Through this petition, the petitioners, in terms of amended petition, have sought relief in following terms: "In view of the matter , it is respectfully prayed that the appropriate writ may kindly be issued declaring that the impugned decision contained in letter dated 19.03.2018 and impugned promotion order dated 24.04.2018 of respondent No.5 have been made illegally , unlawfully , arbitrarily , malafide and without lawful authority which may kindly be set aside with the direction to the respondents to re-consider the case of the petitioners fairly, justly , and in a transparent manner for their promotion as Joint Director in BS-19, with all consequential benefits. The respondents may further be directed to restrain from issuing promotion orders of respondent No.5 and any order promoting the said respondent may kindly be set-aside.
It is further prayed that the respondents No.1 to 4 may be restrained to issue promotion orders of respondent No.5 during the pendency of this Writ Petition".[Emphasis supplied]
2. Perusal of contents of the petition would show that the petitioners have had primarily challenged the recommendations of Provincial Selection Board-II ("PSB") including promotion order dated 19.03.2018 of respondent No.5, questioning its very eligibility for promotion, being not in accordance with the terms of Punjab Labour & Manpower Department (Manpower & Training) Service Rules, 1993 (Service Rules 1993) and Promotion Policy , 2010
3. The facts are simple and need not to be reiterated except details of post-recommendation events. The petitioners raised grievance through application dated 16.02.2018 - after the meeting of PSB dated 02.02.2018 - alleging that respondent No.5 lacked eligibility for promotion as Joint Director in BS-19. It was followed by another application dated 19.02.2018, addressed to Chief Minister, wherein too lack of eligibility of respondent No.5 was questioned.
Petitioners thereafter, filed writ petition No.174371/2018, wherein vide order dated 06.03.2018 direction was issued to decide representations filed, within 15 days. Later on, recommendations of PSB were approved by the Competent Authority vide order / letter dated 19.03.2018. Thereafter, the petitioners filed instant petition.
4. Learned counsel for the petitioners contends, that respondent No.5 was not eligible for promotion, in terms of requirements prescribed under the Service Rules 1993 and Promotion Policy 2010. Adds that Efficiency Indexes of the Petitioners were prepared without awarding / crediting 15 Marks of Training to their blood count. Per learned counsel respondent No.5 had not performed /served at any Functional units of TEVTA, who remained on deputation for last five years, which condition alone disentitle respondent No.5 to be considered for promotion in BS-19; evaluation by PSB and marks awarded to the petitioners were arbitrary, mis-matched their service record and performance Evaluation Reports (PER's) were not correctly quantified in Efficiency Indexes of the petitioners. Per learned counsel, there was nothing adverse against the petitioners but marks were deducted while awarding scores by PSB. On the question of maintainability, learned counsel submits that questions of suitability and fitness of a candidate is outside the jurisdiction of Service Tribunal, therefore bar in terms of Article 212 of Constitution of Islamic Republic of Pakistan 1973 is not attracted. To support its case, reliance is placed on following judgments reported as "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), "LIAQAT ALI CHUGHTAI v. FEDERATION OF PAKISTAN through Secretary Railways and 6 others" (PLD 2013 Lahore 413), "AHMED SAEED SIDDIQUI and others v. PAKISTAN through Secretary Establishment and others" (2015 PLC (C.S.) 923), "FEDERATION OF PAKISTAN through Secretary, Establishment Division and others v. Dr. MUHAMMAD ARIF and others" (2017 SCMR 969) and "SECRET ARY SCHOOL OF EDUCA TION and others v . Rana ARSHAD KHAN and others" (2012 SCMR 126 ).
5. Learned counsel for respondent No.4 (TEVT A) controverted the submissions. Contends, that promotion of the respondent No.5 was in accordance with the Promotion Policy , 2010, who met eligibility criterion accordingly .
Added that respondent No.5 fulfilled the condition of performing in Functional unit. Questioned the right of the petitioners to challenge the eligibility of respondent, when their blood count was even below the minimum threshold of 60 marks, in terms of clause 12 - Ef ficiency Index - of Promotion Policy 2010.
6. Learned counsel for respondent No.5 raised objection qua maintainability of the petition. Contends that since the petitioners had questioned eligibility of the respondent No.5, the jurisdiction vests with the Service Tribunal for determination of such question. Rebuts the contention that respondent No.5 was not eligible, and averred that condition of performing in Functional and other requirements of Promotion Policy 2010 were fully met. Reference is made to the judgments reported as "ABDUL GHAFOOR, SUPERVISOR/INSPECTOR, N.H.A. v. NATIONAL HIGHWAY AUTHORITY and 12 others" (2002 SCMR 574) and "MUHAMMAD ANIS and others v. ABDUL HASEEB and others" (PLD 1994 SC 539). Learned law officer opposed the petition on the point of maintainability and averred that opinion of PSB cannot be substituted when subjective assessment was carried out on the basis of objective criterion. In the absence of any arbitrariness, procedural unfairness and allegation of withholding of material / documents, subject matter of evaluation by PBS, no case of interference made out.
7. Arguments heard. Record perused.
8. It can be gathered from the pleadings and submissions that the grievances, subject-matter of this petition, of the petitioners are primarily three-fold, which are summed up as; i) Respondent No.5 had not performed in the Functional unit of TEVT A, which condition of eligibility was prescribed for promotion in terms of Service Rules 1993. ii) Efficiency Index of the Petitioners was prepared without granting 15 Marks of Training. iii) Marks awarded to the petitioners by PSB were arbitrary , showed absence of application of mind and mis- matched with the service record of the petitioner .
9. Is the question of eligibility of the respondent No.5 for promotion for the post of Joint Director (BS-19) determinable by the Service Tribunal. In essence, the petitioners alleged that respondent No.5 lacked eligibility, who remained on deputation for 5 years, i.e. from 17.10.2012 to 17.10.2017 and not performed in any Functional unit, a basic condition of Service Rules 1993, which requirement is reproduced hereunder as; "By selection on merit with due regard to seniority from amongst the persons holding the posts of Deputy Directors (Apprentice Trg./(Principal, Apprentices Trg. Centers with at least 12 years service in BS-17 and above in the functional units).
Notwithstanding, the fact that this precise disability was categorically denied by TEVTA and respondent No.5, whether this question - relating to the eligibility - can be examined, adjudicated upon and decided, exclusive jurisdiction whereof vested in the Service Tribunal and attracts bar under Article 212 of Constitution of Islamic Republic of Pakistan 1973.
10. I have also examined the representation filed - direction with respect to which has been sought from this court in exercise of Constitutional jurisdiction - wherein precise allegation was alleged failure of respondent No.5 to have had performed in any Functional unit, which relates to the eligibility of the respondent No.5. The ineligibility of the respondent No.5 was also reiterated in paragraphs No. 7(v) and 11(v) of the petition. The petitioners have also alleged violations of sub para' s (7) & (8) of para 6 of Promotion Policy 2010, which para' s prescribed eligibility criterion for promotion. The case of the department and respondent No.5, put forward, was that all such requirements have been fulfilled and respondent No.5 also performed in Function al unit. There is no gainsaying that question relating to requisite eligibilit y of a candidate falls outside the jurisdiction of this court in view Article 212, ibid. This is not the case regarding determination of fitness of respondent No.5 for promotion but eligibility, relating to the terms and conditions of service. I am fortified in this view in the light of the ratio laid down in Judgments reported as MUHAMMAD ANIS and others v. ADBUL HASEEB and others (PLD 1994 Supreme Court 539) and FAZALI REHMANI v. CHIEF MINISTER, N.W.F.P, PESHAWAR and others (PLD 2008 SC 769). Relevant portion of Muhammad Anis's case, supra, is reproduced hereunder as; "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.
We may point out that the question of eligibility and fitness have 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.
15. We are, therefore, inclined to hold that the controversy before the High Court was, whether private respondents were eligible for consideration for promotion to Grade-18 as Assistant Collectors alongwith the private appellants. The above question could not have been decided without reference to the terms on which the private respondents were given higher grade, namely , Grade-17 upon the upgradation of the posts of Appraiser and the Principal Appraisers pursuant to the above order of the late President, Muhammad Ziaul Haq, which in turn will involve consideration of the abov e various notifications, rules relating to the appointment or promotion as Assistant Collectors of Customs and the interpretation of section 23 of the Civil Servants Act etc. The above matters pre-eminently fall within the exclusive jurisdiction of the Tribunal and, therefore, the High Court had wrongly assumed jurisdiction in the present case, which did not vest in it. [emphasis supplied] Relevant portion of Fazali Rehmani' s case is reproduced hereunder as; In a number of judgments, it has been repeatedly laid down by this Court that though the question of eligibility relates to the terms and conditions of service and therefore, would fall within domain of the Tribunal yet, the question of fitness of a civil servant for promotion is barred from the jurisdiction of the Tribunal. Reference in this regard may usefully be made to the following reported judgments:--
(i) Muhammad Anis and others v . Abdul Haseeb and others ( PLD 1994 SC 539 )
(ii) Muhammad Iqbal v . Executive District Officer (Revenue) ( 2007 SCMR 682 )
(iii) Syed Abdul Qadir Shah v . Government of Punjab ( 1972 SCMR 323 )
(iv) Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and others (1991 SCMR 1129)
(v) Muhammad Akram and others v . The State and others ( 1996 SCMR 324 )
No doubt it has also been, in some cases including (i) Muhammad Anis (supra), (ii) Muhammad Rehman Khan v.
Chief Secretary, N.-W.F.P. and others (2004 PLC. (C.S) 62), (iii) Abdul Ghafoor, Supervisor/Inspector, NHA v.
National Highway Authority and others (2002 SCMR 574), and (iv) Zafarullah Baloch v. Government of Balochistan and others (2002 SCMR 1056), laid down by this Court that when a civil servant was eligible for promotion but ignored and other eligible person was promoted then his appeal before the Service Tribunal would be competent, yet, in the instant case, since the appellant had failed to show that respondent No.5 was ineligible for promotion, therefore, the learned Tribunal had rightly declined to interfere with the order of the departmental authority.[emphasis supplied]
11. It is evident from the ratio of the judgm ents that question of eligibility of a civil servant falls within the domain of the Service Tribunal, being competent forum. It is apt to make reference to another judgment by the August Supreme Court of Pakistan reported as ABID MAHMOOD v. GOVERNMENT OF PAKIST AN through Secretary , Establishment Division, Islamabad and 241 others ( 1997 SCMR 1 154), relevant portion is reproduced hereunder;
4. The matter was again considered by this Court in Government of Pakistan v. Muhammad Sadiq (1985 SCMR 699) and the following observations were made; "It is a fact that at no stage disputed that the two appellants when considered and approved for promotion or even when appointed to the upgraded posts were not eligible to be promoted. Hence their consideration, recommendation and appointment was all against the law, in excess of the powers conferred on the Departmental Promotion Committee and the Competent Authority . It had nothing to do with their fitness or suitability . The question of fitness and suitability arises amongst eligible and not amongst eligible and ineligibles. The bar contained in proviso (b) to subsection (1) of section 4 of the T ribunals Act is inapplicable."
5. More recently the matter was considered in Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCMR 1 129) in the words that follows:-- "What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of 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 a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be conclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualifica tion no such bar exists either on express words of section 4 of the Service T ribunals Act or even by implication."
6. The High Court was, therefore, justifie d in holding that the question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a non obstante clause.[Emphasis supplied]
12. If the Petitioners have had not questioned the eligibility of the respondent No.5, alleging non-adherence to the eligibility criterion under Service Rules 1993 and Promotion Policy 2010, the question for adjudication before this court would be different. In view of the facts and circumstances of this case and the relief sought, the questions raised - otherwise touching the issue of eligibility - cannot be adjudicated upon or determined without assessing eligibility of the respondent No.5, which is outside the scope / ambit of judicial review jurisdiction.
13. The case of the petitioners was that if PSB had awarded 15 training marks to the petitioners, they would have had met the Efficiency Index, minimum threshold eligibility scores. This submission has to be examined in the light of the Promotion Policy 2010, document containing terms and conditions on the basis whereof promotion was considered and recommended. Para 13 of Promotion Policy 2010 prescribes the quantification of PER' s, Training Evaluation and PBS Evaluation for consideration of promotion against selection posts, which formula is as follows; Sr.No. Factor Marks 1 Quantification of PER' s relating to present grade and previous grade(s) @ 60% : 40%70% 2 Training Evaluation 15% 3 Evaluation by PSB 15% Total: 100% The promotion in instant case was carried out in terms of para - 14(2) of the Promotion Policy , 2010. It is expedient to reproduce sub-para (2) of para 14 of promotion policy 2010, which reads as "The calculation of comprehensive efficiency index regarding civil servant for whom no mandatory training has been prescribed, the PER' s shall carry 70% marks and consideration by the PSB will be 30%". [emphasis supplied]
14. The petitioners have not challenged this criterion, adopted while carrying out assessment of the candidates by PSB. No condition of mandatory training was prescribed in terms of the Service Rules 1993 and sub-para (2) of para 14 of Promotion Policy 2010, hence no marks in lieu of training could be claimed. The formula on the basis of which promotion, in instant case, was carried out reflects following position; Sr. No. Factor Marks 1 Quantification of PER' s relating to present grade and previous grade(s) @ 60% : 40%70% 2 Evaluation by PSB 30% Total: 100%
15. The petitioner No.1 secured 44.92 points and was awarded another 6 marks by PSB (out of 30), which score was below the minimum threshold in terms of para 12 of Promotion policy . Likewise, petitioner No.2 secured 48.85 points and was awarded another 6 marks by PSB (out of 30). Both the petitioners failed to meet minimum threshold blood count of 60 marks, which admittedly was prescribed eligibility requirement. In Liaqat Ali Chugtai' s case , supra, it was not the subjective assessment of CSB, which was under challenge, but in fact the process adopted by CSB in arriving at the said subjective assessment. This case is distinguishable.
16. Third submission of the learned counsel for the petitioners was that PSB had not correctly examined and appreciated the service record, which per-se entitled them to more marks while quantification of their PER's. I have examined the working paper submitted, wherein the quantification of PER's was accordingly done objectively, which calculations do not require any complex exercise and carried out in line with the criterion provided in the gradation and qualification form - schedule-II. Nothing has been argued to highlight any discrepancy in the calculations in schedule-II, which formed basis of quantification of PER's scores. This court is not inclined to intervene in the formation of opinion by PSB while evaluating the candidates and awarding marks. It is evident from the perusal of order dated 19.03.2018 that marks were allowed after assessing all aspects, which need to be considered while recommending promotion for the sanctioned posts, wherein criteria is not seniority-cum-fitness but fitness-cum- seniority. There is nothing on record to show that recommendations were result of colourable exercise of authority by PSB or placement of misleading material before PSB - undisclosed to the petitioners - or matter of personal likeness of the members of PSB or formation of opinion was seeped in mala-fide. The objection regarding deduction of 3 marks on account of minor penalty, while considering the case of petitioner No.1, was otherwise irrelevant, as same failed to get minimum threshold marks, even if those three marks are credited to its blood count. This court simplicitor, on the basis of bald assertions, cannot venture to substitute the opinion / findings of the competent authority, which opinion has been formed objectively. The petitioners, who have been considered and evaluated, failed to meet the blood count required for their eligibility, which decision of supersession is in line with the mandate of the promotion policy 2010, more particularly para 10 thereof.
17. The judgments referred by the petitioners are authorities for the facts and circumstances involved therein but same are distinguishable when examined in the context of the facts of this case. In Muhammad Zafeer Abbasi's case, supra, the petitioner had marks above the minimum threshold but not confronted with baseless and malicious observations. In Liaqat Ali Chugtai's case, supra, subjective assessment of CSB was under challenge but in fact the process adopted by CSB in arriving at the said subjective assessment. In Ahmed Saeed Siddiqui's case, supra, the petitioners had obtained requisite blood count but deferred on account of un-disclosed reasons, wherein the issue of legality of Office Memorandum stating revision in promotion policy was also involved. In Dr. Muhammad Arif's case, the facts are different, wherein the officers have achieved minimum prescribed threshold but officers were superseded on the basis of some personal knowledge of the members of the Board, which reasons remained undisclosed. The case of Secretary School of Education relates to right of pro-forma promotion, which is not relevant in view of the decision taken. In none of the cases referred, the eligibility of competing candidate was in in issue. The case laws referred by learned counsel for the respondent No.5 hold some relevance, which were discussed in earlier part of this judgment.
18. There is growing tendency of invoking of constitutional jurisdiction even in cases where the question of eligibility is involved or the eligibility of competing Civil Servant is substantially in issue, without appreciating that this court has limited window to judicially review the opinion of competent authority, only if such decision suffers from colourable exercise of authority, patently arbitrary and/or where the affected Civil Servant was non-suited on the basis of personal likes, preferences or prejudices or superseded on the basis of undisclosed adverse material / information.
In this case the order / decision dated 19.03.2018, based on the recommendations of PSB, does not suffer from any illegality or defect. The representation s made in terms of proviso to sub section (2) of section 21 of The Punjab Civil Servants Act, 1974, by the petitioners clearly manifest their intent and grievance to challenge the eligibility of respondent No.5 for promotion, which alone demonstrate that real issue is eligibility and not suitability or fitness.
19. In the circumstances, the question of ineligibility of the respondent No.5 is outside the judicial review jurisdiction. Nevertheless, the questions regarding failure of the PSB to consider the elements of suitability and fitness of the petitioners are misconceived. No case is made out for showing any indulgence.
20. In view of the above, this petition is not maintainable and same is therefore, dismissed.