2002 PLP (C (PLC(CS))

Person eligible Conditions of eligibility 1 2 3 Preventive Inspector Collectorate of Customs (Preventive), Customs House Preventive Officer of Collectorate of Customs (Preventive), Customs House. At least 5 tears Continuous service in the grade of Preventive Officer. (5) Persons appointed by promotion shall be on probation for a period of one year. This period may, be curtailed for good and sufficient reasons to be recorded; or if considered necessary, it may, be extended for a period not exceeding one year as may be prescribed at the time of appointment. Appointment on probation shall be subject to the provisions of Article 6 of Civil Servants Act, 1973. (6) This is notification is issued with the Concurrence of the Establishment Division and supersedes the provision contained in para. 29 of the Cash and Accounts Preventive Inspector contained in the Central Board of Revenue's Letter No.1 (54) S.O.R. II. 62. dated the 8th March, 1963. He also extract support from the observation made in the case of Government of Punjab (1993 SCMR 1814 = 1993 PLC (C.S.) 1381 (supra) Mr. Rasheed A. Rizvi learned counsel for the defendant essentially agitated that a bar tinder Article 212(2) of the Constitution, 1973 read with section 4(b) of the Service Tribunals Act, 1973. It was contended that the question of eligibility in terms of section 9 of Civil Servants Act comes within the domain of Services Tribunal. According to him, seniority‑cum -fitness and out of turn promotion is question of eligibility as has been held in 1991 SCMR 1129 as followed in PLD 1994 SC 345 and PLD 1994 SC 539, learned counsel for the defendant also contended that the dicta laid down in 1993 SCMR 1814 = 1993 PLC (C.S.) 1381 are not attracted as according to him out of turn promotion under the Punjab Civil Servants tact are regulate; under section 8‑A of the Act, whereas, there is no such provision under the Civil Servants Act, 1973, it was further urged that in the case of Dr. Wasim Ismat (supra) the alleged misconduct was subsequent to the decision of the D.P.C. whereas in this case it is antecedent to the D.P.C., as regard the allegations of mala fide as detailed in paras. 12 to 15 of the plaint. Learned Counsel for the defendant states that answer is furnished by the case reported in PLD 1981 Karachi Page 299 wherein the question of mala fide was held by this Court to be also within domain of the Service Tribunal. It was contended by Mr. Rasheed A. Rizvi, that this Court cannot interfere with the departmental transaction while considering the case of promotion, as held in 1991 SCMR 1129 followed in PLD 1994 SC 345 and 539 it was further urged that even in case whether the Courts comes to the conclusion that the Service Tribunal has no jurisdiction, such fact will not give jurisdiction to the Court as held in PLD 1994 SC 345, according to him the question where the civil servant is to be considered in D.P.C. is again a matter which falls within the ambit of Service Tribunal and accordingly under Article 175 of the Constitution the jurisdiction is conferred by law and the Court will not itself assume jurisdiction in any matter. Before adverting to the merits of the case, I propose to decide the question of jurisdiction of this Court as urged by Mr. Rasheed A., Rizvi appearing for the defendant. Condition of eligibility for promotion of a Civil Servant to a higher post is dealt with under section 9 of the Civil Servants Act, 1973. It is settled law that criteria either for appointment or promotion are eligibility and fitness at the same time. In M. Rahim Khan v. Chief Secretary N.‑W.F.P. (1999,SCMR 1605 = 1999 PLC (C.S.) 1368) it was held by the apex Court that:‑‑ "Concept of eligibility implies a qualification to be appointed or promoted whereas that of fitness encompasses a person competence to be chosen or selected for appointment or promotion. The test for eligibility are objective and open to scrutiny by a judicial forum i.e. Service Tribunal. Fitness of a person to be or promoted to a particular post or grade involves a degree of subjective criteria and as an opinion so formed is not open to judicial review". Contention of Mr. Farough Nasim, learned counsel for the plaintiff, that outstanding meritorious performance as, recorded in narrative, above, alone earned, plaintiff a right to be promoted out of turn, in terms of S.R.O.266(I)79 and question of fitness is alien and not relevant. Argument in the first impression appears to be attractive but from bare reading of subject S.R.O. reproduced above, such impression is dispelled. Out of turn promotion, is departure from the general law of promotion as envisaged under. section 9 of the Civil Servants Act, which provides that a civil servant possessing prescribed qualification is eligible for promotion to a post for the time being reserved under the rules for departmental promotion. Promotion on selection post are made on the basis of selection on merits and on non‑selection post on the basis of seniority cum‑fitness, whereas, out of turn promotion is in fact accelerated promotion provided as an incentive, motivation or reward in appreciation or acknowledgment of some extraordinary, meritorious performance in discharge of duties by a public servant. Such out of turn promotion is regulated under law (e.g. section 8‑A in Punjab Civil Servants Act, 1974) or rules/scheme (as in this case) framed under the Civil Servants (Appointment Promotion and Transfer) Rules, 1973. Criteria, method and qualification for "out of turn promotion" of Preventive Officers of Collectorate of Customs (Preventive) Customs House having to their credit 5 years continuous service in such grade to the higher post of Preventive Inspector, Collectorate of Customs (Preventive) Customs House, as laid down under the S.R.O. 266(I) 79 are:‑‑ (1) Exceptional merit. (2) Outstanding performance. (3) Recorded in writing. (4) Good and sufficient reason'. (5) Consultation of appointing, authority within the Establishment Division. The candidate or incumbent aspiring for out of turn promotion in terms of S.R.O.266(I)/79 must possess all the above qualifying conditions to his credit, parameters for out of turn promotion as provided for under section 8‑A of Punjab Civil Servants Act, 1974 are different. Mr. Farough, on the ground of jurisdiction emphatically relied upon the judgment of Hon'ble Supreme Court recorded in the case of Raja Muhammad Iqbal (1993 SCMR 1814 = 1993 PLC (C.S.) 1381) to urge that matter relating to out of turn promotion falls. out of the jurisdiction of Service Tribunal. I have read the judgment carefully, the impression formed and canvassed by Mr. Farough is misleading, it is nowhere in the judgment ruled by the apex Court that such promotion falls out of the jurisdiction of the Service Tribunal. In the said case, facts were that Provincial Selection Board refused accelerated promotion on the ground that reporting officer never recommended accelerated promotion in A.C.Rs. for the last four years. The Service Tribunal, in appeal held that incumbent was entitled to out of turn promotion to next higher post/grade with effect from 29‑12‑1990.‑ In appeal by the Government the apex Court held that "the declaration made and the direction given by the Service Tribunal was not within the scope of its jurisdiction "No specific direction for out of turn promotion to the respondent, could have been issued much less from a specific date". The decision of the Selection Board, too, was held to be against the provision of section 8‑A of the Punjab Civil Servants Act, 1974 which, it was observed, did not envisage that the candidate must have at his credit at least four ACR's recommending him for accelerate promotion. or bat when his case was to be considered for out of turn promotion. It was further observed with reference to section 8‑A that this provision clearly laid lawn that out of turn promotion is to be granted to a particular individual, on the basis of the extraordinary and outstanding performance of his duty and exhibiting high standard of intellectual, moral and financial integrity. This criteria alone, it was held to be kept in views while considering the out of turn promotion case, but Provincial Selection Board did not advert to this aspect of the case which resulted in miscarriage of justice. The matter was remitted by the apex Court to the Provincial Selection Board for fresh decision in accordance with law. After remand by the apex Court; case was again rejected by the Provincial Selection Board. However, appeal was accepted by the Service Tribunal holding that the true purport of section 8‑A as highlighted by the apex Court was not kept in mind. It was further held that performance of a subordinate officer could be best adjudged by his next senior who is charged with the duty of making such assessment objectively and if the reporting officer and the Counter singing Officer both had agreed that officer really did some stupendous job and his performance was really example or extraordinary calling for reward in the form of an accelerated promotion "it may not be equitable to deny him fruition thereof on a view that the job might have been done by any given officer", such a view of the Service Tribunal was seconded by the apex Court in second round in the case reported as Government of Punjab v. Muhammad Iqbal 1997 PLC (C.S.)

435. I was also able, to lay my hands on the case of Muhammad Zafarullah v. Inspector‑General of Police (1992 PLC (C.S.) 1029) in this case the appellant hauled up a gang of smugglers who were also convicted by the Court, on recommendation of S.P. he was also awarded commendation and reward, but D.I.‑G. considered such commendation not sufficient, did not consider the recommendation for promotion. However, on the motion of the appellant he was admitted to such relief from 8‑6‑1982, appellant claimed entitlement from January 1980 from the date of recommendation as had beer. done with other officers who earned commendation. On the ground of discrimination appeal was allowed by the Service Tribunal, case of Muhammad Zafarullah (supra) was cited with approval in Chief Secretary, Government of Punjab v. Mumtaz Ahmed (1996 SCMR 1945). From the reading of the cases referred to above (i.e. 1993 SCMR 1814 = 1993 PLC (C.S.) 1381, 1997 PLC (C.S.) 435 and 1996 SCMR 1945, I was unable to read any ouster of jurisdiction of Service Tribunal nor was able to draw any distinction between regular promotion under section 9 of the Service Tribunals Act, 1973 or "out of turn promotion" under special provisions, rules, scheme or policy framed thereunder. In case, where the promotion is claimed either under section 9 of the, Civil Servants Act, 1973 or under the special provisions of the Act or rules or scheme or conditions framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 it is the appointing or competent Authority that is competent to determine the eligibility of the incumbent for promotion to a higher grade provided he qualifies die criteria laid down for such promotion or out of turn promotion as the case may be and then it is upto the DPC to recommend the incumbent such promotion to the competent Authority for the promotion otherwise. It is now settled law that dispute as to whether a Civil Servant is qualified for promotion to next higher grade, being relatable to terms and conditions of his service would squarely fall within exclusive jurisdiction of Service Tribunal. The question whether a person is legally promotion to the next higher post/grade is relatable to the factum whether he fulfils the requisites criteria or qualifies the test laid down in law or scheme governing such promotion, in case of Abid Mehmood v. Government of Pakistan 1997 SCMR 1154 Hon'ble Supreme Court affirmed the view that "the question of eligibility to be considered for appointment or promotion to a post related to the term and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a 'non obstinate clause. In Badurd Din v. Government of N.‑W.F.P. (PLD 1994 SC 345) the apex Court placing reliance on the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129) held that the question relating to determination of eligibility of a Civil Servant to a post is not outside the jurisdiction of the Service Tribunal constituted under Article 212 of the Constitution, therefore, as a necessary corralling such question could not be tried or gone into by a Civil Court. As has been observed by me, that there appears to be no distinction between the controversy whether it be a regular promotion under general law or out of turn promotion under some special provision or incentive scheme, both being question of eligibility to be determined accordingly in terms set out for each type of promotion under relevant law/rules, having held so, I am bound by law declared by the apex Court that eligibility to promotion, being question relatable to terms and conditions of service cannot be questioned before a Civil Court. Argument of Mr. Farough Naseem, that since the Service Tribunal has already declined to exercise its jurisdiction in the matter, therefore, this Court will have jurisdiction. Arguments are fallacious, the fact that learned Service Tribunal held that it had no jurisdiction, will not bestow Civil Court with any, jurisdiction to decide a controversy. Under Article 175(3) of the Constitution Courts exercise such jurisdiction as is conferred by law and under Article 212 ‑of the Constitution read with section 4(b) of Service Tribunals Act, 1973 exclusive jurisdiction is conferred upon the Service Tribunal against any order whether original or appellate in respect of any of the terms and conditions of his service and the jurisdiction of Civil Court is absolutely barred. From the record it appears that the plaintiff before waiting for the decision by the Service Tribunal rushed to this Court and filed the instant and during hearing of the injunction application Service Tribunal dismissed his appeal on the point of jurisdiction, it is not for this Court to advise the plaintiff to have filed a review before the Service Tribunal or to appeal against the decision as this Court cannot sit as a Court of appeal against any decision by the learned Service Tribunal and the remedy against the decision is provided for under the Services Tribunal Act, 1973 itself. Plaintiff may adopt any course as may be available to him under the law. Since I have held that this Court has no jurisdiction in the matter I refrain from expressing any opinion on merits of the case C.M.A. No.8750 of 2000 is allowed. Plaint in suit is rejected and the listed application C.M.A. No.8265 of 2000 is dismissed. However, under circumstances of case, there will be no order as to costs. Q.M.H./M.A.K./T‑22/K Plaint rejected