' SARDAR MUHAMMAD RAZA, J.---The Departmental Promotion/Selection Committee of the Officers of District Administration, D.I.Khan held a Session on 29-12-1991 regarding the promotions etc. Of various officials. It was chaired by the Deputy Commissioner while a representative of Secretary, Board of Revenue, Peshawar and Acting Assistant Commissioner were the members thereof.
2. At the conclusion of the Session, Iqbal Ahmad Khan was allowed promotion in BPS-15 as Stenographer on regular basis while Muhammad Akram Khan was granted only Selection Grade.
The latter filed an appeal before Commissioner, D.I.Khan Division who accepted the same on 1-4- 1992 and set aside the order dated 2-1-1992 of the Deputy Commissioner that was passed in pursuance of the decision of the Committee. Iqbal Ahmad Khan has challenged the order dated 1- 4-1992 of the Commissioner, D.I. Khan Division, by invoking the writ jurisdiction of this Court under Article 199 of the Constitution.
3. Mr. Muhammad Khan Khakwani, learned counsel for the petitioner, was of the view that the promotion order of Iqbal Ahmad Khan and Muhammad Akram Khan was something that pertained to the fitness of a person for promotion and thus did not fall under the terms and conditions of the service. According to him, the promotion is always based on seniority-cumfitness which is a subject of the subjective approach of an authority based on objective criterion and hence does not fall in the category of terms and conditions of the service. He added that in the above circumstances the order of promotion passed by the competent Authority could not be challenged in appeal.
4. S. Zafar Abbas Zaidi, learned, counsel for respondent Muhammad Akram Khan, was of the view that the promotion of a civil servant squarely falls within the terms and conditions of service and hence the order passed by the Deputy Commissioner was appealable tinder Rule 3 of N.-W.F.P. Civil Servants Appeal Rules, 1986 and that the Commissioner had rightly appreciated the merits of the case. Let us see as to how the matter is dealt with by the law on the subject.
5. Section 22 of Civil Servants Act, 1973, in subsection (1) thereof lays down the provision of appeal or review with special reference to the limitation thereof which is fixed as 30 days. The important factor regarding such appeal is that it should have been provided in the rules applicable to him and it should have related to the terms and conditions of his service. In subsection (2), the provision of representation is given in cases where no appeal or review is allowed, but the representation is also restricted by proviso to only those cases where the fitness of a person to hold a particular post or to be promoted to a higher post or grade is not determined. In other words, where the above fitness is determined by the competent Authority, even representation is not allowed thereagainst.
6. Let us see as to whether the factum of promotion or the various factors considered for promotion regarding the fitness of a person fall under the terms and conditions of the service. It is but a matter of common Knowledge that promotion is never a right of a civil servant. It is the result of his seniority as well as fitness, which two factors, cannot be isolated from each other. It is also a matter of common knowledge that with regard to fitness, numerous considerations are plade which do not fall within the terms and conditions of service. In the instant case as well, the Departmental Promotion Committee, as the minutes thereof would suggest, was not satisfied of the service record of Mr. Muhammad Akram Khan and hence they preferred integrity and honesty to the seniority, if at all Khalil-ur-Rehman v. Government of Pakistan (PLD 1981 Karachi 750) was a case where competent Authority had taken decision with regard to fitness or otherwise of an incumbent to hold a particular post. It was held by Full Bench of Karachi High Court that such decision by itself had not infringed any of terms and conditions of service. The result of the above discussion is that the right of appeal vests only when the terms and conditions of service are determined by the competent Authority, or when the order relates to such terms and conditions. The second aspect of the matter is that fitness or otherwise to hold a post or to hold a higher post is not the terms and conditions of a service.
7. Learned counsel for the respondent referred to N.-W.F.P. Civil Servants Appeal Rules, 1986 and relied upon Rule 3 thereof which provides that a civil servant aggrieved by an order passed by the competent authority could prefer an appeal to the appellant/appellate Authority. It is not disputed that if the appeal is allowed as of right, it lies to the Authority next higher to the Authority that had passed the order. A perusal of Rule 3 would also indicate that the appeal lies only where the competent Authority passes an order relating to the terms and conditions of service. As mentioned earlier, in the present case the promotion order was passed by the competent Authority in the background that fitness for promotion of Muhammad Akram Khan was considered not well. So far, there is a consensus of opinion that fitness or otherwise to hold a particular post or to be appointed to a higher post does not fall within the ambit of terms and conditions of service.
8. The learned counsel for the respondent placed reliance on Syed Badruddin and others v.
Government of N.-W.F.P. (PLD 1994 Supreme Court 345). In this case the question of eligibility of a civil servant to post was discussed. It was also held that in case the conditions of eligibility are violated, the civil servant has a right to go in appeal before the Service Tribunal. It was obviously because the conditions of eligibility are governed by terms and conditions of service. From here one can conveniently draw a difference between the terms eligibility to post and fitness to hold one.
9. Muhammad Anees v. Abdul Haseeb etc. (PLD 1994 SC 539 =1994 PLC (C.S.) 931) is another ruling by the Supreme Court which has further elaborated the above distinction between eligibility and fitness. The only difference is that, in the present authority of the Supreme Court, the word `eligibility' which normally is preferable to initial appointment, happened to be related to the factum of promotion. In that case, by certain notifications the conditions of promotion qua different cadres of Customs Department were altered, to the benefit of one and to be detriment of others. Obviously this affected the eligibility for promotion falling under the terms and conditions of service and the matter was considered to be within the jurisdiction of the Service Tribunal. The ruling has not given a verdict to the effect that eligibility to promotion is the same thing as fitness for promotion.
10. In the instant case, the competent Authority had promoted Iqbal Ahmed Khan on regular basis not because the service conditions were changed or the rules altered but because his rival was not, as a matter of record, fit to be promoted. The above rulings of the Supreme Court, in our view, have interpreted the law in favour of what Mr. Muhammad Khan Khakwani has alleged. We are, therefore, of the considered view that fitness or otherwise to hold a particular post or to hold a higher post does not fall within the terms and conditions of service and it is the subjective approach of a competent authority based on objective criterion. When once it does not fall within the terms and conditions of service, no appeal shall lie either under section 22 of the Civil Servants Act against the order passed by the competent Authority, or under Rule 3 of N.-W.F.P. Civil Servants Appeal Rules, 1986. The latter rule provides for a right to appeal only when the competent Authority passed as order relating to the terms and conditions to service. Thus, the order passed by the Deputy Commissioner, D.I. Khan following the decision of Departmental Promotion/Selection Committee which considered the fitness or otherwise of an official to hold a higher grade, never pertained to the terms and conditions of service and hence was never appealable before the Commissioner, i,e, the next higher Authority. The order passed by the Commissioner, D.I. Khan Division on 1-4-1992 was thus without jurisdiction and lawful authority. The instant writ petition is accepted, the impugned order dated 1-4-1992 of Commissioner, D.I. Khan is set aside and that dated 2-1-1992 of the Deputy Commissioner, D.I. Khan is restored.