1. MUKHTAR AHMAD JUNEJO, J.--Leave to appeal is sought against a judgment dated 24-10-1996 delivered by the Punjab Service Tribunal (hereinafter mentioned as the Tribunal) in Service Appeal No.453 of 1995.
2. Admittedly petitioner Dr. Zafar Aziz Khan and respondent No. l Dr. Shabnam Iqbal Niazi are Professors in B.P.S-20 in Fatima Jinnah Medical College, Lahore (hereinafter mentioned as the College). The petitioner is shown to have joined the College on 13-2-1965, but he is shown in the Seniority List to be senior to respondent No. l who joined the College on 27-4-1964. Admittedly the College was taken over under para. 4 of Martial Law Regulation No. 118 (hereinafter mentioned as M.L.R-118) by the Government of the Punjab under a Notification No. S.O (P & P)-12-5-79, dated 1-7- 1980. Under a Letter No. S.O. (P&P)-12-5-79(1) dated 1-7-1980 the Government of the Punjab informed the Principal of the College that the officers and staff working in the College were given the following undertaking:-- "(a) the exclusive female character/status of this college will be maintained:
(b) the terms and conditions of the present staff shall not be altered to their detriment; and
(c) the present female staff members shall not be transferred out of this college and that the matter of recruitment/promotions, preference will be given to the females. On 8-8-1968 the Governing Body of the College and its attached hospitals decided unanimously in a meeting that at the the of making appointments. Everything else being equal, preference will be given to female applicants, but once, a male candidate has been appointed to a post he will be entitled to confirmation, promotion etc., in that post like any other member of the staff. In another meeting held on 27-8-1970 the Governing Body of the College took decision that although there shall be no ban on appointment of males to the College but preference should be given to the recruitment of the females, everything else being equal."
3. Before commencement of present litigation between the parties, there was some litigation in the past which may be briefly mentioned here. On 19-9-1990 respondent No.1 filed Writ Petition No.6711 of 1990 in the Lahore High Court challenging appointment of Dr. Fakhar-un-Nisa as Principal of the College. While dismissing said petition in limine, a learned Single Judge under his judgment dated 19-8-1992 took view that office of the Principal is not a higher post in the cadre and it is only an additional assignment but it is a selection post and revolves around the eligibility of the candidate and that an aggrieved person cannot complain that his non-selection as Principal involved the breach of any term or condition of service. For taking this view the learned Single Judge relied on the case of Aish Muhammad and others v. Pakistan and others (1985 SCM R 774).
4. Prior to this, on 28-6-1987 respondent No.1 filed in the Tribunal an Appeal bearing No. 582/87 under section 4 of the Punjab Service Tribunals Act claiming seniority over the petitioner and requesting for setting aside of the Seniority List of 1981 as re-modeled by order dated 22-4-1987. Said appeal was contested, by -the petitioner and it was dismissed on 18-7-1990 on technical ground of the respondent No. l having not exhausted the departmental remedies. Said order dated 18-7-1990 was not challenged.
5. Respondent No.1 filed Writ Petition No.6803 of 1989 claiming appointment as Principal of the College on account of her seniority and merit after expiry of the tenure of Dr. Nabiha W. Hassan as Principal.
6. The Government of the Punjab gave an assurance to the respondent No. l during the pendency of the Writ Petition that she will be included in the panel with other Professors to be considered for appointment as Principal on such post falling vacant. However, during pendency of said Writ Petition Dr. Fakhar-un-Nisa was appointed as Principal and hence respondent No.1 filed Writ Petition No.6711/90. Writ Petition No.6711 of 1990 was dismissed by a learned Single Judge of the High Court on 19-3-1992 which judgment was challenged before the Division Bench of the High Court under Intra-Court Appeal No.310 of 1992. Said appeal is still pending.
7. The problem arose afresh when Dr. Fakhar-un-Nisa retired on reaching the age of superannuation on 19-2-1995 and consequently under notification of even date the petitioner was called upon to look after the work of Principal of the College in addition to his own duties, Ultimately, on 7-5-1995 the. Government of the Punjab issued a Notification by which the petitioner was posted as Principal of the College on regular basis.
8. Said Notification was challenged by' the respondent No.1 in the Tribunal where she- filed Appeal No.453 of 1995 on 5-6-1995. Said appeal was contested by the petitioner as well as by the Province of the Punjab Under the impugned judgment dated 24-10-1996, learned Tribunal accepted the Service Appeal and took view that continuance of male staff in the College was unconstitutional and the same should be merged with other Medical Colleges and that the respondent No.1 be given additional charge of the post of Principal of the College and that the protection given to the female staff of the College by the Governing Body of the College, be maintained in terms of Article 27(1) of the Constitution of Pakistan. Hence this petition.
9. Mr. Muhammad Akram Shaikh, learned counsel for the petitioner challenged jurisdiction of the Tribunal to entertain the appeal of the respondent No. l and argued that the Tribunal had no jurisdiction to determine fitness or otherwise of a person to hold a particular post or to be appointed to the same. It was further argued that determination of competency by the Selection Board, about a civil servant to hold a particular post, is not justiciable in a Court of Law and that the Tribunal went beyond its jurisdiction by ordering a civil servant to be posted as a Professor and by directing the respondent No: l to be given the post of Principal. It was also argued that male Professors of the College had a legitimate expectancy to hold administrative posts depending upon their seniority and fitness. Learned counsel further argued that as per the Seniority List prepared by the Government of the Punjab and issued of 2-11-1981 the petitioner was at Serial No.6 while the respondent No. l was at Serial No. 12. It was also argued that the respondent No. l was considered alongwith the petitioner and three other senior Professors of the College for the post of Principal, but the petitioner was recommended by the Selection Board and hence he was appointed as Principal on 7-5-1995.
10. We have also heard at length Raja M. Anwar, learned counsel for the respondent No. l and have gone through various orders passed in the previous litigation.
11. We are persuaded to grant leave to appeal to consider inter alia the contentions raised by the learned counsel for the petitioner as well as the following points:
(1) Whether the assurances given by the Government of the Punjab through their Health Secretary under latter's Letter No. S.O (P & P)-12/5--79(1), dated 1-7-1980 addressed to the Principal, Fatima Jinnah Medical College for Women, Lahore that exclusive female character/status of said college will be maintained and that in the matters of recruitment/promotion preference will be given to the, females, have legal cover and are binding on the Punjab Government?
(2) Whether entertainment of Appeal No.453 of 1995 (Dr.Shabnam Iqbal Niazi v. Secretary to Government of the Punjab and another) by the Punjab Service Tribunal amounted to its having resorted to the exercise of determining fitness of a civil servant to a particular post?
(3) Whether the Government of the Punjab. Health Department Letter NO.S.O(Admn. I) 14-22/80, dated 5-4-1980 containing criterion for selection and appointment of fit person as Principal of the College, has been supreseded or amended by the Government of the Punjab. Health Department Letter No.S.O(P & P)-12/5-79(1), dated 1-7-1980.
12. The appeal shall be heard on the existing paper book and the impugned judgment of the Service Tribunal shall remain suspended till decision of the appeal.
13. N.H.Q./Z-225/S'