' ABDUL SATTAR KHAN (CHAIRMAN).---This appeal, under section 4 of the N.-W.F.P. Service Tribunals Act, 1974 has been preferred by Dr. Muhammad Ismail appellant against the Notification IA dated 25-11-2002, whereby private respondent No.4 was promoted as Associate Professor of Anatomy (BPS-19) with immediate effect and also against the order dated 30-1-2003, communicated on 3- 2-2003 vide which the appellant's representation was rejected. The prayer is that on acceptance of this appeal, the impugned notification dated 25-11-2002 may be set aside and the appellant be considered for the post of Associate Professor (BPS-19) keeping in view his over-all eligibilities and suitability over and above respondent No.4 with all ensuing benefit w.e.f. 25-11-2002.
2. The facts of the case as averred in the memo. Of appeal are that the appellant, while serving as Assistant Professor Anatomy (BPS-18) in the Health Department, was posted at Saidu Medical College and during this period the process of promotion to the post of Associate Professor (BPS-19) was initiated and the office of respondent No.2 sought the cases of eligible candidates for their placement before the Provincial Selection Board. The Govt. Of N.-W.F.P. Health Department vide Notification dated 7-10-1984 has prescribed the method of recruitment, qualifications and other conditions for appointment of Teachers in the Medical Institution (Annexure-A). The Health Department has also maintained a seniority list of Assistant Professors of Anatomy as it stood on 31-12-2001, wherein the appellant is placed at S.No.6 (Annexure-B). The appellant duly fulfilled the prescribed criteria was eligible for the post of Associate Professor Anatomy (BPS-19). That initially the names of six (6) candidates were referred to the PSB, a working paper was also prepared in which the appellant and one Dr. Jehanzeb Khan were shown as eligible candidates, however, that working paper was not referred and another working paper dated 13-9-2002 was prepared in which respondent No.4 was also included in the panel of eligible candidates for promotion to the post of Associate Professor (Anatomy) BPS-19, though he was not eligible (Annexures E&F). To the utter dismay of the appellant, the PSB recommended the respondent No.4 for promotion to the post of Associate Professor Anatomy (B-19) completely ignoring the law rules on the subject. Copy of the impugned Notification dated 25-11-2002 is attached as Annexure-G. The appellant made a representation on 24-12-2002 against the impugned notification. It is submitted that the appellant made representations to certain other authorities, however, the appellant's objection/claim and preference over the promotion order of respondent No.4 was rejected vide letter dated 30-1-2003, communicated to the appellant on 3-2-2003 (Annexures H.I & J). Hence this appeal.
3. The appellant has assailed the impugned orders on the grounds that the PSB has given undue weight to the seniority of respondent No.4 and completely ignored the basic lack of qualification and eligibilities of respondent No.4 and moreover, the PSB failed to consider the principles governing the promotion i.e. Seniority-cum-fitness; that the appellant was eligible and suitable candidate for promotion to the post of Associate Professor Anatomy (BPS-19), but the PSB failed to follow the law/rules and also failed to consider the appellant for promotion to the post in-question; that the appellant has at his credit the degree of Master of Philosophy in. Anatomy from Karachi University while his competitor has qualified M.Sc. Anatomy from Canada. The PMDC considered the M.Sc Anatomy (Canada) as equivalent to M. Phil, however, vide its latest amendment passed on 1-1-2002, Pakistani qualifications in the MD/M.S/FCPS/Ph.D/M. Phil etc. In the respective subject were given preference over the equivalent foreign qualification and as such the PSB has not considered this important aspect of the case and illegally recommended respondent No.4 for promotion. (Annexure-K); that the respondent-Departments were interested in promotion of respondent No.4 because initially they were reluctant to include the appellant's name in the list for promotion and it was only after the complaint of the appellant that his name was included in the working paper (Annexure-L); that the appellant has at his credit 3 original research papers in the relevant field published in the standard Medical Journal of the category A&B, whereas respondent No.4 has two research papers in the relevant field published in the standard Medical Journal of B category, moreover, he was having one letter of acceptance dated 19-6-2002, however, the new guidelines for recognition of journals circulated vide letter dated 269-2002 by PMDC has not accepted it to qualify for the award of credit of a research paper and thus the recommendation and subsequent impugned notification are not sustainable in the eye of law (Annexures M & N); that the appellant has 4 'very good' and one good ACRs in the last five years and his performance was declared as outstanding and highly appreciated while his competitor has only five 'good' ACRs and in the column of pen-picture no such appreciation is given to him and on this score too the appellant was having an edge over the respondent No.4, but this aspect of the case was also neglected/ignored rendering the impugned order as nullity (Annexures 0 & P); that looking from any angle the appellant was having the overall eligibilities and suitabilities and was having preference and edge over respondent No.4, thus had a right to have been considered for the post of Associate Professor Anatomy (BPS-19), however, doing otherwise the official respondents greatly prejudiced the rights of the appellant and that the impugned notification is in violation of section 9 of the N.-W.F.P. Civil Servants Act, 1973, N.-W.F.P. Civil Servant (Appointment, Promotion and Transfer) Rules, 1989 and the departmental rules framed thereunder, and this Hon'ble Tribunal has got the jurisdiction to entertain and adjudicate upon the matter.
4. The respondent-Department and private respondent No.4 have filed their written replies and vehemently contested the appeal by denying the claim of the appellant. It has been alleged that the appellant has got no cause of action and this Tribunal has got no jurisdiction to entertain the appeal. It has also been alleged by respondent No.4 that since the appellant was working as Assistant Professor in the Saidu Medical College, which is an unrecognized Medical Institution by PMDC, therefore, the teaching staff members of the said College could not be included in the seniority list of KMC. As such the appellant was not eligible/suitable for the post of Associate Prof. (BPS-19) in the Department of Anatomy of KMC as per seniority list. In rebuttal, the appellant also filed his replication..
5. Arguments heard and record perused.
6. From perusal of the record it is evident that in order to fill in two posts of Associate Professors (BPS-19) of Anatomy Department lying vacant, a panel containing the names of senior most Assistant Professors of Anatomy, according to the joint seniority list of the teaching cadre, was prepared by Secretary Health i.e. Respondent No.l. The name of the appellant finds mention at S.No.6 of the said list, whereas private respondent No.4 figures at S.No.
3. Only the appellant, Dr. Jehanzeb Khan and private respondent No.4 were eligible for promotion as is evident from the relevant column of the working paper. The P.S.B in its meeting held on 3-10- 2002 cleared Dr. Jehanzeb (not respondent before the Tribunal) and private respondent No.4. The appellant was not at all considered and Notification was accordingly issued -on 25-11-2002, whereby private respondent No.4 and one Dr. Jehanzeb were promoted as Associate Professors of Anatomy (BS-19) with immediate effect. Feeling aggrieved, the appellant made a representation on 2442-2002, but the same was rejected. Hence this appeal for the redressal of his grievance has been filed by the appellant.
7. Learned counsel for the appellant argu'ed that private respondentNo.4 is not possessing the required minimum basic qualification; that he is M.Sc.; Neuro-Anatomy which does not cover the subject of Anatomy and its utility; that -private respondent No.4 was having two research papers and the third i.e. Letter of acceptance will not qualify him for the award of credit in the research paper; that in the synopsis of ACRs, the appellant is rated as 'very good' whereas the private respondent No.4 as' 'good' and that private respondent No.4 being ineligible was considered and appellant was eligible, but was ignored, therefore, the impugned promotion order/notification is not sustainable and liable to be set aside. Reliance was placed on PLD 2003 SC 175, 2002 PLC (C.S.)
1071, 1996 SCMR 1297 and 1997 SCMR 1013.
8. On the contrary, learned G.P and counsel for private respondent No.4 argued that appellant has got no locus standi to claim promotion as he belongs to a different cadre and his name nowhere appears in the seniority list of the teaching staff and unless .The teaching staff of KTH/KMC/KCD and SMC are not merged together by the Govt. The appellant cannot claim the promotion against the post of KMC; that the Tribunal has got no jurisdiction under section 4(b) (i) of the N.-W.F.P.
Service Tribunals Act, 1974 and departmental competent authority has alone the exclusive jurisdiction to determine the fitness or otherwise of a civil servant and that the appellant was considered, but was not found fit, therefore, his case cannot be sent back for re-assessment and reconsideration to the Department. Reliance was placed on 2003 PLC (C.S.) 212; 2003 PLC (C.S.)
679, 1999 PLC (C.S.) 1306, 1999 PLC (C.S.) 1309 and 2001 PLC (C.S.) 878.
9. In PLD 2004 SC 65 titled, "Muhammad Rahim Khan (Appellant v. The Chief Secretary, N.-W.F.P. And others (Respondents)" it has been held as under: "S.4---Constitution of Pakistan (1973), Art.212---Promotion--- Appeal to Service Tribunal--- Competence---When a civil servant was eligible for promotion to the next higher grade but had been ignored and other ineligible candidates were promoted, his appeal to the Service Tribunal would be competent---Eligibility for promotion of approved persons could be subjected to scrutiny by Service Tribunal, as the same related to the terms and conditions of a civil servant---Service Tribunal, in the present case, without examining in depth the proposition namely as to whether the civil servant was ignored by the Selection Board on the ground that he was not fit for promotion or he was not eligible, for the reasons mentioned in the minutes of the Board, had rejected the appeal filed by the civil servant summarily, Supreme Court, in the interest of justice, set aside the judgment of Service Tribunal with the direction to call for complete record of the case from the Department and in presence of the same, re-examine the case of civil servant, after providing proper opportunity of hearing to both the parties, in accordance with law, independently without being influenced in any manner from the observations made in the Supreme Court Judgment."
' In Mian Abdul Malik (Petitioner) v. Dr. Sabir Zameer Siddique and 4 others (Respondents) reported as 1991 SCMR 1129 it has been held by the august Supreme Court of Pakistan that "S.4---Promotion- -Jurisdiction of Service Tribunal---What is barred from the jurisdiction of Service Tribunal is the question of fitness of a civil servant for promotion and not the question of eligibility to promotion-- -Civil Court has no jurisdiction to determine eligibility of civil servant for promotion as the matter related to terms and conditions of service."
' In 1997 SCMR 1013, titled "Water and Power Development Authority, Lahore and another (Appellants) v. Khushi Muhammad (Respondent), the august Supreme Court of Pakistan has held in citation (c) that: "Promotion"----"Eligibility"----"Fitness"----Distinction---- Eligibility is different from fitness which Selection Authority or Department Promotion Committee has to consider on the basis of entire service record and overall performance of concerned officer."
10. Admittedly, the appellant, private respondent No.4 and one Dr. Jehanzeb Khan, Assistant Professors (B-18) were recommended to the post of Associate Professor (B-19). The Provincial Selection Board in its meeting held on 3-10-2002.Recommended Dr. Jehanzeb and Dr. Khalid Latif (respondent No.4) for promotion. The appellant being eligible was not at all considered. The Tribunal; after hearing counsel for the parties and going through the available record as well as cited authorities, has come to the conclusion that appellant being eligible was ignored and was not considered for promotion in spite of the fact that he was otherwise qualified and had an inalienable right to have been considered for promotion to the post in-question. In view of the above, the appellant has made out a case for indulgence of the Tribunal.
11. The upshot of the above discussion is that the instant appeal is accepted, the impugned Notification dated 25-11-2002 is set aside to the extent of private respondent No.4 only and the case of the appellant is remanded back to the respondent-Department for re-consideration in juxtaposition with private respondent No.4, strictly in accordance with the rules of the Health Department. No order as to costs. File be consigned to the record.