Resolved Cases Series: Matter involving Promotion of Civil Servant in Pakistan.
Our client approached us on the basis that he was currently serving as Director (BS-20) with a prominent federal institution. He was aggrieved, as the 6 respondents were all junior officers who had been promoted to BS-21, while the petitioner had been ignored and superseded. Two of the respondents, though they were senior to the petitioner, were still promoted on the basis of a seniority list which itself has been set aside by the learned Federal Service Tribunal, Islamabad. After qualifying CSS examination, the petitioner joined Civil Services Academy on in 1980 and completed training as a probationer of 8th Common Training programme, and then as Specialised Departmental Training, served the Government of Pakistan as Income Tax Officer(ITO). After promotion to BS-18 alongwith his batch-mates, the petitioner served as Assessing Officer and Special Assistant in Federal Institutions. The petitioner was promoted to BS-19 and served as Additional Commissioner/Supervisory Officer at middle management level.
In 2001, in view of petitioner’ devotion to his job, spotless career and outstanding performance, he was elevated to the rank of Commissioner in his pay and scale and was posted as Commissioner Multan Zone, Multan/Commissioner Appeals. The petitioner served on higher post before his regular promotion to BS-20 on turn and thereby served as Director-General Tax Office Rawalpindi & Director-General/Chief Commissioner Regional Tax Office Sialkot for two years. We filed these facts as an indication of petitioner’s outstanding performance. It was also mentioned that during his postings, the petitioner got cash awards for detection of tax frauds/concealment and tax evasion, achieving targets and rendering meritorious service at several occasions. The petitioner completed NIPA training in Quetta and National Management Course at NMC/NSPP at Lahore, besides attending various capacity-building training courses at the Directorate General of Training), Lahore.
Evidence was also there that the petitioner’s case for promotion to BS-21 was considered in the meeting of Central selection Board (CSB) on in 2011 and was superseded for the following reasons quoted below:
“Professionally not competent to hold senior assignment in BS-21 as assessed by Departmental Representative. His total score of PERs, Training Evaluation Report and marks awarded by the Board was below the prescribed score of 75”.
The client retained Josh and Mak International for filing a Writ Petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 for his promotion.
The grounds for preferring this constitutional petition were stated as follows:
- At the first instance, it is respectfully submitted that the very basis of the promotion of the respondent No.4-12 is the seniority list of 2011 and the same has been set aside by the learned Federal Service Tribunal, Islamabad, vide its judgement dated 02-12-2011, hence their promotion to the next grade i.e. 21 is void ab initio. Reliance can be placed on PLD 1958 SC 104. It is further pointed out that the very notifications i.e. dated 02-12-2011; 03-12-2011 & 23-12-2011 stated in very explicit terms that the said promotion notification will be subject to final decision by the FST, Islamabad, and reversion of promotions if so decided, in the above appeals. Further submitted that the petitioner was senior to the respondents No.4-10. The petitioner being senior has been superseded without any legal reason, whatsoever, and his juniors have been promoted for personal and parochial considerations.
- The petitioner has been superseded without giving reasons of “not competent to hold senior assignment in BS-21” This is violation of not only Section 24-A of the General Clauses Act but also of the authoritative pronouncements of higher Courts of the land on the subject matter. Section 24-A of the General Clauses Act, provides that an authority vested with statutory power is bound to exercise that power justly, fairly and reasonable and to pass a speaking order. Furthermore, the impugned supersession of the petitioner violates his fundamental rights enshrined in the Constitution, including Article 4, 9 and 25 thereof. This is evident from order itself which is neither speaking nor reasons have been spelt out for supersession of the petitioner. Additionally, supersession of the petitioner is violation of the principle of legitimate expectancy.
- It is submitted that total marks were 100 for assessing any officer to next grade. Out of 100, 85 marks were allocated for service record i.e. ACR/PER (performance evaluation report) & 15 marks were with the CSB. The petitioner was giver 65.4 marks for service record which is 77% but he was awarded only 4 marks out of 15 by the CSB which is 26.6% and the same is not proportionate to the service marks of the petitioner which demonstrate malafide on the part of CSB, hence intervention of the Hon’ble High Court is utmost warranted in the instant case.
- The petitioner has to his credit about 31 years of unblemished service record. In all the 30 ACRs, the petitioner was evaluated as “Fit for Promotion” and for this reason alone, the petitioner scaled upto BS-20. Additionally, the petitioner was holding the charge of the post of BS-20 while he was Commissioner Multan for more than three years. After completion of National Management Course in 2009, the petitioner was posted as Director-General/Chief Commissioner Regional Tax Office, Rawalpindi- Sialkot on which post he remained till September 2011. Such a post is usually given to very competent officer and the higher authorities appreciated the same. However, the CSB on the basis of evaluation of representative of department only, is holding that the officer is not competent to hold post of next grade. Firstly, evidently and admittedly it were a lone voice which held so, yet what about the opinion of rest of the worthy members and the same is not reflected in the impugned order.
- The petitioner has worked against various positions like, Assessing Officer, Tax Recovery Officer, Staff Postings both at Zonal/Regional Headquarters and FBR, Directorate of Inspection and Audit, Directorate of Intelligence & Audit. Commissioner Appeals, Zonal Commissioner, Chief Commissioner, Director General, None of the officer promoted has such a variety of experience. While the petitioner was in BS-19, he served in his Own Pay Scale (OPS) against the post of Commissioner (BS-20) for more than 3 years, which is unprecedented and none of his Senior/Junior officer who has been promoted had ever worked against a higher post for such a longer period. The only reason was the petitioner’s suitability and competence.
- Immediately after his promotion to BS-20, and completing mandatory National Management Course (NMC) and serving as Commissioner Taxpayer Facilitation Division (TFD) in Regional Tax Office, Lahore for a short period, the petitioner was posted as Director General/Chief Commissioner, Rawalpindi/Sialkot, which again was a supervisory post and performance of Commissioners was to be watched. There are total 18 Regional Tax Offices (RTOs) in Pakistan and either BS-21 Officers or BS-20 Officers who have excellent service record, are posted as Chief Commissioner. Out of 82 Commissioners in BS-20, the petitioner was the only one who had the privilege of being posted as Chief Commissioner while in BS-20 and (supervising the work of Commissioners) for two consecutive years. This was only because of his outstanding performance. The petitioner also got meritorious/cash rewards during this posting for his outstanding performance. The petitioner remained posted as Chief Commissioner Sialkot till September 2011 i.e. almost till the meeting of Central Selection Board (CSB) and even for this period, he was awarded with meritorious/cash rewards. Now most of the Officers junior to him who have been promoted to BS-21 have never worked as Chief Commissioner, few of these junior officers were however posted as Chief Commissioner for a short period. Even after supersession, the petitioner is holding the post of Director General, Intelligence and Investigation (IR), which is an important posting. There are only Four Positions in Pakistan i.e. Rawalpindi, Lahore, Faisalabad & Karachi. The petitioner is looking after the affairs of Large Taxpayers’ Unit, Lahore, Regional Tax Offices, RTO, RTO-II, Lahore, Gujranwala, Sialkot and Partly Multan.
- Besides qualifying Mandatory Training Courses at NIPA, Quetta and National Management College, Lahore, the petitioner has also successfully completed various capacity building training courses at Directorate General of Training and Research, Lahore. The petitioner has also attended Foreign Training Courses at Korea and Mauritius. The petitioner has served at various stations i.e. small and big cities like Islamabad, Lahore, Rawalpindi, Multan, Bahawalpur, Khanewal, and Okara. Amongst the junior who has been promoted to BS-21, there are officers who even did not work for a single day out of Municipal limits of the City where they got their first posting i.e. home station.
- It would be pertinent to narrate an unfortunate incident of dacoity that took place at Income Tax Office, Bahawalpur (which was office cum residence) in 1986 and dacoits took away some record including impounded books of accounts of a taxpayer. From the fear of a recurrence of a similar incident, the officer posted there managed his transfer. An FIR of the said incident is available at Police Station Farid Gate Bahawalpur. The then Commissioner, Multan Zone, Multan asked for petitioner’s consent to be posted there. The petitioner accepted this challenge and was posted as Income Tax Officer, Bahawalpur. During his posting at the said station, the petitioner faced the same situation twice and protected the Government record at the risk of his own life. What to talk of facing such a situation, there are officers who in their 30 years service have even not worked for a single day out of Municipal limits of the city where they got their first posting i.e. home station.
- In view of above, it is clear that none of the officers who have in fact been promoted: –
- Has ever worked on the postings/assignments that the petitioner has worked on.
- Remained posted against post of BS-20 i.e. Commissioner in BS-19 for 3 years, on which the petitioner remained posted.
- Remained posted as Chief Commissioner for consecutive two years while being in BS-20. Most of the officers promoted did not remain as Chief Commissioner even for a single day.
- Has faced a situation involving, protection of Government Records from dacoits.
Now the questions arise as to:
- How and why the petitioner has been declared incompetent as even now he is entrusted with an important and highly challenging post of Director Intelligence & Investigation by the FBR?
- How and why the petitioner has been declared “incompetent” in October 2011, when he has received cash reward a month earlier for competence alone?
- How and why the officers junior to the petitioner and having less experience and exposure have been awarded 10 marks out of 15 available with the CSB while the petitioner has been given only 4 marks?
Submission to Court (Quoted from Main Plea)
The Central Selection Board (CSB) exercised its discretion arbitrarily while awarding marks to the petitioner. This was definitely a consequence of malafide intent and extraneous consideration. Even on the face of it, supersession of the petitioner is arbitrary, unjustified and result of colorful exercise of power, hence not sustainable in the eye of law.
It is fundamental right of the petitioner that he be treated in accordance with law and Constitution, which has been trampled upon by the respondents. The conduct of the respondent FBR & CSB viz the service rights of the petitioner is incomprehensible, illegal and frustrating, hence intervention of the Hon’ble Court is utmost warranted.
The petitioner has no other efficacious and speedy remedy except to knock at the door of the Hon’ble High Court for redemption of his service right.
For what has been submitted above, it is humbly prayed that this Hon’ble Court may graciously be pleased to accept this writ petition and declare that the impugned supersession of the petitioner is malafide, arbitrary, unjustified, illegal and of no legal consequence, whatsoever, and same may be ordered to be converted in deferment.
It is further prayed that the Central Selection Board (CSB) and the Federal Board of Revenue (FBR) be directed to reconsider the case of the petitioner for promotion to BS-21 in the next meeting of CSB from the date when his juniors were promoted.
Any other relief, which this Hon’ble Court deems fit and proper in the peculiar circumstances of this case, may kindly award to the petitioner.
Points of Law have been based on the following Law/Constitutional provisions of Pakistan
- The Constitution of the Islamic republic of Pakistan, 1973
- Civil Servants Act, 1973
As a result of this petition the aggrieved party were promoted based on a court order and finding in his favour.
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