MUSHIR ALAM, J.--- Plaintiff, a senior preventive officer, Collectorate of Customs, a civil servant for all intent and purpose, through instant proceedings claims entitlement of out of turn promotion in terms of circular dated :20.10.1990. Consequent suspension of operation of DPC held in September, 2000 is also prayed for.
2. Plaintiff claims out of turn promotion on the basis of the outstanding performance as a member seizing quad, that seized 4100 Tola Gold worth Rs. 22 million, on 22.3.1999. He was appreciated by the then Finance Minister on his representation his case was recommended by Member Customs BOR on 8.3.2000 for promotion in accordance with existing rules on merits.
3. Before his case could be considered in Departmental Promotion Committee (DPC), on the charge of alleged misconduct. Plaintiff was put under suspension vide order dated 21.3.2000 and department proceedings were set into motion.
4. It appears that the plaintiff is contesting the charge- sheet.
5. Departmental Promotion Committee (DPC) held on 1.4.2000 did not consider the case of plaintiff for out of turn promotion. Plaintiff unsuccessfully made departmental representation dated 28.4.2000 seeking such promotion in terms of circular dated 20.10.1990. Against such in-action plaintiff preferred appeal before the Federal Service Tribunal being No. 158/2000 impugning "non- consideration of his name for out of turn promotion".
6. In response to request dated 12.9.2000 made through plaintiff ' counsel'. Defendant vide reply dated 20.9.2000 wrote as under:- Qamaruddin, Senior Preventive Officer.
Please refer to your letter No. Nil dated 1.2.2000 on the above-cited subject.
2. S.P.O. Mr. Talat Qamar has been placed under suspension vide this Collectorate Office Order No. 87/2000-Estt (P), dated 21.3.2000 on the charges of misconduct and the disciplinary proceedings against him are under way. In the given situation his case "for .Promotion as Inspector Preventive Service either on seniority basis or out of turn cannot be considered at this stage unless he is exonerated from the charges.
Sd/- (KHALID MAHMOOD)
ASSISTANT COLLECTOR HQ-II When the matter was argued learned counsel for the plaintiff placed on record copy of order dated 22.2.2001 whereby learned Tribunal in consideration of dicta Laid down in Government of Punjab through Chief Secretary v. Raja Muhammad lqbal (NLR 1994 Service 961 dismissed the appeal being incompetent.
Learned counsel for the plaintiff contended that in view of the case reported =as Dr. Wasim Ismat Chaudhary v. Chairman and Dean Shaikh Zyed Hospital Lahore (1999 SCMR 2364) his case for out of turn promotion cannot be defeated on the basis of alleged charge of misconduct. It was further urged that he had pleaded discrimination and claimed equal treatment on the basis of department practice in terms of circular dated 20.10.1990 regulating out of turn promotion, but now since he has been able to lay hand on a notification SRO No. 266(1)/79, dated 22.3.1979 regulating "Out of Turn Promotion" his claim is backed by statutory consideration, similar to Section 8-A of the Punjab Civil Servants Act, 1974.
Subject notification reads as under: S.R.O. 266(1)/79. "In pursuance of sub-rule (2) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, the following method, qualifications and other conditions are laid down for (Mushir appointment to the posts of Preventive Inspector of the Collectorate of Customs (Preventive), Custom House in Grade No. 13 under the Central Board'of Revenue.
2. These rules shall take effect from the 1st February; 1979: 3 METHOD OF APPOINTMENT' The posts will be filled by promotion. CONDITIONS FOR PROMOTION
4. Promotion to posts in column 1 below shall be made by selection from amongst persons who hold the posts. Specified in column 2 on regular basis and possess the qualifications and experience prescribed in column 3: Provided that in case of exceptional merit and outstanding performance within or outside the Department (to be recorded in writing), and for good and sufficient reasons, out of turn promotion may be made by the Appointing Authority from amongst the person holding the post of Preventive Officer in consultation with Establishment Division: Name of post Person eligible Conditions of eligibility 1 2 3 Preventive Inspector, Collectorate. Of Customs (Preventive), Custom House. Preventive Officer of Collectorate of Customs (Preventive), Custom House. least 5 years continuous service in the grade of Preventive Officer.
PROBATION
5. Persons appointed by promotion shall be on probation for a period of one year. This period may be curtailed for good and sufficient reasons to be recorded, or if considered necessary, it may, be extended for a period not exceeding one year as may be prescribed at the time of appointment. Appointment on probation shall be subject to the provisions of 'Article 6 of Civil Servants Act, 1973.
6. This notification is issued with the concurrence of the Establishment Division and supersedes the provision contained in para 29 of the Oath and Accounts Preventive Inspector contained in the Central Board of Revenue's letter No. 1 (54) S.O.R. II, 62, dated the 8th March, 1963.
He also extract support from the observation made in the case of Government of Punjab (NLR 1994 Service 96 (supra).
7. Mr. Rasheed A. Rizvi, learned counsel for the defendant essentially agitated that a bar under Article 212(2) of the Constitution, 1973 read with Section 4(b) of the Service Tribunal Act, 1973. It was contended that the question of eligibility in terms of Section 9 of Civil Servant Acts comes within the domain of Services Tribunal. According to him, seniority-cum-fitness and out of turn promotion is question of eligibility as has been held in 1991 S.C.M.R. 1129 as followed in P.'_.D. 1994 S.C. 345 and P.L.D. 1994 S.C. 539, learned counsel for the defendant also contended that the dicta laid down in N.L.R. 1994 (SERVICE PAGE 961 are not attracted as according to him out of turn promotion under the Punjab Civil Servant Acts are regulated u/S. 8-A of the Act, whereas, there is no such provision under the Civil Servants Act, 1973. It was further urged that in the case of Dr. Wasim Ismat (supra) the alleged misconduct was subsequent to the decision of the DPC whereas in this case it is antecedent to the DPC, as regard the allegations of ma/a fide as detailed in paras 12 to 15 of the plaint learned counsel for the defendant states that answer is furnished by the case reported in P.L.D. 1981 KARACHI PAGE 299 wherein the question of mala fide was held by this Court to be also within domain of the Service Tribunal.
8. It was contended by Mr. Ra:;heed A. Rizvi, that this Court cannot interfere with the departmental transaction while considering the case of promotion, as held in 1991 S.C.M.R. 1129 followed in P.L.D.
1994 S.C. 345 and 539 it was further urged that even in case whether the Courts comes to the conclusion that the Service Tribunal has no jurisdiction, such fact will not give jurisdiction to the Court as held in PLD 1994 ,S.C. 345, according to him the question where the civil servant is to be considered in DPC is again a matter which falls within the ambit of Service Tribunal and accordingly under Article 175 of the Constitution the - jurisdiction is conferred by law and the Court will not itself assumed jurisdiction in any matter.
9. Before adverting to the merits of the case, I propose to decide the question of jurisdiction of this Court as urged by Mr. Rasheed A. Rizvi appearing for the defendant.
10. Condition of eligibility for promotion of a Civil Servant to a higher post is dealt with under Section 9 of the Civil Servant Act, 1973. It is settled law that criteria either for appointment or promotion are eligibility and fitness at the same time. In M. Rahirn Khan v. Chief Secretary, NWFP (PLJ 2000 SC 161) it was held by the apex Court that:- "Concept of eligibility implies a qualification to be appointed or promoted whereas that of fitness encompasses a person competence to be chosen or selected for appointment or promotion. The test for eligibility are objective and open to scrutiny by a judicial forum i.e. Service Tribunal.
Fitness of a person to be or promoted to a particular post or grade involves a degree of subjective criteria and as an opinion so formed is not open to judicial review.
Contention of Mr. Farough Nasim, learned counsel for the plaintiff, that outstanding meritorious performance as, recorded in narrative, above, alone earned, plaintiff a right to be promoted out of turn, in terms of S.R.O. 266(l)/79 and question of fitness is alien not relevant. Argument in the first impression appears to be attractive but from bare reading of subject S.R.O. Reproduced above, such impression is dispelled.
11. Out of turn promotion, is departure from the general law of promotion as envisaged under Section 9 of the Civil Servants Act, which provides that a civil servant possessing prescribed qualification is eligible for promotion to a post for the time being reserved under the rules for departmental promotion. Promotion on selection post are made on the basis of selection on merits and on non-selection post on the basis of seniority-cum-fitness, whereas, out of turn promotion is in fact accelerated promotion provided as an incentive, motivation or reward in appreciation or acknowledgement of some extraordinary, meritorious performance in discharge of duties by a public servant. Such out of turn promotion is regulated under law (e.g. Section 8-A in Punjab Civil Servants Act, 1974) or rules/scheme (as in this case) framed under the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973.
12. Criteria, method and qualification for "out of turn promotion" of Preventive Officers of Collectorate of Customs (Preventive) Customs House having to their credit 5 years continuous service in such grade to the higher post of Preventive Inspector, Collectorate of Customs (Preventive) Customs House, as laid down under the S.R.O. 266(1)/79 are:- (1). Exceptional merit
(2) Outstanding performance.
(3) Recorded in writing.
(4) Good and sufficient reason.
(5) Consultation of appointing, authority within the Establishment Division.
The candidate or incumbent aspiring for out of turn promotion in' terms of SRO 266(l)/79 must possess all the above qualifying conditions to his credit, parameter for out of turn promotion are provided for under Section 8A of Punjab Civil Servants Act, 1974 are different.
13. Mr. Farough, on the ground of jurisdiction empathetically relied upon that judgment of Hon'ble Supreme Court recorded in the case of Raja Muhammad lqbal (NLR 1994 Service 96) to urge that matter relating to out of turn promotion" falls out of the jurisdiction of Service Tribunal. I have read the judgment carefully, the impression formed and canvassed by Mr. Farough is misleading, it is nowhere in the judgment ruled by the apex Court, that such promotion fall out of the jurisdiction of the Service Tribunal. In said case, facts were that Provisional Selection Board refused accelerated promotion on the ground that reporting officer never recommended accelerated promotion in A.C.Rs. For the last four years. The Service Tribunal, in appeal held that incumbent was entitled to out of turn promotion to next higher post/grade with effect from 29.12.1990. In appeal by the Government the apex Court held that "the declaration made and the direction given by the Service Tribunal was not within the scope of its jurisdiction "No specific direction for out of turn promotion to the respondent, could have been issued much less from a specific date". The decision of the selection Board, too, was held to be against the provision of Section 8-A of the Punjab Civil Servant Act, 1974 which, it was observed, did not envisage that the candidate must have at his credit at lest four ACR's recommending his for accelerate promotion, or that when his case was to be considered for out of turn promotion. It was further observed with reference to Section 8A that this provision clearly laid down that out of turn promotion is to be granted to a particular individual, on the basis of his extra ordinary and out standing performance of his duty and exhibiting high standard of intellectual, moral and financial integrity. This criteria alone, it was held to be kept in views while considering the out of promotion case, but Provincial Selection Board did not advert to this aspect of the case which resulted in miscarriage of justice. The matter was remitted by the Apex Court to the Provincial Selection Board for fresh decision in accordance with law.
14. After remand by the Apex Court, case was again rejected by the Provincial "Selection Board.
However, appeal was accepted by the Service Tribunal holding that the true purport of Section 8-A as highlighted by the Apex -Court was not kept in mind. It was further held that performance of a subordinate officer could be best adjudged by his next senior who is charged with the duty of making such assessm ent objectively and if the reporting officer and the counter-signing officer both had agreed that officer really did some stupendous job and his performance was really example or extra-ordinary calling for reward in the form of an accelerated promotion "it may not be equitable to deny him fruition thereof on a view that the job might have been done by any given officer", such view of the Service Tribunal was seconded by the apex Court' in second round in the case reported as Government of Punjab Vs. Muhammad Iqbal (1997 PLC (C.S.) 435).
I was also able to lay my hands on the case of Muhammad Zafarullah v. Inspector General of Police (1992 PLC (C.S.) 1029) in this case the appellant hauled up a gang of smugglers who were also convicted by the Court, on recommendation of S.P. He was also awarded commendation and reward, but D.I.G. Considered such commendation sufficient, did not considered the recommendation for promotion: However on the motion of the appellant he was admitted to such relief from 8.6.1982, appellant claimed entitlement from January, 1980 from the date of recommendation as had been done with other officers who earned ' commendation. On the ground of discrimination appeal was allowed by the Service Tribunal, case of Muhammad Zafarullah (supra) was cited with approval in Chief Secretary, Government of Punjab Vs. Mumtaz Ahmed (1996 S.C.M.,R. 1945).
15. From the reading of the cases referred to above (i.e. NLR 1994 Service 96, 1997 PLC (C.S.) 435 and 1996 SCMR 1945), I was unable to read any ouster of jurisdiction of Service Tribunals nor was able to draw any distinction between regular promotion under Section 9 of the Service Tribunal Act, 1973 or "out of turn promotion" under Special Provisions, rules, scheme or policy framed thereunder.
16. In case, where the promotion is claimed either under Section 9 of the Civil Servants Act, 1973 or under the special provision of the Act or rules or scheme or conditions framed under the Civil Servants (appointment, Promotion and Transfer) Rules, 1973 it is the appointing or competent authority that is competent to' determine the eligibility of the incumbent for promotion to a higher grade provided he qualifies the criteria laid down for such promotion or out of turn promotion as the case may be and then it is upto the DPC to recommend the incumbent for 'such promotion to the competent authority for the promotion or otherwise.
17. It is not settled law that dispute as to whether a' Civil Servant is qualified for promotion to next higher grade, being relatable to terms and conditions of his service would squarely falls within exclusive jurisdiction of Service Tribunal.
18. The question whether a person is legally entitled for out of promotion to the next higher post/grade is relatable to the factual whether he fulfils the requisites criteria or qualifies the test laid down in law or scheme governing such promotion, in case of Abid Mehmood v. Govt. Of Pakistan (1997 S.C.M.R. 1154) Hon'ble Supreme Court affirmed the view that "the question of eligibility to be considered for appointment or promotion to a post related to the term and condition 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". In Badur-ud-Din V. Govt. Of N. W.F.P. (PLD 1994, SC 345) the apex Court placing reliance on the case of Mien Abdul Malik v. Dr. Sabir Zameer Siddiqui (1991 SCMR 1129) held that the question 'relating to determination of eligibility of a Civil Servant to a post is not outside the jurisdiction of the Service Tribunal constituted under Article 212 of the Constitution, therefore, as a necessary corralling such question could not be tried or gone into by a Civil Court.
19. As has been observed by me, that there appears to be no distinction between the controversy whether it be a regular promotion under general law or out of turn promotion under some special provision or incentive scheme, both being question of eligibility to be determined accordingly in terms set out for each type of promotion under relevant law/rules. Having held so, I am bound by law declared by the apex Court' that eligibility to promotion, being question relatable to terms and conditions of Service cannot be questioned before a Civil Court.
20. Argument of Mr. Farough Naseem, that since the Service Tribunal has already declined to exercise its jurisdiction in the matter therefore, this Court will have jurisdiction. Arguments are fallacious, the fact that learned. Service Tribunal held That it had no jurisdiction, will not bestow Civil Court with any jurisdiction to decide a controversy. Under Article 175(3) of the Constitution Courts exercise such jurisdiction as is conferred by law and under Article 212 of the Constitution read with Section 4(b) of Service Tribunal Act, 1973 exclusive jurisdiction is conferred upon the Service Tribunal against any order whether original or appellate in respect of any of the terms and conditions of his service and the jurisdiction of Civil Court is absolutely barred.
21. From the record it appears that the plaintiff before waiting for the decision by the Service Tribunal rushed to this Court and filed the instant suit and during hearing of the injunction application Service Tribunal dismissed his appeal on the point of jurisdiction, it is not for this Court to advise the plaintiff to have filed a review before the Service Tribunal on to appeal against the decision as this Court cannot sit as a Court of appeal against any decision by the learned Service Tribuna and the remedy against the decision is provided for under the Service Tribunal Act, 1973 itself. Plaintiff may adopt any course as may be available .To him under the law.
22. Since I have held that this Court has no jurisdiction in the matter I refrain from expressing any opinion on merits of the case C.M.A. No. 8750/2000 is allowed. Plaint in suit is rejected and the listed application C.M.A. No. 8265/2000 is dismissed. However, under circumstance of case, there will be no order as to cost.