, the Performance Evaluation Reports (PERs) of petitioner, his entire data and record in respect of SMC and NMC training programmes, so also the precise reasons given by CSB for the discretionary deferment to the petitioner;
(f) award costs and special costs;
(g) award any other relief deemed fit.
2. The only difference in the 'prayer clause' sought by the petitioner viz. Muhammad Saeed Nashir in C.P.No,D-4054 of 2014 [hereinafter the 3rd C.P.] is to the extent of his Grade [i,e, BPS-19] and promotion from BPS-19 to BPS-20. Rest of the prayers are almost the same.
3. The relevant facts in the background are as follows:---
4. That the petitioners in C.P. No,D-786 of 2014 and C.P. No,D-787 of 2014 are working in the Inland Revenue in the BPS-20 and have the required length of service in BPS-20 for promotion to BPS-21.
Per respondents version, under the 'Promotion Policy' as prescribed in the Estacode, the necessary requirements for the officers in BPS-20 for promotion into BPS-21 are as under:-- "(a) the officers should have undertaken 22 years of service in BS-1 7 and above;
(b) the blood count of the officers should be 75%."
5. Per 'Promotion Policy' as prescribed in the Estacode, the blood count as averred by the petitioner is arrived at in the following manner:--- "(a) 75% marks are attributed to the quantification of the Performance Evaluation Reports (PERs)
(formerly known Annual Confidential Report i,e, ACRs). The PER quantification is to be made as per the mathematical formula given in the Promotional Policy/Estacode;
(b) 15% marks are attributed towards training. The officers in BS-20 have to undertake training at the National Management College (Administrative Staff College), now known as the National Management Course (NMC);
(c) 15% marks are attributable solely at the discretion of the Central Selection Board (CSB) i,e, the respondent No,3."
6. According to the petitioners, in terms of S.I. No,160 [Estacode], the seniors officers cannot be left out or ignored for promotion much-less when they possess/have attained the requisite eligibility requirements of working. Per averments, made in C.P.No,D-786 of 2014 and C.P. No,D-787 of 2014, both the petitioners therein have not been recommended for promotion in BPS-21. So also the petitioner viz. Muhammad Saeed Nashir in C.P.No,D-4054 of 2014 was not recommended for promotion from BPS-19 to BPS-20 in the Board meeting of CSB held on 13th February, 2014.
7. The respondent No,3, as averred, held its' meeting on 13th February, 2014. The petitioners in the first two C.Ps. besides being seniors officers with un-blemished record and lawfully acquired blood count, however, were not recommended for promotion to BPS-21 by the Central Selection Board [in short CSB] in its' meeting held on 13th February, 2014. While, officers juniors to them, per reliable source, were recommended for promotion without any lawful justification. The reasons for not recommending the petitioners, however, were not conveyed to petitioners. Rather to say, the petitioners were ignored for extraneous reasons despite having attained the required blood counts etc.
8. Under the aforesaid scenario, the petitioners herein have not only challenged the failure of respondents to consider the petitioners for promotion in BPS-21 or BPS-20 [in the case of 3rd petitioner] but also the decision taken by the CSB in its' meeting held on 11th, 12th and 13th February, 2014 wherein the cases of petitioners, nonetheless, were deferred.
9. Per averments, the failure/refusal of the respondents to consider the petitioners for promotion in BPS-20 to BPS-21 [in the case of 1st two petitioners] and BPS-19 to BPS-20 [in the case of 3rd petitioner], is not only mala fide, illegal, void ab initio but also without jurisdiction. The mala fides of the respondents can be appreciated from the facts that although the petitioners had successfully completed NMC [National Management Course] and all along their, performance was also extolled by their reporting countersigning officers. All the petitioners, no doubt, had earned good, very good, excellent and outstanding performance evaluation in their ACRs/PERs throughout their career spending over years but they were ignored by CSB in its meeting held on 13th February, 2014 for un- known reasons.
10. Moreover, the respondents in a manner completely without jurisdiction and illegally prescribed 'Office Memorandum' dated 12-10-2012 stating the 'revision of Promotion Policy'. Such 'Revision, of Promotion Policy' has no legal sanction behind it. The 'Office Memorandum' it is worth to note is against the very percept of 'structuring the discretion'. Per stand taken by the respondents, once the PER reflects the work of civil servant satisfactory, then there would be no justification to have prescribed, such 'revision of Promotion Policy', conferring absolutely 'subjective discretion' on the respondents. 'Office Memorandum' in view of this position is completely illegal, without jurisdiction and, of course, cannot be given effect to it on any ground whatsoever.
11. The above 1st two petitions bearing C.Ps. Nos.D-786 and 787 of 2014 when came-up before the court on 19-2-2014, then besides issuing notice to the respondents and learned D.A.-G., the following order was passed:-- "19-2-2014 Dr. Muhammad Farogh Naseem, Adv. for the petitioner.
1. Urgency granted.
2. "It is inter alia contended by the learned counsel that the petitioner is performing his duties in BS-20 in the Inland Revenue and according to the Promotional Policy as prescribed in the Estacode the petitioner is entitled for promotion from BS-20 to BS-21. It is further stated that the petitioner is in service for the last 22 years. A meeting of Central Selection Board (CSB) was held on 13-2-2014 for the promotion of 17 officers in BS-21 of the Inland Revenue and according to the information the petitioner was also recommended for promotion in BS-21, but he came to know that despite being senior, having an unblemished record and huge length of service his recommendation for promotion in BS-21 was not considered.
Issue notice to the respondents as well as to DAG. Meanwhile, one post in BS-21 (Inland Revenue) shall not be filled by promotion of any junior officer till next date of hearing."
9. Likewise, when the 3rd C.P.No,D-4054 of 2014 came up before the court on 7-8-2014, then the following order was passed:--- "7-8-2014 Mr. M. Jamshed Malik advocate for petitioner -----------
1. Urgent application is granted.
2. Exemption application is granted subject to all just exceptions.
3 and 4. It is, inter alia, contended by the learned counsel for petitioner that the petitioner is presently working in Inland Revenue Department in BS-19 and has the acquired length of service in grade BS-19 so as to be promoted to grade BS-20. As per learned counsel for petitioner the respondent No,3 in its Minutes held on 11th, 12th and 13th February, 2014 for consideration of promotion recommended promotions of 46 officers in BS- 19 of the Inland Revenue Department but it did not recommend the petitioner to promote him. As per learned counsel for petitioner the action of respondent No,3 is illegal and mala fide. Learned counsel for petitioner states that in similar and identical circumstances some other officers have also challenged such Promotion Policy by filing of C.P.No,D-787 of 2014 in which on 19-2-2014 restraining order was passed after issuing the notice to the learned D.A.G. to the effect that one seat in BS-20 (Inland Revenue) shall not be filled in by promotion of any junior officer till next date of hearing. Learned counsel for petitioner submits that same treatment may also be extended to the petitioner as this case is identical and similar to the case of petitioner who has filed C.P.No, D-787 of 2014, Issue notice to the respondents as well as learned D.A.G.
Till next date of hearing one another seat of post of BS-20 (inland Revenue) Department shall not be filled-in by promotion of any junior officer. As other similar and identical petition is fixed on 13- 8-2014 this petition be also fixed 'together aforementioned petition on the same date and before the same Bench."
10. Upon service, only the respondent No,2, filed their comments in C.P.No,D-786 of 2014 and C.P.No,D-787 of 2014 wherein inter alia, the locus standi of the petitioners as well as the accrual of any 'cause of action' in their favour was denied. The infringement of any right was also denied. Per respondents' version, the present petitions as framed and filed by the petitioners besides misleading are misconceived. Passing of any 'adverse order' against the petitioners was also denied. Moreover, per respondents' stand, the Service Matters of civil servants, purely fall within the exclusive jurisdiction of the Federal Service Tribunal [in short FST] thus the same under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 cannot be agitated in the Constitutional Petitions filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. On this score alone, as per contentions of the respondents, the present petitions are liable to be dismissed in limine, as the petitioners have wrongly invoked the jurisdiction of this court.
10. The petitioners, per respondents' stand, have no legal rights to contest their non-promotion muchless in view section 22 of the Civil Servant Act, 1973 which provides that no representation shall lie on the matters pertaining of determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Indeed, consideration for promotion 'is a right' of civil servant, but such promotion is not a vested right of the petitioners. No doubt, pre-requisite ingredients, for consideration of promotion is the length of service and seniority but the competent authority, however, can also consider overall record of the civil servants including their seniority, variety of experience, integrity, reputation and equality of service. The petitioners' cases, per averments, no doubt, were placed for consideration of promotion before Central Selection Board [in short CSB] in its' meeting held on 13-2-2014, however, their cases were deferred by CSB with the following remarks:--- "The departmental representative Chairmen FBR stated before the Board that he was not satisfied with recent performance of the officers. He recommended to put the officer under observation in order to assess his performance. The Board considering all the facts agreed with officer with direction of Chairman FBR to come up with clear recommendation in next CSB meeting".
11. According to the respondents' version, the cases of petitioners will be placed for consideration before the Central Selection Board [CSB] for promotion in its' next meeting whenever it is held in accordance with 'Promotion Policy'. The competent authority while, considering the promotion of the petitioners amongst others will consider the commitment of the petitioners to job, dedication to duty, power to take decision, acceptance to responsibility integrity and variety of experience etc. The petitioners, however, presently, did not possess the requisite requirements for promotion as such was deferred. The comments/opposition of the petitioners on the point of legality and jurisdiction of 'Office Memorandum' dated 12-10-2012 besides uncalled, baseless are without any legal footings.
14. On 13-8-2014, when the above petitions came-up before us, we heard Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.P.No,D-786 of 2014 and C.P.No,D-787 of 2014, Mr. M.
Jamshid Malik, learned counsel for petitioner in connected C.P.No,D-4045 of 2014, Mr. Kafeel Ahmed Abbasi, learned counsel for the respondent No,2, Mr. Zakir Laghari, learned counsel for respondent No,2 in C.P. No,D-786 of 2014 along with Mr. S. Nooruddin Ahmed, Co-ordinator [Legal] Karachi and Mr. Asif Hussain Mangi, learned Standing counsel for respondents Nos.1 and 3 and with their valuable assistance also scanned the record available before us.
15. Dr. Muhammad Farogh Nasim, learned counsel for petitioners in C.Ps.Nos.D-786 and D-787 of 2014, vehemently contended that the respondents failure/refusal to consider the cases of the petitioners for promotion in BPS-21 besides, mala fide, illegal, void ab initio, without jurisdiction is of no legal effect. The mala fides of the respondents, are evident from the record. Both the petitioners [in the 1st two C.Ps.] have the outstanding PER for the period 1-12-2012 to 3-3-2012. The non- availability of their PER for the remaining period of service in PBS-20 is not due to the petitioners' fault and/or negligence. The petitioners rather had successfully completed NMC training. All along, the performance evaluation of the petitioners remained 'satisfactory', 'good', 'very good' and - 'excellent' as per their PER/ACRs of their careers spending over years.
16. Dr. Muhammad Farogh Nasim, learned counsel for the petitioners [in the 1st two C.Ps.] further urged, that 'Office Memorandum' dated 12-10-2012 is without jurisdiction and seemingly has been issued in a mala fide and illegal manner. Firstly there is no legal sanction behind the 'Office Memorandum' and secondly such 'Office Memorandum' is against the percept of 'structuring the discretion'. According to the learned counsel, once the PERs/ACRs reflect Work of the civil servant satisfactory then there would be no justification of prescribing such a revision of the promotion policy', conferring absolutely 'subjective discretion' on respondents. In view of this position as well, 'Office Memorandum' dated 12-10-2012 is without jurisdiction and illegal.
17. Learned counsel for petitioners in the 1st two C.Ps., next argued that the 'adverse remarks' made while, considering the cases of the petitioners by CSB not only are mala fide but also not supported by any materials available on record. Per learned counsel, due to such 'adverse remarks' the petitioners nonetheless were denied their promotions. Such denial of promotion is not only illegal but also without any lawful justification. According to Mr. Farogh Nasim, learned counsel for petitioners in 1st two C.Ps., the bar of jurisdiction under Article 212 of the Constitution does not apply as there is no impugned order and the cases of the petitioners otherwise, pertain to fitness to hold higher post and promotion and prospect of promotion only.
18. In support of his contentions, Mr. Farogh Nasim, learned counsel for the petitioners in 1st two C.Ps. placed reliance on the following cases :---
(i) Syed Mahmood Akhtar Naqvi and others v. Federation of Pakistan and others [PLD 2013 SC 195]
(ii) Tariq Aziz-ud-Din and others [2010 SCMR 1301]
(iii) Orya Maqbool v. Federation of Pakistan and others [2014 SCMR 817]
(iv) Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lahore 413].
19. Apart from the above case-laws, the learned counsel also placed reliance on an unreported judgment dated 19-12-2012 passed in C.P.No,D-3430 [Saleem Butt and others v. Pakistan through Secretary Establishment Division .Cabinet Secretariat, Islamabad and others] and other connected C.Ps. [i,e, C.Ps.Nos.D-3431, 3574, 3698 of 2011, C.P. No,D-11, 214 and 704 of 2012], wherein the learned Divisional Bench of this Court while, disposing of the aforesaid petitions had observed as follows:-- - "We are of the view that when promotion of an employee is being considered then there has to be some material on record to show that the employee is either inefficient or does not possess requisite qualification or has been involved in corrupt practices. There has to be some material in Performance Evaluation Reports in order to come to the conclusion that a candidate is not fit to be promoted. The adverse opinions formed by Central Selection Board apparently do not take into account the material contained in the Performance Evaluation Reports. We are therefore of the opinion that let Central Selection Board reconsider the cases of the petitioners afresh for promotion from BS-19 to BS-20 to BS-21, as the case may be, and in case it is found that any of the petitioners is not fit for promotion then opinion in such regard should be based on some material available on the record from which it becomes evident that a particular candidate was either inefficient or did not have requisite qualification or indulges in corrupt practices. Hence, we set aside the earlier decision of the Central Selection Board with regard to the non-suitability of petitioners' promotion and direct that the Central Selection Board to de novo consider the promotion of the petitioners in its next/future meetings [Underlining is ours].
These petitions stand disposed off in the above terms."
20. Lastly learned counsel prayed for allowing the petitions as prayed.
21. Mr. Jamshid Malik, learned counsel for petitioner in C.P. No,D-4054 of 2014 while, adopting the arguments of Dr. Muhammad Farogh Nasim, learned counsel for the petitioners in 1st two C.Ps. also prayed for allowing the Petition No,D-4054 of 2014 [Muhammad Saeed Nashir v. Federation of Pakistan through Secretary Establishment and others].
22. Conversely, Mr. Asif Hussain Mangi, learned Standing Counsel, Mr. Kafeel Ahmed Abbasi, learned counsel for respondent No,2 in C.P. No,D-787 of 2014 and Mr. Zakir Laghari, learned counsel for respondent No,2. in C.P. No,D-786 of 2014 along with Mr. S. Nooruddin Ahmed, Co-ordinator [Legal] Karachi forcefully contended that present petitions as framed and filed are not maintainable in law. Per learned counsel, the service matters cannot be questioned under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973. The petitioners in the instant petitions have no legal right to contest their non-promotion. Under section 22 of the Civil Servants Act, 1973, no representation lie on the matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Indeed, consideration for promotion is a right of a civil servant but admittedly, promotion is not a vested right. Further the recommendations of CSB is still awaited as such, the present petitions being pre-mature are liable to be dismissed with cost.
23.Moreover, the petitioners in the instant petitions have merely acted on presumptions and hearsay, as such the present petitions are not maintainable. The contentions of the petitioners in actual fact is merely based on apprehension and that too at the pre-mature stage as such all the petitions being devoid of merits thus deserve outright rejection. Per respondent No,2 stand, the cases of petitioners indeed, would be 'considered for promotion' in the next CSB's meeting, as and when it is held. Per averments, the Central Selection Board had deferred the case of the petitioners with direction to the Chairman CBR to come up with clear recommendations in the next CSB's meeting.
24. Learned counsel for the respondent No,2, in support of his contentions has placed reliance on the case of Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others [PLD 2008 SC 769]. The relevant observations read as follows:--- "6. As regard the first contention raised by the learned counsel for the appellant that since very eligibility of respondent No,5 for promotion to the next higher grade was disputed as compared to the appellant, therefore, the learned Tribunal could not have declined to exercise jurisdiction by bringing the matter under section 4(b) (i) of the Act, it may be pointed out here that eligibility for promotion and fitness for promotion are distinct and separate from each other. Eligibility relates to the terms and conditions of service, whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a Tribunal or a Court hence, neither eligibility to promotion can be equated with promotion nor prospects of promotion can be included in terms and conditions of service. It is well-settled that though eligibility A' for promotion of a civil servant can be subjected to judicial scrutiny by the Service Tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction under section 4(b)
(i) of the N-W.F.P. Service Tribunals Act, which reads as follows:--- "4. Appeal to Tribunals (a)...............
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:
(i) the fitness or otherwise of a person to be appointed to a higher post or grade; In a number of judgments, it has been repeatedly laid down by this Court that though the question of eligibility relates to the terms and conditions of service and therefore, would fall within domain of the Tribunal yet, the question of fitness of a civil servant for promotion is barred from the jurisdiction of the Tribunal. Reference in this regard may usefully be made to the following reported judgments:--
(i) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539)
(ii) Muhammad lqbal v. Executive District Officer (Revenue) (2007 SCMR 682)
(iii) Syed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323)
(iv) Allan Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCMR 1129)
(v) Muhammad Akram and others v. The State and others (1996 SCMR 324)
No doubt it has also been, in some cases including (i) Muhammad Anis (supra), (ii) Muhammad Rehman Khan v. Chief Secretary, N-W.F.P. and others (2004 PLC (C.S) 62), (iii) Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority and others (2002 SCMR 574), and (iv)
Zafarullah Baloch v. Government of Balochistan and others (2002 SCMR 1056), laid down by this Court that when a civil servant was eligible for promotion but ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, yet, in the instant case, since the appellant had failed to show that respondent No,5 was ineligible for promotion, therefore, the learned Tribunal had rightly declined to interfere with the order of the departmental authority. Needless to point out that though consideration for promotion is a right yet, the promotion itself cannot be claimed as of right. Record reveals that the cases of both the appellant as well as respondent No,5 were thoroughly considered by the Selection Board and since respondent No,5 was found fit for promotion, therefore, his name was recommended. The contention therefore, is devoid of force. ---------
9. In the wake of above, it thus follows that where promotion to posts carrying basic pay scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i,e, BPS-19 and above is to be made on the basis of "fitness-cum-seniority" meaning thereby that in the earlier case, i,e, BPS-18 and above seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i,e, BPS- 19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and effect of rules, by virtue of subsection (2) of section 25 of the Civil Servants Act, 1973 as has been held by this Court in the cases of (i) Secretary to the Government of the Punjab v. Abdul Hamid Arif and others (1991 SCMR 628) and (ii) Muhammad Yousaf and others v. Abdul Rashid and others (1996 SCMR 1297), therefore, this contention too, has no force.'' [Underlining is ours]
25. Heard.
26. To appreciate the contention of the learned counsel for the parties, it would be appropriate to reproduce herein section 3(2) of Service Tribunal Act, 1973 which reads as follows:--- "3. Tribunals. --- (1) The President may, by notification in the official Gazette, establish one or more service Tribunals and, where there are established more than one Tribunal, the President shall specify in the notification the class or classes of civil servants in respect of whom, or the, territorial limits within which, or the class or classes of cases in respect of which, each such Tribunal shall exercise jurisdiction under this Act.
(2) A Tribunal shall have exclusive jurisdiction in respect of matters relating to the terms and conditions of service of civil servants, Including disciplinary matters."
27. Being relevant Article 212 of the Constitution of Islamic Republic of Pakistan is also reproduced hereinbelow:--- "212. Administrative Courts and Tribunals. -- (1) Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act establish one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of---
(a) matters relating to the terms and conditions of persons in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law.
(2) Notwithstanding anything hereinbefore contained, where any Administrative Court or Tribunal is established under clause (1), no other Court shall grant an injunction, make any order or entertain any proceedings in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends: Provided that the provisions of this clause shall not apply to an Administrative Court or Tribunal established under an Act of a Provincial Assembly unless, at the request of that Assembly made in the form of a resolution, Parliament by law extends the provisions to such a Court or Tribunal.
(3) An appeal to the Supreme Court from a judgment, decree, order or sentence of an Administrative Court or Tribunal shall lie only if the Supreme Court, being satisfied that the case involves a substantial question of law of public importance, grants leave to appeal."
28. Let in the first place, the objection viz-a-viz jurisdiction of this court be taken up for consideration. Under law the matters pertaining to the appointment, posting, promotion and consideration for promotion of civil servants need to be dealt with in a fair manner otherwise any treatment given in violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 would be open to challenge under Article 199 of Constitution of Islamic Republic of Pakistan, 1973. In the cases in hand the 'adverse remarks' made by CSB are not only arbitrary but also against the fundamental rights of the petitioners as provided under Articles 9, 14 and 18 of the Constitution, 1973. The violation of the fundamental rights, indeed, can validly be challenged by a civil servant by means of filing of the constitution petition. Any action or inaction which is arbitrary and not supported by materials on record or otherwise, based on 'un-disclosed', materials can validly be challenged through filing of Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and in such eventuality the jurisdiction of this court would not barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. Only merit based decisions made by the CSB without violating of the fundamental rights, in our opinion, would be barred under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 and not otherwise. Needless to say the 'non-consideration' of the petitioners' cases for promotion can validly be challenged under Article 199 of the Constitution, 1973
29. Indeed, the petitioners have no vested right to be promoted but yet in terms of section 9 of the Civil Servants Act, 1973 [No,LXXI of 1973] they are entitled to be considered for promotion. In the present petitions, per averments, the junior officers have been considered for promotion which is nothing but a glaring of violation of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 particularly, when the left out officers are eligible for promotion. Be that as it may, such decision being based on arbitrariness would always be open to correction under the exercise of constitutional jurisdiction. The deferment of the petitioners cases for promotion by CSB on 13th February, 2014 while placing reliance on the personal opinion of the Departmental representative, ex-facie seems contrary to the 'doctrine of fairness and due processes' as provided under Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973.
30. On the aforesaid aspect of the matter, the relevant observation from the case of Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others [PLD 2013 Lah. 413] reads as under:--- "23. Pakistan is a constitutional democracy which rests on rule of law which in turn is pillared on fairness and due process. Now with Article 10A of the Constitution, it is a fundamental right of -the petitioners that the process of determination of civil and criminal rights must at every step pass the test of fairness and procedural propriety. There is no room for CSB to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by Member(s) of CSB.
Without the Member(s) first tabling the tangible evidence against an officer before the Board and then confronting the said evidence to the officer under consideration, the Board cannot place reliance on the said evidence. Syed Jamshed Ali, J. (as he then was) speaking for the Division Bench of this Court in Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, ,Government of Pakistan, Pak Secretariat, Islamabad v. Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others, [(2003 PLC (C. S.) 503)] held:--- "A bare allegation of one of the members of the Selection Board, against whom there is an uncontroverted allegation of personal malice, not supported by any tangible material and not even justified' when he was called upon to submit comments to this writ petition, could not, therefore, be accepted as a valid ground to supersede the petitioner. We are quite mindful that the Selection Board comprises of very high personage with variety of experience and wisdom yet they are human beings and cannot he said to be in fallible. Such a presumption is neither warranted by reality nor supported by the history. We are also mindful that we cannot substitute the opinion of the Selection Board with over own opinion yet we may observe here that if the opinion as to unsuitability of an officer for promotion is not based on any material, the decision based thereon is rendered arbitrary and open to correction by this Court in exercise of Constitutional jurisdiction.
12. No doubt, the petitioner had no right to be promoted yet in accordance with section 9 of the Civil Servants Act (No, LXXI), 1973 he was entitled to be considered for promotion. The right contemplated by section 9 aforesaid is neither illusionary nor a perfunctory ritual. Withholding of promotion is a major penalty in accordance with the Government Servants (Efficiency and Discipline) Rules, 1973 and therefore, before a Civil Servant is condemned, he has a right to insist that the material on the basis of which he is being deprived of promotion should be disclosed to him and he should be allowed an opportunity to clear himself. The consideration of an officer for promotion 'is, therefore, to be based not only on the relevant law and the rules but also on some tangible material which could be lawfully taken into consideration. Therefore, unless the opinion of the Selection Board was backed by some tangible material, it could not be said that the case of the petitioner for promotion was considered in accordance with law. The expression "law" as employed in Article 4 of the Constitution is of wider import which includes the duty of every public functionary to act in the matter justly and fairly and in accordance with the principles of natural justice." [Underlining is ours] 31. Without 'disclosure' of 'adverse materials' and affording opportunity of defence, nevertheless, the petitioners herein were deprived of their promotion which act of the Central Selection Board
[CSB] is not only 'unfair' but also against the principles of natural justice and spirit of Articles 4 and 10-A of the Constitution of Islamic Republic of Pakistan, 1973 as well. In this regard the relevant observation from the case of Tanvir Ashraf v. Riasat Ali and 5 others [2004 YLR 659] are reproduced herein below:--- "... To arrive at a finding adverse to some person, not only cogent evidence is required but also that the affected person has to be confronted with the material sought to be used against him to fulfil the duty of "adequate disclosure" and the said person is also entitled to an opportunity of defense to rebut the material, to satisfy the requirement of the principles of natural justice and fairness to obey the command of Article 4 of the Constitution of Islamic Republic of Pakistan , 1973." (emphasis supplied)"
32.Regarding Bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and jurisdiction of this court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, we would also like to refer the case of Muhammad Jameel and 45 others v. Taluka Nazim, Taluka Municipal Administration Khairpur and 5 others [2014 PLC (C.S.) 479], wherein the Hon'ble Division Bench of this court while, dilatitig upon the maintainability of Constitutional Petition under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 held as follows:--- "33. Now touching to the last contention of Mr. Phulpoto regarding the maintainability of filing of Constitutional Petitions by the petitioners for relief claimed before this court. In our opinion, while exercising the constitutional jurisdiction, if vested right having been created in favour of any party, the denial thereof would justify issuance of direction by High Court in constitutional jurisdiction to set right the wrong. Even otherwise, in spite of the bar contained in Article 212 of the Constitution, the Constitutional Court under Article 199 of the Constitution has ample jurisdiction to give directions to public functionaries to act strictly in accordance with law in view of Article 4 of the Constitution. (1986 CLC 1403 + 2005 PLC (C. S.) 154). The purpose of constitutional jurisdiction was to do complete justice and no one should be allowed to get away with ill-gotten gains. Such jurisdiction was corrective and directory in nature and it was to be tampered with equity. Superior Court, in exercise of constitutional jurisdiction, would act as conscious keeper of the Constitution and ultimate protector of rights citizens and the society at large. High Court could not shut its eyes to wanton use and misuse of powers of State functionaries and the property of the State.
(2010 CLC 860). Therefore there is no legal embargo for filing of Constitutional Petition for availing immediate relief by the aggrieved citizens against State functionaries if misusing their legal authority." [Underlining is ours].
33. Mr. Farogh Nasim, learned counsel for the petitioners in the 1st two C.Ps. is right in saying that 'subjective evaluation' is to be based on an 'objective criteria'. In the instant petitions, however, the deferment of the petitioners' promotions is on account of 'un-disclosed reasons'. For the purpose of promotion and determining the fitness an 'objective assessment' under law is required to be made which essential requirement, nonetheless, is missing in the present cases of the petitioners. Some of the directions issued for the guidance of CSB by the Division Bench of this court in the case of Khan M. Muti-ur Rahman and others v. Government of Pakistan through Secretary, Ministry of Finance (Revenue Division), Government of Pakistan, Islamabad and others (2006 PLC (C.S.) 564) read as follows:--- "20. (i) Correctness of information: In the first instance, any observation made by the CSB regarding the past conduct or performance of an officer must be based on authentic and verifiable information to describe an officer's performance as lack luster in the face of 9 'very good, 2 'good' and not a single adverse or even average report defies all norms of objectivity and could vitiate the entire exercise.
(ii) Previous supersession: It has been noticed that the previous supersession of an officer has been treated as a ground for recommending supersession by a subsequent CSB despite the fact that it is repeatedly asserted that posts in BS-21 are selection posts and promotions are to be made on the basis of comparative excellence. In this context, a distinction ought to be kept in view between posts where promotion is made on seniority-cum-fitness basis and selection posts.
Indeed, in the former case the supersession of a senior officer takes place only when he is found to be unfit for promotion and such finding of unfitness by the competent authority needs to be given weight. In selection posts, however, an officer may eminently be suitable for promotion but is superseded merely because a junior might be found to be comparatively more meritorious. In such cases, therefore, the previous supersession of such officer must be completely ruled out of consideration and his merit must be ascertained in comparison to others so eligible.
(iii) Eligibility Threshold: There seems to be some confusion whether the minimum 75 marks requirement is a question relating to eligibility or fitness of a civil servant to be promoted. The Honourable Supreme Court has repeatedly held that for the purpose of Civil Servants Act, there is a marked distinction between the concept of eligibility and fitness. As held in Muhammad Anis v.
Abdul Haseeb (PLD 1994 SC 539), eligibility involves the legal qualification of a person to be appointed or promoted, whereas fitness relates to the suitability for such appointment. The question of eligibility has been held to be justiciable before a Service Tribunal as against that of fitness. We are, therefore, of the view that though the CSB may consider a person unfit for promotion on account of his low quantified score or even choose not to examine other factors in the case of an officer's scoring below a prescribed minimum, it would not be quite correct to describe it as an eligibility threshold. Primarily it is an important factor relating to the fitness of a person to be promoted.
(iv) Overall assessment: We have noticed that the CSB has mainly been considering the quantified score worked out on the basis of the nebulous criterion "overall assessment" with no reference to his quality and work output and integrity. Indeed, it is common knowledge that integrity and quality and output of work are crucial factors in the performance evaluation of a civil servant and other factors, if any, could only have secondary effect. We have not been able to understand, as for instance, in the case of the petitioner in C.P. No, D-1761 of 2002 how this officer was found to possess less than 75 marks under "Overall assessment", whereas in terms of quality and output of work he obtained more than 85 and more than 90 in terms of integrity. Obviously, some altogether extraneous factors were considered while recording his "overall assessment". In any event, when the quantification formula requires as civil servant's performance to be quantified, apart from overall assessment, in terms of quality and work output as well as moral and intellectual integrity, non-consideration of the latter factors both for the purposes of determining the minimum threshold or for fitness by the CSB is entirely unwarranted. It may be added that Para 6(e) of the Guidelines for CSB contained at page 233 of the Estacode, 2002-03 Edition explicitly requires that marks calculated in respect of these two factors shall be crucial in determining the comparative merit of an officer."
34. Being relevant, the 'Office Memorandum No,F.1/1/2012-CP-2 dated 12th October, 2012 [Annexure 'C' to the MOP] is also reproduced as under:--- "Government of Pakistan Cabinet Secretariat Establishment Division No,F.1/1/2012-CP-2, 12th October, 2012 OFFICE MEMORANDUM Subject: REVISION OF PROMOTION POLICY -- RESTRUCTURING OF CRITERIA FOR AWARD OF MARKS RESERVED FOR CENTRAL SELECTION BAORD.
The undersigned is directed to say that the instructions contained in the Promotion Policy, 1982 and the Guidelines for Departmental Promotion Committees/Central Selection Boards issued under the Establishment Division's d:o letter No,0(3)/81- CP-1(P1), dated 31-10-1982, read with Revised Promotion Policy, 2007 contained in this Division's O.M. No,1/32007-CPII, dated 24th October, 2007, amended from time to time have been reviewed on the basis of recommendations by a Committee on the subject.
2. With approval of the Competent Authority, the following changes are hereby made in the said policies/guidelines:---
(a) The existing parameters/attributes namely (1) Quality and Output of Works; (2) Variety and Relevance of Experience; (3) Top Management Potential contained in the Guidelines for CSB attached with Promotion Policy, 1982 read with Revised Promotion Policy, 2007 shall continue to apply for consideration of civil servants for promotion, deferment and supersession.
(b) New parameters/attributes namely (I) Integrity/General Reputation/Perception (2) Personality Profile; and (3) Conduct, discipline and Behaviour are added in the said Guidelines attached with 192 Policy.
(c) "Quality and Output of Work" and "Integrity" contained in the Guidelines attached with 1982 Policy as well as relevant boxes in the PER Forms, deleted in 2003, are revived Changes in the PER forms being issued separately.
(d) A new Objective Assessment Form (Annexure-A) for assessment of each officer on the panel by CSB against the attributes namely (1) Quality and Output of Work; (2) Integrity/General Reputation/Perception; (3) Variety and Relevance of Experience; (4) Top Management Potential;
(5) Personality Profile; and (6) Conduct, discipline and Behaviour is hereby introduced
(e) The said Objective Assessment Form shall be placed before the CSB along with panel pro forma of every officer for his/her objective evaluation by the CSB. The Board shall assess each officer on the panel on the basis of said parameters/attribiftes. After assessment/evaluation, the CSB shall place the officer in any of the following categories and assign appropriate marks accordingly: S. No, Category Range of Marks 1 Category-A = 11 to 15 2 Category-B = 6 to 10 3 Category-C = 00 to 5
(f) Sub-Para (b) of Para-4 of Revised Promotion Policy, 2007 provides that the officers securing requisite percentage of marks viz. 70 to 75 will be promoted to BS-20 and 21 respectively. The said para, is modified as under:--- "(b) The Selection Board shall recommend the officers on the panel securing requisite % and above in the efficiency index for promotion unless deferred (in order of seniority, depending upon the number of vacancies). An officer meeting the aggregate threshold shall also be superseded if CSB places him in Category-C. The senior officers, if not recommended for promotion on account of low threshold, shall be superseded whereas the junior officers if not recommended for promotion for want of vacancies shall be deemed not to have been considered."
(g) The aforementioned criteria for award of 15 marks by the CSB shall henceforth be treated as part of the Guidelines for Selection Board attached with Promotion Policy, 1982.
3. The Promotion Policy, 1982 read with Revised Promotion Policy, 2007 as well as the Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy shall be deemed to have been modified to the above extent.
4. Instructions contained in the Promotion Policy, 1982 read with Revised Promotion Policy, 2007, as amended from time to time, and Guidelines for Departmental Promotion Committees/Central Selection Boards attached with the 1982 Policy in so far as not inconsistent with the provisions of this OM shall remain in force.
5. Subject to the provisions of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 and such other rules made under the Civil Servant Act, 1973, the Civil Servants shall be considered for promotion to higher post in accordance with the Promotion Policy issued by the Federal Government for the time being in force. The amendment in the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 shall be notified separately.
6. The Ministries/Divisions are requested to bring this decision to the, notice of all Attached Departments/Sub-ordinate Offices under their administrative control for compliance.
' Sd/- (Sajid Mahmood)
Section Officer (Policy)
The Secretaries/Additional Secretaries Incharge of the Ministries/Divisions Islamabad 'Rawalpindi"
35. The instructions issued and contained in the Estacode etc have the force of law and as such the same are to be followed strictly. Despite bar under Article 212 of the Constitution read with section 3[2] of Service Tribunals Act, 1973, 'High Court' has ample jurisdiction to give direction to the public functionaries to perform their functions strictly in accordance with law while, exercising its functions under Article 199 of Constitution of Islamic Republic of Pakistan, 1973 in view of Article 4 of the Constitution. The 'Revised Promotion Policy' and/or Office Memorandum dated 12th October, 2012 cannot be declared illegal and/or unjustified much-less in absence of any violation of law.
36. The guidelines regarding 'promotion policy' ought to be based on 'objective criteria' and 'subjective evaluation' of confidential reports etc. The guidelines issued by the Government itself from time to time are to be treated at par with statutory rules. The 'Revised Promotion Policy' framed by the Federal Government [Estacode, enclosed at Sr.No,1631, of course, enjoys the force of law. The same 'Revised Promotion Policy provides guidelines for the CSB. Reliance in this regard can be placed on the case of Fazali Rehmani v. Chief Minister, N.-W.F.P., Peshawar and others [PLD 2008 SC 769] wherein it was observed as follows:---
9. ...that where promotion to posts carrying basic pay scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i,e, BPS-19 and above is to be made on the basis of 'fitness-cum-seniority" meaning thereby that in the earlier case, i,e, BPS-18 and above seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i,e, BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and effect of rules, by virtue of subsection (2) of section 25 of the Civil Servants Act, 1973 as has been held by this Court in the cases of (i) Secretary to the Govt. of the Punjab v. Abdul Hamid Arif and others (1991 SCMR 628) and (ii) Muhammad Yousaf and others v. Abdul Rashid and others (1996 SCMR 1297), therefore, this contention too, has no force." [Underling, is ours]
37. As far as the cases of the present petitioners regarding their promotion to BPS-21 [in the 1st two C.Ps.] and BPS-20 [in the 3rd C.P.] are concerned, it is worth to note that these are selection posts and appointment through promotion to these posts is purely based on merits. Promotion to such post requires 'subjective assessm ent viz-a-viz 'fitness' and 'suitability'. Manifestly, the 'assessment of fitness'' and 'suitability' G are excluded from the ambit of Service Tribunal i,e, under Section 4 of the Federal Service Tribunals Act, 1973. For properly appreciating the non-applicability of ban contained in Article 212 of the Constitution and the process of promotion to selection posts in BPS- 20 and BPS-21, the relevant observations from the case of Liaquat Ali Chughtai v. Federation of Pakistan through Secretary Railways AND 6 others [PLD 2013 Lahore 413] are reproduced as under:- -- "12. These cases pertain to promotion of the petitioners to SELECTION posts in BS-20 and BS-21.
Appointment through promotion to SELECTION posts is based on MERIT, which requires subjective assessment regarding "fitness" and "suitability" of the officers, to the said post subject to their eligibility. The impugned decision of supersession of the petitioners by the CSB is, in effect, determination of their fitness for the posts in question. It is settled law that assessment of fitness and suitability are excluded from the ambit of the Services, Tribunal under section 4 of the Federal Service Tribunals Act, 1973. Reliance for convenience is placed on Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others, (1991 SCMR 1129), Government of Punjab, through Secretary Health Department, Civil Sectretariat, Lahore AND another v. Dr. Aman-ul-Haq, M.S. District Headquarter, Gujranwala (2000 SCMR 1805) and Mushtaq Hussain Shah v. Director, Food, Lahore Region and others, (1990 SCMR 1492). As a consequence, the bar contained under Article 212 is not attracted to the present cases. The preliminary objection raised by the learned DAG is, therefore, over-ruled.
On the objection whether this court can interfere in the subjective assessment of the CSB, it is observed that this is not the case here. It is not the subjective assessment of the CSB which is under challenge her but infact the process adopted by CSB in arriving at the said subjective assessment. It is now settled that subjective assessment by a public authority must rest on open and transparent objective criteria. The subjectivity of CSB must filter through clearly defined parameters, criteria and standards. Subjective assessment does not empower or grant a license to a public authority to exercise discretion without first structuring it.
13. The objection by the learned counsel for the private respondents that as the petitioners have failed to meet the threshold marks of 70 or 75 respectively, the issue of CSB adopting an objective criteria or the process employed by CSB is irrelevant. This submission is without force for the reason that the marks awarded by CSB (out of a total of 15 marks) have to be added to the quantified marks of PERs and Training Evaluation Reports in order to tabulate the Aggregate Marks of Efficiency Index. theoretically, for the sake of argument, if more marks were awarded to the petitioners (out of a total of 15 marks) they would have successfully crossed the threshold requirement and be promoted. The order of this court relied upon by the learned counsel turns on its own facts and is not relevant to issue in hand.
14. The legislative background relating to promotion to Selection post of BS-20 and BS-21 is as follows:---
(i) Section 9(2) (a) of the Civil Servants Act, 1973 provides that promotion to selection post shall be made on the basis of selection on merits, while subsection (3) provides that the said promotion shall be made on the recommendation of a Selection Board constituted by the Federal Government.
(ii) Rules 7, 7-A and 8 of the Civil Servants (Appointments, Promotions and Transfers) Rules, 1973 reiterate that promotion to BS-20 shall be made on the recommendation of the Selection Board and only such persons as possess the qualification and meet the conditions laid down for the purpose of promotion to a post shall be considered by the Central Selection Board.
(iii)Preamble to the Revised Promotion Policy (October, 2007) provides:--- ".... a comprehensive criteria for selection for promotion/deferment/supersession, which is measurable to the extent possible, comparable with regard to performance of each officer on the panel and is based on tangible record duly placed on the dossier and also re-defines discretion, of the members and the Boards and, to lay down as to how more objectivity can be brought in the recommendations of the Selection Board". (emphasis supplied)
(iv)The Policy provides for "Comprehensive Efficiency Index" for promotion. The minimum threshold of marks for promotion to various scales is as follows:--- Basic Pay Scale Aggregate Marks of Efficiency Index BS-20 70 BS-21 75
(v) Revised Promotion Policy provides that an officer meeting the Aggregate Marks of Efficiency index cannot be superseded.
(vi) Clause 7 of the said Policy provides for Quantification of Performance Evaluation Reports ("PERs"), Training Evaluation and CSB evaluation. For the purpose of consideration by the CSB, PERs are to be quantified according to the form given in the Addendum to the existing Promotion Policy3. The Policy allocates following marks for quantification of PERs/Training Evaluation Reports and CSB evaluation:-- S. No, Factor Remarks 1 Quantification of PERs relating to present grade and previous grades70% 2 Training Evaluations reports in ratio of 60% : 40%15% 3 Evaluation of CSB 15% Total 100%
(vii) Revised Guidelines with addendum for Central Selection Board" provide under [clause 4 that posts in BS-20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers must also have sufficient variety and width of experience ... Variety of experience includes experience in the field, corporations, attached departments, different Ministries/Divisions.
(viii) For promotion to middle management posts (BS-20) a civil servant must fulfill the following requirements:--
(a) Qualifying Service --- Possessing 17 years' service;
(b) Eligibility Threshold -- attain a minimum score of 70 marks;
(c) Qualifications-- as prescribed by relevant recruitment rules;
(d) Relevance of Experience;
(e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum;
(f) Variety of Experience. - The Selection Board should give due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature;
(g) Training.
(ix) Posts carrying BS-21 fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil servant must fulfill the following conditions for promotion to senior management post:---
(a) Qualifying Service - Possessing 22 years' service;
(b) Eligibility Threshold - attain a minimum score of 75 marks;
(c) Qualifications - as prescribed by relevant recruitment rules;
(d) Relevance of Experience;
(e) "Quality and Output of Work" and "Integrity" - marks calculated in accordance with the formula in the Addendum;
(f) Variety of Experience - the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessment under the criterion may require some distinction between hard or taxing assignments ... Depending on the post to be filled; an officer possessing well-rounded experience with adequate exposure to difficult assignments should normally be preferred.
(g) Training.
(h) Top Management Potential: since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity ability to assume such top management positions even at short notice.
(x) Addendum dealing with the quantifying the Confidential Reports, 5 deals with overall assessment, quality and output of work, as well as, integrity of the officer while quantifying the confidential reports." [Underlining is ours]
38. 'Fair trial' and 'due process' albeit after incorporation of Article 10-A in the Constitution of Islamic Republic of Pakistan, 1973 through 18th amendment has now become a fundamental right. To enjoy the protection of law and also to be treated in accordance with law now is the inalienable right of every citizen of Pakistan. Under the Constitution of Islamic Republic of Pakistan, 1973, no action detrimental to the life, liberty, body, reputation or property of any person is permissible.
39.In the case of Shabir Ahmed v. Kiran Khurshed and others [2012 CLC 1236], on the aforesaid aspect of the matter it was held as under:--- "Article 10-A, morphs Article 4 into a more robust fundamental right, covering both substantive and procedural due process. While substantive due process provides a check on legislation and ensures the protection of freedoms guaranteed to a person under the Constitution, procedural due process, which concerns me here, provides that 'each person shall be accorded certain 'process' if they are deprived of life, liberty or property ---The question then focuses on the nature of the 'process' that is 'due'. The government always has the obligation of providing a neutral decision maker one who is not inherently biased against the individual or who has personal interest in the outcome". Due process is now available to every person as a fundamental right and underscores procedural fairness and propriety in determining his civil or criminal rights. The procedure adopted in determining the rights of the parties must at every step pass the test of fairness and procedural propriety and at all times must honour the law and the settled legal principles. Article 10-A is not limited to a judicial trial in its strict sense but requires fairness from any forum which determines the rights of a person." [Emphasis and underling are ours].
40. Apart from the above, the respondent No,2 [FBR] in their comments in response to Memo of Petitions in. C.P. No,D-786 of 2014 and C.P. No,D-787 of 2014 have clearly averred as under:-- " ........ It is submitted that the case of petitioner was placed for consideration of promotion before Central Selection Board in its meeting held on 13-2-2014. The CSB deferred the case of the petitioner with the following remarks:--- "The Departmental Representative Chairman FBR stated before the Board that he was not satisfied with the recent performance of the officer. He recommended to put the officer under observation in order to assess his performance. The Board considering all the facts agreed with' the officer with the directions to the Chairman FBR to come up with the clear recommendations in the next CSB meeting: The case of petitioner will be placed for consideration of promotion before the CSB in its next meeting whenever it is held in accordance with promotion policy." [Underlining is ours].
41. In the light of the above discussion while, holding the petitions maintainable, we consequently direct the Central Section Board [CSB] to consider the cases of the petitioners for promotion de- novo in its' next/future meetings on merits and strictly in accordance with law.
The petitions stand disposed off accordingly along pending applications.