1. SAEEDUZZAMAN SIDDIQUI, J.---The petitioners are seeking leave to appeal against the judgment of a learned Judge in Chambers of the Peshawar High Court dated 24-10-1992 whereby Civil Revision Application No.251 of 1991 filed by the respondents against the two concurrent judgments of the Courts below, was allowed and the judgment and decree granted in favour of the petitioners in Civil Suit No.136/1 of 1988 by the Civil Judge, Peshawar, and confirmed in appeal by the Additional District Judge, Peshawar, was set aside and the suit filed by the petitioners was ordered to be dismissed as not maintainable.
2. The relevant facts are that the petitioners instituted a Civil Suit before the Civil Judge, Peshawar, seeking declaration that the conditions imposed by the Government of N: W.F.P, vide memo No. S.O.E. (AD) II (2)
3. 352/83/13462-78 dated 4-5-1985, that the officers working in Grade 17 in the Agricultural, Forest and Cooperative Department on the Agricultural side or on the Animal Husbandry side, who are simple graduate, will not be eligible for further promotion unless they acquire higher qualification of M.Sc.
4. (Agriculture) or M.Sc. (A.H.)/D.V.M., was illegal and contrary to the service rules framed by the Government and as such same could not affect their rights of promotion to N.P.S.-18 and onward.
5. The trial Court granted the decree in favour of the petitioners in the above suit in the following terms: "As a sequel to my above discussion, I pass a decree for declaration in favour of plaintiffs to the effect that the letter No.5.O.R.(AD)II(2)/352/83/13462-78 dated 4-5-85 is without jurisdiction and ineffective on the rights of plaintiffs. I also pass a permanent injunction in favour of plaintiffs against the defendants not to stop promotion on the basis of above mentioned notification with costs."
6. On appeal the Additional District Judge, Peshawar agreed with the trial Court and confirmed the above judgment and decree. On a Civil Revision Application filed by the respondent/Government of N: W.F.P., the learned Judge in Chambers reached the conclusion that the controversy raised in the civil suit by the petitioners related to their terms and conditions of service and as such Civil Court had no jurisdiction to decide the same. Consequently, the Civil Revision Application was allowed and the judgments and decrees of the two Courts below were set aside.
7. The learned counsel for the petitioners contended before us that the question agitated by the petitioners before the `Civil Court related to their promotion to a higher post and as such on a plain reading of Section 4 of the N: W.F.P. Service Tribunals Act, 1974 (hereinafter to be referred to as the Act only), it would appear that such controversy was outside the jurisdiction of Service Tribunal. The scope of section 4 of the Act' was examined by this Court in the case Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCM R 1129 and following observations were made:--- "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 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 Tribunal 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."
8. It is, therefore, quite clear from the above observations that the question relating to determination of eligibility of a .Civil servant to a post is not outside the jurisdiction of the Service Tribunal constituted under Article 212 of A the Constitution. Therefore, as a necessary corollary such question could not be tried or gone into by a Civil Court. The learned counsel for the petitioners, however, placed reliance on an unreported decision of, this Court in Civil Appeal Nos.262-P & 263-P of 1990 decided on 15-12-1992, to contend that the question relating to promotion was outside the jurisdiction of the Tribunal and as such the jurisdiction of Civil Court in such matters was not barred. In the unreported case relied by the learned counsel for the petitioners, the appellants had prayed before the Tribunal that they were illegally denied Selection Grade (BPS-16) by the Government. From the facts as stated in the above unreported judgment, it appears that the Tribunal granted the prayer for awarding selection Grade to appellants. Can appeal this Court after referring to the case of Government of Punjab v. Muhammad Shahid 1991 SCM R 696, held that change to a grade or scale of pay for better one would amount to promotion and therefore, bar contained in Section 4(b)(91) of the Act was equally applicable to the determination of fitness for promotion to Selection Grade. Therefore, the ratio laid down in the above-unreported case is on no way different from that enunciated in the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others ibid. We have considered the Government made by the petitioners in their plaint in the civil suit and have also considered their prayer in the above suit and are of the view that the controversy raised by them in the above suit related to their eligibility for further promotion to Grade-18 and onward. In these circumstances, the learned Judge in Chambers rightly held that the suit was not maintainable as the question of eligibility was cognizable exclusively by the Service Tribunal, in view of the law laid down by this Court in 1991 SCM R 1129 ibid. There is no merit in this petition, which is: accordingly, dismissed.
9. However, it is left open for the petitioners to agitate their grievance before the Service Tribunal, if it is so available to them under the law.