' This judgment shall dispose of Intra-Court Appeals Nos. 92/1991 and 157/1991 as both these appeals under section 3 of the Law Reforms Ordinance, 1972 arise out of the same judgment of the learned Single Judge of this Court passed in Writ Petition No, 4240/90 whereby the said petition was allowed.
2. The Constitutional petition out of which these appeals have arisen was filed by Dr. Ahmad Salman Waris, respondent No, 1 herein, in which, in addition to the Government of Punjab and the Punjab Public Service Commission, the two appellants in these appeals, namely Dr. Naeem Akhtar and Dr. Muhammad Akmal Sahu, were arrayed as respondents Nos. 3 and 4 respectively. His grievance was that respondents Nos. 3 and 4 were not possessed of the requisite qualification for appointment as Assistant Professors of Urology and that their selection in preference to him was violative of the rules on the subject. It was prayed that the order passed in this behalf may be declared as without lawful authority and of no legal effect and appellants (respondents Nos. 3 and 4 therein) be called upon to show under what authority of law were they holding the posts of Assistant Professors of Urology.
3. The petition was contested by the appellants as also other respondents before learned Single Judge but was allowed on 13-3-1991 on the ground that the appointment of two appellants as Assistant Professors had been procured through fraud, misrepresentation and fabrication of record and that the appellants did not possess the requisite experience. On these findings, the Constitutional petition was accepted and Punjab Public Service Commission was directed to formulate a fresh list of merit in accordance with law and rules on the subject.
4. Before us, Rana Muhammad Sarwar, learned counsel for appellant in ICA No, 157 of 1991 has raised an objection that the Constitutional petition filed by respondent No, 1 out of which these appeals have arisen, was not maintainable in view of Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 as the dispute was essentially relatable to the terms and conditions of civil servants and could, therefore, be agitated only before the Service Tribunal constituted under the Punjab Service Tribunals Act, 1974. In support of this contention, learned counsel has relied upon unreported judgment rendered by one of us (Malik Muhammad Qayyum, J.) in Writ Petition No, 3544 of 1990 which was affirmed by the Supreme Court of Pakistan vide its order dated 18-5-1992 passed in CPSLA No, 292-L of 1992.
5. Mr. Abid Hassan Minto, learned counsel for the appellant in this appeal has also raised the same objection and has argued that the question whether a person is eligible to be appointed/promoted to a post is to be determined with reference to Article 240 of the Constitution and various laws operating in the field and is directly relatable to the terms and conditions of the service and, therefore, jurisdiction of this Court to maintain Constitutional petition was barred by Article 212 of the Constitution.
6. In reply, Mr. Masood Zakriya, learned counsel for respondent No, 1, has vehemently contended that Article 212 of the Constitution as also section 4 of the Punjab Service Tribunals Act, 1974 have no applicability in the present case inasmuch as the dispute is about the initial appointment and not promotion to the post of Assistant Professor of Urology. He has also argued that the controversy in this case being with regard to fitness of a person to be promoted, falls outside the jurisdiction of the Service Tribunal.
7. Having given anxious consideration to the arguments addressed at the Bar, we find force in the contention raised by the learned counsel for the appellants. It is not disputed that at the relevant time, both the appellants as also respondent No, 1 were civil servants in the employment of Government of Punjab and the question as to whether the appellants lacked qualification and were, therefore, not eligible to be considered for appointment/promotion to the post of Assistant Professor is clearly germane to the terms and conditions of service and, therefore, falls within the exclusive jurisdiction of the Service Tribunal constituted under the Punjab Service Tribunals Act, 1974 in contemplation of. Article 212 of the Constitution.
8. We do not feel persuaded to agree with the contention raised by the learned counsel for respondent No, 1 that the question of eligibility cannot be considered by the Tribunal. It has been consistently held by the Supreme Court of Pakistan that the "eligibility" is distinct from "fitness" and where the dispute arises as to whether a person is qualified for appointment/promotion it squarely falls within the jurisdiction of the Service Tribunal inasmuch as the Tribunal is only barred from going into the question of "fitness" or otherwise of a person to be appointed/promoted. In the case in hand admittedly the grievance of the writ petitioner/respondent No, 1 herein was that as the appellants did not possess the requisite experience, they were not eligible to be appointed/promoted. Such a dispute, as already observed above, can only be adjudicated upon by the Service Tribunal and not by this Court in exercise of its Constitutional jurisdiction. Reference in this regard may usefully be made to the judgment of Supreme Court of Pakistan in Nan Ahmad Khurram v. Government of Pakistan and others PLD 1980 SC 153.
9. In giving effect to the objection raised on behalf of the appellants that the petition under Article 199 of the Constitution, out of which the present appeals have arisen, was not maintainable, we also stand fortified by the view taken by the Supreme Court of Pakistan in Abid Mehmood v.
Government of Punjab and others (CPSLA 292-L of 1992) which squarely applies to the facts and circumstances of the case in hand. In the aforementioned precedent, the Supreme Court of Pakistan, after noticing the provisions contained in Article 212 of the Constitution and drawing distinction between fitness/suitability and eligibility, reiterated the principle laid down in Nan Ahmad Khurram (supra) and in the conclusion held as under:- "The High Court was, therefore, justified in holding that the question of eligibility to be considered for appointment or promotion to a post related to the terms and conditions of service and the jurisdiction of the High Court under Article 199 was ousted on the strength of Article 212 of the Constitution which has a non-obstante clause."
10. In view of the above clear and unambiguous pronouncement, we are not in a position to give any effect to the plea raised by the learned counsel for respondent No, 1 that in respect of appointment to the service, the jurisdiction of the Service Tribunal is barred. Reliance of the learned counsel on the judgment of Division Bench of Sindh High Court in Muhammad Aslam Khan v.
Government of Pakistan through Secretary, Ministry of Health, Special Education and Social Welfare, Islamabad and 2 others PLD 1993 Karachi 41 is of no avail as that case is distinguishable on facts and in any event, there is no detailed discussion on the subject and the pronouncement of the Supreme Court in the above-cited case was not brought to the notice of the learned Judges of Sindh High Court. In any case we are not in a position to follow the judgment of the Sindh High Court in preference to those of Supreme Court of Pakistan in two cases mentioned above.
11. In these circumstances, we are clearly of the view that the Constitutional petition, filed by respondent No, 1 before the learned Single Judge, was not maintainable and was hit by Article 212 of the Constitution.
12. It may also be observed that the learned counsel for respondent No, 1 has argued that this objection be not given effect as it was not raised before the learned Single Judge. Apart altogether from the position that the above contention of the learned counsel for respondent No, 1 is not supported by the record inasmuch as this is one of the specific objections taken by the appellants in the written statement filed to the Constitutional petition, the objection being of a basic nature as to the jurisdiction of this Court and being such which goes to the very root of the matter the appellants would be entitled to raise the same before us in appeal even if it had not been raised before the learned Single Judge. It may further be observed that by holding that the Constitutional petition before this Court was not maintainable, respondent No, 1 would not be rendered remediless as he may, if so advised, have recourse to the Service Tribunal.
13. Before parting with the case it may be pertinently mentioned that learned counsel for respondent No, 1 has voiced an apprehension that his remedy before the Service Tribunal may be barred by limitation. If that be so, it is open to respondent No, 1 to apply for condonation of delay by seeking exclusion of the period spent by him in prosecuting his remedy before this Court particularly in view of the fact that his Constitutional petition was accepted by the learned Single Judge. We have no doubt that such an application, if filed, shall be given due consideration by the Service Tribunal and the same will be decided in accordance with law.
14. Subject to the above observations, we allow these appeals and set aside judgment dated 13-3- 1991 of the learned Single Judge and recall the direction issued by him under Article 199 of the- Constitution.
' In the attendant circumstances of the case there will be no order as to costs.