Sunday, 16 February 2014

Tariq Aziz promotion case on Employment Law

  Citation Name  : 2011  PLC  1130     SUPREME-COURT
  Side Appellant : TARIQ AZIZ-UD-DIN
  Side Opponent :

                        S. 9---Rules of Business, 1973, Rule. 15 (2) ---Constitution of Pakistan Art.184(3)---Human rights---Promotion from Basic Scale-21 to 22---Arbitrary procedure---Exercise of discretion by competent authority---Principle of transparency---Summary to Prime Minister----Procedure---Petitioners were civil servants working under Basic Scale-21 and were aggrieved of promotions of respondents from Basic Scale-21 to 22---Validity---It was mandatory under R.15(2) of Rules of Business, 1973, that a case should be submitted to Prime Minister for his orders based on self contained, concise and objective summary stating relevant facts or points for decision prepared on the same lines as those prescribed in the rules for summary of Establishment etc.---Secretary Establishment pointed out to Supreme Court that there was no practice prevailing for the last about 60 years for forwarding cases of promotion from Basic Scale-21 to 22 and subject to availability of vacancies, Prime Minister could call for the files for promoting officers and notification was issued of his/their promotion on receipt of directions from Prime Minister by Establishment Division, such past practice was followed in the promotion of respondents i.e. mandate of relevant rules was ignored---There was admitted non-adherence to Rules of Business, 1973, and Secretary Establishment sent files without any forwarding letter and cases of all officers totalling 267 were not sent in terms of R.15(2) of Rules of Business, 1973---Due weight was required to be given to Rules of Business, 1973, which had constitutional sanction, whereas while promoting respondents, mandate of law was uncondonably violated---Adopting such arbitrary procedure, not only injustice had been caused to officers who were otherwise senior and also had better case on merits but they had been deprived because there was nothing in black and white before competent authority---Such fact had brought case of petitioners in the area where discretion so exercised by competent authority could not be said to be in consonance with well known principle of fair play as cases of those officers who were not promoted their files were not before him, along with self-contained note by Secretary Establishment in terns of R. 15(2) of Rules of Business, 1973---To ensure justice and openness in view of rule of law, it was obligatory upon the competent authority to decide each case on merit taking into consideration the service record of the officers in Basic Scale-21 who were eligible for promotion to Basic Scale-22---Such aspect of the matter required application of mind based on consideration and determination  of merit in the light of material explicitly showing as to why officers who had been left out were not found to be competent / below in merit in comparison to those promoted to Basic Scale-22---Such consideration of case and determination  of merit for parity of treatment had become all the more necessary and in absence of considering candidature of left out officers, it would alone be tantamount to pick and choose and there was no transparency in exercise of discretion by competent authority---Manner in which promotions in civil service had been made, might tend to adversely affect existence of such organ---Honesty, efficiency and incorruptibility were sterling qualities in all fields of life including Administration of Services and such criteria ought to have been followed---Respondents were promoted in complete disregard of the law causing anger, anguish, acrimony, dissatisfaction and diffidence in ranks of services which was likely to destroy service structure---Although petitioners had no right to be promoted yet in accordance with S. 9 of Civil Servants Act, 1973, they were, at least, entitled to be considered for promotion---Right contemplated under S.9 of Civil Servants Act, 1973, was neither illusionary nor a perfunctory ritual and withholding of promotion of an officer was a major penally in accordance with Civil Servants (Efficiency and Discipline) Rules, 1973, therefore, consideration of an officer for promotion was to be based not only on relevant law and rules but also to be based on some tangible material relating to merit and eligibility which could be lawfully taken note of---Supreme Court set aside notifications of promotion of respondents and declared those of no legal. Consequences---Supreme Court directed "competent authority to consider cases of, all officers holding posts in Basic Scale-21 afresh in view of the observations made by Supreme Court---Respondents were not entitled for benefits, perks and privileges--Supreme Court recommended to ensure fairness, justness and the rules rescinded on 4-4-1998 to be re-enacted---Petition was allowed. 

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