FAZALI REHMANI vs CHIEF MINISTER, N.-W.F.P., Peshawar and others

CH. EJAZ YOUSAF, J.---This appeal is directed against judgment dated 19-4-2007 passed by the N.-W.F.P. Service Tribunal, Peshawar, (hereinafter referred to as "the Tribunal"), whereby service appeal filed by the appellant against promotion of the respondent No,5 to BPS-21, was for lack of jurisdiction, dismissed with reference to section 4(b)(i) of the N.-W.F.P. Service Tribunals Act, 1974 (hereinafter referred to as the "Act").

2. Facts of the case, necessary for the disposal of instant appeal, briefly stated, are that the appellant as well as respondent No,5 both were serving in BPS-20 (Executive Grade). Their promotion cases for filling one post in BPS-21 was placed before the Provincial Selection Board in its meeting held on 12-7-2005. Since service record of respondent No,5 was found comparatively better, therefore, he was recommended for promotion, though he was at S. No,2 in the seniority list, below the appellant, who was at S. No,

1. A notification to the above effect was issued on 2-8-2005.

The appellant filed review/representation before the respondent No,1, i,e, the Chief Minister,N.-W.F.P, Peshawar, under the rules, which was rejected on 24-9-2005. Resultantly, the appellant approached the N.-W.F.P. Service Tribunal through appeal No,831 of 2005 which was dismissed vide the impugned judgment, hence this appeal.

3. It has been contended by the learned counsel for the appellant that since very eligibility of the respondent No,5 for promotion to BPS-21, was challenged before the Service Tribunal therefore, the Tribunal could not have declined to exercise jurisdiction by bringing the matter under section 4(b)

(i) of the Act, which was patently wrong. He added that since the appellant was the senior-most officer in BPS-20 and was also eligible in all respects for promotion to BPS-21, therefore, he could not have been deprived of legitimate right of his promotion without any cogent reason. It is further his grievance that respondent No,5's promotion to BPS-21 was also in violation of rules and regulations as he had not done the NIPA Course from the staff college, which was a mandatory requirement for promotion to grade 21; that since promotion of PCS (Executive Group) comes within the purview of non-selection post therefore, it was to be made on the basis of seniority- cum-fitness and thus the impugned order of respondent No,4 was against the law, rules and policy.

4. Qazi Muhammad Anwar, learned Sr. ASC, appearing for respondent No,5, on the other hand, while vehemently controverting the contentions raised by the learned counsel for the appellant, has submitted that question of eligibility for promotion of the respondent No,5 was never raised before the Tribunal and only his promotion to BPS-21 was challenged which being not within the jurisdiction of the N.-W.F.P. Service Tribunal, under section 4(b)(i) of the Act, the appeal filed by the appellant was rightly dismissed. He maintained that since the posts in grade 21 and above were selection posts, therefore, it could not have been filed on the basis of seniority-cum-fitness. While controverting the contention of the learned counsel for the appellant that respondent No,5 had not done the NIPA Course, he submitted that since respondent No,5 had served for one year as head of NIPA Specialized Training Institution, therefore, he was rightly exempted by the competent authority and thus was eligible for promotion to grade 21. Learned counsel added that appellant as well as respondent No,5 were considered by the Board and since appellant was not found fit for promotion he was superseded.

5. We have given our anxious consideration to the respective contentions of the learned counsel for the parties and have also perused the record of the case with their assistance, minutely.

6. As regard the first contention raised by the learned counsel for the appellant that since very eligibility of respondent No,5 for promotion to the next higher grade was disputed as compared to the appellant, therefore, the learned Tribunal could not have declined to exercise jurisdiction by bringing the matter under section 4(b) (i) of the Act, it may be pointed out here that eligibility for promotion and fitness for promotion are distinct and separate from each other. Eligibility relates to the terms and conditions of service, whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a Tribunal or a Court hence, neither eligibility to promotion can be equated with promotion nor prospects of promotion can be included in terms and conditions of service. It is well settled that though eligibility for promotion of a civil servant can be subjected to judicial scrutiny by the Service Tribunal as it relates to terms and conditions of a civil servant yet, the question of fitness of a civil servant for promotion is barred from its jurisdiction under section 4(b) (i) of the N.- W.F.P. Service Tribunals Act, which reads as follows:-- "4. Appeal to Tribunals.-..............

(a) .......................................

(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining:

(i) the fitness or otherwise of a person to be appointed to a higher post or grade; In a number of judgments, it has been repeatedly laid down by this Court that though the question of eligibility relates to the terms and conditions of service and therefore, would fall within domain of the Tribunal yet, the question of fitness of a civil servant for promotion is barred from the jurisdiction of the Tribunal. Reference in this regard may usefully be made to the following reported judgments:--

(i) Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) i) Muhammad Iqbal v. Executive District Officer (Revenue) (2007 SCMR 682)

(iii) Syed Abdul Qadir Shah v. Government of Punjab (1972 SCMR 323)

(iv) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCMR 1129)

(v) Muhammad Akram and others v. The State and others (1996 SCMR 324)

No doubt it has also been, in some cases including (i) Muhammad Anis (supra), (ii) Muhammad Rehman Khan v. Chief Secretary, N.-W.F.P. And others (2004 PLC. (C.S) 62), (iii) Abdul Ghafoor, Supervisor/Inspector, NHA v. National Highway Authority and others (2002 SCMR 574), and (iv)

Zafarullah Baloch v. Government of Balochistan and others (2002 SCMR 1056), laid down by this Court that when a civil servant was eligible for promotion but ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, yet, in the instant case, since the appellant had failed to show that respondent No,5 was ineligible for promotion, therefore, the learned Tribunal had rightly declined to interfere with the order of the departmental authority. Needless to point out that though consideration for promotion is a right yet, the promotion itself cannot be claimed as of right. Record reveals that the cases of both the appellant as well as respondent No,5 were thoroughly considered by the Selection Board and since respondent No,5 was found fit for promotion, therefore, his name was recommended. The contention therefore, is devoid of force.

7. As to the next contention that since respondent No,5 had not done the NIPA course, therefore, he could not have been considered for promotion, it may be pointed out here that no doubt under the policy of the Federal as well as the Government of N.-W.F.P. Contained in letter No,SOR-I(S and GAD)1-173/94, every officer of the All Pakistan Unified Grade has to attend a regular training course at the National Institute of Public Administration, before he is considered for promotion to a post in B-20 and likewise, officers are required to attend the specified course at the Pakistan Administrative Staff College, Lahore, yet in terms of letter No,10(5)91-CP-I, dated 8th May, 1991, certain officers are exempted from such training. It would be advantageous to have a glance at the letter in question which reads as follows:-- "Government of Pakistan Cabinet Secretariat Establishment Division No,10(5)/91-CP-I Islamabad, the 8th May, 1991 OFFICE MEMORANDUM Subject:--PROMOTION POLICY-EXEMPTION FROM NIPA AND STAFF COLLEGE/NDC COURSE.

The undersigned is directed to refer to this Division's d.o. Letter No,10(10)/85-CP-I, dated the 415th May, 1985 on the above subject and to say that apart from those who have crossed the age of 56 years, training requirement of NIPA/PASC/NDC can only be waived for the following categories of officer:--

(i) From promotion to BPS-20.--those who have served on directing staff in BPS-19 for 2 years in NIPA; Staff College, ND , Civil Services Academy and the specialized training institutions imparting training to officers in BPS-17 and above.

(ii) For promotion to BPS-21.--those who have served on directing staff in BPS-20 for two years in the Staff College, NDC, NIPA and Civil Services Academy or have served for one year as head of NIPA/specialized training institutions imparting training to officers in BPS-17 and above.

(Ashiq Hussain)

Section Officer (CP-I)

Tele:828610

1. All Ministries/Divisions, Rawalpindi/Islamabad

2. All Chief Secretaries of Provincial Governments."

A bare perusal of the above letter particularly latter part of clause (ii) indicates that those officers who had served for one year as Head of NIPA/ specialized training institution imparting training to officers in BPS-17 and above, are exempted from the training requirement of NIPA, hence the respondent No,5 having served as such, his eligibility towards promotion was never under jeopardy. This contention too, therefore has no force.

8. Adverting to the next contention of the learned counsel for the appellant that since promotion to PCS (EG) comes within the purview of non-selection post therefore, it had to be made on seniority- cum-fitness basis, it may be noted here that where posts carrying basic pay scale 18 or below as non-selection posts and promotion to those posts is to be processed by the Departmental Promotion Committees on the basis of seniority-cum-fitness, as per clause 1 of Heading II of the Guidelines for Departmental Promotion Committees/Central Selection Boards, (at page 234) under Sl. No,154, contained in the ESTACODE, 2000 Edition (hereinafter referred to as the "Code"), the posts in* basic pay scale 19 or higher are selection posts and promotion to these posts are to be processed through the Central Selection Boards. In the order to ensure that selection by these Boards does not amount to a mere elimination of the unfit it is further provided in, clause 2 of the above guidelines that the Establishment Division must place a larger panel of eligible officer& before the Board depending on the availability of eligible officers in a cadre. It is further the requirement of clause 3 thereof that, for selection posts "quality and output of work" and "Integrity" in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum and those marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts. Here it would be advantageous to have a glance at the above guidelines which reads as follows:- "II. Promotions on Seniority-cum-Fitness Basis

1. Posts carrying basic pay scale 18 or below are non-selection posts. Promotions to these posts are to be processed by the DPCs on the basis of seniority-cum-fitness. Fitness would be assessed primarily on the officer's work in the lower post. III. Promotion to Selection Posts.

1. Posts in basic pay scale 19 or higher are selection posts. Promotions to these posts are to be processed through the Central Selection Boards.

In order to ensure that selection by these Boards does not amount to a mere elimination of the unfit the Establishment Division shall place a larger panel of eligible officers before the Boards.

Depending on the availability of eligible officers in a cadre, the number or officers to be included in the panel shall be as follows:--

(a) for promotion to supervisory posts. A minimum of 2 officers for every vacancy.

(b) For promotion to middle and senior management posts.A minimum of 3 officers for every vacancy.

3. For selection posts, entries under "quality and output of work": and "Integrity" in all the ACRs recorded on the civil servant during his service as an officer will also be quantified in accordance with formula given in the Addendum. These marks shall be a crucial factor in determining comparative merit of officers for promotion to selection posts."

Another relevant fact which cannot be lost sight of is that the posts carrying basic pay scale 21, against one of which the appellant lays a claim, fall in senior management, involving important policy-making or extensive administrative jurisdiction and therefore, in addition to the circulation value and variety of experience the incumbents must possess proved analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management and since the potential cannot be adjudged by mathematical formula, therefore selection Board is required to apply its collective wisdom to determine the same. Clause 6 of the said guidelines at page 238 of the Code is explicit in this regard, which is reproduced herein below in extensor:-- "6. Posts carrying basic pay scale 21 fall in senior management involving important policy-making or extensive administrative jurisdictions. In addition to the circulation value and variety of experience the incumbents must possess proven analytical competence, breadth of vision, emotional maturity and such other qualities as determine the potential for successfully holding posts in top management. This potential cannot be judged by mathematical formula. The Selection Board will have to apply its collective wisdom to determine the same. A civil Servant must fulfill the following conditions for promotion to senior management post:--

(a) Qualifying Service.--Possess 22 years service as an officer subject to the provisions contained in Establishment Division's O.M. No,1/9/80-R-II (A), dated 2-6-1983.

(b) Eligibility threshold.--Attain a minimum score of 70 marks in CRs in accordance with the formula given in the Addendum.

(c) Qualifications.-- As are prescribed by relevant recruitment rules.

(d) Relevance of Experience.--Possess experience relevant to the functions of the post being filled by promotion.

(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 careful consideration to the nature of duties, duration and location of posts previously held by the officer. At this level, a proper assessm ent under the criterion may require some distinction between hard or taxing assignments (on account of work load or its complexity) viz-a-viz relatively routine duties particularly in the secretariat. Depending on the posts to be filled, an officer possessing well rounded experience with adequate exposure to difficult assignments should normally be preferred.

(8) Training.--should have successfully completed a regular course at the Pakistan Administrative Staff College / National Defence College. This requirement will be waived for officers 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 exceeded the age of 56 years.

(h) To Management Potential.--Since officers promoted to this level may be called upon to hold independent charge of a Ministry/Division or to head a major corporation, the Board should satisfy itself about the officer's maturity, balance and ability to assume such top management positions even at short notice.

9. In the wake of above, it thus follows that where promotion to posts carrying basic pay scale 18 or below is to be made on the basis of seniority-cum-fitness, promotion in case of selection posts i,e, BPS-19 and above is to be made on the basis of "fitness-cum-seniority" meaning thereby that in the earlier case, i,e, BPS-18 and above seniority would be considered first and fitness of the employ would be adjudged later, whereas, contrary thereto, in the case of selection posts i,e, BPS-19 and above, fitness of an employee would be adjudged first and his seniority would be considered later, for instance, if two equally fit employees are selected by the Board then senior amongst them would be given preference. Needless to point out that since the instructions contained in the ESTACODE have the force and effect of rules, by virtue of subsection (2) of section 25 of the Civil Servants Act, 1973 as has been held by this Court in the cases of (i) Secretary to the Govt. Of the Punjab v. Abdul Hamid Arif and others (1991 SCMR 628) and (ii) Muhammad Yousaf and others v.

Abdul Rashid and others (1996 SCMR 1297), therefore, this contention too, has no force.

10. Upshot of the above discussion is that this appeal being misconceived in hereby dismissed.