Abid Aziz Sheikh, J.- This appeal has been filed against the order dated 27.2.2019 (impugned order) passed by leaned Single Bench of this Court whereby constitutional petition filed by respondent was allowed.
2. Brief facts are that through writ petition No.2040/2015, the respondent assailed minutes of meeting of Departmental Promotion Board (DPB) held on 09.12.2014, whereby petitioner was not recommended for promotion to the rank of S.P (BS-18). The learne d Single Bench finally allowed the writ petition and directed DPB to reconsider the case of respondent for promotion in terms of direction issued by learned Single Bench. The appellant department being aggrieved has filed this Intra Court Appeal.
3. Learned Law Officer submits that impugned order was passed without taking into consideration that the conduct and efficiency of the respondent was duly considered by DPB before not recommending him for promotion. Further submit that subjective evaluation and objective criteria mentioned in the report and parawise comments were also not considered in impugned order .
4. Learned counsel for the respondent on the other hand submits that matter being relating to the fitness of a civil servant, the constitutional petition was maintainable. He further submits that record of respondent was unblemished, therefore, order dated 09.12.2014 passed by DPB was lawfully set aside by the learned Single Bench.
5. We have heard the arguments of learn ed counsel for the parties and perused the record. The relevant part of minutes of DPB minutes held on 09.12.2014 for not recommending the case of respondent for promotion to rank of SP (BS-18) is reproduced hereunder:- "In compliance with the directions of the Hon'ble Lahore High Court, Multan Bench dated 29.4.2014 and order dated 27.11.2014, case of the petitioner was considered by the Board and discussed at length. It was observed that the officer is not capable of critically analyzing cases. He is not emotionally mature enough to shoulder responsibilities of higher post. His behavior with public is also not up to the mark and does not enjoy good reputation. Moreover, he is of doubtful integrity and professionally incompetent. Promoting such an offer will send wrong message to rank and file of Police as well as to the general public. The Board, therefore, unanimously decided that the officer may not be recommended for promotion to the rank of SP/BS-18 on regular basis".
For convenience, Para 7 and 8 of the report and parawise comments filed by the department in writ petition No.2040/2015 are also reproduced hereunder:- "Police Department has devised a mechanism whereby reports about financial integrity , professional competency , professional efficiency/effectiveness, behavior with staff and public (accessible to general public or not) and general reputation etc are obtained from concerned Regional Police Officers and Addl: Inspector General of Police, Special Branch regarding all DSPs. Therefore, vide IGP office memo: No.2460/ EXEC-II, dated 10.7.2014 such report was sought from all RPOs/Addl: IGP , Special Branch.
As per RPO/D.G. Khan' s report submitted vide memo No.31 113/EA-I, dated 16.7.2 014 (Annexure-I) petitioner was "Reported to be corrupt" general reputatio n is controversial and his overall category was below average. Promoting such an officer to the rank of SP would adversely affect the image of the department. Moreover , it would also compromise public service delivery . Therefore, the petitioner was superseded in large public interest and to make a difference/distinction between good and bad police officer".
6. The perusal of aforesaid minutes of DPB meeting held on 09.12.2014 shows that case of respondent for promotion was considered by the DPB and discussed at length, however , DPB observed that officer is not capable of critically analyzing cases, he is not emotionally mature enough to shoulder responsibilities of higher post, his behaviors with the public is not up to the mark and he does not enjoy good reputation. The DPB also observed that respondent has doubtful integrity and professionally incompetent. It was for above reasons, that DPB unanimously decided not to recommend the case of respondent for promotion to the rank of S.P (BS-18) on regular basis. The above assessment of DPB was subjective assessment based upon objective criteria and mechanism devised by the department as explained in para 7 and 8 of the report and parawise comments filed by the department.
7. Normally , the question of determination of fitness of a person to be promoted, is not capable of being scrutinized on the basis of judicially manageable standards. The fitness introduces an element of subjective evaluation on the basis of objective criteria, where substitution of the opinion of the competent Authority by the Court is not possible.
However , where the Authority competent to award promotion or to appoint to a particular post, acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of power conferred on it, only then extra ordinary constitutional jurisdiction of this Court can be invoked under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (Constitution). The record shows that in present case, the department itself has devised objective criteria by issuing policy guidelines and developing method for assessment of the performance of the officer for the purpose of promotion. The said assessment is based upon subjective opinion of the evaluation reports. This Court cannot sit in judgment over said subjective evaluation but can only examine if objective criteria was followed or not by the competent Authority.
8. The legal question whether this Court can sit in judgment over subjective evalua tion of fitness by the competent Authority , has also been discussed by the Hon'ble Supreme Court in case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1 129), where it is held that:- ........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 exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification.
In case of Muhammad Iqbal Executive District Officer (2007 SCMR 682), it is held as under:- There may be no cavil with the proposition that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colourable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution can always be invoked for redressing the wrong.
9. In the above context, the perusal of impugned order shows that learned Single Bench has neither examined subjective evaluations nor considered the objective criteria for determination of fitness. Further , learned Single Bench has not come to the conclusion that Authority had passed the order in colourable exercise of power or order was without jurisdiction or against law or malafide. In absence of any of such discussion and conclusion, the learned Court could not come in aid to the respondent by setting aside the subject ive evaluation by the competent Authority regarding fitness of the petition er. Though, the learned Single Bench in impugned order observed that non recommendation of case of the respondent was without reason and justification, however , the said finding is not supported by record, where in report and parawise comments, specific reference has been made to the RPO/D.G Khan' s report dated 16.7.2014, whereby respondent was reported to be corrupt and his overall integrity was below average.
10. There is another important legal aspect of the matter, which requires legal consideration of this Court.
Under Article 212 of the Constitution, the Tribunal will have exclusive jurisdiction in matters relating to terms and conditions of person in the service of Pakistan. In term of Article 212 of the Constitution, the Punjab Service Tribunal was constituted under Punjab Service Tribunal Act, 1974 (Act). For convenience, section 4(1)(b) of the Act is reproduced hereunder:- Appeal to Tribunals .----(1) Any civil servant aggrieved by any final order , whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his servic e may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is latter prefer an appeal to the T ribunal.----
(b) no appeal shall lie to a 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 a higher grade; and
11. The plain reading of section 4 subsec tion (1) and (b) of the Act shows that any civil servant aggrieved by any final order passed by departmental Authority in respect of any terms and conditions of his service may prefer an appeal to the Tribunal but in respect of decision or orders of departmental Authorities determining the fitness or otherwise of a person before promotion to a higher grade, Service Tribunal will have no jurisdiction. This provision explicitly shows that departmental Authorities shall have exclusive jurisdiction to determine the fitness of person to be promoted or not to a higher grade and even Service Tribunal which has exclusive jurisdiction in matter relating to terms and conditions of service (under Article 212 of the Constitution and the provisions of the Act), will have no jurisdiction to question such determination by department on question of fitness. Therefore, in absence of jurisdictional defect, malafide, patent illegality or colourable exercise of power in the order, the interference through constitutional petition in matter of fitness and substituting opinion of departmental Authorities relating to fitness for promotion, would amount to circumvent the intention of legislation.
12. In view of above discussion, the instant appeal is allowed and impugned order dated 27.2.2019 passed by learned Single Bench is set aside.