' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---All these eight appeals, with the leave of this Court, are directed against the identical judgments: six of them dated 27-10-1991 and the remaining two dated 28-1-1992, passed by the N.-W.F.P. Service Tribunal (hereinafter referred to as the Tribunals).
In Appeals Nos.88, 89, 98 and 99 of 1987 the Tribunal had directed that cases of Dr. Irfan Mir, Dr. Muhammad Aman Khattak, Dr. Mian Dad Bangash and Dr. Muhammad Alam Khan should be processed for promotion from Grade-17 to Grade-18 alongwith those of Dr. Muhammad Yaqoob and Dr. Saadullah Khan who shall not be given any preference over the former on the basis of the latter's D.P.H. Qualifications.
2. Since common question of law has arisen for our address in all the appeals, these are being disposed of by this single judgment.
3. Under Item No,4 of Appendix 'A' to the West Pakistan Health Service (Class I) Rules, 1969 (hereinafter to be called as the Rules), promotion to the post of District Health Officer and Civil Surgeon etc., is regulated by the following criterion:-- "By selection on merit with particular reference to fitness for higher responsibilities from among members of the regional sub-cadres of Class II posts possessing D.P.H. And at least seven years' experience from the date of graduation in proportion to the strength of such sub-cadres."
' The Provincial Government vide Notification No,SO (II)IV/1-121/72, dated 11-5-1987 allowed Dr. Muhammad Yaqoob and Dr. Saadullah Khan (hereinafter referred to as the two doctors) to supersede Dr. Noor Muhammad, Dr. Irfan Mir, Dr. Muhammad Alam, Dr. Ghulam Farid and Dr. Miami Dad I3angesh (hereinafter called as the five doctors) on the solitary ground that the former were possessed of Diploma in Public Health whereas the latter were not qualified as such. Feeling aggrieved, the 'five doctors' filed four separate appeals before the Tribunal. The 'two doctors' and the Government of N.-W.F.P., while contesting the appeals before the Tribunal, invoked the provisions of Item No,4, Appendix 'A' to rules 3, 4 (1), 6 (2), 6 (4) and 8 (1) of the Rules reproduced in para.3 ante and maintained that "they were regularly promoted to BPS-18 with effect from 27-6- 1974 in preference to their seniors on the basis of the D.P.H. Qualifications, experience and fitness for higher responsibilities from amongst members of sub-cadre of Class II." According to them, the pi ovision of D.P.H. Qualification for promotion to the post of District Health Officer/Deputy Director Health/Medical Officer etc. Was still operative and that promotion thereunder could not be questioned on any grounds".
4. On the basis of the averments and counter-averments raised by the parties the Tribunal settled as many as ten points for determination but for the purposes of these appeals the crucial question was whether the 'five doctors' who were the appellants before the Tribunal, having not obtained D.P.H. Qualifications could be considered for promotion to BPS 18 alongwith the 'two doctors' retrospectively with effect from 27-6-1974. In this context, the proposition was examined from the following three angles:- "CO That the 'five doctors' including many others were promoted to B.P.S.18 prior to Dr. Saadullah Khan and Dr. Muhammad Yaqoob who had not obtained D.P.H. Qualification.
(ii) That the moment the facility to obtain D.P.H ceased to be available the holding of this qualification no longer remained a condition precedent for grant of promotion.
' That grant of promotion to the 'five doctors' and others with effect from October/November/December, 1974 was indicative of the inference that the condition of D.P.H. Had been impliedly waived and that the Government had itself acted in a manner as if the condition had been withdrawn."
' The reasoning that weighed with the Tribunal in accepting the appeals has been summarised by this Court in the leave granting order wherein it was observed as under :-- ' The view taken by the Tribunal, however, was that the facility of obtaining the diploma was available at Lahore, which after dismemberment of One-Unit was never provided in N.-W.F.P; that.
Respondent No,1 did apply for nomination to attend the diploma course, but his request was not acceded to. The Tribunal; maintained that moment ' the facility to obtain the diploma ceased to be available, the holding of this qualification no longer remained a condition precedent for grant of promotion. It was further held that grant of promotion to Grade-18 to respondent No,1 in November 1974 was indicative of the inference that the condition of D.P.H had been waived off and that the Government itself acted in a manner as if the condition had been withdrawn. In the opinion of the Tribunal, as from the date of induction and regularization of their service, respondents Nos.2 and 3 were junior to respondent No,1, right of seniority vis-a-vis respondent No,1 could not be conferred on them merely because they had D.P.H qualification."
' The leave was granted to the Government of N.-W.F.P. And Dr. Saadullah Khan in their respective appeals in paragraph 3 which reads as follows:-- "On the other hand, the Government's stand is that according to the Health Service (Class I) Rules, 1969, promotion to the post of District Health Officer, Civil Surgeon etc., is allowed as under :-- ' By selection on merit with particular reference to fitness for higher responsibilities from among members of the regional sub-cadres of Class II posts possessing D.P.H. And at least seven years' experience from the date of graduation in proportion to the strength of such sub-cadres.'
' That the promotion/seniority granted to respondents Nos.2 and 3, who held the requisite qualification, was strictly as per service rules, which according to the Tribunal's own showing had neither been amended nor holding of qualification in question, as condition precedent for promotion, dispensed with; that the case of respondent No,1 was considered alongwith that of respondents Nos.,2 and 3, and for want of qualification he could not be preferred over the latter. It was further urged that there was no question of waiver of statutory provisions envisaged by the Rules and thus the view taken by the Tribunal could not be sustained in law."
5. We have heard the learned counsel Advocate-General N.-W.F.P. For the appellants and the learned counsel for the respondents namely, the two sets of doctors'.
6. The main contention raised on behalf of the appellants was that the Tribunal had conceded in the impugned judgments that under the Rules of 1969, holding of D.P.H. Was a prerequisite for promotion to B.P.S-18; that these Rules were not amended and; that the 'five doctors' were not holding this qualification. Nonetheless, the Tribunal held that the moment this facility to obtain D.P.H. Ceased to be available the holding of this qualification no longer remained a condition precedent for grant of promotion. It was also emphasised that the cases of the 'five doctors' were considered alongwith those of the 'two doctors' and due to lack of qualification of D.P.H. The latter could not be legally accorded preference over the former. It was pointed out that the `five doctors' were promoted to B.P.S.18 against 40% upgraded posts later than the 'two doctors' for which D.H.P.
Qualification was not a prerequisite and further that the qualification of D.P.H. Was dropped to be a prerequisite for the posts of Medical Superintendents, Agency Surgeons and Senior Medical Officers etc. According to the appellants, there was neither any necessity of relaxation of the D.P.H qualification by the Chief Minister nor his observations which were unjustifiably played up by the 'five doctors' in fact implied any such relaxation.
' The learned counsel appearing on behalf of the answering respondents had reiterated only those grounds before us which had already found favour with the Tribunal in passing the impugned judgments.
8. The crucial question calling for our address is whether, after the disintegration of the Province of West Pakistan, the qualification of D.P.H. Continued to be a condition precedent for promotion to the posts enumerated in Item No,4 of Appendix 'A' to the Rules. From the perusal of the judgment, dated the 8th March, 1984 passed by the Tribunal in an earlier round in Appeals Nos.114 to 119 of 1984 titled Dr. Irfan Mir v. N.-W.F.P. And two others it transpires that the Tribunal had noticed that in many cases the D.P.H. Qualification had been ignored to be a precondition for promotion to even the categories of doctors enumerated in Item No,4 ibid. The Tribunal also took note of such cases in the impugned judgments. It would, therefore, be clear that the Government of N.-W.F.P. And Dr. Saadullah Khan appellant have not been able to substantiate their plea that D.P.H. Qualification was ignored only in the cases of either 40% quota of the doctors' total strength in B.P.S. 17 or for the posts of Medical Superintendents, Agency Surgeons etc. And in the cases of promotion to the posts of District Health Officer/Deputy Director Health and Principal of the Para-medical school, the D.P.H.
Qualification was a prerequisite. The finding of the Tribunal that the D.P.H qualification for promotion to higher grade or to the posts in the Health' Department had since long ceased to be a prerequisite is, therefore, unexceptionable. The claim of the two doctors was pedestalled on comparatively higher academic qualification. The mere comparatively higher academic qualification, when relevant rule has practically fallen into disuse since long, does not give any preferential right of promotion to a civil servant over those civil servants in the same service or class although senior to them but possess less qualification. Even in cases where promotion under the rules is required to be made strictly on the basis of seniority-cum-merits, the mere qualification is not the sole criteria for the determination of comparative merits of the contenders for promotion.
The merit undoubtedly also includes experience, seniority, competence, rectitude and antecedents in service record. None of these constituents is less important than the academic qualifications in the assessm ent of suitability or merits for promotion to higher post or grade. The 'five doctors' were admittedly senior to the 'two doctors' and, therefore, were more experienced with unblemished record of service. Thus, on account of their seniority and long experience the 'five doctors' had a right to promotion notwithstanding the fact that the 'two doctors' possessed the qualification of D.P.H.
9. Looking from still another angle, we have found that the requirement of the qualification of D.P.H.
Has been impliedly abolished long before the cases of promotion of the 'two doctors'. It was no more a condition precedent for promotion to senior post since the year 1973 and perhaps afterwards also. In almost in the similar background in Muhammad Suleman Khan v. Pakistan through the Secretary, Ministry of Finance (Revenue Division), Government of Pakistan and 10 others (1972 SCM R 127), the system of qualifying examination was the only channel of promotion from the post of Inspector, Central Excise and Land Customs to that of Class II Deputy Superintendent. After the petitioner passed the requisite examination, his name was placed at Serial No,13 in the list of Inspectors who were qualified for promotion. However, the Central Board of Revenue by fresh directive abolished the system of qualifying examination with the result that respondents Nos.4 to 11, who were basically senior to the petitioner but had not passed the qualifying examination, were placed senior to the petitioner in the list of eligible candidates for promotion as Deputy Superintendents. The petitioner sought to challenge this latter directive in the writ jurisdiction of the High Court. The High Court dismissed the writ petition leading to a petition for leave to appeal. This petition was dismissed. On behalf of the Full Bench the judgment was delivered by Sajjad Ahmed Jan, J.-- as his Lordship then was. We can do no better than reproduce from the judgment the following law laid down by this Court:-- "It is obvious that the mere fact that the petitioner had passed the qualifying examination at the time when the system of examination for promotion was in vogue, did not create any vested right in the petitioner for promotion as Deputy Superintendent. If the Central Board of Revenue has since altered the channel of promotion, the petitioner cannot make a legitimate grievance of it as an infringement of any legal right amounting to alteration in the terms and conditions of his service.
As no right had vested in the petitioner for promotion by his having passed the examination under the old system, he cannot ask for the enforcement of that right, and his petition was, therefore, rightly dismissed by the High Court. It seems that in effect the petitioner is claiming seniority over respondents Nos.4 to 11 on the ground of his having passed the qualifying examination, which the respondents had not. His effort to achieve that object by means of a writ petition in High Court was entirely misconceived ."
In the appeals before us, as noted earlier, the requirement of qualification of D.P.H. Had been revived after long only to extend to the 'two doctors' the benefit of the ignored rule to the detriment of the 'five doctors' and that this rule was never used either before the promotion of the 'two doctors' or even afterwards. The indulgence in these circumstances shown to the 'two doctors' for obvious reasons was absolutely unfair and unjust. The mere fact that the 'two doctors' had qualified the D.P.H. Examination which had since long been ignored does not, in our view, give them any edge over the 'five doctors' in the matter of promotion and, therefore, no discrimination is permissible between the two categories of the doctors.
10. For the foregoing reasons, all the eight appeals filed against the identical impugned judgments fail both on legal grounds as well as on merits and are accordingly dismissed with no order as to costs.