Jurisdiction of High Court in cases of Promotion of Civil Servants

PLJ 2013 Peshawar 149 (DB)

Present: Mian Fasih-ul-Mulk and Shah Jahan Khan Akhunzada, JJ.

Nawabzada MUHAMMAD NADIR KHAN HOTI--Petitioner

versus

CENTRAL SELECTION BOARD (C.S.B.) (ADVISORY BODY) through its Chairman, Islamabad and another--Respondents

W.P. No. 3138 of 2011, decided on 19.12.2012.

Constitution of Pakistan, 1973--

----Art. 199--Federal Service Tribunal Act, 1974, S. 4--Constitutional petition--Superseded for promotion--Charges of illegal refund of sales tax--Allegations were withdrawn--Question of jurisdiction of High Court in service matter pertaining to determination of fitness of civil servant for promotion to higher grade--Validity--It is settled law that assessment of fitness and suitability are excluded from ambit of Service Tribunal u/S. 4 of FST Act, 1974 and High Court can entertain a writ petition involving question of fitness of Govt. servant for promotion--Central Selection Board had failed to show that either service dossiers of petitioner were not upto mark or that proceedings initiated against petitioner on ground of some refund case were still on service record or that petitioner was confronted with such evidence and given proper opportunity to explain his position before taking alleged decision of supersession.          [Pp. 151 & 152] A & C

Constitution of Pakistan, 1973--

----Art. 10-A--Collective wisdom--Revised promotion policy framed by Federal Government--It is fundamental right of petitioners that process of determination of civil and criminal rights must at every step pass test of fairness and procedural propriety.   [P. 151] B

Mr. Imtiaz Ali, Advocate for Petitioner.

M. Jamil Warsak, Advocate for Respondent.

Date of hearing: 19.12.2012.

Judgment

Mian Fasih-ul-Mulk, J.--Petitioner is aggrieved of the impugned recommendations of the Central Selection Board (CSB) whereby he was superseded for promotion to BPS-21 for the following reasons:--

"Involved in illegal and underserved refunds of sales tax. Does not enjoy good reputation. Not fit to hold job in BS-21. His total score of PERs, Training Evaluation Reports and marks awarded by the Board was below the prescribed score of 75".

2.  Arguments heard and record perused.

3.  The meeting of Central Selection Board was held on 03.10.2011 wherein petitioner was considered for promotion to BS-21 alongwith a panel of 17 other officers in order of seniority received from the FBR. According to the petitioner, he had filed a writ petition in this Court against the charges of illegal refund of sales tax, during the course of which, the department agreed that the charges are ill-founded and therefore the same were erased from the service record of petitioner and the writ petition was disposed of by giving directions to Respondent No. 2 to pass appropriate order on the inquiry report conducted against the petitioner; that in the light of above decision, a summary was prepared and got approved from the Prime Minister, whereby all the allegations levelled against petitioner were withdrawn. Annexure:B with the writ petition is an office order dated 18.08.2009 of the Federal Board of Revenue, whereby petitioner was informed that the competent authority has been pleased to vacate the charges levelled against him. Similarly, vide Annexure:E, the Member (Legal) found that the charge sheet is not likely to hold ground and will lead to unnecessary litigation, hence the same was vacated. In substance, when case of petitioner was being considered for promotion to BPS-21 by the Central Selection Board in its meeting held on 03.10.2011, neither any inquiry nor the charges of inefficiency and misconduct against petitioner were in the field.

4.  The respondents in their reply have raised the objection that petitioner being a civil servant cannot invoke the constitutional jurisdiction of this Court being barred under Article 212(2) of the, Constitution and that the impugned action having been taken at Islamabad, the petitioner cannot competently bring the matter within the territorial jurisdiction of this Court; hence the writ petition is not maintainable and that in terms of Promotion Policy, 1985, as modified in 2007, posts carrying BS-20 are middle management posts, requiring relevant/sufficient variety and width of experience; hence the CSB on this count too has acted in accordance with its prescribed mandate, and the recommendation cannot be questioned on any reasonable grounds.

5.  Jurisdiction of High Court under Article-199 of the Constitution is not contingent upon residence of an aggrieved person. The elements embodied in Section 20 of Civil Procedure Code cannot be introduced in Article 199 of the Constitution, as the respondents are Federal institutions operating within the territories of whole ofPakistan and this Court would therefore not lack its jurisdiction to entertain the writ petition. Reliance can be placed on the case of Nawabzada Muhammad Shahabuddin versus The Chairman, Federal Land Commission (1996 CLC 539).

6.  The question of jurisdiction of High Courts in service matters pertaining to determination of fitness of a civil servant for promotion to a higher grade came up for consideration before the Islamabad High Court in the case of Mrs. Iram Adnan and others versus Federation of Pakistan and others (2012 PLC (C.S) 1355) as well as before the Lahore High Court in the case of Liaquat Ali Chugtai versus Federation of Pakistan through Secretary Railways and 6 others (2012 PLC (C.S) 1062), wherein it was held that the impugned decision of supersession of the petitioners by the CSB (Central Selection Board) is, in effect, determination of their fitness for the posts in question. It is settled law that assessment of fitness and suitability are excluded from the ambit of the Services Tribunal under Section 4 of the Federal Service Tribunals Act, 1974 and the High Court can entertain a writ petition involving the question of fitness of a Government Servant for promotion. Reliance in this regard was placed on the dictum laid down by the august Supreme Court of Pakistan in the case reported as 1991 SCMR 1129. We therefore too would hold that the objections raised by respondents with regard to jurisdiction of this Court are not tenable for the reasons stated above.

7.  It is pertinent to mention here that in the case of Liqauat Ali Chugtai's case (2012 PLC (C.S) 1062), the petitioners had questioned the recommendations of CSB of the same meeting wherein petitioner was also considered and superseded. After critically analyzing the Revised Promotion Policy framed by the Federal Government (BSTA Code Enclosure at Sr. No. 163), it was held that the Selection Board will have to apply its collective wisdom to determine the same. It was further observed that under Article 10A of the Constitution, it is a fundamental right of the petitioners that the process of determination of civil and criminal rights must at every step pass the test of fairness and procedural propriety. There is no room for CSB to blindly rely and pass an adverse order on the basis of impressions nurtured and opinions harboured by Member(s) of CSB. Without Member(s) first tabling the tangible  evidence   against   an   officer   before   the   Board   and    then confronting the said evidence to the officer under consideration, the Board cannot place reliance on the said evidence. The writ petition was, therefore, accepted, the selection process carried out by CSB in its meetings held on 23rd, 24th September and 3rd October, 2011 was declared unconstitutional and illegal and the CSB was directed to reconsider the cases of petitioners and private respondents afresh in accordance with the Revised Promotion Policy.

8.  Similar is the case here wherein too the respondents have failed to show that either the service dossiers of petitioner were not up to the mark or that the proceedings initiated against petitioner on the ground of some refund case were still on his service record or that petitioner was confronted with such evidence and given proper opportunity to explain his position before taking the alleged decision of his supersession. Therefore instant matter too is a fit case to be accepted with same directions to the Central Selection Board to formulate well thought-out objective criteria in accordance with the Revised Promotion Policy, discussed in detail in the above mentioned judgments, and consider the case of petitioner and private respondents afresh. Order accordingly. No order as to costs.

(R.A.)  Order accordingly