TARIQ PARVEZ, J.---Briefly stated the facts of this petition are that the two petitioners got inducted as Agriculture Assistants in Agriculture Department on 19-7-1959 and 7-7-1960 respectively, while respondent No,4 joined the service in the same cadre on 20-10-1964. The Department published a seniority list vide No,1618-26 EADA dated Abbottabad the 30th July, 1986 wherein Fida Muhammad petitioner has been shown at Serial No,2 while Khizar Hayat at Serial No,3. Respondent No,4 appears at S.No,18 of the list. This list is undisputed and is accepted correct by the parties before us.
2. It so happened, that on 18-4-1989 Deputy Director Agriculture promoted respondent No, 4 Mr. Abdul Qayum from the post of Field Assistant to Agriculture Officer in BPS-9, giving effect to such promotion with effect from 1-12-1978, by making reference to a Notification No,SOR-1 (S&GAD) 1- 29/75, dated 13-4-1987.
3. The petitioners being aggrieved filed two departmental appeals and after having exhausted the same went to the Services Tribunal, N.-W.F.P. through Appeals Nos. 96 of 1990 and 97 of 1990. These appeals were accepted vide judgment dated 16-6-1991 with the remarks that the promotion order of respondent No,4, vide order dated 18-4-1989, is not a speaking order and that the petitioners were not considered when the promotion of respondent No,4 was being made, directions were issued that the Department/Authority which has passed the order shall consider the petitioners alongwith others for promotion on the basis of merits shelled out in the Recruitment and Appointment Rules, 1981 of the Agriculture Department.
4. The petitioners' case was allegedly considered but they were again dropped from promotion vide order dated 20-6-1993 passed by Director-General, Agriculture (Extension), N.-W.F.P., Peshawar. Once again the petitioners approached the Services Tribunal for their redress but their applications were rejected on 9-6-1994 on the ground that the matter falls beyond the jurisdiction of Services Tribunal, hence could not be adjudicated upon. The petitioners having left with no other option and lawful remedy available to them, they have approached this Court by the instant petition.
5. The gravamen of the petitioners are two-fold; firstly, they have attacked the order of promotion of respondent No,4 being in violation of law and rules and; secondly, that they being senior and not only eligible for promotion to the higher grade were also fit for the promotion but were not promoted.
6. Learned counsel for the petitioners while emphasising has challenged to the promotion of respondent No,4 - vehemently argued that on the basis of record available, petitioners were much senior to respondent No,4 vide seniority list published in the year 1986, that Muhammad Yaqoob who is at Serial No, 1 of the list stood retired much before the respondent No,4 was promoted, therefore, petitioners have gone to Serial Nos. 1 and 2 of the Seniority List. It was next contended that under the Rules governing the filling in of vacancies for promotion, 75% of the Agriculture Officers were to be recruited directly while 25% from amongst the Agriculture Field Assistants. The condition precedent for the latter, was he should have put in minimum of 15 years of service. Such promotion was subject to rule of seniority-cum-fitness. It was next contended that the above rule envisages that promotion of Government servant from Grade-1 to Grade-16 was first to be considered by the Departmental Selection Committee and after the approval of the Provincial Promotion Board, effect to such promotion could be given. It was argued that the name of respondent -No,4 was never placed before the Departmental Selection Committee nor before the Board.
7. The Rules in respect of transfers and promotions have been subjected to various amendments but the substance remained the same except with very slight difference which has got no bearing to the present case.
8. Learned counsel for the petitioners after having dealt with the case of respondent No,4 and having also objected to his promotion from retrospective effect i,e, from 1-12-1978, submitted that the petitioners were not only senior to the respondent No,4 but Fida Muhammad petitioner was having equally good record as in comparison to respondent No,4. However, during the course of arguments learned counsel while referring to the A.C.R. dossiers of the service record of the two petitioners, did not seriously press the case of petitioner No,2, namely, Khizar Hayat who had some adverse remarks in the dossiers and also had been out of service on certain charges and was re- instated.
It was contended that under the rules made, the petitioner was entitled to promotion in preference to respondent No,4.
9. At the juncture we may bring on record a fact, which is to the effect that respondent No,4 stands retired from service since 16-6-1996 while petitioner No,1 retired on (sic). The case of petitioner No,2 being not pressed is not considered.
10.Learned counsel for the respondent, at the very outset submitted that in writ jurisdiction, this Court has got no power to redress any grievance in respect of matter pertaining to terms and conditions of service of the Government servant. Next, it was contended that the Rules of Appointments, Recruitments and Transfers issued under N.-W.F.P. Civil Servants Act, 1973 are not applicable to the case of the Agriculture Department as the Rules applicable are "West Pakistan Agriculture Department Extension Wing Subordinate Services Rules, 1963". It was submitted that Rules of 1975 known as N.-W.F.P. Civil Servants (Appointments, Promotions and Transfers Rules) are not applicable to the case of the petitioner and the respondent. It was next contended that Rules of 1975 are General while the Department has got its own Special Rules which have been subject to various amendments. They were amended by Rules of 1981 and later in 1989. It was submitted that under the Special Rules governing the case of the Agriculture Department the criteria for promotion as laid down in the General Rules, 1975 and the method are totally different. Learned counsel in this respect referred to Rules of 1963 and submitted that as they stand amended up to date the vacancies are to be filled by promotion or by the appropriate authority within the Department and it does not envisage the reference to be made to the Departmental Selection Committee nor to the Provincial Promotion Board. It was argued that even in the General Rules, 1975 under rule 3 sub-rule
(2) concerned Departments are given option as to the method of appointment and promotion. It was also contended that conceding for the sake of arguments that case of every civil servant is subject to scrutiny by the Departmental Selection Committee and approval of the Promotion Board, the same is not mandatory and were directive. Learned counsel referred to Rule 7 of the Departmental Rules of 1989 and submitted that word "ordinarily" has been added while considering the case of promotion beside seniority cum fitness, and if so, any deviation from the above rule in promotion would be mere -- irregularity and not illegality. Learned counsel referred to 1991 SCMR page 1129 and submitted that 'being eligible' for promotion. is totally different than 'being fit' to be promoted. It was also argued that as the petitioners in the first instance, had recourse to the Service Tribunal which they voluntarily adopted, not once but twice and having failed to achieve their object have filed the instant petition instead of going in appeal to the Supreme Court, therefore, it was held that the petitioners are estoppped by their conduct in pursuing the instant petition. Reference was made to 1970 SCMR 58, 1978 SCMR 26 and 1986 SCMR page 64.
11.Learned A.A.-G. also took objection as to the jurisdiction of this Court being barred under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973, read with section 4 of N.-W.F.P. Civil Servants Act. He also submitted that promotion to a higher post is not a vested right. Reference was made to PLD 1994 SC page 537, 1997 SCMR page 351. He also took the plea of laches as against the petitioner on the ground that the impugned order of which the petitioner felt aggrieved was passed in the year 1989 while the petition is being filed in the year 1994 the same is delayed, hence liable to dismissal. Reliance was placed in 1997 PLC (C.S.) 892, 1990 SCMR page 1524, PLO 1993 SC page 157.
12.After having given the facts of the case and the arguments of the learned counsel for the parties we are to first determine whether or not in the instant matter, we have got jurisdiction to entertain a petition under Article 199 of the Constitution. For this purpose extracts of Laws governing service matter are given below:-- N.-W.F.P. Civil Servants Act, 1973 was promulgated on 11-11-1993 and its preamble is as under:-- "Whereas it is expedient to regulate by law, the appointment of persons to, and the terms and conditions of service of persons in, the service of the North-West Frontier Province, and to provide for matters connected therewith or ancillary thereto."
Section 9 of the Civil Servants Act is also reproduced for ready reference.
"9. (1) "A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a *(higher) post for the time being reserved under the rules for departmental promotion in **( ) the service or cadre to which he belongs."
Section 22 , of the Act referred to above gives right of appeal to a civil servant against any order relating to the terms and conditions of the service. Whereas section 26 contemplates as under:--
(2) "Any rules, orders or instructions in respect of any terms and conditions of service of civil servants duly made or issued by an authority competent to make them and in force immediately before the commencement of this Act shall, in so far as such rules, orders or instructions are not inconsistent with the provisions of this Act, be deemed to be rules made under this Act."
13.Under section 26 the Provincial Government through Notification dated 9th of April, 1975 promulgated N.-W.F.P. Civil Servants (Appointments, Promotions and Transfers Rules) 1975. Under Rule 2(a) Departmental Selection Committee was defined while clause (g) defines Provincial Selection Board. Rules 7 and 8 lay down the procedure for promotion to the higher grade.
We may here refer to N.-W.F.P. Service Tribunals Act (1 of 1974) whereunder Tribunals of Special jurisdiction were established. Section 4 of the Service Tribunals Act to the extent of relevancy to the instant petition is reproduced below:-- "4. Appeals to Tribunals.---Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later, prefer an appeal to the Tribunal having jurisdiction in the matter.
Provided that:
(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 a higher post or grade; or"
We may also refer to the Constitutional provision as laid down in Article 212 of the Constitution before dealing with the question of assumption of jurisdiction or otherwise in the matter.. The relevant portion of the Article is reproduced below:--
212. Administrative Courts and Tribunals.---(1) "Notwithstanding anything hereinbefore contained, the appropriate Legislature may by Act (provide for the establishment of) one or more Administrative Courts or Tribunals to exercise exclusive jurisdiction in respect of--
(a) matters relating to the terms and conditions of persons (who are or have been) in the service of Pakistan, including disciplinary matters; "
14.The overall reading of the enactments/rules and Article of the Constitution as reproduced above leaves no room for the assumption of jurisdiction of this Court in matter relating to terms and conditions of service of a civil servant or to a matter which is ancillary thereto. It is pertinent to note that under section 4 clause (b)(i) of Services Tribunal Act, the jurisdiction of the Tribunal is expressly ousted to go into the question of fitness or otherwise of a person to be appointed to a higher post or grade. Meaning thereby that the cases of promotion are outside the purview and domain of the Services Tribunal. The question, thus, comes, that if in case a civil servant is aggrieved of an order which is though final but relates to terms and conditions of his service to the limited extent for his promotion which forum shall have the authority to redress his grievance within the frame-work of Constitution and law.?
The very object of joining service of Pakistan by a citizen is not only to get a job and to earn his livelihood but after having been inducted, he always looks forward for the prospect of his promotion, which is an incentive for every civil servant to acquire more experience, knowledge and knowhow while discharging his official functions/duties. One can say that the prospects of future promotions are always kept in sight by every civil servant, the moment --- he joins the service.
By operation of law, the grievances other than promotion fall within the exclusive jurisdiction of the Services Tribunal and the Constitution so provided that it should be exclusive domain of special Tribunal to adjudicate upon such matters. Where, however, a person who is equally eligible and in cases as in the instant case more senior to the person but was not promoted as against his junior definitely gives a cause of action. The redress for which has been provided under section 22 of the N.-W.F.P. Civil Servants Act by making an appeal/representation to the higher authorities in the hierarchy which is commonly known as departmental appeal.
Section 9 of Civil Servants Act, 1973 (N.-W.F.P.) lays down the parameter which is to be considered for promotion which prescribes that a civil servant possessing minimum qualifications may be eligible for promotion to a higher post.
It is an admitted legal position that considerations for promotion are not only the ' eligibility' but also ' fitness' of the person to be promoted to a higher grade or post. 'Eligibility' is to be determined by keeping in view the minimum qualifications which would include the educational qualification, length of service and A.C.R. dossiers.
"Fitness" is, however, left to be determined by the authority in the department to find out if a particular civil servant is fit for promotion or not. It is the individual judgment of such authority in respect of performance of such civil servant on the basis of which an opinion is formed. As ' eligibility' primarily deals with the terms and conditions of service, therefore, has been made subject to scrutiny by Services Tribunal. The individual approach/assessment of authority holding a person fit for promotion, on the bare reading of the law seems to be not justiciable. But, it is for this very purpose that in N.-W.F.P. Civil Servants Rules of 1995, rules 7 and 8 were inducted and instead of the case of promotion being considered by individual the matter has been made subject to recommendation of the appropriate Departmental Promotion Committee of civil servant falling within Basic Pay Scale 1 to 16. The purpose behind, appears to be to remove the stigma and to take away the power of an individual to determine the fate of a civil servant and instead has been placed at the disposal of Departmental Promotion Committee.
15. Article 4 of the Constitution of Islamic Republic of Pakistan, 1973 gives right to every individual to be dealt with in accordance with law and where law has not been correctly or properly observed it would be a proper case for interference by the High Court in exercise of its Constitutional jurisdiction. It has been sa observed in PLD 1989 Peshawar page 231 ' Alam Zeb Khan v. Election Commission of Pakistan'.
"Where law had not been correctly followed or properly observed a case of interference by the High Court in exercise of its Constitutional jurisdiction, held, was certainly made out."
The judgment reported in 1991 SCMR page 1129 lays down that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of competent Authority and is not shared by the Court or Tribunal. There can be no cavil with the aforesaid proposition as laid down by the August Supreme Court. However, where this Court finds that the law was not properly followed and the Authority which has passed the impugned order was not competent to promote respondent No,4 a case will be made out for interference for the exercise of Constitutional jurisdiction.
16.As in the instant case, we have earlier observed that the grievance of the petitioner has got two dimensions, one that respondent No,4 was wrongly promoted in preference to petitioner Fida Muhammad in total disregard of the law and rules by a person who was not competent to promote. As the case of the respondent was never placed before the Departmental Promotion Committee or the Promotion Board, it was the individual act of an officer who unilaterally and without considering the case of the petitioner passed the order dated 14-4-1989 by promoting respondent No,4, that too by giving effect to said promotion with effect from 1-12-1978. This was definitely an order without jurisdiction and in total disregard of the rules of service. The second dimension on which the petitioner relies is his grievance in respect of his not being considered fit for promotion. We have gone through the service record of the petitioner No,1 and we do not find single adverse entry against him. He had every right while in service to keep in mind the prospect of his promotion not only by virtue of being senior most but also because he was fit to be promoted.
The respondent No, 4 including the Department had failed to produce single document showing that petitioner was found unfit for promotion. Even if so, no reason appears on the record from which one can infer that the petitioner was considered along with the respondent No,4 but for reasons recorded was found unfit.
We are conscious of the fact that we cannot substitute our finding as to the fitness of the petitioner to that of the authority but, in this case the said embargo does not fall in our way because the case of the petitioner was never placed before the appropriate authority i,e,, Departmental Selection Board nor before the Departmental Promotion Committee. This was a flagrant disregard of the fundamental rights as enshrined in the Constitution that the case of the petitioner was never considered by the competent Authority as mentioned above.
As there is no material showing that the petitioner was unfit for promotion as such, he shall be deemed to be fit as not held otherwise. By saying this we are not substituting the opinion of the authority by our finding.
17.The question of laches has though been raised but not seriously contested. The perusal of record shows that the petitioner from day one has been very vigilantly pursuing his cause by making demonstrations to the department and then rushing to the Services Tribunal. As such there is no apparent delay in making recourse through the Constitutional petition.
18.We have assumed jurisdiction in this particular case under Article 199 of the Constitution, keeping in view the peculiar circumstances of this case. Because, the petitioner though had no vested right to the promotion but had a right to be considered alongwith other equally placed persons and that the case of all such persons should have been placed before the Departmental Selection Committee. As the legal procedure was not adopted, and the one adopted for the promotion of respondent No,4 being illegal, the petitioner was left with no other remedy but to approach this Court.
19.In view of what we have observed above, we would accept this writ petition to the extent of petitioner No,1 (who stands retired since 16-6-1996) and order that on 18-4-1989 there was a vacancy of Agriculture Officer which was wrongly given to respondent No,4 without considering the petitioner, therefore, it should be petitioner who shall be considered to have been promoted as Agriculture Officer from the said date. He will be entitled to all back benefits till date of his retirement.
In special circumstances we will not interfere with the status of respondent No,4 as he stands retired on 26-6-1997. Parties are left to bear their own costs.