1. SYED HAIDER ALI PIRZADA, J.-- The petitioner through this petition has claimed the following reliefs:-- "(a) Declare that appointment of respondent No. 3 to post of Associate Professor of Dental Surgery in the Department of Dentistry in the service of respondent No. 1, and his promotion to the said post and grade made on or about 24th April, 1991 are without authority of law, of no legal effect, null and void and mala fide.
(b) Restrain respondent No. 3 from holding or acting or performing functions of post of Associate Professor of Dental Surgery in service of respondent No. 1.
(c) Restrain respondent No. 1, its officers, and functionaries from permitting respondent No. 3 to hold or act or perform functions of post of Associate Professor of Dental Surgery in service of respondent No. 1.
(d) Order respondent No. 1 to make appointment/promotion to the post of Associate Professor of Dental Surgery in accordance with law and applicable criteria by direct recruitment and consider and appoint and promote petitioner to the post of grade.
(e) Allow costs of proceedings.
(f) Give and grant such other and or further relief as the nature and or circumstances of the case may require."
2. The facts leading to the filing of the above petition are that the petitioner is graduate in Dental Surgery (B.D.S.) and has passed and holds Diploma/degree of Fellow of Dental Surgery, Royal College of Surgeons (Glasgow) (F.D.S., R.C.S.) and a Fellow of Faculty of Dentistry, Royal College of Surgeon (IRE) (F.F.D., R.C.S.). The petitioner claims that the said diploma/degrees are considered to be major qualifications equivalent t) F.C.P.S., of Pakistan, by the Pakistan Medical and Dental Council, respondent No.2. It is her case that she is employed in Civil Service of the Federation and holds post of Assistant Professor in the Department of Dentistry in Jinnah Post Graduate Medical Centre, Karachi. She is presently in Grade-18 of service.
3. It is alleged that respondent No. 3 is graduate in Dental Surgery (B.D.S.) and holds degree/diploma of M.Sc. (U.K.) in Periodontology from Eastment Institute of Dentistry in London, which was awarded after attending of one year and which qualification, according to Pakistan Dental and Medical Council/respondent No. 2, is a minor qualification equivalent to M.C.P.S. Of Pakistan. The respondent No. 3 is also in the civil service of the Federation and held post of Assistant Professor in the Department of Dentistry in Jinnah Post Graduate Medical Centre, Karachi in Grade-18.
4. The case of the petitioner is that according to stipulation/direction issued by respondent No. 2, a person holding post of Assistant Professor is not eligible and does not qualify for appointment or promotion to post of Associate Professor unless he holds major post-graduate qualification equivalent to F.C.P.S. Of Pakistan but may be considered for appointment or promotion with minor qualification M.C.P.S., if person with major qualification is not available, which relaxation is-not available to respondent No. 3 as petitioner with-major qualification is available for appointment or promotion.
5. The petitioner was appointed as Assistant Professor Dentistry in Grade-18 on ad hoc basis in Jinnah Post-Graduate Medical Centre as from 22-6-1987 and assumed charge on 12-8-1987. She was allowed to continue as Assistant Professor of Dentistry on regular basis as from 9-1-1989.
6. Respondent No. 3 was appointed as Assistant Professor of Dentistry in Grade-18 in Jinnah Post Graduate Medical Centre, as from 25th March, 1987 and assumed charge on 23-4-1987.
7. Respondent No. 3 was promoted and appointed to the post of Associate Professor (Dentistry) in Gade-19 as from 1st April, 1991.
8. It is the further case of the petitioner that respondent No. 3 is senior to her in post of Assistant Professor in Grade-18 by few months and when respondent No. 3 was promoted and appointed, she was not considered for promotion and appointment.
9. The respondent No. 1 filed parawise comments to the above petition. The respondent No. 1 contended that the matter relating to the terms and conditions of persons in service of Pakistan is outside the exclusive jurisdiction of this Court and is barred under Article 212 of the Constitution of the Islamic Republic of Pakistan. The case of the respondent No. 1 is that the petition was junior to respondent No. 3 and was also possessing less experience and, ineligible to be considered for promotion. The respondent No. 1 pleaded it its report that the Central Selection Board considered the case and recommend the appointment of the respondent No. 1 as Associate Professor (Dentistry) of acting charge basis. The Central Selection Board also recommended the post in question to be filled in by direct recruitment. It is the further case of respondent No. 1 that at the time of promotion of respondent No. 3, no other eligible candidate was available. Promotion was made in accordance with the rules and regulations. According to respondent No. 1, the respondent No. 2 have also confirmed his eligibility for promotion to the post of Associate Professor.
10. We have heard Mr. J.H. Rahimtoola in support of the above petition, Mr. S. Mahmoodul Hasan, learned counsel appearing for respondent No. 2 and Messrs Muhammad Naimur Rehman and Sarmad, J. Usmani appearing for respondents Nos. 1 and 3 respectively called absent. We have also considered the written arguments submitted by the learned counsel.
11. The learned counsel appearing for the respondents raised a preliminary objection about the maintainability of the above petition.
12. Section 9 of the Civil Servants Act (hereinafter referred to as `the Act' deals with the promotion of a civil servant. It reads as under: -- "Promotion.--(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a (higher) post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
13. (2)
14. (a)
15. (b)
16. Section 4 of the Service Tribunals Act, 1973 deals with the Appeals to Tribunals. It reads as under: -- "4. Appeals to Tribunals.--(1) Any civil servant aggrieved by any final order, whether original or appellate made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him (or within six months of the establishment of the appropriate Tribunal, whichever is later) prefer an appeal to the Tribunal: Provided that--
(a) where an appeal, review or representation to a departmental authority is provided under the Civil Servants Ordinance, 1973, or any rules against any such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) 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; and
(c) no appeal shall lie to a Tribunal against an order or decision of a departmental authority made at any time. Before the 1st July, 1969.
(2) Where the appeal is against an order or decision of a departmental authority imposing a departmental punishment or penalty on a civil servant, the appeal shall be preferred --
(a) in the case of a penalty of dismissal from service, removal from service, compulsory retirement or reduction to a lower post or time--scale or to a lower stage in a time-scale, to a Tribunal referred to in subsection (3) of section 3; and
(b) in any other case, to a Tribunal referred to in subsection (7) of that section."
17. This point was considered by a full Bench of this Court in the case of Abdul Ban v. Government of Pakistan and another (PLD 1981 Karachi 290). It. Was expressed in the following terms at page 295 of the report: -- "The plain reading of clause (2) of Article 212 leaves no manner of doubt or ambiguity that the jurisdiction of the High Court would be ousted in regard to all such matters which fall within the ambit of the authority of the Tribunal to adjudicate, even though the Tribunal may be conferred with jurisdiction limited to some of the matters relating to the terms and conditions of service. The words "in respect of any matter to which the jurisdiction of such Administrative Court or Tribunal extends" clearly make the ouster of the High Court to correspond with the matters placed within the ambit of the jurisdiction conferred on the Tribunal. If the intention of the makers of the Constitution was as is canvassed by Mr. Khalid Ishaque, then instead of the words referred to, the provision would have been to the effect that upon establishment of an Administrative Court or Tribunal of exclusive jurisdiction no other Court shall be competent to entertain any proceeding `in respect of any matter relating to terms and conditions of service. But the words pointed out clearly provide for the degree of the ouster of jurisdiction of the Courts in direct proportion to the scope of the jurisdiction of the Tribunal."
18. The disputes relating to question of seniority were exclusively within the jurisdiction of the Service Tribunal, was considered in the case of A.H. Mirza v. Province of Sindh and others 1982 PLC (C.S.)
19. 599; It was held as under:-- "It is rightly contended by the learned counsel for the respondents that the dispute relating to the seniority of a civil servant is cognizable by the Services Tribunal by way of appeal under section 4 of the Sindh Service Tribunals Act, 1973---"
20. The view expressed in the above judgments was approved by the Hon'ble Supreme Court in the case of Mukhtar Ahmed Junejo and 2 others v. Province of Sindh and others PLD 1986 SC 560. The relevant observations appear at page 564 of the report and read as under: -- "We are in' agreement with the above views of the Sindh High Court. In fact, the same view, namely, that questions of seniority can be agitated before the Service Tribunal and it has the jurisdiction to decide these questions in the course of an appeal before it, was given effect to in the case of Inspector-General of Police, Punjab, Lahore and others (PLD 1985 SC 159), for more or less the same considerations which the Sindh High Court has seen fit to advert to in some detail."
21. In the case of Accountant-General, Baluchistan, Quetta v. Abdul Majeed Babar and others (1990 SCM R 790), the Hon'ble Supreme Court held as follows: -- "9. From the facts stated, it is clear that the respondent was a Federal Government employee at the time when he was appointed as Chairman, Baluchistan Public Service Commission. His terms and conditions, therefore, were to be governed by the Federal Government notwithstanding his posting in the Province."
22. Again it was observed at page 795: "The question whether the Baluchistan Government could promote' him and whether the Accountant-General was not, as he expressly said, to enforce the orders of the competent authority relating to the terms and conditions of the respondent, are questions which had to be determined by the Service Tribunal because the question as that what is terms and conditions of service and who is competent authority in the case required examination: In the case of Mian Abdul Malik v. Dr. Sabir Zameer Siddiqui and 4 others (1991 SCM R 1129), the Hon'ble Supreme Court interpreted the provisions of section 4 of the Service Tribunals Act (LXX of 1973). It is advantageous to reproduce the relevant portion from the judgment, which reads: "What is barred from the jurisdiction of the Tribunal is the question of fitness of a civil servant for promotion. The determination of his eligibility is a question on which jurisdiction of the Tribunal has not been barred. The question of eligibility relates primarily to the terms and conditions of service and their applicability to the civil servant concerned. Fitness introduces an element of subjective valuation on the basis of objective criteria where substitution for an opinion of the competent authority is not possible by that of a Tribunal or a Court. It is in this background that the question of fitness or suitability for promotion has always been considered to be exclusively within the jurisdiction of the competent authority not shared by the Court or Tribunal exercising supervisory jurisdiction in respect of eligibility and qualification. On the question of eligibility and qualification no such bar exists either on express words of section 4 of the Service Tribunals Act or even by implication. In the present case the petitioner had approached the Civil Court for determination of his eligibility and also for being declared as the only one eligible to be promoted. Such an exercise could not be undertaken by the Civil Court with the limited number of parties arrayed before it nor could it have jurisdiction as the matter related to the terms and conditions of the service."
23. In the light of the principles laid down in the above; discussions, we hold that the question of eligibility to promotion is exclusively within the jurisdiction of the Service: Tribunal. In the instant case, we are not considering eligibility to promotion.
24. The petitioner was holding post of Assistant Professor of Dentistry, who has riled the above petition complaining that she has been wrongly denied promotion to post of Associate Professor (Dentistry) in the Post-- Graduate Medical Centre, Karachi in Grade-19 without any reasonable ground even though she was fully eligible for such promotion.
25. It is admitted that the post of Associate Professor (Dentistry) in Grade-19 in the Jinnah Post Graduate Medical Centre, Karachi is post to which appointment is made by selection.
26. It is well-settled position that whenever promotion to a higher post is to be made on the basis of merit, no officer can claim promotion to the higher post as a matter of right by virtue of seniority or major qualification. An officer may be capable of discharging the duties of the post held by him/her satisfactorily but he/she may not be fit for the higher post. Before any such promotion can be effected, it is the duty of the Federal Government or the Competent Authority to consider the case of the officer concerned on the basis of the relevant materials. If promotion has been denied arbitrarily or without any reason arbitrarily, the Court can issue a direction to the Authority concerned to consider the case of the officer concerned for promotion but it cannot issue a direction to promote the officer concerned to the higher post without giving an opportunity to the competent authority to consider the question of promotion. The Court is not by its very nature competent to appreciate the abilities, qualities, qualifications or attributes necessary for the task, office or duty of every kind of post in the modern world and it would be hazardous for it to undertake the responsibility of assessing whether a person is fit for being promoted to a higher post which is to be filled up by selection. The methods of evaluation of the abilities or the competence of persons to be selected for such posts have also become nowadays very much refined and sophisticated and such evaluation should, therefore, in the public interest ordinarily be left to be done by a Selection Committee consisting of persons who have the knowledge, of the requirements of a given post to be nominated by the employer. Of course, the process of selection adopted by them should always be honest and fair. It is only when the process of selection is vitiated on the ground of bias, mala fides or any other consideration will arise.
27. Section 9 of the Civil Servants Act reads as under: -- "9. Promotion.--(1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a higher post for the time being reserved under the rules for departmental promotion in the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotions shall be made as may be prescribed --
(a) in the case of selection post, on the basis of selection on merits; and
(b) in the case of a non-selection post, on the basis of seniority-cum-- fitness."
28. Rule 7 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 (hereinafter referred to as "the Rules") provides that promotions and transfers to posts in Basic Pay Scales 2 to 18 and equivalent shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfers to posts in Basic Scales 19 to 21 and equivalent, shall be made on the recommendation of the Central Selection Board.
29. Rule 8 of the Rules required promotion to be made of the persons who possess the qualification and meet the conditions laid down for the purpose of promotion to a post shall be considered by the Departmental Promotion Committee or the Central Selection Board, as the case may be.
30. It is seen that the Central Selection Board recommended that appointment of respondent No. 3 as Associate Professor (Dentistry) on Acting Charge basis. The Central Selection Board also recommended the post in question to be filled by direct recruitment. The Central Selection Board did not find the petitioner fit for promotion on such occasion. There is no allegation of bias or mala fide urged against the members of Central Selection Board of the Competent Authority. On the material placed before us, we hold that at the relevant time the case of the promotion of petitioner has been considered in accordance with law. No other contention is urged before us. On the facts and in the circumstances of the case, we do not find any error committed by the respondent No. 1.
31. Mr. Rahimtoola, learned counsel for the petitioner submitted that the Central Selection Board would consider the case of, the petitioner for promotion on a proper appraisal of the relevant material as the respondent No.3 was promoted only on ad hoc charge basis. .
32. In the circumstances, we feel that the respondent No. 1 is directed to constitute Central Selection Board within six months from today for appointment of Associate Professor (Dentistry) in Grade-19.
33. The respondent No. 1 are, however, directed to consider the case of the petitioner and the respondent No. 3 for promotion and if on an assessment of the relevant materials, the Central Selection Board or the Competent Authority finds that the petitioner or respondent No. 3 to be promoted; she/he shall be promoted at once.
34. The Constitution petition is accordingly disposed of. There will, however, be no orders as to costs.