SHAFI MUHAMMAD MUGHAL vs SECRETARY, ESTABLISHMENT DIVISION and others

' NAZIM HUSSAIN SIDDIQUI, J.---Petitioner, Shafi Muhammad Mughal, seeks leave to appeal against the judgment dated 27-6-2000, passed by a learned Division Bench of Balochistan High Court, whereby his Petition bearing No,254 of 2000, was dismissed in limine.

2. It is alleged that the petitioner was senior most Inspector in Pakistan Railways Police, when he was promoted as DSP in the year 1993. He served as Acting Superintendent of Police at Sukkur, Multan, Workshop Division Mughalpura and at Quetta. There are two (2) wings in Pakistan Railways Police, namely, Investigation and Preventive Wing. The petitioner was in the Investigation Wing.

According to him, the total strength of posts of Superintendent of Police in Pakistan Railways Police is ten, out of which six belong to DSP cadre under DSP Cadre Rules, 1985, while the remaining four posts are meant two each for Investigation and Preventive Wings. The latter is the successor to defunct Watch and Ward Service in Pakistan Railways.

3. It is averred in the petition that the Government of Pakistan vide Serial No,172/172-A Esta Code have framed Promotion Policy and laid down Guidelines for Departmental Promotion Committee ("DPC")/Central Selection Board.

4. The first Departmental Committee meeting was held on 17-8-1999 and the petitioner's Annual Confidential Report ("ACR") for the year 1988, initiated by Divisional Superintendent, Pakistan Railways, Sukkur and countersigned by Inspector-General, Pakistan Railways Police, was cancelled and the petitioner was placed on special report vide letter dated 13-8-1999 of Joint Secretary, Ministry of Railways. The petitioner upon cancellation of said ACR made representation on 4-9- 1999 to the Secretary/Chairman, Ministry of Railways, but it was not responded by the Respondent No,2.

5. Again DPC was held on 14-12-1999, it is alleged that though the petitioner was otherwise fit and qualified for promotion to B-18, but the meeting was deferred.

6. It is the case of the petitioner that without awaiting special report and decision on representation dated 4-9-1999, Ministry of Railways vide letter dated 29-1-2000 directed General Manager, Pakistan Railways Headquarters Office. Lahore, that respondent No,6, Mr. Ahmed Mukhtar, be considered for promotion to the post of Superintendent of Police, Pakistan Railways.

7. DPC for third time was held on 11-3-2000. The petitioner was superseded on the report dated 17- 2-2000 of Brig. (Retd.) Tariq Mahmood, Director Vigilance, Government of Pakistan, Ministry of Railways Headquarters Vigilance Directorate, Lahore, which is as follows:- "General Reputation: ' Mr. Muhammad Shafi Mughal is an irresponsible and a corrupt officer. He has a history of misusing authority for personal gains. He does not offer any respect to his colleagues or subordinates. Before the recent change in command, he was reportedly involved in case of bribery and other such misdoing. He was recently overheard cribbing, his financial conditions, which can be longer cater for his luxurious life style. It is widely discussed that his subordinates take turns to pay for his office tea etc. Comments: ' The officer does not enjoy good reputation. It is, however, difficult to find out his past misdeeds/bribery etc., as no proof could be found, but mere an example of an officer making his peon/office staff to pay for his tea expenditure, makes him a doubtful character and unbecoming of an officer."

8. Being aggrieved from his supersession and recommendation for promotion of respondent No,6 to the rank of Superintendent of Police B-18, the petitioner filed Constitutional petition in the High Court of Balochistan and later on amended it and, inter alia, prayed for declaration that the promotion of respondent No,6 as Superintendent of Pakistan Railway Police was ultra vires, arbitrary, violative of principles of natural justice, mala fide and without lawful authority. Also prayed for setting aside the recommendations of DPC dated 11-3-2000, approval of recommendation by respondent No,1 dated 12-4-2000 and reversion of respondent No,6.

9. Learned High Court by its detailed Judgment, having examined the entire facts of the case and the case law cited before it by learned counsel of the respective parties reached the conclusion that by virtue of clause (b) of the proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973, no appeal shall lie to a Tribunal against any order or decision of a departmental authority determining fitness or otherwise of a person. The High Court also noted that the same provision has also been enacted in the 2nd proviso to sub-rule (r) of rule 4 of the Civil Servants (Appeal)

Rules, 1977. It reads as under: "(b) no appeal shall lie to a Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher post or grade;"

10. It is contended on behalf of the petitioner that DPC ought to have recommended the petitioner for promotion to B-18 in view of his past record and on the basis of Serial No,172/172-A of ESTACODE and normal promotion policy maintained and carried out by the respondents. Learned counsel also argued that the petitioner fulfilled all the requirements for promotion and the Vigilance Report referred to earlier could not have been made a ground for supersession or otherwise finding him unfit. Learned counsel has argued that Vigilance Report was not part of promotion policy and should have been ignored for various reasons, including that no notice was given to the petitioner about said Report nor he was afforded an opportunity of being heard about it. Learned counsel also argued that average report could not be treated as "Adverse Report" and the recommendations of DPC were mala fide.

11. It is settled law that Service Tribunal has no jurisdiction against an order or decision of a departmental authority determining the fitness or otherwise of a person for promotion to higher post or grade. For this reason, the petitioner directly approached the High Court for his grievances.

This Court has, already by authoritative judgment, held that in determining the issue of fitness the Tribunal or Court has no jurisdiction. In the case reported as Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others 1991 SCM R 1129, the following was observed: "2. What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of 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 a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification."

12. In another case reported as Muhammad Anis and others v. Abdul Haseeb and others PLD 1994 SC 539 relevant page at 547, the following was held by a Full Bench of this Court: ' "A perusal of the above-quoted para. From the above report indicates that Mr. Shafiur Rahman, 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."

13. Thus, it would seem that the expression "eligibility" and "fitness" are distinct and are for different purposes. The Legislature in its wisdom has left the issue of fitness at the discretion of the competent authority for the obvious reason that the authority looking background and the performance would be in a better position to determine the issue of fitness than the Tribunal or the Court. In this particular case, as is evident from the report, referred to earlier, it is clear that general reputation of the petitioner in the past was not satisfactory, rather it was poor. Nothing material has also been brought on record to substantiate the plea that said Vigilance Report was false.

14. In consequence, leave to appeal is refused and the petition is dismissed.