' ABDUS SATTAR ASGHAR, J. --- Petitioner is a civil servant in BS-18 presently posted as Deputy Collector Customs, Model Customs Collectorate (Preventive) Lahore. In the meeting of Departmental Selection Board (DSB) held on 20.9.2013 petitioner's case for promotion was deferred on account of her incomplete record as two Performance Evaluation Reports (PERs) of the petitioner for the periods i,e, 01.11.2008 to 30.6.2009 and 01.12.2010 to 30.6.2011 were awaited.
2. Petitioner's grievance is that she fully qualifies for promotion on the basis of fitness-cum- seniority under the rules but she has been deferred on the basis of two incomplete PERs which were duly initiated by her and reported upon in March, 2013 but not counter-signed by the Authority for the past six months. Learned counsel for the petitioner has vehemently argued that the meeting of the DSB was hastily convened on 20.9.2013 with malice and discrimination against the petitioner and to the benefit of some influential individuals; that petitioner had duly initiated all the PERs and done the needful on her part well in time; that any delay in completion of the PERs by the reporting officer or the countersigning Authority cannot be attributed to the petitioner; that under the principle of equity and fairness petitioner cannot be wronged on the basis of another person's negligence/fault; that impugned meeting of DSB held on 20.9.2013 and the decisions taken therein and the impugned notification dated 03.10.2013 are illegal, against principles of natural justice and violative to petitioner's fundamental right as guaranteed under Articles 2-A, 4, 8, 14 and 25 of the Constitution of Islamic Republic of Pakistan, 1973 and liable to be declared null and void and of no legal effect; that petitioner has no adequate and efficacious remedy except to invoke the Constitutional jurisdiction of this Court hence this petition.
3. With reference to the report and parawise comments submitted by respondents No, 1 and 5 learned counsel for the said respondents contends that petitioner being a civil servant cannot claim the promotion as a matter of right therefore lacks cause of action; that petitioner is not superseded rather her case is merely deferred due to her incomplete record; that there is no adverse order against the petitioner to take up as a cause of grievance; that service matters of a civil servant falls within exclusive jurisdiction of Federal Service Tribunal in terms of Section 3(2) of Service Tribunals Act, 1973 therefore petitioner facing bar under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 has no case to invoke the Constitutional jurisdiction of this Court; that petitioner has no legal right to contest her deferment for promotion in view of Section 22 of the Civil Servants Act, 1973 which contemplates that no representation shall lie 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; that DSB has a prerogative to defer an official whose record is incomplete; that at the time of meeting of DSB on 20.9.2013 petitioner's two PERs were incomplete; that minutes of meeting of DSB were prepared on 20.9.2013 and forwarded to the concerned members of Selection Board for signatures; that petitioner's PER for the period 01.11.2008 to 30.6.2009 was received in the DSB on 23.9.2013 which was returned to the Countersigning Officer on the same day as the Countersigning Officer left blank two columns in Part-IV of the said PER; that Countersigning Officer returned the same on 24.9.2013 after doing the needful; that petitioner's second PER pertaining to the period from 01.12.2010 to 30.6.2011 was personally delivered by the petitioner in the FBR (HQ) on 24.9.2013; that it is evident on the record that her PERs were incomplete at the time of meeting of DSB on 20.9.2013; that petitioner's representation dated 23.9.2013 was received in the Board on 24.9.2013 regarding her consideration and recommendation for promotion to BS-19 subject to completion of the above two PERs but at that point of time it was not possible to change the recommendations of DSB which had already been made on 20.9.2013; that impugned order dated 03.10.2013 was issued after obtaining approval of the competent Authority on the recommendations of the DSB; that DSB in its meeting held on 20.9.2013 considered all the cases under relevant rules on the subject and recommended each case on merits without any bias, prejudice, favouritism or discrimination; that recommendations of the DSB dated 20.9.2013. And the impugned notification dated 03.10.2013 do not suffer from any factual or legal infirmity, irregularity or jurisdictional error therefore petitioner has no case to invoke the Constitutional jurisdiction of this Court.
4. Arguments heard. Record perused.
5. 'Eligibility for promotion' and 'determination of fitness' are two different criteria. Eligibility primarily relates to the terms and conditions of service and their applicability to the civil servants whereas question of fitness is a subjective evaluation on the basis of objective criteria. Section 9(1) of the Civil Servants Act, 1973 (to be called einafter the Act) provides that civil servant has a right to be considered for promotion if eligible on account of possessing the prescribed minimum qualification etc. A civil servant however has no vested right to be promoted. Section 4 of the Service Tribunals Act, 1973 contemplates that any civil servant who is aggrieved with respect to the terms and condition of the service has right to file appeal before appropriate Tribunal established for such purposes within prescribed period. On the other hand in the matters relating to determination of fitness of a civil servant to be promoted to a higher post; the law does not provide any remedy of appeal or representation in view of Section 22 of the Act of 1973. Petitioner in this case therefore has no right to appeal or representation against the impugned recommendations of DSB dated 20.9.2013 and Notification dated 03.10.2013. In view of the specific bar contained in clause (b) of proviso to Section 4(1) of Service Tribunals Act, 1973 the petitioner lacking adequate efficacious remedy therefore has a right to seek the Constitutional remedy. This petition therefore is not violative to the mandate of Articles 199 and 212 of the Constitution of Islamic Republic of Pakistan, 1973. Reliance be made upon Miss Zubaida Khatoon v. Mrs. Tehmina Sajid Sheikh and others (2011 PLC (C.S.) 596) (Supreme Court of Pakistan).
6. Promotion Policy dated 31.10.1982 duly revised on 24.7.2010 provides conditions of deferment which reads below:--- "1. ELIGIBILITY CRITERIA FOR CONSIDERATION FOR PROMOTION.
(a) The eligibility criteria for consideration for promotion shall be as under:- ' Fulfillment of prescribed minimum length of service in BS-17 and above for promotion to various scales.
(ii) Satisfactory completion of mandatory training.
(iii) Should possess qualification/experience and other conditions as prescribed in the relevant Recruitment Rules.
(iv) An officer superseded earlier shall be considered after earning Performance Evaluation Report (PER) for one full year. For example, an officer superseded on the basis of his PER's upto 2004, will become eligible for consideration after earning PER for 2005.
' Note: Instructions issued vide Establishment Division's Office Memoranda No, 1/1/2001-CP.2, dated 3rd September, 2005 and 17th November, 2005 regarding earning of full two years reports after supersessions and losing of eligibility for consideration after two supersessions, are hereby withdrawn, with immediate effect.
(b) Conditions for deferment.
A civil servant shall be deferred due to the following reasons:---
(i) Not undergone the prescribed training or passed departmental examination.
(ii) Non-submission of Part-I and Part-II of the PER by the concerned officer to his reporting officer in respect of his service in the present grade and the preceding grade.
(iii) When the Board considers the record as incomplete, or wants to further watch the performance of the officer or for any other reason to be recorded in writing.
(iv) Disciplinary or departmental proceedings are pending against the civil servant
(v) The civil servant is on deputation abroad to a foreign government, private organization or international agency.
(vi) The civil servant's inter se seniority is sub-judice.
2. The civil servant whose promotion has been deferred will be considered as soon as the reason on the basis of which deferment took place ceases to exist provided that a civil servant falling in the category mentioned in Para 1(b)(v) above will be considered for promotion only on his return to Pakistan and earning at least one PER for one full year before he is considered for promotion."
7. In this case facts admitted on the record reveal that petitioner's two PERs were incomplete on 20.9.2013 when the meeting of DSB was convened and consequently her case was deferred due to incomplete record. Petitioner's defennent therefore falls within the ambit of Paragraph (b) condition (iii) of the Promotion Policy (supra). Plea of malice or discrimination raised by the petitioner qua her deferment is not substantiated through any speck of material. I do not find any jurisdictional error, legal infirmity or material irregularity in the impugned recommendations made by the DSB in its meeting dated 20.9.2013 and the impugned Notification dated 03.10.20.13 therefore the same do not call for any interference by this Court in exercise of Constitutional jurisdiction.
8. Nevertheless it is important to note that as per record petitioner's deficient PERs in complete form have reached the Board on 24.9.2013 therefore in terms of paragraph No, 2 of the Promotion Policy (supra) petitioner's case is now matured to be considered for promotion in the upcoming meeting of the Board.
9. For the foregoing reasons this writ petition is partly allowed to the extant that the case of the petitioner for promotion from BS-18 to BS-19 would be considered by the Departmental Selection Board in its next meeting and if she is found fit for promotion she would take seniority from the date her batch mates were promoted. This Constitutional petition is disposed of accordingly. Petition partially allowed.