' MUHAMMAD RAZA KHAN (MEMBER).---This Single judgment, with minor alterations, will dispose of two Appeals Nos. 9(R) and 12(L) of 1996 where identical questions of law and fact are involved.
2. The brief facts are that the appellant has been working in the Income-tax Department in BPS-19 since 1986. His case was placed before the Central Selection Board-II in July, 1995 and admittedly the name of the appellant was recommended for promotion to BPS-20. However, when the notification for promotion of 37 officers was issued on 17-8-1995 the appellant was not promoted whereas some junior officers (private respondents) were notified as promoted. The appellant moved the present service appeal after exhausting the department remedies as required tinder the law.
3. The department contested the appeal mainly on the ground that although the name of the appellant was recommended for promotion but his promotion was not approved by the competent Authority and that the promotion to BPS-20 is not made merely on the basis of quantification, but overall performance of the officer is taken into consideration. The competent Authority has not considered the appellant suitable for promotion which could not be challenged by way of service appeal.
4. Although the civil servants cannot claim promotion as a matter of right but they can certainly claim to be considered for promotion. In the instant case this point 'was argued in different ways.
The learned counsel for the respondents is of the view that the appellant was duly considered by the C.S.B. And recommended for promotion, therefore, his right to be considered for promotion was satisfied. The decision by the competent Authority amounted to his unsuitability which could not be challenged by this service appeal. On the other hand the learned cotinsel for the appellant is of the opinion that consideration for promotion does not mean the consideration at the state of the meeting of the C.S.B. Only. Since the competent Authority has not accepted the recommendations of the C.S.B., therefore, it can be presumed that the appellant was not considered by the competent Authority for promotion and, therefore, his right has been affected and he was competent to agitate the matter in service appeal.
5. The proper appreciation of the controversy requires the analysis and comparison of the powers of the recommending body and that of the competent Authority and to examine what was the scope of "Competence" and the value and importance of "recommendations". If the Authority is held bound to accept the recommendations of the C.S.B. "automatically" and mechanically the word "Competent" used as prefix shall become superfluous and, in such a situation, the authority will be reduced to nothing more than a rubber stamp. On the other hand, if it is presumed that the competent Authority could simply ignore the recommendation and take final decision by the exercise of prerogative, the entire process leading to recommendations shall become an exercise in futility. Therefore it will be imperative to adopt a balanced approach where excessive stretch of a term and redundancy of the other is avoided. In this view of the fact the term "Competent" has certainly an edge over the term "recommendations", and the principle shall be applied is such a way that one may not exclude the other.
6. The matter had also been the subject of discussion before the Administration Enquiry Committee and in its report there was a recommendation to the effect that "there should be a convention whereby the advice of the C.S,B. Should be accepted quickly and automatically except in wholly exceptional cases". This recommendation was not the accepted verbatim, however, it was modified as under:-- "Government have decided that there should be a convention whereby the advice of the Selection Board should be accepted quickly, save in exceptional cases, and that if the (Competent Authority) disagrees with the view of the Selection Board, the case should be returned to the Board for further consideration and a final decision may be taken only after the further views of the Board have been obtained."
' Thus the parameters of exercise of powers have been fixed in the said decision.
7. The analysis of the mode of exercise of powers will show that the Central Selection Board has three options, i,e, -- To recommend a civil servant for promotion. -- To decline the promotion being unsuitable on the basis of service record. -- To defer the case of a civil servant due to non-availability of certain record.
' When Me case of promotion of a civil servant is deferred or declined the matter is not placed before the competent Authority. Only the cases of recommenders of the C.S.B. Are placed before the competent Authority for appropriate decision after application of mind. The Authority has again three options, i,e,:-- ' To approve the recommendations; To reject the recommendations; ' To refer a particular recommendation back to C.S.B. For reconsideration.
' The rejection of certain recommendations by the authority has not been appreciated by the superior Courts. It has been held that the competent Authority may not take decisions on whims and wishes but the exercise of administrative discretion may be judicious and based on proper application of mind. Thus, the competent Authority, if decides not to approve certain recommendations, can either reject it by giving detailed reasons against suitability of an officer or the matter can be remanded to be reconsidered by the C.S.B.
8. In the instant case it is clear that the recommendation of the Selection Board has not been accepted by the competent Authority but there is no indication that the recommendation was rejected expressly. Hence it can be presumed that in accordance with the spirit of the above quoted convention the case of the appellant has been remanded for reconsideration by the Selection Board because that can be the only alternative available in the given situation.
9. The contention with regard to the loss of seniority is far-fetched.Had the case of the appellant been deferred by the C.S.b., he could regain his seniority after promotion to the next scale. In the instant case he was on better footing because his case was not deferred by the Selection Board but presumably deferred by the competent Authority. This he should have no apprehensions about the loss or seniority because his seniority will be restored on his promotion in due course.
10. So far as the promotion of two officers, not so recommended by theC.S.B., is concerned we cannot take cognizance of such matter in the service appeal. Their promotion/appointment can be challenged by appropriate Constitutional petition before the competent Court if so advised.
11. As a sequence of the above discussion we partially accept this appeal and hold that the appellant may be deemed to have been deferred during the process of promotion notified on 17- 8-1995 and his case may be placed before the relevant C.S.B. For reconsideration at the appropriate lime.
' No order as to costs.
' Parties be informed.
(Sd.)
Muhammad Raza Khan, M EMBER NASIM SABIR SYED (MEMBER).---I agree with the learned author of the judgment of this appeal, yet I shall like to make some comments:
12. It is hereby clarified that when the appellant was confronted with the position that no appeal could be lodged before this Tribunal under section 4 of the Service Tribunals Act, 1973, he took the plea that I was not asking for promotion at the moment but only wanted to assert that the Chief Executive was not properly briefed. He wanted to elaborate this position and said that he could come to appeal to this Tribunal because there is a judgment of the .Supreme Court that appeal can be lodged with this Tribunal if the order is mala tide, prejudiced and erroneous. The learned counsel for the appellant stresses that according to his information the only reason for which the promotion of the appellant to B-20 was not approved was that his work evaluation for the decided time was based on erroneous facts, because the performance of the appellant was upto the mark.
The figures about the performance of the appellant as given by him in his departmental appeal are reproduced hereunder:-- "(i.) That the performance of the appellant in BPS-19 as Additional Commissioner of Income-tax for the last four years is enumerated below:
(a) That the revenue performance of the appellant for the period ending 30-6-1992 as Additional Commissioner of Income Tax, Range-Ill, Companies, Lahore exceeded the Budgetary Targets as detailed below:-- Budget fixed Budget Achieved % Achieved 95(M) 106.520(M) 112%
(b) That the appellant once again was granted reward for meritorious services vide C.B.Rs'
Notification dated 23-1-1993 (Annexure E).
(ii) That the performance of the appellant for the period ending 30-6-1993 as Additional Commissioner of Income Tax, Range-VI, Companies, Lahore is enumerated below:-- Budget fixed Budget Achieved % Achieved 450.00 (M) 498.311(M) 111 % (Annex. F)
Current Year Last year % Increase over the last (30-6-1993) -(30-6-1992) 35% 498.311 (M) 369.936 (M)
' The above-noted figures would indicate that the Budgetary Targets were achieved at 111% of the budget fixed. Moreover, the targets were exceeded by 35% as compared to the last year.
(iii) that the appellant during the financial year 1993-94 *He posted as Inspecting Additional Commissioner of Income-tax, Range VI, Companies, Lahore with effect from July to September, 12,.
1993 also participated in 64th A.C.M. Course at N.I.P.A. From 12-9-1993 to 5-1-1994 and afterward the appellant was posted in Range V, Companies, Lahore which was subsequently re-designated as Range-III, where the performance of the appellant was under:- Budget fixed Budget Achieved % Achieved/Increase 604.587 (M) 625.341 (M) 103 % Current Year Last year % Increase over the last year (30-6-1994) (30-6-19931 02% 625.341 (M) 616.073 (M)
' The position cited above reveals that the appellant exceeded the budgetary targets for the period ending 30-6-1994. The Commissioner of Income-tax, Companies-I, Lahore duly acknowledged the achievement of targets appreciated the hardwork and rated the performance of the appellant as excellent. (Annexure 0)
(iv) That for the year ending 30-6-1995 the appellant had been defending the Department's point of view in appeals before the Income Tax Appellate Tribunal, Lahore as Departmental Representative. The performance of the appellant during this period is given below:.
Target (No, of Cases) Disposal % Increase 1440 1881 130 % ' The Hon'able Tribunal appreciated the performance in the following manner: "The Officer has thorough grasp of knowledge of law and accountancy. His representation and citation of cases was of exceptionally high quality. He was always precise, clear and update (Annexure II)"
(v) That the appellant also remained posted in the newly created Range-III, Companies-H, Lahore for a short period from July, 1994 to 28-9-1998, the time most of which was consumed on the formation of Range, its establishment and straightening of other administrative measures. Despite this net collection during his period of posting of less than three months from July to September 28, was Rs,7,587 (M). This newly created Range had no past history of collection/performance for the purpose of any equitable comparison. The months of April, May and June are the peak months as regards tax collection and disposal of cases whereas the months from July to September are considered to be lean or low collection period. The comparison of low collection period cannot be properly appreciated as against the average worked out on the basis of collection for the whole year. The performance may be appreciated keeping in view the collection trend during different months of the year and performance of other officers during such period."
' The department has not objected to the above. According to these figures the performance is really good and must not have been taken as a reason for not approving the appellant's promotion. In view of the above, it is held that the appellant was fully eligible for the promotion to BPS-20 when he was wrongly non-suited by the competent Authority. The record clearly reveals that if the competent Authority was given a fair picture of appellant's work, there was not even an iota of doubt of appellant's deferment, which ultimately caused a serious grievance to the appellant. For the foregoing reasons, it is directed that the appellant's case be placed before the Central Selection Board along with the judgment of the Tribunal within a period of two months who shall re-examine the matter fairly and justly and pass a fresh order applying its judicial mind and allow consequential benefits to the appellant.
13. It is hereby clarified that the appellant time and again during the discussion of the case, was very respectful whenever making a reference to the Chief Executive and requested that only his