' SYED JAMSHED ALI, J.---The petitioner is an officer of the Secretariat Group of the Federal Government and is working as Deputy Secretary in BS-19. The case for promotion of officers of the Secretariat Group from BS-19 to BS-20 was considered in the meeting of the Central Selection Board-I held on 24-6-2000, but the petitioner was superseded and, inter alia, respondent No,5, an officer junior to the petitioner, was promoted vide notification dated 27-9-2000. The case of the petitioner is that he fulfilled the criteria for promotion, according to the Promotion Policy of the Federal Government, had clean record throughout his career which he started on 20-11-1974 as a Section Officer, no adverse report was ever conveyed to him, his work, conduct and integrity was never questioned by any of his superiors under whom he had worked. It is being contended that in fact respondent No,4, one of the members of the Central Selection Board, made a baseless and malicious observation about the integrity of the petitioner to influence the decision making by the Central Selection Board and the outstanding service record of the petitioner was set at naught.
2. Parawise comments were submitted by respondents Nos.1 to 3 (Establishment Division and two others) and respondent No,5. Respondent No,4, was also called upon to submit parawise comments which he did.
3. It may be noted that promotion of respondent No,5, was also questioned. Today when the case came up for hearing it was found that the said respondent was not represented. The learned counsel for the petitioner, however, gave up his prayer for setting aside the notification dated 27-9- 2000 directing promotion of the said respondent -L id requested for deletion of his name from the array of the parties which was allowed. The learned counsel confined his prayer to the extent of re- consideration of the case of the petitioner for promotion in accordance with the Promotion Policy of the Federal Government.
4. The learned counsel for the petitioner vehemently relied on the observations recorded in the order dated 19-10-2000 of this Court passed in this writ petition. On the said date Raja Hassan Abbass, Deputy Secretary had appeared with the record and on being questioned had stated that there was nothing adverse to the petitioner in the available record which was placed before the Central Selection Board and that the petitioner had marks far above the minimum threshold of seventy marks (according to the formula for qualification of the C.Rs,). The Deputy Secretary had also conceded that there was nothing adverse in the A.C.Rs of the petitioner. He further stated that according to one of the members of the Central Selection Board, the petitioner was not carrying good reputation. When asked as to whether there were any written remarks to justify this accusation against the petitioner, the Deputy Secretary answered in the negative and also that the petitioner was never confronted with the allegation of his bad reputation. The case then came up for hearing on 19-12-2000 on which date objections as to the maintainability of the petition were taken including the objection that the final order in this case was passed by the Chief Executive and, therefore, Provisional Constitution Order No,1 of 1999 ousted the jurisdiction of this Court.
Objection based on Article 212 of the Constitution was also raised but it was repelled on the ground that determination of fitness for promotion was not within the jurisdiction of the Service Tribunal.
However, the learned Single Judge, seized of the matter (late) Mumtaz Hussain Mirza, J., formulated the following questions:-
(1) Whether in spite of the fact that a civil servant's case for promotion to a selection post falls strictly in line with the guidelines laid down in the promotion policy for promotion to such a post, the entries in his A.C.R. Dossiers are up to the mark and there is nothing adverse in writing against the civil servant in his service record, can the Central Selection Board disregard the aforesaid criterion and base its recommendations on something which is not forthcoming or born out from the relevant record or on something which cannot be substantiated and which the civil servant has not been confronted with, ever before and is also belied by his record?
(2) Whether the principle of good governance which is only conceptual in nature, can be made the basis by the Central Selection Board for negating the entire service record of a civil servant which renders him otherwise fit for promotion and is the only visible, tangible and reliable record available with the Central Selection Board?
(3) Whether allowing the Central Selection Board to assume unto itself the power and the authority to completely ignore the laid down and the known criterion for regulating the promotion of civil servants to selection posts and basing its recommendations on something which falls in conflict with the available record, will not amount to conferring on it an unbridled power which shall enable it to set at naught the entire service record of a civil servant?
(4) Whether the prayer made and the relief sought in the Constitutional petition is hit by the provisional of Provisional Constitution Order No, 1. 1999 and a writ cannot be issued?
(5) Whether the recommendations of the Central Selection Board constitute violation of the laid down procedure for promotion and tantamount to travelling by an executive limb of the Government beyond the sphere allotted to it by the Constitution and is subject to judicial review"?
' And, referred the matter to the Hon'ble Chief Justice for constitution of a larger Bench. Accordingly, the matter is before this D.B.
5. The learned counsel for the petitioner contends that supersession of the petitioner was clearly against the Promotion Policy of the Federal Government and it could not be grounded merely on an oral assertion of one of the members of the Selection Board, who was inimically disposed towards the petitioner and which was not supported by the record. He further submits that the confidential reports of the petitioner, even though not conclusive, were of primary importance and throughout his 26 years career (up to 2000) not even a single adverse remark particularly about his integrity, was ever conveyed to him. He asserted that even uncommunicated adverse remarks in the A.C.R. Do not stand in the way of promotion of a civil servant. According to him, the entire outstanding unblemished record of the petitioner has been diluted in an arbitrary manner.
Reliance was placed on Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And others (1999 SCMR 1605), Fida Muhammad and others v. Government of N.-W.F.P. (1999 PLC (C.S.) 180).
Muhammad Ihsan-ul-Haq v. Secretary to Government of Pakistan (1997 PLC (C.S.) 127), Taj Mahmood v. Inspector General Police Punjab, Lahore and others (1993 PLC (C.S.) 576) and Phullan v.
Muhammad Sarwar and two others (1992 CLC 1975). These were the submissions he made regarding Questions. No,1 to 3 and 5 because they are interlinked. As far as Question No,4 is concerned. He placed reliance on Syed Zafar Ali Shah and others v. General Pervez Musharraf, Chief Executive of Pakistan and others (PLD 2000 SC 869).
6. On the other hand, the learned Deputy Attorney General relied on para 7 of the comments of respondent No,1, according to which a number of factors are to be taken into consideration and it was the responsibility of the Selection Board to select "the very best from amongst the best" and in the collective wisdom of the Board, petitioner's integrity and competence was doubtful. According to the averments of this paragraph the Board comprised eight Federal Secretaries and is headed by the Chairman of the Federal Public Service Commission. He submits that the decision to supersede was taken by the Board with due application of mind and it is beyond the reach of this Court to substitute the opinion of the Selection Board with its own opinion. He next contends that promotion is not a vested right. The petitioner was entitled .Only to be considered for promotion and was duly considered. Reliance was placed on Khalid Mahmood Watto v. Government of Punjab and others (1998 SCMR 2280), Lutfi Siddiqui v. The Secretary, Establishment Division, Rawalpindi and 2 others (1991 SCMR 125), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) and Syed Badurd-ud-Din and 10 others v. Government of N.-W.F.P. Through Agriculture Forest and Cooperative, Peshawar and 11 others (PLD 1994 SC 345).
7. The submissions made by the learned counsel for the parties have been considered. This Court noted in the order dated 19-10-2000, that the only basis to supersede the petitioner was the opinion of respondent No,4. Neither with the comments submitted by respondents No,1 to 3 nor with the comments filed by respondent No,4, the basis of the said opinion has been indicated. The decision as to fitness and suitability of an officer for promotion may be subjective but it has to be arrived at by applying an objective process to ensure that the course of justice is not deflected. In para 5 of this writ petition the petitioner alleged personal malice against respondent No,4. It is important to note that the averments of para 5 aforesaid were not even controverted by respondent No,4.
Respondent No,4 rather .Stated that the petitioner had never worked under him. In the parawise comments submitted by respondent No,4, it was not even disclosed as to what was the basis of his opinion regarding reputation of the petitioner.
8. The Annual Confidential Reports may not be conclusive to determine fitness and suitability of an officer for promotion yet if an officer is to be superseded on the allegation of doubtful reputation, the opinion/decision of the Selection Board must be based on some tangible material.
9. According to the Promotion Policy of the Federal Government as contained in Serial No,172-A of the Esta Code (1997 Edition), the following guidelines have been indicated:-
(5) Posts carrying basic pay scale 20 are middle management posts. Field offices are generally headed by the officers in this scale. It is, therefore, essential that in addition to the relevance of experience these officers must also have a sufficient variety and width of experience so that:
(1) they acquire an overview of the functions performed by these organizations within the broader framework of Government's overall objectives/activities to ensure smooth and effective management at the field level; and
(ii) they can lend pragmatism to policy formulation in assignments at the Secretariat.
' Variety of experience would include experience in the field, corporations, attached departments, different Ministries/Divisions and in our Missions abroad. For promotion to middle management posts, a civil servant must fulfil the following requirements:-
(a) Qualifying Service: possess 17 years' service as an officer subject to the provisions contained in Establishment Division's 0.M .No,1/9/80-R-II(A), dated 2-6-1983.
(b) Eligibility threshold: attain a minimum score of 70 marks in the C.Rs in accordance with the formula given in the Addendum.
(c) Qualifications: as prescribed by relevant recruitment rules.
(d) Relevance of Experience: possess experience relevant to the functions of the post to which promotion is being made.
(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 due consideration to the nature of duties, duration and location of posts previously held by the officer. Depending on the post to be filled, an officer possessing well rounded experience should normally be preferred particularly if he has served with distinction in unattractive areas. While some exposure to a corporation, autonomous body or an ex-cadre assignment may be considered a positive feature this would not be so where an officer has stayed away from his parent cadre for too long.
(g) Training: should have successfully completed a regular course at NIPA or an equivalent course in another institution. This requirement will be waived of officer who:
(i) have served as head of a training institution for at least one year: or
(ii) have served on the directing staff of a training institution for at least two years; or
(iii) have attended a regular course at the Staff College/NDC; or
(iv) have exceeded the age of 56 years.
10. The formula for quantification of the Confidential Reports has also been appended to these guidelines, according to which, deduction of marks has been provided for major penalty and the adverse remarks and the formula to work out aggregate score of integrity has also been specified.
The quantification formula aforesaid indicates that even the officers upon whom major penalty has been imposed or adverse A.C.Rs are recorded, do not become outcaste for the purpose of promotion. Thus, quantification of the C.Rs, is of paramount importance. This quantification formula, in our view, is intended to structure the discretion of the Board to ensure just and fair treatment to the contenders for promotion.
11. A bare allegation of one of the members of the Selection Board, against whom there is an uncontroverted allegation of personal malice, not supported by any tangible material and not even justified when he was called upon to submit comments to this writ petition, could not, therefore, be accepted as a valid ground to supersede the petitioner. We are quite mindful that the Selection Board comprises of very high personage with variety of experience and wisdom yet they are human beings and cannot be said to be in fallible. Such a presumption is neither warranted by reality nor supported by the history. We are also mindful that we cannot substitute the opinion of the Selection Board with over own opinion yet we may observe here that if the opinion as to unsuitability of an officer for promotion is not based on any material, the decision based thereon is rendered arbitrary and open to correction by this Court in exercise of Constitutional jurisdiction.
12. No doubt, the petitioner had no right to be promoted yet in accordance with section 9 of the Civil Servants Act (No,LXXI), 1973 he was entitled to be considered for promotion. The right contemplated by section 9 aforesaid is neither illusionary nor a perfunctory ritual. Withholding of promotion is a major penalty in accordance with the Government Servants (Efficiency and Discipline) Rules, 1973 and therefore, before a Civil Servant is condemned, he has a right to insist that the material on the basis of which he is being deprived of promotion should be disclosed to him and he should be allowed an opportunity to clear himself. The consideration of an officer for promotion is, therefore, to be based not only on the relevant law and the rules but also on some tangible material which could be lawfully taken into consideration. Therefore, unless the opinion of the Selection Board was backed by some tangible material, it could not be said that the case of the petitioner for promotion was considered in accordance with law. The expression "law" as employed in Article 4 of the Constitution is of wider import which includes the duty of every public functionary to act in the matter justly and fairly and in accordance with the principles of natural justice.
13. Reference may be made to Muhammad Farooq Chauhan v. The Province of Punjab (PLD 1987 SC 271), according to which, even the adverse uncommunicated remarks cannot be taken into consideration to decline promotion to an officer. On the analogy of the rule laid down in the aforesaid judgment we are of the view that only on the basis of an oral allegation of one of the members of the Selection Board with which the petitioner was never confronted nor it was supported with any tangible material, the decision to supersede the petitioner was not only against the Promotion Policy but is also rendered as arbitrary. According to para. 2 of the guidelines for Departmental Promotion Committees/Central Selection I Board a superseded Civil Servant is even otherwise entitled to be considered for promotion after earning one more C.R. For one full year.
Therefore, even according to the said rule, the petitioner was entitled to be considered for promotion because the meeting in which he was superseded was held on 24-6-2000 and by now his A.C.Rs for the years 2000 and 2001 should be available.
14. The judgments cited by the learned Deputy Attorney General have been examined. The case of Khalid Mahmood Watto, supra arose out of a dispute about foreign posting of a Civil Servant. As far as the case of Lutfi Siddiqui is concerned, it arose out of a judgment of the learned Service Tribunal and the question involved was the date from which the petitioner in the said case was entitled to be placed in the higher grade. In the case of Muhammad Anis, supra, the Hon'ble Supreme Court observed that the controversy brought before the High Court related to eligibility for consideration for promotion to Grade-18 which was within the jurisdiction of, the Service Tribunal and the High Court had no jurisdiction. In the case of Badarud Din and 10 others, supra, eligibility of certain officers for promotion was challenged in a civil suit which was decreed, the judgment was affirmed by the first Appellate Court but was set aside by the High Court in exercise of revisional jurisdiction which order was maintained by the Supreme Court. In the last mentioned two cases the Hon'ble Supreme Court explained the distinction between "eligibility" and "fitness" and it was held that the question of eligibility was within the exclusive jurisdiction of the Service Tribunal while fitness for promotion was excluded from the jurisdiction of the Service Tribunal.
15. Before parting with this judgment we may likefl to observe that treatment of the Civil Servants in accordance with law and in just and fair manner in the matter of advancement of their career is of paramount importance for good governance otherwise his commitment t' the job, dedication to duty, his power to take decision and even his integrity might be confined to casualty ward.
16. For what has been stated above our answers to the questions formulated in the order dated 19- 12-2000 are as follows.
17. Questions Nos.1, 2, 3 and 5: The Central Selection Board while formulating their' recommendation for consideration of the competent authority is to be guided primarily by the Promotion Policy, the C.Rs,, the relevant instructions issued from time to time by the Establishment Division and of course can take into consideration any material which may have hearing on the fitness and suitability of an officer for promotion. However, if he has to be superseded not only the reason should be recorded but it should be supported by tangible material.
18. Question No,4: ' The learned Deputy Attorney General did not press the issue. Even otherwise the question has been authoritatively answered by the Hon'ble Supreme Court in the case of Zafar Ali Shah, supra.
Power of judicial review of this Court remains intact notwithstanding promulgation of the PCO.
19. For the foregoing reasons, this writ petition is allowed, the decision to supersede the petitioner for promotion to BS-20 is- declared as without lawful authority and the case is remitted to the Central Selection Board for re-consideration of the case of the petitioner afresh for promotion to BS-20 in accordan with law and in the light of the observations recorded in this judgment. No order as to costs.