1991 PLP (C (PLC(CS))

In reply to this objection, learned counsel for the petitioners has asserted that by the impugned action, the respondent No. 1, has declared the petitioners as being unfit for promotion and such a dispute cannot be taken to the Punjab Service Tribunal in view of the proviso to section 4(2)(1)(b) of the Punjab Services Tribunals Act, 1974. According to the learned counsel, the eligibility of the petitioners to be promoted stands determined by the Punjab Local Government and Rural Development Department Service Rules, 1981 in which the posts of Assistant Director and Project Manager have been treated on equal footing and have been shown as being interchangeable. He submitted that respondent No. 1 has, however, by the impugned orders, deprived the petitioners of their right to be promoted by declaring them unfit to hold the posts of Assistant Directors or to be promoted as Directors. It was argued that the Secretary to the Local Government had no jurisdiction in law to change or modify the rules of service and the impunged actions are, therefore, void and coram non judice. It was emphasised that the impugned notifications proceed on mistaken assumption that it has been directed by the Punjab Services Tribunal to debracket the seniority list but in fact there was no such decision rendered by the Punjab Service Tribunal which had disposed of the appeal referred to in the impugned notifications in view of the pendency of the departmental representation. In order to substantiate his contentions as to the maintainability of this petition, the learned counsel has relied upon the following judgments:-- (i) Saghir Ahmad v. Federation of Pakistan PLD 1976 Lah. 287. (ii) Mujeebullah Aijaz v. Director-General Telephone and Telegraph Department and 2 others PLD 1980 Quetta 58. (iii) Iqan Ahmad Khurram v. Government of Pakistan and others PLD.1980 SC 153. (iv) Mian Amanul Mulk v. N.-W.F.P. through Chief Secretary PLD 1981 Pesh. 1. (v) Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 27 others PLD 1981 SC 137. (vi) Ikram Ullah Khan v. N.-W.F.P. through Chief Secretary and another 1983PLC(C.S.)812. (vii) Bashir Ahmad v. Khurshid ul Hassan and others 1983 P L C (C.S.) 1265. (viii) Mazhar Hussain v. Province of Punjab PLD 1985 Lah. 394; (ix) Muhammad Gul Kakar v. Province of Balochistan 1986 P L C (C.S.) 560; (x) Muhammad Azhar v. General Manager (Operation) Power, WAPDA PLD 1990 Lah. 352. (xi) Dr. Mrs. Suraya Durrani v. Secretary, Government of Punjab, Health Department 1990 P L C (C.S.) 313 and (xii) Muhammad Afzal and others v. The District Education Officer and others 1989 P L C (C.S.) 677.

6. It cannot be denied that the dispute in the present petition relates to terms and conditions of civil servants. However, according to the petitioners as the question of fitness to hold or to be promoted to a particular post is in issue, the matter cannot be dealt with by the Punjab Service Tribunal in view of proviso to section 4(2)(1)(b) and, therefore, the petition before this Court is maintainable.

7. The objection of the learned counsel for the respondents as to the maintainability of the petition is well-founded. It is to be seen that the impugned orders/ notifications have the effect of rendering the petitioners ineligible for promotion to the post of Director. The reliance of the learned counsel on the proviso to section 4(2)(1)(b) is misplaced. It is to be seen that the cases of the petitioners were never considered for promotion and as such, there is no question of their fitness or otherwise having been determined for promotion. The grouse of the petitioners is that by issuing the impugned notifications, respondent No. 1 has acted contrary to the Rules and has indicated that the Assistant Directors shall not be considered for promotion meaning thereby that the respondents have been held to be ineligible for promotion. In this view of the matter the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan becomes fully applicable. The learned counsel for the petitioners has himself relied upon the authority of the Supreme Court in Iqan Ahmad Khurram v. Government of Pakistan and others PLD 1980 S C 153, which negates the contention raised by him. In the precedent case, the Supreme Court was pleased to lay down that if by change of rules of service or policy prospects of promotion of civil servant are affected and he cannot be considered for promotion, the question does not pertain to fitness but to eligibility and, therefore, falls within the domain of the Service Tribunal. The learned counsel placed emphasis on the words "eligibility" and "fitness" as used by the Supreme. Court in the penultimate paragraph of its judgment but this interpretation being placed by the counsel upon this judgment of the Supreme Court cannot be accepted and with respect, these observations cannot be read out of context. The following observations of the Supreme Court leave no doubt that where the method of recruitment and promotion in supersession of the existing rules is altered, it affects the terms and I conditions, and appeal will lie to the Service Tribunal. ".... As to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others P L D 1976 Quetta 59 and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree. This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of .an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in supersession of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal lies to the Service Tribunal..." The learned counsel attempted to distinguish these observations by submitting that in the present case though the Rules on the subject have not been changed but by a subsequent order the effect of the Rules has been nullified. The distinction being pointed out by the learned counsel is specious. Whether the decision to exclude a category of persons from being considered for promotion is by the change in the Rules or by a subsequent order the effect of both is the same, namely, to make the affected persons ineligible for promotion.

8. In the present case by bifurcating the seniority list and further directing vide its notification issued on 5-4-1990 that the list of Assistant Directors shall serve as pool for selection/posting of the Assistant Directors, the petitioners have been rendered ineligible for promotion. Reliance of the learned counsel on other cases referred to by him is not apt, for, these cases have no applicability to the facts of the present case. Even otherwise in view of the pronouncement of the Supreme Court in Iqan Ahmad Khurram's case, I am in no position to rely upon the judgments cited by the learned counsel.

9. In Rana Muhammad Sarwar v. Government of Punjab through Services General Administration and Information Department and another 1990 S C M R 999, it was observed by the Supreme Court of Pakistan that the Service Tribunal has the exclusive jurisdiction to deal with the matter regarding terms and conditions of civil servants including abolition of posts and question of mala fides. In Aish Muhammad and 68 others v. Pakistan and 75 others 1985 S C M R 774 the Supreme Court was pleased to observe that when the matter does not involve the suitability but of eligibility the Service Tribunal has the exclusive jurisdiction. It was further laid down that when the matter involved breach of terms and conditions of service of civil servant by the Government it would fall within the exclusive jurisdiction of the Service Tribunal. It was also observed that fitness being essentially a matter of subjective assessment by the promoting authority which is not controlled by any rule or regulation, the aggrieved servant cannot complain that. his non-selection involved a breach of any of the terms and conditions of his service. If this distinction is kept in minds it becomes obvious that where the challenge is not to the assessment of the Promoting Authority, it cannot be argued that the matter involves suitability of a civil servant to hold or to be promoted to a higher post and as such outside the purview of the Punjab Service Tribunal. It may also be submitted that the bar of jurisdiction is, in such like matters, provided by the Constitution itself and has to be given full effect to. The Supreme Court in its recent pronouncement in the case of Abdul Wahab Khan v: Government of the Punjab and 3 others P L D 1989 S C 508 while referring to its earlier decision in the Superintendent of Police Headquarter, Lahore and 2 others v. Muhammad Latif P L D 1988 S C 387 has clearly spelt out the bar of jurisdiction of the High Court in service matters. Reference may also be made to Muhammad Sharif and others v. Secretary, Irrigation and Power Department, Government of the Punjab, Lahore and others 1981 P L C (C.S.) 562 wherein the distinction between `eligibility' and "promotion" has been succinctly brought out as under:-- "... There are numerous questions which are to be examined before ordering promotion of a civil servant. Some of these questions relate to his eligibility, seniority and fitness for promotion. Eligibility is to be determined with reference to law, rules and instructions spelling out the category of civil servants who are entitled to be considered for promotion. Seniority is to be looked into in view of the placement of a civil servant amongst his colleagues who, like him, are eligible for promotion. While examining the question of his fitness, what is to be considered is his suitability for promotion keeping in view his capacity to shoulder higher responsibilities, his past performance, reputation for integrity, sense of discipline etc. If in the promotion case of a civil servant the said three questions only arise for determination, the first one to be adverted to will be in regard to his eligibility for promotion. If he is found eligible for promotion, it will then be seen if he is the most senior amongst his colleagues who are also eligible for the purpose. In case he happens to he the most senior amongst them, it will be examined whether he is also fit for promotion. If he is also found fit for promotion he would be selected for promotion. But if he is not found fit, the fitness or otherwise of the next most senior civil servant, who is eligible for promotion will be considered for the purpose of his promotion. It was further observed that:- "Section 4 of the said Act does not oust the jurisdiction of the Tribunal in the matter or all questions relating to promotion. It is only the question of fitness for promotion which cannot be agitated before the Tribunal. As explained above, the petitioners have not been declared unfit for promotion due to any reason, such as general reputation for corruption, but have been found not eligible for promotion because they have not cleared the departmental examination. As stated above, the question of fitness for promotion cannot be gone into by the Tribunal but the question of eligibility for promotion can be determined by the Tribunal. This view was also recently expressed by a Division Bench of this Court in an unreported judgment delivered in Intra-Court Appeal No. 644 of 1981. Syed Ahsan Ali Bokhari v. Director of Labour Welfare etc .. In this view of the matter, it is clear that this petition before this Court is not maintainable in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and it is accordingly dismissed leaving the parties to bear their own costs. M.Y.H./1161/L Petition dismissed.