' Muhammad Sharif and six others, who are Divisional Head Draftsmen of the Irrigation and Power Department of the Government of the Punjab, have filed this constitutional petition against three respondents, namely, Secretary, Irrigation and Power Department, Government of the Punjab ; Secretary, Finance Department, Government of the Punjab ; and the Accountant-General, Punjab.
The petitioners claim to belong to the category of Diploma Engineers. They were in Grade 12 when it was decided by the Federal Government, vide letter No, WA/4 (25)/74, dated 16th November, 074, issued by the Ministry of Fuel, Power and Natural Resources (copy Annexure B'), that 25% of the total posts of Diploma Engineers shall be placed in Grade 16'and shall be filled in on the basis of seniority-cum-fitness and subject to ten years' service and passing of the prescribed departmental examination. Pursuant to the above decision, the Secretary, Finance Department, Government of the Punjab, who is respondent No, 2 in the instant petition, issued notification No, FD-PR-16-9/72-Part-I, dated the 31st August, 1976 (copy Annexure "F") whereby 25% posts of Diploma-holders in the cadre of Draftsmen, Divisional Head Draftsmen and Chief Draftsmen taken together were placed in National Pay Scale 16, commonly known as Grade 16. It was also stated in the said notification that the posts in NPS-16 shall be filled in on the basis of the seniority-cum- fitness and subject to ten years service and passing of the prescribed departmental examination.
Accordingly, the petitioners were allowed NPS-16 and they also started drawing salary in that scale.
Subsequently, on 24th December, 1979, the Secretary, Finance Department, Government or the Punjab, issued notification No, FD-PR-25-2/77, dated the 24th December, 1979 (copy Annexure "K") in supersession of his earlier notification. By the new notification only posts of Chief Draftsmen and Circle Head Draftsmen subject to maximum of 25% cadre strength of the posts of Draftsmen were placed in NPS-16. It was also laid down therein that promotion to the post of Chief Draftsmen and Circle Head Draftsmen to be placed in NPS-16 in future, should be made on the basis of seniority- cum-fitness and subject to ten years service and passing of the prescribed departmental examination. This notification,, according to the petitioners had the effect of reducing 25% quota of total strength of the posts of Draftsmen, Divisional Head Draftsmen, Circle Head Draftsmen and Chief Draftsmen taken together to 11.2% inasmuch as by the new notification, NPS- l6 was restricted to the Chief Draftsmen and Circle Head Draftsmen only. In other words, while issuing the subsequent notification, the Finance Department had not treated the Draftsmen and Divisional Head Draftsmen as Diploma Engineers. Since the petitioners belonged to the cadre of Divisional Head Draftsmen and had also not passed the prescribed departmental examination, the Secretary of the Finance Department directed the Accountant-General, Punjab, who is respondent No, 3 in the present case, not to make payment in NPS-l6 to the petitioners unless they produce certificates that they had passed the departmental examination. The petitioners' contention is that according to letter No, SOR 111-6-3/74, dated the 5th October 1975 (copy Annexure "L") issued by the Services and General Administration Department of the Government of the Punjab all posts in Grade 16 have been exempted from pre-promotion tests and, therefore, they were not obliged to pass the departmental examination for drawing pay in NPS-16. It has been submitted by the petitioners that they had lodged protest against the notification (copy Annexure "K") issued by the Finance Department and its direction regarding non-payment of salary to them in NPS-16 without their having passed the departmental examination, but that did not yield the desired result. They have, therefore, filed this writ petition praying for the following relief :- 'The impugned condition of passing of departmental examination by the petitioners who were granted NPS-16 as in notification , (Annexure 'F'), the impugned direction of the respondent No, 2 to the respondent No, 3 to withhold the petitioners' salaries in NPS-16 until passing of the departmental examination as per letter (Annexure I), the impugned notification of the respondent No, 2 (Annexure K) to the extent of restricting the NPS-16 to the Chief Draftsmen and the Circle Head Draftsmen, excluding/ omitting the petitioners from the grant of NPS-16, and reducing the grant of NPS-16 from 25% of the total posts of Draftsmen, Divisional Head Draftsmen, Circle Head Draftsmen and Chief Draftsmen taken together to 11.2% of the total posts, be graciously declared to be capricious, discriminative, mala fide, unjust, contrary to law and therefore without lawful authority, void and without jurisdiction ; and the respondents be graciously directed to continue the NPS-16 already allowed to the petitioners and availed of by then with effect from 16th January, 1976, and the respondents be further directed to restore the NPS-16 for 25% posts of Diploma-holders in the cadre of Draftsmen, Divisional Head Draftsmen, Circle Head Draftsmen, Chief Draftsmen taken together to ensure treatment according to law, fair play, justice and good conscience and to meet the ends of justice. Any other/further relief deemed fit, may also be graciously granted. Cost be also kindly allowed."
2. When the instant petition came up before me for hearing learned counsel for the respondents raised a preliminary objection that since the petition relates to a service matter, it is beyond the jurisdiction of this Court inasmuch as the matter in dispute is within the exclusive jurisdiction of the Tribunal established under the Punjab Service Tribunals Act, l974, hereinafter referred to as the said Act. In this connection, he invited my attention to Article 212 of the Constitution and section 3 of the said Act to contend that the Tribunal has exclusive jurisdiction in respect of matters relating to the terms and conditions of service of all civil servants including disciplinary matters and, therefore, no other Court can take cognizance of such matters.
3. In reply, it was urged by learned counsel for the petitioners that according to section 4 of the said Act no appeal lies to the 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 the higher post or grade and, therefore, this Court has no jurisdiction to hear this petition relating to the promotion of the petitioners to NPS-16.
4. There are numerous questions which are to be examined before ordering promotion of a civil servant. Some of these questions relate to his eligibility, seniority and fitness for promotion.
Eligibility is to be determined with reference to law, rules and instructions spelling out the category of civil servants who are entitled to be considered for promotion. Seniority is to be looked into in view of the placement of a civil servant amongst his colleagues who, like him, are eligible for promotion. While examining the question of his fitness, what is to be considered is his suitability for promotion keeping in view his capacity to shoulder higher responsibilities, his past performance, reputation for integrity, sense of discipline, etc. If in the promotion case of a civil servant the said three questions only arise for determination, the first one to be adverted to will be in regard to his eligibility for promotion. If he is fund eligible for promotion, it will then be seen if he is the most senior amongst his colleagues who are also eligible for the purpose. In case he happens to be the most senior amongst them, it will be examined whether he is also fit for promotion. If he is also found fit for promotion he would be selected for promotion. But if he is not found fit, the fitness or otherwise of the next most senior civil servant, who is eligible for promotion, will be considered for the purpose of his promotion.
5. The view taken by me that fitness is different from seniority and eligibility finds support from the contents of the Federal Government's letter (copy Annexure "B") and the Finance Department's notifications (copies Annexures "F" and "K") in which the word "fitness" has been used in contradiction to the word "seniority" and besides the requirement of fitness and seniority the condition of passing the departmental examination has been laid for grant of NPS-16. That condition is, obviously, relatable to their eligibility and not fitness for promotion. It is also not the case of the petitioners that they have been refused NPS-I6 for having been found unfit for the grant of that scale. Their plea is that the payment of salary to them in NPS-I6 has been stopped for their having not passed the departmental examination. Thus, on their own showing, their trouble is not relatable to their fitness for promotion.
6. Similarly, the petitioners' grouse in connection with the reduction of their quota in NPS-16 from 25% to 11.2% touches the question of eligibility for promotion and not that of fitness for promotion.
7. Section 4 of the said Act does not oust the jurisdiction of the Tribunal in the matter of all questions relating to promotion. It is only the question of fitness for promotion which cannot be agitated before the Tribunal. As explained above, the petitioners have not been declared unfit for promotion due to any reason, such as general reputation for corruption, but have been found not eligible for promotion because they have not cleared the departmental examination. As stated above, the question of fitness for promotion cannot be gone into by the Tribunal but the question of eligibility for promotion can be determined by the Tribunal. This view was also recently expressed by a Division Bench of this Court in an unreported judgment delivered in Intra Court Appeal No, 644 of 1981, Syed Ahsan Ali Rokhari v.- Director of Labour Welfare etc.
8. It is not disputed that the matter involved in the present petition relates to the terms and conditions of service of the petitioners. In view of the provisions of section 3 of the said Act such a matter is within the exclusive jurisdiction of the Tribunal. The exception provided in section 4 of the said Act, namely, that the question relating to the fitness or otherwise for promotion would not be taken cognizance of by the Tribunal, is, for reasons explained above, not applicable to the present case. I am, therefore, of the view that the dispute involved in this cast can be exclusively determined by the Tribunal and as such the jurisdiction of this Court to deal with that matter is barred by section 3 of the said Act as well as by Article 212 of the Constitution which forms part of the Provisional Constitution Order, 1981 as well.
9. This petition s, therefore, dismissed without going into its merits. There shall be no order as to costs.