' ABDUL RAZZAQ A. THAHIM (CHAIRMAN).---The facts of this appeal are that the appellant Mr. Syed Anwar Mahmood joined service on 27-11-1971 as C.I.S. Probationer in the junior Class-I scale, in the Ministry of Information and Broadcasting, vide Notification dated 30-11-1971. He was promoted to Grade-18 as Information Officer with effect from 3-1-1976 and then posted as Deputy Principal Information Officer in Grade-18 with special pay of Rs,100 with effect from 27-11-1976. He was sent on deputation with PIA as General Manager, Public Relations on 20-6-1982 vide Notification dated 20-6-1982 and was appointed as Director, Public Relations (Grade-19), Press Information Department on acting charge basis with effect from 9-2-1983 vide Notification dated 21-2-1983 and under the same notification the services of the appellant were placed at the disposal of the Ministry of Defence for appointment, on deputation, as General Manager (Public Relations) in the PIA and accordingly he relinquished the charge of the post of Director (acting charge) on 9-2-1983.
While he was still on deputation with PIA, he was transferred and posted as Press Secretary to the Prime Minister vide Notification dated 13-11-1986. Subsequently, vide Notification dated 31-1-1989, he was posted as Deputy Principal Information Officer (B-19) in the Press Information Department, Islamabad. Thereafter, he was posted as Director-General, External Publicity Wing, Ministry of Information in his own pay scale vide Notification dated 19-12-1990. He was again posted as Press Secretary to the Prime Minister in his own Pay Scale (B-19) vide Notification dated 21-2-1991.
However, he was promoted in BPS-20 vide Notification dated 4-11-1991 and was allowed to continue as Press Secretary to the Prime Minister. Thereafter, by Notification dated 16-7-1992, he was posted as Principal Information Officer, Press Information Department vice Mr. Khawaja Ijaz Sarwar who was transferred and he was also allowed to hold the additional charge of Press Secretary to the Prime Minister vide Notification dated 23-7-1992. Lastly, he was posted as Director-General (Programmes), Population Welfare Division vide Notification dated 19-10-1993 where he is still working .
2 . The Prime Minister on the recommendatory note of the Information Minister, without due process of law, approved the promotion of appellant in BPS-21 against the post of PIO which he was already holding in his own Pay Scale BPS-20 and such note was forwarded by the Secretary to the Prime Minister on 17-7-1993 to the Secretary-General, Establishment Division, who referred the case with the result that the notification regarding promotion of the appellant was not issued. Thereafter, the Ministry of Infommation decided to process the promotion case of the Officers of the Information Group for one post in BPS-21 in regular manner through Central Selection Board and Mr. Khawaja Ijaz Sarwar, respondent No,4, was promoted vide Notification dated 1-12-1993. Being aggrieved with the promotion of respondent No,4, he made a representation to the Prime Minister and in reply he was informed that under section 22(2) of the Civil Servants Act, 1973, no representation can lie for promotion to a higher post or grade the appellant then filed this appeal before the Tribunal under section 4 of the Service Tribunals Act, 1973 with the following prayer.
"....In view of the foregoing, it is respectfully prayed for and on behalf of the appellant that this learned Tribunal may be pleased to set aside/reverse/vary/quash the impugned Orders on the one hand and the respondents be, on the other hand, directed to consider the case of the appellant in accordance with law with full facts and/or they be directed to notify the formal promotion of the appellant to BPS-21. The appellant may also be given all back benefits for the period he worked against the post of BPSs-20 and 21 while he was paid in BPS-19 and BPS-20 respectively because he had fulfilled his duty satisfactorily and was entitled to he paid the pay of the post under section 17 of the Civil Servants Act, 1973 where he has shouldered the higher responsibilities without even the formal orders of his promotion for these periods. He may also be granted such other relief as may be deemed to be just and fair in the circumstances of the case alongwith costs."
3. This appeal was heard on 9-6-1994 and judgment was reserved. While going through the record for initiating judgment, certain new facts came to light and the appeal was fixed for further arguments with notice to the parties on the points whether the case of the appellant was duly processed through the Central Selection Board for promotion to BPS-21 and whether the order passed by the Secretary to Prime Minister dated 17-7-1993 did have the approval of the Prime Minister and on v, at basis: and we have heard Dr. G. S. Khan, the learned counsel for the appellant and standing counsel and Mr. Zakaullah Jan, representative of Establishment Division on 24-10- 1994. It is argued by Dr. G.S. Khan that although the case of the appellant was not processed through normal channel of Central Selection Board but the Prime Minister in his discretion, in view of the excellent service record, approved the appellant for promotion to BPS-21 on selection basis and on this he relied on PLD 1991 SC 58. It is argued that in new summary true facts were not brought to the notice of Prime Minister with regard to earlier approval, therefore, the Notification of promotion of respondent No, 4 is illegal. It is submitted that it was a case of review and not of promotion afresh.
4. The respondents have filed momments in which it is stated that the case of the appellant for promotion to BPS-21 was never processed through the Central Selection Board as required under the rules and since the order dated 16-7-1992 did not have the legal footing, the Notification promoting appellant to BPS-21 was not issued, the learned counsel appearing on behalf of the respondent department has also adopted the comments and reiterated the same arguments and also submitted that since the appellant, at that time, did not fulfil the requisite conditions for promotion to BPS-21, he was not eligible for promotion. Mr. Zakaullah Jan, Section Officer, Establishment Division submitted that under rule 5 (14) of the Rules of Business, it was the duty of the next below Officer to point out illegalities in the proceedings before passing final order and since the case of the appellant was not processed through the Central Selection Board, as he was not eligible for promotion to BPS-21 and did not fulfil the requisite conditions laid down in the rules, the Establishment Division advised the Ministry of Information to prepare a summary for submission to the Prime Minister and had not approved the issue. Of the Notification of promotion of the appellant. He submitted that in view of the above submissions, the order of the Prime Minister could not be implemented.
5. Respondent No, 4, Mr. Khawaja Ijaz Sarwar also appeared in person and submitted that he was eligible for promotion and his case was recommended by the Central Selection Board and the competent authority approved his promotion to BPS-21.
6. It is a case of promotion of the Officers of the Information Group from BPS-20 to BPS-21 and there are two parts of this appeal. In the memo. Of appeal, the appellant, although not specifically mentioned, has factually prayed and argued by learned counsel for implementation of the order dated 17-7-1993 whereby the Prime Minister approved his promotion to BPS-21 but Notification could not be issued by the Establishment Division and that Division referred the case to the Ministry of Information to review the case, being the Administrative Ministry. However, the Notification was not issued. We have considered this point whether the Secretary, Establishment Division, in the circumstances of the case, was competent to refer back the case for re-examination or he was bound to issue the notification as per minutes of the Prime Minister. The contention of Dr. G.S. Khan, the learned counsel for the appellant, is that this promotion of appellant, Syed Anwar Mahmood, was in special circumstances, therefore, the Prime Minister's orders should have been implemented. On the other hand, Mr. Zakaullah Jan, Section Officer, Establishment Division has referred to rule 5 (14) of the rules of business, and submitted that the next authority which is the Establishment Division can resubmit the case to the competent authority if there is violation of rules. Rule 5 (14) of the rules of business reads as under:-- "5. Transaction of business.---(1) No important policy decision shall be taken except with the approval of the Prime Minister.
(14) If any order passed happens to contravene a law, rule or policy, it shall be the duty of the next below Officer to point out this to the authority passing the order."
' In view of the abovementioned provisions, we are satisfied that Secretary-General, Establishment Division, as well as the Secretary, Ministry of Information, were within their jurisdiction to point out the contravention of law, rule or policy, as the case of the appellant was not processed through normal channel of Central Selection Board and it was a gross violation of the rules.
7. Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provides procedure for appointments and promotions of the civil servants. Rule 7 ibid is relevant and is reproduced below.
"7. Promotion and transfers to posts in basic pay scales 2 to 18 and equivalemt shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Basic Pay Scales 19 to 21 and equivalent shall be made on the recommendations of the Central Selection Board."
' Therefore, it is the requirement of law that promotions of civil servants in BPS-19 to BPS-21 shall be processed and routed through the Central Selection Board and any promotion made otherwise cannot be deemed to be regular promotion in the eyes of law.
8. Promotion policy, made under the Civil Servants Act, 1973 and the rules made thereunder, is contained at SI. No, 172, at page 242 of ESTACODE, 1989 Edition, lays down guidelines for the Departmental Promotion Committees and the Central Selection Boards for regulating the cases of promotions of civil servants. The relevant provisions of the policy relevant in the instant case, are at page 249 of ESTACODE, 1989 Edition, and paragraph 6 thereof provides that a civil servant must fulfil the following conditions for promotion to BPS-21, which is a senior top management post.
(a) Qualifying service : 22 years.
(b) Eligibility threshold minimum score of 75 marks in the ACRs,
(c) Qualifications: as are prescribed by relevant recruitment rules.
(d) Relevance of experience: possess experience relevant to the functions of the post being filed by promotion.
(e) Quality and output of work and integrity marks calculated in accordance with the formula in the addendum shall be a crucial factor in determining the comparative merit of an officer.
(f) Variety of experience: the Selection Board should give careful consideration to the nature of duties, duration and location of posts previously held by the Officer.
(g) Training: should have successfully completed a regular course at the Pakistan Administrative Staff College/National Defence College.
(h) Top management potential: since Officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice.
' According to the abovementioned instructions issued by the President, which have the force of rules, the mandatory conditions for conferring eligibility of a civil servant for consideration for promotion to BPS-21, inter alia, are that he should have 22 years service; minimum score of 75 marks of ACRs and should have successfully completed regular course at the Pakistan Administrative Staff College/National Defence College, and the admitted position is that the appellant, at the relevant time, i.e, on 17-7-1993 when Prime Minister sent note, had neither completed 22 years service nor had undergone/completed training at Pakistan Administrative Staff College and further he was also not senior, but junior most, and as such, is no circumstances, he was eligible for consideration for promotion to BPS-21. His case was not processed through the Central Selection Board under the relevant provisions and guidelines. Therefore, Secretary-General, Establishment Division rightly pointed out this violation of Prime Minister, and after due consideration, in all fairness, department referred the panel of nine officers to the Central Selection Board which included the name of the appellant also, as against one clear vacancy, a panel of three officers was to be referred. The case was considered by the Central Selection Board in its meeting held on 10-10-1993 although the Board recommended the name of respondent No, 4, Mr. Khawaja Ijaz Sarwar for promotion to B-21 but recommendation of the Board was not agreed by the Caretaker Information Minister. The history of the case shows that a Summary was submitted to the Prime Minister by the Caretaker Minister for Information and Broadcasting recommending a fresh review of all eligible candidates and this recommendation was approved by the Caretaker Prime Minister and the recommendations were communicated by the Additional Secretary (FA), Prime Minister's Secretariat on 18-10-1993, a few hours earlier than the Caretaker Prime Minister was replaced by an elected Prime Minister. The Ministry of Information referred the matter to the Establishment Division for advice, as previously the case was not routed through that Division. The_ Establishment Division advised that Summary for the Prime Minister may be prepared with full details through the Establishment Division for obtaining necessary orders of the Prime Minister. The case was also reviewed by the Review Committee in its meetings held on 31-10-1993 and 2-11-1993, as per directions of the Prime Minister and its recommendations were as under: "...The Committee observed that the recommendations in favour of Khawaja Ijaz Sarwar for his promotion from BPS-20 to BPS-21 made by Central Selection Board-I in its meeting, dated 10th October, 1993 is in order and the case may be submitted to the Prime Minister for approval."
' Accordingly, a Summary for the Prime Minister was prepared by the Ministry of Information on 8- 11-1993 giving full details alongwith the recommendations of the Review Committee, and routed the same through Secretary-General, Establishment Division, for approval of the Prime Minister. The Establishment Division after examining the Summary recommended the case and endorsed and Summary for approval of the Prime Minister vide u.o. Dated 16-11-1993. Finally, the Prime Minister approved the recommendations of the Central Selection Board for promotion of respondent No, 4, Mr. Khawaja Ijaz Sarwar, to BPS-21, and the Additional Secretary (FA), Prime Minister's Secretariat communicated the decision to the Information Secretary vide u.o. Dated 1st December, 1993. In view of the aforementioned facts, there appears no illegality in the proceedings, nor any discrimination or violation of any rule, and the appeal does not merit consideration.
9. Let us now deal with the legal objections raised by the respondents with regard to maintainability of appeal. The Prime Minister sent a note to Secretary-General, Establishment Division on 17-7-1993 but the notification was not issued and it was proper time for the appellant to have made representation to Prime Minister which he failed and waited till notification of respondent No, 4 for promotion to BPS-21 was issued on 1-12-1993, and filed a representation only on 30-12-1993 to the Secretary, Ministry of Information. So far as first cause of action was concerned, he was supposed to file representation within thirty days to competent Authority which he failed to do and made this issue time-barred. The application for condonation of delay has been filed on the ground that the appellant has preferred this appeal against final order in appeal dated 6-3-1994, whereby his representation dated 30-12-1993 against the promotion of Mr. Khawaja Ijaz Sarwar, was withheld, and this appeal is in time. There is no cavil about this proposition, but the appellant's main grievance is that in pursuance of the Prime Minister's orders dated 17-7-1993, Notification of his promotion to BPS-21 was not issued, and as stated above, this appeal is hopelessly time-barred as far as this relief is concerned. Therefore, we find no cogent grounds for condonation of delay because the fact is that the appellant has been able to place on record each paper, including notings on summaries and he was well-aware of the position and could have got his grievance redressed in time.
10. As regards second cause of action against promotion of respondent No, 4, although the appeal is in time, but it is hit by proviso (b) to section 4(1) of the Service Tribunals Act, 1973, as in matters of promotion the jurisdiction of the Tribunal is barred and is limited to the extent of eligibility and this Tribunal only can go into the question as to whether there has been gross injustice or mala tide in .Dealing the case of an aggrieved civil servant, but, as already observed, the appellant in his second round was eligible for promotion to BPS-21 and cases of officers of BPS-20 of Information Group were placed before the Central Selection Board, including the appellant, though being junior most at S.No, 9 of the seniority list. Respondent No, 4 fulfilled the requisite requirements of rule and after due selection by a duty constituted CSB-I, was considered fit and approved for promotion to BPS-21 and since the factum of eligibility has been determined by the competent authority, and no mala fide has been shown or proved. On the contrary, the Ministry by placing three first names for one vacancy placed panel of 9 officers and appellant being last man was also considered and it is admitted fact that respondent No, 4 according to seniority was at S.No, 3, while appellant at S.No, 9.
11. The third prayer made by the appellant relates to payment of arrears of pay of the post in B-20 and B-21 against which he worked while he was in B19 and B-20. This matter is altogether different for which he is at liberty to take up the case with the department independently as there is neither any impugned order nor any appellate order, as such at this stage while dealing with this appeal; we cannot pass any order with regard to this part of relief.
12. For the foregoing reasons, the appeal fails on merit as well as on legal rounds and is accordingly dismissed with costs.