IJAZ ANWAR, J.- Through the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, Capt: Zahur Ahmad Khan Khalil (the petitioner) claim promotion to BPS-22 after his retirement and prayed for the following relief:- "That on acceptance of this writ petition hi the light of above facts and grounds and after calling for all relevant record of the petitioner a direction may be issued to the respondents for grant of proforma promotion (BPS-22 with effect from the date the juniors to the petitioner are promoted). Any order if is issued in violation of it and not in the knowledge of the petitioner be declared illegal and against the law".
2. The precise facts as narrated in this Writ petition are that the petitioner joined the District Management Group now (PAS) in 9th Common Training Programme in November, 1982. It is alleged that he was inducted against the Armed Forces quota where he was posted as Captain. It is claimed that the petitioner remained on various administrative positions like Assistan t Commissioner, Deputy Commissioner, Commissioner, Secretary of various Departments, On Staff with Chief Minister and Governor of Khyber Pakhtunkhwa and with unblemished service career. He was promoted to BPS-18, BPS-19, BPS-20 and lastly as BPS-21. It is alleged that in the year, 2012, the High Powered Selection Board deferred his case for promotion in its meeting held on 12.02.2012. Again his name was placed before the High Powered Selection Board for promotion to BPS-22 in its meeting held on 27.12.2013, but his name was deferred. It is further alleged that twice again his name was placed before the High Powered Selection Board for consideration but for no justifiable reasons, he was deferred and in the meantime, he reached the age of superannuation with effect from 14.01.2015, hence this petition.
3. The respondents were put to notice, they submitted their parawise comm ents, raising factual and legal objections. It is alleged that the petitioner was considered for promotion quadrupled, however, he was not promoted specifically giving the reasons for his deferment. It is further alleged that High Powered Selection Board (HPSB) has exercised its powers responsibly, fairly, justly and for the advancement of the purpose of Section 24-A of General Clauses Act. Further, the post of BS-22 is not only required to be considered as per seniority the officer is evaluated on the basis of record and collective wisdom of the Board, on merit. There is no malafide intention on the part of HPSB to deprive any one from promotion.
Instead, the officers are evaluated on the basis of available record as mentioned in Para-4 of the report so that competent officers could be promoted to undertake the highest level of responsibilities. No one is extended any favour. Only eligible, honest, qualified and competent officers are promoted. It is a matter of record that the petitioner is younger to the promoted officer and it has no relevance with the promotions.
4. The learned counsel for the petitioner argued that after the judgment of the Honourable Supreme Court in famous case of Tariq Aziz-ud Din (2010 SCMR-1301), the respondents have formulated the Civil Servant (Promotion to the post of Secretary, BPS-22 and equivalent) Rules, 2010, the discretion of the Government in the matter of promotion was structured and confined to the rules, so framed. He referred to Rule 3, which prescribes the eligibility of the officer holding in BPS-21. Similarly, referred to Rule 4 and according to which, the petitioner was perfectly eligible and fit to have been allowed promotion to BPS-
22. He argued that where the respondents themselves are not posting the petitioner against any alleged challenging assignment, how he can be denied promotion on such pretext. He argued that the petitioner though retired from service but due to inaction of the respondents, he is deprived of his promotion in BPS-22. He placed reliance on 2017 SCMR-969 `Federation of Pakistan through Secretary, Establishment Division and others Vs. Dr. Muhammad Arif andothers.
5. The learned D.A.G. argued that the petitioner was duly considered for promotion; however, for the reasons correctly mentioned in the minutes, he was deferred. He argued that no officer can claim promotion as of right. He also referred to Section 22 sub-section of the Civil Servant Act, 1973, that since the matter relates to the fitness of the Civil Servant, therefore, this Court has got no jurisdiction to interfere in the matter .
6. Arguments heard and record perused.
7. The substantive law for promotion of civil servants is given in Section 9 of Civil Servant Act, 1973, which provides as follows:- "9. Promotion.---(1) A civil servant possessing such minimum qualification as may be prescribed shall he eligible for promotion to a higher post for the time being reserved under the rules of departmental promotion in the service or cadre to which lie belongs: Provided that the posts of.
(a)
(b)
(2) A post referred to in subsection (I) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed.
(a) In the case of a selection post, on the basis of selection on merit; and
(b) In the case of a non-selection post, on the basis of seniority-cum-fitness.
(3) 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."
The above provisions are supplemented by Rules 7, 8 and 8-A of The Civil Savants (Appointment, Promotion and Transfer) Rules, 1973. For the ease of reference the said rules are reproduced hereunder: "7. Promotion and Transfers to posts in [basic pay scales 2 to 18 and equivalent, (except the posts specified in sub-clause (i) of Clause (b)] and equivalent] shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts, /specified in sub- clause (I) of clause (b) and posts], in 'basic pay scales 19 to [211 and equivalent] shall be made on the recommendations of the Central Selection Board.
8. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board as the case may be; (underlines supplied for emphases)
8-A. No promotion on regular basis shall be made to a posts in Basic Pay Scales 17 to 22 and equivalent unless the officer concerned has completed such minimum length of service, attended such training and passed such departmental examination, as may be prescribed from time to time."
8. The august Supreme Court of Pakistan, while dealing the cases of promotion of the posts carrying BPS-21 and BPS-22, had in Tariq Aziz-ud-Din case (2010 SCMR-1301), deprecated the non-existence of any rules for promotion to BPS-22 and besides others, directions observed for the formulation of Rules for promotion from BPS-21 to BPS-22 to avoid unjustness and arbitrariness in making promotion. The Federal Government vide SRO notified on 16 August, 2010, framed Civil Servants (Promotion to the post of Secretary, BS-22 and Equivalent) Rules, 2010. Rules 3 & 4 provide the eligibility criteria for promotion to BS-22. Rules 3 & 4 are reproduced for convenience:- "3. Manner of Promotion .---(1) The Posts in BS-22 in the Federal Government shall be filled in by promotion from amongst the officers specified in sub-rule (2) with the approval of the appointing authority on the recommendations of the Board.
(2) The officers holding post in Basic Scale 21 on regular basis in an All Pakistan Service or, as the case may be, a civil service of the Federation or a post in connection with the affairs of the Federation and possessing the length of service and fulfilling other conditions spec ified in rule 4, shall be eligible for promotion to a post in Basic Scale 22 in the respective service, group or cadre to which the of ficer for the time being belongs: Provided that the pot of Secretary in BS-22 in the Secretariat Group may be filled in by promotion in the public interest from amongst officers of regularly constituted Occupational Groups and Services possessing the length of service and fulfilling other conditions specified in rule 4, holding, on regular basis, posts in Basic Scale 21.
(3) Nothing in this rule shall prevent a post in Basic Scale 22 or equivalent already ,reserved for initial appointment in accordance with the method of appointment laid down under sub-rule
(2) of rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, in filling such post in accordance with such method.
4. Length of service and other conditions for promotion.---An officer shall possess the length of service and fulfill the following conditions for promotion to a post in Basic Scale 22 including the post in BS-22 as Secretary in the Groups and Services in the Federal Government;
(i) Twenty-five service in Basic Scale 17 and above, excluding the period of suspension not counted as duty and extraordinary leave, and has completed at least two years in a post in Basic Scale 21;
(ii) at least three "very good" reports during the last six years;
(iii) No penalty under Government Servants (Efficiency and Discipline) Rules, 1973 or under the Removal from Service (Special powers) Ordinance, 2000 (since repealed) has been imposed upon him during his tenure in BS-21; and
(iv) possesses sufficient variety of experience. (underlines supplied).
9. On the promulgation of these rules, the discretion of the Government has been structured and curtailed and now promotion to BPS-22 are governed under the provisions of these rules. The petitioner has illustrious service career and was promoted to BPS-21 in the year 2010. It transpires from the comments submitted by respondents that the petitioner was initially considered for promotion by the High Powered Selection Board in its meeting held on 22nd to 26th December, 2012, 27th November, 2013, 22nd September, 2014 and lastly on 6th January, 2015, however, repeatedly in these meetings, the petitioner was deferred mainly for the reason beyond his control, as on 22nd September, 2014, "the board felt that his performance has to be assessed on a more challenging post for merit in promotion to BPS-22, the Board directed the Establishment Division to post the officer on a challenging assignment in Islamabad and called for special report of the of ficer at least for three months.
10. The synopsis of the posting order of the petitioner attached with the writ petition depict that the petitioner remained on major administrative posts of Secretaries in different departments of the Provincial Governmentth ever since 1992. In the Federal Government, he remained Chairman Pakistan Tobacco Board, Govt. of Pakistan, Ministry of Commerce, Islamabad from 9 January, 2012 to 9 October, 2012, Member (Finance)
Pakistan Agriculture Research Council, Islamabad, BS-21 from 27 May, 2013 to 8 July, 2013, Director General Wafaqi Mohtasib (Ombudsman)'s Secretariat, Regional Office, Peshawar, from 13 August, 2013 to 11 November, 2013, Member/Additional Secretary, Incharge Wafaqi Mohtasib (Ombudsman)'s Secretariat, Regional Office, Peshawar, from 12 November, 2013 till his retirement. It is pertinent to mention here that posting on any assignment is within the domain of the Federal Government if the Federal Government is not posting the petitioner on such alleged challenging assignment, how he can be blamed. It shows that pick and choose policy has been adopted by the Government in posting of officers of their choice, therefore, the objection regarding non-posting on challenging assignment cannot be attributed to the petitioner.
11. There is another important aspect of the case. On each occasion, when the petitioner was considered for promotion by the High Powered Selection Board, the petitioner was deferred and not superseded. The Federal Government has formulated policy guidelines for the conduct of Departmental Prom otion Committees (D.P.Cs) and Central Selection Boards (C.S.Bs).
12. By way of general selection, the policy provided that the DPC/CSB shall consider the case of eligible civil servants in the order of seniority and either:
(a) Recommend a civil servant for promotion to the next higher post; or
(b) Recommend a civil servant for supersession; or
(c) Defer consideration of a civil servant's promotion provided that this step will be taken only if
(i) The CR dossier is incomplete or any other document/information required by the DPC/CSB for determining a civil servants suitability for promotion is not available; or
(ii) Disciplinary or departmental proceeding pending against the civil servant whose promotion case comes up for consideration before the DPC/CSB;Or
(iii) The civil servant on deputation abroad to a foreign government, private organization or international agency; or
(iv) The civil servant does not possess the requisite length of service; or
(v) The civil servant has not undergone the prescribed training or passed the departmental examination for reasons beyond his control; or
(vi) The civil servant's inter se seniority is sub judice.
The policy further required that the civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which deferment took place ceases to exist.
13. Thus, the deferment by itself refers to certain shortcomings, which, in due course of time when fulfilled, the officer is re-considered for promotion and is allowed promotion with effect from the date when he was deferred. To the misfortune of the officer he stood retired from service w.e.f. 14.01.2015 and thus, remained deprived of the promotion to BS-22. The august Supreme Court of Pakistan, in the case of Orya Maabool Abbasi Vs. Federation of Pakistan through Secretary Establishment and others (2014 SCMR-817), held that "Although promotion was not a right but a civil servant fully qualified for promotion, has a right to claim that his case may be considered for promotion strictly following the eligibility criteria laid down by the authority, and that "though the officer not meeting eligibility criteria for promotion, could be deferred but the deferment could not be arbitrary and not supported by the service record. In this case, the apex Court further held that "Board failed to take into consideration the PER Reports for the reasons not tenable under the law and their such findings were clear violation and departure from the promotion policy because once the officer have fulfilled the criteria, their cases have to be considered to assess the fitness and suitability to share higher responsibility mostly based on subjective criteria instead of denying promotion to them for the subjective consideration".
14. It merit mention that the High Powered Selection Board remained stuck up with some report in the National Management Course (NMC), held from 3 March, 2008 to 24 March, 2008. Though thereafter, the petitioner was promoted to BPS-21 in the year 2010, and those were considered and ignored, it seems that the Highth th th th th th th rd th Powered Selection Board has not conducted itself in the manner required under the law. We are thus, fortified in our view by the judgments of the apex Court in Tariq Aziz-ud-Din (2010 SCMR-1301), Muhammad Rahim Khan Vs. The Chief Secretary, N.W.F.P. and 4 others (1999 SCMR-1605), Orya Maqbool Abbasi Vs. Federation of Pakistan through Secretary Establishment and others (2014 SCMR-817), 2017 SCMR-969 'Federation of Pakistan through Secretary, Establishment Division and others Vs. Dr. Muhammad Arif and others.
15. The petitioner though has retired from his service, but since his non-promotion has certainly effected his privileges and pension, therefore, in view of Fundamental Rules-17, he can be considered for promotion, even after retirement. Proviso to F.R. 17 is reproduced herein below:- "[Provided that the [appointing authority may, if satisfied that a civil servant who was entitled to be promoted from a particular date was, for no fault of his own, wrongfully prevented from rendering service to the Federation in the higher post, direct that such civil servant shall be paid the arrears of pay and allowances of such higher post throug h pro forma promotion or upgradatio n arising from the ante-dated fixation of his seniority .]
16. For the reasons stated above, this petition is allowed and the respondents are directed to place the case of petitioner again before the High Powered Selection Board for consideration for promotion to BPS-22, if cleared be allowed promotion to BPS-22 from the date he was lastly deferred. The necessary exercise shall be carried out within a period of sixty days positively.