1. ' SAIDUZZAMAN SIDDIQUI, J.---The above appeal with the leave of this Court is directed against the order of a learned Judge in Chambers of Lahore High Court dated 6-2-1993 whereby Writ Petition No,11849 of 1992 filed by respondents Nos.1 to 5 was accepted by the learned Judge and the appellants were directed to fill in the post of Assistant Divisional Engineer (A.D.E.) in accordance with Rule 2(a) of the Rules notified through S.R.O. No,1022(1)/76, dated 14-10-1976. Leave was granted in the above case to consider the following .Legal contentions:-- "5. The case of the petitioners before the High Court was that the above private respondents were civil servants in terms of section 2(1)(b) of the Civil Servants Act, 1973, hereinafter referred to as the Act, and, therefore, writ petition was not competent and that the direction sought could not be granted. However, the High Court has held that in view of above section 19 of the Ordinance, the private respondents had become the employees of the Corporation and, therefore, were not civil servants and that since the petitioners were violating above Rule 2(a) of the Rules, the private respondents were entitled to the above relief. The petitioners have, therefore, filed the present petition for leave to appeal.
6. We have heard Mr. Tanvir Bashir Ansari, learned A.S.C. Appearing for the petitioner, and we are inclined to grant leave to consider inter alia the question, whether the High Court was justified in issuing the above direction which is in the nature of a writ of mandamus on the basis of above Rule 2(a) of the Rules. Leave is, accordingly, granted. Interim order dated 28-4-1993 to continue meanwhile."
2. ' Mr. Tanvir Bashir Ansari, the learned counsel for the appellants contended that the High Court in exercise of its power under Article 199 of the Constitution of Islamic Republic of Pakistan had no jurisdiction to issue direction against the appellants to fill in post of Assistant Divisional Engineer in accordance with priorities mentioned in Rule 2(a) of S.R.O. Dated 14-10-1976 as the jurisdiction of the High Court was barred under Article 212 of the Constitution. It is contended that respondents Nos.1 to 5 were civil servants and the relief sought in the writ petition before the High Court related to the terms and conditions of their service. The above contention is supported by Raja Muhammad Bashir learned Deputy Attorney-General appearing on behalf of respondent No,6. The learned counsel for respondents 3 and 5 on the other hand contended that respondents 1 to 5 were not seeking enforcement of any of the terms and conditions of their service in the writ petition which was filed before the High Court but they were only seeking enforcement of the rule under which the appellants were bound first to fill up the vacancies by promoting the departmental candidates and thereafter making direct recruitments in proportion of 40 and 60 per cent.
3. Respectively. The learned counsel for respondents 3 and 5 contended that this was at best a case of prospect of promotion, and therefore, no appeal was competent hi this regard before the Service Tribunal.
4. ' In so far the status of respondents 1 to 5 as civil servant is concerned, the learned counsel for the appellants has cited an unreported decision of this Court passed in Civil Petition No,334 of 1993, dated 10-11-1993. The contention whether the employees of Pakistan Telecommunication Corporation are civil servants or not was disposed of as follows:-- "3. Aggrieved against the order of the Departmental Authority showing junior officers as seniors in the seniority list he filed Appeal No,46(K) of 1990 before the Tribunal, for restoration of his inter se seniority to the higher post of Director. The petitioner raised preliminary objection to the effect, that the respondent No,1 being an employee of the Pakistan Telecommunication Corporation, established under the Pakistan Telecommunication Corporation Ordinance (No,XVI of 1990), is not a civil servant so as to approach the Tribunal for the relief prayed for. The learned Tribunal repelled the objection and relying on the law laid down by this Court in Abdul Rahim v. Pakistan Broadcasting Corporation and others (1992 SCMR 2113), held the respondent a civil servant amenable to jurisdiction of the Tribunal, nevertheless, dismissed his appeal on merits. Hence this petition. Learned counsel for petitioner mainly tried to distinguish the present case with Abdul Rahim's case relied by the Service Tribunal in the impugned judgment.
4. The provisions of section 9 of the Pakistan Telecommunication Ordinance (XVI of 1990) and section 12 of the Pakistan Broadcasting Corporation Act, 1973, are almost identical. The observations of this Court in the aforesaid case on the en bloc transfer of the employees to the Corporation did not change their status as civil servants fully coyer the jurisdiction of the Tribunal to entertain their appeals and adjudicate the same on merits."
5. ' In view of the above-stated legal position, we agree with the contention of the learned counsel for the appellants that respondents Nos.1 to 5 are civil 8 servants within the meanings of Civil Servants Act, 1973.
6. ' The next question which arises for determination in the case is whether the direction issued by the High Court amounted to enforcement of the terms and conditions of service of civil servants?
7. Before the High Court, it was contended by respondents Nos.1 to 5 that in accordance with rule 2(a) notified through S.R.O. Dated 14-10-1976, the appointment to the post of Assistant Divisional Engineer was to be made by the appellants in the following manner:-- "(i) 40% of the post of Assistant Divisional Engineers shall be filled by promotion provided that at least 20% post shall be filled by promotion of persons possessing diploma in Engineering and 5% shall be filled by promotion of departmental employee possessing Degree in Engineering or Associate Membership of a recognised institute of Engineering.
(ii) 60% of the posts shall be filled by direct recruitment."
8. ' It was admitted before the High Court that about 200 posts of Assistant Divisional Engineers were lying vacant at the time the writ petition was filed in the High Court. The contention of respondents Nos.1 to 5 before the High Court was that the recruitment against the 60% quota of direct recruits was to be made under the above quota only after exhausting the quota reserved for departmental promotees. It is, therefore, quite clear that respondents Nos.1 to 5 were seeking to enforce the question of eligibility of their promotion under the aforesaid rule. The learned counsel for the appellants has placed before us a copy of an unreported judgment in Civil Petition No,292-L of 1992 (Abid Mahmood v. Government of Pakistan through Secretary Establishment, Islamabad) decided by a Bench of this Court on 18-5-1992 wherein the learned Bench of this Court while considering the question of scope of appeal before the Service Tribunal in matters concerning appointment or promotion to a post observed as follows:-- "3. Article 240 of the Constitution provides that the conditions of service of persons in the service of Pakistan shall be determined in the case of services of the Federation by or under Act of Majlis-e- Shoora (Parliament). The Act as well as the Civil Servants Act fall in the category of the Act framed by Majlis-e-Shoora (Parliament). For testing the eligibility of respondents for holding the certain posts, the petitioner has necessarily to go to the Service Tribunal. What is barred under provisos to section 4 of the Service Tribunals Act, 1973 (Act LXX of 1973) is the fitness or the suitability and not the eligibility.. What the petitioner has challenged through the writ petition is not the fitness or suitability but the eligibility which is more basic and has to be crossed before the fitness or suitability can be adjudged. If the rules of service applicable to the parties permit such promotions, then its vires have to be examined and tested and even that exercise has to be undertaken by the Service Tribunal as reported in the case of Ion Ahmed Khurram v. Government of Pakistan and others (PLD 1980 SC 153) where this Court observed as hereunder:-- ' As to the ground concerning the non-maintainability of the petition; the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires.Of the Rules vis-a-vis, section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Balochistan and others (PLD 1976 Quetta 59) and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree.'
9. ' The matter was again considered by this Court in Government of Pakistan v. Muhammad Sadiq (1985 SCM R 699) and the following observations were made:-- 'It is a fact that at no stage disputed that the two appellants when considered and approved for promotion or even when appointed to the upgraded posts were not eligible to be promoted. Hence, their consideration, recommendation and appointment was all against the law, in excess of the powers conferred on the Departmental Promotion Committee and the competent Authority. It had nothing to do with their fitness or suitability. The question of fitness and suitability arises amongst eligible and not amongst eligible and ineligibles. The bar contained in proviso (b) to subsection (1) of section 4 of the Tribunals Act is inapplicable.'
10. ' More recently the matter was considered in Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCM R 1129) in the words that follow:-- '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 Tribunals Act or even by implication.'
11. ' 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. "
12. ' In view of the above legal position, it is quite clear that the matters relating to the el igibility of a civil servant for promotion to a particular post are matters which fall within the jurisdiction of the Service Tribunal established in pursuance of Article 212 of the Constitution. Since the question raised by respondents Nos .1 to 5 in the writ petition related to the eligibility for appointment against quota reserved for departmental promotees under the rules, the High Court could not issue the direction prayed for in the writ petition on account of bar contained in Article 212 of the Constitution.
13. ' The learned counsel for respondents 3 and 5, however, contended that the question of enforcement of the rules which governed the promotion of departmental promotees and the appointment of direct recruits to the post of Assistant Divisional Engineer was merely a case which related to the prospect of the promotion, and therefore, such a dispute was outside the pale of jurisdiction of the Service Tribunal. In support of the contention, the learned counsel relied on the case of Dr. Ehsanul Haq v. Province of Punjab (1980 SCM R 972). The case cited by the learned counsel proceeded entirely on different facts and as such is of no assistance to the respondents in the present case. In the above-cited case, the petitioner was recruited as Assistant Medical Officer in Class-II Junior Grade under the West Pakistan Local Councils and Municipal Committees Service Rules, 1963. He was holding a medical technician certificate from the West Pakistan State Medical Faculty, Lahore. He was placed in N.P.S. No,11 in 1972. In 1977 through an amendment, Class-II junior cadre as split up into two categories of pay scale N.P.S. 15 and N.P.S.
11. The doctors who were licentiate doctors were awarded N.P.S. 15 with effect from 1-3-1972 while non-licentiate doctors who only held technician certificate were placed in N.P.S. No,11. The petitioner who held only technician certificate represented against the said rule and daimed that he is also entitled to be placed in the same grade in which the doctors having qualification of L.S.M.F. Have been placed with effect from 1-3-1972. The petitioner having failed to get the relief from the departmental authorities and the Service Tribunal finally approached this Court but his contention was repelled and leave was refused as follows:-- "We fail to see as to what legal right of the petitioner has been infringed by granting higher scale of pay to persons in the service holding the qualification of L.S.M.F. An appeal under section 4 of the Punjab Administrative Tribunals Act is competent only if any terms and conditions of a civil servant is violated. No term and condition of service, of the petitioner has been violated by the action of the Government granting higher scale of pay to a category of officers, who were Assistant Medical Officers but held a higher qualification before entry into service. It may also be observed that prospects of promotion have never been considered a. Term and condition of service (see Government of West Pakistan v. Fida Muhammad Khan PLD 1960 SC 45 and merely because N.P.S. 15 has been given to Assistant Medical Officers holding qualification of L.S.M.F. And not to those holding the qualification of medical technician, it cannot be held that any of his terms of service has been violated.
14. ' There is, therefore, no force in this petition which is dismissed hereby."
15. ' It is quite clear from the facts of the above-cited case that no question of eligibility of the petitioner to a higher post on the basis of any service rule was involved. In the case before us the respondents had sought enforcement of a Service Rule as a condition for eligibility of their promotion to a higher post through petition under Article 199 of the Constitution which was not permissible on account of bar contained in Article.212 of the Constitution. We, accordingly, accept this appeal, set aside the impugned judgment but leave it open to respondents Nos.1 to 5, if so advised, to approach the appropriate forum for redress. There will, however, be no order as to costs in the circumstances of the case.