Rejecting government's justification, the Supreme Court on Wednesday overturned promotions of 54 bureaucrats in Grade 22, saying that the object of good governance cannot be achieved by exercising discretionary powers, and even the Chief Executive of the country was bound to act in accordance with law.
"...notifications are declared hereby as having been passed without taking into consideration merits amongst officers promoted from BS-21 to BS-22 vis-à-vis the officers who have been left out from BS-21 to BS-22 particularly in view of the fact when there is no question mark on their eligibility and as a result whereof on account of issuance of the notifications Article 4,9 and 25 of the Constitution has been violated," said the judgement the court had reserved a few months ago.
The officers of BS-22 who were promoted in pursuance of above referred notifications, shall not be entitled to claim any benefits, perks & privileges availed on account of promotion because they shall be relegated to the positions which they were enjoying before their promotions vide notifications, referred to herein above, the court ruled.
In September last year, Prime Minister Yousuf Raza Gilani had reshuffled almost the entire top brass of bureaucracy, replacing over a dozen federal Secretaries and announcing changes in several other ministries by promoting a number of civil servants to Grade 22.
According to PM's decision 53 officers in BS-21 were promoted to BS-22 from 266 neglecting 213. If we look at Group-wise break up 21 out of 84 officials from DMG, 9 out of 43 from Police, 10 out of 41 from Secretariat, 1 out of 4 from Commerce and Trade, 2 out of 25 from Income Tax, 4 out of 30 from Audit and Accounts, 1 out of 4 from Information and 5 out of 35 officers from Foreign Office group were promoted.
The court also underlined the need for re-enactment of Rules (Appointment & Tenure of Post in BPS-22) saying it would be in the public interest as well as for sake of fairness and justness if the rules rescinded on 4th April, 1998 are re-inacted by the competent authority with any changes, modifications as deemed fit under the circumstances.
It is to be noted that in terms of Section 9(1)(b) and 9(2) of Civil Servants Act, 1973, the Civil Servants (Appointment & Tenure of Post in BPS-22) Rules, 1993 were framed but these rules were rescinded on 4th April, 1998.
Authored by Justice Chaudhry Ijaz Ahmed, the 41-page order on the case initiated by the court on an application of Tariq Aziz-ud-Din from the Foreign Service group said, "The object of good governance cannot be achieved by exercising discretionary powers unreasonably or arbitrarily without application of mind but with justness, fairness and openness following the command of the Constitution enshrined in different articles including Articles 4 and 25."
Therefore, once it has been accepted that the Constitution is the supreme law of the country, no room is left to allow any authority to make departure of any of its provisions or the law and the rules made thereunder. By virtue of Articles 4 and 5 (2) of the Constitution, even the Chief Executive of the country is bound to act in accordance with law and decide the issues after application of mind with reasons in view of law laid down by this Court in various pronouncements, the order said.
The order also noted that it is the duty and obligation of the competent authority to consider the merits of all the eligible candidates while putting them in juxta position otherwise the 3rd organ of the state could not survive as an independent organ.
The court observed that good governance is largely dependent upon the upright, honest and strong bureaucracy particularly in written constitution wherein important role of implementation has been assigned to the bureaucracy. Civil service is the backbone of our administration.
The purity of administration to a large extent depends upon the purity of the services. Such purity can be obtained only if the promotions are made on merits without showing any favouritism or nepotism in accordance with law and constitution, the judgement said.
Highlighting the need of rules, the order said that it is a time-tested recognised fact that institution is destroyed if promotions/appointments are made in violation of law. It will die automatically. The manner in which the instant promotions in the Civil Services have been made, may adversely affect the existence of this organ. Honesty, efficiency and incorruptibility are the sterling qualities in all fields of life including the Administration and Services.
This criteria seem to have been completely ignored in the instant case. 54 persons were promoted in complete disregard of the rules destroying the structure of the services and causing anger, anguish, acrimony, dissatisfaction and diffidence. No doubt petitioners/affectees officers had no right to be promoted yet in accordance with section 9 of the Civil Servants Act, 1973 they were entitled to be considered for promotion, it added.
Withholding promotion of an officer is a major penalty in accordance with the Civil Servants (Efficiency and Disciplinary) Rules, 1973, therefore, consideration of an officer for promotion is based not only on the relevant law and the rules but also on some tangible material which can be lawfully taken into consideration.
According to Article 4 of the Constitution the word "law" is of wider import which includes the duty of every public functionary to act in the matter justly, fairly and fair manner in the matter of advancement of their career is of paramount importance for good governance, otherwise his commitment to the job, dedication to duty, his power to take decision and even his integrity might be confined to casualty ward, the order added.