ISLAMABAD – The Supreme Court on Wednesday cancelled the promotion notification of 54 bureaucrats terming it null and void.
These 54 bureaucrats are federal secretaries and were promoted to grade 22 by Prime Minister Syed Yousuf Raza Gilani on September 4, 2009. The SC directed the PM to again make appointments on these posts on merit.
It is relevant to mention here that the promotion of at least 173 bureaucrats was overlooked in making these 54 promotions. The PM made these promotions under his discretionary powers.
The prominent among the promoted federal secretaries are the PMÂ’s Principal Secretary Nargis Sethi, former chief secretary Punjab Javed Mehmood, Secretary Election Commission Ishtiaq Ahmed, Secretary Narcotics Tariq Khosa, Secretary Petroleum Kamran Lashari, Home Secretary Qamar Zaman Chaudhry, Chairman CDA Imtiaz Inayat, Khyber PakhtunkhwaÂ’s Chief Secretary Javed Iqbal, Secretary Ombudsman Sami Saeed, Chairman FBR Sohail Ahmed and Inspector General of the Punjab Police Tariq Saleem Dogar.
The court took a suo moto notice on a letter written by Tariq Aziz-ud-Din on January 29. A three-member bench headed by Chief Justice Iftikhar Muhammad Chaudhry reserved the judgement in the case, which was filed by a number of affected officers of BPS-21 against the promotion of 54 officers of grade 21 to grade 22 by the Prime Minister.
On September 4, 2009, Prime Minister Gilani ordered the reshuffling of 54 officials superseding the positions of 173 officers awaiting promotions. This action was termed as a violation of Articles 4 and 25 of the Constitution. Those ignored in the promotions moved the Supreme Court, pleading that injustice had been done to them by promoting the other 54 bureaucrats.
Muhammad Akram Sheikh, M Ikram Chaudhry, Dr Muhammad Aslam Khaki, Afnan Karim Kundi and Haider Hussain appeared on behalf of the applicants/officers who were not promoted, whereas Abdul Hafeez Pirzada appeared on behalf of Federation of Pakistan through Establishment Division.
In this case, Akram Sheikh argued that Section 9(2) of the CSA, 1973, mandates that recruitment should be made on merit, therefore, when merit comes, it excludes discretion. Despite framing of rules, if some discretion is left, it should be structured discretion, based on seven instruments of structuring of discretion and scope of that structuring of discretion is left only after framing of rules in the manner prescribed.
When a criterion is to be structured by rules, then the only rules are to be made applicable and nothing else and if no law or rules are framed then the judge made laws shall fill in the vacuum. Merit of course can be taken into consideration with respect to the eligibility but eligibility does not militate against merit, Akram argued.
There are neither any rules, guidelines nor compulsions, therefore, the discretion of the Prime Minister, governing the transfers and promotions to BS-22 would negate the entire Esta. Code. [Referred to page 257 of the Esta. Code, 2007 Ed. (regarding Selection Board)]. Discretion vested in the competent authority is a sacred trust, which is to be exercised with application of mind to ensure equality of opportunity as envisaged in Article 2A of the Constitution, Akram argued.
He concluded his arguments by saying that the petitioners are claiming their right guaranteed by the Constitution and policy of merit, which obliges the trustees of the State powers i.e. the chosen representatives to exercise such power with all the conditions prevalent between the trustee and beneficiary. He also referred to the seniority list submitted by the Federal Government, demonstrating that the persons having just a few monthsÂ’ service in BS-21 have been promoted whereas no reason either for selection or rejection has been assigned.
On the other hand, Abdul Hafeez Pirzada argued that the material for promotions of all these officers was sent to the Prime Minister in November 2008 which contains the service record of the entire 267 officers in Grade 21. This court does not sit as a court of appeal over the exercise of power by a lawful authority as it has only to satisfy itself as to whether the reducible minimum requirements of good governance have been complied with or not, and the benefit of doubt, if any, will go in favour of the validity of the action taken by the competent authority and not against it. In order to see whether the discretion has been exercised properly or not by the competent authority, this court has to scrutinise each and every case individually in order to severe the good from the bad. The principles of seniority, fitness and aptness, as claimed by the affectee officers, are not applicable in a case of promotion from BS-21 to BS-22, Pirzada argued.
The discretion exercised by the competent authority can only be challenged on the grounds of illegality, bias or malice or mala fide, and proceedings being corum non judice, but in the instant case at the best, the question is of irrationality or lack of procedural propriety, which even has not been substantiated at all by the petitioner/affectee officers, Pirzada further argued
Immediately prior to promotions, eleven Additional Secretaries from BS-21 were acting as Secretaries holding independent Divisions, whereas three Inspectors General of Police and three Chief Secretaries were also working on acting charge basis, and their performance was known to the competent authority, which was one of the consideration for promotion, Pirzada argued.
The bench observed in the detailed order, “We may observe here that it is not the case of few individuals who have been promoted or left out, the questions for consideration raised in this case are of far-reaching effect. Essentially, under the trichotomy of the powers, the Executive (Bureaucracy) has to play the most important role for well being of general public. Although, they are not representing any class of masses but whole structure of the government depends upon the efficient and competent officers who matter in making policies, which are ultimately approved by the Ministers etc.”
“And if for this purpose the selection of officers is made following the principle to determine the merit are not employed, the running of Government on the basis of good policies would ultimately affect the general public as in this matter it is no body’s case that the officers who have been left out are not eligible for promotion to BS-22. Thus they stand at par with those who have been promoted and depriving them to enjoy the higher status of a civil servant would indirectly affect smooth functioning of the Government on account of despondency developed amongst the officers, who always have stood by law and worked hard but ultimately are deprived of their legitimate right of promotion,” the bench observed.
After the decision of Supreme Court of Pakistan, the recent promoted 54 Government officers including Principal Secretary of Prime Minister Syed Yousuf Raza Gilani, Nargis Sethi, stand demoted to Grade-21. The bureaucrats who were affected with the Supreme Court verdict include former chief secretary Punjab Javed Mehmood, Secretary Election Commission Ishtiaq Ahmed, Secretary Narcotics Tariq Khosa, Secretary Petroleum Kamran Lashari, Home Secretary Qamar Zaman Chaudhry, Chairman CDA Imtiaz Inayat, Khyber PakhtunkhwaÂ’s Chief Secretary Javed Iqbal, Secretary Ombudsman Sami Saeed, Chairman FBR Sohail Ahmed and Inspector General of the Punjab Police, Tariq Saleem Dogar, Secretary Information Technology Najeeb Ullah, Inspector General Balochistan Javed Ali Shah, Secretary Special Education Imtiaz Hussain Qazi, IG Motorway Wasim Kosar, Chief Secretary Balochistan Ahmed Bukhsh Lehri, Secretary Federal Ombudsman Sami Saeed.
The other officers include PakistanÂ’s High Commissioner in Australia Jalil Abbas Jillani, PakistanÂ’s Ambassador in China Masood Khan, Nazar Hussain, Junaid Iqbal, Ghulam Ali Shah, Zamer Akram, Prime MinisterÂ’s brother-in-law Moeen Al-Islam, Zahir Hussain, Rukhsana Saleem, Ahmed Mehmood, Batool Qureshi, Shabir Ahmed, Javed Noor, Khalid Khattak, Haroon Shaukat, Ameen-ul-Hussain, Ghulam Rasool, Gull Mohammad Rind, Tariq Iqbal Puri, Shahid Rasheed, Nasir Khosa, Inam Ullah Khan and Khalid Idrees.
The sources informed that the decision to file review petition in Supreme Court against the verdict would be taken after the return of Prime Minister Gilani to homeland from Bhutan.