2005 PLP (C (PLC(CS))

The Petitioner who is admittedly a civil servant being a PTC Teacher through this Constitution petition has challenged the order, dated 12-2-2004 passed by respondent No.1 promoting respondent No.4 and ignoring the petitioner's entitlement claiming herself as senior to respondent No.4. She has further sought direction to respondent No.1 that she be promoted as SV/EST Teacher being eligible, fit and senior in all respects.

2. When report and parawise comments from respondent No.2 were called they in their report and parawise comments have expressly stated as under:-- "That promotion orders in favour of respondent No.4 have already been cancelled/withdrawn. However, under Government Policy/Rules regarding the promotion of the petitioner will be considered on merit amongst the others in near future."

3. In view of the report of respondents Nos.1 and 2 expressly stating about the withdrawal of promotion order of respondent No.4 the writ petition to this extent has 'become infructuous. However, as far as the prayer of the petitioner that direction be issued to respondent No.2 for the promotion of petitioner for SV/EST Teacher being eligible fit and senior in all respects to respondent No.4 is concerned I am afraid this Court while sitting in Constitutional jurisdiction can hardly grant such relief. It is established principle of law that question of determination of eligibility before determining fitness for promotion is one which exclusively falls within the phrase terms and condition of service and the same can only be agitated before the Service Tribunal and the jurisdiction of this Court in such-like cases is expressly barred by Art.212 of the Constitution.

4. In the case of "Mian Abdul Khaliq v. Dr. Zubair Ahmad Siddiqui" (1991 SCMR 1129) and "Ahmad Salman Waris v. Nadeem Akhtar" (PLD 1997 SC 382) the Hon'ble Supreme Court expressly held that the question of eligibility is primarily the terms and conditions of service and, therefore, such a dispute was exclusively cognizable by a Service Tribunal.

5. When confronted with this proposition learned counsel for the petitioner submitted that the petitioner could only approach the Service Tribunal when final order has been passed by the Competent Authority. The contention of the learned counsel for the petitioner prima facie is correct yet the answer is that if the petitioner feels that her case for promotion is not being considered by the Competent Authority and the matter is being kept pending unnecessarily she may make representation to this effect to the Competent Authority and in case if the Competent Authority does not decide the same within 90 days the petitioner is free to file appeal before the Service Tribunal under section 4 of the Punjab Civil Service Tribunals Act 1974. In the case of "I.A. Sharwani and others v. Government of Pakistan Secretary, Finance Division, Islamabad and others" (1991 SCMR 1041, the Hon'ble Supreme Court held that if a statutory rule or a notification adversely affects the terms and conditions of a civil servant, the same can be treated as an order in terms of S.4 (1) in order to file an appeal before the Service Tribunal. It was further held that Service Tribunal will have jurisdiction in a case which is founded on the terms and conditions of the service even if it involves the question of violation of the Fundamental Rights. The petitioner if she feels that promotion is her fundamental right (though not legally so) she may approach the Service Tribunal by voicing grievance against the violation of such right. At least this Court while sitting in Constitutional jurisdiction cannot issue any direction to the Competent Authority to promote petitioner in preference to other persons who may also stand on equal footing: It is within the jurisdiction of the Competent Authority to determine the eligibility of a civil servant and then to decide whether such civil servant is entitled to promotion or not because while considering the case of promotion not only seniority but fitness is also to be considered and the same can only be decided by the Competent Authority after considering the service record of a civil servant.

6. For what is stated above this writ petition is not maintainable being barred by Art.212 of the Constitution of Islamic Republic C of Pakistan and the same is dismissed in limine. However, the petitioner if she feels that she has a genuine grievance she may move application to the Competent Authority for the consideration of her case about promotion and the Competent Authority shall definitely attend to the grievance of the petitioner within the frameworks of law. S.A.K./R-143/L Petition dismissed.