LAHORE, Jan 11: A recent Lahore High Court judgment which holds that departmental examination and training is necessary for promotion to the next grade , has posed a question to the legality of the promotion of all the federal government officers from BPS 17 to 22 throughout the country since 1998.

Comprising Justice Chaudhry Ijaz Ahmad and Justice Syed Jamshed Ali, a division bench declared on Dec 12 last year that the amendment to the Civil Servants (appointment, promotion and transfers) Rules, 1973, through section 8-A, stipulated that no officer in BPS 17 to 22 shall be promoted without a written test, prescribed from time to time, and training.

The court dismissed the writ petitions of two Pakistan Railways officers of grade 16 who had challenged a letter circulated on May 6 last by the general manager that the P-71 training course at the Railways Walton Training School was must for promotion of officials.

Section 8-A was inserted in the 1973 rules on July 25, 1998, by the Establishment Division. But the federal government did not prescribe a curriculum nor a procedure for examinations and other legal requirements which it was supposed to for the officers in each basic pay scale.

Later, the federal government involved the Federal Public Service Commission, requiring it to evolve such curriculum for each pay scale and also work out procedures for examinations keeping in view the length of service of officers.

However, the Federal Public Service Commission has not so far been able to adopt a curriculum for officers in any of the pay scales. Consequently, no examinations were conducted till Aug 8, 2003 when the federal government withdrew the notification that required the Federal Public Service Commission to evolve the curriculum.

As a result, a legal anomaly emerged in a situation that the condition of departmental examination for promotions was retained without curriculum. No examinations were held even after the notification was withdrawn.

As for the Pakistan Railways, the PR board formulated a policy in 1989, making the training for P-71 course compulsory for promotion. This policy was also contested on the ground it was evolved unlawfully.

The LHC division bench observed that the circular letter of the Establishment Division issued on Aug 6, 2003, was legally valid and its applicability on railway officers did not suffer from any infirmity.

The decision that the railway officers would have to undergo P-71 training was communicated to all the officials and, as such, it was a competent directive, according to the judgment.

The outcome of the LHC judgment, as viewed by legal experts, is that the Establishment Division will have to seek the formulation of courses and curriculum because this is required by section 8-A of the Civil Servants (appointment, promotion and transfer) Rules, 1973. This is necessary because the government is ordained not to issue unguided instructions.

The experts cite the PLD 1993 SC 341 under which the Supreme Court has held that, "If the law clothes any statutory authority or functionary with unguided and arbitrary power enabling it to administer in a discriminatory manner, such law will violate the equality clause".