1. ' MUKHTAR AHMED JUNEJO, J.---This appeal with leave of this Court filed by appellant Sher Azam Khan is against dismissal of his Service Appeal No,185 of 1994 by the N.-W.F.P. Service Tribunal on 9- 6-1994.
2. ' On 20-2-1994 the appellant was promoted from the post of Hostel Superintendent (B.P.S.-11) to the post of Assistant Provost (B.P.S.-17) in Khyber Medical College, Peshawar, under an order issued by the Government of N.-W.F.P., Health Department dated 20-2-1994. In pursuance of said order the appellant joined his new post on 21-2-1994. Again on 19-4-1994 the Government of N.-W.F.P., Health Department issued an order by which the order of promotion dated 20-2-1994 was withdrawn with immediate effect. Being aggrieved by the said order dated 19-41994, the appellant invoked jurisdiction of N.-W.F.P. Service Tribunal by filing Service Appeal No,185 of 1994 which was dismissed in limine on 9-6-1994 under the impugned judgment. Hence this appeal.
3. ' Mr. M. Zahoor Qureshi Azad, learned counsel for the appellant argued that the learned Tribunal had erroneously held that it had no jurisdiction. The learned counsel referred to section 4 of the N.- W.F.P. Service Tribunals Act, 1973.
4. ' None appeared for the respondent to oppose this appeal.
5. ' While dismissing the appeal the learned Chairman, N.-W.F.P. Service Tribunal took view that the matter before him was beyond the jurisdiction of the Tribunal under section 4 (b) (i) of the N.-W.F.P.
6. Service Tribunals Act, 1974. The learned Chairman, N.-W.F.P. Service Tribunal under the impugned order conceded that the scope of Article 212 of the Constitution of Pakistan was very vast. The learned Chairman desired that the legislation enacted in pursuance of Article 212 ibid should have been made in accordance with the said Article and the Tribunal created by such legislation should have been fully empowered to decide all the terms and conditions exclusively.
7. The learned Chairman appears to have misconceived, that the barring provisions in said Act taking away jurisdiction of the Tribunal from considering fitness or otherwise of promotion of a civil servant, stood in his way in examining the question whether order about promotion of the appellant was rightly or wrongly withdrawn. The question whether a civil servant is fit to be promoted to a superior post is not synonymous with the question whether he has been rightly reverted from a superior post to an inferior post by way of withdrawal of the earlier promotion order. Proviso (b) below section 4 of the N.-W.F.P. Service Tribunals Act, 1974 reads as below:- "4(b).---No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining---
(i) 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; or
(ii) the quantum of departmental punishment or penalty imposed on a civil servant as a result of a departmental inquiry, except where the penalty imposed is dismissal from service, removal from service, or compulsory retirement."
8. The provisions contained in section 4 (b) (i) of the N.-W.F.P. Service Tribunals Act, 1974 do not take away jurisdiction of the Service Tribunal from B examining the question whether promotion order in respect of the appellant was rightly withdrawn or otherwise.
9. ' Consequently we accept this appeal and set aside the impugned judgment and remand the case to the N.-W.F.P. Service Tribunal for disposal according to law.