MUHAMMAD KHALID MEHMOOD KHAN, J.--- Through this writ petition, the petitioner has prayed as under:- "Whereof it is most respectfully prayed that the impugned order of the Central Selection Board, respondent No,2 passed in its meeting held on 31-12-2010 whereby the petitioner has been deferred for promotion to the higher grade BS-21 may very graciously be declared illegal, arbitrarily, discriminatory, against the principles laid down by the honourable Supreme Court of Pakistan, against the promotion policy may very graciously be declared as without lawful authority and be set aside.
' It is further prayed that the petitioner being suitable and fit to be promoted from BS-20 to BS-21 as per the submissions made in the writ petition, a direction may kindly be issued to the Central Selection Board, respondent No,2 to reconsider the matter afresh at the earliest.
2.Briefly stated the facts of case are, petitioner joined police ervices of Pakistan in the year 1980 and at present petitioner is posted at Multan as Regional Police Officer. The petitioner served a number of places all over the Punjab, the detail of which is given in para 3 of the petition. The petitioner has unblemished career as an honest police officer but he was deferred to be promoted in BS-21 for the reasons not known to him and junior officers to him have been promoted in BS-21 by the respondent No,2 in a meeting held on 31-12-2010. The said order of deferment of petitioner has not been conveyed to him. The petitioner as per seniority list figured at Serial No,10 and the officers at Serial Nos.13 to 16, 18 to 20 and 22 have been promoted who are admittedly junior to petitioner. The petitioner has come to know through a notification dated 24-1- 2011 about his denied promotion. He asserted that when an eligible person is not promoted in higher grade being not suitable for fit for promotion, the service tribunal has no jurisdiction to redress his Grievance in terms of proviso (b) of section 4(1) of the Punjab Service Tribunal Act, 1974. The petitioner being a capable/eligible for promotion has not been promoted and, as such, order of respondent A No,2 which although is not in his knowledge purportedly passed on 31-12- 2010 may be declared illegal, discriminatory, unwarranted and against promotion policy.
3. Notices were issued to the respondents who filed their report and parawise comments. The respondents have taken the following stance in their reply that:-- "The Central Selection Board in its meeting held on 31-12-2010 observed that the petitioner had bad reputation / unsatisfactory integrity and placed him under watch to monitor and oversee his performance further for one year and recommended him for deferment. The competent authority i,e, Prime Minister approved the said recommendations on 18-1-2011."
4. It was further stated that "in terms of proviso to subsection (2) of section 22 of Civil Servants Act, 1973, read with second proviso to rule 4(1)(d)(ii) of Civil Servants (Appeal) Rules, 1977, no representation/ appeal or review lies on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. The writ petition as framed and filed by the petitioner is not maintainable on facts and law." The refuge of Article 212 of the Constitution of the Islamic Republic of Pakistan, 19'73 read' with section 3(2) of the Service Tribunal Act, 1973 is also pressed into service.
5. Learned counsel for petitioner submits that petitioner has been condemned unheard; that on the basis of serious allegation, he has been deferred without allowing him Opportunity to explain his case. He submits that career profile of the petitioner shows that he is an excellent officer, performed his duties so far honestly, diligently to the entire satisfaction of his superioRs, All his ACRs since his date of joining to police services i,e, 30 years of service career are outstanding A-1 and, as such, he is entitled for promotion in BS-21. The petitioner has served at least 20 places in Punjab. Further at present he is heading area, which is troubled, one and is the victim terrorism. It seems that Board has not ascertained from the entire material/ACRs about the integrity of petitioner for fitness to be promoted for the higher grade. He adds that the petitioner was never confronted with the material available to respondent No,2, if any. No chance was allowed to rebut the same. He has relied on Muhammad Zafeer Abbasi, Deputy Secretary, Ministry of Kashmir Affairs and Northern Areas and Safron, Government of Pakistan, Pak Secretariat, Islamabad v.
Government of Pakistan through its Secretary, Establishment Division (Cabinet Secretariat), Cabinet Block, Constitution Avenue, Islamabad and 4 others (2003 PLC (C.S.) 503), judgment passed in C.P.L.As. Nos.550 of 2007 and 551 of 2007 titled Government of Pakistan v. Muneer Ahmad Chishti, Civil Petitions Nos.760 to 762 of 2007 titled Federation of Pakistan v. Sameen Asghar and others and Writ Petition No,210 of 2007 titled Qamar uz Zaman v. Government of Pakistan.
6. Learned Law Officer submits that the petition is not maintainable under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 read with section 3(2) of Service Tribunal Act, 1973. He submits that civil servant has no right to ask for promotion. The refusal of promotion is a matter, which is exclusively in the domain of government/executive authority. He further submits that in terms of proviso to subsection (2) of section 22 of Civil Servants Act, 1973 read with second proviso of rule 4(1)(d)(ii) of Civil Servants (Appeal) Rules, 1977, no representation/appeal or review lies on matters relating to determination of fitness of a person to hold a particular post or to be promoted to a higher post or grade. Further submits that there is a serious allegation against the petitioner of bad reputation/unsatisfactory integrity. He relied on Mr. Khalid Mahmood Wattoo v.
Government of Punjab and others (1998 SCMR 2280), Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Training Walton, Lahore and others (2003 PLC (C.S.) 212), Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1129) and Government of Pakistan through Establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi, Academy of Administrative, Walton Training, Lahore and others (PLD 2003 SC 110).
7. The petitioner is seeking declaration through this constitutional petition that decision of Central Selection Board for the deferment of his promotion in BS-21 to be declared without lawful authority and he be ordered to be promoted in BS-21 under the Promotion Policy in terms of ESTA Code and judgments announced by the Hon'ble Supreme Court of Pakistan.
8. The respondents in their report and paradise comments, in the first hand raised question of maintainability of the petition. The respondents while ignoring the petitioner for promotion in BS-21 has come to the conclusion that "he had a bad reputation/unsatisfactory integrity and placed the petitioner under watch for monitoring his performance further for one year."
9. 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 grade stands excluded from the jurisdiction of Service Tribunal or not. This question came up before the Hon'ble Supreme Court of Pakistan in Muhammad Anis and others v.
Abdul Haseeb and other (PLD 1994 SC 539) and the Hon'ble Supreme Court while discussing the question of eligibility and fitness held as under:-- "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". Whereas 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 has 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."
10. This issue was again came up before Hon'ble Supreme Court of Pakistan in Muhammad lqbal and others v. Executive District Officer (Revenue), Lodhran and another (2007 SCMR 682) and the Hon'ble Supreme Court of Pakistan held as under:- "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 aforesaid section 9, the law-makers in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1974 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". This Court concluded that the question of eligibility, which is a term of service by virtue of above subsection (I) of section 9 of the Civil Servants Act, 1973 has not been excluded from the purview of he 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."
11. As it is a settled question that whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold off a post or to be promoted to a higher post or grade, is excluded from the jurisdiction of Service Tribunal and, as such, they said order is amenable to the jurisdiction of this Court. The respondent while filing report and paradise comments has just mentioned the following words:- "The Central Selection Board in its meeting held on 31-12-2010 observed that the petitioner had bad reputation/unsatisfactory integrity and placed him under watch to monitor and oversee his performance further for one year and recommended him for deferment.".
12. No material has been placed on record. The learned Law Officer submits that the record is confidential one and it could not be placed before the court or could not be shown to the petitioner. He, however, has shown a letter to this Court with the heading of confidential but again this letter does not find mention any reason and the words stated above or reply therein.
13. As the petitioner's deferment is on the basis of a serious allegation against him for which he is definitely entitled to be a right to explain the same. Admittedly, ACRs of petitioner are excellent. No other material has been placed on record by the respondents and, as such, orders for deferment of petitioner on the ground of a stigma of bad C reputation/unsatisfactory integrity are serious one and hi could not be allowed to remain in existence without reply by the petitioner. This stigma must be supported by any evidence hence the petitioner has the right to rebut the same or at least he may be allowed to explain his position.
14. In view of above, this petition is ALLOWED. Order dated 31-12-2010 is hereby set aside being without lawful authority and the case is remanded to respondent No,2 for reappraisal the same and it is expected that the respondent No,2 will provide an opportunity to the petitioner for explaining the stigma against him and will consider his case in the coming meeting.