AISH MUHAMMAD And 68 Others vs PAKISTAN And 75 Other

M.S.H QURAISHI, J . The appellants are employees in the Secretariat of the Government of Pakistan.

They alongwith others had taken the Section Officers' Promotional Examination held by the Federal Public Service Commission in 1981 and were among the 229 who had finally qualified in . That Examination. The Government of Pakistan, however, offered promotion only to the first 100 persons in order of merit from the list of the qualified candidates, leaving out the appellants who had been placed lower in that list. Another similar Examination was announced to be held in 1982. The appellants felt aggrieved, for, according to them, all vacancies, existing and future, were to be first filled in from the list of persons who had qualified in 1981 Examination and until that list was exhausted, no fresh examination could be held. They, therefore, invoked the constitutional jurisdiction of the Lahore High Court but their petition failed upon the view that as the appellants had qualified at a "competitive" examination meant to fill one-third quota for promotion in the cadre of Section Officers, it cannot be said that every one who had qualified at that examination had attained a vested right for promotion to the post. The appellants filed an Intra --Court Appeal but the same was dismissed in limine upon the legal ground that the dispute not being relatable to their fitness but their eligibility for promotion as Section Officers, the matter fell within the exclusive jurisdiction of the Service Tribunal and as such recourse to the constitutional jurisdiction of the High Court was misconceived .As that Court had no jurisdiction to adjudicate upon the dispute.

2. Leave was granted to the appellants to consider whether their claim to appointment as Section Officers in Grade-17 on the basis of the Promotional Examination 1981, held in pursuance of O.M.No.2/1/80--CIII(A), dated 22-2-1981, related to the terms and conditions of their service and as such the constitutional jurisdiction of the ,High Court was not barred.

3. The aforesaid O.M., dated 22-2-1981 was the notice issued by the Establishment Division of holding the 1981 Examination for filling in vacancies of Section Officers by promotion in accordance with O.M. No. 1/2/75-ARC, dated 27-1-1975. According to para. 7 of this latter memorandum, 2/3rd of future vacancies of Section Officers (in Grade-17) were to be filled through direct recruitment and the remaining 1/3rd through promotional examination. According to para. 8(b) of the memorandum, those "finally cleared" in the promotional examination would undergo. Training before actual posting as Section Officers. The promotional examination was thus meant for filling 1/3rd of the vacancies reserved for promotion. The notice for the examination issued on 22-2-1981 also clarified that the examination will be (1) competitive in nature, and (2) no panel shall be drawn up for future appointment in the grade of Section Officers. This would mean that after the existing number of vacancies reserved for promotion were filled in on the basis of the result of the examination, the list would be scrapped and would not be utilized for recruitment against future vacancies. Under section 9 of the Civil Servants Act, "a civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the the being reserved under the rules for departmental promotion in the service or cadre to which he belongs". It appears from the Establishment Division's Memorandum No.2/5/81-OMC-1, dated 11-10- 1982 that 100 vacancies had been "reported to the FPSC" at the the of the examination and accordingly only 100 candidates had been appointed as Section Officers. (Underlining is ours).

4. In construing the exclusive jurisdiction of the Service Tribunal, we have to keep in mind the provisions of Article 212 of the Constitution read with section 4 of the Service Tribunals Act. Under Article 212, the Tribunal will have exclusive jurisdiction, inter alia, in respect o matters relating to the terms and conditions of persons who are o have been in the service of Pakistan, including disciplinary matters. Section 4 of the Service Tribunals Act entitles a civil servant to appeal to the Tribunal against any final order, original or appellate, made by the departmental authority "in respect of any of the terms and conditions of his service". Proviso "(b)" to subsection (1) of this section, however, bars an appeal to the Tribunal in matters concerning determination of fitness or otherwise of a person to be promoted to a higher post or grade. Fitness being essentially a matter of subjective assessm ent by the promoting authority which is not controlled by any rule or regulation, the aggrieved servant cannot complain that his non-selection involved al breach of any of the terms and conditions of his service.

5. The contention is that by restricting the promotions to the top 100 candidates, the Government had by implication considered the remaining candidates in the list to be unfit for promotion and as such the matter could not fall within the jurisdiction of the Tribunal. The appellants' case is that ell the candidates who had finally cleared the examination, and the list of the 229 candidates published by the Federal Public Service Commission on 24-11-1981 did show that all of them had "finally qualified", were in terms of para.8(.b) of O.M., dated 22-1-1975 to be appointed and sent for training and that, therefore, all future vacancies in the grade of Section Officers, accruing in the promotional quota, were to be filled in from the remaining candidates in the list and until the entire list had been exhausted, no future examination could be held. The contention is self-defeating, for, if the Government had acted in breach of para.(8) of O.M., dated 27-1-1975, then the same was clearly a breach of the terms and conditions of the appellants' service and as such the matter would fall within the exclusive jurisdiction of the Tribunal. Even otherwise, the notice of the examination had itself made it clear that no panel was to be drawn up for future appointments and that the examination was of a competitive nature. If an examination is held on a competitive basis for filling in certain number of vacancies, then a corresponding number of candidates from the top in the list of the successful ones will be promoted. Those who are lower in the list and thus left out, cannot complain that their non-selection is on account of unsuitability. Suitability was determined by the examination and all those who qualified were suitable. Their non-selection was thus not on account of unsuitability but on account of the restricted number of vacancies being available, for which, they being lower in the list were not eligible. Were there more vacancies, more of them would have been. Appointed. The matter, therefore, did not involve the question of suitability but of eligibility for the given number of available vacancies.

6. On this view of the matter, no exception can be taken to the impugned judgment of the High Court. The appeal is dismissed with no order as to costs.