' ATTAULLAH KHAN, J.--- Through this constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner Rast Baz Khan, Deputy Public Prosecutor prays that respondents be directed to issue corrigendum in Notification No, SO(Prosecution)/HD/1- 10/2008/Vol-IV , dated 14-11-2008 by incorporating the name of the petitioner at serial No, 33 and further direction to respondents to consider the Notification dated 8-12-1983 for the purpose of length of service of the petitioner for promotion in BPS-18.
2. The brief facts giving rise to the instant petition are that the petitioner joined the Police Department in the year 1984 and on separation of Prosecution from the Police Department, the services of the petitioner were placed at the control of Secretary to Government of N.-W.F.P. Law, Parliamentary Affairs and Human Rights Department, Peshawar in the year 2002. In the year 2004, the Prosecution Branch was transferred to Home Department. In the year 2003 the petitioner appeared in the test and interview of N.-W.F.P. Public Service Commission for the post of Additional Public Prosecutor (BPS-17) and stood first in the merit list but because of some adverse remarks in the Annual Confidential Report, the petitioner's name was dropped from appointment against which the petitioner filed Writ Petition No,244 of 2004 which was allowed. Thereafter, some posts of BPS-18 were sanctioned which were to be filed by promotion vide Notification dated 14-11-2008, 32 officials were promoted from BPS-17 to BPS-18 but the petitioner was not considered for promotion.
3. Learned counsel for the petitioner argued that in spite of the fact that the petitioner was fully qualified for promotion to the post in BPS-18 but he was not considered for promotion. According to the learned counsel, the respondents concerned have violated Article 25 of the Constitution of Islamic Republic of Pakistan, 1973 by discriminating him. The learned counsel has prayed that the petitioner be considered for the promotion by taking into consideration the Notification No,SORI (S&GAD)-1/29/75 dated 8-12-1983.
4. On the other hand, the stand of learned Deputy Advocate General is that this Court has got no jurisdiction because the matter relates to terms and conditions of service and the jurisdiction vests with the Provincial Service Tribunal. The other main point raised on behalf of the respondents is that at the relevant time, the requisite length of service of the petitioner was not complete, therefore, the competent forum did not take into consideration the promotion of petitioner.
5. We have considered the submissions of learned counsel for the parties and perused the available record in the light of which our discussion is as under:--
6. We would first discuss the issue regarding length of service. Copy of above referred Notification dated 8-12-1983 is on file. We have perused this Notification which discloses that one half of the service in BPS-16 and 1/4th of service in BPS-15 and below of persons already in Government service will be counted as service in BPS-17 for completing length of service for the purpose of promotion.
The comments of respondent No,4 show that this Notification has not been taken into consideration at the relevant time. In this way, they have not counted the length of service of the petitioner for the purpose of promotion. Admittedly, the petitioner served as Govt. Servant for about nine years in BPS-16 and then for a period of five years in BPS-17. If this period is calculated in the light of Notification issued by Services & General Administration Department on 8-12-1983, he would become eligible for promotion in BPS-18. The required service is five years for promotion to BPS-18.
The final seniority list shows the petitioner at serial No,65(37). This also shows his date of entry into service. Another Notification issued by Home and Tribal Affairs Department, Government of N.- W.F.P., Peshawar is available which was issued on 18-3-2009. Through this Notification, approval was given to the appointment of the petitioner as Deputy Public Prosecutor with effect from 14-2- 2004 instead of 11-7-2006 in the light of judgment of this Court dated 10-5-2006. If this period is counted, the petitioner would become qualified due to length of service because as per Para-8 of the comments of respondent No,4, the reason for non-consideration of the petitioner for promotion was that requisite length of service was not complete at the relevant time. As discussed above, the length of service of the petitioner is complete, therefore, his case is fit for consideration for promotion.
7. As far as second issue is concerned, it relates to the jurisdiction of this Court. According to the learned Deputy Advocate-General, the matter relates to terms and conditions of service of the petitioner, therefore, the constitutional petition is barred. On the other hand, the contention on behalf of the petitioner is that the matter does not concern terms and conditions of service but relates to eligibility to promotion. In this case, the issue relates to the question of fitness of a civil servant for promotion which does not come within the ambit of Service Tribunals Act and hence, its jurisdiction is barred. We may refer to PLD 2008 SC 769. In another case law reported in 2007 PLC (C.S.) 669, the above principle regarding jurisdiction of Service Tribunal has been discussed and it has been held that:-- "In view of the above discussion, this Court without any hesitation has inferred that the Board has not applied its proper judicious mind to the petitioner's case. The case of the petitioner is not covered within the terms and conditions of a civil servant, the appeal is not competent before the Service Tribunal against the decision/order of the Departmental authorities, determining the fitness or otherwise of the officer for promotion to higher post. In this context, a reference can be made to the case of Shafi Muhammad Mughal v . Secretary Establishment Division and others 2001 SCMR 1446."
' Similar principle has been given in 2009 PLC (C.S.) 297 in case of Irfan Ali Abbasi v. Director- General, Lahore Development Authority 2009 PLC (C.S.) 440 the writ petition was entertained in the case of petitioner relating to withholding his promotion.
8. Keeping in view the above discussion and the case law, we are of the view that the matter in issue relates to eligibility and determination of fitness of the petitioner for promotion, therefore, it does not come within the ambit of Service Tribunal and the constitutional petition is maintainable.
9. We are of the opinion that the petitioner was otherwise qualified for promotion and his non- consideration for promotion to BPS-18 is illegal, violative of Constitution and discriminatory.
Therefore, we allow the petition in terms that case of the petitioner be considered for promotion by the respondents. Civil Miscellaneous No,67 of 2009 has become infructuous, therefore dismissed.