Promotion of civil servants not vested right

ISLAMABAD: The Islamabad High Court (IHC) has ruled that since the promotion of bureaucrats is not a vested right, the constitutionally guaranteed right under Article 10A would not be attracted because it is relatable to the determination of civil rights and obligations. The Article 10A says in the determination of civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.

The judgment was handed down by a two-judge IHC bench headed by Chief Justice Athar Minallah on multiple petitions filed by officers who were superseded and were not promoted to grades 20 and 21.

The bureaucrats’ lawyers also questioned the fairness of the Central Selection Board (CSB) and the breach of principles of due process. They argued that the CSB ought to have confronted the aggrieved bureaucrats with the material that had adversely affected them.

The verdict authored by Justice Minallah said that the proceedings before the CSB were certainly not in the nature of conducting a trial. However, a candidate has indeed a right to be dealt with fairly. Fairness means to be impartial and to treat an individual without favoritism or discrimination. It is, therefore, obvious that unfairness or unfair treatment renders an action or proceedings mala fide or based on bad faith.

The ruling said the argument that it is the duty of the CSB to confront a candidate with material which adversely affects the formation of an opinion or may influence a subjective evaluation is misconceived. If this argument is accepted, then it will completely change the nature of the proceedings before the CSB. It will convert the proceedings from subjectively evaluating a candidate on the basis of objective criteria to that of the adjudication of a right.

“If this argument was to be accepted then the same principle would also apply to similar proceedings before other forums such as the Judicial Commission, Administrative Committees established in the High Courts, or the promotion boards set up in the respective branches of the armed forces. In the case of civil servants, it has been made mandatory under the law to disclose reasons. Fairness is embedded in the presumption of regularity and, therefore, unfair proceedings or action has to be established in accordance with the principles and law enunciated by the Supreme Court”, the verdict stated.

It stated there is nothing on record to even remotely suggest that the CSB or the competent authority – the prime minister - had acted unfairly, impartially, or that they were biased, had a grudge and/or their actions were tainted with vindictiveness. In case the aggrieved officers were in possession of sufficient material or were able to establish mala fide of law or fact then they could have approached the prime minister by filing grievance representations. In such an eventuality, he would have been empowered to review the decision and adopt any mode of enquiry as deemed appropriate in the circumstances, including obtaining information from sources.

The judgment said no such material has been brought on record in support of the vague and unspecific assertions made by the bureaucrats in the respective memorandums of petitions, or during the course of arguments, so as to rebut the presumption of regularity and fairness attached with the proceedings of the CSB.

“We have not been able to persuade ourselves that the CSB or the prime minister had acted in bad faith, with mala fide, or that the petitioners were treated unfairly. We have no hesitation in declaring that the presumption of regularity and fairness could not be rebutted. With the able assistance of the learned counsels, we have also carefully perused the reasons recorded in each case.”

The ruling said the reasons have been recorded in support of the subjective evaluation of the CSB. They cannot be subjected to judicial review. The IHC, while exercising jurisdiction under Article 199, cannot assume the role of an appellate court, nor can the subjective evaluation and opinions formed by the CSB be substituted. The disclosures were sufficient to inform the petitioners regarding the material considered for the subjective evaluation and forming of opinions. The CSB members cannot be put on trial merely on the basis of vague assertions regarding mala fide of fact.

The officers who had sponsored the petitions, had joined their respective occupational groups after they were appointed on the basis of a competitive selection process. They were initially appointed in grade 17 and thereafter, from time to time, promoted to higher grades. Some of them are in grade 19 while others in grade 20. They were eligible to be considered for promotion to the next higher grade and, therefore, their respective service dossiers and other documents were forwarded by the Establishment Division so that the record could be placed before the CSB. The CSB, after deliberation in each case, recommended supersession of the petitioners and consequently their cases were sent to the prime minister, for consideration of the recommendations. The premier, after satisfying himself regarding the reasons recorded by the CSB, gave his approval and consequently the petitioners stood superseded.