' MUHAMMAD SAIR ALI, J.--- Petitioner Dr.' Pakiza Raza Hyder seeks leave to appeal under Article 212(3) of the Constitution of Islamic Republic of Pakistan, 1973 against judgment dated 6-1-2009 of the Federal Service Tribunal, Islamabad dismissing the petitioner's Appeal No,911 (R)(C.S.) of 2007.
Petitioner's appeal was dismissed on the grounds of limitation, bar of Order II, rule 2, C.P.C. And under the principle of locus poenitentiae.
2. Hafiz S.A. Rehman learned Senior Advocate Supreme Court appearing for the petitioner dilating upon facts and merits of the case contended that the Tribunal should have condoned the delay in filing the. Appeal as fresh cause of action had arisen to the petitioner from PMDC's letter dated 7-5- 2007. Wherefore that the petitioner's previous appeal before the Tribunal (Dismissed through Federal Service Tribunal's judgment dated 26-9-1995) was also not a bar under Order II, rule 2, C.P.C. Further that though respondent No,2 i,e, (Dr. Muhammad Naeem Akhtar) was senior to the petitioner yet he had been granted (BS-18) and (BS-19) against the rule's and policy applicable for promotion therefore his promotion being void did not attract the principles of locus poenitentiae.
Mr. Shoaib Shaheen, learned Advocate Supreme Court appearing for respondent No,2 supported the impugned judgment and also stated that the petitioner in her appeal before the Tribunal and in leave petition before this Court, had given up challenge to respondent's promotion to (BS-18) and (BS-19) and her only plea before this Court now was that only she should be considered for (BS-20) and not the respondent No,2 who did not hold the requisite qualification. The learned ASC appearing for Pakistan Medical and Dental Council and learned Deputy Advocate-General stated that neither the petitioner nor the respondent No,2 hold necessary clinical qualification for promotion to (BS-20) and the matter will be considered on merits of the each aspirant in view of the applicable law, tales and their qualifications.
3. We have heard the learned Advocates Supreme Court and have also examined the record.
4. Admitted facts are that respondent No,2 i,e, Dr. Muhammad Naeem Akhtar was posted as Assistant Dental Surgeon (BS-17) in Federal Government Services Hospital, Islamabad on 19-11-1975.
He was prompted on 2-1-1991 as Associate Dental Surgeon (BS-18) and to the post of Dental Surgeon (BS-19) on 11-12-2001. Petitioner i,e. Dr. Pakiza Raza Hyder was appointed as Assistant Dental Surgeon to (BS-17) on 29-8-1981 through Federal Public Service Commission. She was promoted as Associate Dental Surgeon (BS-18) on 12-10-1993 and as Dental Surgeon (BS-19) in October, 2006.
5. As per report of Ministry of Health, Dr. Muhammad Naeem Akhtar (respondent No,2) being the senior most Officer in the Dental Department of Federal Government Services Hospital, Islamabad, earned his seniority and promotion to (BS-18) and (BS-19) as above detailed. Contrarily petitioner being junior was promoted to these posts later on 12-10-1993 and in October, 2006 respectively. We have been given to understand that petitioner on 28-3-2007 was granted (BS-20) but on current charge basis and is being so continued from time to time.
6. Learned Advocate Supreme Court for the petitioner has dilated upon comparative eligibility conditions of the petitioner and respondent No,2 who are both admittedly in BS-19 irrespective, of petitioner holding BS-20 on current charge basis. The object of the learned Advocate Supreme Court for the petitioner was to show that respondent No,2 was not eligible for promotion to BS-18 and BS-19 and now to BS-20 but deserved revision to BS-17 on declaration of his ineligibility by the Tribunal and now by this Court.
7. On consideration of the entire case we believe that question, of promotion to BS-20 is a matter of determination by the relevant authorities/forum/Board on the basis of eligibility of the aspirants.
This Court will therefore abstain from expressing an opinion on the suitability of any of the contending parties. Furthermore, respondent No,2's eligibility for promotion to (BS-20) was not the subject-matter of petitioner's appeal No,911 (R)(C.S.) of 2007 before the Federal Service Tribunal and cannot therefore be a subject of adjudgment by this Court in leave petition arising from dismissal of the said appeal per Tribunal's judgment dated 6-1-2009 (released on 26-9-1995). The petitioner in her appeal before the Federal Service Tribunal had only challenged orders dated 2-1- 1991 and 11-12-2001 of respondent No,2's promotion respectively to BS-18 and BS-19.
8. We have also noted that in the Tribunal petitioner's counsel gave up her case against order dated 2-1-1991 for promotion of respondent No,2 to BS-18. This fact has been recorded by the learned Members of the Tribunal in para.7 of the impugned judgment and the petitioner confined her challenge only to order dated 11-12-2001 which related to promotion of respondent No,2 to BS-
19. We are thus intrigued at the petitioner and her learned Advocate Supreme Court's vain efforts to resurrect before us the dead issue of BS-18, which had been expressly abandoned in Tribunal.
' We are in agreement with the Tribunal that having forsaken her challenge to promotion of respondent No,2 to BS-18 and thus his qualification and seniority thereof, the petitioner was precluded from challenging promotion of respondent No,2 to (BS-19) because the criterion for eligibility to both BS-18 & 19 was the same.
9. It has not been denied by the petitioner that her Appeal No,280(R) of 1995 was dismissed by the Tribunal on 26-9-1995 and Dr. Muhammad Naeem Akhtar was respondent No,4 therein who had then been appointed as Associate Dental Surgeon w,e,f, 2-1-1991 in place of deputationist i,e, Dr. Dost Ali Baloch. The post was upgraded in 1993 where after on 12-10-1993 the petitioner was also promoted as Associate Dental Surgeon. The Tribunal in its judgment dated 26-9-1995 rejected petitioner's claim that Dr. Muhammad Naeem Akhtar (respondent No,2) had no right to be appointed as Associate Dental Surgeon (BS-18) over her. Contrarily it was held that Dr. Muhammad Naeem Akhtar (respondent No,2) was senior to the petitioner and had been rightly promoted to BS-19 pok where he by then had worked for four years. The Federal Service Tribunal's judgment dated 26-9-1995 became final and by not challenging it, the petitioner accepted the same.
Respondent No,2's promotion to BS-18 as such became a past and closed transaction.
10. Petitioner in her 1995 appeal omitted to sue respondent No,2 on the ground of his purported lack of qualification/eligibility to promotion wherefore she was debarred from suing respondent No,2 in the present appeal on the basis of the omitted claim under the provisions of Order II, rule 2, C.P.C.
We do not find any merit in the submissions of the learned Advocate Supreme Court for the petitioner that a new cause of action had arisen to her on Ministry's letter of 2007.
11. Furthermore, petitioner filed the appeal on 26-9-2007 against the orders dated 2-1-1991 and 11- 12-2001. The condonation of delay was sought through an application, which did not find favour with the Tribunal. We have examined petitioner's application for condonation of delay filed with the appeal. The ground therein was structure on the basis of PMDC's letter dated 7-5-2007 by which respondent No,2 was asked to explain question of his eligibility. The petitioner claimed that it was then that she discovered illegality of the orders dated 2-1-1991 and 11-12-2001. This plea is neither credible nor acceptable. The petitioner who at every stage of her career challenged every order in favour of respondent No,2 could not have remained unaware of the foundational fact in the service record of respondent No,2's eligibility or ineligibility. Her contention being patently false was rightly rejected by the Tribunal. Her indolence and purported unawareness of comparative qualification of respondent No,2 for promotion to BS-19 did not constitute sufficient ground for earning condemnation of delay from the Tribunal whose exercise of discretion against the petitioner was unexceptionable.
12. In view of the above, we find no merit in the present petition which is dismissed. Leave is declined.