' JAVED IQBAL, J.---The above captioned appeals with leave of the Court are directed against judgments dated 17-1-2007 and 6-3-2007 passed by learned Punjab Service Tribunal, Lahore whereby the appeals preferred on behalf of Muhammad Tufail and Asghar All have been accepted.
2. Leave to appeal was granted by means of order dated 17-7-2008 which is reproduced herein below for ready reference:-- "Learned counsel for petitioner, Muhammad Azam, challenging the validity of judgments dated 17- 1-2007 and 16-3-2007 passed in the above noted cases respectively, by the learned Punjab Service Tribunal, Lahore, has submitted that the original order of promotion of the petitioner was never challenged by the respondents, therefore, the appeals filed by the respondents before the aforementioned learned Tribunal were liable to be dismissed. Further submits that no appeal was competent before the learned Tribunal against the, findings of having found the petitioner fit for promotion, as it was not within the jurisdiction of the Service Tribunal. Support has been sought from the following judgments:-
(i) Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539
(ii) Zafar Iqbal v. MGO., MGO Branch 1995 SCMR 881
(iii) Ghulam Jillani v. Government of Punjab 2001 PLC (C.S.) 157
(iv) Muhammad Iqbal v. Exe. DOR (Rev) 2007 SCMR 682 ' The impugned orders were also the result of violation of the cardinal principle of audi alteram partem as the petitioner was not granted an opportunity of hearing before passing the impugned 'orders. Leave is granted, inter alia to consider the above questions rose in both these petitions."
3. Mr. Mehdi Khan Chauhan, learned Advocate Supreme Court entered appearance on behalf of appellant and contended vehemently that legal and factual aspects of the controversy have not been appreciated in its true perspective. In order to substantiate his contention it is submitted that all the notifications, rules and instructions issued from time to time have been misinterpreted and misconstrued by the learned Punjab Service Tribunal which resulted in serious miscarriage of justice. In this regard reference has been made to Notification No,SO-XVIII-3-26/67 dated 13-11- 1969, West Pakistan Kanungo Services (Northern Zones) Rules, 1964, the Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. It is also pointed out that the redundancy qua column No,6 in notification dated 13-11-1969 has been ignored altogether and besides that the Departmental examination and completion of training is Only meant for confirmation which stance was accepted by the Member, Board of Revenue but could not be examined properly by the learned Service Tribunal and by the Departmental Promotion Committee in its meeting on 9-4- 2001. It is next contended that the learned Service Tribunal failed to appreciate in its true perspective the relevant provisions of law regarding conditions for promotion of serving Patwari and its confirmation. The column Nos. 6, 7 and 10 of the Schedule of the Rules, 1990 have been misinterpreted because column No,6 is meant for initial recruitment whereas column No,7 deals with serving Patwari and that too for a limited purpose of promotion. It is next contended that the learned Service Tribunal could not appreciate that the rules framed in 1990 were consistent with the Punjab Civil Servants Act, 1974 and the Punjab Civil Servants (Appointments and Conditions of Services) Rules, 1974. The learned Advocate Supreme Court on behalf of appellant has also invited our attention to the mistake of Draftsman who incorporated redundancy/void provision in the Schedule which prevailed upon the learned. Service Tribunal in spite of the fact that the same were deleted. It is also pointed out that the appellant was promoted being found fit for promotion by the Department Promotion Committee and accordingly it was beyond the jurisdictional domain of learned Service Tribunal to determine the fitness of the appellant for promotion. It is also pointed out that the order passed by learned Senior Member, Board of Revenue on 26-8-2003 had attained finality and could not have been reversed by the learned Service Tribunal.
4. Mr. Shahid Zaheer Syed learned Advocate Supreme Court entered appearance on behalf of Muhammad Tufail (respondent No,1) and while repudiating the contentions as raised on behalf of appellant has supported the judgment impugned for the reasons enumerated therein with the further submission that no illegality or irregularity could be pointed out on the basis whereof the judgment impugned, which being well based, could be reversed. It is also contended that certain points were never raised before the learned Punjab Service Tribunal and accordingly the same cannot be dilated upon and decided by this Court.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of law and record of the case. A careful scrutiny of the entire record would reveal that Muhammad Tufail (respondent No,1) had joined service as Patwari on 27-8-1984 and promoted as Kanungo on 4-8-1990 in accordance with law and on merits after qualifying the Departmental examination of Kanungo which was sine qua non for the purpose of promotion. We have not been persuaded to agree with Mr. Mehdi Khan Chauhan, learned Advocate Supreme Court on behalf of appellant that passing the Departmental examination of Kanungo is merely a formality and only relates to the question of confirmation as this contention would not be iii consonance with the Punjab Revenue Department (Revenue Admin. Posts) Rules, 1990 whereby ii has been made abundant clear that the Kanungo would be appointed by means of promotion on the basis of seniority-cum-fitness from amongst Patwaries having three years' experience. It is to be noted that passing of Kanungo Departmental Examination is a necessary pre-requisite which cannot be ignored as pressed time and again by the learned Advocate Supreme Court on behalf of appellant. It is an admitted feature of the case that the appellant had not passed the Departmental Examination of Kanungo and therefore, his name was never considered by the Departmental Promotion Committee during five years w,e,f, 1990 to 1995. The learned Advocate Supreme Court was asked pointedly as to whether any appeal challenging the proceedings of Departmental Promotion Committee held during 1990, 1992, 1993, 1994 and 1995 was ever made but no satisfactory answer could be given. The learned Advocate Supreme Court was also asked as to whether the seniority list of Kanungo prepared on the basis cf promotion made pursuant to the recommendations of Departmental Promotion Committee was challenged but no specific instance could be quoted. On first occasion the Departmental appeal preferred on behalf of appellant was accepted by the Senior Member, Board of Revenue with the direction that his case be placed before the Departmental Promotion Committee in its meeting dated 18-1-2005 and the appellant was recommended pro forma promotion w,e,f, 4-8-1990 by means of order dated 3-2- 2005. For the redressal of his grievances Muhammad Tufail (respondent No,1) had approached the Department but with no avail. However, he finally succeeded and his appeal was accepted by the Service Tribunal. It is not known how pro forma promotion could be given to the respondent as admittedly the seniority list attained finality was never challenged by the appellant and in the absence of prerequisites as mentioned in the Punjab Revenue Department (Revenue Admn. Posts)
Rules, 1990 which were notified by means of notification of even number dated 18-6-2009 and as discussed above. It is well settled by now that there is no vested right in promotion or rules determining the eligibility for promotion. In this regard we are fortified by the dictum laid down in case titled Government of Punjab v. Muhammad Awais Shahid (1991 SCMR 696). It is worth mentioning that "as regards claim to promotion or pro forma promotion, what the civil servant could claim under the law was, that he should be considered when question of promotion was taken up. Civil servant, could not call upon the Service Tribunal to direct the department to fill the promotion post forthwith or on a particular date and not to keep it vacant or under consideration".
Muhammad Iqbal v. Saeeda Bano (1991 SCMR 1559).
6. We have also dilated upon the main objection that the Service Tribunal was not competent to dilate upon the question of fitness of the appellant as the question of eligibility for promotion does not fall within the jurisdictional domain of learned Service Tribunal. The above contention seems to be devoid of merit for the simple reason that a line of distinction is to be drawn in between the question of eligibility and that of fitness which was examined in a comprehensive manner by this Court in case of Muhammad Anis v. Abdul Haseeb (PLD 1994 Supreme Court 539) as under:-- "The question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned, and, therefore, the Tribunal has jurisdiction, and whereas the question of fitness is a subjective evaluation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness.
' The question of eligibility is different from the question of fitness. Indeed, from the definition of the words "eligible" and "fit" given in the 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 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". Where dictionary defines the word "eligible" inter alia as qualified to be elected and legally qualified to service. 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 qualification for being considered for appointment as a High Court Judge has been given. It does mean that the persons who possess the said qualifications 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.
' The questions of eligibility and fitness have been treated differently by the law-makers in the Civil Servants Act, 1973 and in the Service Tribunals Act. In section 9 of the former Act, ' 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 Civil Servants Act, the law-makers in proviso
(b) to subsection (1) of section 4 of the Service Tribunals 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": 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.
' The above conclusion not only gets support by subsection (1) of /section 9 of the Civil Servants Act, 1973, but also by Rule 8 and Rule 8-A of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
' A perusal of Rule 8 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 indicates that only such civil servants who possess the prescribed qualification and meet the conditions laid down for the purpose of promotion, are entitled to be considered for promotion by Departmental Committee or the Central Selection Board. Whereas Rule 8-A shows that no regular promotion shall be made to the post in basic pay scales 18 to 21 and equivalent unless the officer concerned has completed such minimum length of service as may be specified from time to time.
(Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCMR 1129, Nan Ahmed Khurram v.
Government of Pakistan and others PLD 1980 SC 153 distinguished, Muttaqi Hussain Rizvi v. Province of Sindh and another PLD 1978 Kar. 703; Saghir Ahmad v. Federation of Pakistan and 3 others PLD 1976 Lah. 287; Legal Thesaurus Regular Edn. By Wiliam C. Burton; Black's Law Dictionary, Fifth Edn.
And Stroud's Judicial Dictionary, 4th Edn., Vol.2.)"
' To determine the question of eligibility squarely falls within the jurisdictional domain of learned Service Tribunal.
7. It may not be out of place to mention here that various notifications, rules and other relevant material concerning the appeal and or promotion of civil servant and its interpretation squarely falls within) the jurisdictional domain of learned Service Tribunal. In this regard reference can be made to the following authorities:-- ' Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539), Muttaqi Hussain Rizvi v. Province of Sindh and another PLD 1978 Kar. 703, Saghir Ahmad v. Federation of Pakistan and 3 others PLD 1976 Lah. 287 overruled.
8. No illegality or perversity could be pointed out in the judgment impugned which being well based, operative portion whereof is reproduced herein below, does not warrant interference:-- "5. During Tribunal proceedings, the record and documents produced by both the parties have been carefully examined. The promotion of Patwari to the rank of Kanungo is governed by "Punjab Revenue Department (Revenue Admn. Posts) Rules, 1990. The notification sNo,S.O .R-III-2./85 dated 18-6-1990 specifies that the promotion to the post of Kanungo will be made as per criteria:-
(i) column No,6: passing of Kanungo departmental examination and successful completion of training as may be prescribed by government
(ii) Column No,10: passing of Kanungo departmental examination and completion of training as may be prescribed by Government.
5. In Rules 1990, it has further been specified that the Kanungos will be appointed through promotion on the basis of senioritycum-fitness from amongst Patwaries in District with 3 years experience as such. The criteria of promotion to the post of Kanungo indicate that passing of Kanungo departmental examination along with successful training would be necessary for promotion as Kanungo. The same condition has been shown under column 10 of the said Rules but on top of column No,10, it is mentioned that passing of Kanungo departmental examination and completion of training is pre-requisite for confirmation as Kanungo. Both these conditions for promotion to the rank of Kanungo had been followed by the departmental authorities. In the Tribunal proceedings, the D.R was asked to clarify the position regarding conduct of the departmental examination for the post of Kanungos. It has been clarified by D.R that Govt. Of the Punjab S&GAD through notification No,SOR-III-1-15/93 dated 25-2-1994 had issued amendment in Punjab Revenue Department (Revenue Administration Posts) Rules, 1990. The copy of the same has been presented before this Tribunal. The careful scrutiny of this notification reveals that the entries under column No,6 against serial Nos.1 to 3 have been deleted. After this amendment, the criteria for passing of departmental examination for promotion to the post of Kanungo has been deleted and only condition remains that the departmental examination would be conducted for confirmation to the post of Kanungo. The D.R has confirmed that amendment upto 25-2-1994 is in force and there was no other amendment or provision added subsequently, After amendment in Rules 1990, there will be no examination for promotion to the post of Kanungo.
6. As per facts and record produced by both parties the appellant was promoted as Kanungo on 4-8-1990 and he will remain Kanungo because at that time he had qualified departmental examination as prescribed in Revenue Department (Rev. Administration Posts) Rules, 1990. As per Punjab Revenue Department (Revenue Admn. Posts) Rules, 1990 notified on 18-6-1990, the respondent No,3 is not entitled for pro forma promotion w,e,f, 4-8-1990. The order dated 3-2-2005 of D.O(R) and order dated 18-4-2006 of S.M.R.B. Are set aside because these are against Rules and facts. The appeal is accepted."
9. The upshot of the above discussion is that the appeals being meritless are dismissed.