ABID AZIZ SHEIKH, J. This judgment will also decide Writ Petitions No.27255/2021 and 30330/2021 as common questions of law and facts are involved in all these petitions and same are also against similar impugned orders passed by respondent No.2 and communicated by respondent No.1.
2. Relevant facts are that petitioners in W.P. No.26387/2021 and 27255/2021 are BPS-20 Officers whereas petitioner in W.P. No.30330/2021 is BPS-19 Officer of the Police Service of Pakistan. The Central Selection Board (CSB ) held its meeting from 04 to 7th of January 2021, wherein various officers including the petitioners were considered for promotion from BPS-19 to 20 and BPS-20 to BPS-21 respectively , however , the CSB recommended "supersession" of the petitioners and did not promote them to BPS-20 or BPS-21. The petitioners were communicated the said supersession decisions through separate letters dated 07.04.2021 issued by respondent No.1. The petitioners being aggrieved of the supersession decisions by the CSB and letters dated 07.04.2021 by respondent No.1, have filed these constitutional petitions.
3. The learned counsel for the petitioners submits that the relevant Rules applicable for promotion from BPS-18 to BPS-21 are "Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019" (Rules ). Submits that previously the petitioners' cases for promotion were cons idered in the CSB meeting held from 27 to 29th of January 2020 but they were superseded under Rule 8(a) of the Rules. Submits that under Rule 10(5) of the Rules, if a civil servant once superseded for promotion under Rule 8, he/she shall be eligible for reconsideration only after he/she earns one more PER of full one year. Submits that instead of waiting for full one year, another CSB meeting was held on 4-7th of January 2021, in which the petitioners were again superseded through impugned orders, which were communicated to petitioners on 07.04.2021. Learned counsel submits that the impugned decision is clear violation of Rule 10(5) of the Rules, which is mandatory in nature. Adds that petitioners were superseded under Rule 8(a) of the Rules on the ground that they are not fit for further promotion, however , Rule 8(a) deals with the situation where an officer does not meet the requisite threshold for promotion and for any other reason, Rule 8(c) is the relevant rule. Submits that in view of above distinction in rule 8(a) and (c), the petitioners having requisite qualifications and threshold, could not be superseded unde r rule 8(a) of the Rules. Learned counsel further submits that in the CSB meeting, only one year PER was considered whereas other PERs in which the petitioners were found to be "excellent" were not even considered. Adds that when in PER, there is no adverse material but same is found from some other source by the CSB, then the same must be confronted to the officer concerned. Learned counsel placed reliance on Federation of Pakistan through Secretary Establishment Division vs. Dr. Muhammad Arif (2017 SCMR 969), Syed Farooq Ahmad Shah vs. Government of Punjab through Home Secretary Punjab, Lahore (2020 PLC (CS) 1378) and Secretary Establishment Division, Government of Pakistan vs. Dr. Muhammad Arif (2017 PLC (CS) 907). On the question of territorial jurisdiction, submits that petitioners in this writ petition and Writ Petition No.27255/2021 are residents of and also posted at Lahore whereas petitioner in Writ Petition No.30330/2021 is posted at Faisalabad, therefore, notwithstanding the fact that impugned orders were passed by CSB at Islamabad, this Court has concurrent jurisdiction in the matter . Learned counsel for the petitioners further submits that as the determination of fitness of civil servants for promotion has been excluded from the jurisdiction of the Service Tribunal, the ouster in clause 2 of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution ), does not extend to instant matters. Adds that petitioners have also challenged the impugned orders being against the Rules, therefore, the impugned orders being tainted with malafide in law, the writ petitions are maintainable. Learned counsel placed reliance on Secretary Establishment Division, Government of Pakistan, Islamabad vs. Aftab Ahmed Manika (2015 SCMR 1006 ), Amina Imran vs. Federation of Pakistan (2019 PLC (CS) 134) and Liaqat Ali Chughtai vs. Federation of Pakistan through Secretary Railways ( PLD 2013 Lahore 413 ).
4. Learned Law Officer on the other hand supported the impugned decisions and communications dated 07.04.2021 and submits that petitioners' cases were considered for promotion by the CSB on the basis of their complete service record but Board did not find them fit for promotion and recommended them for supersession which was subsequently approved by the competent authority . Further submits that in January 2020 meeting, CSB considered the PER of 2018 and in January 2021 meeting, the PER of 2019 was considered, hence rule 10(5) of the Rules has not been violated. Further submits that the impugned order being passed at Islamabad, this Court does not have territorial jurisdiction in the matter . However , learned Law Officer candidly conceded that bar of Article 212 of the Constitution is not applic able in the present cases and said groun d of maintainability has also not been raised in reply filed by the respondents. He placed reliance on Judgment passed by Islamabad High Court dated 06.08.2020 in W .P. No.8/2020 ( Sikandar Hayat Maken vs. Federation of Pakistan).
5. Arguments heard. Before touching merits of the case, I would like to decide the threshold question of maintainability of these constitutional petitions. No doubt the meeting of CSB from 4-7th January 2021 took place in Islamabad and the impugned decisions and communication letters dated 17.04.2021 were also written at Islamabad. However , admittedly the petitioner in Writ Petition No.27255/2021 is resident of Lahore and presently posted as Deputy Commandant Punjab Constabulary at Lahore. Similarly petitioner in Writ Petition No.26387/2021 is resident of Lahore and currently awaiting posting with the Establishment Division. The petitioner in Writ Petition No.30330/2021 is also resident of Lahore and presently posted as SSP FIA Zone Faisalabad. The impugned letters dated 07.04.2021 have been issued by respondent No.1 (Federal Government), which functions all over the country and the petitioners (who are aggrieved and effectee of the said impugned orders/letters) being residents of Lahore and posted at Lahore or Faisalabad, can agitate their grievance within the territorial jurisdiction of this High Court, in which the impugned orders have af fected them.
This legal principle was settled by this Court in LPG Association of Pakistan through its Chairman vs. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others ( 2009 CLD 1498 ) where it was held as under:- "(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him."
6. The honourable Supreme Court in the case of The Federal Government through Secretary Interior , Government of Pakistan vs. Ms. Ayyan Ali and others (2017 SCMR 1179) reiterated the same principle. The relevant part of the judgment of honourable Supreme Court supra is reproduced hereunder:- "4. As regards the question of territorial jurisdiction, it hardly need any emphasis that the impugned Notification/Memorandum has been issued by the Federal Government, which functions all over the country , and since the respondent No.1 resides in Karachi, and has a right and choice to proceed abroad through Jinnah International Airport, Karachi, and in fact atleast twice earlier she had proceeded to go abroad through Jinnah International Airport, Karachi, though she was stopped owing to the earlier Notifications/Memorandums, and therefore the embargo placed on her leaving the country has in fact taken place at Karachi, which prevention in all likelihood, was to be repeated at Karachi in pursuance of the third Notification/Memorandum, and thus giving rise to a cause of action against the third Notifica tion/Memorandum at Karachi because of its taking effect there. It is now well settled that the Federal Governmen t, though may have exclusive residence or location at Islamabad, would still be deemed to function all over the country . In this regard the case of LPG Association of Pakistan through its Chairman v. Federation of Pakistan through Secretary Ministry of Petroleum and Natural Resources Islamabad and 8 others (2009 CLD 1498 ), may be referred to, whereby the Lahore High Court, after meticulously analyzing the judgments rendered by this Court, as well as of the High Cour ts on the question of territorial jurisdiction, with regard to the acts, deeds and the legislative instruments of/by the Federal Government, has deduced the jurisprudential principles as follows:- "(A) The Federal Government or any body politic or a corporation or a statutory authority having exclusive residence or location at Islamabad with no office at any other place in any of the Province, shall still be deemed to function all over the country .
(B) If such Government, body or authority passes any order or initiates an action at Islamabad, but it affects the "aggrieved party" at the place other than the Federal capital, such party shall have a cause of action to agitate about his grievance within the territorial jurisdiction of the High Court in which said order/action has affected him.
(C) This shall be moreso in the cases where a party is aggrieved by a legislative instrument (including any rules, etc.) on the ground of it being ultra vires, because the cause to sue against that law shall accrue to a person at the place where his rights have been affected. For example, if a law is challenged on the ground that it is confiscatory in nature, violative of the fundamental rights to property; profession; association etc. and any curb has been placed upon such a right by a law enforced at Islamabad, besides there, it can also be challenged within the jurisdiction of the High Court, where the right is likely to be affected.
In this context, illustrations can be given, that if some duty/tax has been imposed upon the withdrawal of the amounts by the account holders from their bank account and the aggrieved party is, maintaining the account at Lahore though the Act/law has been passed at Islamabad, yet his right being affected where he maintained the account (Lahore), he also can competently initiate a writ petition in Lahore besides Islamabad; this shall also be true for the violation of any right to profession, if being conducted by a person at Lahore, obviously in the situation, he shall have a right to seek the enforcement of his right in any of the two High Courts."
7. Earlier the same view was also expres sed by the Hon'ble Supreme Court of Pakistan in the case of "Messers AL-Iblagh Limited, Lahore vs. The Copyright Board, Karachi and others (1985 SCMR 758), wherein it was observed as under:- "...The Central Government has set up a Copyright Board for the whole of Pakistan and it performs functions in relation to the affairs of the Federation in all the Provinces. Hence, any order pass ed by it or proceedings taken by it in relation to any person in any of the four Provinces of Pakistan would give the High Court of the Province, in whose territory the order would affect such a person, jurisdiction to hear the case .
The conclusion drawn by august Supreme Court goes as under:- ...We agree and are of the opinion that both the Lahore High Court as well as the Sindh High Court had concurrent jurisdiction in the matter and both the Courts could have entertained a Writ Petition against the impugned orders in the circumstances of this case. We, therefore, hold that the Lahore High Court has illegally refused to exercise jurisdiction in this case. The case will, therefore, go back to the Lahore High Court for the decision of the Writ Petition filed by the appellant before it for decision on merits, in accordance with law . "
8. This Court also in the case titled "Messrs Sethi and Sethi sons through Humayun Khan vs. Federation of Pakistan through Secretary , Ministry of Finance, Islamabad and others" ( 2012 PTD 1869 ) held as under:- "A PERSON performing functions in connection with the affairs of the FEDERA TION as compared to a Province or local authority , is a PERSON who besides carrying the attributes listed in Salahuddin Case is by law vested with territorial jurisdiction that spans across the country i.e. possessing a national or country wide territorial jurisdiction.
Federal Government or any person performing functions in connection with the affairs of the Federation enjoys ubiquitous presence everywhere across the country having territorial jurisdiction of every High Court in the country .
In this case it will be up to the aggriev ed person to choose the High Court of his convenience. Similarly , the territorial jurisdiction of a person performing functions in connection with affairs of the Provinces or the Local Authority enjoys precedence all over the Province and within the territorial jurisdiction of the local authority ."
9. This Court recently in the case of Messrs JET GREET (PVT .) LIMITED versus FEDERA TION OF PAKIST AN and others (PLD 2021 Lahore 770) after discussing various case law concluded as under: "15. The enumerated judgments discussed above leads the Court to hold that if an authority was established under a federal law and performing authority , which is established under a federal law and performing functions in connection with the affairs of federation, like CAA in the present case, no matter where the head office is situated, in the Capital or in any other city of a Province, if it pass any order or undertake any proceedings in relation to any person living or doing business in any of the Provinces, then the High Court of the Province, in whose territory the order would affect that person, would be competent to exercise jurisdiction in the matter ."
10. From above case law, it is now well settled that if an functions in connection with the affairs of the federation, then regardless where the authority is situated, if it passes any order or undertake any proceedings in relation to any person living or posted in any of the Province, then the High Court of that Province in whose territory , the order would effect that person, would be competent to exercise jurisdiction in the matter . In view of above discussion and law settled by honourable Supreme Court, this Court has concurrent jurisdiction of adjudicating the matter , therefore, the preliminary objection of territorial jurisdiction is misconceived, hence repelled.
11. Regarding question of maintainability of these petitions on the touchstone of Article 212 of the Constitution, the learned counsel for the petitioners claimed that matters being for determination of fitness of civil servants for promotion, the Service Tribunal has no jurisdiction in the matter . In response to above submissions and case law referred to by learned counsel for the petitioners, the learned Law Officer has candidly conceded that these writ petition are maintainable and not hit by Article 212 of the Constitution, therefore, this legal question need not be adjudicated any further .
12. On merits, admittedly the promotion from BPS-18 to BPS-21 is governed under the Rules. Rule 8 relates to conditions for supersession, whereas rule 10 relates to consideration of promo tion of civil servants who were deferred/superseded. For convenience, rule 8 and rule 10(5) of the Rules are reproduced hereunder:- "8. Conditions for supersession.-- A civil servant shall be recommended for supersession, if -
(a) he/she does not meet the requisite threshold for promotion to a particular post or grade in any particular service, group or post;
(b) subject to the provisions of rule 22, he/she fails thrice for any reason to attend the mandatory training; or
(c) there is any other reason which shall be recorded in writing by the CSB, DSB or DPC as the case may be.
"10. Consideration of promotion of civil servants who were deferred/superseded . ..................................................................
(5). A civil servant, once superseded for promotion under rule 8 shall be eligibl e for reconsideration only after he/she earns one more PER of one full year ."
13. The plain reading of above rule 8 shows that a civil servant shall be recommended for supers ession if he/she does not meet the requisite threshold for promotion to a particular group or post or he/she subject to rule 22 fails thrice for any reason to attend the mandatory training or there is any other reason which shall be recorded in writing by CSB, DSB or DPC as the case may be. However , under rule 10(5), a civil servant once superseded for promotion under rule 8 ibid, shall be eligible for reconsideration only after he/she earns one more PER of full year .
14. In the present matters, admittedly the petitioners' cases for promotion were considered by CSB in its meeting held from 27-29 January 2020 but they were superseded under rule 8(a) of the Rules but thereaf ter their cases were again considered for promotion by the CSB in its meeting held from 4-7 January 2021, before expiry of full one year from the previous meeting of the CSB in which petitioners were superse ded. Once the petitioners were superseded by CSB in its meeting held on 27- 29 of January 2020 under rule 8(a), their cases could only be reconsidered for promotion after they earn one more PER of full one year as required under rule 10(5) of the Rules.
15. Learned Law Officer attempted to argue that rule 10(5) of the Rules was complied with, by submitting that in decision of CSB in its meeting held on 27-29th January 2020, the PERs of 2018 were considered, whereas in CSB meeting of 4-7 January 2021, the PERs of 2019 were considered. I am afraid this argument does not have any legs to stand in view of explicit language and mandatory requirement of rule 10(5) of the Rules, under which the superseding civil servant can only be reconsidered for promotion after he earns one more PER of full one year.
Mere fact that CSB in its two different meetings considered two different years' PERs, will not absolve it from following the mandatory requirement of rule 10(5) of the Rules. The obvious purpose of rule 10(5) of the Rules is to give sufficient opportunity and time to the superseded officer to improve and bring to an end the reasons on the basis of which the deferment took place. Therefore, the time to consideration for promotion of superseded officer under rule 10(5) of the Rules must commence from the date of supersession decisi on by CSB, so that he/she could know the reasons for supersession and may improve in one year if possible for his/her promotion in next meeting of CSB. Any other interpretation of this rule will render it redundant and meaningless.
16. This Court is mindful of the fact that CSB comprises of high personage with variety of experience, however , the promotion of the civil servant in accordance with law, relevant rules and in just and fair manner in the matter of advancement of their career is of paramount importance for good governance otherwise their commitment to the job, dedication to duty and even integrity may be effected. No doubt, fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of Service Tribunal or of this Court in Constitutional jurisdiction. The question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Courts or Tribunals, exercising supervisory jurisdiction in respec t of eligibility and qualification.
However , the above principle is not attracted to the present cases where the question is not substitution of an opinion of the competent authority but the vires of the orders passed by the CSB and competent authority are in question being against Rule 10(5) of the Rules.
17. In similar situation, the Hon'ble Supreme Court of Pakistan in the case of MUHAMMAD IQBAL and others versus EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another (2007 SCMR 682) held as under:- "7. There may be no cavil with the promotion that the question of promotion rests within the jurisdiction of competent authority , which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong. We are, therefore, not inclined to agree with the learned counsel that this was not a fit case for interference by the High Court in the exercise of constitutional jurisdiction. Admittedly High Court has not substituted its own decision for the act of the respondent, therefore, the submission is preposterous and not relevant."
The learned Islamabad High Court judgment dated 06.08.2020, passed in the case of Sikandar Hayat Maken supra referred by learned Law Officer, is distinguishable as violation of Rule 10(5) of the Rules was not the subject matter of the said judgment.
18. In view of above discussion, all these constitutional petitions are allowed . Accordingly , this Court feels fortified in declaring the impugned decisio ns of supersession of the petitioners by the CSB recorded in the minutes of its meeting held from 4-7th of Januar y 2021 and communicated on 07.04.2021 to be contrary to Rules and,th th th th therefore, illegal and without lawful authority . Consequently , upon such declaration, the respondents are directed to reconvene meeting of the CSB to reconsider the cases of the petitioners for prom otion. The CSB shall, however , act strictly on the basis of record and in accordance with law including the relevant Rules.