Citation Name : 2011
PLC 1130 SUPREME-COURT
Side Appellant :
TARIQ AZIZ-UD-DIN
Side Opponent :
S.
9---Rules of Business, 1973, Rule. 15 (2) ---Constitution of Pakistan
Art.184(3)---Human rights---Promotion from Basic Scale-21 to 22---Arbitrary
procedure---Exercise of discretion by competent authority---Principle of
transparency---Summary to Prime Minister----Procedure---Petitioners were civil
servants working under Basic Scale-21 and were aggrieved of promotions of
respondents from Basic Scale-21 to 22---Validity---It was mandatory under
R.15(2) of Rules of Business, 1973, that a case should be submitted to Prime
Minister for his orders based on self contained, concise and objective summary
stating relevant facts or points for decision prepared on the same lines as
those prescribed in the rules for summary of Establishment etc.---Secretary
Establishment pointed out to Supreme Court that there was no practice
prevailing for the last about 60 years for forwarding cases of promotion from
Basic Scale-21 to 22 and subject to availability of vacancies, Prime Minister
could call for the files for promoting officers and notification was issued of
his/their promotion on receipt of directions from Prime Minister by
Establishment Division, such past practice was followed in the promotion of
respondents i.e. mandate of relevant rules was ignored---There was admitted
non-adherence to Rules of Business, 1973, and Secretary Establishment sent
files without any forwarding letter and cases of all officers totalling 267
were not sent in terms of R.15(2) of Rules of Business, 1973---Due weight was
required to be given to Rules of Business, 1973, which had constitutional
sanction, whereas while promoting respondents, mandate of law was uncondonably
violated---Adopting such arbitrary procedure, not only injustice had been
caused to officers who were otherwise senior and also had better case on merits
but they had been deprived because there was nothing in black and white before
competent authority---Such fact had brought case of petitioners in the area
where discretion so exercised by competent authority could not be said to be in
consonance with well known principle of fair play as cases of those officers
who were not promoted their files were not before him, along with
self-contained note by Secretary Establishment in terns of R. 15(2) of Rules of
Business, 1973---To ensure justice and openness in view of rule of law, it was
obligatory upon the competent authority to decide each case on merit taking
into consideration the service record of the officers in Basic Scale-21 who
were eligible for promotion to Basic Scale-22---Such aspect of the matter
required application of mind based on consideration and determination of merit in the light of material explicitly
showing as to why officers who had been left out were not found to be competent
/ below in merit in comparison to those promoted to Basic Scale-22---Such
consideration of case and determination
of merit for parity of treatment had become all the more necessary and
in absence of considering candidature of left out officers, it would alone be
tantamount to pick and choose and there was no transparency in exercise of
discretion by competent authority---Manner in which promotions in civil service
had been made, might tend to adversely affect existence of such
organ---Honesty, efficiency and incorruptibility were sterling qualities in all
fields of life including Administration of Services and such criteria ought to
have been followed---Respondents were promoted in complete disregard of the law
causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of
services which was likely to destroy service structure---Although petitioners
had no right to be promoted yet in accordance with S. 9 of Civil Servants Act,
1973, they were, at least, entitled to be considered for promotion---Right contemplated
under S.9 of Civil Servants Act, 1973, was neither illusionary nor a
perfunctory ritual and withholding of promotion of an officer was a major
penally in accordance with Civil Servants (Efficiency and Discipline) Rules,
1973, therefore, consideration of an officer for promotion was to be based not
only on relevant law and rules but also to be based on some tangible material
relating to merit and eligibility which could be lawfully taken note
of---Supreme Court set aside notifications of promotion of respondents and
declared those of no legal. Consequences---Supreme Court directed
"competent authority to consider cases of, all officers holding posts in
Basic Scale-21 afresh in view of the observations made by Supreme
Court---Respondents were not entitled for benefits, perks and
privileges--Supreme Court recommended to ensure fairness, justness and the
rules rescinded on 4-4-1998 to be re-enacted---Petition was allowed.