' MUHAMAMD YUNUS SURAKHVI, J.----This appeal by way of leave of the Court, is directed against an order passed by the Federal Service Tribunal on 3-2-2000, whereby the appeal filed by the appellant herein, was dismissed.
2. The necessary facts, giving rise to the present appeal, are that the appellant was promoted to the post of Inspecting Assistant Commissioner (B-19) in the Tax Management Excise and Taxation Department, Azad Jammu and Kashmir vide Notification dated 14-4-1991. Vide Notification dated 30-1-1995 he was allowed to hold the current charge of the post of Commissioner of Income Tax- cum-Collector, Excise and Taxation (B-20) for a period of three months or till the appointment of regular incumbent of the post, but he continued to hold the current charge of the said post till 20- 3-1998. He was transferred and posted on 21-3-1998 as Accountant Member (B-21) Income Tax Appellate Tribunal of Azad Jammu and Kashmir Council with immediate effect till further orders. He was stated to have received -cash reward of more than ten lacs rupees for his excellent performance from 1991 to 1998, but despite that he was not being given formal promotion in B-20 and B-21. Accordng to the appellant, respondents Nos.3 and 4, who were junior to him, were promoted to the post of Income Tax Commissioner.
3. The appellant has retired on superannuation on 27-10-1999. The appellant made representation on 14-111 998 to the Prime Minister of Pakistan in order to get the redressal of his grievance that though he was holding the charge of post of Commissioner of Income Tax (B-20) continuously from 31-1-1995 and as Accountant Member from 26-3-1998 onwards, yet no formal orders of his promotion were being issued, rather respondents Nos.3 and 4 were formally promoted to B-20. The appellant made further representation on 12-4-1999. In the meantime he filed a writ petition in the High Court on 21-4-1999 seeking direction for expeditious disposal of his aforementioned representations but Azad Jammu and Kashmir Council replied on 28-4-1999 to his representation dated 14-11-1999 and another representation dated 12-4-1999 to the effect that his representations had-given no cause of action to him. Hence the appellant preferred an appeal before the. Federal Service Tribunal that he may be promoted as Commissioner Income Tax (B-20) w,e,f, 31-1-1995, as Accountant Member w,e,f, 25-3-1998, and in any case he may be declared senior to respondents Nos.3 and 4 in B-20.
4. The Federal Service Tribunal has dismissed the appeal filed by the appellant on the ground that mere holding a post on current charge or acting charge basis did not confer a vested right for promotion and that the case of appellant alongwith respondents Nos.3 and 4 was considered by the Selection Board but the appellant was not found, fit for promotion as he fell short of prescribed threshold whereas respondents Nos.3 and 4 fulfilled the requirement and eligibility and that the Federal Service Tribunal was incompetent to go into the question of determining the fitness of a civil servant.
5. Sardar Rafique Mahmood Khan, the learned counsel for the appellant, submitted that the appellant being qualified and senior in the department was promoted on current charge basis and he continued to hold post for about 4 years which is a \cogent evidence of appellant's best performance and as such he was a deserving person to be promoted on regular basis. The appellant was rewarded with cash awards for his best performance from the years 1991 to 1998, but the Federal Service Tribunal failed to look into the service record of the appellant. The learned counsel contended that in the relevant rules for promotion there is no condition for obtaining 70% marks as opined by the Federal Service Tribunal. The learned counsel contended that even the posting of a person on current charge basis is made when he duly deserves for that and is the senior but at the time of regular promotion of appellant these considerations were not looked into.
The learned counsel for the appellant in support of his contentions cited reported case of this Court titled Abdul Latif v. Secretary, Azad Jammu and Kashmir Council and 4 others (1999 PLC (C.S.) 244), wherein it has been observed that Inspector in B-14 would be eligible for promotion if he has five years' service and has passed the departmental examination. It was also observed that notification does not lay down the condition of obtaining 50% marks for promotion.
6. Controverting the arguments raised by the learned counsel for the appellant, Mr. Ghulam Mustafa Mughal, the learned counsel for respondents, urged with vehemence that the impugned judgment passed by the Federal Service Tribunal suffered from no illegality or infirmity as pointed out by the learned counsel for the appellant. The learned counsel contended that the appellant alongwith respondents Nos.3 and 4 being eligible for promotion was considered by the Selection Board but was found unfit be promoted vide notification dated 9-1-1999. The learned counsel also maintained that it has wrongly been suggested by the learned counsel for the appellant that there was no requirement of eligibility threshold to attain a minimum score of 70% marks. The learned counsel in support of his contentions placed reliance on reported cases titled Sarwar Hussain Shah v. Azad Government and others (1997 PLC (C.S.) 302) and-Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539). The learned counsel also strenuously argued that against the order of fitness no appeal was competent before the Federal Service Tribunal. It was also pointed out by the learned counsel for respondents that against the promotion of respondents Nos.3 and 4 the appellant did not lodge any appeal.
7. After hearing the respective contentions of the learned counsel for the parties, it may be stated that the case of appellant alongwith respondents Nos.3 and 4 was referred to Selection Board for promotion in B-20 and was duly considered by the Selection Board but he was not found fit by Selection Board, as such the question of fitness being within the exclusive domain of Selection Board, the Service Tribunal or this Court cannot substitute their view to that of the view of Selection Board. In a case reported as Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 SC 539) it was observed by the Supreme Court of Pakistan at page 547 as follows:- "A perusal of the above-quoted para. From the above report indicates that Mr. Shafi-ur-Rehman, J., has succinctly brought out distinction between eligibility ,and fitness and has pointed out that the question of eligibility relates primarily to the terms and conditions of the service and their applicability to the civil servant concerned and, therefore, the Tribunal has jurisdiction, and whereas the question of fitness is a 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 of a Court and, therefore, the Tribunal has no jurisdiction on the question of fitness."
' Similarly in a case reported as Sarwar Hussain Shah v. Azad Government and others (1997 PLC (C.S.) 302) this Court at page 308 of the report observed in a following manner:-- "From the survey of the case-law there remains no manner of doubt that an order of the departmental authority determining the fitness or otherwise of a civil servant to be promoted to a higher grade is always within the jurisdiction and domain of that authority. A Tribunal or a Court cannot substitute its own view in place of the view of the departmental authority. As the question of promotion of respondent No,4 was determined by the Selection Committee and he was found fit to be promoted as an Accountant, whereas the appellant was found unfit to be promoted to a higher grade, Service Tribunal was right in observing that appeal filed by the appellant was incompetent on account of the embargo contained in section 4(1) clause (b) of Service Tribunals Act and second proviso of clause (d) of Rule 4 of Azad Jammu and Kashmir Civil Servants (Appeals) Rules, 1991."
8. So far as the contention of the learned counsel for the appellant that there is no such provision in the ESTACODE for the promotion of a civil servant to the post of Grade B-20 that he should obtain 70% of the marks, is concerned, it may be pointed out that in the ESTACODE it has been provided in guideline 5(b) that for posts carrying BPS-20 it is necessary that officers must also have eligibility threshold to attain a minimum score of 70 marks in the CRs in accordance with the formula given in the Addendum. This, of course, is a condition to be eligible for promotion to the post of Grade B- 20, but is not the prerequisite to be fit for promotion. Irrespective of the fact whether the appellant had the eligibility to be considered for promotion on the post carrying BPS-20, the fact remains that he alongwith respondents Nos.3 and 4 was considered by the Selection Board but was ultimately found fit. In our view the eligibility, as pointed out by the Supreme Court of Pakistan, relates to terms and conditions of the service and their applicability to the civil servant concerned, and therefore, the Tribunal has jurisdiction whereas the question of fitness is a 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 of a Court and therefore, the Tribunal has no jurisdiction on the question of fitness.
9. The contention raised by the learned counsel for the appellant that in the case titled Abdul Latif v. Secretary, Azad Jammu and Kashmir Council and 4 others (1999 PLC (C.S.) 244) which was of a similar nature it was held that Inspector in B-14 will be eligible for promotion if he has rendered five years' service and has passed the departmental examination, has no relevancy to the present case as we have sufficiently dealt in pre-paras. That question of eligibility and fitness are two different connotations.
10. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed.