AJMAL MIAN, J.---We intend to dispose of the above three appeals by this common judgment as they are directed against a common judgment of a Division Bench of the High Court of Sindh passed in Writ Petition No. D-839 of 1985, filed by the private respondents in the above three appeals, challenging the notifications, whereby inter alia in Civil Appeals Nos. 1266 and 1267 of 1990, the appellants, who were working as Assistant Collectors in Grade-17, were promoted to Grade-18, allowing the same in the following terms: -- "We, therefore, hold that the present petition is competent and direct the respondents Nos.1 and 2 to consider the case of the petitioners in accordance with rules and law applicable to their case for the purpose of promoting them to a higher grade of pay scale."
2.The brief facts are that on 1-10-1978, when the then President Muhammad Ziaul Haque visited West Wharf of the Karachi Port to see off Haj pilgrims, certain members of the staff of the Customs Department posted at the above Wharf, complained to him about their problems. Thereupon, the then President decided that the posts of Preventive Officers of Customs Department working in Basic Pay Scale 10 were to be placed in Grade-13 and those who were working as Appraisers in Grade-13 were to be upgraded and placed in Grade-17.
The late President recorded his above order in the form of minutes. The above decision was forwarded for implementation on 2-10-1978 to the Ministries concerned. After that, the Central Board of Revenue issued notification bearing No. 145-ACE. 1/80 of 15-9-1980, whereby the posts of Principal Appraiser/Appraiser were upgraded from Grades 16 and 13 respectively to that Grade-17 and 148 Principal Appraiser/Appraisers were appointed to the upgraded posts of Grade-17 with effect from 1-3-1979 until further orders. The above notification with the omission of the names reads as follows:-- "Islamabad, the 15th September, 1980. No. 155-ACE 1/80.--In pursuance of President's order dated October, 1978, the posts of Principal Appraiser/Appraisers in the Customs Department have been upgraded from Grades 16 and 13 respectively to Grade-17 and the competent authority has been pleased to appoint the following Principal Appraiser/Appraisers to the upgraded posts of Principal Appraiser/Appraisers in Grade-17 with effect from 1st March 1979 and until further orders: S. No Name 1 2.
148.
(2)The above order in itself does not confer any wrong seniority over anyone else.
(3)The above-named officers shall be on probation period of one year which may be curtailed for good sufficient reasons to be recorded, or extended by order by a further period not exceeding one year, provided if no order has been made by the day following nomination of either of the aforementioned probation periods, the appointment shall be deemed to be held further orders.
(4)This notification supersedes any other similar notification(s) on the subject."
3. The above notification was, inter alia, followed by Annexure II to O.M. No. 1(1)-IMP/83 dated 18-8- 1983 (at page 131 of the paper book of Civil Appeal No. 1266 of 1990), wherein the following note appeared:-- "The existing incumbents drawing pay in the upgraded posts of Preventive Officers (NPS-13) and Appraisers/Valuation Officer/Principal Appraisers (NPS-17) will continue to draw pay in the corresponding Basic Pay Scale B-13 and B-17 respectively as personal to them 'so long they hold those posts:'
After that a seniority list was issued through covering letter No. C.No.1/32/74-ACE-I dated the 8th November, 1984 (at page 87 of the paper book of Civil Appeal No. 1266 of 1990). Para. 3 of the above covering letter reads as follows:-- "3. The seniority of officers who were promoted from those the then class 11 gazetted officers of Customs and Excise Group on purely temporary and replaced basis on Assistant Collector (Class 1) in the then Pakistan Customs and Excise Service against the quota reserved for direct recruitment, vis-a-vis the direct recruited Assistant Collector, has been determined on the principle that such appointees have to be reflected on the combined seniority list of Customs and Excise Group with effect from the date vacancies in the cadre of Assistant Collector become available against promotion quota of prescribed under S.R.O. No. 597(K) dated 10th December, 1959 containing the Resolution of Ministry of Finance (Revenue Division), Karachi."
4. After that it seems that the above impugned notifications promoting the present appellants were issued which were impugned by the private respondents (52 in numbers) through the above Writ Petition, which was allowed by a Division Bench of the High Court of Sindh in the above terms as stated hereinabove, though the appellants resisted the above writ petition besides merits on the ground that the same was not maintainable in view of Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973; hereinafter referred to as the Constitution.
Thereupon, private appellants in Civil Appeals Nos. 1266 and 1267 of 1990 filed two petitions for leave to appeal, whereas the official appellants in Civil Appeal No. 1268 of 1990, also filed a separate petition for leave to appeal. The above petitions were granted to consider the following questions:- - (i)Whether in view of Article 212(3) of the Constitution, the High Court had the jurisdiction in the matter? Refer to our decisions in the Superintendent of Police, Headquarters, Lahore and 2 others v.
Muhammad Latif (PLD 1988 SC 387), Abdul Wahab Khan v. Government of the Punjab and 3 others (PLD 1989 SC 508), and Rana Muhammad Sarwar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCM R 999).
(ii)Whether the question raised is not substantially decided in our judgment in Muhammad Wasim Warsi and others v. Shamsuddin Shah and others (PLD 1990 SC 851)?
5. Messrs SAL Zafar and K.MA. Samdani, Advocates argued Civil Appeals Nos. 1266 and 1267 of 1990 on behalf of the appellants, whereas the official appellants in Civil Appeal No. 1268 of 1990 were represented by Mr. Shahudul Haq, learned Standing Counsel.
The respondents were represented by Messrs AA. Fazeel, A.H. Lakho and Kanwar Mukhtar Ahmed, Advocates.
The thrust of the arguments of Messrs S. M. Zafar and K. M. A. Samdani was that the respondent's above Writ Petition was barred by Article 212 of the Constitution as under the Service Tribunals Act, 1973, hereinafter referred to as the Act, the Service Tribunal, hereinafter referred to as the Tribunal, had the jurisdiction. Their further submission was that even on merits the respondents had no case for the above relief, which has been granted by. The High Court as they were upgraded to Grade-17 for the purpose of pay and other emoluments as personal favour to the incumbents, but they were not placed in the same cadre as the appellants in Civil Appeals Nos. 1266 and 1267 of 1990, who belonged to the cadre of Assistant Collector.
On the other hand, Messrs Ali Ahmed Fazeel and Abdul Hafeez Lakho, learned counsel for the private respondents, had urged that in view of proviso (b) to subsection (1) of section 4 of the Act, the Tribunal had no jurisdiction as the question involved was, whether the private respondents were fit to be appointed in Grade-18. Their further submission was that even on merits the private respondents had strong case as the above appellants and the private respondents belonged to the same cadre i.e. Grade-17 and, therefore, the private respondents could not have been bypassed while considering the question of promotion to Grade-18.
6. Since we are inclined to hold that the above writ petition was not competent in view of Article 212 of the Constitution and as we are inclined to remand the case to the Tribunal, we have refrained ourselves from making any observation on the merits of the case including on the above-quoted portions of notifications/letters about the upgradation of posts and the appointment of the private respondents, though the learned counsel for the parties had touched upon the above aspect in their arguments and had referred some case --law in support of their submissions.
7. To determine the question, whether the above writ petition was barred by Article 212 of the Constitution, it may be pertinent to refer the relevant portion of Clause (1) of Article 212 of the Constitution and above proviso (b) to subsection (1) of section 4 of the Act, which read as follows:- - Clause (11 of Article 212 of the Constitution "212(1).--Notwithstanding anything hereinbefore contained, the apprdpriate Legislature may by Act provide fob the establishment of one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons who are or have been in the service of Pakistan, including disciplinary matters;"
"Section 4(1) of the Act 4;
4. Appeals 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 service 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 later, prefer an appeal to the Tribunal: Provided that (a)Where an appeal, review or representation to a departmental authority is provided under the Civil Servants Act, 1973 (LXXI of 1973), or any rules against any such order, no appeal that lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for, review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was not preferred.
(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 post or grade;"
8. A perusal of the above-quoted Clause (1)(a) of Article 212 of the Constitution indicates that it envisages that the Administrative Courts or Tribunals will have exclusive jurisdiction in respect of matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan including in disciplinary matters.
It may further be noticed that under subsection (1) of section 4 of the Act, 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 the service, has been given right to prefer an appeal to the Tribunal within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal.
It may further be pointed out that Clause (b) of the proviso to above subsection (1) of section 4 of the Act lays down that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade.
9. The basic question in issue is, whether the claim of the private respondents in the above writ petition was covered by above Article 212(1)(a) of the Constitution or was it excluded by above Clause (b) of the proviso to subsection (1) of section 4 of the Act from the jurisdiction of the Tribunal.
Messrs S.M. Zafar and K.MA. Samdani have highlighted that there is a marked distinction between eligibility to be considered for selection to a particular post or grade and to be found fit to hold a particular post or grade.
Whereas Messrs Ali Ahmad Fazeel and Abdul Hafeez Lakho have urged that the words "eligibility" and "fitness" carry the same meaning and, therefore, by virtue of above proviso (b) to subsection
(1) of section 4 of the Act, the Tribunal had no jurisdiction over the controversy in issue.
Mr. S.M. Zafar has referred to the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCM R 1129) in which this Court while declining leave to a petition for leave to appeal in service matter has dilated upon the distinction between eligibility and fitness, as under:-- "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 of or 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.
On the question of eligibility and qualification no such bar exists 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 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."
A perusal of the above-quoted para. From the above report indicates that Mr. Shafiur Rahman, J.
Has succinctly brought out distinction between eligibility and fitness and has pointed out that the question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, the Tribunal has jurisdiction, and whereas the question of fitness is a 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 of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness.
10. Mr. K.MA. Samdani has invited our attention to subsection (1) of section 9 of the Civil Servants Act, 1073, to demonstrate that the question of eligibility has been treated differently than the question of fitness and it is a term of service.
It may be advantageous to reproduce above subsection (1) of section 9 of the above Act, which reads as follows:-- "9. Promotion.--(1) A civil servant possessing such minimum qualification as may be prescribed shall be eligible for promotion to a higher post for the time being served under the rules for departmental promotion in the service or cadre to which he belongs."
A plain reading of the above-quoted subsection indicates that it confers a right on a civil servant to be considered for promotion if he possesses minimum qualification as may be prescribed for the eligibility -->f promotion. In other words, eligibility is a term of service.
11. On the other hands, Mr. Ali Ahmed Fazeel, Sr. ASC appearing for the private respondents in Civil Appeal No. 1266 of 1990, has invited our attention to the following cases:--
(i) lqan Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153 relevant at page 159); In the above case, this Court observed as follows on the question of eligibility:-- "This is a common grievance in the other two petitions and they would also be hit by the same bar.
We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and-no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the -method of recruitment and promotion in supersession of the existing Rules which. Provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal."
(ii)Muttaqi Hussain Rizvi v. Province of Sindh and another PLD 1978 Kar. 703.
In this case the question involved was, whether suit filed by the petitioner Muttaqi Hussain Rizvi in the District Court, Hyderabad, challenging his reversion was maintainable? It was held that since he did not possess the requisite Engineering Degree, he was not entitled to promotion. His plaint was ordered to be rejected under Order VII, Rule 11, C.P.C. By a learned Single Judge of the Sindh High Court while exercising suo motu revisional jurisdiction. However, on the question of eligibility, the following observations were made:-- "I am accordingly of the humble view that despite the enactment of the Civil Servants Act, specifically providing how promotion is to be made to the higher posts and grades, a claim to promotion is not a vested right and cannot be enforced through a civil suit or even by invoking the Constitutional Jurisdiction of the superior Courts. It may be pointed' out that mere seniority even in the case of a non-selection post, will not entitle a person to promotion, 'as even in such cases the basis of promotion is seniority-cum-fitness, and fitness can appropriately be determined only by the competent Administrative Authority. However, the right to be considered for promotion, where person is eligible for promotion, is vested right and if the eligible person is not considered for promotion, or a person not otherwise qualified under the rules is promoted illegally or against the rules in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted, through a civil suit or by invoking the Constitutional jurisdiction of the superior Courts, since this matter is not within the purview of the Service Tribunal.
(iii)Saghir Ahmad v.. Federation of Pakistan and 3 others PLD 1976 Lah. 287.
In which question was, whether upon the enforcement of the Service Tribunals Act, 1973, the suit in which petitioner had challenged' certain decision of the department for not considering him for promotion had abated or not. Aftab Hussain, J. Of the Lahore High Court on the above aspect observed as follows:-- "On the facts proved by the petitioners, it :s clear that the Vice Chairman had approved his eligibility to this post. No doubt the Chairman has been admitted to be a competent authority to make the formal appointment, but he cannot take away the validity given to the decision about eligibility of the petitioner to this post by a specific or even a tacit order. His conduct notwithstanding the selection amounts to deciding that the petitioner should not be considered to be fit person for promotion to a higher grade. The matter is, therefore, covered by proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1973. The upshot of this discussion is that the jurisdiction of the Tribunal does not extend to dealing with cases of the present nature. It cannot therefore be held that the Civil Court's jurisdiction was in any way barred or the suit pending before the Senior Civil Judge in any manner abated:'
12. Mr. Ali Ahmed Fazeel has also referred to the definitions of the words "eligible" and "fit" given in the Legal Thesaurus (Regular Edition) by William C. Burton, which read as under:-- "Eligible" acceptable, appropriate, approved, befitting, capable, desirable, dignus, employable, fit for appointment, fit for election, fit for selection, fit to be chosen, fitting, idoneus, legally qualified opportunus, proper, qualified, right, satisfactory, suitable, usable. Associated concepts: eligible to hold public office."
"Fit" able, acceptable, accommodated, adapted, adequate, adjusted, advantageous, advisable, applicable, apposite, appropriate, apropos, apt, aptus, becoming, befetting, capable, commodus, compatible, competent, concordant, comformable, congruous, consistent, consonant, correspondent, eligible, fitted, fitting, harmonious idoneus, in keeping, in place, legitimate, matched, opportune, pertinent, prepared, primed, proper, qualified, ready, relevant, right, seasonable, seemly, sortable, suitable, suited, tailor-made, tasteful, to the purpose, well-fitted, well-qualified, well- suited, well-timed, wise, workable, worthy.
Associated, concepts: fit for use, fitness for a particular purpose, implied warrantly of fitness, reasonably fit for the purpose intended."
At this juncture, it may be pertinent to refer to the definitions of the above words in the Black's Law Dictionary, Fifth Edition and Stroud's Judicial Dictionary, Fourth Edition, Volume 2:- Black's Law Dictionary "Eligible": Fit and proper to be chosen; qualified to be elected. Capable of serving, legally qualified to serve. Capable of being chosen. As a candidate for office. Also, qualified and capable of holding office, see also capacity."
"Fit": Suitable or appropriate. Comformable to a duty. Adapted to, designed, .Prepared."
Stroud's Judicial Dictionary. Fourth Edition "Fit" (1) ... ... ... ... ... .... ... .... ... .... ... ... ... ... ... ... ... ... ... .. ... ... ... ... ...
(2)But "fit" or "fit and proper" has also the meaning just stated with the added condition that the person to be appointed is legally eligible, e.g. a "fit and proper" person to be appointed church warden (Church Building Act, 1831(C.38), (S.16) had to be resident in the parish (R.v. Harding 6 T.L.R.
53; R,v. Cree, 67 L.T. 566; as to such residency, see Stephenson v. Langston, 1 Hagg Con. 379).
(3)------------------------------------------------------.
(4)"Fit and proper person" as regards Licensing Act, 1910 (C.24), S.23: see R.v. Holborn Licensing Justices, 42 T.L.R. 778."
Eligible;
(1) This word, as applied to the selection of persons, has two meanings, i.e. "legally qualified" or "fit to be chosen" (per Lord Chelmsford, Baker v. Lee, &H L Cas. 495): (2)------------------------------------------------------------------..
(3)
(4)
(5)
(6)
13. We may observe that above-quoted observations in the case of lqan Ahmed Khurram v.
Government of. Pakistan and others (supra) support Mr. Ali Ahmed Fazeel's above contention but in the above case distinction between eligibility and fitness has not been noticed and considered, whereas in the case of Mian Abdul Malik v. Sabir Zamir Siddiqui and for others (supra), the above aspect has been thoroughly dealt with and it has been pointed out that the Tribunal has jurisdiction to go into the question of eligibility, being a term of service, but on the question of fitness, it has no jurisdiction as it is a matter of subjective evaluation on the basis of objective criteria, which cannot be substituted by the Tribunal or the Court. .
Since the latter case is a subsequent in point of time and' is of a larger Bench, it will prevail, over the former case. Additionally, in the former case the above distinction has not been dealt with and, therefore, it can be distinguished.
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.
The question of fitness of their being appointed is to be determined by the functionaries mentioned therein. In other words a person may be eligible for consideration for a particular post, but may not be fit to be appointed.
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 bean 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.
14. The above conclusion not only gets support by above subsection (1) of section 9 of the Civil Servants Act, 1973, but also by Rule 8 and Rule 8-A o--- the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, hereinafter referred to as the Rules, which read as under:-, "8. Only such persons as possess the qualifications and meet the conditions laid down for the purpose of promotion or transfer to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be.
8-A. No promotion on regular basis shall be made (to posts in basic pay scales 18 to 21 and equivalent unless the officer concerned has completed such minimum length of service as may be specified from time to time)."
A perusal of above-quoted Rule 8 indicates that only such civil servants who possess. The prescribed qualification and meet the conditions laid down for the purpose of promotion are entitled to be considered for promotion by Departmental Committee or the Central Selection Board. Whereas above Rule 8-A shows that no regular promotion shall be made to the post in basic pay scales 18 to 21 and equivalent unless the officer concerned has complete' such minimum length of service as may be specified from time to time.
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 along with 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 above 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. The judgment of the learned Single Judge of the Sindh High Court and of the Lahore High Court relied upon by Mr. Ali Ahmed Fazeel, learned Sr. ASC, do not correctly enunciate the legal position.
16. We would, therefore, allow the above appeals and set aside the judgment under appeal with no order as to costs. However, we would remand the case to the Tribunal with the direction that the above writ petition filed by the private respondents before the High Court shall be treated as a service appeal pending before it, which will be decided after notices to the parties concerned in accordance with lava.