The right to promotion

In general, all political parties uphold rule of law, respect the constitution and the right of both Houses of parliament as the core of any participatory democracy. They vehemently pledge unstinting support for such ideals, especially when in opposition. As they get to form the government, without exception almost all suddenly become 'responsible' and start denying citizens' right to information and rule of law.

Nevertheless, their rhetoric continues at all levels. Reforms are promised and at times introduced too. The wheel of injustice never stops. In one form or the other, what little weight rule of law used to carry with law enforcing agencies is deliberately ignored to flaunt authority. Too many Service Reform Commissions have been established and their considered reform packages enacted into rules. Only partial goods came out of these adventures. The older generation believes that if the bureaucracy were not polluted with politics, things would not have come to this impasse.

It has always been convenient for the ruling elites to shift the blame for bad governance to past governments and inefficient bureaucracy. There may be a lot of truth in pursuing this policy but the inefficiency among bureaucracy is disturbing and inexcusable. At the end, the bureaucracy – being the steel frame for the state structure – cannot be allowed to corrode.

The public admires the power attached with government offices and maligns the bureaucracy for the failure of government in parallel. As a result, the powerful bureaucracy does not really feel threatened or obliged to shed its colonial mould of a 'brown babu'. Those who claim to have the right skills, the right experience and stronger nerves to encounter broad based challenges the country faces want to reform the civil service.

A recent IHC judgment has apparently provided the fillip to the renewed attempt to reform the civil service structure without reforming the mindset required to overcome new challenges of those who are still caged in 18th century economic and judicial woes. The proposed new norm attaches scant importance to performance, merit and seniority while considering inter alia promotions for senior grades. On the contrary, the government is of the view that under-performers may be sacrificed for efficient officers.

Dr Ishrat Hussain said in an interview that the IHC judgment upheld the rules pertaining to the new promotion policy for Grades 19 to 21 and it is likely to give a boost to the implementation of civil service reforms approved by the cabinet. He underlined that the IHC concluded that promotion was not a vested right of a civil servant and had to be governed under the rules and criteria prescribed by the government from time to time and was therefore, within the exclusive jurisdiction of the competent authority. Interpreting the IHC judgment in this way ignores the huge body of laws that exists on the subject.

The government has the legal right to introduce changes in the service rules, evaluation criteria, training requirements and performance indicators and rules for removal from service etc. But it cannot deviate from the approved promotion criteria or apply it selectively. One has to keep in mind the IHC order that says, “The Central Selection Board members cannot be put on trial merely on the basis of vague assertions regarding mala fide of fact.” The “presumption of regularity, fairness and reliability of the proceedings and the subjective evaluation of the CSB cannot be interfered with except when mala fide is demonstrably shown to float on the surface of the record”. In light of these remarks, one wonders how the judgment has strengthened the CSB role in the promotion process. The IHC stated the obvious: that without any valid reasons, the opinion of the CSB cannot be considered biased.

The limit of power enjoyed by CSB for promotion from B-19 to B-21 or HPSB from B-21 to B-22 has been clearly defined. Also, Section 9(2)(a) of the Civil Servants Act, 1973 and the conclusive ruling of the Supreme Court in Tariq Aziz-ud-din’s case, promotion (to BS-22) can take place strictly and only on merit on the basis of criteria set forth for promotion. The Supreme Court has declared opinions not supported by service record as arbitrary, whimsical and discriminatory.

No doubt, the authority to promote officers to higher grade is vested with the executive authority; this authority can be exercised in accordance with the statutes of prevailing law and the settled principles in this regard. Another factor that higher courts have repeatedly emphasized in their judgments is merit. It is made clear that it is not to be judged on personal will and whims. Rather it has to be gathered from the officer’s track record. Further, the statutory power to promote and appoint a civil servant has to be guided by the mandatory provisions of Section 24-A of General Clauses Act 1897, which says that such powers “shall be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment.”

In the absence of any adverse finding or recommendation, the officer has an accrued right and genuine expectation to be promoted as per his/her seniority and performance. In case of denial of such right, not only must the reasons be recorded but it should also be supported by tangible material from the service record duly conveyed to the officer. Withholding of promotion not substantiated or confirmed by service record is tantamount to subjecting the aspiring officer to a major penalty that cannot be done without due process of law. Another common infringement is that the federation does not normally share the reasons for denial of promotion in violation of settled law laid down by the Supreme Court (W P No 1269 of 2015 Syed Ijaz Hussain vs Federation, ETC.).

The denial of due promotion to officers, despite them having fulfilled the criteria, where it exists, is not only against professional ethics but also a gross violation of the constitution. The Rules of Promotion to the Post of Secretary BS-22 and Equivalent Rules-2010 have gone a step further; they confirm a vested legal right to a civil servant serving in BS-21 for promotion. The HPSB may recommend or defer the promotion but this discretion is subject to the principles settled and provided in the many verdicts of the constitutional courts. Also, the dictates of law and transparency demand strict adherence to laid down promotion criteria and its uniform application. Intervention by the courts cannot be eliminated where no remedy is available to an aggrieved party.

The writer is a former ambassador, political analyst and advisor to CRSS, an

independent think tank. Email: mian.sana@gmail.com