IRSHAD HASAN KHAN, J: --This Intra-Court arises from the judgment and order dated 2-2-1992 passed by the learned Single Judge in Writ Petition No. 6351 of 1991: Ashfaq Ahmad Qureshi was serving as Superintending Engineer, 1st Building Provincial Circle, Rawalpindi, under the Government of Punjab. He challenged Notification No.SOEI (C&W)3-42/67, dated 21-7-1991 issued by the Government of the Punjab, Communication and Works Department, whereby Mr. Abdul Vakil Malik, Superintending Engineer/Director, P&D, Punjab Highway Department, Lahore, appellant herein, was granted pro forma promotion as Superintending Engineer with effect from 20-1-1981 i.e. The date when his junior Mr. Sajid Ali Gardezi was so promoted. His grievance was that pro forma promotion of the appellant adversely affected his interest and that he has been condemned unheard and no opportunity of hearing was given to him before passing the order for pro forma promotion to defend his valuable rights. The appellant contested the writ petition inter alia on the ground that this Court had no jurisdiction to interfere in matters relating to terms and conditions of civil servants in view of the bar contained in Article 212 of the Constitution. The learned Single Judge repelled the contention with the following observation: "------This pro forma promotion as per document R.1, R.2 and R.3 was based on the decision of departmental authority regarding his fitness to be promoted to the said post as in this case the promotion was to take place through the process of selection and the effect produced by this order was that he is to rank as senior to the petitioner who but for this order would have been junior to the petitioner with reference to the date of his regular promotion i.e. 22-i1-1988 therefore, the question of seniority in this case is not directly involved for if the order dated 21-7-1991 is struck down the effects and consequences produced by it would automatically vanish. Under the abovementioned proviso (b) (of section 4(1) of the Punjab Service Tribunals Act, 1974) the jurisdiction of the Service Tribunal does not extend to the decisions of departmental authority about the fitness of a person to be promoted to a post therefore, the impugned order dated 21-7- 1991 could not be challenged before the Service Tribunal. This being so, the bar under the Article 212(2) of the Constitution was not applicable in this case. The objection is repelled"
On merits it was held that the discretion exercised by the departmental authority in promoting the appellant was violative of the principles of natural justice, in that, he was not heard, therefore, on that ground alone the order was liable to be set aside.
2. The controversy raised herein is concluded by the judgment of the Supreme Court in Mrs. Aqeela Asghar Ali v. Miss Khalida Khatoon Malik and others (PLD 1991 Supreme Court 1118), wherein it was held that where the pro forma promotion of a civil servant is questioned, it had to be shown that the situation was compulsive for the Government and that a civil servant had a legal right to be so promoted. It was further held that in the context of the relevant instructions as contained in the ESTACODE that pro forma promotion was not so much a question of fitness as of having been illegally deprived of a right possessed by the civil servant, this question was certainly open to examination by the Service Tribunal and its jurisdiction was not ousted by section 4 of the Service Tribunals Act, fitness being not one of the considerations therein. It is the case of both the learned counsel for the parties that the question directly in issue was whether the appellant was entitled to pro forma promotion or not? Such a question would squarely fall within the jurisdiction of Service Tribunal. Refer Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCM R 365), wherein it was held that the question relating to eligibility/ineligibility of a civil servant for being considered for promotion are questions, which fall within the exclusive jurisdiction of the Service Tribunal and the High Court has no jurisdiction to entertain the Constitutional petitions in such matters. Also see IA. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041), wherein it was reiterated that Service Tribunal will have exclusive jurisdiction in a case which is founded on the terms and conditions of service even if it involves the question of violation of the fundamental rights.
3. When faced with this learned counsel for respondent No.1 submitted that the Service Tribunal will have no jurisdiction as both the parties have retired from service. The contention is misconceived.
In terms of clause (b) of section 2 of the Punjab Service Tribunals Act, 1974 "Civil servant" means a person who is or who has been a member of a civil service of the province or who holds or has held a civil post in connection with the affairs of the Province------..". Here the parties admittedly have been member of the civil service of Punjab therefore, the apprehension expressed by learned counsel for the private respondent is ill-founded.
4. In view of the above, it is not necessary to examine findings on merit recorded by the learned Single Judge as the order under appeal is liable to be rescinded for want of jurisdiction of this Court. The result is that the order of the learned Single Judge issuing the writ is re-called. The writ petition is dismissed with no order as to costs.