' SH. AHMAD FAROOQ, J.--- Through the instant petition, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has prayed that the condition imposed for her promotion to the post of Associate Professor, vide -letter dated 30-4-2010; be declared as illegal, void ab initio and of no legal effect, and a direction be issued to the respondents for its detachment with all the consequential benefits to the petitioner w,e,f, 2-7-2010.
2. Facts giving rise to the instant writ petition are that the petitioner/Miss Naheed Atta joined the Education Department, Government of the Punjab as lecturer (BS-17) in Psychology on 21-5-1985 and promoted as Assistant. Professor (BS-18) on 21-8-1995. The petitioner contended that the promotion policy from the post of Assistant Professor to Associate Professor, issued by the Government of the Punjab, S&GAD, on 17-9-2002, provided as follows:-- "70% of promotions" shall be made on Seniority-cum-fitness basis from amongst the Assistant Professors with atleast 12 years' service in post carrying BPS-17 or above. "
The petitioner further contended that she fulfilled the above conditions and her case was placed before the Provincial Selection Board-11 on 5-4-2010, which cleared her for promotion but imposed a condition that she shall provide a Certificate of successful completion of Ph.D.
3 Learned counsel for the petitioner submitted that the above condition of providing Certificate of successful completion of Ph.D, was not a necessary requirement for promotion of the petitioner and it was not imposed to any of her batch mates competing with her for promotion. He claimed that the petitioner has been meted out a discriminatory treatment and in this connection, the learned counsel for the petitioner has attached with the instant petition, a seniority list to show that the Assistant Professors, who were junior to her and were not Ph.Ds, have been cleared for promotion. He argued that the-imposition of the above condition on the petitioner is mala fide and merely to deprive her of her valuable right of promotion without any legal or moral justification. In support of his contentions, the learned counsel for the petitioner has placed reliance on the judgments reported as Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another (2007 SCM R 682) and Tahir Mahmood v. Inspector-General of Police Punjab, Lahore, and another 1993 PLC (C.S.) 576.
4. Learned counsel for the respondents contended that since the matter relates to the terms and conditions of service, it falls under the exclusive jurisdiction of the Services Tribunal and Article 212- A of the Constitution of Islamic Republic of Pakistan, 1973 bars the jurisdiction of this Court. He further contended that the petitioner had availed study leave for 4 years for doing Ph.D. But despite that, she could not complete the same. Therefore, the Provincial Selection Board was justified to impose the condition of successful completion of Ph.D., while evaluating the performance for promotion. He argued that since an alternate remedy of filing a representation/appeal/review was available to the petitioner, she could not legally invoke the constitutional jurisdiction of this Court. However, the respondents admitted that the condition of providing Certificate of successful completion of Ph.D. Was not necessary for promotion of the petitioner but the same was imposed in view of. The fact that she had availed study leave for 4 years for completion of Ph.D. But could not do so.
5. Arguments heard Record perused.
6. First, I would like to deal with the question as to whether the petitioner can invoke the constitutional jurisdiction of this Court or not. Undoubtedly, the matter relates to the fitness and suitability of the petitioner for being considered for promotion. In this regard, it would be advantageous to refer to the proviso to section 21 of the Punjab Civil Servants Act, 1974, which reads as under:--- "Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post."
' Similarly, Clause (b) of section 4 of the Punjab Services Tribunals Act, 1974 also provides that:- "No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
' An examination of the aforementioned provisions of law reveals that the petitioner could not have availed the remedy of filing a representation or appeal before the Department or the Punjab Service Tribunal. In this connection, a reference could also be made to the judgment reported as Tahir Mahmood v. Inspector-General of Police, Punjab, Lahore, and another 1993 PLC (C.S.) 576 wherein, it was observed that where the petitioner's fitness or suitability is considered for promotion, he cannot go to the Punjab Services Tribunal. The said dictum of law is further fortified in the case of Muhammad Iqbal and others v. Executive District Officer (Revenue), Lodhran and another (2007 SCM R 682) in which, it was held by the Hon'ble Supreme Court of Pakistan that though the question of eligibility, which is a term of service by virtue of section 9(1) of Civil Servants Act, 1973, has not been excluded from the purview of jurisdiction of Services Tribunal but the question whether a person having requisite eligibility has been rightly selected or not on account of fitness or otherwise for appointment to hold a particular post or to be promoted to a higher post or grade has been excluded. This Court, therefore, has the jurisdiction to adjudicate upon the matter.
7 . The respondents have vehemently argued that since the petitioner had not successfully completed her Ph.D. Despite availing 4 years long study leave for the said purpose, therefore, the Selection Board was justified to evaluate her performance for her promotion. In this respect, it would be advantageous to reproduce the relevant portion of letter dated 19-7-2010, written by Director (Admn.) Public Instructions (C), Punjab, and Lahore to respondent No,2, which reads as under:-- "In this regard, it is submitted that the above said lady officer remained on Study Leave from 1-1- 2004 to 28-2-2008 and she has joined the department after the expiry of Study Leave. She has also eared ACR for the year 2009. It is further submitted that the promotion of teachers always made on Seniority cum fitness basis and not subject to completion of Ph.D. Because the completion of Ph.D. Is a lengthy and time consuming process. Her Supervisor has given' a report in her favour that she will complete and submit her thesis in due course of time."
' It is, thus, apparent that the petitioner was declined promotion on account of a totally irrelevant condition of successful completion of Ph.D. This condition was not attached to any other candidate competing with the petitioner and even teachers, juniors to her in service, who were not Ph.Ds, were also promoted. Hence, the imposition of the aforementioned condition on the promotion of the petitioner was certainly discriminatory in nature and cannot be sustained.
8. For the foregoing reasons, the recommendation of the Provincial Selection Board-II to the extent of imposing a condition of successful completion of Ph.D. For promotion of the petitioner to the post of Associate Professor, as approved vide letter dated 30-4-2010, is declared to be discriminatory, illegal and accordingly, set aside. Consequently, the instant petition is accepted.