This consolidated judgment shall dispose of both the captioned appeals as questions of law and facts are common in both the appeals.
2. Brief facts of appeal Bearing No, 1186/2011 filed by appellants Muhammad Arif and Shaukat Ali u/S. 4 of Punjab Service Tribunal Act, 1974 are that they were inducted into service of Revenue Department as Junior Clerks (BPS-5) on 16.08.1987 and 17.01.1988 and thereafter were promoted as Senior Clerks (BPS-7) on 20.03.1999 and 18.09.1993 respectively. Nutshell of the cases are that 02 posts of Naib Tehsildar fell vacant in District Kasur to be filled against the quota reserved for ministerial staff/ subordinate cadre and in this regard a meeting of Departmental Selection/Promotion Committee was held on 24.07.2004 under the Chairmanship of District Coordination Officer, Kasur and as a result of this Khalid Mehmood Iqbal and Iqbal Rashid/Respondents No, 5 and 4 in Service Appeal No, 1324/2010 and Respondents No, 7 and 8 in Service Appeal No, 1186 (hereinafter to be referred as Respondents No, 7 and 8) were promoted as B-Class Naib Tehsildars. Being aggrieved, appellant Shaukat Ali submitted departmental appeal before Respondent No, 2, which was disposed of vide order dated 27.06.2006 with the direction to the competent authority to consider the case of appellant Shaukat Ali in the next meeting of Departmental Selection/Promotion Committee. Meanwhile, as a result of disciplinary proceedings, a penalty of withholding of annual increments for three years was inflicted upon appellant Shaukat Ali by the then District Officer (Revenue), District Kasur vide order dated 04.10.2006, which on filing departmental appeal, was enhanced by the departmental appellate authority by reverting the appellant from Senior Clerk to Junior Clerk. Against the afore-referred major penalty of reduction in rank the appellant Shaukat Ali after exhausting departmental remedies filed Service Appeal No, 301/2007 before the Punjab Service Tribunal, which was rejected vide judgment dated 04.04.2007 and the appellant assailed the same before the Hon'ble Supreme Court of Pakistan in Civil Petition No, 1072-L/2007, which was accepted by the Hon'ble apex Court vide its judgment dated 24.09.2008 by setting aside the penalty of reduction in rank awarded to appellant Shaukat Ali. Simultaneously, the appellant Shaukat Ali also preferred Service Appeal No, 2439/2006 before the Punjab Service Tribunal against the order dated 27.06.2006, which was decided vide judgment dated 06.02.2007, whereby the departmental appellate authority was directed to re-consider the case of the appellant Shaukat Ali strictly in the light of Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 and pass fresh orders on departmental representation and consequently, the Senior Member f Board of Revenue after granting hearing to appellant Shaukat Ali, Disposed of his departmental appeal vide order dated 19.06.2007 with the observations that subject to vacancy the case of appellant Shaukat Ali be considered in the next meeting of Departmental Promotion Committee. The appellant Shaukat Ali being aggrieved by order of departmental appellate authority dated. 19.06.2007 filed another service appeal before Punjab Service Tribunal Bearing No, 2482/2007, which was accepted vide judgment dated 31.01.2008, whereby the order dated 19.06.2007 was set aside with the observations that departmental appeal of the appellant shall be deemed pending and shall be decided by Respondent No, 1/Senior Member Board of Revenue through a speaking order giving objective reasons, however the Senior Member Board of Revenue vide order dated 17.06.2008 again decided the same directing the Departmental Promotion Committee to consider the case of Senior Clerks for promotion to the post of B-Class Naib Tehsildar. The appellant Shaukat Ali again assailed the said order before this Tribunal through service appeal Bearing No, 2360 of 2008, which was decided vide judgment dated 22.06.2009 in the following terms: "As a result of the above discussions,' this appeal is allowed and by declaring the impugned order of Respondent No, 1 dated 17.6.2008 as illegal and without jurisdiction the same is set aside and it is held that after ht judgment of this Tribunal dated 6.2.2007 passed in Service Appeal No, 2493/06 the recommendations of the Departmental Promotion Committee, Kasur held on 24.7.2004 being no more in the field and the matter of selection of two B-Class Naib Tehsildars against the reserved quota of ministerial staff in Kasur District shall be deemed pending and the same shall be placed before the Departmental Promotion Committee afresh and the Departmental Promotion Committee shall decide the selection of such two posts after properly considering, determining and weighting respective merits of all the candidates in the light of the observation of this Tribunal."
The Respondents No, 7 and 8 assailed the said judgment of this Tribunal through Civil Petition No, 1098-L of 2009, which was dismissed vide order dated 09.07.2009. Thereafter, a meeting of Departmental Promotion Committee was convened and by the order of competent authority dated 10.08.2009 the Respondents No, 7 and 8 were again promoted as B-Class Naib Tehsildars.
Being aggrieved by the said order dated 10.08.2009, the appellant Muhammad Arif preferred departmental appeal before Senior Member Board of Revenue, Punjab, Lahore, which was turned down vide impugned order dated 30.03.2010 and thereafter the appellant Muhammad Arif filed Service Appeal No, 1324/2010 on 29.04.2010. Whereas the appellant Shaukat Ali as a result of some sort of disciplinary proceedings was dismissed from service on 10.08.2009. However, against the promotion order of Respondents No, 7 & 8 dated 10.08.2009 he preferred departmental appeal before Senior Member Board of Revenue, Punjab, Lahore on 17.08.2009. Against his dismissal order appellant Shaukat Ali after exhausting departmental remedies filed Service Appeal No, 2556/2009 before Punjab Service Tribunal, which was accepted and the appellant Shaukat Ali was reinstated into service vide judgment dated 14.06.2010. Subsequently, his departmental appeal preferred before Senior Member Board of Revenue against promotion orders of Respondents No, 7&8 was rejected vide impugned order dated 22.02.2011. Hence, he filed the instant appeal on 08.04.2011.
3. Learned counsel for the appellant Muhammad Arif and the appellant Shaukat Ali in person submitted that the Departmental Promotion and Selection Committee was convened and transacted business without obtaining report and that the non-availability of ACR forms was not the liability of the appellant nor they could have penalized for the same as it was responsibility of the department to complete all papers for consideration of promotion cases by a competent committee. They took exception of consecutive meeting of the Departmental Promotion and Selection Committee and tried to point out that infact it was a pre-determined departmental selection committee ready to extend undue favour to private respondents and that the appellants had been simply thrown out of the arena by colourful exercise of jurisdiction.
4. Contrarily, the learned counsel representing private Respondents No, 7 & 8 submitted that Departmental Promotion/Selection Committee was properly constituted which considered all merits and demerits of the candidates competing for promotion posts and that no mala fide could be attributed to the members as well as the Chairman of the Committee. He submitted that questions of fitness for promotion squarely fall within the ambit of objective assessments, which is not possible at Service Tribunal level. He referred to the provisions of Section 4(1)(v) of Punjab Service Tribunal Act, 1974 and by relying upon 2012 PLC (CS) 1711 submitted for dismissal of the appeals. The learned District Attorney also adopted arguments of the learned counsel for Respcndents No, 7 & 8.
5. I have heard arguments of learned counsel for the appellant and learned District Attorney and have examined the record.
6. In the wake of the long drawn litigation seeking promotion as Naib Tehsildar against 12% posts reserved for subordinate service, the decision of Departmental Selection/Promotion Committee No, 1, Kasur, which had been somehow recorded in minutes of meeting of Departmental Selection/Promotion Committee No, 1, Kasur held on 08.08,2009 concerning appellant Muhammad Arif, Senior Clerk are re-produced hereunder for the facility of reference:-- "Muhammad Arif, Senior Clerk, BOR Punjab, Lahore.
He has been nominated by the Board of Revenue, Punjab. He was appointed as Junior. Clerk in the Board of Revenue, Punjab, Lahore on 16.08.1987. He has more than 3 years service as Senior Clerk.
His service record is as below:-- Qualification Matric Date of Birth 18.03.1968 Joined service as Junior Clerk (BS-5)16.08.1987 Promoted as Senior Clerk (BS-7)20.03.1999 Present posting Board of Revenue Position of ACRs The BOR has been requested to send the service record of the official to this office vide. letter No, HC(E)-2009/3743 dated 21.07.2009 but the same has not been received so far.
Position of Departmental EnquiryNo departmental enquiry is pending against him at present Position of penalties He was never awarded any under E&D Rules penalty under E&D Rules.
His qualification and experience is not compatible with Mr. Khalid Mahmood Iqbal, Senior Clerk who has unanimously been approved by the Committee for promotion. Hence, his case is dropped."
Similarly, the minutes of meeting of the said committee concerning appellant Shaukat Ali, Senior Clerk read as under:-- "Shaukat Ali, Senior Clerk He joined service as Junior Clerk on 18.01.1988 in the defunct Deputy Commissioner Office, Kasur.
He has more than 03 years service as Senior Clerk in the Revenue Department. He had worked as HRC, Colony Branch, Head Clerk to AC and Registration Moharrar. His service record is as below:-- Qualification B.A Date of Birth 01.06.1963 Joined service as Junior Clerk (BS-5)18.01.1988 Promoted as Senior Clerk (BS-7)18.09.1993 Present posting Additional MT Clerk Tehsil Chunian Position of ACRs ACRs upto 2008 are complete! satisfactory Position of Departmental EnquiryNo departmental enquiry is pending against him at present Position of penalties under E&D RulesHe was never awarded any penalty under E&D Rules.
The District Officer (Revenue)! Secretary, DPC-I pointed out that work and conduct of the official is not satisfactory. Moreover, his case is not compatible with Mr. Khalid Mahmood Iqbal, Senior Clerk who has unanimously been approved by the Committee for promotion because of educational qualification seniority cum fitness basis. Hence, his case is dropped."
7. The learned counsel for the Respondents No, 7&d had submitted that this Tribunal has no jurisdiction in the matter in dispute as the question of fitness and promotion and to hold post squarely falls within the jurisdiction of the Departmental Promotion Committee as it requires objective assessm ent which cannot be assessed by this Tribunal. He relied upon Miss. Zubaida Khatoon's case 2011 SCM R 265 and Muhammad Azam's case 2012 PLC(C.S) 1104, which I have very respectfully gone through for the purpose of deriving due guidance with respect to scope of jurisdiction of this Tribunal in the matters of eligibility for promotion as well as questions of fitness for promotion and to hold a post. There is absolutely no second opinion to this legal position that so far as question of fitness of civil servant for promotion to higher grade or post is concerned that is definitely within the domain of the Departmental Selection/Promotion Committee which can properly evaluate and make an objective assessment of a civil servant to be promoted to next higher grade or post but where the authority responsible for consideration of service record, comparative merits and requirements of eligibility prescribed under the law i,e, relevant rules, acts contrary to. prescribed law, commits excess of jurisdiction or exercises jurisdiction in a colourable exercise of powers, the wrong done to a civil servant may be redressed by the Service Tribunal exercising judicial authority in such matters. The Hon'ble apex Court in a reported case tilted Engineer Naraindas Versus Federation of Pakistan 2002 SCM R 82 has held as under:--
(d) Service Tribunals Act (LXX of 1973)-- --S. 4--Sui Gas Transmission Company Limited Service Rules, 1982, Rr. 6.1,6.2 & 6.3--Constitution of Pakistan (1973), Arts. 25 & 212(3)--Appeal to Service Tribunal--Employees worked as trainee engineers for 4/5 years, whereafter their services were terminated by the Company--After unsuccessfully challenging the order of termination of service before High Court and Supreme Court, petitioners ultimately filed appeals, before Service Tribunal, which were dismissed-- Contention was that petitioners having rendered service for more than 3 years were entitled to have natural result of successful competition of their probation and as such this course having not been meted out to Saleem Mustafa Sheikh and others (PLD 2001 SC 176)--Without considering the import and implication of said Rules and in absence of any justifiable reasons, services of petitioners could not be terminated--Supreme Court converted petitions into appeals and allowed them by setting aside the judgment of Service Tribunal with direction to the Company to absorb the petitioners in their respective disciplines on same line as had been done in cases of Saleem Mustafa Sheikh and others (PLD 2001 SC 176).
The same view was earlier taken by the Hon'ble apex Court in Walayat Ali Mir's case 1995 SCM R 650, which is as under:-- (d)Civil Service-- --Promotion---Essentials--Dictum that no employee has vested right in promotion is although correct yet where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of competent authority, would entitle aggrieved person to challenge the same.
(e)Pakistan International Airlines Corporation Employees (Service and Discipline) Regulations, 1985-- --Reglns. 10, 15 & 1 7--Constitution of Pakistan (1973), Art. 212--Promotion of employee--Breach of regulation by Authorities--Effect--Remedy--Employee of the Corporation was twice recommended for promotion by Promotion Board--Competent Authority side tracking such recommendation without assigning any reasonable cause or excuse--Authority instead of promoting employee inducting dismissed employee of the Corporation into service and to a position wherein employee was to be promoted thus, depriving him the right of promotion--Such order of competent authority was arbitrary, unfair and devoid of good faith--Employee's right to promotion was accepted--Employee having retired meanwhile, he was entitled to all benefits which would have accrued to him in case he had been promoted in the relevant year on the recommendation of Promotion Board.
In view of dictum of the Hon'ble apex Court referred above, the decision of the Departmental Selection/Promotion Committee requires to be judiciously examined. The departmental authority i,e, Departmental Selection/Promotion Committee No, 1 Kasur while making assessment of all the candidates and officials-otherwise eligible for promotion to the post of Naib Tehsildar-was under legal obligation to have recorded good reasons for dropping the names of the present appellants in the light of the applicable rules with regard to eligibility, fitness and service records of both the appellants as well as the Respondents Nos, 7 & 8. The authority has recorded grounds of ignoring the appellants as well as the reasons assigned for promoting Respondents No, 7 & 8, which are to be assessed in view of the applicable rules in present cases i,e, the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. As the appellants as well as Respondents No, 7 & 8 were considered for promotion to the post of Naib Tehsildar against 12% posts through selection on merit amongst subordinate service with an experience of 03 years as Senior Clerk, the principle of seniority-cum-fitness should have reign supreme consideration for the authority while assessing their cases. Definitely, the service record of every official recommended for consideration by the committee was also relevant but so far as the decision of the grounds for dropping the names of the present appellants and recommending the Respondents No, 7 and 8 for promotions, those are based upon consideration and the criteria beyond the provisions of the rules ibid in as much as for promotion from the members of subordinate service, the higher qualifications was neither requisite for promotion nor it could entitle a candidate for obtaining more marks of higher qualification than the other eligible candidates. In present cases, the authorities had recorded reasons of dropping of the present appellants to the effect that they had lesser qualifications than the Respondents No, 7 and 8. The other reason recorded by the committee is to the effect that the Board of Revenue was requested to send service record of Muhammad Arif but that was not made available to the committee. There is absolutely no second opinion that the procuring of service record of appellant Muhammad Arif was the responsibility of the committee which could have only deliberated their cases for consideration for promotion only if the records were complete in all respects. Such a duty could not be cast upon the appellant Muhammad Farooq nor he could have been penalized and discarded on this ground that his service record was not available.
8. The committee has dropped the name of appellant Shaukat Ali on two fold grounds i,e, (i) that his work and conduct was not satisfactory (ii) that his case was not compatible with Khalid Mehmood Iqbal, Senior Clerk. The committee failed to record any reasonable cause and the grounds for drawing such inference that his case was not compatible with Khalid Mehmood. The committee also failed to give any reason that as to on what basis the work and conduct of appellant Shaukat Ali was found to be dissatisfactory. For this purpose it was incumbent upon the committee to have referred to particular instances of his low work output and dissatisfactory work and conduct so depicted in ACRs which were neither referred to nor confronted to the appellant at the time of his consideration. Another aspect which, clinches the consideration of this Tribunal is that the committee did not mention about relative seniority of these officials because for promotion to the higher ranks from subordinate service members the seniority alongwith fitness was the prime consideration which if had to be outweighed, the justifiable reason should have been recorded in the minutes of the meeting against each such case which is also lacking in present case.
9. The impugned order date 22.02.2011 also carried mention that after promulgation of Punjab Revenue Department (Revenue Administration Posts) Rules, 2009 the matters of promotion from amongst the members of subordinate service were to be considered and recommended by the Punjab Public Service Commission. I am afraid that the learned Senior Member, Board of Revenue lost sight of the fact that at the relevant time i,e, 08.08.2009 these Rules were not enforced nor these could be retrospectively applied in the case of the present appellants and in their cases the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 had to be applied by the authorities.
10.As the appellants have been clamouring for their promotions since 2004 and have also earlier availed judicial remedies as well as the remedy of departmental appeals/representations but were meted out the same treatment by the departmental authorities and at one point of time it also appeared that the learned Senior Member, Board of Revenue in his order dated 17.06.2008 had referred to jurisdictional domain of the Service Tribunal in the matters of promotion but had purposely lost sight of the judgment of Hon'ble apex Court in the matters of exercise of discretion of the competent authority as reported Walayat Ali Mir's case 1995 SCM R 650, and for the facility of reference I like to quote the relevant part as under:-- "(c) Discretion-- --Exercise of--Mode--While exercising discretion, Authority should not act arbitrarily, unreasonably and in complete disregard of relevant rules and regulations--Discretion to be exercised has to be judged and considered in the background of facts and circumstances of each case--Discretion is not to be exercised on whims, caprices and mood of Authorities--Exercise of discretion is circumscribed by principles of justice and fairness-- Authority exercising discretion should take into consideration and advance aim and object of the enactment, rule or regulation under which it was authorized to act; it should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it would not be fair, reasonable and just exercise of power--Pre-conditions imposed for exercise of discretion should be honoured and respected unless for valid reasons, they have to be discarded."
11. After thrashing of the entire factual position and finding light from the applicable rules in the present case I am absolutely not in the oblivions that the departmental authorities who had to act like parents in the service matters of their subordinates had not acted in present cases justly and fairly and had discriminated the present appellants having been annoyed from the earlier orders of Punjab Service Tribunal passed in Service Appeal No, 2482/2007 and had resultantly not exercised the discretion vested in them in fair and proper manners and also not in accordance with the dictates of law particularly the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. As in cases of present appellants when they were eligible to be considered by the authority for promotion and neither any particular deficiency with regard to their work and conduct existed on record nor was referred by the authority in its minutes of meeting dated 08.08.2009, dropping of their names for promotion was not justified at all.
12.For the reasons recorded above both the appeals are accepted. The orders date 22.02.2011 and 10.08.2009 in service appeal Bearing No, 1186/2011 titled Shaukat Ali vs. SMBR Punjab, Lahore and others regarding promotions of Respondents No, 7 and 8 are set aside and similarly in , service appeal Bearing No, 1324/2010 titled Muhammad Arif vs. EDO(Revenue), Kasur & others Notification dated 10.08.2009 and 30.03.2010 are set aside. The Departmental Selection/Promotion Committee No, 1, Kasur headed by the Deputy Commissioner Kasur is directed to consider the cases of both the appellants for promotion as B-Class Naib Tehsildar alongwith Respondents No, 7 and 8 and other eligible candidates in the light of applicable rules i,e, Punjab Revenue Department (Revenue Administration Posts) Rules, 1990 for their promotions from the date their juniors were considered and promoted. The Departmental Selection Committee would convene a meeting for this purpose and would conclude/complete entire process within a period of three months positively and a compliance report would be submitted to the Registrar of this Tribunal.