' EJAZ AFZAL KHAN, J.--- Muhammad Rehman, petitioner herein, seeks issuance of an appropriate writ directing the respondents to consider him for promotion for the post of AB and AO, on the ground that, he after qualifying the prescribed examination, is eligible therefor.
2. Learned counsel appearing on behalf of the petitioner contended that where the petitioner after qualifying the required examination was eligible and as such his name should have been sent for being considered for promotion to the post of AB and AO. He next urged that this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, has the powers to issue the writ asked for, notwithstanding a thin line of distinction between the eligibility and fitness, especially when the highhandedness of the respondents, in not sending the name of the petitioner to the competent authority for being considered for promotion, is patent and palpable. Resort to the Service Tribunal, the learned counsel urged, cannot be had, when section 2-A, no more adorns the Service Tribunal Act and stands deleted in view of the dictum laid down in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others PLD 2006 SC 602. Section 17(1-B) of the WAPDA Act, 1958, the learned counsel submitted, too, cannot debar the entertainment of the instant petition, when it like section 2-A of the Service Tribunal Act, on account of its being repugnant to the provision of Article 260 of the Constitution also stands deleted, if seen in the light of the observations made in paragraphs 67, 68 and 69 of the aforesaid judgment. The learned counsel by referring to the case of Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another 2007 SCM R 682 contended that where a right has been conferred on an eligible civil servant possessing the prescribed qualification under section 9 of the Civil Servants Act, 1973 for being considered for promotion, he can seek his redress through a constitutional petition, if and when it is denied.
3. As against that, the learned counsel appearing on behalf of the respondents, contended that the reason for not forwarding the name of the petitioner for being considered for promotion was that he is not eligible for want of qualifying the prescribed examination. But as, the learned counsel concluded, he was not considered altogether, because of his being ineligible, the question of fitness or otherwise does not arise and as such this Court will have no jurisdiction.
4. We have gone through the record carefully and considered the submissions of the learned counsel for the parties.
5. Before we discuss the arguments of the learned counsel for the petitioner, it is worthwhile to see what are the disputes to be taken to this Court and what are those to be urged before the Service Tribunal. The relevant provision in this behalf is section 4 of the Service Tribunals Act, 1973 which is reproduced for the facility of reference and thus, reads as under:-- "4. Appeals to Tribunals.--- (1) Any civil servant aggrieved by any order whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal: ' Provided that---
(a) Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973, or any rule against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) No appeal shall lie to a Tribunal against an order, or decision of a 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; and (c)
(3)
(a) .
(b) ..
Explanation.--- In this section, "departmental authority" means any authority other than a Tribunal, which is competent to make an order in respect of any of the terms and conditions of civil servants.
6. A perusal of the above quoted provision would reveal that except an order or decision of the 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, all other orders or decisions relating to the terms and conditions of service can be assailed before the Service Tribunal. The record and the arguments addressed by the learned counsel for the petitioner reveal that the dispute urged before us is not as to fitness or otherwise of the petitioner for being promoted but one of his eligibility for being considered for promotion. In the former case he can come to this Court, if he despite being fit was not promoted in violation of law, excess or absence of jurisdiction or in colourable exercise thereof. But in the latter case, he can go to the Service Tribunal, if he was not held eligible for promotion and thus, not considered. It is not the case of the petitioner that he being eligible was considered for promotion and found unfit. His case, precisely, is that his name despite his eligibility was not forwarded to the competent authority for being considered for promotion. Quite obviously, a dispute of this type clearly and squarely falling within the ambit of section 4 of the Service Tribunals Act, can well be urged before the Service Tribunal and not before this Court under Article 199 of the Constitution. The moreso when the dispute about the passing of the prescribed examination by the petitioner being one of fact and disputed by the respondents, cannot be gone into by this Court while hearing a constitutional petition. In the case of Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539, the Honourable Supreme Court after considering a string of judgments held as under:- "We may point out that the question of eligibility and fitness have been treated differently by the Law-makers in the Civil Servants Act, 1973 and in the Act. In section 9 of the former Act, as pointed out hereinabove, a right has been conferred on a civil servant to be considered for promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to above section 9 of the above Act, the Law-makers in proviso (b) to subsection (1) of section 4 of the Act have not used the word "eligible" but have employed the word "fitness" or otherwise to be appointed or to hold a particular post or to be promoted to a higher post or cadre". In other words, the question of eligibility, which is a term of service by virtue of above subsection (1) of section 9 of the Civil Servants Act, 1973, has not been excluded from the purview of the jurisdiction of the Tribunal but the question, whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade, has been excluded."
7. This principle was also reiterated in the cases of Zafarullah Baloch v. Government of Balochistan and others 2002 SCM R 1056; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And others PLD 2004 SC 65; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.P. And 4 others 1999 SCM R 1605 and Tasleem Jan and others v. Muhammad Zaman and others 2005 SCM R 695. The case of Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another (supra), being in line with the judgments cited above, is another precedent in this behalf and thus, does not advance the case of the petitioner.
8. Next comes the argument of the learned counsel for the petitioner with regard to the deletion of 17(1B) of the WAPDA Act on account of its being repugnant to the provision of Article 260 of the Constitution. Before we appreciate the true import of this argument, we would like to refer to section 17(1B) of the WAPDA Act and then the relevant part of Article 260 of the Constitution which read as under:-- "17. Employment of Officers and servants.---
(1) .
(1A) ..
(1B) Service under the Authority is hereby declared to be service of Pakistan and every person holding a post under Authority, not being a person who is on deputation to the Authority from any Province, shall be deemed to be a civil servant for the purposes of the Service Tribunals Act, 1973 (LXX of 1973).
260. (1) In the Constitution, unless the context otherwise requires, the following expressions have the meaning hereby respectively assigned to them that is to say--- (a)
(b)
(c)
"Service of Pakistan" means any service, post or office in connection with the affairs of the Federation or of a Province, and includes an All Pakistan Service, service in the Armed Forces and any other service declared to be a service of Pakistan by or under Act of "Majlis-e-Shoora (Parliament) or of a Provincial Assembly, but does not include service as Speaker, Deputy Speaker, Chairman, Deputy Chairman, Prime Minister, Federal Minister, Minister of State, Chief Minister, Provincial Minster, Attorney-General, Advocate-General, Parliamentary Secretary or Chairman or member of a Law Commission, Chairman or member of the Council of Islamic Ideology, Special Assistant to the Prime Minister, Adviser to the Prime Minister, Special Assistant to a Chief Minister, Adviser to a Chief Minister, or member of a House or a Provincial Assembly."
9. A look at the above quoted provision of the Act would reveal that service under the authority was declared to be a service of Pakistan for the purposes of Service Tribunals Act. While a look at the relevant part of the Article quoted above, would reveal that service of Pakistan means any service declared to be. a service of Pakistan by an order or under an Act of Parliament. The service under the authority being declared to be a service of Pakistan by the Act of Parliament cannot be said to be repugnant to the provision of Article 260 of the Constitution by any stretch of reasoning.
Therefore, paragraphs 67, 68 and 69 of the judgment rendered in the case of Muhammad Mubeen-us-Salam and others v. Federation of Pakistan through Secretary, Ministry of Defence and others (supra) do not have. Even remote bearing on the above mentioned provision of the Act. The argument, thus, addressed appears to be misconceived and even unconscionable on the face of it.
10. Having thus, considered, we have no hesitation to hold that the provision of section 17(1B) of the WAPDA Act declaring the services of the Authority to be a service of Pakistan is neither deleted from the Act nor it is any way repugnant to the provision of Article 260 of the Constitution and that the dispute as to the eligibility of the petitioner being related to the terms and conditions of service can well be urged before the Service Tribunal, therefore, this Court has no jurisdiction to intervene. We, however, instead of dismissing this writ petition, treat it as an appeal by following the dictum laid down in the case of Muhammad Anis and others v. Abdul Haseeb and others (supra) and send it to the Service Tribunal for decision in accordance with law. This petition thus, stands disposed of.