' SABIHUDDIN AHMED, J.---This appeal is directed against the order of the learned Single Judge on the original side of this Court dated 22-3-2001, whereby the appellant's application for interim relief was dismissed and the plaint was also rejected under Order VII, rule 11, C.P.C. The relevant facts appear to be that the plaintiff/appellant is a civil servant working as Executive Engineer under the Communication and Works Department of the respondent No,3 and his name appeared at serial No,5 of the seniority list of Executive Engineers. On 12-10-2000 a meeting of the Provincial Selection Board (respondent No,2) was held for recommending promotion against five posts of Superintending Engineers. According to the information received by the officer standing at serial No,1 was superseded as according to the performance evaluation quantification formula, he had only obtained 45 marks as against 60 required by way of minimum threshold for the purpose of promotion to the post of Superintending Engineer. The officer at serial No,3 was not considered as he was absconding from service since 1-3-1997, whereas the cases of officers standing at serial Nos.2 and 4 were deferred on the ground of pending disciplinary proceedings/departmental enquiry against them. This left the appellant as the senior most eligible officer with a quantification score of 68 marks. Nevertheless, the Selection Board failed to recommend the appellant for promotion despite his seniority and fitness in terms of the above score and recommended the respondents Nos.4 to 6 who were officers junior to the appellant for promotion leaving two posts vacant for consideration of those against whom departmental proceedings were pending. It is further alleged that the following reasons were recorded for not recommending the appellant tor promotion: " in last five years he remained awaiting for posting orders and under suspension for two years. The remaining two A.C.Rs, indicate him careless and below the average."
2. It was further contended that by the appellant that the Selection Board adopted an altogether irrelevant criterion for the purpose of recommending promotions inasmuch as the annual confidential reports of an officer during the preceding five years were to be considered only according to the old promotion policy, whereas under the policy currently in force his quantification score according to a prescribed method was to form the basis of recommendation.
As to the factual aspect of the controversy he asserted that he remained under suspension from 30-12-1998 to 14-10-1999 only on the allegations of coming late on one day and was eventually exonerated of the charge.. Moreover, he remained without posting for six months during the period of five years prior to the meeting of the Selection Board and in any case failure of the Government to assign him a posting for no fault of his could not be allowed to stand as an obstacle in his way for further promotion. With respect to the observations in his A.C.Rs, he stated that only the adverse remarks commented upon by the Board in his A.C.R. For the first part of 1995, were communicated to him in 1998 and were expunged by the competent Authority before determination of his fitness for promotion to the post of Superintending Engineer by the Selection Board. In the report relevant to the remaining part of that year he was rated as good.
3. It appears that against this background the appellant filed-a suit on the original side of this Court seeking a declaration that the decision of the Selection Board be held null and void and a direction that his fitness for promotion be re-determined in accordance with the current promotion policy. He also sought interim relief by way of restraining the respondents from implementing the recommendations of the Selection Board. Office objections as the maintainability of suit were raised and the learned Single Judge while deferring consideration of the objections directed issuance of notice to the respondents and passed ad interim orders restraining the respondent, No,3 from issuing notification for promotion. Counter-affidavits were filed by the private as well as official respondents, but it appears that there was not much of a factual dispute and arguments were addressed on the question of maintainability of the suit. Through an elaborate judgment after referring to several reported cases the learned Single Judge held the suit to be barred by Article 212 of the Constitution, resulting in rejection of the plaint and dismissal of the application for inter relief.
4. Mr. M.M. Aqil Awan learned counsel for the appellant at the outset contended that the findings of the learned Single Judge to the effect that the bar of Article 212 of the Constitution was attracted were wrong in law inasmuch as the aforesaid Constitutional provision barred the maintainability of suits and other proceedings before the Courts only when the matter fell within the jurisdiction of a Service Tribunal. Since appeal against an order of a departmental authority relating to the fitness of a person for promotion to a higher post was not maintainable by a Service Tribunal in view of the proviso (b) to section 4(1) of the Service Tribunals Act, the jurisdiction of civil Courts was not ousted.
Since a question of law of substantial importance was raised, we admitted the appeal for regular hearing and issued notices to the respondents, A.-G. Sindh and Mr. Makhdooni Ali Khan, Advocate to assist us as Amicus curiae. Learned A.-G. Appeared on behalf of the respondents Nos.1 to 3 and after his elevation to the office of Attorney General of Pakistan Mr. Makhdoom Ali Khan conveyed his inability to assist us. We have nevertheless had the benefit of some very able arguments from M/s. M.M. Aqil Awan and Shabir Ahmed Awan learned counsel appearing for the appellant and the respondents Nos.4,to 6 respectively. Though a great deal of case-law from different jurisdictions was cited by learned counsel for the parties, we do not think it is necessary to refer to all the precedents and it might suffice to refer only to a few of them laying down the basic principles on which the controversy could be resolved.
5. Elaborating his main contention Mr. M.M. Aqil Awan argued that the learned Single Judge had erred in holding that the suit was hit by Article 212 of the Constitution as the matter related to terms and conditions of service. Learned counsel contended that Article 212(2) did not bar the jurisdiction of Courts in all matters pertaining to terms and conditions of civil servant, but only to such matters to which the jurisdiction of the Tribunals established under Article 212(1) extended. That proviso (b) to section 4 of the Sindh Tribunals Act clearly stipulated that no appeal would lie to a Tribunal against an order or a decision of a Departmental Authority determining the fitness of a civil servant to be promoted to a higher post. He referred to a large number of pronouncements of the Honourable Supreme Court drawing a fine distinction between "eligibility" and "fitness" and holding that whereas the question of eligibility of a person to be considered for promotion was a matter which was justiciable before a Service Tribunal, the determination of actual fitness could not be gone into in view of the above mentioned statutory provisions. He argued that in the instant case eligibility of the appellant was not in issue as he had already been found eligible by the concerned department on the basis of haying completed the requisite number of years of service and fulfilling other criterion whereby he could be considered for promotion. The appellant was aggrieved by the fact that thereafter the Selection Board did not find him tit to be recommended for promotion and such finding was not questionable before the Service Tribunal and as a consequence the jurisdiction of Civil Court was not barred.
6. We have carefully gone through the impugned order and agree with the learned Single Judge to the extent that the question of following a particular promotion policy may be a matter germane to. Terms and conditions of service. Nevertheless, with profound respects we are unable to subscribe to the view that this fact by itself would attract the application of Article 212 of the Constitution and find a great deal of force in the contention of Mr. Aqil Awan. A five members Bench of the Honourable Supreme Court in the celebrated case of I.A. Sherwani v. Government of Pakistan (1991 SCMR 1041) declared the law to the following effect: "From the above-quoted Article 212 of the Constitution and section 4 of the Aft, it is evident that the jurisdiction of the Courts is excluded only in respect of the cases in which the Service Tribunal under subsection (I) of section 4 has the jurisdiction. It must, therefore, follow that if the Service Tribunal does not have jurisdiction to adjudicate upon a particular type of grievance the jurisdiction of the Courts remains intact."
7. In view of the ,specific provisions of proviso (b) to section 4(1) of the Sindh Service Tribunals Act barring the Tribunal from entertaining appeals against determination of fitness to be promoted and above mentioned authoritative pronouncement of the Honourable Supreme Court, we are constrained to hold that the view of the learned Single Judge to the effect that the appellant has a remedy before the Service Tribunal and the suit is barred by Article 212 of the Constitution is unsustainable.
8. Mr. Shabir Ahmed Awan initially attempted to argue that there was no essential difference between eligibility and fitness, but for reasons discussed above and in view of the pronouncements of the Honourable Supreme Court in Iron Ahmed Khurram v. Government of Pakistan (PLD 1980 SC 153) and Abdul Hasib v. Muhammad Anis (PLD 1994 SC 532), the contention is untenable.
Nevertheless, learned counsel raised a far more formidable question by arguing that even if the controversy in question related to fitness of the appellant for promotion and was not justiciable before a Service Tribunal, it did not necessarily follow that the matter could be raised before a Civil Court. He argued that the appellant was required to establish that he had a civil right which could be enforced through a civil Court and it was well-settled that no civil servant could claim a vested right to be promoted to a particular post. Moreover, the question of fitness of a particular person to be promoted could only be decided by the concerned administrative agencies and was by its very nature non-justiciable. In support of this proposition he relied upon the following observations of the Honourable Supreme Court in Mian Abdul Malik v. Dr. Sabir Zamir Siddiqui and others (1991 SCMR 1129).
"Fitness introduces an element of subjective evaluation on the basis of objective criteria where substitution of an opinion of the competent Authority is not possible by that of a Tribunal or a Court."
9. Learned Advocate-General also supported the same view and argued that a civil Court could not sit in judgment over the findings of the competent departmental authority declaring a particular person fit and suitable to be promoted to a higher post. On the other hand while d Awan was unable to refer to any pronouncement of the Honourable Supreme Court where exercise of jurisdiction of civil Courts in matters pertaining to fitness for promotion was upheld, he referred to a Division Bench judgment of the Lahore High Court and one from this Court, which seems to support his view. In Bashir Ahmed v. District Judge. Gujranwala (1983 PLC (C.S.) 652) a Division Bench of the Lahore High Court held that though an order promoting a particular person to a higher post without obtaining the recommendations of a Promotion Committee could not be challenged before a Service Tribunal on account of a statutory bar, the jurisdiction of the High Court under Article 199 of the Constitution could always be invoked and the illegal order was struck down. In Syed Muhammad Afzal Farooque v. Secretary Establishment Division (1998 PLC (C.S.) 1175), it was held that when an eligible person was not considered for promotion, the matter would not fall within the purview of the jurisdiction of a Service- Tribunal, but a mala tide order could always be set aside by the High Court in the exercise of Constitutional jurisdiction.
10. Learned Advocate-General attempted to distinguish the two judgments (the later, incidentally being authored by himself ) by arguing that the scope of Constitutional jurisdiction was of much wider and in the instant case it had to be established whether the appellant had a legal right which was capable of being enforced by a civil Court.
11. We have anxiously considered the above propositions. The appellant in his plaint had prayed for a declaration that the decision of the Selection Board be declared null and void and injunctions requiring the Board to redetermine his fitness in accordance with the promotion policy and restraining the Government from giving effect to such recommendations. Learned counsel for the respondents appear to be right in contending that the appellant could not claim a vested right to be promoted. Section 42 of the Specific Act enables a plaintiff to seek a declaration as to his legal character or right as to property. It, therefore, appears that the appellant might not be entitled to a declaration as regards his legal character or right as to property.
12. The matter, however, does not end here. Under section 54 of the Act, the appellant could always apply for a perpetual iniuncnon to prevent the breach of an obligation existing in his favour. It is well-settled by now that the Government is required to act fairly and honestly and in accordance with law with respect to rights of and its duties towards citizens irrespective of the question whether a particular person has an enforceable legal right in the strict sense. One may refer to the observations of the Honourable Supreme Court in Shaukat Ali and others v. Government of Pakistan (PLD 1997 SC 342), where their Lordships held that even where a licence is revocable, the Court may interfere with mala fide action of a State functionary. All public powers is in the nature of a trust and must be exercised strictly in accordance with law and for the purposes for which it was conferred.
This in our humble view is an obligation cast upon State functionaries, , which is enforceable at law.
It may also be added that Articles 4 and 5(2) of the Constitution stipulate that to be treated in accordance with law is the inalienable right and duty to obey the law and the Constitution is the inviolable obligation of every citizen. These provisions would apparently apply to citizens endowed with exercise of public power.
13. We are, therefore, of the view that even if the appellant is not entitled to any declaratory relief an injunction could always be granted to prevent the breach of an obligation on the part of the respondents. The main fact that the appellant had not asked for an injunction as independent relief but only sought the same by way of consequential relief to the declaration prayed for would be of little consequence. In Muhammad Ilyas Hussain v. Cantonment Board Rawalpindi (PLD 1976 SC 785), the Honourable Supreme Court treated a suit for declaration and permanent injunction as one for injunction simplicitor observing that the declaration was merely introductory to the main relief sought and the appellant was at liberty to drop the same.
14. For the foregoing reasons, we are clearly of the view that the controversy in question being outside the purview of the jurisdiction of a Service Tribunal, a mala fide order or an order in defiance of the obligations of the respondents could always be questioned by a civil suit for injunction. As regards the scope of interference by a civil Court, it might be appropriate to revert to the observations of Shafi-ur-Rehman, J., in Mian Abdul Malik's case (1991 SCMR 1129) quoted in para.
8. Indeed learned counsel for the respondents are correct in asserting that a civil Court cannot substitute its opinion for that the competent Authority and there is always an element of subjective evaluation which is neither justiciable before a Service Tribunal nor before a Court. Nevertheless such subjective evaluation is to be based on an objective criteria. Whenever the competent authorities in undertaking this exercise of evaluation act with malice or on whims and caprices or on criterion not prescribed by law a civil Court might well be entitled to interfere and enforce the obligations through a perpetual injunction which may even be in mandatory form.
15. For the foregoing reasons, we would allow this appeal set aside the impugned order and remand the suit to the learned Single Judge for decision in accordance with law, with a short period and pass such interim orders as it deems proper.