NISAR HUSSAIN KHAN, J.- Petitioner seeks issuance of an appropriate writ with the following prayer :- "It is, therefore, most humbly prayed that on acceptance of this writ petition, the DSB decision dated 20.9.2011 the promotion order of the respondent No.5 dated 6.10.2011 and rejection of appeal order dated 7.12.2011 may be declared as illegal, unlawful, unconstitutional, without lawful authority, based on nepotism and discriminatory treatment, therefore, the same are ineffective upon the rights of the petitioner. The respondents may also further please be directed to grant promotion to the petitioner as Deputy director (Administration) Employee Social Security being senior most, eligible and fit for the same from his due date."
2. In essence grievance of the petitioner is that he is serving in the Employees Social Security Institution since 17.12.2001 and is now performing his duty as Social security Officer in BPS-17 and is placed at the top of seniority list; that in the recent past, working paper for promotion against the post of Deputy Director Administration (BPS-18) was forwarded to the Departmental Selection Board ( hereinafter referred to as DSB) of three Social Security Officers including the petitioner but surprisingly, he was superseded by according promotion to respondent No.5. He maintained that he earlier filed W.P.No. 3399/2011 which was withdrawn with permission to file afresh one when respondents provided copy of the minutes of the DSB with their comments. It is further stated that promotion criteria against the post of Deputy Director (Administration) as prescribed in the Rules of the respondents is seniority-cum-fitness with 5 years service as Social Security Officer. Though the petitioner was eligible but has not been promoted which is illegal, unwarranted and unconstitutional. He also filed appeal but that too was dismissed.
3. In their comments, respondents have averred that promotion is made on the principle of seniority-cum-fitness with excellent performance throughout service career or excellent ACRs of last five years. Whereas petitioner could not obtain a good performance report throughout his service. Promotion on the post has been made strictly in accordance with law on the recommendation of the DSB of an officer who has excellent and good ACRs on his credit.
4. We have heard learned counsel for the parties at length and have gone through the record with their valuable assistance.
5. Controversy between the parties is about promotion of respondent No.5 to the post of Deputy Director (Administration) by superseding the petitioner. Rule and method for promotion against the said post as laid down in the KPK Employees Social Security Institution Service Recruitment/Appointment/Promotion Rules is by promotion on seniority-cum-fitness from amongst the Social Security Officers having atleast 5 years service. It is undisputed that petitioner and respondent No.5 were performing their duties as Social Security Officers and also have five years service at their credit and petitioner is senior to respondent No.5. Main ground as urged on behalf of respondents for superseding the petitioner is that he earned average grading throughout his service and there were also some adverse remarks in his reports, so was not found fit for promotion. To meet the objection, petitioner placed reliance on case of Abdul Hameed who in identical circumstances was promoted on the basis of seniority without considering his grading as average throughout his service. It is true that synopsis of one Abdul Hameed Annexure-J reflect that he secured only one good grading throughout his service career and consistently was marked as average officer but was promoted to the post of Deputy Director (Administration). Synopsis of the petitioner transpire that he was graded as average officer since 2002 to 2007 but after receipt of counselling, he materially improved his performance and continuously secured good grading for his preceding 3 years, from 2008 to 2010. His reporting officer and Countersigning Officer, on his PER of 2010 remarked that he is a hard working and efficient officer and has improved his performance.
It reflects on his performance with zeal and commitment to his responsibility. Even average grading has never been considered as adverse report in view of ratio decidendi laid down in Pakistan Broadcasting Corporation through D.G. H.Q., Islamabad and another Vs Nasiruddin ( 1997 SCMR - 1303) unless so treated and conveyed to the civil servant. Similarly, in case of Province of the Punjab through Chief Secretary, Punjab, Lahore and another Vs Sardar Noor Illahi Khan Leghari and another ( 1992 SCMR - 1427) , remarks of average in respect of over all performance were not considered to be adverse and it was held that no representation or appeal would lie against any such ACR.
6. Though learned counsel for respondents laid emphasis that the petitioner was required to secure continuous 5 good ACRs for promotion to the higher post of Deputy Director Administration but when he was asked to refer to any law, rules, regulations or instructions in support of his submission, he failed to lay hand on any such instrument. Rather he tried to convince us by calculation of marking since induction of both, petitioner as well respondent No.5, in the light of criteria provided in the Estacode and submitted that in the light of his calculation, petitioner was not found fit for promotion. The quantification, so advanced, is not the only criteria for promotion or supersession of an officer. While determining the fitness, the competent authority is required to make assessm ent of officer objectively not subjectively. The fitness, in our opinion, cannot be determined on mathematical formulae. It requires something more than that. Though fitness is an important element in consideration for promotion but it is equally important that it precedes with phrase of seniority which is of paramount importance for an employee/Civil Servant. It instils a legitimate expectancy in senior officer to be considered for promotion on priority basis.
7. We are afraid that no such reasons have been provided by the DSB by according promotion to a junior by superseding the petitioner, which undoubtedly was a harsh step, leaving a scar on petitioner's career. The supersession tantamount to a penalty by deprivation from progression in his service career, which is always a prime goal and legitimate expectation of an employee.
Promotion of an officer is always considered as a recognition of his unblemished service rendered, in the institution. When an employee/civil servant is deprived of his legitimate expectation, it not only stigmatize his professional career but also leaves an adverse impact on his personality. The competent authority, before embarking on such a harsh step is required to probe into the matter in depth and even then if forms an opinion against his promotion, is required to give sound reasons in support thereof. The competent authority is not vested with unqualified discretion to pass arbitrary, capricious and fanciful order. The discretion being a sacred trust, reposed in the competent authority, is to be exercised honestly, fairly, judicially and in accordance with law and rules. If it transgresses the judicial norms, it is liable to be struck down.
8. For the forgoing reasons, we are of the considered view that impugned action of the respondents is not based on the sound principle of reasonableness, openness, justice and fair-play which is hereby struck down. The matter is remitted to the DSB to re-consider the promotion case of the parties afresh and decide the same in accordance with law and rules in the light of above observations with their speaking order giving detailed reasons. It is further directed that respondents shall decide the matter within a period of two months without fail.