Petitioner, a civil servant who has since retired on attaining the age of superannuation filed this Constitutional petition to call in question the decision of the departmental authority conveyed to him vide memo. No.SI.P.F.C.-18/P--11, dated 24-2-1990 declining to grant his request for the grant of pro forma promotion in BS-19 w.e.f. 26-11-1983 and for promotion to BS-20.
2. Facts necessary for the disposal of this petition, briefly stated, are that the petitioner joined the Provincial Civil Service (EB) in. The year 1955 through a competitive examination. He was promoted to the senior C.S.P. Scale (BS-18) on 25-5-1974 but on his representation, he was given pro forma promotion in Grade-18 w.e.f. 26-6-1972 vide Notification dated 11-6-1980. His case for promotion to BS-19 alongwith some other officers of Grade-18 was initiated in 1982 but before the case could be finalised, he was retired from service under section 12(ii) of the Punjab Civil Service Act, 1974 on his having completed 25 years of service qualifying for pension. The respondent has, however, stated in the parawise comments that the name of the petitioner was no doubt included in the panel of officers submitted to the Provincial Selection Board but as he was at serial No. 7 of seniority list while only three vacancies in Grade-19 were to be filled by promotion from amongst the senior most officers, he "was not ignored-for promotion due to his retirement". Be that as it may, the petitioner assailed the order of his retirement in an appeal before the Punjab Service Tribunal. The Tribunal accepted his appeal vide judgment dated 8-4-1986 and directed the Government to reinstate him in service with all back benefits. Petitioner was accordingly reinstated on 23-7-1986.
3. After his reinstatement, the petitioner filed a representation before the Chief Secretary, Government of Punjab claiming promotion to Grade-19 w.e.f. 26-111983 and to Grade-20 w.e.f. 2-6- 1986, the dates from which Mr. Muhammad Yousaf Khan, an officer junior to him was promoted to these grades. The representation was considered by the Provincial Selection Board in its meeting held on 22-2-1987 when it made the following recommendation:-- "Promotion deferred till he- earns one full year confidential report."
This recommendation was approved by the Chief Minister and the decision was conveyed to the petitioner on 8-6-1987. He represented against the recommendation/decision in question whereupon his case was again placed before the Provincial Selection Board which examined the service record of the petitioner is its meeting held on 24-1-1989 and observed that he was commented upon adversely in the reports for the years 1958, 1962, 1963 and 1971 (1-1-1971 to 1-5- 1971); he also got an adverse report in 1975 to the effect that he was reported to be living beyond known means of income and some adverse remarks were also made in the report for 1980. It was, however, noted that the reports for 1958 and 1963 were not communicated to the petitioner and the adverse remarks in the report for the year 1980 were expunged by the Punjab Service Tribunal but the Government appeal was pending before the Supreme Court. The remaining record of the petitioner was, however, found to be satisfactory and it was noted that "he has been generally rated as good". The Board, therefore, recommended that "he may be promoted to a post in BS-19 in the rank-of Deputy Commissioner/Additional Secretary". The recommendation of the Board was approved by the Chief Minister on 10-3-1989 but the formal notification was issued on 16-11-1989 as no post in BS-19 was available. Be that as it may, since the promotion took effect on the date of issuance of the order/notification, petitioner was not satisfied and he, therefore, again represented to the- competent authority reiterating his claim for pro forma promotion with retrospective effect.
The Provincial Selection Board once more considered his request in its meeting held on 5-12-1989 and on examining the service record of the petitioner observed that "he had been commented upon adversely on many occasions such as his .ACRs of 1958; 1962, 1963 (not communicated), 1971, 1975 and 1980. Most of these remarks were of serious nature as they reflected upon his competence as well as integrity". The Board also took note of a 'pending enquiry against the petitioner under the Efficiency and Discipline Rules on the basis of the allegations levelled by the Commissioner, D.G.
Khan. The Board then proceeding on the premises that the petitioner's request for pro forma promotion w.e.f. 1983 could only be considered on the basis of his service record up to 1983 took the view that since, he had received so many adverse entries in his ACRs up to 1983, "his record did ' not justify his promotion to BS-19 w.e.f. 26-11-1983" It was accordingly decided by the Board not to recommend the petitioner for pro forma promotion in BS-19 and it was further observed that since he could not qualify for promotion in BS-19 before 1989, question of his promotion to BS-20 w.e.f. 2- 6-1986 did not arise. As regards the future promotion to BS-20, however, the Board recommended that "his case may be deferred till the finalisation of the enquiry pending against him". These decisions were conveyed to the petitioner vide the impugned memo dated 24-2-1990 (Annexure `D'). Feeling aggrieved, the petitioner approached this Court through this Constitutional petition praying that "the decision of the Provincial Selection Board in the meeting held on 5-12-1989, contained in their letter dated 24-2-1990 may kindly be declared as without lawful authority and of no legal effect, with a consequential direction to the respondent to consider the case of the petitioner for pro forma promotion to Grade-19 with effect from 26-11-1983 and promotion to Grade-20 from the due date (2-6-1986) in accordance with law, rules and instructions on the subject".
4.I have heard the learned counsel for the petitioner as also the learned Additional Advocate- General for the respondent/Government. Learned counsel for the petitioner submitted that the Provincial Selection Board, on whose advice, the impugned decision was taken by the competent authority erred in taking into consideration and relying upon the adverse remarks in the petitioner's ACRs for the years 1958, 1962, 1963, 1971, 1975 and 1980. It was pointed out by the learned counsel that the adverse remarks, if any, i1i the ACRs for the years 1958 and 1963 were never communicated to the petitioner and, therefore, the same could not be taken into consideration for denying pro forma promotion to the petitioner. Reliance was placed on Muhammad Farooq Chauhan v. The Province of Punjab (PLD 1987 SC 271) to support the proposition that the uncommunicated adverse remarks are to be ignored in cases of promotion. Learned counsel also pointed out that the adverse entry in the ACR for the year 1980 was later expunged by the Service. Tribunal with the result that it would be deemed to have never existed. With respect to the adverse entries for the years 1962 and 1971, the submission made was that despite these two entries, the petitioner was given pro forma promotion in Grade-18 (senior CSP scale) vide Notification dated 11-6-1980. It was, therefore, not available to the Departmental Authorities to utilize these entries for declining pro forma promotion to the petitioner in Grade-19. As regards the adverse entry for the year 1975 (living beyond known means of income), learned counsel sought to contend that in view of this entry, petitioner was compulsorily retired under Efficiency and Discipline Rules in 1976. Petitioner preferred an appeal before the Service Tribunal which was accepted and the order of his retirement set aside vide judgment dated 19-9-1978 reported in 1980 PLC (C.S.) 418. In the submission of the learned counsel, the effect of the entry in question stood diluted by virtue of the judgment of the Service Tribunal and it could not, therefore, be pressed into service for refusing pro forma promotion to the petitioner. Proceeding on these premises, learned counsel argued that the view expressed by the Provincial Selection Board that there were many adverse entries in the ACRs of the petitioner up to 1983 which did not justify the grant of pro forma promotion to him was not based on proper and correct examination of the petitioner's service record. According to the learned counsel, the service record of the petitioner was misread and misconstrued by the relevant authority, which vitiated the impugned decision.
5. Learned Additional Advocate-General appearing for the Government opposed this petition mainly on two-fold grounds. His first contention was that the promotion is not a vested right and the claim therefore cannot be enforced through Courts. It was maintained that the question of suitability and fitness is a matter falling within the exclusive competence of the Selection Board and the competent authority and it is not justiciable in a Court of law. According to the learned Additional Advocate-General, the request of the petitioner for the grant of pro forma promotion was duly considered by the Provincial Selection Board with reference to his service record, which was found unsatisfactory. It was, therefore, rightly decided by the Selection Board not to recommend -his case for pro forma promotion. It was contended that the finding of the Selection Board and of the Competent Authority is not open to review in these proceedings. Second ground of attack directed against the maintainability of this Constitution petition was based on the bar contained in Article 212 of the constitution. It was argued that the grievance agitated by the petitioner through this petition, at best, related to the terms and conditions of his service which under Clause (2) of Article 212 of the Constitution falls within the exclusive jurisdiction of the Service Tribunal and the jurisdiction of this Court under Article 199 of the Constitution to entertain any proceedings in respect of matters failing within the ambit of Service Tribunal is completely excluded.
6. I will first take up the question of maintainability of the Constitutional petition. There can be no cavil with the proposition which by now is fairly well --settled that in view of the provisions of Article 212 of the Constitution read with section 4 of the Punjab Service Tribunals Act, the Service Tribunal has the exclusive jurisdiction in matters relating to the terms and conditions of the service of the civil servants including the disciplinary matters and the jurisdiction of all other Courts including this Court in respect of matters falling within the competence of the Service Tribunal stands ousted.
Learned counsel for the petitioner, however; contended that since the Provincial Selection Board on examining the service record of the petitioner did not find him fit for pro forma promotion due to unsatisfactory record of service, appeal against the impugned decision of the Selection Board was not maintainable before the Service Tribunal and, therefore, the jurisdiction of this Court to examine the validity of the impugned decision was not ousted. Reliance for this contention was placed on proviso (b) to subsection (1) of section 4 of the Punjab Service Tribunals Act which bars an appeal to the Service Tribunal against an order or decision of a Departmental Authority determining the fitness or otherwise of a person to be promoted to a higher grade. Learned counsel also relied upon Mushtaq Hussain Shah v. Director, Food, Lahore Region and others (1990 SCMR 1492) in support of the proposition canvassed by him.
Learned Additional Advocate-General, on the other hand, contended that the pro forma promotion did not involve any question of fitness and, therefore, proviso (b) aforementioned was not attracted and as such the order/decision of the Departmental Authority denying the pro forma promotion to the petitioner could well be assailed in an appeal before the Service Tribunal. He heavily relied upon the case of Mrs. Aqeela Asghar Ali and others v. Miss Khalida Khatoon Malik and others (PLD 1991 SC 1118) particularly the following observations made in para. 12 of the judgment:-- -----------the pro forma promotion is' not so much a question of fitness as of having been illegally deprived of a right possessed by the civil servant. This question was certainly open to examination by the Service Tribunal and its jurisdiction was not ousted by section 4 of the Service Tribunals Act, fitness being not one of the considerations therein."
The import of these observations, it appears, was not correctly understood by the learned Additional Advocate-General. The observations aforenoted, it may pertinently be stated, were made in the context of the Government instructions contained in the circular dated 16th October, 1973 (relevant portions whereof were reproduced in para. 11 of the judgment) and the facts of that particular case. It has no where been laid down in the precedent case that the pro forma promotion did not at all involve the question of fitness. On the contrary, while dealing with the objection that the question of pro forma promotion necessarily involves the question of fitness of the civil servants to be promoted and hence stands excluded from the jurisdiction of the Service Tribunal, the learned Judges of the Supreme Court observed that it was true that the cases of promotion ordinarily involve the question of fitness as well. It was held that while considering a case of promotion, the following three things are to be seen:-- "First is the rule of promotion. Is it of selection or of seniority-cum---fitness or of seniority alone?
The second is where the promotion is to take place by seniority-cum---fitness, as in the case before us, the question would necessarily be assignment of the correct seniority and proceeding to determine the entitlement of promotion on its basis.
The third question necessarily, would be of fitness for promotion."
On the facts of the precedent case, however, the question of fitness was, of course, not involved as the appellant therein who was superseded on account of numerous adverse entries in her A.C.Rs.
And also because of her involvement in anti-corruption case was granted pro forma promotion after her acquittal in criminal case and the expunction of adverse remarks. In the circumstances, the objection as to the competence of the appeal before the Service Tribunal on the ground that it related to the fitness of the appellant over which the Tribunal had no jurisdiction, was turned down .By the Tribunal holding that it was not a case of fitness but of the applicability or inapplicability of the rules relating to expunction of adverse remarks in the A.C.Rs. And the pro forma promotion in consequence of it. In the present case, however, as seen above, petitioner was found not fit for the grant of pro forma promotion due to his unsatisfactory record of service. That being so, he could not have maintained an appeal against the impugned decision before the Service Tribunal in view of the bar contained in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act. In the circumstances, the jurisdiction of this Court to examine the vires of the impugned decision is not excluded.
7. Coming now to the merits of the impugned decision and the material forming the basis thereof, it may be stated that it was not denied by the learned Additional Advocate-General that the adverse remarks recorded in the petitioner's A.C.Rs. For the years 1958 and 1963 were not communicated to him and that the adverse entry in the, year 1980 was expunged by the Fun-jab Service Tribunal. That being so, these three entries could not have been taker into consideration at all to the prejudice of the petitioner. It is a settled proposition of law that uncommunicated adverse remarks shall be ignored in cases of promotion. Refer PLD 198 SC 271 (supra). Similarly, an adverse entry having been expunged on an appeal or representation would be treated as non-existent for all intents and purposes. As regards the adverse entries for the years 1962 and 1971, contention of the petitioner, as noted hereinabove, was that despite these entries, the petitioner was granted pro forma promotion in Grade-18 vide Notification dated 11-6-1980 and, therefore, these very entries could not have been utilized by the Provincial Selection Board for refusing pro forma promotion in Grade-19. Learned Additional Advocate-General was unable to controvert this proposition, which even otherwise was based on sound reasoning. Perusal of the minutes of the meeting in which the impugned decision was taken shows that the attention of the Selection Board was not drawn to the fact that the petitioner had earlier been allowed pro forma promotion in Grad: -18 notwithstanding the aforenoted two adverse entries. The remaining adverse entry relating to the year 1975 was sought to be explained by the petitioner on the premises that it was on the basis of this entry that he was compulsorily retired on 19-9-1978 and since the order of retirement was set aside by the Service Tribunal, the effect of the entry in question would be deemed to have been diluted and the same, therefore, could not be pressed into service for the purpose of refusing to grant pro forma promotion. From the perusal of the judgment of the Service Tribunal, it appears that show-cause notice was issued to him in the first instance on 28-8-1975 for being guilty of misconduct and for being inefficient and again on 16-10-1976, he was served with another show-cause notice on the charges of corruption, misuse of official position, and acceptance of bribe. It is, therefore, not correct to state that he was proceeded against under the Efficiency and Discipline Rules and was compulsorily retired only on the basis of the adverse entry recorded in his A.C.R. For the year 1975 to the effect that he was reported to be living beyond known means of income. In the circumstances, the mere fact that the order of the petitioner's retirement was set aside by the Service Tribunal could not be said to have wiped away the entry in question particularly when it admittedly holds the field as the appeal preferred for its expunction was dismissed by the Service Tribunal.
Confronted with this position, learned counsel for the petitioner sought to argue that since the decision to refuse pro forma promotion to the petitioner in Grade-19 was taken on the basis of as many as 6 adverse entries out of which 5 entries could not have been taken into consideration for reasons aforementioned and there being no standard to ascertain as to how far the irrelevant material influenced the mind of the decision-making authority, the impugned decision could not be sustained, particularly when this Court could not substitute its own decision for that of the competent authority. It was submitted that keeping in view the nature of the lis and the scope of interference by this Court in exercise of its Constitutional jurisdiction, it was not possible to separate bad reasons from good reasons so as to sustain the impugned decision. Reliance for these submissions was placed on (i) Fayyaz Muhammad v. Deputy Inspector-General of Police, Bahawalpur Range, Bahawalpur and another (1973 PLC 361); (ii) Muhammad Musawwar Khan v.
Deputy Commissioner, Gujranwala and 2 others PLD 1983 Lah. .102; (iii) M/s. Eastern General Insurance Co. Ltd. v. Controller of Insurance, Government of Pakistan, Department of Insurance, Karachi (1992 MLD 1772); (iv) The State of Maharashtra v. Babulal Kriparam Takkamore and others (AIR 1967 SC 1353) and Swarn Singh and another v. State of Punjab and others (AIR 1976 SC 232). The cases cited by the learned counsel fully support the propositions canvassed by him. In the first- mentioned case, it was held that where an order is based on consideration of matters which ought not to have been taken into consideration by the authority passing it, and it is not possible to predicate the part played by the consideration of such matters on the mind of the authority passing the order, such an order is inoperative. In the second case, the Deputy Commissioner has given a number of reasons for setting aside the auction out of which at least one reason was ex facie bad in law. It was held that "it cannot be determined in the exercise of Constitutional jurisdiction to what extent the bad reason referred to above operated on the mind of the Deputy Commissioner or whether the impugned order would have been made at all even if the collection for the octroi for the current financial year was higher than the amount compared to the last year's income. It is well-settled that in the exercise of Constitutional jurisdiction, this Court cannot substitute its own independent opinion for that of the competent authority. The doctrine of severability cannot be exercised in this case by separating bad reasons from good reasons.
Therefore, the whole order is liable to be struck down". In the case of M/s. Eastern General Insurance Co. Ltd., the view taken was that if action has been taken by an authority on different grounds and any one or more of such grounds cannot be sustained in law, the entire action would suffer from infirmity as in such a case, it would be difficult to ascertain which of the grounds upon which action was taken weighed more with such authority. In the two cases from Indian jurisdiction referred to above (both being appeal cases), it was held that where an administrative or quasijudicial order is based on several grounds, some of which are non-existent or irrelevant and there is nothing to show that the authority passing the order would have passed it on the basis of other relevant and existing grounds, that order cannot be sustained.
8. In the aforesaid view of the matter with which I find myself in respectful agreement, the impugned decision of the Provincial Selection Board/competent Authority refusing to grant pro forma promotion to the petitioner in Grade-19 on the basis of adverse entries in his A.C.Rs. Most of which could not have been lawfully taken into consideration cannot be sustained for the reasons aforementioned and the same is accordingly declared to be without lawful authority and of no legal effect. Since the matter of the grant or refusal of promotion/pro forma promotion lies within the exclusive s' domain of the administrative authorities, the case is remanded to the respondent with a direction to reconsider the petitioner's request for the grant of pro forma promotion in BS-19 in accordance with law keeping in view the observations made hereinabove. Needless to observe that the petitioner's request for the grant of promotion to BS-20 will depend upon the grant or refusal of pro forma promotion in BS-19. Writ petition thus, stands disposed of in the aforesaid terms with no orders as to costs.