' KHAWAJA MUHAMMAD SAEED. J,---The above captioned both the appeals have been directed against the common judgment of the Service Tribunal passed on 16-7-2001, whereby the appeals filed by the appellants were dismissed. As common questions of fact and law in both the appeals are involved, therefore, it shall be convenient to decide them through this single judgment.
2. The admitted facts, briefly stated, are that Lady Dr. Rubina Qamar Qureshi was inducted in the Health Department as Dental Surgeon in B-17 on 27-3-1978, whereas Dr. Abdul Ghaffar Sulehria was initially recruited in the Health Department as Dental Surgeon B-17 on 15-10-1980. From the dates of their induction in service. Both the appellants claim to have performed their duties to the best of their abilities and to the utmost satisfaction of their superiors. According to them on account of these qualities their work was always appreciated in their A.C.Rs. And up to this time no adverse remarks were ever entered in their service record. On the basis of 40% formula Lady Dr. Rabina Qamar Qureshi was promoted in Selection Grade B-18 w.e.f. 16-2-1987 and Dr. Abdul Ghaffar Sulehria was promoted in selection grade B-18 w.e.f. 27-9-1987. Both the appellants were given move-over B-19 on 1-12-1992. A seniority list was prepared by the Health Department in which appellant, Lady Dr. Rubina Qamar Qureshi, was entered at serial No.11, whereas Dr. Abdul Ghaffar Sulehria at serial No.12. A panel containing the names of both the appellants and respondents Nos.3 and 4 was referred to the Selection Board along with some other doctors for promotion as Senior Dental Surgeon B-18. Both the appellants were not approved by the Selection Board.
However, respondents Nos.3 and 4, who were entered below in the seniority list than the appellants, on the recommendations of the Selection Board were promoted to the posts of Senior Dental Surgeon B-18 vide notification dated 28-11-1996.
3. Feeling aggrieved from the recommendations of the Selection Board and appointments of the junior officers, both the appellants availed the appellate jurisdiction of the Service. Tribunal against the aforementioned notification dated 28-11-1996. As the matter in controversy in both the appeals was identical and the parties were same, therefore, the Service Tribunal conducted consolidated proceedings in both the appeals and vide judgment under challenge dated 16-7-2001 dismissed both the appeals on the ground that both the appellants have not passed the grading course as laid down under the rules, therefore, they were not eligible to be considered for promotion against the posts of Senior Dental Surgeon B-18.
4. Mr. Mujahid Hussain Naqvi, the learned counsel for the appellants, argued that the Selection Board fell in error in holding that only graded doctors could be considered for the posts of Senior Dental Surgeons B-18, He maintained that the basic qualification prescribed at serial No.23 of the relevant rules for the post of Dental Surgeon B-17 is graduation in Dental Surgery and registration with Pakistan Medical and Dental Council. Both the appellants fulfil these two basic qualifications.
' According to the learned counsel two modes have been provided in the rules for promotion to the posts of Senior Dental Surgeons B-18. One being through promotion on the basis of selection on merit-cum-seniority and fitness from amongst the officers holding the post of Dental Surgeon B-17 with five years experience, whereas the second mode is direct recruitment. According to the learned counsel, both the appellants were senior to respondents Nos.3 and 4 and their service record was also above board. In these circumstances there was no justification for the Selection Board to promote junior officers over and above the rights of the appellants who were admittedly senior to them. He strenuously criticized the conduct of the Selection Board, whereby the appellants were ignored from consideration mainly on the ground that they had not passed the grading course in Dental Surgery as contained in serial No.19, column No.7 of the Schedule attached with the Health Department Service Rules, 1984. According to the learned counsel under rules only such grading course conducted by Armed Forces Medical College was necessary which is recognized by PM&DC. The Pakistan Medical and Dental Council Islamabad has clearly stated that it does not recognize grading courses conducted by the Armed Forces Medical College because it is the internal arrangement of A.F.M.C. Therefore on this excuse there was no justification for the Selection Board to ignore the merit of the appellants without seeking clarification from Pakistan Medical and Dental Council. According to the learned counsel if the merits of the contesting parties are identical, then the one, senior in length of service, has edge over the other persons in the field. In the present case as the appellants and respondents were possessing equal qualifications, therefore, being senior as compared to respondents Nos.3 and 4, the appellants were entitled to promotion ahead of them. According to the learned counsel, it was wrongly held by the Service Tribunal that the appellants were found unfit for promotion by the Selection Board. He submitted that the merits of the appellants were not considered on account of mistaken view taken by the Selection Board that they were not fulfilling the required educational standard. Thus, any authority of this Court on this subject has no relevancy. If after considering the merits of the contesting parties, an objective opinion is formed by the Selection Board that who out of the desirous candidates was eligible for promotion to shoulder the responsibilities of post in question, then in that case such opinion cannot be challenged in appeal before the Service Tribunal because the objective opinion formed by a legally constituted Departmental Selection Committee/Board cannot be substituted by any Court through its wisdom. But in the present case, according to him, both the appellants were not considered because a mistaken view was formed by the Selection Board that as they have not passed the grading course conducted by, the Armed Forces Medical College, therefore, they could not be considered for promotion to Senior Dental Surgeon B-18.
According to the learned counsel the Service Tribunal assumed the fact about the determination of fitness of appellants contrary to the established facts on the record. He further argued that under the provisions of the AJ&K Service Tribunals Act, 1975, the final order is to be challenged before the Service Tribunal by impleading the concerned authority in the line of respondents because mere recommendations made by any Selection Committee/Board for or against any person cannot assume finality till the time the same are accepted by the authority. Therefore the Selection Board in the present case was not a necessary party. According to the learned counsel, the Service Tribunal has considered the law which was laid down in writ jurisdiction by this Court and wrongly applied the principle laid down for maintaining writs in service matters. He contended that the Service Tribunals Act has provided the scheme for availing the jurisdiction of the Service Tribunal, therefore, the procedure laid down under it is to be strictly followed. No person can adopt other procedure which is not owned by the Service Tribunals Act. He relied on the judgment of this Court in a case titled Azad Govt. Of the State of Jammu and Kashmir and others v. Mujahid Hussain Naqvi and another [PLJ 2001 SC (AJ&K) 50]. Wherein it is laid down that finding of fact recorded by an administrative authority not based on any sound and cogent reason is not immune from judicial review. According to the learned counsel, in the case of the appellants the Selection Board has not given any definite findings as to how the present appellants were not found suitable and fit for promotion to the posts of Dental Surgeon B-18. It has merely formed an opinion that the appellants did not possess the diploma in grading course conducted by A.F.M.C. The stress was laid by him on the parawise comments filed by some Imam Bakhsh in his capacity as an Admin. Officer, Pakistan Medical and Dental Council Islamabad, that the grading courses were internal arrangement of A.F.M.C. And the same are not recognized by the aforesaid Council. He stressed that under serial No.19, column No.7 of the Schedule attached with the Health Department Service Rules, 1984, only such qualification is to be considered which is approved or recognized by the aforesaid Council in respect of grant of promotion or annual increment. As grading or any such course is not recognized and approved by Pakistan Medical and Dental Council, therefore, the opinion of the Selection Board and decision of the Service Tribunal are bad in law. He further argued that his clients have been treated with discrimination because in past this qualification was not considered necessary by Selection Board for promotion. He quoted the example of Dr. Muhammad Iqbal Mir and Dr. Zafar Ellahi in this regard and in support of his contention placed reliance on the statement of Ali Akber Khan, Admin. Officer of the office of Director General Health Department, who in his statement has stated that in past the Selection Board approved such doctors for their promotion in grade B-18 who had not done grading course from Armed Forces Medical College Rawalpindi. The reliance was also placed on the statement of Dr. Shaoor Ahmed Shaoor, Senior Dental Surgeon; wherein he has admitted a question put to him by the learned counsel for the appellants that one year's grading course obtained by him is not approved by Pakistan Medical and Dental Council.
The relevant portion reads as follows:-- {{URDU TEXT}} ' The learned counsel in the light of the above referred statement argued that the grading course is not approved by Pakistan Medical and Dental Council. According to him this qualification has not been recognized even by the Government of Azad Jammu and Kashmir, otherwise the language of the rules would have been different. Thus, according to the learned counsel, the Selection Board was guilty of committing flagrant disregard of law while ignoring the merits of the present appellants at the time of making recommendations in favour of those who were junior to them. It was further argued by the learned counsel for the appellants that the appellants were not sent for grading course as after joining service it was not up to their sweet will to select time to go for grading course. It was within the competence of the Government and other concerned authorities of the Health Department to choose serving doctors for grading course and order them to obtain the Certificate in grading course from the recognized institutions. The present appellants were never sent for grading course, therefore, the non-possessing of any grading Certificate in these circumstances cannot be held justified step to deprive them from their promotions. According to the learned counsel the Service Tribunal has travelled beyond the pleadings as the points formed by the Service Tribunal did not arise out of the pleadings of the parties. The Service Tribunal, in the opinion of the learned counsel for the appellants, has travelled beyond the scope of pleadings and violated the principle of law laid down by this Court in the cases reported as Zahida Mahmood v.
Muhammad Sabir Khan and 5 others 2000 YLR 1011; Ch. Walayat Khan and 2 others v. Ch. Muhammad Azam and 12 others 1995 SCR 384, Muhammad Siddique Farooqi v. Azad Jammu and Kashmir Government and others PLD 1994 SC (AJK) 13 and Beero v. Mst. Said Bi 1992 SCR 286.
5. Conversely it was pressed from the other side that the Selection Board.Was a necessary party as the grievance of the appellants is mainly against the recommendations of the Selection Board.
Therefore without impleading the Selection Board in the line of respondents, the appeals before the Service Tribunal in the present form were not maintainable. While explaining their point of view, it was submitted by the learned counsel for the respondents, that the notification dated 28-11-1996 was issued on the recommendations of the Selection Board which should have been impleaded in the line of respondents to justify its recommendations. It was further contended that the present case is the case of promotion out of serving members of the Health Department. The promotion out of serving members is to be made on the basis of seniority-cum-fitness. While judging the fitness of the members, there are some essential ingredients which are to be taken into consideration by the Selection Board, i.e. (i) the candidate must be fulfilling the requirements relating to basic qualifications laid down for the post; (ii) if any professional training is attached for the promotion of the post, as the present case the grading course, according to respondents, was necessary, then the candidate must be in possession of such professional training and (iii) the last requirement is performance of the candidate in the department. It was conceded by all the learned counsel for the respondents that no doubt seniority has an edge if other factors are equal.
In both these cases, according to the learned counsel for the respondents, the grading course from A.F.M.C. Was must. The appellants admittedly have not obtained Certificate in any of the said courses. Therefore they were not eligible to be considered for promotion against the posts of Senior Dental Surgeon B-18. While judging the suitability of the incumbents in the present case, on account of lack of professional training in the aforesaid course, both the appellants were not found fit to shoulder the responsibilities of the posts of Senior Dental Surgeons B-18 by the Departmental Selection Board. Therefore, according to the learned counsel for the respondents, the opinion of the Selection Board which was approved by the concerned authority in this regard cannot be questioned before the Service Tribunal or before this Court. The appeals preferred by the appellants were, therefore, rightly dismissed by the Service Tribunal vide the judgment under challenge in the present appeals.
6. We have considered the respective arguments of the learned counsel for the parties and carefully gone through the record of the case. Without the prior permission of this Court, Pakistan Medical and Dental Council was arrayed in the heading of the present appeals as pro forma respondent, whereas in the appeals before the Service Tribunal the said Council was not made party by the appellants. This practice is highly objectionable and we warn the learned counsel for the appellants, who is a senior advocate of this Court, to refrain from doing such acts in future. If he wanted to implead Pakistan Medical and Dental Council in the line of pro forma-respondents, he should have moved an application for that purpose before this Court. After taking objections from the other side, the Court would have ordered for impleading of such council as party. If the learned counsel for the appellants wanted to rely on the opinion of the said Council, which in the present appeals is highly material, he should have obtained the attestation to that effect from PM&DC and forwarded the same before this Court along with his concise statement or should have moved an application requesting therein that the same may be considered for deciding the controversy involved in these appeals. No such mode required by law was adopted by him. However, as the opinion of the aforesaid Council has been brought on the record of this Court in response to the notice which was issued by this Court to said Council, we cannot ignore the same as it has got bearing on the controversy between the contesting parties. We shall discuss its impact in the concluding part of this judgment.
7. We agree with the learned counsel for the appellants that the Courts established under law are required to decide the dispute between G the contesting parties by confining themselves to the pleadings of such parties. Therefore it Is not felt expedient to discuss the authorities which were referred' to and relied upon by the learned counsel for the appellants in support of this legal proposition. However, if on the basis of pleadings of the parties a law having bearing on the case is not referred to or relied upon by the parties, the Courts can apply such law because the litigant public or the learned advocates may not refer a correct law before the Court but basically all the Presiding Officers of the Courts are duty bound to apply correct law having bearing on the controversy involved between the litigant parties. Therefore, we do not agree with the learned counsel for the appellants that the Service Tribunal has done anything wrong which should be discouraged by this Court. Whether Selection Board is a necessary party or not in a civil appeal is a question which can be resolved in light of rule 8 of the AJ&K Service Tribunal (Procedure) Rules, 1976, wherein it is provided that the competent authority is to be impleaded as the first respondent.
The said provision of law makes its clear that the authority who has passed the final order in respect of terms and conditions of service of any civil servant is necessary party and no order can be passed in absence of such party. Both the appellants have arrayed the Azad Government and Secretary Health of Azad Government in the line of answering respondents and these authorities have passed the final notification dated 28-11-1996. All the interlocutory orders need not be challenged before the Service Tribunal. The language which has been applied in drafting section 4 of the AJ&K Service Tribunals Act, 1975 makes it clear that only the final order, having adverse effect upon the terms and conditions of service of a civil servant, can be challenged by an aggrieved civil servant before the Service Tribunal. In writ jurisdiction the authority which passes the impugned order is necessary to be arrayed as answering respondent. We agree with the contention of the learned counsel for the appellants that the authorities were which relied upon by the Service Tribunal in this regard were passed in writ jurisdiction. We are fortified in our view by the authorities of this Court titled Azad Govt. Of the State of Jammu and Kashmir and others v. Majahid Hussain Naqvi and another PLJ 2001 SC (AJK) 50 and Azad Govt. And 3 others v. Genuine Rights Commission AJ&K and others 1999 MLD 268. As in the present appeals the Azad Government, having the status of authority, was impleaded as answering respondent through its Chief Secretary. Therefore, an effective order could be passed against it and the same could be enforced under the writ of law by the Service Tribunal. Therefore, the Selection Board in these circumstances was not a necessary party.
8. Prima facie the appellants have been ignored from consideration while promoting respondents Nos.3 and 4 on the ground that they were lacking the required qualification. For convenience it appears appropriate to have the reference of the relevant rules. In serial No.19, column No.7 of the Schedule attached to the Health Department Service Rules, 1984, it has been provided as follows:-- "(i) As per col. 8.
(ii) Postgraduate successful grading/training from AFM College in Dental subjects or MB.DS or DP.PH or equivalent qualification of one year duration each recognized by Pakistan Medical and Dental Council."
' From the reading of aforementioned provisions of Rules, it becomes clear that grading or such courses must be approved by Pakistan Medical and Dental Council. As said earlier, in response to the notice of this Court, we have received comments from pro forma-respondent No.5, Pakistan Medical and Dental Council, Islamabad, wherein it is disclosed that grading course conducted by the Armed Forces Medical College Rawalpindi is an internal arrangement of AFMC and the same is not recognized by the aforesaid Council as a qualification. For our clarity on the subject, we summoned the Director General Health, AJ&K Government, to assist us as to whether Pakistan Medical and Dental Council has approved this course or any such course or not. He appeared in response to notice of this Court and submitted his report. However, we are not satisfied by his report. We do not want to pass any order in vacuum and interpret the law contrary to true facts. We could have ignored the opinion of Pakistan Medical and Dental Council because the said Council was impleaded in the appeals only before this Court as pro forma-respondent without our prior permission, however, as the opinion expressed by it has bearing on the law which is relevant for the just decision of the controversy raised between the parties, therefore, in order to do complete justice, we have decided to take it into consideration. Besides this we have considered the statements of two witnesses recorded by the Service Tribunal, namely, Ali Akber Khan, Admin.
Officer of the office of Director General Health Department, and ' Dr. Shaoor Ahmed Shaoor, respondent No.3, from whose statements an impression emerges that the grading course was not necessary for promotion against the posts of Senior Dental Surgeon B- 18 in past. L Therefore, we feel ourselves constrained to remand these cases to the Service Tribunal for its opinion upon the following point:- "Whether the courses mentioned in serial No.19, column No.7 of the Schedule attached to the Health Department Service Rules, 1984, are in fact approved by the Pakistan Medical and Dental Council; if not, as stated by Dr. Shaoor Ahmed Shaoor, whether these courses have been approved and adopted by the Government of Azad Jammu and Kashmir as qualification. If reply is affirmative, then what is its effect particularly when under rules these courses have been incorporated subject to approval by Pakistan Medical and Dental Council."
9. The Service Tribunal shall be competent to record the statement of any relevant person for and against the said point and after providing right of hearing to the parties it shall submit its opinion to this Court for consideration. The parties shall appear before the Service Tribunal on 30-6-2004 for further necessary orders. These appeals shall be consigned to record room. After receiving the report from the Service Tribunal, the same shall be placed along with such report before the Court for further necessary orders.