1. WAJIHUDDIN AHMED, J.---The petitioner seeks leave to appeal against the judgment, dated 14-4- 1998, of the N.-W.F.P. Service Tribunals,. whereby the petitioner's service .appeal was dismissed on the short ground that the same was hit by section 4(b)(i) of the N.-W.F.P. Service Tribunals Act, 1974, since decision of a departmental authority, determining the fitness or otherwise of a person to be promoted to a higher post or grade was beyond the pale of jurisdiction of such Tribunal.
2. The contestants for promotion to the post of Director (Engineering Wing) (BPS-19) were essentially the petitioner and one Badshah Noor Khan, respondent No,5 here. The petitioner was marginally senior to the respondent No,5 in that he was inducted into the service on 3-12-1979, whereas the respondent was appointed on 4-12-1979. At the time when the two were considered for promotion they were holding the posts of Agriculture Engineers in the Department of Agriculture (Engineering Wing). A working paper seems to have been prepared, where the parties were found to be eligible but about the petitioner it was stated that an inquiry report in relations to him had been received and the case stood submitted to the Chief Secretary (authorised officer) for appropriate orders. It is the petitioner's case that the petitioner was exonerated of the charges in the aforesaid inquiry, per order, dated 1-4-1996, the operative portion of the order being as under:-- "(4) And whereas after having considered the charges, the material on record, the explanation of the officer and the reports of Enquiry Officer, the authorized officer (Chief Secretary) has been pleased to ' Exonerate' Mr. Muhammad Rahim Khan, Agriculture Engineer, Malakand Division from the charges leveled against him in exercise of the powers conferred by Rule 5(4) of the N.-W.F.P.
3. Government Servants (Efficiency and Discipline) Rules. 1973."
4. However, when the Provincial Selection Board met on 11-6-1996, the true position was not brought to their notice. The Board, therefore, made their recommendations in terms quoted below:-- "3. Mr. 'Muhammad Rahim The officer has earned 16 Khan. Good, 11 average and 1 Adverse report (for the year 1967) since 1967.
5. The Board observed that the officer has earned not a single V. Good report throughout his service career and also he has recently been involved in a disciplinary case. Hence the officer is superseded.
4. Mr. Badshah Noor Khan: The officer has earned 4 V. Good and 23 Good reports since 1968. The Board observed that the officer has earned not even a single average report during his entire service. Keeping in view his outstanding service record the Board considered him suitable for promotion to the post of Director Agriculture (BPS-19) provided his A.C.R. for the year 1995 is not adverse."
6. The petitioner has maintained that not only his adverse report, covering the period of only one month in 1967 was made mention of before the Board with which, ostensibly it was influenced, an adverse report, pertaining to the respondent No,5 for the period 12-8-1993 to 31-1-1993, which was relevant, while the 1967 report was not, did not even figure, either in the working paper or in the recommendation of the Board. The petitioner has also relied on a commendation certificate, dated 10-3-1980, issued to the petitioner by the Government of N.-W.F.P. where the following was recorded:-- "The Provincial Government appreciate your service for devotion to duty and selfless work by surpassing the fixed target per bulldozer per month during 1978-79.
7. This letter will be placed in your Character Roll dossier."
8. As against this, it has been argued by the learned Advocate-General, N.-W.F.P., and Qazi Muhammad Jamil, Advocate Supreme Court appearing for the respondent No,5, that the adverse report pertaining to the respondent No,5 was for a period aggregating less than three months and, therefore, was rescinded. If that be so and if the 1967 report against the petitioner was also for less than three months (one month), as alleged question arises whether the same should have been mentioned at all in the minutes of the Selection Board. Even otherwise such an old report was, possibly, not even relevant, let alone the making mention thereof, as above recorded. The petitioner further complained that the referred adverse A.C.R. of the respondent has mala fide been even removed from the service file. As regards the commendation certificate of the Provincial Government favoring the petitioner, the respondent No,5, in Court today, placed before us a couple of documents, which would also indicate his approbation at the level of the Director Agriculture.
9. These documents, apparently, may be distinguishable because, for one thing, the petitioner's commendation emanated from the Provincial Government itself and, for another, the same was to find place in the petitioner's Character Roll Dossier.
10. Be that as it may, the petitioner's tase has been that neither a proper note was put up before the Selection Board, as regards the petitioner's eligibility nor all the material was duly highlighted. The petitioner alleges mala fides for his claimed victimization. The petitioner has even named the officer, who according to him, was instrumental in getting better reports to the respondent No,5 and, also, who happened to be responsible for putting the notes and papers before the Board. The petitioner has urged that some people are particularly adept in serving and pleasing their higher ups and it was for such reasons that the respondent No,5 became a favourite of the officer under reference.
11. The Tribunal, as seen, has non-suited the petitioner on the ground of want of jurisdiction. Before us also Qazi Muhammad Jamil has placed reliance on Abdul Malik v. Sabir Zameer Siddiqui, 1991 SCMR 1129 and Muhammad Anis v. Abdul Haseeb, PLD 1994 SC 539, to contend that a question determining the fitness of a person to be promoted is beyond the scope of the Tribunal's jurisdiction and so also of this Court sitting in appeal.
12. Pertaining to a case involving an appointment or promotion there are two essential elements namely, eligibility and fitness. The concept of eligibility implies a qualification to be appointed or promoted whereas that of fitness encompasses a person's competence to be chosen or selected for appointment or promotion. The tests for eligibility are objective and open to scrutiny by a judicial forum, in the instant case by a Tribunal of exclusive jurisdiction namely, the Service Tribunal.
13. Besides, if eligible to be promoted, it is the right of a person, in whom the eligibility resides, to be considered for such promotion.
14. On the other hand, fitness of a person to be appointed or promoted to a particular post or grade involves a degree of subjective evaluation on the basis of objective criteria and, as a rule, an opinion so formed, is not open to judicial scrutiny.
15. However, even in the matters involving fitness to be appointed or promoted to a particular post or grade there has to be necessary material on the basis of which an opinion, one way or the other, is to be formed. If, therefore, either all the necessary material is not put up before the Authority deliberating upon the matter of appointment or promotion or obviously misleading material is put up or manifest acts of commission or omission, as regards vital data, are involved the subjective exercise may not qualify as such and may irretrievably be conditioned by objective factors, wanting in due process. Such aspects, probably, would be more akin to considerations of eligibility than of fitness and, all things being equal, be open for scrutiny before a legal forum. In the instant proceedings, the objective factors were the working paper etc. and the recommendation of the Board. On such material, another had to determine the fitness and while such determination may be beyond judicial scrutiny, the necessary steps leading to the same i,e, the objective factors may not always be so. See, inter alia, Muhammad Anwar v. Secretary, Establishment Division, PLD 1992 SC 144, Federation of Pakistan v. Muhammad Qaiser Hayat Khan, 1994 SCMR 544, Walayat Ali Mir v.
16. Pakistan International Airlines, 1995 SCMR 650, Secretary, Narcotics Control Division v. Muhammad Sajjad, 1997 PLC (C.S.) 167, Pakistan Broadcasting Corporation v. Nasiruddin, 1997 PLC (C.S.) 931, S.T.
17. Rehman v. Government of Pakistan 1997 PLC (C.S.) 1207.
18. We would, therefore, grant leave to the petitioner to consider whether the material placed before the Provincial Selection Board, truly and faithfully, reflected the qualifications of the contestants and whether on the basis of the available criteria the recommendation of the Selection Board was or was not influenced in a manner, affecting correct appraisal and assessment of respective merits of the contestants, of which the Board was the repository and which clearly, must have weighed with the competent Authority in determining the relevant fitness.