Athar Minallah, C.J. The petitioner is a civil servant and his grievance is regarding his eligibility . The petitioner has assailed office memorandum, dated 30-03-2021. The petitioner was not considered nor his fitness was determined by a competent forum.
2. In the instant case it is not fitness that has been determined but rather it raises the question of eligibility . The distinction between 'fitness' and 'eligibility' to hold a post has been elucidated by the august Supreme Court in the case of Dr. Ahmed Salman Waris, Assistant Professor , Service Hospital, Lahore v. Dr. Naeem Akhtar and 5 others [PLD 1997 SC 382 ] as follows.- "The question of fitness and suitability to hold a post arises only amongst the eligibles and not between eligibles and ineligibles as held by this Court in the case of Government of Pakistan v. Muhammad Sadiq (1985 SCMR 69). Therefore, where it is contended that a person could not be appointed because he did not possess the required qualifications, the case is not one of his fitness to hold the post but is essentially a question relating to his eligibility for appointment to that post. In the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129) this Court held that the question of eligibility relates primarily to the terms and conditions of service and, therefore, such a dispute is exclusively cognizable by a Service Tribunal. The following observations of the Court from Mian Abdul Maliks case (supra), may be reproduced here with advantage:-- "2. 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 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. On the question of eligibility and qualification no such bar exist either on express words of section 4 of the Service Tribunals Act or even by implication. The petitioner had approached the Civil Court for determination of his eligibility and also for being declared as the only one eligible to be promoted. Such an exercise could not be undertaken by the Civil Court with the limited number of parties arrayed before it nor could it have jurisdiction as the matter related to the terms and conditions of the service."
3. Similarly in the case of Tasleem Jan and others v. Muhammad Zaman and others [2005 SCMR 695], the august Supreme Court held as follows.- "Coming to Section 4 of the N.W.F.P. Service Tribunals Act, it places a bar of jurisdiction on the Service Tribunal only where matter to be determined is the fitness of a Civil Servant to hold an office. Fitness to hold an office is altogether different from eligibility to hold an office. Where fitness of an officer to hold a higher post is a matter of comparative suitability in the light of quantification of performance as a result of subjective decision of the competent authority based on objective principles, it relates only to his personal competence and performance on the job. On the other hand, the eligibility relates purely to the terms and conditions of service. Any right denied on the basis of eligibility or otherwise, can be challenged before the Service T ribunal."
4. It is settled law that the bar under Article 212 is of Constitutional nature and, therefore, curtails the jurisdiction of this Court in respect of matters committed to the learned Federal Service Tribunal. Reliance is placed on the case of "Khalid Mehmood Wattoo versus Government of Punjab and others" [1998 SCMR 2280 ]. It is also settled law that the jurisdiction of a High Court is barred under Article 212 of the Constitution even if an order assailed before the High Court or the proceedings are malafide, coram-non judice, without jurisdiction or on the ground of violation of fundamental rights. Reliance is placed on the cases of "Peer Muhammad versus Governmen t of Baluchistan through Chief Secretary and others" [2007 SCMR 54], "Syed Arshad Ali and others versus Pakistan Telecommunication Company Ltd and others" [2008 SCMR 314], "Khalid Mehmood Wattoo versus Government of Punjab and others" [1998 SCMR 2280 ] and "Noor Badshah Khattak versus Government of N.W.F.P. and others" [ 2004 PLC (C.S) 1084 ].
5. It is further noted that question of vires in the context of determining the rights of a civil servant can also be raised before the Federal service Tribunal. Reliance is placed on "M. Yamin Qureshi versus Islamic republic of Pakistan and another" [PLD 1980 SC 22], "I.A. Sharwani and others versus Government of Pakistan through Secretary , Finance Division, Islamabad and others" [1991 SCMR 1041 ] and "Muhammad Zahoor Abbasi versus Government of the Pun jab through Secretary Education, Civil Secretariat, Lahore and 03 others" [2004 SCMR 549]. It is also admitted that now the Federal Service Tribunal has been validly constituted and has become functional.
6. Since the petitioner is a civil servant and his grievance is regarding the question of his eligibility to be considered for promotion, therefore, the jurisdiction to adjudicate the matter vests exclusively in the learned Federal Service Tribunal. This Court is bereft of jurisdiction and, therefore, the petition is accordingly disposed-of .