' TASSADUQ HUSSAIN JILLANI, J.---Through this appeal by leave of the Court, appellant has challenged the judgment dated 18-3-2004 vide which Writ Petition No,229 of 2001 was allowed and notification dated 13-8-2001 was declared to have been issued without lawful authority and based on mala fide.
2. Facts giving rise to the instant appeal briefly stated are that appellant and Mrs. Tehmina Sajid Sheikh respondent No 1 were appointed as tutors at the School of Nursing, Ayub Teaching Hospital, Abbottabad vide notification dated 22-3-1990. The Question of their inter se seniority was became a moot point in the Writ Petition No, 249 of 2000 filed by respondent No, 1 which was allowed in the earlier round of litigation vide the judgment dated 8-5-2001 and it was directed as follows:- "Consequently, we would allow this writ petition, set aside the impugned notification of promotion of respondent No, 3 as illegal and without lawful authority and direct that the question of promotion of the petitioner and respondent No,3 to the post of Principal Nursing School be placed for consideration by the Selection Committee within a period of two months, which shall be determined in the light of the above observations and findings. There shall be no orders as to costs."
3. Pursuant to the afore-referred judgment, a meeting of the Selection Board was held which found respondent not fit for promotion on the grounds as under:-- "(i) Unsatisfactory record of service.
(ii) Adverse entries in her ACRs,
(iii) A number of warnings issued to her.
(iv) Unauthorized absence from service and publications of two notices against her in the newspaper;
(v) Conversion of her absence as Extra Ordinary Leave (without pay) and rejection of her appeal for conversion of the same into leave with full pay with serious remarks of the appellate authority on her appeal as well as her as under qualification and experience as compared to_ Capt. Retired Zubaida Kahtoon, Mst. Tehmina is not considered suitable/fit for promotion to the post of Principal School of Nursing."
4. After the afore-referred finding, the Selection Board issued notification dated 13-8-2001 in terms of which appellant was promoted. In accepting the constitution petition filed by respondent No, 1 and in setting aside the afore-referred notification, the learned High Court having examined the entire service record of the parties which included respondent No, 1's ACRs, came to the conclusion that in the light of the. ACRs, the respondent was placed in column 8 for personal qualities; that she was found proficient for the job; that except for the ACR of the year 1996, her ACRs were very good; that she was always recommended for accelerated promotion; that the ACR of 1996 (where she was classified as average) was never communicated to her and that the said ACR therefore, could not have been considered against her by the Selection Board. The court further found that "the concerned authorities did not paint proper picture of the petitioner before the Promotion Committee which resulted into reaching to conclusion that the record of service of the petitioner was unsatisfactory". The court also found that in promoting the appellant vide the impugned notification, the Selection Board did not give any reason nor for ignoring the respondent. Holding that certain officials were involved in withholding the relevant record and preparing "wrong comparative service record to facilitate respondent No, 3's (who is appellant in the instant appeal) accelerated promotion", it directed the concerned authorities in the Medical College to take action against the concerned officials.
5. Leave was granted by this Court in terms of the order dated 9-5-2006 which reads as under:-- "After hearing the petitioner in person as well as the learned counsel for the respondent, we grant leave to appeal to consider, inter alia, the question whether the High Court was legally justified to substitute the findings as recorded by the Departmental Promotion Committee of Ayub Medical College relating to the promotion of the petitioner and the respondent No,
1. Since short points of law are involved, the office is directed to set down the main appeal, on its present record, for final hearing within period of six months. However, the parties may file additional documents with the permission of the Court."
6. Learned counsel for the appellant in support of this appeal submitted that the learned High Court had no jurisdiction under Article 199 of the Constitution to assume the role of a Selection Board; that the Selection Board after comparing the service record of the appellant and respondent No 1 had rightly issued the notification dated 13-8-2001 which could not have been annulled in constitutional jurisdiction and that the findings rendered by the court are against the record. In support of the submissions made, learned counsel relied on Abdul Malik v. Sabir Zameer Siddiqui 1991 SCM R 1129 and Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539.
7. Learned counsel for the respondent No,1, on the other hand, defended the impugned judgment by submitting that the learned High Court had rightly set aside the notification in question because the same was collusive; that the concerned officials had correctly placed the service record of the respondent before the Selection Board and that the learned High Court had rightly interfered as the Promotion Committee while considering the fitness of appellant for promotion did not take into account the relevant record was misled by concealing service record of respondent and the appellant before this Court.
8. Learned counsel for the respondent Medical College who appeared on Court call, placid on record a copy of the notification dated 11-5-2010 issued by the Secretary to Government of Khyber Pakhtunkhwa, Health Department vide which appellant has been transferred from School of Nursing, Ayub Teaching Hospital, Abbottabad to. Nursing Examination Board, Khyber Pakhtunkhwa, Peshawar as Controller.
9. Since the learned counsel for the appellant has raised the question of jurisdiction i.e, that the learned High Court in exercise of its power under Article 199 of the Constitution could not have passed the impugned judgment in view of Article 212 of the Constitution, we propose to deal with the said question in the first instance. A reference to clause 1 of Article 212 of the Constitution would be in order which mandates as follows:--
212. (1) Notwithstanding anything hereinbefore contained the appropriate Legislature may by Act [provide for the establishment of] one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of ---
(a) matters relating to the terms and conditions of persons [who are or have been] in the service of Pakistan, including disciplinary matters;
(b) matters relating to claims arising from tortuous acts of Government, or any person in the service of Pakistan, or of any local or other authority empowered by law to levy any tax or cess and any servant of such authority acting in the discharge of his duties as such servant; or
(c) matters relating to the acquisition, administration and disposal of any property which is deemed to be enemy property under any law."
10. In terms of the afore-referred constitutional provision, Service Tribunals were established.
Section 4(1) of Service Tribunals Act reads as follows:-- "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 with 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 (LXXI of 1973), or any rules against any such order, no appeal that 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 not 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 post or grade; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time before the 1st July, 1969."
11. An examination of the afore-referred constitutional provision would show that administrative courts or Tribunals have been vested with the exclusive jurisdiction in respect of the matters pertaining to the terms and conditions of persons in the service of Pakistan including disciplinary matters. Subsection (1) of section 4 of the Service Tribunals Act provides remedy of appeal to a civil servant aggrieved by a final order whether original or appellate made by the departmental authority in respect of the terms and conditions of service with a prescribed limitation of 30 days of the communication of such an order to him. Clause (b) of the proviso to subsection (1) of section 4, however, creates a rider i.e, "that 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 post or grade". The provisions under consideration have laid down two important principles; (1) that any civil servant who is aggrieved by an order with respect to the terms and conditions of his service has a right of appeal before the appropriate tribunal established for the said purpose within the period prescribed and (2) no right of appeal is provided to a civil servant against an order of departmental authority determining "fitness" or otherwise of a person to be appointed or "hold a particular post" or to be "promoted" to a higher post or grade.
12. The former principle is relatable to the "eligibility" of, a civil servant whereas the latter relates to the "fitness" to hold a particular post or to be promoted to a higher grade. Both these expressions have been subject of judicial interpretation. In Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 at page 551 while spelling out the import of these two expressions, this court was of the view as follows:-- "We are also of the view that the question of eligibility is different from the question of fitness.
Indeed, from the definitions of the words "eligible" and "fit" given in the above dictionaries, it appears that the meanings of above two words are interchangeable and some time they carry the same meanings but at the same time they have different meanings. Even in the above Legal; Thesaurus the word "eligible" has been defined as "fit for appointment, fit for election, fit for- selection, fit to be chosen, legally qualified and suitable". V.'nereas Black's Law Dictionary defines the word "eligible" inter alia as qualified to be elected and legally qualified to serve. It may again be pointed out that the Stroud's Judicial Dictionary has highlighted that the word "eligible" carries two different meanings namely legally qualified or fit to be chosen. The question whether a person is legally qualified for appointment or promotion to a particular post and grade is relatable to the factum, whether he possesses the requisite qualifications for consideration, whereas the question of fitness pertains to the competency of the person concerned to be decided by the competent authority. For example, under Article 193(2) of the Constitution, the qualifications for being considered for appointment as a High Court Judge have been given. It does not mean that the persons who possess the said qualification are fit for appointment as Judges of the High Courts.
The question of fitness of their being appointed is to be determined by the functionaries mentioned therein. In other words a person may be eligible for consideration for a particular post, but may not be fit to be appointed. 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 bean 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.
13. In the instant case, the Promotion Committee seized of the issue of inter se seniority of appellant and respondent No, 1 was not considering the question of eligibility of respondent to be promoted or to hold a certain post but her fitness with reference to the service record and having examined the comparative merits recommended the appellant to be promoted and to be senior to respondent. In terms of the recommendations made, notification dated 13-8-2001 was issued which has been annulled by the learned High Court vide the impugned judgment. Against this notification, the respondent had no right of appeal in view of the specific bar contained in clause
(b) of proviso to subsection (1) of section 4 of the Service Tribunals Act. The case in hand, therefore, is distinguishable from the facts and the law laid down in the precedent case-law to which reference has been made by appellant's learned counsel. For instance in Abdul Malik v. Sabir Zameer Siddiqui 1991 SCM R 1129, the aggrieved civil servant had approached the civil court for determination of his eligibility to be promoted and the court came to the conclusion that court had no jurisdiction as the matter related to the terms and conditions of the service. Similarly in Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539, this court set aside the judgment of the learned High Court passed in exercise of Article 199 of the Constitution as it was of the view that the question of promotion of the parties arrayed before it "could not have been decided without reference to the terms on which the private respondents were given higher grade, namely, Grade- 17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President, Muhammad Ziaul Haq, which in turn will involve consideration of the above various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it".
14. In the instant case, however, the issue of inter se seniority of the appellant and respondent has no reference to terms and conditions of service and it is precisely for this reason that learned counsel for the parties have not referred to them during their arguments. The issue before the High Court was the "fitness" of the parties to be promoted and not their "eligibility". In Muhammad Iqbal v. Executive District Officer (Revenue) 2007 SCMR 683, the case of Abdul Malik (supra) was considered and distinguished and it was held that no appeal is competent against the order of the departmental authority determining the fitness of a civil servant to be promoted to a higher post or .Grade or to be appointed or to hold a particular post. The same view was reiterated in Abdul Ghafoor, Supervisor/Inspector, N.H.A. v. National Highway Authority 2002 SCM R 574. In view of this bar, the court came to the conclusion as follows:-- "There may be no cavil with the proposition that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong."
15. Respectfully reiterating the law laid down by this Court, we are of the view that the impugned judgment of the High Court is not violative of the mandate of Article 199 read with Article 212 of the Constitution as the respondent could not have challenged the notification in question before the Service Tribunal in view of the specific bar contained in subsection (1) of section 4 of the Service Tribunals Act. Her main grievance was that her service record had not been considered while deciding the question of her fitness to be promoted.
16. This brings us to the question of the comparative merit of the parties qua their fitness to be promoted, the opinion of the Selection Committee in favour of the appellant and the findings of the learned High Court qua the same. In preferring appellant to respondent for promotion, the opinion of the Selection Committee in its meeting dated 8-5-2000 was taken into consideration by the Selection Board which was to the following effect:-- "The committee scrutinized the personal files of the two officers in the panel, their comparative suitability, ACRs and other facts on record and reached to the conclusion that according to the comparative position of the two officers as identified in the statement at Annexures to these minutes, Mst. Tehmina is not fit for promotion due to:--
(i) Unsatisfactory record of service.
(ii) Adverse entries in her ACRs,
(iii) A number of warnings issued to her.
(iv) Unauthorized absence from service and publications of two notices against her in the newspaper.
(v) Conversion of her absence as Extra Ordinary Leave (without pay) and rejection of her appeal for conversion of the same into leave with full pay with serious remarks of the appellate authority on her appeal as well as her as under qualification and experience as compared to Capt. (R)
Zubaida Khatoon. Mst. Tehmina is not considered suitable/fit for promotion to the post of Principal School of Nursing.
' On the other hand, the service record of Mst. Zubaida Khatoon is clear her ACRs are free from adverse entries, she is more qualified and experienced and she has therefore been considered suitable for promotion to the post of Principal Nursing School (BS-18)."
17. It was argued before the learned High Court by the respondent that the relevant record of the respondent was not placed before the Selection Committee for mala fide reasons which persuaded the Court to examine the entire record, a reference to which is found in paragraph 17 of the impugned judgment. Having examined the comparative record, the learned High Court found as under:-- "The above comparison would show that not only the good reports obtained by the petitioner were ignored but the ACRs of respondent No, 3 were highlighted to give her accelerated promotion. For instance the column for the year 1995 about petitioner was left blank. It is on record that she was given the report "she is very competent and knows her job and has a quality of leadership". Likewise while evaluating overall grading it was mentioned "equally by very few officers (Very Good)" For fitness for promotion, she was recommended. "Fit for accelerated promotion". But these remarks were deliberately kept secret from Promotion Committee. Her average report for the year 1996 was mentioned but it was never described that the said ACR was never communicated to the petitioner, hence the same could not be taken into consideration. The respondent No,3 had remained on training at Post Graduate Nursing School at Peshawar from 12-9-1996 till 18-11-1998, but in her absence also she was given very good reports. It was the moral as well as legal duty of the person who prepared the working paper and comparative service record position to have indicated that respondent No,3 remained on training with effect from 12-9-1996 till 18-11-1998, hence she could not be evalued for said period but instead she was shown to have been given very good reports. Likewise for the year 1999 no remarks have been given against the petitioner's column, but it is on record that she has been given excellent report while assessing her performance in the following words: "She has been working as Tutor Chief Nursing Superintendent and Principal Nursing School with me.
She knows her job and performing the duties accordingly allotted to her."
' For overall grading it was mentioned:-- "Equalled by very few Officers (Very Good)." ' and for fitness for, promotion she was recommended for promotion in her turn, For the year 2000 the ACR was written by respondent No, 3 with biased and prejudiced mind which should not have been mentioned in the comparative position but the same was mentioned with mala fide intention.
The above mentioned record would show that the Promotion Committee was mis-led by depicting wrong picture and the authorities daringly without any fear of any action being taken against them misquoted and withheld/concealed the record and the Members of the Promotion Committee even did not bother to inspect the record."
18. Learned counsel was specifically confronted with the service profile of the respondent, reproduced in paragraph 17 of the impugned judgment and the comparative service record of both the parties as given in paragraph 25 of the impugned judgment. He could, neither controvert the factual aspect of the said comparative chart nor could he join issue with the observations made by the court which have been reproduced in the preceding para. He mainly reiterated the argument that the learned High Court could not have embarked upon factual inquiry as the same was neither tenable under Article 199 of the Constitution nor permissible in view of the specific bar contained in Article 212 of the Constitution. The argument of bar of jurisdiction has already been repelled in above paragraphs. So far as the contention that the learned High Court could not undertake a factual inquiry is concerned, the same is misplaced, first because the High Court was not recording any new evidence but was proceeding on the basis of the admitted facts and second, if having examined the admitted facts, it had come to the conclusion that the authority had passed the order in colourable exercise of powers conferred on it, or an authority having power to promote or appoint to a particular post had done so against the law or without jurisdiction or while doing so as for mala fide reasons had not taken into consideration the relevant record, it could come in aid of person aggrieved to redress the wrong. The impugned judgment on that score is unexceptionable. However, we find that after annulling the notification which had been impugned before the learned High Court, the court could not have directed promotion of respondent No, 1 and instead should have left the matter to be decided by the Promotion Committee afresh as the said authority was competent to pass appropriate order after de novo exercise.
19. For what has been discussed above, this appeal is partly allowed and while upholding the impugned judgment insofar as it annulled the notification dated 13-8-2001, we direct the concerned Promotion Committee to decide the matter afresh within two months of the receipt of this judgment.