1. ' ARSHAD NOOR KHAN, J.---By this Constitutional Petition under Article 199 of the Constitution of Islamic Republic of Pakistan 1973, the petitioner seeks her promotion from Associate Professor to Professor in BPS-20 in Jinnah Postgraduate Medical Centre, Karachi.
2. ' The facts leading rise to the present petition in brief are that the petitioner was initially appointed on 21-3-1988 in BPS-17 as Medical Officer, Clinical Pathology Department, Jinnah Postgraduate Medical Centre, Karachi and in the year, 1990 she was deputed for M.Phil Pathology till 1994 and after completion of her M.Phil she served as Senior Registrar, Clinical Pathology Department till 2000 and thereafter she was promoted to Assistant Professor Pathology, Basic Medical Sciences Institute, J.P.M.C. On 4-11-2000 in BPS-18 and during the course of her posting as Assistant Professor she was assigned the duties of Associate Professor which she continued till 9-2-2008 and was promoted as Associate Professor Pathology, Basic Medical Sciences Institute, J.P.M.C., Karachi on 2- 4-2008 and during her posting as Assistant Professor, she gained teaching experience and also remained as Senior Registrar in Clinical Pathology Department and during the course of her service she produced eight research papers, detail of which is mentioned in the memo. Of petition. It is further stated in the petition that to the utter surprise of the petitioner, she gone through the advertise dated 3rd July, 2008 published in Daily Kawish whereby Federal Public Service Commission invited the applications for appointment of two Professors, one from Clinical Pathology and the other from Pathology in BPS-20 from the candidates of Punjab and Balochistan whereas she was fit and qualified for the purpose of her promotion to Professor in BPS-20 in Clinical Pathology and since she possesses all the qualifications and experience for the purpose of her promotion as Professor Clinical Pathology, therefore, invitation of the applications from the candidates of Punjab and Balochistan are illegal, ultra vires and is an attempt to deprive her from her legitimate right.
3. ' The respondents Nos.1 and 2 submitted their comments, question therein the maintainability of the petition and further stated that the petitioner is listed at serial No,2 in the seniority list, therefore she is not entitled for the post of Professor. It is further stated in the comments that basic requirement for the promotion as Professor in BPS-20 is three years service as Associate Professor in BPS-19 and publication of two research papers. It is further averred that in the case of appointment of Professor 80% of the vacancies should be filled by way of promotion and 20% of the vacancies should be filled by initial appointment and that in case of non-availability of suitable candidate for the post, the recruitment should be made by way of initial appointment and that the quota for the provinces has been fixed by the government, therefore at the time of creation of the post of Professor in BPS-20, neither the petitioner was qualified to promotion in BPS-20 nor there was any suitable candidate for the said post, therefore the advertisement was rightly published in view of Civil Servant (Appointment, Promotion and Transfer) Rules, 1973, and petitioner is not entitled for promotion as claimed by her.
4. ' The respondent No,3 has also filed his comments stating therein that the maintenance of roster of the vacancies i.e, distribution of posts/vacancies between initial appointment or promotion is primarily the responsibility of Ministry of Health and that the Federal Public Service Commission advertised the post according to the requisition received from the Ministry of Health and that the post has been advertised from the quota of Punjab and Balochistan seats, therefore the petitioner is not entitled for any relief and petition is liable to be dismissed.
5. ' We have heard Mr. Wasiq Ahmed Keher, Advocate for the petitioner and Mr. Umer Hayat Sandhu, D.A.-G. For respondents.
6. ' Mr. Wasiq Ahmed Keher, Advocate for the petitioner vehemently stressed that the petitioner being the senior most Associate Professor was fit for her promotion as Professor in BPS-20 as the service of the petitioner as Assistant Professor and Associate Professor should be treated from the date when the seats become vacant and available for promotion and in case of her promotion to the post of Assistant Professor, the seats against which she was promoted become vacant in December, 2006 therefore her promotion to the post of Associate Professor should be treated from the date when the seat of Assistant Professor become vacant, and if the promotion is given to her with retrospective effect, she is qualified for the purpose of her promotion as Professor in BPS-20 and respondents are denying the legitimate right of promotion of petitioner by appointing the candidate from initial appointment. In support of his contention, he has relied upon the case of Dr. Anjum Syed v. Federal Public Service Commission through its Chairman, Islamabad and others, reported in 2006 CLD 1852; the case of Luqman Zareen and others v. Secretary Education, N.-W.F.P.
7. And others, reported in 2006 SCMR 1938; the case of Muhammad Arshad Khan Tehsildar v. Azad Government of State of Jammu and Kashmir through Chief Secretary, Muzaffarabad, reported in 2000 PLC (C.S.)247; the case of Ashfaq Hussain v. Chief Secretary, Government of Punjab and others, reported in 2006 PLC (C.S.) 491 and the case of Niaz Muhammad v. Federation of Pakistan through Chief Secretary, Ministry of Commerce Islamabad, and others reported in 2008 PTD 1517.
8. ' Mr. Umer Hayat Sandhu, D.A.-G. For respondents vehemently refuted the argument advanced on behalf of the petitioner and has contended that for the purpose of promotion from Associate Professor to Professor the minimum qualification is three years service as Associate Professor plus two publications of research papers but in the present case the petitioner was promoted as Associate Professor on 2-4-2008 and admittedly from the date of her promotion as Associate Professor, three years have not been passed so far, nor she had submitted two research papers during the course of her service as Associate Professor and since basically she was not fit for promotion as Professor in BPS-20 and no suitable candidate was available, therefore the recruitment is to be made through initial appointment for which the advertisement was published and that the Jinnah Postgraduate Medical Centre is a Federal Entity, the quota has been fixed by the Federal Government, which could not be ignored or brushed aside while filling the vacancies in J.P.M.C. And the respondents committed no mistake in publication of advertisement for the post of Professor.
9. ' We have considered the arguments advanced on behalf of the parties and have gone through the material available before us.
10. It is not disputed that the J.P.M.C. Being federally administered entity, Federal Government has allocated the quota of all the provinces vide annexures 3 to comments of respondent No,3, and by virtue of allocation of posts, 50% seats have been allocated to the Punjab, 19% seats have been allocated to Province of Sindh which is further sub-allocated as 11.4% to Sindh (R) and 7.6% to Sindh
(U) and 11.5% seats to N.-W.F.P., 6% seats to Balochistan as well as 4% to NA/FATA and 2% to Azad Government of Jammu and Kashmir. It is, therefore, evident that the posts in the J.P.M.C. Have been allocated province-wise by the Federal Government as such maintaining the quota prescribed by the Government in any way could not be termed to be illegal.
11. ' The petitioner claims her promotion from Associate Professor BPS-19 to Professor BPS-20 on the basis of sub-rule (2) of rule 3 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, and the condition prescribed by the said rules from the Associate Professor BPS-19 to Professor BPS-20 is three years service plus submission of two research papers. In the present case the petitioner admittedly was promoted to Associate Professor on 2-4-2008 and on the day when she filed the present petition on 29-7-2008 she admittedly did not complete her service of three years as Associate Professor, she had only served about four months from the date of her promotion, as such her length of service is quite short than the requisite service of three years as Associate Professor. The learned counsel for the petitioner has vehemently contended that the promotion of the petitioner was delayed by one and half years as Associate Professor though the post of Associate Professor was lying vacant as such her promotion may be treated with retrospective effect and if the post of Associate Professor Pathology was fallen vacant in December, 2006 and the petitioner was promoted after a considerable delay on 2-4-2008 and if her promotion is given retrospective effect from the month of December, 2006, she was very much qualified at the time of becoming the post of Professor vacant and she being suitable candidate and eligible for the promotion to the post of Professor in BPS-20.
12. ' The learned counsel for the petitioner did not convince us that the promotion of the petitioner to the post of Associate Professor may be given retrospective effect for her promotion as Professor as nowhere in her petition she stated that when the post of Associate Professor becomes vacant.
13. During the course of arguments the learned counsel stated that the post of Professor falls vacant in the month of December, 2006 and in case, if the contention advanced by the learned counsel for the petitioner is accepted then too, she could not be qualified herself for the purpose of her promotion as Professor in BPS-20 for the reason that if three years service experience is counted from the month of December, 2006, apparently the three years service of the petitioner is to complete in-the month of December, 2009 whereas she has filed the present petition on 29th July, 2008 which still lacks about one and half years to qualify her for the post of Professor, as such the promotion of the petitioner, if taken from December, 2006, then too she disqualified for want of three years service as Associate Professor in BPS-19.
14. ' The other requirement for the purpose of next promotion of the petitioner as Professor in BPS-20 is to submit two research papers and she has also not submitted her two papers during the length of her service as an Associate Professor. Learned counsel for the petitioner has also not produced the said papers which she was required to submit during the course of her service as Associate Professor. The petition is also completely silent that on which date and on what topics she had submitted her two papers after her promotion as Associate Professor. The second condition of her next promotion is also miserably lacking. There is, therefore no evidence available on record to show that the petitioner was qualified for the purpose of her promotion as Professor as admittedly she did not possess the re9uisite qualification to qualify her for promotion in her next grade.
15. Learned counsel for the petitioner has relied upon the case of Dr. Anjum Syed supra, wherein while dealing with the provision of Federal Public Service Commission (Amendment) Ordinance, 2001, the Bench of Rawalpindi was pleased to observe that for the initial requirement for the purpose of promotion from Assistant Professor to Professor was nine years teaching experience with at least five research papers to be published in Standard Medical Journals in the subject of Physiology and the petitioner of that case fulfilled the said conditions, therefore his promotion was ordered. But the observation in the case of Dr. Anjum Syed, supra, are not applicable to the circumstances of the present case for the simple reasons that in the present case petitioner did not serve three years as Associate Professor for her promotion nor she submitted her two papers which was the condition precedent for her promotion.
16. ' In the case of Luqman Zareen, supra, the petitioner was already officiating on the post which he had to occupy after his promotion and since he was already officiating on the same post, as such, the honourable Supreme Court while considering the section 8 of North West-Frontier Province Civil Servants Act, XVIII of 1973, was pleased to observe that where a post was available against which a civil servant could be promoted; and such civil servant was qualified to be promoted to such a higher post; and he was put on such higher post on officiating or acting charge basis only because requisite exercise of allowing regular promotion to such post was being delayed by competent authority and where he was subsequently found fit for such promotion and was so promoted on regular basis, then the civil servant was entitled not only to the salary attaching to such post but also to all consequential benefits from that very date from which he had put on the said post on officiating or acting charge basis. The dictum laid down by the Supreme Court in the present case, is also not attracted for the reasons that in the present case the petitioner was not qualified for the purpose of her next promotion because of lack of her length of service and non- submission of two papers.
17. ' In the case of Muhammad Arshad Khan, Tehsildar, supra, it was observed that there were two conditions precedent for giving ante-dated operation to a promotion, firstly there must be an existing vacancy available to the promotion at the relevant time, and secondly, the promotee must have requisite qualifications for the said promotion on relevant date. The dictum laid down in this case is also not attracted to the circumstances of the present case for the same reason that the petitioner was not qualified for the purpose of her promotion as Professor on the date when the post of Professor allegedly become vacant.
18. ' The case of Ashfaq Hussain, decided by the Punjab Service Tribunal, the case of Moazzam Mian, decided by the learned Single Judge of the Lahore High Court and the case of Niaz Muhammad decided by the learned DB of this Court, in our humble opinion are entirely on different footing and analyses, which are not involved in the case in hand, therefore the said cases are not helpful to the petitioner.
19. After pondering the documents available on record as well as the case-law on the subject, we are of the opinion that the petitioner did not qualify for the purpose of her next promotion as Professor in BPS-20 on the day when the post of Professor become vacant as still she has not completed the length of her service as Associate Professor as well as two requisite research papers, as such, she is not found fit for her promotion as Professor in BPS-20. The petition has, therefore, no merits and the same is hereby dismissed summarily along with listed applications.