GHULAM MUST AFA MUGHAL, J. --- The captioned appeal by leave of the Court has been directed against the judgment dated 17.02.2018, passed by the Service Tribunal in Service Appeal No. 906/2017.
2. The facts forming the background of the captioned appeal are that Tassadaq Hussain, appellant, herein, was initially appointed in B-16 in the Electricity Department vide order dated 12.08.1980. He was promoted as Research Officer B-17, on the recommendations of the Public Service Commission, in 2002. Thereafter , he was transferred and posted as Field Store Manager B-17 vide order dated 27.11.2002. Vide order dated 27.10.2004, he was promoted as Deputy Director Inventory Control/Inspection B-18. It is alleged that one Javed Iqbal, Superintending Engineer B-19 was transferred and posted as Director Inventory Control/Inspection B-19 vide order dated 27.04.2010. It is stated that his transfer was not in line with the relevant rules, therefore, the appellant, herein, challenged the same before the Azad Jammu & Kashmir Service Tribunal by way of appeal on the ground that the appellant is the only person who is in possession of the required qualification and experience for the purpose of promotion as Director Inventory Control/Inspection B-19, so, a venue may be provided by inserting the scope of promotion in column No. 8 of the Azad Jammu & Kashmir Electricity Department Service Rules, 2010. The appeal was accepted by the learned Service Tribunal vide judgment dated 03.05.2014 and direction was issued to the respondents, therein, for amendment in the rules accordingly . The judgment passed by the learned Service Tribunal was not implemented, as such, the appellant, herein, filed an application for implementation of the same before the learned Service Tribunal. During pendency of that application, the respondents, therein, implemented the judgment of the learned Service Tribunal dated 03.05.2014 and issued amended rules vide notification dated 19.05.2015, through which, for promotion to the post of Director Inventory Control/Inspection B-19, scope was provided for the Deputy Director Inventor y Control/Inspection B-18. The appellant, herein, also filed a writ petition before the Azad Jammu & Kashmir High Court seeking direction to transfer Javed lqbal who was transferred and posted without any scope as Director Inventory Control/Inspection B-19 and to process the case of the appellant, herein, for promotion in light of the amen ded Rules, 2015. The learned High Court accepted the writ petition and directed the department for sending the working paper of the candidates from both the functional units of the Electricity Department for consideration and promotion to the post of Director Inventory Control/Inspection B-19 vide judgment dated 16.06.2017. The said judgment of the learned High Court was challenged before this Court by the other side by way of appeal which was dismissed vide judgment dated 25.10.2016. Thereafter , in compliance of the judgment of the High Court, the working paper was sent to the concerned selection board and its recommendations, respondent No. 6, herein, has been promoted as Director Inventory Control/Inspection B-19 vide notification dated 16.06.2017. This notification was challenged by the appellant, herein, before the Azad Jammu & Kashmir Service Tribunal on the ground that 12 persons from the cadre of Executive Engineer B-18 have been promoted to the post of Director Inventory Control/Inspection B-19 previously but not a single person has been considered for promotion from the cadre of the appellant, herein, hence, the promotion of respondent No. 6, herein, is arbitrary , perverse and illegal. It was further claimed that as per quota of the functional units, promotion to the post of Director Inventory Control/Inspection B-19, 70% promotion ought to have been made from Deputy Directors, Inventory Control/Inspection B-18 as it is a non-engineering post. It was stated that further line of promotion is available to the Executive Engineers in other departments and they can be promoted as Superintending Engineer B-19, Director CMO B-19 and Director Commercial B-19, etc., whereas, the appellant's cadre has been stuck due to arbitrary exercise of powers of the official-respondents. It was prayed that promotion of private-respondent No. 6, herein, made vide notification dated 16.06.2017, may be recalled and direction may be issued to the official-respondents to promote the appellant, herein. The appeal was contested by the other side by filing written statement, whereby , they refuted the claim of the appellant, herein, mainly on the ground that no quota is fixed for promotion, for promotion for different categories which suggests that only a suitable person should be promoted from the available categories and opinion of the Selection Board cannot be substituted. After hearing the parties, the learned Service Tribunal vide impugned judgment dated 17.02.2018, has dismissed the appeal.
3. Ch. Amjid Ali, the learned Advocate appearing for the appellant vehemently argued that proper service record of the appellant, herein, alongwith the partic ulars of his service have not been listed in the working paper sent to the concerned selection board, thus, the selection board was unable to evaluate the complete service record properly for determining the suitability and fitness of the contesting candidates. The learned Advocate further argued that the selection board has to give sound reasons for giving an edge to the candidate over the other candidates and also has to record reasons for ignoring and superseding the other candidates, which is lacking in the recommendations of the respective selection board in the case in hand, hence, the proceedings conducted by the selection board are perverse, arbitrary and without reasons. The learned Advocate further argued that 12 persons have already been considered for promo tion as Director Inventory Control/Inspection B-19 from other cadres but not a single person from the appellant's cadre has ever been considered by the selection board for promotion, therefore, it was enjoined upon the selection board to follow reasonable ratio for the purpose of making promotion to the post of Director Inventory Control/Inspection B-19. The learned Advocate submitted that the recommendations of the selection board are mala fide for not considering the complete service record of the appellant, herein, in accordance with the guidelines laid down by this Court regarding promotion of the civil servants.
4. Sardar M.R. Khan, the learned Advocate appearing for the other side argued that promotion on a particular grade cannot be claimed as a matter of right and the Legislature has not fixed any ratio for promotion to the post in question from different functional units of the Electricity Department, The learned Advocate further argued that it is correct that in absence of any quota fixed in the rules, no direction can be issued which has rightly not been issued by the learned Service Tribunal for considering the appellant, herein, the learned Advocate further argued that even then the service record of the appellant, herein, has been considered and in the opinion of the selection board respondent No. 6, herein, is eligible and suitable for promotion. This wisdom of the selection board cannot be substituted by the Court, submitted by the learned Advocate.
5. Sardar Karam Dad Khan, the learned Advocate-General has frankly conceded that the selection board has not given fair thought to the service record of the candidates because some particulars of the service record of the appellant, herein, were missing in the working paper . He suggested that the case be sent again to the concerned selection board for reconsideration of the matter .
6. We have heard the learned counsel for the parties and have gone through the record of the case. It may be stated that the selection board is substitute of the Public Service Commission and while evaluating the merit of the civil servants for the purpose of promotion and giving an edge to one of the contesting candidates over the others, it has to consider the service record and the policy for promotion strictly while giving reasons. Where the reasons are not given by the selection board then it can safely be concluded that the assessment made, by the selection board was subjective and not objective. Under Section 24-A of the General Clauses Act, it is necessary to give reasons in support of the decision which arc to be made by the public functionary . The order or decision which is not based on objective criteria, cannot be approved. In the case reported as Engineer Altaf Ahmed v. Azad Government & 4 others [2018 SCR 13091, this Court has considered an identical question and at page 1319 of the report, has observed as under:--- A perusal of the above would show that the. Selection Board has not adopted an objective criteria for giving an edge to the respondent, herein, over the appellant, despite the fact that appellant is in possession of higher qualification as well as length of service vis-a-vis to respondent. It may also be noted that the proper interpretation of relevant rules as has been argued by Mr. Abdul Rashid Abbasi the learned Advocate for the appellant, has also not been made by the Selection Board. We are of the opinion that the Selec tion Boards and the Selection Committees constituted for the purpose of promotion to the higher grade are the substitute of Public Service Commission. Their functioning should be judicious and recommendations should be based on reasoning and proper appreciation of the service record with clear cut findings regarding the fitness and eligibility of the contesting civil servants. In the case reported as Shaikh Zayed Hospital and Post-Graduate Medical Institutes through Chairman and Dean and another v. Dr. Muhammad Saeed and another (2010 PLC (C.S.) 967), a division bench of Lahore High Court has opined that the selection on merit for the purpose of further promotion must be based on an objective criteria. The relevant paragraphs of the report are reproduced herein under:--
47. Public institution cannot flourish and good governance cannot take root in this country unless public functionaries uphold the rule of law at all times and act strictly in accordance with law. To ensure that public functionaries act in accordance with law, fundamental function that needs to be meticulously regulated is their "exercise of discretion". Discretion of the public functionaries must strictly be within the framework of the law. In the absence of legislation, it must stand the test of fairness, procedural propriety , reasonableness, logic, transparency and good governance.'
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49. Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on objective criteria. As the present case pertains to selection and appointment of the most "eminent person of scientific and medical repute" for the post, the requirement of an objective criteria for the exercise of discretion becomes fundamental. The objective criteria now-a-days is based on objectively quantifiable evaluation basis which is publically known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery . The final order of the appointing authority must speak for itself, clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectively and without comparative essessment of the candidates available in the talent pool: For judging the present controversy , it appears necessary to reproduce the