' JAVED IQBAL, J.---This petition for leave to appeal is directed against judgment dated 12-11-2009 passed by the Punjab Service Tribunal, Lahore whereby the appeal preferred on behalf of Imtiaz Rasool Alvi (respondent No,3) has been accepted.
2. Precisely stated facts of the case as enumerated in the judgment impugned are to the effect that "Environment Protection Agency was created on 30-6-1987 as an attached department of Public Health Engineering Department. Subsequently, to streamline the administrative function of the agency Service Rules of Environmental Protection Agency 1989 came into force on 15-3-1989 vide which the Inspectors (BS-12) having 5 years service were declared eligible for promotion as Research Assistant (BS-16). In the year 1991 two Inspectors namely Messrs Muhammad Ahmed Khan and Saeed Ahmed opted promotion of Research Assistants on 15-5-1991 on regular basis and other three Inspectors namely Muhammad Ashraf, Obaidullah Khan and Usman-ul-Haq were promoted as Research Assistants (BS-16) on 6-7-1994 on their own request. However, the other Inspectors including appellant did not opt for promotion as Research Assistant (BS-16) and kept on waiting for better promotion prospects. As the duties of the Inspectors and Research Assistants were totally different with each other as such, to streamline the working of the department the field and laboratory cadre were bifurcated and the new Environmental Protection Department Service Rules, 1997 were introduced whereby the Inspectors have been declared eligible for next promotion for the post of Assistant Director [Field) and thereafter as Dy. Director Technical. The criteria for recruitment of the post of Assistant Director (Field) BS-17 were laid down in Environmental Protection Department Service Rules, 1997 as under:--
(i) "50% per cent by initial recruitment
(ii) 45% by promotion from amongst the, inspectors having 8 years service as such on seniority- cum-fitness basis.
(iii) 5% by promotion from sub-engineers on seniority cum fitness basis with at least 10 years service provided that they have passed the departmental professional examination."
' Likewise, the criteria laid down for next promotion i.e, Deputy Director (Technical) BS-18 was laid down in Environmental Protection Department Service Rules, 1997 as under:-
(i) "20% by initial recruitment.
(ii) 80% per cent by promotion on seniority cum-fitness basis from amongst Assistant Director (Field) and Research Officer/ Assistant Director Research with 5 years' experience in the respective categories."
' The above said rules also laid the promotion channel for Research Assistant with a modification that Research Assistant shall get the promotion of Research Officers/Assistant Director (Research)
(BS-17) and thereafter Dy. Director (Technical). The criteria was the same as mentioned above.
That in the garb of relaxation of Rules 1997 respondents Nos. 3 to 5 along with two others were granted promotion as Assistant Director (Field) with immediate effect on regular basis vide order dated 15-5-2003, despite the fact that rules did not allow such promotion. However, by specifying condition in the same order that the promotion of respondents Nos.3 to 5 shall not prejudice the rights of their seniors. Thereafter, respondents Nos.3 to 5 were granted promotion as Deputy Director (Technical) in BS-18 on the recommendations of Departmental Promotion Committee on officiating basis vide order dated 2-8-2007, the respondent approached the learned Service Tribunal after exhausting the departmental remedies and finally succeeded, hence this petition.
3. Heard the learned Advocate Supreme Court on behalf of petitioners at length who mainly argued that the legal and factual aspects of the controversy have not been appreciated in its true perspective which resulted in serious miscarriage of justice. In order to substantiate the said contention it is argued that the learned Service Tribunal has failed to consider the date of appointment of respondent in the Environment Protection Agency which caused serious prejudice against the petitioner. It is next contended that the Environment Protection Agency Service Rules, 1989 have been misinterpreted and misconstrued by ignoring the fact that new Environmental Protection Department Service Rules made the petitioners eligible for promotion as Assistant Director (BS-17). It is argued that the seniority determined and notified on 30-4-1990 has not been taken into consideration without assigning any cogent reasoning. It is also argued that the conclusion as arrived at by the learned Service Tribunal is neither in accordance with law nor prevailing service rules and therefore, the judgment impugned is liable to be set aside on this ground.
4. Mr. Asif Nazeer Awan, learned Advocate 'Supreme Court entered appearance on behalf of respondent No, 3 and supported the judgment impugned for the reasons enumerated therein with the further submission that no question of law of public importance is involved, hente the jurisdiction as conferred upon this Court under Article 212 of the Constitution of Islamic republic of Pakistan cannot be exercised in view of specific bar as mentioned in the said Article.
5. We have carefully examined the respective contentions as agitated on behalf of the parties in the light of relevant provisions of prevalent service rules and perused the judgment impugned with care and caution. An in-depth scrutiny of ,record would reveal and even otherwise it is not disputed by the petitioners that after granting the relaxation in 1997 the petitioners were promoted as Assistant Director (Field) on regular basis by means of order dated 15-5-2003 in violation of the relevant rules and, therefore, it was incorporated in the promotion order that it shall not prejudice the rights of seniors. The record is, however, indicative of the fact that despite being senior the respondent was never considered for promotion in grave violation of relevant provisions of rules qua seniority. The case has been examined in the light of Environmental Protection Deportment Service Rules, 1997 and respondent could have been considered for promotion. We are conscious of the fact that promotion cannot be claimed as a matter of right but it does not mean that principles of seniority should be ignored and the senior most must be considered for promotion which is a legal right of an employee. There is no doubt that seniority alone is not the exclusive determining factor to be considered for promotion and factum of fitness and suitability cannot be kept aside but it is not the case of petitioner that respondent was not found fit for promotion. It well-settled by now that "there is no vested right in promotion or rule determining eligibility for promotion. Wherever there is a change of grade or post for the better, there is an element of selection involved that is promotion and it is not earned automatically, but under an order of the competent authority to be passed after the consideration of the comparative suitability and the entitlement of those incumbents". Muhammad Umar Malik v. Federal Service Tribunal (PLD 1987 SC 172), Government of the Punjab v. Muhammad Awais Shahid (1991 SCM R 696). In the ease of Bashir Ahmad Khan v. Muhammad Ali Khan (PLD 1960 SC 195), this Court laid down the principle of vested right of seniority as follows:-- "(1) Every officer in a graded service has a vested right to a proper place in the seniority list.
(2) This is of the highest importance to him, as well as to the maintenance of proper discipline and order within the service, and consequentially to the public interest which is deeply involved in the maintenance of a proper spirit of order and discipline within the service.
(3) The giving by the High Court of a considered interpretation of the rules by which the somewhat complex question of placement, upon the same list of officers who entered the list through different channels, so far form(sic) being inconvenient interference with the day-to-day control of the service by Government, is indeed an action calculated to assist the Government in exercising such control peacefully and harmoniously.
(4) Seniority rules are not of the same nature and quality as the great body of departmental rules applicable to the conduct of officers and other such matters relating to the service as a whole, which are capable of being altered by the Government. These rules arc of the highest validity and have the quality of settling the- important matter of seniority among officers of service".
' The above principles of vested right of seniority cannot be ignored in view of the provisions as enumerated in Article 189 of the Constitution of Islamic Republic of Pakistan-which provides that "any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates principle of law, be binding on all other courts in Pakistan." The learned counsel for caveat was asked pointedly that as to why the respondent could not be considered for promotion pursuant to the Environmental Protection Department Service Rules, 1997 but no answer could be given. The seniority position of the respondent determined under the above mentioned rules was never challenged. The petitioners should thankful to their stars as they could not have been promoted as Assistant Director (Field) which was meant for (Field Cadre) and not for the (Research Cadre) to which the petitioners belonged. We are not persuaded to agree with learned Advocate Supreme Court that relaxation could have been granted to the petitioners by the Competent Authority for the simple reason that relaxation can only be given to remove "genuine hardships" and not for in-block promotion. In our considered view the provisions as enumerated in Rule 23 of Punjab Civil Servants (Appointment and Condition) of Service Rules, 1974 cannot be made applicable in such like cases. It may not be out of place to mention here that petitioners could not have been promoted even Deputy Director due to requisite length of service which was lacking in their case. It was also in violation of quota i.e, 80 % meant for Assistant Director (Field) and Research Officer/ Assistant Director (Research). The learned Advocate Supreme Court C could not explain that how the seniority was claimed on the basis of provisional seniority list which was never finalized.
6. The upshot of the above discussion is that judgment impugned being well based does not warrant interference and moreso no question of law of public importance is involved which is sine qua non for the invocation of jurisdiction as conferred upon this Court under Article 212 of the Constitution of Islamic Republic of Pakistan. The petition being meritless is dismissed and .