2001 PLP (C (PLC(CS))

SYED ZAHID HUSSAIN, J.

This is an Intra-Court Appeal against the judgment of a learned Single Judge passed in Writ Petition No.4404-S of 1991, which was disposed of with certain observations on 7-11-1992.

2. The appellant, who was an Executive Engineer (BS-18) in the Public Health Engineering Department, felt aggrieved of his supprsession when some other officers of his Department were promoted as Superintending Engineer, and filed 3 petition before this Court that he had wrongly been superseded, which petition, as mentioned above, was disposed of that the matter pertains to terms and conditions of his service and that:-- "The petitioner shall be at liberty to approach the appropriate Service Tribunal at appropriate stage for the redress of his The petition was disposed of that the grievance raised in the petition shall be looked into before passing of the final order.

3. It is contended by the learned counsel for the appellant that in view of the recommendations of the Selection Board, dated 8-10-1990, a Notification, dated 13-4-1991 was issued by the Government of Punjab, which was a final order. It is further contended by the learned counsel that the matter of fitness of a civil servant as to particular post does not fall within the jurisdiction of the Service Tribunal and only a petition before this Court is the remedy for him. It is contended that the Selection Board has wrongly and illegally declined to recommend him for promotion although he was fully fit for the same.

4. The learned Assistant Advocate-General, Punjab, on the other hand, contends that the Selection Board rightly declined to recommend the appellant for promotion and he was not found fit on the assessment of his record, as such, this Court cannot interfere with such an order of the competent Authority.

5. The appellant, who was one of the Executive Engineers, his case was submitted for selection and consideration for the rank of Superintending Engineer before the Provincial Selection Board, but was not found fit for promotion on consideration and assessment of his service record. In view of the fact that the recommendations of the Selection Board, which had been challenged by the appellant, had merged into a final order when Notification, dated 13-4-1991 was issued, it was a final in the matter. We have, therefore, heard the case on merits.

6. In order to determine the fitness of a person, to hold a particular post and to be promoted, the competent Authority is vested with the power and jurisdiction, to make assessment of the material. Such an assessment has been regarded by the Courts as subjective one. In Muhammad Aboo Abdullah v. The Province of East Pakistan and another (PLD 1960 SC (Pak.) 164), it was observed that:-- "So far as suitability for promotion to a particular post is concerned, the sole judge is the Government and Courts are unable to interfere except possibly in a case of proved mala fides." In Aish Muhammad and 68 others v. Pakistan and 75 others (1985 SCMR 774), it was held that fitness is essentially a matter of subjective assessment by the promoting authority. In Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553), the rule laid down in Muhammad Aboo Abdullah (supra) was followed and it was observed by noting clause (b) of the proviso to section 4 of the Punjab Service Tribunals Act, 1974 that as the matters of promotion were not justiciable before the Courts prior to the enactment of the Service Tribunals Act, 1974 recourse to the Service Tribunal in such matters was excluded. It was accordingly held that it could not have been the intention that the matter though excluded from the jurisdiction of the Service Tribunal "yet they should be within the Constitutional jurisdiction of this Court".

7. The three cases mentioned above had arisen out of writ petitions filed by the civil servant before the High Court and were dismissed by the Courts for the above view.

8. In Secretary, Government of Sindh, Education Department and another v. Syed Riyazul Hassan Zaidi and another (1986 SCMR 64), it was held:-- "That a civil servant has no vested right to promotion and prospects of promotion cannot be included in conditions of a service, was a settled proposition of law even before the enforcement of the Civil Servants Act, 1973. However, the provisions of section 9 of the said Act clearly postulate that promotion to a selection post can be made on the basis of selection on merit and to a non-selection post, on the basis of seniority-cum-fitness. On the plain reading of the section the criteria for making promotion to the higher grade implies a decision by the competent Authority according to the individual judgment of such authority. The underlying principle seems to be that seniority alone is not the determining factor for judging the suitability or fitness of civil servant for discharging the functions attaching to a post in the higher grade. An out side forum in the, very nature of thing cannot sit in appeal and review the judgment of the competent Authority regarding the fitness for promotion of a civil servant. This seems to be the philosophy underlying the embargo contained in clause (b) of the proviso to section 4 of the Sindh Service Tribunals Act, 1973, which provides that no service appeal shall lie to the Tribunal against such order of a departmental authority for purposes of promotion to higher post or grade. The case of Syed Noorul Hassan v. The Secretary, Ministry of Industries, Government of Pakistan Islamabad and others (1987 SCMR 598) had come up before the Supreme Court as a result of dismissal of appeal of the civil servant by the Service Tribunal qua his supersession. Relevant portion of the judgment is quite instructive and is reproduced hereunder:-- "Accordingly, it is not the element of seniority alone which is to be considered. Fitness is also an important consideration and has to co exist with seniority. We may emphasize that promotion cannot be demanded as of right and seniority by itself cannot confer any absolute right of promotion irrespective of other considerations It will be for the competent Authority to determine the suitability after an assessment of all relevant considerations such as seniority competence, rectitude annual confidential reports and none of which is less important than the other for the preservation of purity and efficiency m public service " (For emphasis some portions have been underlined by us) By nothing that the case of the civil servant had been considered by the Selection Board and he was not found fit on the basis of his past service record, the appeal was dismissed. In Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129), distinction between eligibility and fitness was noted by their lordships, and it was observed:-- "What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces and element of subjective evaluation on the basis of obiective criteria where substitution for an opinion of the competent Authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent Authority nor shared by the Court or Tribunal exercising supervisory iurisdiction m respect of eligibility and qualification." In Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539), it was reiterated after elaborate discussion on the subject that "the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent Authority is not possible by that of a Tribunal or of a Court. " The trend of the judicial authority on the subject, therefore, is fairly indicative that in a matter relating to the promotion of a civil servant it is the competent Authority alone which has the exclusive authority to determine the fitness or otherwise of a civil servant on the basis of subjective evaluation of the record of the civil servant and interference by any other forum (Tribunal or Court) as far as possible is not visualized. That appears to be the reason that the same has been kept out of purview of the appellate jurisdiction of the Service Tribunal even. What at the most a civil servant can claim is that he is entitled to be considered for promotion but has no right to be declared by the for promotion; that is a domain of the competent Authority alone.

9. In the present case, the case of promotion of the appellant was considered by the Provincial Selection Board, manned by senior civil servants, but they did not favourably recommend his promotion. There is no allegation of bad faith, malice or mala fide against any of the members of the Board or the competent Authority, it, therefore, cannot be successfully argued that he has been illegally superseded. Their view of the assessment of the record, cannot be substituted by the Court. In view of the dictum of the Supreme Court, there is no scope for interference with the decision of the Selection Board or the competent Authority, by this Court when there is not even a semblance of mala fide in the matter. As a result of the above, this appeal is dismissed with no order as to costs. Q.M.H./M.A.K.G-36/L Appeal dismissed.