MUHAMMAD IQBAL and others C.P.L.A. No,2287 of 2005 and 3 others vs EXECUTIVE DISTRICT OFFICER (REVENUE), LODHRAN and another and 3 others

' RANA BHAGWANDAS, J.--- These identical petitions are directed against common judgment of a Division Bench of the Lahore. High Court, dated 28-7-2005 upholding the judgment of learned Single Judge passed in similar writ petitions filed by the private respondents challenging the promotion of the petitioners-Patwaris to the office of Kanungo by Executive District Officer (Revenue), Lodhran:

2. Each of the respondents, through separate writ petitions challenged the act of respondent- Executive District Officer (Revenue) on the premise that the petitioners were neither eligible nor more suitable than the respondents in the matter of promotion as some of them had even not passed the departmental examination prescribed for the office of Kanungo under the "Punjab Revenue Department (Revenue Administration Posts) Rules, 1990" framed by the Government of Punjab under section 23 of the Punjab Civil Servants Act, 1974 as amended vide notification of the Government of Punjab, Services and General Administration Department, dated 2-3-2002.

3. Writ petitions were resisted by the petitioners on a variety of grounds, including the bar of jurisdiction as contemplated by Article 212 of the Constitution. On merits, it was urged that the recommendation made by Departmental Promotion Committee was based on ayailable record and the respondents were rightly non-suited and found unfit. In some of the cases, it was stated that their A.C.Rs, and other documents were not complete, therefore, they could not be considered and found fit for promotion as Kanungo. Learned Single Judge of the Lahore High Court, Multan Bench vide judgment, dated 18-1-2005 elaborately dealt with all these pleas and relying upon the dictum laid down in Muhammad Anis v. Abdul Haseeb PLD 1994 SC 539 held that while the issue of eligibility for promotion may be a question falling within the exclusive domain of the Service Tribunal constituted under the Service Tribunals Act, the question of suitability and fitness for promotion to a post was expressly excluded from the jurisdiction of the Tribunal and, therefore, the petitions were rightly filed before the High Court. While allowing the writ petitions, High Court made the following directions:-- "9. Consequently, the order, dated 16-6-2004 passed by E.D.O.(R), Lodhran on the recommendations of Departmental Promotion Committee is held to be illegal and unlawful and the E.D.O.(R), Lodhran is directed to order the preparation and completion of service record of all the candidates/officials of Revenue Department (Patwaris) who were qualified at the time of convening of earlier Departmental Promotion Committee and then to re-examine/reconsider the cases of the petitioners along with other qualified respondents, by the Departmental Promotion Committee and for fresh decision, keeping in view the rules, regulations and the law on the subject within shortest possible time. With this direction/observation, the writ petitions are accepted but with no order as to costs."

4. Petitioners being naturally dissatisfied, assailed the judgment of the learned Single Judge in I.C.As. Before a Division Bench of the Lahore High Court but without any success, hence these petitions for leave to appeal.

5. We have heard learned counsel for the petitioners at quite some length and gone through the impugned judgments as well as the record. Learned counsel reiterated the same arguments, which were advanced before two different Benches of the Lahore High Court but repelled for strong reasons.

6. Precisely stated, the grievance appears to be that the High Court should not have interfered with the exercise of jurisdiction by the competent authority in the matter of promotion as it was founded on subjective satisfaction of the Authority, which could not be substituted by the High Court under any canon of law. Learned counsel heavily relied upon Muhammad Anis (supra) Abdul Malik v.

Sabir Zameer Siddiqui 1991 SCMR 1129, Abdul Ghafoor v. National Highway Authority, 2002 SCMR 574, Zafarullah Baloch v. Government of Balochistan 2002 SCMR 1056 and Tasleem Jan v. Muhammad Zaman 2005 PLC (C.S.) 610. The ratio of all the cases appears to be that what is barred from the jurisdiction of the Tribunal is question of fitness of civil servant for promotion yet the determination of his eligibility is the question on which jurisdiction of the Tribunal has not been barred. A Fitness essentially introduces an element of objective valuation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. The case of Abdul Malik (supra) essentially deals with, the question of eligibility of a person for the purpose of promotion being not a matter in terms of section 4 of the Service Tribunals Act, 1974. Similar question was involved in the case of Abdul Ghafoor (supra) expressing the view that appeal before the Tribunal would not be competent against an order of departmental authority determining fitness of a civil servant to be promoted to a higher post or grade or to be appointed or hold a particular post. In the facts of the case, it was held that Authority may be competent to promote a civil servant on acting charge basis by relaxing the prescribed length of service, but no such discretion vests in the authority to dispense with or relax the prescribed academic qualifications. In the case of Muhammad Anis (supra), it was authoritatively laid down that the questions of eligibility and fitness have been treated differently by law-makers in the Civil Servants Act, 1973 and in the Service Tribunals Act 1974. In section 9 of the former Act, a right has been conferred on a civil servant to be considered fort promotion if he is eligible on account of the fact that he possesses prescribed minimum qualification but he has no vested right to be promoted. In contrast to aforesaid section 9, the law-makers in proviso (b) to subsection (1) of section 4 of the Service Tribunals Act, 1974 have not used the word "eligible" but have employed the word "fitness or to a higher post or cadre". This Court concluded that the question of otherwise to be appointed or to hold a particular post or to be promoted eligibility, which is a term of service by virtue of above subsection (1) of section 9 of the Civil Servants Act, 1973 has not been excluded from the purview of the jurisdiction of the Tribunal but the question whether a person having requisite eligibility has been rightly selected or not selected on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade has been excluded.

7. There may be no cavil with the promotion that the question of promotion rests within the jurisdiction of competent authority, which would not be ordinarily interfered with by a Court of law but where the authority competent to award promotion or to appoint to a particular post acts in violation of law, in excess of jurisdiction, without jurisdiction or in colorable exercise of powers conferred on him, extraordinary jurisdiction of the High Court in terms of Article 199 of the Constitution C can always be invoked for redressing the wrong. We are, therefore, not inclined to agree with the learned counsel that this was not a fit case for interference 'by the High Court in the exercise of constitutional jurisdiction. Admittedly High Court has not substituted its own decision for the act of the respondent; therefore, the submission is preposterous and not relevant.

8. For the aforesaid facts, circumstances and reasons, we find no ground for the grant of leave, which is declined and .