JUDGMMENT AMIN-UD-DIN KHAN, J.---Through this writ petition following prayer has been made:--- "It is therefore, respectfully prayed that instant writ petition may kindly be allowed, denial of his right of promotion from EST (BS-15) to SST (BS-16) in DPC meeting held on 14.10.14 may kindly be declared as illegal, unconstitutional, violation of his legal, basic and fundamental rights guaranteed in law and Constitution, unjustified, discriminatory, void, coram-nonjudice, without lawful authority, of no legal effect and may kindly be set aside with consequential mandamus direction to respondents to forthwith grant aforesaid rights to the petitioner, with all due benefits and other consequential relief. Further prayed that operation of recommendations of the DPC held on 14.10.2014 to the extent of all those who are juniors to the petitioner as per seniority list may kindly be suspended and issuance of its implementation order may kindly be stayed, pending final decision of the main writ petition."
2. Comments were called from the respondents, same have been filed. According to the respondents, case of the petitioner was considered in the Departmental Promotion Committee meeting held on 14.10.2014 but the eligibility of the petitioner was in issue on the ground that he was irregularly awarded EST grade. The proceedings of the Departmental Promotion Committee were not appended with the comments filed by the respondents, therefore, learned Assistant Advocate- General was directed to produce copy of the proceedings of the Departmental Promotion Committee, who has submitted the same, which have been perused by learned counsel for the petitioner. When the Departmental Promotion Committee considered the case of the petitioner for promotion and it was found that he was awarded EST grade irregularly, therefore, he was not recommended for promotion. Now the question determinable before this Court is whether the writ petition before this Court is competent or not as the same has been raised by the learned Assistant Advocate- General.
3. I have heard learned counsel for the petitioner as well as learned Assistant Advocate-General and gone through the case law on the subject after seeking assistance from the Research Center of Lahore High Court.
4. Learned counsel for the petitioner argues that writ petition is maintainable and eligibility and fitness do not come within the definition of terms and conditions of service, therefore, no appeal is provided under section 4 before the Tribunal established under the Punjab Service Tribunal Act, 1974. Contrary to this, the arguments of learned Assistant Advocate-General are that the appeal against the impugned order/action of the Department is provided before the Services Tribunal established under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and this Court has no jurisdiction to exercise the constitutional jurisdiction under Article 199 of the Constitution in the matter in issue. In my view there is a difference in "fitness" and "eligibility". A matter of fitness is certainly different from eligibility. Both these impressions are distinct and separate from each other. Eligibility relates to the terms and conditions of service whereas fitness for promotion is a subjective evaluation on the basis of objective criteria, where substitution for opinion of the competent authority is not possible by that of a Tribunal or a Court. When award of EST grade was irregular, therefore, it is clear denial of promotion on the basis of eligibility of the petitioner for the post for which he is claiming the promotion. Light can be taken from the judgment of august Supreme Court of Pakistan reported as "Fazali Rehmani v. Chief Minister, N.W.F.P., Peshawar and others" (PLD 2008 Supreme Court 769). Further another judgment of august Supreme Court of Pakistan reported as "Tasleem Jan and others v. Muhammad Zaman and others" (2005 SCM R 695) can also be relied upon wherein it is held that fitness to hold an office is altogether different from eligibility to hold an office.
5. When eligibility of the petitioner is in question for promotion as prayed for through this constitutional petition, the petition is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the appeal is provided under section 21 of the Punjab Civil Servants Act, 1974 as well as section 4 of the Service Tribunal Act, 1974, therefore, this writ petition being not maintainable stands dismissed.