' SALEEM AKHTAR, J.---The appellant with the leave of this Court has challenged the judgment of the Federal Service Tribunal, whereby his appeal against the order of respondent No, 1 refusing to promote him in Group IX was dismissed. Leave to appeal was granted to consider the following question:-- "Whether in a graded, properly constituted service, an appointment prohibited by law could be made?"
2. The appellant joined PIA as a Technician in the year 1957. He continued to serve for 17 years when he was given promotion in Pay Group VIII. By order dated 17th July, 1988, respondent No,1 appointed the appellant as Mahager (Maintenance) Technical Ground Support Division (TGS Division) for a period of six months. It was further provided that on successful completion of six months and on report of the performance, if it was found satisfactory, he would be promoted in Pay Group IX with effect from the date of taking over new assignment against a permanent vacancy in TGS. In the event the performance was unsatisfactory, he would be reverted back to the Engineering Department in his previous assignment. The appellant's case was forwarded to the Promotion Board for promotion in Group IX which was considered in March, 1987. It found five Engineers suitable for promotion and two marginally suitable cases. The appellant's name was at S.No,5. It was remarked that "although Mr. Jilani (at S.No,4) and Mr. Mir (the appellant) are Matriculates yet they are dynamic and forceful personalities and can deliver goods". The promotion was recommended with effect from 30th November, 1986. The Deputy Managing Director (Operations) seems to have approved it and suggested an effective date of promotion. However, the Managing Director approved the names of Malik Muhammad Yousuf, Aziz Ahmed and Amjad Ali on 27-3-1987 and made the following remark: "Find out more graduate engineer."
' Thereafter, it seems that on the same memo. On 16-4-1987, he approved the name of Mr. Fazal Jilani, who was a matriculate engineer. Again when appellant's case was referred for promotion to the Promotion Board which was considered on 11-10-1987, he was recommended for promotion in Pay Group IX. The Deputy Managing Director recommended the name of Mr. Muhammad Yousuf and Mr. Tahir Hussain Qureshi leaving the name of the appellant who was at S.No, 2 on the list. The Managing Director approved it and consequently the appellant was not promoted. In between there seems to be a development as respondent No,2, who was a dismissed employee of PAF and thereafter employed with Shaheen Foundation, was appointed on 18-6-1987 as Manager, Planning and Control (TGS) Pay Group VIII in Customers Services Department of respondent No,1 on a contract for three years. On 21st July, 1987, the assignment of the appellant and respondent No,2 was inter-changed. The appellant holding the post of Manager, Maintenance (TGS) was asked to hold the charge of Manager, Planning and Control while respondent No,2, who was holding the charge of Manager, Planning and Control was given the charge of Manager, Maintenance (TGS).
On 23rd May, 1989, the appellant made a representation to the Chairman, PIAC praying that his case may be reviewed and he may be promoted in Pay Group IX reiterating that twice the Promotion Board had recommended his case for promotion and the first promotion was recommended on 15-4-1987. Making a comparative statement with respondent No,2, he stated that he was employed in Group VIII, 1-1/2 years back and was being promoted in Pay Group IX against the post of Manager, Maintenance, on which both of them were working. He alleged that respondent No,2 was not eligible for employment, the promotion was being effected without following the prescribed procedure and that as he had proved failure as Manager Maintenance (TGS), half of TGS maintenance was withdrawn from him and handed over to the appellant on the instruction of Director, Airport Services, who had showed his dissatisfaction and had asked respondent No,2 to improve. However, no reply was received and thereafter on 30th May, 1989, respondent No,1 absorbed respondent No,2 on permanent basis as Manager Maintenance (TGS) in Pay Group IX with effect from 1-1-1989 without referring the case to the Promotion Board as required by the Regulation.
3. The appellant then filed a representation/appeal on 31st May, 1989 and receiving no reply from respondent No,1 filed an appeal before the Federal Service Tribunal, which was dismissed by the impugned judgment. The learned Members of the Tribunal observed that although the appellant was recommended by the Promotion Board yet it was not approved by the competent Authority.
The second recommendation which was made after the employment of respondent No,2 was also not approved by the competent Authority. It was further observed that as the competent authority did not approve appellant's promotion before absorption of respondent No,2 in Pay Group IX, such absorption did not in any way affect the chance of promotion of the appellant and, therefore, the appeal was incompetent.
4. From the facts stated above, it seems that the learned Members of the Tribunal have only considered the superficial and prima face fact without going deep into it and considering in the light of the rules and regulations of service of respondent No,1. The contention of the appellant throughout had been that his promotion, though recommended by the Promotion Board twice, was not approved by the Managing Director (Competent Authority) without any reason and with intention to accommodate respondent No,2, who was inducted in service illegally and against the rules. There seem to be two aspects in the case, one is the promotion of the appellant and the second is the induction of respondent No,2. Although they may appear to be two separate issues yet considering the facts and the controversy in the case, they are deeply interrelated. From the facts stated above, and the manner in which respondent No,2 was inducted, promoted and absorbed leaves no doubt to suspect the bona fides of respondent No,1. It is an admitted position that respondent No,2 was dismissed from PAF after trial by a Court-Martial. Thereafter, he was employed by Shaheen Foundation and finally appointed by respondent No,1. There is no dispute that respondent No,1 has regulations for the service and discipline of the employees namely; Pakistan. International Airlines Corporation Employees (Service and Discipline) Regulations, 1985.
These regulations govern the Perms and conditions of the employees and also ' determine the eligibility and fitness of the candidates for appointment and promotion, Rule 10 provides conditions of appointment. The relevant Rule 10(8) reads as follows:-- "No person who is dismissed from the service of the Corporation or any other employer or convicted for an offence involving moral turpitude shall be eligible for employment in the Corporation or to hold any post in the service of the Corporation."
5. From the regulations, it is clear that the service of respondent No,1 is in a graded and properly constituted service. The appointment, promotion and discipline are regulated by the Regulations.
The appointment is regulated by Regulations Nos. 10 and 11 prescribing for the qualification while Regulation No,15 provides for probation and confirmation which prescribes that appointment to a permanent post shall be on probation for a period of one year, which, on completion of the said period, if not extended, shall be confirmed with effect from the date the appointment was made on probation. There shall be no confirmation against any temporary post. Regulation No,15(4) further provides that an employee, who, during the period of his service was eligible to be confirmed against any post retires from service before being confirmed shall not, merely by reason of such retirement, be refused confirmation in such service or post or any benefits accruing therefrom.
Regulation No,17 deals with promotions which are to be made against approved permanent posts/vacancies only. The criteria for promotion as provided by Regulation No,17(2)(3) are: "(2) The requisite qualifications for promotion to a higher grade or pay shall, inter alia, include merit, proven record of service and potential of the employee for successfully shouldering higher responsibility.
(3) Subject to the provisions of sub-regulations (1) and (2), any employee possessing such minimum qualifications, as may be prescribed by the competent authority and otherwise considered fit by it shall be eligible for promotion to a higher grade or pay group;"
' Besides the above Regulations, Chapter X of PIA Policies Manual provides for Boards and Committees. Item 10.02 provides for Promotion Boards Under A.O. 39/87, dated 23-9-1987.
Promotion Boards were constituted for officers of Pay Group V and above. The Boards were required to assess to officers and recommend for promotion.
5-A. From these and other provisions of the Regulations, it seems clear that a service structure has been created with grades and groups and proper regulation has been framed to deal with cases for appointment, promotion, retirement and dismissal. All these provisions have been made to ensure security of service to the employees. It also gives power and discretion to the authorities to appoint and promote proper and suitable persons who may satisfy requisite qualifications as tested by the relevant Boards which after due consideration determines the eligibility and fitness.
6. Now coming back to Regulation No, 10(8) quoted above, it is clear that it bars appointment of any person, who has been dismissed from service by any employer. Mr. Anwar Kamal, learned ASC for the respondents contended that as respondent No,2, after dismissal from PAF had been employed in the Fauji Foundation and the PAF authorities had no objection to his employment with PIAC, Regulation No, 10(8) will not be a bar. It was contended that if there has been any intervening employment after the dismissal from service, the bar will not apply. The learned counsel wants to read and add certain words in the regulation to achieve his object. There is nothing in the Regulations to show that it can be relaxed on any ground muchless by an intervening employment between the dismissal from service and employment by respondent No,1. The bar is in clear and unambiguous language that no person who is dismissed from the service of the Corporation or any other employer or convicted for any offence involving moral turpitude shall be eligible for appointment in the Corporation or to hold any post in the service of the Corporation. This sub- regulation provides for disqualification; (1) if a person is dismissed from service of Corporation (PIAC), or (2) he has been dismissed from the service of any other employer, or (3) he has been convicted for an offence involving moral turpitude. All these three conditions are disjunctive and independent from each other. It is possible that a person may have been dismissed from service due to conviction in a criminal case but the fact remains that he has been dismissed from service whether for a heinous crime or offence not involving moral turpitude. There may be also a case where a person, who had never been in any service and has been convicted for an offence, such person will be governed by Condition No,3 specified above. The fact that a person was dismissed by any other employer is completely independent and the dismissal on whatever ground it may be, will be a bar to the appointment of that person. The regulations do not permit any authority or officer to relax this rule. The contention of the learned counsel for the appellant objecting to the appointment of respondent No,2 is, therefore, correct. Any service which is properly constituted, graded and governed by rules and regulations, any breach thereof will be against law. If the Rule/Regulation prescribe conditions for any appointment then unless otherwise provided by it, appointment in breach thereof cannot be treated as regular. In Munawar Khan v Niaz Muhammad and others (1993 SCMR 1287), appointment made in civil service on the recommendation of MPAs/MNAs and Ministers or Legislators was held to be void and illegal.
7. The second question which has aggrieved the appellant is the refusal to promote him. The promotion is to be made in accordance with the Regulations. There is no dispute that the Promotion Board had twice in the year 1987, recommended the appellant for promotion for Pay Group IX but on both occasions the competent Authority did not agree. The learned counsel for the respondents contended that the competent Authority had the discretion to overrule the recommendation of the Promotion Board and such discretion was exercised and cannot be challenged by the appellant. No doubt the competent Authority had the discretion but it was not unfettered. While exercising discretion, the Authority should not act arbitrarily, unreasonably and in complete disregard of the rules and regulations. The discretion to be exercised E has to be judged and considered in the background of the facts and circumstances of each case. In the present case there is a strong background of ignoring or disapproving the appellant with certain purposes.
The learned counsel for the respondents has filed the minutes of the Promotion Board. According to him the Promotion Board constituted in December 1986 had not considered the name of the appellant. This is completely irrelevant to the controversy because the appellant's case was to be considered for promotion after the expiry of six months from 17-7-1986. Therefore, the Promotion Board convened on 30th November, 1986 whose report is dated 2nd December, 1986, could not have considered the name of the appellant. After the appellant's appointment on 7-7-1986 on six months probation, his case was considered by the Promotion Board convened on 4th and 8th March, 1987. The Board found five Engineers suitable for promotion as stated above, and in respect of the appellant and Mr. Jilani, who were matriculates, the recommendation for promotion was made in strong terms as they were "dynamic having forceful personalities and can deliver goods".
The competent Authority only approved three names asking to find one more Graduate Engineer. It seems that there was no other suitable candidate and on 16-4-1987 the competent Authority approved the name of Fazal Jilani. It seems that no Graduate Engineer was found or was not available and there were two posts available in Group IX. The competent Authority chose one of them without giving any reason for the reversal of his earlier recommendation. No reason was also given for rejecting the recommendation of the Board in respect of the appellant. Again the recommendation of the Board made on 18th October, 1987 was not approved. Under the regulations Board is constituted, whether it is a Promotion Board or a Selection Board, to have correct opinion of senior expert persons in the field. Their recommendation should carry weight as they make evaluation of the candidates from every angle. It is true that the report submitted by the Board is a recommendation which is to be approved by the competent Authority in his discretion.
Such discretion should not be arbitrary, unreasonable or without any reason. If an authority disregards the opinion of any Board constituted under any law, rules or regulations then it should give its reason or ground for such disapproval. Mere writting the words "disapproved" or "rejected" will not suffice. Such decision expressed in these terms seems to be arbitrary, autocratic and has the character of being deleterious passed without considering the facts, circumstances, rules and regulations made to regulate such discretion. In De Smith's Judicial Review of Administrative Action (Fourth Edition), page 283, it has been observed that: "The relevant principles formulated by the Courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it: it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts."
' It was further observed as follows:-- "Hitherto the Courts have held that they cannot go behind a statement by the competent Authority (in the absence of proof of bad faith) that it was satisfied that the statutory condition for the exercise of the power existed. But it is conceived that if prima facie grounds can be established for the proposition that the authority could not have been so satisfied, a Court will be entitled to hold the act or decision to be invalid unless the authority itself persuades the Court that it did in fact genuinely form the opinion which it claims to have held."
7. In Federation of Pakistan and others v. Messrs Charsadda Sugar Mills Limited (1978 SCMR 428) where the Central Board of Revenue, while allowing partial abatement, was satisfied that the shortfall in the production capacity was substantial and beyond the control of the respondent but to the extent of 855.53 tons only and while determining that the Board had applied its own formula, it was observed by this Court "In doing so the Board acted almost mechanically and failed to exercise the discretion vested in it under the law. It was the duty of the Board to have acted justly, fairly and reasonably having full regard to the facts and circumstances of the case before it. The Board did not even weigh and examine the merits of the claim pleaded by the respondent. This indeed, tantamount to the refusal on the part of the Board to exercise quasi-judicial discretion vested in it under the law".
8. In the Montgomery Flour and General Mills Limited v. The Director, ' Food Purchases, West Pakistan and others (PLD 1957 (W.P.) Lahore 914), while dealing with a case under the Essential Supplies Act relating to the exercise of discretion by the Director of Food Purchases to withhold the quota of sugar, it was observed: "It is a discretion to be exercised with a view to attaining the object for which the Essential Supplies Act, 1946, under which this order was promulgated, was enacted." It was further held: "The Essential Supplies Act was not enacted in order to arm the Government with a weapon to enforce its alleged claim It should be remembered that no discretion vested in an Executive Officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly, fairly and reasonably."
' In this Conteit, reference can be made to Manthar All M. Jatoi v. The Government of Sindh (1988 PLC (C.S.) 344), where the Public Service Commission had recommended the name of the petitioner's appointment as a Civil Judge but his appointment was withheld by the respondent on the ground that he has dabbled in politics. Naimuddin, CJ (as he then was) taking into consideration the principles for exercise of discretion, allowed the petition holding that the discretion in the case had not been exercised on settled principles as no material was produced in support of the allegations that the petitioner dabbled in politics. The learned counsel for the respondents contended that the appellant was not fit for promotion but not a single adverse report has been produced on record. As against this, the Promotion Board had twice recommended his name for promotion which was not accepted by respondent No,1 which is arbitrary and unreasonable.
8-A. The discretion is not to be exercised on whims, caprices and moods of the authorities. It is now well-settled that exercise of discretion is circumscribed by principles of justice and fairness. The authority exercising discretion should take into consideration and advance the aim and object of the enactment, rule or regulation under which it is authorised to act. It should not act in complete negation of the object of such law, rule, regulation or established policy otherwise it will not be fair, reasonable and just exercise of power. The pre-condition imposed for exercise of discretion should be honoured and respected unless for valid reasons they have to be discarded. Considering the present controversy in the light of the above principles, it emerges that prima facie grounds have been established that the competent Authority on the existing material could not have been so satisfied to justify the exercise of discretion and rejecting the recommendation of the Board. It was for the respondents to show to the Court that material or valid reasons existed on the basis of which the competent Authority had genuinely formed the opinion which it claims to have made.
The respondents have not succeeded in establishing it.
9. The contention that no employee has a vested right in promotion may be correct but where rules, regulations and policy have been framed for regulating appointment and promotion, any breach or deviation for mala fide reasons or due to arbitrary act of the competent Authority, the aggrieved person would be entitled to challenge it. In Ch. Muhammad Insha Ullah and others v.
Chief Conservator of Forests (P & E) and others (PLD 1988 SC 155), it was observed that "Even if, no vested right exists, if a principle of policy is given effect to and the principle of policy is such which has not matured into a vested right, none can say that in the absence of the vested right, the principle of policy should not be recognised or enforced". Therefore, in the light of the above observation, the regulation providing for recommendation of the Promotion Board for promotion should have been taken into consideration which cannot be brushed aside lightly without due reason. Respondent No,2 was inducted irregularly, the charge held by the appellant and respondent No,2 was interchanged, even after the induction of respondent No,2 the Promotion Board for the second time recommended the appellant for promotion, respondent No,2 was never recommended for promotion and yet he was absorbed in Group IX against a permanent vacancy.
These facts go a long way to point out the illegalities, irregularities and breach of regulation without any just and reasonable ground leading to the conclusion that the impugned order of respondent No, 1 was arbitrary, unfair and devoid of good faith. By such acts, the appellant was deprived of promotion which he was entitled under the Regulation. The appeal is allowed. The appellant in the meantime has been retired. He would, therefore, be entitled to all benefits which would have accrued to him in case he had been promoted in the year 1987 on the recommendation of the Promotion Board. Respondent No,1 will compute all the benefits which the appellant is entitled by virtue of this judgment and make payment to him within a period of three months.