Full Judgment Text & Judicial Ruling

2005 P L C (C

2005 P L C (C.S.) 610 [Supreme Court of Pakistan] Present: Sardar Muhammad Raza Khan and Mian Shakirullah Jan, JJ TASLEEM JAN and others versus MUHAMMAD ZAMAN and others

Civil Petitions Nos.600-P to 602-P and 707-P to 709-P of 2004, decided on 31st December, 2004. (On appeal from the judgment dated 26-5-2004 passed by the Peshawar High Court, Peshawar in Writ Petitions Nos.81 of 2002, 279 of 2003 and 437 of 2002).

Constitution of Pakistan (1973)--- ----Arts. 199 & 212---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Constitutional petition---Civil service---Non-consideration of petitioner for promotion on ground of being ineligible challenged in Constitutional petition in High Court---Validity---Jurisdiction of Service Tribunal would be barred only where matter to be determined was fitness of a civil servant to hold an office---Fitness to hold an office was altogether different from eligibility to hold office---Where fitness of an officer to hold a higher post was a matter of comparative suitability in the light of quantification of performance as a result of subjective decision of competent authority based on objective principles, then same would relate only to his personal competence and performance on the job---Eligibility would relate purely to terms and conditions of service---Any right denied on basis of eligibility or otherwise could be challenged before Service Tribunal---Petitioner in Constitutional petition had asserted point of eligibility, which matter never related to fitness of an officer to hold a higher post---Only Service Tribunal had jurisdiction in such matter and not High Court---Supreme Court accepted appeal and set aside impugned judgment.

Mian Abdul Malik s case 1991 SCMR 1129 rel. Qazi Muhammad Anwar, Senior Advocate Supreme Court for Petitioners (in Civil Petitions Nos.601-P to 602-P of 2004). Hafiz Aman, Advocate Supreme Court on behalf of Advocate-General N.-W.F.P. for Petitioners/State (in Civil Petitions Nos.707-P to 709-P of 2004) and for Respondent/State (in Civil Petitions Nos.600-P to 602-P of 2004). Essa Khan, Advocate Supreme Court with M. Zahoor Qureshi, Advocate-on-Record for Respondent No.1 (in all Civil Petitions). Nemo for other Respondents. Date of hearing: 31st December, 2004.

JUDGMENT SARDAR MUHAMMAD RAZA KHAN, J.--- Leave to appeal is sought by the petitioners in all these petitions against the judgment, dated 20/26-5-2004 of a learned Division Bench of Peshawar High Court whereby, on acceptance of writ petitions filed by Muhammad Zaman, respondent, a direction was issued to Director-General, Agriculture Research N.-W.F.P., Agriculture University Peshawar to prepare a fresh joint list of Senior Research Officers irrespective of their functional group and seniority within the group and to undertake fresh process for filling of posts in question strictly in accordance with the N.-W.F.P. Agriculture Department (Recruitment and Appointment) Rules, 1981 with reference to Schedule-I for the appointment of Director/Coordinator Agriculture Research . 2. The relevant background for the disposal of present petitions is that Tasleem Jan, Dr. Nasir-ud-Din, Muhammad Rahim and Muhammad Zaman joined service in Agriculture University, Peshawar on different dates. Muhammad Zaman joined service in Grade 11, on 7-8-1967. Owing to the introduction of specialized fields in Agriculture and due to different subject specialities of the officers concerned, two functional groups were created. Different officers joined the group of their own speciality. They got promotions in their respective functional groups from time to time up to BPS-18 with designation of Senior Research Officers. 3. It is an admitted fact that due to different number of officers in the respective functional groups, the officers in the smaller group happened to get rapid promotion while those in the larger group remained slow. Accordingly, Tasleem Jan, Dr. Nasir-ud-Din and Muhammad Rahim got early promotion in BPS-18 while that Muhammad Zaman was delayed and so in BPS-18, strictly speaking, Muhammad Zaman ranked junior to the others. 4. As the phenomenon of pyramid administrative structure would require, one further promotion to the post of Director, Agriculture Research became available. All the eligible officers in the lower grade excepted to be so promoted. The promotion was accordingly ordered but Muhammad Zaman who had initially joined service on 7-8-1967, was not considered on the ground that he ranked junior to others among Senior Research Officers in BPS-18 and thus, not eligible despite his initial seniority with effect from 7-8-1967. He filed three writ petitions which were accepted, as stated earlier, and hence these petitions wherein the Government of N.-W.F.P. and Agriculture University, Peshawar also felt aggrieved. 5. Qazi Muhammad Anwar, learned counsel for the petitioner officers, assailed the impugned judgment on two-fold ground. Firstly, that the respondent Muhammad Zaman being junior to other officers in BPS-18 or among Senior Research Officers was rightly ignored by the competent authority and the High Court had no jurisdiction to direct the change and preparation of combined seniority lists despite the existence of two separate functional groups duly made by the competent authority. That all the officers had made voluntary options to join such groups in accordance with their subject speciality whereafter separate seniority lists were prepared in each functional group. That the officers in the relative functional groups got independent promotions up to BPS-18. That the petitioner officers were placed in BPS-18, five years ahead of Muhammad Zaman, respondent which seniority he never challenged according to law up to the present dispute. That seniority would be governed by section 8 of the N.-W.F.P. Civil Servants Act, 1973 providing that seniority in the grade to which a civil servant is promoted shall take effect from the date of regular appointment to a post in that grade. That according to this principle, for promotion to the post in BPS-19, the seniority of officers in the lower grade (BPS-18) would be considered as the sole criterion for promotion. 6. Mr. Hafiz Aman, learned counsel for the Government adopted the argument advanced by Qazi Muhammad Anwar while, Mr. Essa Khan, learned counsel for Muhammad Zaman, respondent took an opposite stance to the effect that Muhammad Zaman being senior in service in view of his initial appointment on 7-8-1967 would rank senior to all others in BPS-18 and hence would be eligible to be promoted. The learned counsel added that for promotion to BPS-19, combined seniority of all the officers in BPS-18 would be brought into consideration and that the competent authority had wrongly considered the separate seniorities of the functional groups in question, where, the officers of smaller group per chance happened to be promoted earlier. 7. The second attack of the learned counsel for the petitioners was that respondent Muhammad Zaman was not at all considered for promotion though claiming eligibility and, therefore, the bar placed by proviso (b)(1) of section 4 of N.-W.F.P. Service Tribunals Act, 1974, being not applicable, the remedy for the respondent was to have resorted to the Service Tribunal. That his having filed writ petitions was misconceived and in the prevailing circumstances the High Court had wrongly assumed jurisdiction. This objection hitting at the very root of jurisdiction assumed under Article 199 of the Constitution deserves a thorough probe. It is a fact proved from record with specific reference to paras. Nos.2 6, grounds (a) and the prayer part of the writ petitions that the respondent throughout alleged his eligibility of promotion in BPS-19 for which he was not at all considered by the competent authority. It is again an admitted fact that the competent authority had never considered Muhammad Zaman for promotion on the ground that he was not at all eligible. 8. Coming to section 4 of the N.-W.F.P. Service Tribunals Act, it places a bar of jurisdiction on the Service Tribunal only where matter to be determined is the fitness of a Civil Servant to hold an office. Fitness to hold an office is altogether different from eligibility to hold an office. Where fitness of an officer to hold a higher post is a matter of comparative suitability in the light of quantification of performance as a result of subjective decision of the competent authority based on objective principles, it relates only to his personal competence and performance on the job. On the other hand, the eligibility relates purely to the terms and conditions of service. Any right denied on the basis of eligibility or otherwise, can be challenged before the Service Tribunal. 9. A Full Bench of this Court in case of Mian Abdul Malik 1991 SCMR 1129 had categorically observed that . What is barred from the jurisdiction of Service Tribunal is the question of fitness of a civil servant for promotion and not the question of eligibility to promotion , and further that . Civil Court has no jurisdiction to determine eligibility of civil servant for promotion as the matter related to terms and conditions of service . 10. In view of the fact that respondent Muhammad Zaman had been considered not eligible for promotion by the competent authority, that he himself in his writ petitions had throughout asserted the point of eligibility, we are afraid it was only the Service Tribunal that had jurisdiction in the matter. As the dispute never related to the fitness of the officer to hold a higher post, the learned High Court had wrongly assumed a jurisdiction under Article 199 of the Constitution which, specifically, was barred under Article 212 of the Constitution. We hold consequently that the moot point between the parties was eligibility or otherwise of respondent Muhammad Zaman that could well be decided by the Service Tribunal. 11. All the petitions after conversion into appeals, are accepted and the impugned judgment of the High Court is set aside being without jurisdiction and being barred under Article 212 of the Constitution.

S.A.K./T-12/S Appeals accepted.

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