MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Zahid Rashid, impugns the decision to supersede him on the recommendations of the Central Selection Board ("C.S.B.") which had considered him for promotion to BPS-20 in its meetings held between 04.01.2021 and 07.01.2021. The reasons for the petitioner's supersession were set out in the letter dated 15.04.2021 from the office of the Auditor General of Pakistan ("A.G.P.").
2. Earlier, the petitioner had been considered for promotion to BS-20 by the C.S.B. in its meetings held between 27.05.2019 and 29.05.2019. The C.S.B. had recommended the petitioner's supersession.
Vide letter dated 31.07.2019, the reasons for his supersession were communicated to the petitioner.
The said letter was impugned by the petitioner in Writ Petition No.2874/2019, which was allowed by this Court vide order dated 10.08.2020. The petitioner's supersession was set-aside and it was held that his supersession shall be treated as deferment. A direction was also issued for the petitioner to be considered for promotion in the next meeting of the C.S.B.
3. The C.S.B., in its meetings held between 04.01.2021 and 07.01.2021, again considered the petitioner for promotion to BS-20 but again recommended that he be superseded. The petitioner's grievance is that the reasons which prevailed with the C.S.B. resulting in recommending the petitioner's supersession were the same as the ones for his earlier supersession, which had been set-aside by this Court.
FACTUAL BACKGROUND:-
4. The petitioner is a civil servant having joined the Pakistan Audit and Accounts Group on 31.10.1992.
Over the years, he was promoted to BS-19 and is desirous of being promoted to BPS-20. The factual background regarding the petitioner's tribulations in defending himself in the disciplinary proceedings that had been initiated against him from time to time and his quest for promotion to BPS-20 was set out in sufficient detail in this Court's said order dated 10.08.2020, but for the purposes of the instant petition it needs to be mentioned again.
5. At first, disciplinary proceedings were initiated against the petitioner in 1998 on the charge of abducting a lady. These proceedings culminated in the imposition of a major penalty of removal from service vide notification dated 26.02.2000. Subsequently, the F.S.T. modified this penalty to reduction to a lower post for a period of one year. Thereafter, the Hon'ble Supreme Court set-aside the imposition of the said penalty on the petitioner and a notification to the said effect was issued on 20.01.2004.
6. On 13.02.2014, the petitioner was considered for promotion to BS-20 by the C.S.B. The petitioner's promotion was deferred. Aggrieved by this, the petitioner filed Writ Petition No.29098/2016 before the Hon'ble Lahore High Court. Vide order dated 03.02.2017, the said writ petition was allowed and the petitioner's deferment was set-aside. Furthermore, it was- directed that the petitioner's case be placed before the. C.S.B. by convening a special meeting.
7. The C.S.B., in its meetings held between 05.05.2015 and 07.05.2015, had considered the petitioner for promotion to BS-20 but recommended that he be superseded. Aggrieved by this, the petitioner filed Writ Petition No.1429/2015 before this Court, which was allowed vide judgment dated 27.07.2015, and the decision to supersede the petitioner was set-aside. The said judgment was upheld up to the Hon'ble Supreme Court of Pakistan vide judgment reported as 2017 SCM R 969.
8. Disciplinary proceedings had been initiated against the petitioner by the Auditor General's Department. The petitioner had assailed the initiation of these proceedings in Appeal No.1488(R)CS/2016 before the Federal Service Tribunal, Islamabad ("F.S.T."). The petitioner had also challenged the "D" grading given to him in the integrity column of his Performance Evaluation Report ("P.E.R.").
9.Vide judgment dated 04.11.2016, the F.S.T. held that the 'D' grading given to the petitioner was not sustainable. The F.S.T., however, did not interfere with the disciplinary proceedings against the petitioner. In the said judgment, it was observed that the petitioner's case for promotion to the next grade needs to be sent to the C.S.B. for consideration on merit in its upcoming meeting.
10. Subsequently, the petitioner filed a review petition before the F.S.T. seeking a direction to the C.S.B. to consider the petitioner's case for promotion on merit despite the pendency of the disciplinary proceedings. Vide order dated 29.11.2016, the said review petition was disposed of with the observation that "pendency of an inquiry against a civil servant cannot come in the way of his promotion."
11.The petitioner was again considered for promotion to BS-20 by the C.S.B. in its meetings held between 13.12.2016 and 16.12.2016: This time, the C.S.B. decided to recommend that the petitioner be superseded. Aggrieved by his supersession, the petitioner filed Writ Petition No.1918/2017 before this Court, which petition was disposed of vide order dated 22.05.2017. During the proceedings in the said petition, the Additional Attorney-General for Pakistan had submitted that the petitioner would be considered for promotion in the next meeting of the C.S.B. in compliance with the directions given by the Hon'ble Supreme Court in the judgment reported as 2017 SCMR 969.
12. Disciplinary proceedings were again initiated against the petitioner when he was posted in the Collectorate of Sales Tax at Lahore. These proceedings also culminated in the imposition of a major penalty of dismissal from service on the petitioner. Notification dated 19.01.2017 to this effect was issued by the office of the A.G.P.' The petitioner assailed the said notification in Appeal No.2229(R)CS/2017 before the F.S.T. Vide judgment dated 22.09.2017, the said appeal was allowed and the said notification dated 19.01.2017 was declared as void. Furthermore, it was directed that the petitioner be reinstated in service, and his case for promotion be put up in the upcoming meeting of the C.S.B. Vide notification dated 20.10.2017 issued by the office of the A.G.P., the petitioner was reinstated in service with effect from 19.01.2017.
13. Disciplinary proceedings were yet again initiated against the petitioner on the charges of inefficiency, misconduct and corruption while serving as Director General (DAOs) and Accountant General, Punjab on look-after basis. These proceedings culminated in the imposition of a major penalty of dismissal from service vide notification dated 20.10.2017 issued by the office of the A.G.P.
The petitioner assailed the imposition of the said penalty in Appeal' No.208(R)CS/2018 before the F.S.T. Vide judgment dated 24.09.2018, the said appeal was allowed and the Notification dated 20.10.2017, whereby a major penalty of dismissal from service that was imposed on the petitioner, was set-aside. In paragraph 12 of the said judgment, the F.S.T. held that the imposition of a major penalty on the petitioner on the same day on which he had been reinstated in service was malicious and mala fide. It was, however, observed in the said judgment that fresh departmental proceedings may be initiated against the petitioner in accordance with the law. As a result of the said judgment, the petitioner was again reinstated in service.
14. In December 2018, the petitioner's case for promotion to BS-20 had again been placed before the C.S.B. The petitioner's promotion was deferred yet again by the C.S.B. Aggrieved by the said deferment, the petitioner filed Writ Petition No.1482/2019 before this Court. Vide order dated 26.04.2019, the said writ petition was disposed of after the Court was informed that the petitioner was being considered for promotion in the C.S.B.'s next meeting.
15. It may be recalled that the F.S.T., while allowing the petitioner's Appeal (Appeal No.208(R)CS/2018), observed in its judgment dated 24.09.2018 that fresh departmental proceedings may be initiated against the petitioner in accordance with the law. De-novo proceedings were initiated against the petitioner. A charge sheet was issued to the petitioner on 09.11.2018. On 20.05.2019, the Inquiry Officer submitted his inquiry report with the findings that the charges levelled against the petitioner had been established. These findings were given after the Inquiry Officer noted that since most of the witnesses in the case had either retired from government service or had been transferred to other departments or had proceeded abroad, their statements could not be recorded afresh. It was also noted that the Inquiry Officer had examined the case in the light of the material collected during the last inquiry. It may be recalled that the imposition of the major penalty on the basis of the last inquiry had been set-aside.
16. On 23.05.2019, a notice was issued to the petitioner by the office of the A.G.P. calling upon him to show cause as to why a major penalty of dismissal from service should not be imposed on him under the provisions of the Government Servants (Efficiency and Discipline) Rules, 1973.
17. Vide letter dated 30.05.2019, the Authorized Officer withdrew the show cause notice dated 23.05.2019 that had been issued to the petitioner. The letter dated 31.05.2019 from the Authorized Officer to the Inquiry Officer shows that the latter was asked to review his findings in the inquiry by addressing all the discrepancies and shortcomings noted in the F.S.T.'s said judgment dated 24.09.2018. Furthermore, the Inquiry Officer was asked to submit his comprehensive findings in the light of the said judgment.
18. After the de-novo proceedings were initiated against the petitioner he filed another appeal before the F.S.T., which vide order dated 06.12.2019 transmitted the appeal to the appellate authority / Prime Minister with the direction to treat the same as the petitioner's departmental appeal and decide it in accordance with the law. The documents on record show that the office of the A.G.P. is in the process of moving a summary to the Prime Minister of Pakistan, proposing that the petitioner's appeal be rejected as premature so that the de-novo proceedings are concluded. For all intents and purposes, the proceedings against the petitioner are still pending.
19. It was in these circumstances that the petitioner was again considered for promotion to BS-20 by, the C.S.B. in its meeting held between 27.05.2019 and 29.05.2019. The C.S.B. decided to recommend the petitioner's supersession. It is against the said supersession that Writ Petition No.2874/2019 was filed by the petitioner before this Court. During the pendency of the said petition, the petitioner was again considered for promotion by the C.S.B. but was again deferred on the ground that he had not been able to earn P.E.R. of one full year after his supersession.
20. Vide order dated 10.08.2020, this Court allowed Writ Petition No.2874/2019 and set-aside the letter dated 31.07.2019 whereby the reasons for the petitioner's suppression had been communicated to him by the office of the A.G.P. Furthermore, it was held that the petitioner's supersession shall be treated as deferment and it was directed that his case be placed for consideration before the C.S.B. in its next meeting.
21. One of the reasons that had been given by the C.S.B. for recommending the petitioner's supersession was that he was "prone to disciplinary proceedings" and that he had a "chequered career." This Court's observations in its order dated 10.08.2020 regarding the said remarks about the petitioner were as follows:- "19. It is nor disputed that the disciplinary proceedings Conducted against the petitioner have culminated in judgments passed by the F.S.T. whereby the major penalties of dismissal from service imposed on the petitioner on two occasions have been set-aside. With the setting-aside of the major penalties that had been imposed on the petitioner, it was most unfair and irrational for the C.S.B. to have recorded that the petitioner was "prone to disciplinary proceedings." The C.S.B. while recording the reasons for the petitioner's supersession had given the detailed background of the disciplinary proceedings that had been initiated from time to time against the petitioner. After giving such details, it was remarked that the petitioner had a "chequered career."
This remark was also unfair since in the final analysis, the F.S.T. had passed judgments in the petitioner's favour and had set-aside the major penalties that had been imposed on him."
Furthermore, this Court also held as follows:- "21. It is well settled that mere pendency of disciplinary proceedings against an officer cannot be a valid ground to deprive him from being considered for promotion or even to defer his promotion.
Therefore, I am of the view that the observations "prone to disciplinary proceedings" or the petitioner having a "chequered career" made by the C.S.B. due to him successfully challenging the imposition of major penalty on him before the F.S.T. cannot be a valid ground for his supersession."
22. The petitioner was again considered for promotion by the C.S.B. in its meetings held between 04.01.2021 and 07.01.2021. The C.S.B. once again recommended that the petitioner be superseded. It appears that the office of the A.G.P. was totally oblivious of this Court's above-mentioned observations in the order dated 10.08.2020 while presenting the petitioner's case for promotion before the C.S.B. I say so because in the letter dated 15.04.2021 from the office of the A.G.P., it is stated that the "departmental representative informed that the career profile of the officer demonstrates that he was prone to disciplinary proceedings and that he had a chequered career."
23. After the C.S.B. recommended that the petitioner be superseded, the latter was informed by the office of the A.G.P. vide letter dated 15.04.2021 that he had been superseded. The said letter also contained the reasons for the petitioner's supersession. Through the instant writ petition, the petitioner has assailed his supersession.
24. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant writ petition, submitted that the reasons given by the C.S.B. for recommending the petitioner's supersession were no different from the reasons given earlier for his supersession; that the petitioner could not have been denied the benefit of promotion on account of a pending de-novo inquiry; that at no material stage has any major penalty been imposed on the petitioner; that independent Courts and the Tribunals have granted relief to the petitioner against the excesses of the respondents; that the reasons given for the petitioner's supersession are not sustainable inasmuch as on the basis of his performance in the S.M.C., he was earlier deferred but this time the petitioner's performance in the same S.M.C. was made a ground for his supersession; that the remarks of the C.S.B. that the petitioner "does not carry good reputation regarding his financial / moral integrity and professionalism" are unjustified and not based on the record; that while giving such adverse remarks, the C.S.B. did not take into account the fact that the petitioner had not earned any adverse P.E.R. in the recent past; that indeed this Court, in its judgment reported as Sikandar Hayat Maken v. Federation of Pakistan 2021 PLC (C.S.) 1450, had held inter alia that the competent authority had to ensure that civil servants who are competent, suitable and known for their integrity are appointed through promotion against selection posts but there was no material on the record for the C.S.B. to come to conclusion that the petitioner was either incompetent or unsuitable or a person with questionable integrity so as to deny him the benefit of promotion; that although the petitioner was exempted from the Mid-Career Management Course ("M.C.M.C.")
(which carried 12 marks), since he did undertake the S.M.C. (which carried 18 marks) he should have been judged by the C.S.B. on the basis of his performance in the S.M.C.; that the C.S.B. erred by placing at its own discretion the 12 marks earmarked for the M.C.M.C.; and that the recommendation of the C.S.B. to supersede the petitioner is irrational and liable to be set-aside in the Constitutional jurisdiction of this Court. Learned counsel for the petitioner prayed for the instant petition to be allowed in terms of the relief sought therein.
25. On the other hand, the learned Deputy Attorney-General submitted that the petitioner had been successful in avoiding a de-novo inquiry against him by resorting to unnecessary litigation; that the reasons given by the C.S.B. for recommending the petitioner's supersession show that he did indeed have a chequered career; that there was hardly any period when no disciplinary proceedings were pending against the petitioner; that on three occasions, a major penalty of dismissal / removal from service was imposed on the petitioner but these penalties were set-aside by the Superior Courts and the F.S.T.; that as far back as 24.09.2018 the F.S.T., while allowing the petitioner's appeal against the imposition of a major penalty of dismissal from service, had observed that a de-novo inquiry could be initiated against the petitioner; that the petitioner has avoided the de-novo inquiry on one pretext or the other; that the C.S.B.'s decision to award the petitioner zero out of 4.2 marks for his integrity was just and reasonable; that the members of the C.S.B., in their collective wisdom, came to the conclusion that the petitioner did not carry a good reputation regarding his financial / moral integrity and professionalism; and that the C.S.B. had exclusive jurisdiction to determine whether the petitioner was fit and suitable for promotion.
Learned Deputy Attorney-General prayed for the writ petition to be dismissed.
26. I have heard the contentions of the learned counsel for the petitioner and the learned Deputy Attorney-General and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 23 above and need not be recapitulated.
27. The C.S.B., in its meetings held between 04.01.2021 and 07.01.2021, considered the petitioner for promotion to BS-20. As mentioned above, the C.S.B. recommended that the petitioner be superseded. This recommendation was approved by the appointing authority. The letter dated 15.04.2021 from the office of the A.G.P. to the petitioner sets out the reasons which prevailed with the C.S.B. in recommending the petitioner's supersession.
28. Reference in the said letter dated 15.04.2021 is made to the disciplinary proceedings that had been initiated against the petitioner from time to time. Details of the disciplinary proceedings conducted against the petitioner during his career have been set out in paragraphs 08 to 18 herein above. It is an admitted position that although disciplinary proceedings had been initiated against the petitioner from time to time, but each time the penalty imposed on him has either been set- aside or an order for de-novo-proceedings has been passed. The disciplinary proceedings against the petitioner are still pending. I am of the view that the pendency of such proceedings against the petitioner could not be a valid ground for his supersession. To deprive the petitioner's consideration for promotion on the basis of a pending inquiry is a violation of the law laid down in the following judgments of the Superior Courts:- i) In the case of Ziaul Hassan v. Naseem Chaudhary (2000 SCMR 645), it was held by the Hon'ble Supreme Court that the mere fact that some disciplinary proceedings were pending against an employee was not a sufficient ground for not considering him for promotion. ii) In the case of Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd. (PLD 2002 (SC) 1060), the appellant was not promoted due to a criminal case pending against him whereas civil servants junior to him were promoted. The appellant sought his promotion with effect from the date when his juniors were promoted. Even after the prosecution withdrew the case against the appellant, the authorities refused to promote him. The Services Tribunal upheld the decision of the authorities not to promote the appellant. The Hon'ble Supreme Court set-aside the decision of the Services Tribunal and inter alia held that the appellant had been wrongly denied promotion from the date when his juniors were promoted. iii) In the case of Muhammad Hanif v. Province of Sindh (2011 PLC (C.S.) 534), the Hon'ble High Court of Sindh gave a direction to the respondents to consider the petitioner's case for promotion purely on merits without regard to the pendency of any criminal or civil case against him. iv) In the case of Salahuddin Mughal v. Province of Sindh (2012 PLC (C.S.) 1018), the petitioner was not promoted because a number of inquiries were pending against him and a reference had also been filed against him by the National Accountability Bureau. It was held by the Hon'ble High Court of Sindh that pendency of a reference or an inquiry would not debar a civil servant for being considered for promotion. The Hon'ble High Court directed the department to consider the case of the petitioner for promotion in accordance with the law. v) In the case of Nazeer-ud-Din v. Government of Pakistan through Secretary, Passport and Immigration Department (2017 PLC (C.S.) 578, I had the occasion to hold as follows:- "9. Now, it is well-settled that no one could be punished by denying him promotion or consideration for promotion before the charge is established against him. Mere pendency of a criminal case is no ground for denying him consideration for promotion. Although an FIR has been registered against the petitioner, it is yet to be established whether or not the petitioner is guilty of the offence that he has been accused with. Until the conclusion of the trial against the petitioner, he cannot be denied consideration for promotion. Promotion is not the petitioner's vested right, but consideration for promotion in accordance with the taw, indeed is."
Law to the said effect has also been laid down in the cases of Muhammad Riaz v. Government of the Punjab (2003 PLC (C.S.) 1496), Muhammad Hanif v. Province of Sindh (2011 PLC (C. S.) 534), Javed Iqbal Nasir v. Managing Director, PEPCO (2012 PLC (C. S.) 1043), Shama Khan Zafar v.
District Coordination Officer, Lodhran (2014 PLC (C. S.) 948) and Muhammad Amin v. Managing Director, House Building Finance Corporation (2016 PLC (C. S.) 569).
29. The C.S.B., in its meetings between 04.01.2021 and 07.01.2021, considered the petitioner for promotion under the Civil Servants Promotion (BPS-18 to BPS-21) Rules, 2019 ("the 2019 Rules"), Rule 18(3)(b) of the said Rules provides inter alia that for the purposes of promotion to posts in BPS-20, the marks mentioned in column-3 of the Table below shall be allocated for quantification of P.E.R.s, Training Evaluation Reports ("T.E.R.s") and evaluation by the C.S.B.:- S.No.Factor Marks (1)(2) (3)
1. Quantification of PERs 40% 2.Training Evaluation Reports (TERs)30% 3.Evaluation by CSB and DSB 30% 4.Total 100%
30. In order for a civil servant in BPS-18 to be considered for promotion to BPS-19 he is required to successfully undergo the M.C.M.C. Whereas a civil servant in BPS-19 can be considered for promotion to BPS-20 if he has successfully undergone the S.M.C. These courses are mandatory for all civil servants except those belonging to specialist cadres. This is provided in Rule 19 of the 2019 Rules. It is an admitted position that the petitioner was exempt from undergoing the M.C.M.C. After he was promoted to BPS-19, he did undergo the S.M.C.
31. Now, Rule 20 of the 2019 Rules provides that 30 marks shall be allocated to the last two T.E.R.s (18 marks at the rate of 60% for the training in the present scale and 12 marks at the rate of 40% in the previous scale). Schedule-III to the said Rules provides inter alia that if an officer is exempted from one or both trainings on the basis of belonging to a specialist cadre, his / her training score will not be calculated and the 30 marks of the training shall be placed at the disposal of the C.S.B. Since the petitioner was exempted from the M.C.M.C. and since for his S.M.C. (i.e., his training in his present scale of BPS-19), only 18 marks could be allocated for his T.E.R., the remaining 12 marks for his T.E.R. in the previous scale was placed at the disposal of the C.S.B. Therefore, in the petitioner's case, 42. marks (i.e., 30 marks which are allocated for evaluation by the C.S.B. under Rule 18(3)(b) of the 2019 Rules plus the 12 marks that would have been allocated for the petitioner's T.E.R.s in the previous scale) were placed at the disposal of the C.S.B., I do not find any legal infirmity in the placement of the said 12 marks at the disposal of the C.S.B. especially when there is a specific sanction for doing so under Schedule-III to the said Rules. The petitioner was given 34 marks out of 40 marks for his P.E.R.s. and 10.26 marks out of 18 marks for his T.E.R.s. In this way, out of 58 marks (i.e., 40 marks for the quantification of the petitioner's P.E.R.s and 18 marks for the petitioner's T.E.R. in his present scale), the petitioner was given 44.26 marks. Out of 42 marks (i.e., 30 marks for evaluation by the C.S.B. and 12 marks which were meant for the petitioner's T.E.R.s. in the previous scale but had been placed at the disposal of the C.S.B.), the petitioner was given just 9 marks. In all the C.S.B. gave the petitioner 53.26 out of 100 marks. Since the petitioner had not satisfied the threshold of obtaining 70 marks, he was recommended not to be promoted.
32. The breakdown of these marks shows that out of 4.2 marks that could be awarded by the C.S.B. for the petitioner's integrity / general reputation / perception, he was given zero marks. In other words, the C.S.B., in its collective wisdom, came to the conclusion that the petitioner had no integrity. Schedule-IV to the 2019 Rules provides that while giving marks for an officer's integrity / general reputation / perception, the C.S.B. has to take into consideration the officer's professional ethics / conduct on the basis of P.E.R.s / T.E.R.s / opinion of the C.S.B. primarily based on the dossier / documentary evidence. Not a single document has been brought on record by the respondents to show that the petitioner's integrity was questionable or such as would deserve the grant of zero marks. The petitioner's P.E.R.s for the period between 01.01.2003 and 02.06.2020 show that for his integrity, he was granted Grade-A. Incidentally for his quality of work, output of work and intellectual capability, he was granted Grade-A as well. The petitioner's pen picture as per his Reporting Officer was as follows:- "Mr. Zahid Rashid is experienced officer who understand policy and accounting functions. He has been main support in completing various targets assigned for wing during this time."
33. The petitioner's Countersigning Officer gave an over-all grading of "very good" to the petitioner and expressed his agreement with, the views of Reporting Officer by noting as follows:- "I know the officer for the last two decades, and I do agree with the assessment of the Reporting Officer."
34. Both the Reporting and Countersigning Officer found the petitioner fit for promotion.
35. The Panel Proforma prepared by the Establishment Division for the C.S.B. shows that during the petitioner's service in BPS-18 and BPS-19, he did not earn any average or below average P.E.R.s. During his service in BPS-18, the petitioner earned two "outstanding" P.E.R.s and two "very good"
P.E.R.s. During his service in BPS-19, the petitioner earned one "outstanding" P.E.R. five "very good"
P.E.R.s and one "good" P.E.R. The said Panel Proforma also shows that after the petitioner's supersession, he had earned P.E.R.s for the year 2020 with final grading as "very good."
36. As regards the petitioner's P.E.R.s. for the period between 01.01.2019 and 31.12.2019, the petitioner's Reporting Officer gave him Grade-B for his general and intellectual integrity whereas the Countersigning Officer gave him Grade-A. The Countersigning Officer, while recommending the petitioner for promotion, observed that he would be indispensible in any area requiring application of audit as well as accounting assignments. Regarding the petitioner's fitness for promotion, his Reporting Officer had observed that he is "to be considered by administration considering his case on merit." The Countersigning Officer had termed the Reporting Officer's evaluation and quality of assessm ent to be biased.
37. Although the petitioner's course report regarding his S.M.C. leaves much to be desired about him, the fact remains that he had completed the said course in the year 2013. Thereafter, the petitioner had been considered for promotion to BPS-20 but had been deferred on several occasions. Therefore, I am of the view that the petitioner's supersession on the basis of his performance and S.M.C. was irrational given the fact that after the completion of the S.M.C. by the petitioner; his performance had not prevented the C.S.B. from deferring his promotion.
38. Where the C.S.B. wants to take a view about an officer under consideration for promotion which is contrary to what is stated about an officer in his P.E.R.s. or any other official record, such view must be supported by credible information / documents on the record. In the process of judicial review undertaken by this Court under Article 199 of the Constitution, the Establishment Division must not shy away from bringing such record to the fore so that this Court is convinced that no procedural impropriety or illegality was committed by the C.S.B. in the process of considering an officer for promotion. The Hon'ble Supreme Court, in a number of cases, has emphasized that the seven instruments that are most useful in structuring discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair and informal procedures. The C.S.B., in exercising its discretion whether to recommend the promotion or supersession or deferment of an officer, must bear the said instruments in mind.
39. In the case at hand, no documentary evidence or material was brought on the record by the respondents to show that the C.S.B. was justified in ignoring the petitioner's P.E.R.s. for the past years showing his integrity to be of 'A' or 'B' Grade. There was only one occasion in the year 2015 when the petitioner's general and intellectual integrity was graded as "C", but such grading was set- aside by the F.S.T. vide judgment dated 04.11.2016 and consequently, the petitioner's integrity was graded as "A." Given all these facts, I am of the considered view that the grant of zero marks by the C.S.B. to the petitioner for his general and intellectual integrity is not just irrational, contrary to the material on the record but also absurd. This absurdity in the marking for the petitioner's integrity puts into doubt the C.S.B.'s marking for other heads on which the petitioner's fitness for promotion had to be judged such as output and quality of work, variety and relevance of experience, professional expertise, personality profile, etc.
40. It is noted with regret that despite clear judicial enunciations through judgments in the cases of Federation of Pakistan v. Dr. Muhammad Arif (2018 PLC (C. S.) 907) and Federation of Pakistan v.
Dr. Muhammad Arif (2017 SCMR 969), the C.S.B. ignored the guidelines given in the said judgments for granting marks on an officer's integrity. In the former judgment, this Court had the occasion to hold as follows:- "78...."Integrity" has been defined in Words and Phrases, Volume 21B, to mean "moral soundness, freedom from corrupting influence or practice". It is also used as a synonym for probity, fidelity and honesty. Do the 'reasons' make reference to any material which caused the CSB to conclude that the officer lacks moral soundness or honesty. Certainly not! This casts a shadow on the manner in which discretion was exercised by the CSB. This eventuality could have been averted had the Establishment Division acted in accordance with the directions contained in the judgments in Iram Adnan's case, Liaqat Chugtai's case and Orya Maqbool's case and structured an objective criteria on the basis of which the CSB could have exercised discretion. Is it not a paradox that on the basis of an officer's PERs and TER.s, etc., he obtains qualifying marks for promotion, but on the basis of the 'opinion' of the CSB regarding his integrity etc., he is given less than 3 marks and denied promotion.
79. An officer against whom there is nothing adverse in his PERs and TERs, cannot without sufficient tangible and convincing material be relegated by the CSB by giving him less than 3 marks for his integrity, as the same would go against the age-old maxim "nemo firutrepenteturpissimus" (no one becomes dishonest all of a sudden). If any of the members of the CSB disagree with the positive remarks about the integrity of an officer in his annual confidential reports, they must specifically record as to why they are not satisfied with the remarks in such reports with specific reference to the material which contradicts the remarks in such reports.
80. An adverse opinion formed by the members of the CSB about a particular officer under consideration has to be based on tangible material, which would lead any reasonable mind to form the same opinion. The minutes of the meetings of the CSB and the recommendations of the CSB to defer or supersede a particular officer must make explicit reference to the material which caused them to become doubtful about such the officer's integrity. However, if such material has not, at any material stage been, disclosed to the officer, he must first be confronted with a. If such a process is adopted, the officer in question may satisfy the members of the CSB as to inaccuracy or falsity of such material/information. If the officer concerned is not confronted with such material/information, it would be a violation of the principles of natural justice - audi alteram partem (no one should be condemned unheard). The violation of this principle- would be enough to vitiate even the most solemn proceedings. This principle has been held to have originated from the Islamic Principles of Justice and would be read considered as a part of every statute. Audi alteram partem has to be applied in all judicial and non judicial proceedings notwithstanding that a right of hearing has not been expressly provided by the statute governing the proceedings.
Reference in this regard may be made to the law laid down in the cases of Hazara (Hill Tract)
Improvement Trust through Chairman and others v. Mst. Qaisra Elahi and others (2005 SCMR 678), Messrs Dewan Salman Fiber Ltd v. Government of N.-W.F.P. through Secretary, Revenue Department, Peshawar and others (PLD 2004 SC 441), Abdul Hafeez Abbasi and others v.
Managing Director, Pakistan Airlines Corporation Karachi and others (2002 SCMR 1034), Ghulam Mustafa Jatoi v. Additional District and Sessions Judge/Returning Officer and others (1994 SCMR 1299), Makerwal Collieries Ltd. and 2 others v. Government of N.W.F.P and 11 others (1993 SCMR 1140) and Raziuddin v. Chairman, Pakistan Airlines Corporation and 2 others (PLD 1992 SC 531).
81. In the deliberations of the CSB there is no room for hearsay, rumors, generalizations or gossip about an officer under consideration for promotion. Any member of the CSB cannot tell the others that a particular officer is known to him and that he thinks that the officer's integrity or reputation is such that makes him undeserved for promotion. To immerse an officer into the abyss of doubtful integrity, it is not enough that the doubt fringes on a mere intuition. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain the doubt, regarding that possibility. Only then, there is justification to ram an officer with the label 'doubtful integrity'. Collective wisdom implies that the tangible information and material on the basis of which such a member of the CSB formed an adverse opinion about an officer under consideration should be placed before all the other members of the CSB so that they can, with an independent application of mind, form their respective opinions about the integrity or reputation of such an officer."
41. The mere fact that after the said judgments, the 2019 Rules have been framed which do not provide for the officer under consideration for promotion to be confronted with the adverse material about him, would not take away the binding nature of the law laid down in the said judgments and a corresponding obligation on the C.S.B. as well as on the Establishment Division to show strict compliance with the same.
42. As regards the C.S.B.'s view that no civil servant can ask for promotion as a right, there is no cavil with the same. However, it is well settled that the jurisdiction to resolve questions regarding fitness and suitability of a civil servant to be considered for promotion does not vest in the Service Tribunal. The High Court is the- proper forum to adjudicate upon such matters in exercise of its Constitutional jurisdiction. Reference in this regard may be made to the law laid down in the case of Tahir Mahmood v. Inspector General of Police Punjab, Lahore (1993 PLC (C.S.) 576). What is barred from the jurisdiction of the Service Tribunal is the question of fitness of a civil servant for promotion and not the question of suitability for promotion. This Court does not have the jurisdiction to determine the eligibility of a civil servant as the matter relates to the terms and conditions of service. Reference in this regard may be made to the law laid down in the cases of Abdul Malik v. Sabir Zameer Siddiquui (1991 SCMR 1129) and Tasleem Jan v. Muhammad Zeman (2005 SCMR 695). The case at hand does not concern the petitioner's eligibility for promotion but his fitness. The C.S.B. is required to carry out an objective assessment of a civil servant under consideration for promotion in accordance with the parameters set out in Schedule-IV to the 2019 Rules. This Court is vested with jurisdiction under Article 199 of the Constitution to judicially review the process and the manner in which discretion is exercised by the C.S.B. in recommending the supersession of an officer under consideration of promotion.
43. In view of the above, the instant petition is allowed; the impugned letter dated 15.04.2021 from the office of the A.G.P. is set-aside; the petitioner's supersession shall be treated as deferment; and it is expected that he would be considered for promotion to BS-20 by the C.S.B. in its next meeting.
There shall be no order as to costs.