MOHSIN AKHTAR KAYANI, J. --- Through the instant writ petition, the petitioners have prayed for following relief: "Under the circumstances it is, therefore, respectful) prayed that this Honourable Court may very graciously be pleased to set aside the impugned order dated 23.07.2013 and direct respondents to grant promotion to the petitioners to SPS 11 and SP 12 respectively w. e. f. the dates, their juniors wet promoted as such with all consequential benefits.
Any other relief which this Honourable Court may deem just and proper may also be awarded."
2. Brief facts of the instant writ petition are that the petitioners are serving as General Manager at National Development Complex (NDC) which is an integral part and a subsidiary body of the National Engineering & Scientific Commission (NESCOM) duly controlled by the National Command Authority (NCA)/respondent No, 1 headed by the Prime Minister of Pakistan. The NCA was established under NCA Ordinance, 2007 which was later on enacted as NCA Act, 2010 having control and supervision over almost all the strategic organizations of the country. As per petition, the petitioners claimed that after their initial appointments they are performing their duties diligently, to the best of their abilities and to the entire satisfaction of their Competent Authority and no adverse entry or remark's have ever been recorded against them.
3. The instant petition was initially dismissed by this Court on the ground that the rules of the Organization are non-statutory however, the latest judgment of the Supreme Court of Pakistan has declared the rules having a statutory force. In view of the said judgment of the apex Court the matter has been remanded to this Court again for re-hearing.
4. The petitioners are presently serving in SPS-10 under NCA Employees Service Regulations, 2011. All the petitioners have qualified for their educational academic factors and also completed their minimum threshold of service required under the said scale and they are entitled to be promoted in SPS-11 however, under the promotion policy introduced by the NCA, the present petitioners have been deferred and at present superseded for the reasons not extended to them although, the respondent authority admits that they qualify the minimum threshold but they have not been promoted on the ground of fitness-cum-seniority principle. The petitioners claim that they are entitled to be considered and granted promotion in SPS-11 w,e,f, "01.12.2006; 01.12.2007, & 01.12.2009 and thereafter in SPS-12 after exhausting a period of 04 years service respectively, as they have become eligible for promotion in accordance with the promotion policy but their cases have neither been deferred nor they have been superseded but they have simply been ignored without assigning any reason. The petitioners further claim that number of their juniors colleagues have been promoted in SPS-11 and then to SPS-12 but the petitioners have been ignored without any lawful excuse. In order to prove their contentions the petitioners have placed on record the seniority list of G.M. (technical) whereby petitioners are mentioned at serial Nos. 1 to 3 and 6 of the seniority list of the G.M. (technical) and are still waiting for promotion but the persons who have already promoted are at serial Nos. 4, 5, 7, 11, 15, 18, 21, 22, 23, 31, 34, 36, 41 to 44, 47 and 48 of the seniority list. Similarly who are shown at serial Nos. 18 to 118 of the seniority list of the officers of SPS- 11 were junior to the petitioners have been promoted and likewise officers shown at serial Nos. 24 and 29 of the seniority list of the officers of SPS-12 were also juniors to the petitioners but they have not only been promoted to SPS-11 but presently they are enjoying SPS-12 without any justification. In last the petitioners have referred a letter dated 23.07.2013 whereby one of the petitioner has been transferred to another organization of NCA and he has also assailed the said order.
5. Learned counsel for petitioners contends that the petitioners have not been considered for the promotion without assigning any reason and their junior officers have already been promoted in SPS-11 and SPS-12 and they have been deferred without any reason although they met the criteria.
Even there is no adverse entry against them.
6. Conversely, learned counsel for respondent No, 1/NCA states that NCA has been established under NCA Act, 2010 where the powers and functions of the authority contained in section 7 of the Act and Strategic Planning Division (SPD) serves as Secretariat to the Authority. Learned counsel further contends that National Development Complex (NDC) by virtue of section 2-D read with section 8 of the Act is for all intent and purposes is strategic organization working under complete control of NCA and the employees thereof are without exception. Employees in service of the authority and the respondents organization is bound by the provisions' of NCA Act which shall take precedence over any other law in force by virtue of section 2 of NCA Act therefore, the instant writ petition is not competent. He further contends that after the judgment of the apex Court whereby the Hon'ble Supreme Court has declared the rules of the instant organization as statutory have been further amended through NCA Amendment Ordinance, 2016 formulated on 30th March, 2016 whereby the rules of the Authority have been declared to be non-statutory hence, the instant relationship between the petitioners and the respondents is that of the master and the servant and the writ petition is not competent. Learned counsel further contends that Ordinance has further been extended by the Parliament for the next tenure therefore the instant writ petition is devoid of merits and is not competent. Lastly, he argued that the principle of fitness-cum-seniority is applicable in the instant matter and the NCA categorically admits that the seniority/eligibility in the case of the petitioners meets out but their fitness has not been confirmed only on the touchstone of security clearance as the accumulating effect of non-clearance of security has been taken into consideration and due to said factor the promotion has been denied to the present petitioners. He further contends that in order to discuss the issues of fitness on the touchstone of security clearance the proceedings require an in camera session as all those factors could not be shared at this level before the Court except in camera proceedings, therefore, in order to understand the entire situation the question of fitness specially in terms of security clearance can be argued in camera before the Court whereby the respondents authority has placed the details of certain documents before the Court.
7. Arguments heard, record perused.
8. From the perusal of record it has been observed that the petitioners who are working as General Managers at the NDC and duly qualify to be promoted but their cases have not been taken into consideration since 2006 and from the perusal of record it has been observed that the petitioners are entitled to be considered and granted promotion in SPS-11 w,e,f, 01.12.2006, 01.12.2007 & 01.12.2009 and thereafter in SPS-12 but after exhausting a period of 04 years service they have become eligible for promotion as such they securely fall within the promotion criteria but their cases have not been considered and their junior officers have been given promotion in SPS-11 and subsequently in SPS-12. From the perusal of the seniority list available on. record which has been admitted by the other side it has been observed that the junior colleagues of the petitioners have been promoted in SPS-11 and then SPS-12 without lawful excuse the petitioners' names are mentioned at serial Nos. 1 to 3 and 6 of the seniority list of the G.M. (Technical) and they are still waiting for promotion but the officers whom names have been placed at serial Nos. 4, 5, 6, 11, 15, 18, 21, 22, 23, 31, 34, 36, 41 to 44, 47 & 48 in the seniority list have been promoted. Similarly, those officers who have been shown at serial Nos. 18 to 118 of the seniority list of the officers of SPS-11 (Annex-G) are junior to the petitioners and they have been promoted likewise the other officers shown at serial Nos. 24 to 29 in the list of the officers of SPS-12 (Annex-H) were also junior to the petitioners but they were not only promoted to SPS-11 prior to the petitioners but they are presently enjoying the status of SPS-12. In view of the above-referred factors this Court has also considered other in camera proceedings whereby the respondent authority claims that the question of fitness is taken up on the ground of the security clearance and it has been conceded before this Court that there is no doctrine of security available on record nor event were is` any rule through which the respondents can demonstrate/challenge the parameters of security clearance, considered or observed with certain criteria hence, there is hard & fast principle for clearance of security however, it has been discussed by the respondents that the reports from internal security agencies and different strategic organizations are obtained by the departmental promotion authority before considering the cases of promotion. The respondent authority has also conceded that all the petitioners are qualified and fulfill the criteria of promotion on the touchstone of their qualification, experience and working performance duration the service and they have been recommended by their relevant senior authorities as fit for promotion but even then their cases could not be considered due to certain factors of security clearance. The respondents in order to answer the question of security clearance, have placed reliance upon section 7 (d, e, f & g) of National Command Authority Act, 2010 whereby the powers and functions of authority have been defined in which clauses d, e, f & g are reproduced as under: <i>"(d) to prescribe specific terms and conditions of the employees including but not limited to, appointments, removals, promotions, transfers, integrity and reliability assessment and other related matters;
(e) to create classification amongst employees based on the sensitivity of the functions, nature of assignment, security considerations and in the interest of security of Pakistan;
(t) to take measures regarding employees in respect of their movement, communication, privacy, assembly or association, in the public interest or in the interest of integrity, security or defence of Pakistan or friendly relations with foreign states and public order; (g)to place such restriction and limitation on the employees that are necessary in the interest of the confidentiality of the functions, assignments, jobs etc., being performed by the said employees or the class of bilfroyees."
From the perusal of National Command Authority Act it has been observed that under section 9 the status of employees of the Authority has been defined which is reproduced as under:-- "9. Employees of Authority.-- (2) The Authority shall regulate all the matters relating to terms and conditions of the service of the employees in the service of the Authority, including their appointment and removal, promotion, transfer, integrity assessment, reliability, security clearance, and other related matter: Provided that the employees working in the service of the Authority who are subject to the Pakistan Army Act, 1952 (XXXLX of 1952), Pakistan Air Force Act, 1953 (Vi of 1953) and Pakistan Navy Ordinance 1963 (XXXV of 1963), shall also be governed by this Act and rules made thereunder: Provided that the Pakistan Army Act, 1952 (XXXIX of 1952) shall be made applicable in respect of employees in the service of the Authority to whom section 2 of the said Act applies or employees in the service of the Authority for whom a notification under section 8 of the aforesaid Act is issued."
In view of above provision of section 9(2) the Authority can regulate the matters relating to the terms &conditions of services of employees wherein a specific reference has been given with regard to "security clearance". In order to understand the term security clearance one has to go through definition of the same. Security Clearance. A security clearance is a status granted to individuals allowing them access to classified information (state or organizational secrets) or to restricted areas, after completion of a thorough background check. The term "security clearance" is also sometimes used in private organizations that have a formal process to vet employees for access to sensitive information. A clearance by itself is normally not sufficient to gain access; the organization must also determine that the cleared individual needs to know specific information. No one is supposed to be granted automatic access to classified information solely because of rank, position, or a security clearance. "
In view of above definition it is clear that the very purpose of security clearance in general is to clear any person for access to information only but for that matter organization has to frame certain criteria whereas no one is free to hold any opinion at his own rather there must be a yard stick to calculate the concept of integrity, relations of family members, financial background, involvement of individual in any matter of moral turpitude, misconduct, crime, general repute among family members, relative, neighbours, etc., whereas respondent authority is not free in their opinions rather they have to conclude their findings on the basis of some guidelines and principles which are based upon reasonableness, fairness and for the advancement of the purposes of strategic organization. The said principle has also been available u/s 24-A of the General Clauses Act, 1897, which has been inserted through General Clauses (Amendment) Act, 1997, which is as follow:-- "24-A. Exercise of power under enactments.---(1) Where, by or under any enactment, a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advancement of the purposes of the incent. (2)The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially."
Similarly, the said principle has also been adopted and referred in case titled Baber Sattar Vs. Federation of Pakistan (2016 CLD 134) this Court held that "the concept of absolute, unfettered or unguided exercise of discretion by public authorities is treated as alien to the essence of the rule of law." The vital question that needs to be answered is whether the reasons if mentioned by the intelligence agencies in their intelligence reports would satisfy their mind as to advocacy and sufficiency, however, do these reasons carry element of clarity in a prudent mind to deprive the petitioners from their valuable rights, which they have earned on the basis of their eligibility, performance evaluation, education and vast experience rendered in the said service before the respondent authorities. It is settled maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) and especially respondent authority have not demonstrated from their record that the petitioners are dishonest or any issue of integrity has been reported rather the respondents have not placed any such material through which any independent person or even for that matter this Court fails to formulate any opinion against the petitioners. Therefore, in such like situation, when the petitioners have not been confronted with any such report, material, statement or document or record, where the question of integrity, security has been breached, it amounts to violation of principle of natural justice Audi Alteram Partem (no one should be condemned unheard) and violation of this principle would be enough to vitiate even the most solemn able proceedings. I am relying on the recent authoritative judgment given by Hon'ble Division Bench of this Court in I.C.A. No, 368/15, titled as Secretary, Establishment Division, Government of Pakistan Vs. Dr. Muhammad Arif and other authored by my lord brother Mr, Justice Mian Gul Hassan Aurangzeb, wherein all such cases have been discussed. In order to understand the effects of intelligence reports, I have gone through the case-law referred as 2003 CLC 503 (Muhammad Zafeer Abbasi Vs. Government of Pakistan). wherein it was held that:-- "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 wide 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."
Similarly, in 2015 PLC (C.S) 923 (Ahmed Saeed Siddiqui Vs. Pakistan through Secretary Establishment), it was held that:-- "31. Without 'disclosure' of 'adverse material' and affording opportunity of defence, nevertheless, the petitioners herein were deprived of their promotion which act of the Central Selection Board IDSB] 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 fulfill the duty of "adequate disclosure" and the said person is also entitled to an opportunity of defence 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."
In 2015 SCMR 1006 (Secretary Establishment Division, Government of Pakistan, Islamabad Vs. Aftab Ahmed Manika and others), it was held that:-- "The factors or information to be taken into account while considering cases of promotion fall within the exclusive domain of the Board. Whether the reports of the Intelligence Agencies would be material and, if so, the weight that they deserve are matters within the power of the Board.
Similarly, the competent authority also in its discretion may take into consideration any information while considering the recommendations of the Board. This power, however, is to be exercised sparingly and as mentioned in the Esta Code in exceptional circumstances.
In 2006 PLC (C.S) 619 (Muhammad Akbar Khan Hot Vs. Federation of Pakistan), it was held that:-- "14. Anyhow, a report from the Intelligence Department with respect to a government servant touching upon his integrity and work stands at an inferior position as invariably this is written by a person of the lowest rank, who cannot have a perception which an immediate boss of a civil servant may have. Therefore, when ACRs are discarded, the intelligence report cannot take their place absolutely as this can lead to very dangerous results. At the most an overall picture can be drawn based on the statements in fie ACRs and the intelligence reports."
In 2010 PLC (CS) 725 (Sameen Asghar Vs. Federation of Pakistan), it was held that:-- "The petitioners were superseded by the Central Selection Board merely because of the reports of the Intelligence Agencies, but admittedly neither these reports were communicated to them nor were they confronted with same. Even the details whereof were neither given in the proceedings of the Central Selection Board nor in the comments submitted by the respondents. In alike circumstances, this Court vide orders dated 21.03.2006 Writ Petition No, 11 of 2007, the reports of the intelligence agencies were declared as without lawful authority, supersession made on their basis was set aside and the Central Selection Board was directed to consider the case of the petitioner without being influenced by the report of any intelligence agency."
In 2009 PLC (C.S) 348 (Abdul Wadood Khan Vs. Secretary, Establishment Division), it was held that:- - "The supersession of the petitioner in the meeting of the Central Selection Board on the ground of negative reports from the Intelligence Agencies particularly when petitioner was not confronted with the reports is illegal. The supersession of the petitioner in the year 2005 is, therefore, declared to have been made without lawful authority having no legal effect. The supersession of the petitioner in the year 2005 shall be treated to be a deferment."
In 2007 PLC (C.S) 669 (Muhammad Ashraf Vs. Government of Pakistan), it was held that:-- "The non-consideration of ACRs of civil servant by Selection Board on the basis of adverse intelligence report "qua" his integrity without asking his explanation would mean that Board had not ascertained from entire material as to what was the integrity of civil Servant for the purpose of consideration of his promotion case nor the Board has determined that as to who was the author of the report and it has been laid down in case of Muhammad Akbar Khan v. Federation of Pakistan 2006 PLC (C.S) 619 that intelligence report, if given by a Grade-IV officer could not be relied upon."
In PLD 2015 Lahore 317 (High Court Bar Association, Bahawalpur Vs. Federation of Pakistan and others), it was held that:-- "The impugned decision of the Parliamentary Committee substantially rests on the intelligence reports and that too regarding professional competence of the nominated person. Intelligence reports received by the Committee appear to have been preferred over the findings and nomination of the Judicial Commission, which as discussed above, is the apex Constitutional body to assess the legal and professional competence of a candidate."
9. From the perusal of above-mentioned case- laws, it has been clearly demonstrated that concept of security clearance based upon intelligence reports can be used in the cases of promotion of the officers but the principle of fairness, reasonableness is the foundation of all systems of the Government, even the Constitutional guarantees the equal protection of law, elimination of exploitation and safeguards against any kind of discrimination, unfairness in terms of Articles 3, 4, 9, 10-A and 25 of the Constitution of Islamic Republic of Pakistan, National Command Authority Act, 2010 does not supersede the very concept of fundamental right and principle of nobody should be condemned unheard, therefore, any material which comes in the way of promotion of the petitioners, if collected by the intelligence agencies against the petitioner has to be confronted through some internal mechanism, if the same is not confidential in its nature and if the same is confidential and it affects the working of such kind of strategic organization they have to follow a procedure to dis-engage the services of such officials, otherwise respondent authority cannot exercise its powers in, an unbridled manner without disclosing the reasons and factors under the garb of term "security clearance" although NCA, 2010 is meant to deal with the affairs, which are highly sensitive and classified area or working, especially when the said strategic organization is dealing with nuclear establishment, nuclear system, nuclear material and space technology, which are back bone of Pakistan Defence System. Learned counsel for the respondents time and again put his emphasis upon the term "security clearance" but the respondents could not demonstrate from record that what are the reasons which prevail upon the Authority while denying the right of promotion to the petitioners even there is no documentary evidence on record placed by the respondents related to their concept of security clearance adopted by their strategic organization nor even they can demonstrate as to what are the factors which give rise to their non- clearance of security even though the petitioners are qualified and their security has been cleared for the purpose of SPS-10 but their security has not been cleared for the promotion of SPS-11 & 12, respectively. I am of the view that if a person is not qualified in terms of fitness which includes the security clearance for the SPS-11 then he is also not qualified to hold the position of SPS-10 or lower ranks, therefore, the reasons put forward by the respondents authority under the garb of term "security ice" is not sustainable in the eyes of law nor even there is any legal justification available on record to deny the rights of the petitioners for promotion.
10. The respondents have also placed the promotion rules/documents on record whereby any employee possessing such minimum qualification, experience and other conditions as may be specified in the rules shall be eligible for promotion to post reserved for Departmental Promotion in the higher grade although respondents are not contesting the case of the petitioners on the touch stone of other grounds of eligibility rather they are only putting their emphasis on the term "security clearance". It is apparent from record that junior officers of respondent organization have been promoted to SPS-11 and SPS-12 respectively without considering the factors of promotion of present petitioners. As the respondents have not referred the reasons s : deferment of the petitioners' cases for promotion nor placed any material, such kind of practice is deprecated by recent judgment of Honble Division Bench of this Court in ICA No, 368/15, titled as Secretary, Establishment Division, Government of Pakistan Vs. Dr. Muhammad Arif and others, in which it was held that:-- "We are of the view that simply deferring the promotion of an officer because the CSB, in its collective wisdom, feels that the performance of an officer has to be watched further, does not satisfy the requirements of Section 24-A of the General Clauses Act, 1897. If an officer is not promoted on account of some deficiency in his work related performance, it is his right to know, with sufficient detail, what exactly that deficiency is and which aspect of his work related performance he needs to improve upon. Simply deferring an officer by telling him that his work related performance needs to be watched for six months to one year is not just vague, ambiguous, imprecise and nebulous, but unacceptable in the service jurisprudence. The officer whose promotion is deferred for such reasons would have no way of knowing how and where his work related performance has been wanting or scarce. The Superior Courts have time and again emphasized, upon the requirement of reasons being given for decisions made by public functionaries. Such reasons have been contain the basis on which public functionaries arrive at a certain decision especially when such a decision is to the detriment of the subject. In the case at hand, the decision to recommend the promotion of an officer to be deferred is infact, a decision not to promote him at a particular stage. When an officer is not promoted, when his similarly placed peers are promoted, this is detrimental and harmful to him. The assertion of the learned A.A-G that when such an officer is promoted after six months or one year after the deferment, he will regain his seniority, is no consolation to such an officer and is no excuse for not providing him reasons with specificity and detail as to the areas or facets where his work related performance is deficient. The decision to recommend the promotion of an officer to be deferred cannot be at the whims or impulses of the members of CSB. Such a decision has to be backed by tangible material showing the deficient performance of the officer under consideration for promotion."
11.The above-referred conclusion of the Hon'ble Division Bench of this Court completely persuades me to grant relief to the petitioners, therefore, I am of the view that petitioners are entitled for the relief of promotion since their junior colleagues have been promoted under the law however, the relief claimed by the petitioners whereby the letter dated 23rd July, 2013 has been impugned has no legal force in it, therefore, the relief claimed to that extent has denied and all the petitioners are declared to be entitled for promotion in their appropriate grades" w,e,f, the date their juniors have been promoted, with all consequential benefits. Reliance is placed upon 2016 SCMR 1784 (Chief Secretary, Sindh Vs Riaz Ahmed Massan and another). The instant writ petition is allowed in above terms.