Promotion jurisdiction | The Supreme Court ruled that the Federal Service Tribunal exceeded its jurisdiction by declaring Muhammad Anwar 'qualified' for promotion and ordering proforma promotion.

The Supreme Court ruled that the Federal Service Tribunal exceeded its jurisdiction by declaring Muhammad Anwar 'qualified' for promotion and ordering proforma promotion.

یہ مقدمہ ایک سابق سرکاری اہلکار، محمد انور، اور حکومت پاکستان کے درمیان تھا۔ محمد انور نے وفاقی سروس ٹربیونل میں اپیل دائر کی تھی، جس میں انہوں نے اپنے خلاف عائد کی گئی بڑی سزاؤں کے فیصلے کو چیلنج کیا۔ ان کا موقف تھا کہ انہیں ترقی سے محروم رکھا گیا، حالانکہ ان کی پوسٹوں کی اپ گریڈیشن ہو چکی تھی۔

وفاقی سروس ٹربیونل نے محمد انور کے حق میں فیصلہ دیتے ہوئے اسے ترقی کے لیے 'اہل' قرار دیا اور پروفارما ترقی کی ہدایت دی۔ تاہم، وزارت خزانہ نے اس فیصلے کو سپریم کورٹ میں چیلنج کیا، یہ دلیل دیتے ہوئے کہ ٹربیونل نے ترقی کے معاملے میں اپنے دائرہ اختیار سے تجاوز کیا ہے۔

سپریم کورٹ نے اس معاملے میں فیصلہ سناتے ہوئے ٹربیونل کے فیصلے کو مسترد کر دیا، اور کہا کہ ٹربیونل کو ترقی کے لیے اہل قرار دینے اور پروفارما ترقی کی ہدایت دینے کا اختیار نہیں تھا۔ عدالت نے یہ بھی کہا کہ اگر پروفارما ترقی کی ہدایت پر عمل نہیں کیا گیا، تو اس پر جلد عمل درآمد کیا جائے۔

IN THE SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Present:

Justice Qazi Faez Isa, C.J.

Justice Amin-ud-Din Khan

Justice Athar Minallah

CIVIL PETITION NO.848 OF 2022

(Against the judgment dated 05.1.2022 of the

Federal Service Tribunal, Islamabad passed in

Appeal No.814(R)CS of 2019)

Secretary, Ministry of Finance,

Finance Division, Government of Pakistan,

and others

… Petitioners

Versus

Muhammad Anwar

…

Respondent

For the Petitioners:

Rana Asadullah Khan,

Additional Attorney General

Respondent:

In person

Date of hearing:

12.12.2023

ORDER

Athar Minallah, J. The Secretary, Ministry of Finance has challenged

the judgment dated 06-12-2021 of the Federal Service Tribunal

(‘Tribunal’) whereby the appeal filed by Muhammad Anwar (‘the

respondent’) was allowed.

The respondent was appointed as Assistant Director (B-17) in

the Central Directorate of National Savings (‘the Directorate’) on

15.5.1983. He was promoted to the post of Deputy Director (B-18)

w.e.f. 30.1.2002 and subsequently as Director (BS-19) on

13.01.2010. Pursuant to disciplinary proceedings initiated against

the respondent, a major penalty was imposed upon him vide order

dated 01.4.2014. Before the major penalty was imposed, the

respective posts of the Directorate in BS-09 to BS-20 were upgraded

vide the Finance Division’s office memorandum, dated 24.01.2013.

However, it was explicitly stated in the memorandum that the posts

were upgraded and it shall not be construed as automatic

upgradation of the incumbents. The incumbents were to be

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considered for promotion in accordance with the manner prescribed

in this regard. The process was initiated and the case of the

respondent was forwarded in May 2015 along with other eligible

persons to the Central Selection Board for its consideration. However,

the case of the respondent was withdrawn on the request of the

Directorate. The appeal filed by the respondent against the imposition

of a major penalty was allowed by the Tribunal vide judgment dated

10-10-2016. The judgment of the Tribunal was upheld by this Court

on 19-03-2018. It is noted that the respondent retired from service

upon attaining the age of superannuation on 15.5.2016. The latter

filed a departmental appeal on 13.5.2016 followed by another on

29.7.2016. The respondent was informed vide letter dated 07.11.2016

that his representation/departmental appeal was rejected by the

Finance Division in consultation with the Establishment Division. The

respondent preferred an appeal before the Tribunal which was

allowed vide the impugned judgment. The Tribunal has declared the

respondent to have been 'qualified for promotion' from the date when

others were promoted against the upgraded posts. The Tribunal has

further directed that the respondent be considered for promoti0on

under FR-17(1) for consequential financial benefits.

The learned Additional Attorney General has argued that the

Tribunal was bereft of jurisdiction to declare the respondent to be

'qualified' for antedated promotion. He has further argued that in the

circumstances the direction to consider the respondent for proforma

promotion has become illusory. We have also heard the respondent

who appeared in person and has submitted his contentions in

writing.

The question that has arisen for our consideration is whether

the Tribunal was competent and vested with jurisdiction to declare

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the respondent 'qualified' for promotion and then simultaneously

direct the competent authority to consider him for proforma

promotion. The scheme prescribed under the law for promotion of a

civil servant to a higher post is distinct from that of being considered

for proforma promotion. Moreover, the conditions, qualifications and

the prescribed process are also distinct. This also raises the question

whether the Tribunal was competent to declare that the respondent

was 'qualified' for promotion when the others were promoted because,

by doing so, the factor of fitness also appears to have been

determined which otherwise does not fall within its jurisdiction.

The respondent was admittedly a civil servant and, therefore,

the terms and conditions of his service were governed under the Civil

Servants Act, 1973 (‘the Act of 1973’) and the rules made

thereunder. The respective posts of the Directorate were upgraded.

After upgradation all the posts were to be by filled by adopting the

mode of appointment through promotion to the higher post. The

terms and conditions of service of a civil servant are as provided

under the Act of 1973 and the rules made thereunder.1 A civil servant

possessing such minimum qualifications as have been prescribed

becomes eligible for promotion to a higher post reserved under the

rules for departmental promotion in the service or cadre to which the

latter belongs.2 The President, in exercise of powers conferred under

section 25 of the Act of 1973, has made the Civil Servants

(Appointment, Promotion and Transfer) Rules, 1973 (‘the Rules of

1973’). Promotion to the posts in BS-2 to BS-18 and the equivalent

are made on the recommendation of the appropriate departmental

promotion committee while, in the case of BS-19 to BS-21 and the

Section 3 of the Act of 1973

Section 9 of the Act of 1973

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equivalent, on the recommendations of the selection boards.3 The

respective competent authorities designated under the Rules of 1973

may approve the promotion of an officer or officials from the date on

which the recommendation of the central selection board has been

made.4 Sub rule 2 of rule 7 A of the Rules of 1973 provides that

notwithstanding the provisions of FR 17(1), an officer or an official

who expires or superannuates after the recommendations of the

central selection board and before the issuing of the notification shall

stand exempted from assumption of the charge of the higher post

subject to a certificate given by the Principle Accounting Officer or

officer so authorized to the effect that the officer or official has expired

or has superannuated. The promotion to the post is, therefore, one of

the modes prescribed for appointment against a higher post. The

posts have been broadly divided into two categories i.e. selection and

non-selection posts for the purposes of promotion. In case of a

selection post the promotion is made on the basis of selection on

merit while in case of a non selection post the criteria prescribed

under the Act of 1973 is seniority cum fitness. Section 9 provides that

in order to be eligible for promotion a civil servant must possess such

minimum qualifications as may be prescribed. As provided under rule

7 of the Rules of 1973, promotion to a post in pay scales 2 to 18 are

made pursuant to recommendations of the Departmental Promotion

Committee and in case of a selection post, i.e pay scale 19 to 21, the

competent authority to consider and recommend promotion is the

Selection Board. A cumulative reading of the provisions of the Act of

1973 and the Rules of 1973 clearly shows the scheme whereby a civil

servant is promoted to a higher grade. The minimum qualifications

and length of service for the purposes of eligibility are prescribed,

3 Rule 7 of the Rules of 1973

4 Rule 7-A of the Rules of 1973

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specific forums have been explicitly designated under the law to

consider and recommend an eligible civil servant to the competent

authority for the purposes of promotion to a higher post. The latter

than considers the recommendations and takes a decision

accordingly. It is implicit from the scheme provided under the Act of

1973 read with the Rules of 1973, that promotion to a higher post is

confined to a civil servant who has not retired or superannuated after

attaining the age of superannuation. The scheme does not

contemplate for a civil servant to be considered for promotion after

retirement or having attained the age of superannuation. Even the

eligible civil servants are evaluated by competent forums which have

been explicitly designated for this purpose under the law. The

recommendations of such designated forums are placed before the

competent authority. The latter does not perform ministerial

functions but has to apply an independent mind while considering

the recommendations made by the designated forum. This Court, in

Mian Abdul Malik’s case5, has held that the question of eligibility

relates to the terms and conditions of service and their applicability to

the civil servant concerned. Fitness introduces an element of

subjective evaluation on the basis of objective criteria where

substitution of an opinion of the competent authority is not possible

by the Service Tribunal or a Court. The question of evaluating the

fitness or suitability for promotion has always been within the

exclusive jurisdiction of the competent authority and it is not shared

by the Service Tribunal or a Court exercising supervisory jurisdiction

in respect of eligibility and qualification. The Tribunal nor a Court can

substitute an opinion formed by the competent forum after

undertaking careful evaluation. As a corollary, no civil servant can be

declared as 'qualified' or fit for promotion except in the manner

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

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prescribed under the law and discussed above. Moreover, the

Tribunal is not competent to substitute the opinions formed by the

competent forums after careful evaluation. Even in the case of a civil

servant who has not retired and continues to be in service, it is

settled law that promotion is neither a vested right nor could it be

claimed with retrospective effect.6 As is obvious from the Act of 1973

and the Rules of 1973, what a civil servant may claim as of right

under the law was that the latter should be considered when the

cases for promotion are taken up. The civil servant could not call

upon a Tribunal or court to direct the department to fill the

promotion post forthwith or on a particular date nor to keep it vacant

or under consideration.7 The question of promotion rests exclusively

within the jurisdiction of the competent authority and it cannot be

ordinarily interfered with by a court or a Tribunal, except when the

competent authority has acted in violation of the law, in excess of

jurisdiction, without jurisdiction or in colourable exercise of powers

conferred upon the latter.8 The determination of the question of

fitness, being a subjective evaluation on the basis of objective criteria,

also falls within the exclusive domain of the competent authority and

the same falls outside the jurisdiction of the Tribunal or the Court.9

The competent authority is empowered to make rules for promotion

and a civil servant has no vested right in relation to the rule which

determine the eligibility, criteria and set out other conditions and also

to change or alter the rules already governing the civil servant. This

Court has already held that the rules which prescribe the

qualification or criteria for promotion to the next higher scale may be

changed because it is the prerogative of the executive authority,

6 Abid Hussain Shirazai v. Secretary Ministry of Industries and Production, (2005 SCMR 1742)

7 Muhammad Yousaf v. Chairman Railway Board (1999 SCMR 1559)

8 Muhammad Iqbal and others v. Executive District Officer (Revenue) Lodhran and others (2007

SCMR 682)

9 Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539), Dr. Ahmed Salman

Waris v. Dr. Naeem Akhter and others (PLD 1997 SC 382)

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except when it can be shown they are either person specific or based

on mala fide.10

A civil servant who has retired after attaining the age of

superannuation cannot claim to be considered for promotion to a

higher post. After superannuation the civil servant may, however,

claim a right to be considered for pensionary benefits in accordance

with the policy or a scheme adopted by the competent authority. The

proviso to FR 17(1) of the Fundamental Rules empowered the

appointing authority to direct that a civil servant shall be paid the

arrears of pay and allowances of a higher post through proforma

promotion if satisfied that the civil servant who was entitled to be

promoted from a particular date was, for no fault of his own,

wrongfully prevented from rendering service to the Federation in the

higher post. The benefit is obviously intended to compensate a civil

servant for being deprived of a right to be considered for no fault on

the latter's part. The scheme for considering a claim regarding the

proforma promotion is distinct from that of promotion of a civil

servant to a higher post. It is noted that the aforementioned proviso

was omitted vide SRO No.965(I)/2022 dated 20.05.2022. The Finance

Division, vide Office Memorandum dated 20-05-2022 has, inter alia,

provided that cases of retired civil servants could be placed before the

relevant forums if there existed specific orders of judicial forums.

Moreover, according to the guidelines, cases received before 20-05-

2022 could also be entertained.

The Tribunal has been established under the Service

Tribunals Act, 1973, having exclusive jurisdiction in respect of

matters relating to the terms and conditions of the service of civil

servants, including disciplinary matters. Section 5 describes the

10 Dr. Alyas Qadeer Tahir v. Secretary Ministry of Education (2014 SCMR 997)

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powers of the Tribunal and provides that it may confirm, set aside,

vary or modify the order appealed against. The Tribunal is, therefore,

not competent nor vested to alter, vary or in any manner modify the

scheme of promotion to a higher post explicitly prescribed under the

Act of 1973 and the Rules of 1973. It is settled law that if the law

requires a particular thing to be done in a particular manner it has to

be done accordingly, otherwise it would not be in compliance with the

legislative intent.11 The Tribunal was not vested with jurisdiction to

evaluate the eligibility and fitness of a civil servant for promotion to a

higher post by disregarding the scheme and competent designated

forums provided under the Act of 1973 read with the Rules of 1973.

The Tribunal had thus transgressed its jurisdiction by declaring the

respondent to be 'qualified' for promotion from the date others were

promoted. The Tribunal also fell in error by pre empting the process

required to be adopted by the designated forum for determining the

eligibility and entitlement of the respondent for the purposes of

proforma promotion. The Tribunal was justified to the extent of the

direction to the competent authority to consider the respondent for

proforma promotion because this Court, while dismissing the petition

assailing the Tribunal’s judgment dated 10-10-2016, had observed in

its order dated 19-03-2018 that the respondent had been exonerated

on the ground of defective enquiry as well as merits. It was further

observed that the charge was in the nature of alleged negligence and

not misconduct.

For the above reasons, we convert this petition into an

appeal and it is allowed to the extent of declaring the respondent as

qualified for promotion when the others were promoted.

Consequently, the impugned judgment of the Tribunal, dated

11 Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015)

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06.12.2021, is set-aside to this extent. Nonetheless, if the direction

regarding considering the respondent for proforma promotion has not

been complied with then we expect that the needful will be done at

the earliest.

Chief Justice

Judge

Announced in open Court on ____________

at Islamabad

Judge.

‘NOT APPROVED FOR REPORTING’

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