SH. HAKIM ALI, J.--- Through the instant judgment, I intend to dispose of the following writ petitions because of their common origin, common fact and common points of law involved therein:-
(i) W.P.No.3698 of 2004/MN (Mirza Muhammad Arshad vs. E.D.O (R) Lodhran and 7 others.
(ii) W.P.No.3849 of 2004/MN (Muhammad Khizar Hayat vs. E. D.0 (R) Ladhran and 7 others.
(iii) W.P.No.3830 of 2004/MN (Rana Muhammad Jamil and another vs. E.D. 0 (R) Lodhran and 7 others.
(iv) W.P.No.4011 of 2004/MN (Shamshad Ali vs. D.C.O. Lodhran an 2 others.
2. In all the above-noted cases, writ petitioners are challenging the vires of order dated 16.6.2004, passed by respondent No.1, Executive District Officer (Revenue), Lodhran on the basis of recommendation/selection forwarded by the Departmental Promotion Committee, Lodhran for the promotion of Patwaris to the post of Kanungo, and seeking declaration of holding it to be illegal, unlawful and without unlawful authority. As per contents of writ petitions, the Executive District Officer (Revenue), Lodhran/respondent No.1 through letter No.418 dated 10.5.2004, had asked the District Officer (Revenue), Lodhran to forward all the record containing ACRs, personal files and seniority list of Patwaris to his Office as the meeting of the Departmental Promotion Committee was going to be held on 14.6.2004. The above convened meeting was held on 15.6.2004 by the Departmental Promotion Committee, Lodhran and the following Patwaris were promoted/selected in BS-9 (2410-145-6760) w.e.f. 15.6.2004:-
(i) Mr. Muhammad lqbal son of Muhammad Ahmad.
(ii) . Mr. Muhammad Bakhsh son of Ghulam Qadir.
(iii) Mr. Muhammad Saleem son of Siraj Din.
(iv) Mr. Allah Bakhsh son of Ghulam Qadir.
(v) Mr. Allah Dad son of Ghulam
(vi) Mr. Akbar Ali son of Faiz Muhammad and
(vii) Mr. Zafar lqbal son of Abdul Raful.
The above-mentioned Patwaris, who were selected as Kanungos, were appointed through order dated 16.6.2004 against the place of postings mentioned in that order, by the Executive District Officer (Revenue), Lodhran. This order caused annoyance to the writ petitioners, the Patwaris, who had claimed seniority-cum-fitness but were ignored and persons who were junior to them but were promoted, so they filed the above-noted petitions.
3. Learned counsel appearing on behalf of the writ petitioners, by stating the facts, has given the following resumes:- "In Writ Petition No.# 3698/MN, as per learned counsel, except respondent No.2/Muhammad lqbal, Kanungo all other respondents/selectees were junior to writ petitioner while respondent No.6. Allah Dad, respondent No.7, Rana Akbar Ali and respondent No.8, Zafar lqbal had only participated in the Kanungo course examination but the result had not been declared as yet but they were considered and selected as such. Making grievance to this manner and method of selection, it has been stated by the learned counsel that persons who had still not passed the examination, could not be entered into seniority list showing them to have passed the examination, and the consideration of their case was the clear partiality on the part of Officer, preparing the seniority list as well as the Departmental Promotion Committee selecting them. The seniority list was incorrectly prepared and it could not be termed as a fair and transparent/promotion and it was liable to be cancelled and declared illegal.
In all the other writ petitions, the same grievance with difference of the persons who were not senior to the writ petitioners and were promoted, was agitated.
It has also been argued by the learned counsel that in the comments which have been submitted by District Co-ordination Officer, Lodhran, it has been admitted that the claim of Shamshad Ali, petitioner was correct and list was liable to be cancelled as the prayer of the writ petitioners was fair and just.
4. Replying to the submissions of learned counsel for the petitioner, learned counsel appearing on behalf of the respondents, at the very outset, has raised the following objections:-
(A) The Executive District Officer (Revenue) was the competent authority and District Co-Ordination Officer, Lodhran had nothing to do with the promotion of Patwari. Referring to Rule 16 of the Punjab District Government (Rules of Business), 2001 it has been stated by the learned counsel that the District Coordination Officer, Lodhran does not figure any where in that Rule.
(B) According to Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the matter relates to "Terms and Conditions" of a civil to entertain or adjudicate upon the matter in dispute.
Learned counsel has referred to the following decisions for this proposition:-
(i) 2003- SCMR 1241 (Superintendent Engineer Highways Circle, Multan and others vs. Muhammad Khursheed and others).
(ii) 1999 SCMR 2828 (Sarfraz Ahmad Hiraja vs. WAPDA and others).
(iii) 1999 SCMR 2186 (Sajjad Ahmad Javed Bhatti vs. The Secretary, Estab shment Division and 11 others).
(iv) 2004 SCMR 145 Nazakat All ,v/ WAPDA through Manager and others ).
(v) 2004 SCMR 35 (Zia Ghafoor Piracha vs. Chairman Board of Intermediate and Secondary Education, Rawalpindi and others
(vi) 1997 PLC (CS) 412 (Province of Punjab vs. Shah Muhammad Chaudhry).
(vii) 1997 PLC (CS) 77 (Govt. Of the Punjab vs. Rana Ghulam Sarwar Khan and others.)
(vii) NLR 1995 Service 1 (Dr. Naeem Akhtar vs. Dr. Ahmad Salman Waris, etc.)
(ix) NLR 1995 Service 89 (Abdul Wakeel Malik vs. Ashfaq Ahmad Qureshi.)
(C) Clause (b) of sub-section (2) of section 8 of the Punjab Civil Servants Act, 1974 provides that in the case of non-selection post, promotion has to be made on the basis of seniority-cumfitness. So, the power was vested with the concerned Officer to select proper persons on the basis of seniority-cum-fitness and as Departmental Selection Committee has selected appropriate candidates, therefore, the matter requires factual inquiry as to whether the persons selected were promoted or not, which controversy cannot be undertaken in the writ jurisdiction. So, the writ petitions were not competent.
5. Learned Addl.A.G has supported the arguments of the learned counsel for the respondents by adding a citation: PLD 1994 SC 539 (Muhammad Anis and others vs. Abdul Haseeb and others).
Referring to para 15 of the judgment of the Hon'ble Supreme Court, it has been stated by the learned Addl. A.G that the Service Tribunal had the exclusive jurisdiction with regard to the appointment or promotion. So, the writ petitions were not competent.
6. Replying to the arguments of the learned Addl. A.G. And learned counsel for the respondents, it has been stated by learned counsel for the petitioners that according to Section 4 (b) of the Service Tribunal Act, 1973, the words are that "no appeal shall lie to a Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold .a particular post or to be promoted to a higher grade". Basing his arguments on this clause (d) of Section 4 of the Service Tribunals Act, 1973, learned counsel has argued that the promotion to a higher grade does not fall within the jurisdictional compass of Service Tribunal, therefore, the petitioners has got no other remedy except to approach this Court for the redressal for of their grievances. He has also given a long list of citations i.e., 1997 PLC (CS) 319 (Ateeq Khanzada vs. The Secretary (Education), 1997 PLC (CS) 127 (Muhammad Ahsan-ul Haq vs. Secretary to Government of Pakistan, Ministry of Interior, Islamabad and 11 others) 1990 SCMR 927 (M.A. Rafique vs. Managing Director , (Powers) WAPDA and 7 others) and 1995 PLC (CS) 151 (Muhammad Raees (Azam) vs. Government of Balochistan through Chief Secretary, S&GAD). On the strength of these authorities, learned counsel has stated that this Court has got the jurisdiction to declare the impugned order dated 16.6.2004 of respondent No.1/EDO (R), Ladhran, to illegal and unlawful.
7. The hearing of arguments, perusal of record, the survey of law on the subject, the survey of cited authorities, and their analysis has brought me to conclude with the following results:-:
8. The most important question for resolution in these writ petitions is as to whether this Court has got jurisdiction to upset the selection made by the Departmental Promotion Committee and the consequent order dated 16.6.2004 passed for the promotion of the patwaris as Kanungo, by the E.D.O. (R), Lodhran. The wording of Clause (d) (i) of Section of 4 of the Service Tribunals Act, 1973, are of vital importance which are as under ............................ An order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade".
(Underlining is mine) Whether the cases of writ petitioners fall within the ambit of this clause or not? To consider the meaning and connotation of these words "Determining the fitness" The apex Court has expounded and has laid down the criteria for making the differentiation between the words "Eligibility" and "Fitness" in PLD 1994 SC 539 (Muhammad Anis and others vs. Abdul Haseeb and others). Unfolding the meaning of eligibility, it has been set down by the Hon'ble Supreme Court that question of eligibility relates primarily to the terms and conditions of a Civil Servant and their applicability to the Civil Servant concerned, while the question fitness is a subjective evaluation on the basis of objective criteria which substitution for an opinion of the competent authority is not possible by that Service Tribunal or of a Court. So, when there is a question of eligibility, then Service Tribunal has got jurisdiction but in the case of question of fitness, it does not lie with the Service Tribunal to decide the question of fitness of a civil servant to be appointed, promoted or to hold a particular post. When any civil servant challenges the fitness of an official/rival, to hold a post or to be not fit to be appointed in comparison to him, in such an event the jurisdiction of this Court comes into operation and applicability of Articles 212 of the Constitution of Islamic Republic of Pakistan, 1973, barring the jurisdiction of this Court vanishes and cannot be made applicable to a case. Viewed from this angle and perspective and criteria laid down by the Hon'ble Supreme Court in the above noted citations, the case of petitioners falls within the confines of the determination of fitness and takes away the jurisdiction of the Service Tribunal to adjudicate upon that dispute through an appeal to be filed by the civil servant. The cases of the petitioners that in the matter of promotion they were to be promoted as compared to the junior patwaris who were not fit to be promoted, the allegation that respondents Nos.6, 7 and 8 had not passed kanungo examination at the time of preparation of seniority list of the patwaris of the post of Kanungo, the inclusion of their names therein, was arbitrarily-made and that these persons were not fit to be considered or promoted, cannot be lost sight of by this Court. No cogent reason has been adduced, as the why these petitioners, who were admittedly seniors from some of the respondents, were ignored and so to why and how the juniors were promoted. If the reason was that the ACRs or other documents were not completed, so their cases were not considered, this ground could not be allowed to be made a sole foundation to deprive the petitioners from being considered, to be promoted, because the duty to fill up the ACRs lies with the superior Officers. The remissness of superior cannot be made a ground to deprive a civil servant and on this basis their Eases could not be ignored from consideration. Before.
Preparation of list for candidates to be considered for promotion, sufficient period for filling and submission of ACRs was to be granted to the officials, if it was not submitted already well in time or had missed due to some reason..Therefore after perusal of decision above- noted and relying upon PLD 1994 SC 539 (Supra). I consider it a fit case for exercise of jurisdiction conferred upon this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
9. Consequently, the order dated 16.6.2004 passed by E.D.O. (R), Lodhran on the recommendation of Departmental Promotion Committee is held to be illegal and unlawful and the E.D.O. (R). Lodhran is directed to order the preparation and completion of service record of all the candidates/officials of revenue department (Patwaris) who were qualified at the time of convening of earlier Departmental Promotion Committee and then to reexamine/reconsider the cases of the petitioners alongwith other qualified respondents, by the Departmental Promotion Committee and for fresh decision, keeping in view the rules, regulations and the law on the subject within shortest possible time. With this direction/observation, the writ petitions are accepted but with on order as to costs.
Petition Accepted.
2005. C.L.R. 602 [Lahore] Present: SAYED ZAHID HUSSAIN, J.
Abdul Jabbar Versus Syed Athar Bokhari and others F.A.O. No. 407 of 2002, decided on 22nd May, 2003.
Civil Procedure Code (V of 1908)- ---S. 104, O.XL1, R. 2, 0. XXX1X, Rr. 1,2---Specific Relief Act, 1877, S.12---Status quo, grant of---Deposit of amount, condition of---Along with suit for specific performance against cons ling respondent, appellant filed an application for restraining respondents from alienating disputed property which was dismissed---First Appeal from impugned order in High Court---Validity---Ends of justice would be met by restraining said respondent from alienating the suit property subject to deposit of said amount which amount would be invested in the profit bearing scheme of National Saving Centre to be distributed to the party entitled at the conclusion of Trial---Ordered accordingly.
(Para 3)
For the Appellant: Saeed-uz-Zafar, Advocate.
For the Respondent: Agha Syed Najam-ul-Hassan Zaidi, Advocate.
Date of hearing: 22nd May, 2003.
SAYED ZAHID HUSSAIN, J.--- A suit for specific performance was instituted by the appellant on the basis of a receipt dated 28.10.1999 purported to have been executed/issued by respondent No.1 that he agreed to sell the suit property for a consideration of Rs. 1,68,00,000/-. Alongwith the said suit an application for the grant of temporary injunction was filed that the respondents should be restrained form alienating the property pending the suit. The said application has been rejected by the Trial Court in view of the denial of execution of any such agreement/ receipt by the respondents/defendants.
2. It is agreed by the learned counsel for the parties that the property subject-matter of the suit is owned by two brothers whereas prima facie the receipt relied upon by the appellant/plaintiff bears the alleged signatures of only one of them namely Syed Athar Hussain Bokhari. Realizing the legal implication the learned counsel for the appellant states that the appellant/plaintiff would not press the claim qua the share of respondent No. 2/Syed Tahir Subtain Bokhari. It is, however, suggested by him that the suit before the Trial Court is pending for about 2 years and by ordering maintenance of status quo and on deposit of the proportionate alleged price, the Trial Court can be directed for the disposal of the suit expeditiously. The learned counsel for respondents Nos. 1 and 2 vehemently disputes the execution of the agreement/receipt relied upon by the appellant/plaintiff. It is, however, submitted by him that except a part of the suit property measuring 25 marlas, which has already been agreed to be sold in favour of respondent No .4, the respondents/defendants do not intend to alienate the property. It is, however, suggested by him that for the grant of status quo or a restraint order against the defendants/respondents, the appellant should be burdened with the condition of making deposit of the proportionate alleged price to show his bona fide.
3. Keeping in view the respective stance of the learned counsel for the parties and the circumstances, I consider it appropriate that the ends of justice would be met by restraining, respondent No. ,1 from alienating the suit property, subject to the above qualification, noted in the earlier part of the order and the appellant/plaintiff should make deposit of a sum of Rs. 81,00,000 (stated tentatively by the learned counsel for the appellant) within one month before the Trial Court, which amount shall be invested in a profit bearing scheme of National Saving Centre, to be disbursed to the party found entitled at the conclusion of the trial. ,It is directed that the Trial Court will take expeditious steps for disposal of the suit preferably by the end of this year. It is clarified that any observation contained in the order of the Trial Court or of this Court, will be construed as of tentative nature.
The appeal stands disposed of in the above terms. .