' The relevant facts for the decision of this Constitutional petition are that ministerial staff has a quota in the Extra Assistant Commissioners posts. In the year 1993-1994 eight vacancies were available in this quota. The petitioner and other colleagues of him applied for the same. The merit list was prepared on the basis of result of written examination and interview. The name of the petitioner was at serial No,9, therefore, he was not promoted. He filed Writ Petition No, 5211 of 1994.
The same was withdrawn on 18-12-1994 to enable the Government to consider the case of the petitioner sympathetically as there were vacancies. The case of the petitioner was not considered in spite of the vacancies, therefore, he has filed this petition. The petition was admitted to hearing.
Notices were issued to the respondents who were represented.
2. Learned counsel for the petitioner argued that respondent No,3 was appointed in relaxation of rules and his case was not covered under section 23 of the Punjab Civil Servants Act while respondent No,4 was not Law Graduate on 31-3-1993, last date for receiving recommendations and respondent No,5 was not holding a substantive post. It is added that the writ petition is competent.
In this behalf, reliance is placed on Dr. Ahmed Salman Waris, Assistant Professor, Services Hospital, Lahore v. Dr. Naeem Akhtar (PLD 1997 SC 382), Muhammad Aslam Khan v. Government of Pakistan (PLD 1993 Karachi 41), S. Irshad ur Rehman v. Government of Pakistan through Chairman, C.B.R.
(1993 PLC (C.S.) 39), Khaliq uz Zaman Chaudhry, Civil Judge 1st Class, Lahore v. Government of Punjab (1993 PLC (C.S.) 1322) and Dr. Mrs. Zahida Mir v. The Punjab Public Service Commission, Lahore through Secretary (1992 PLC (C.S.) 1010).
3. On the other hand, learned Additional Advocate-General argued that the writ is not competent, moreso after the withdrawal of the first writ petition. It is added that the petitioner has sought relief against two sets of respondents. The first set consisted of respondents Nos,4 and 5, who competed with him, therefore, one can understand the grievance of the petitioner but respondent No,3 had been promoted separately, therefore, if petitioner or anybody has any grievance, he can challenge the same and pray for issuance of writ of quo warranto.
4. Learned counsel for respondent No,3 submitted that his client has been unnecessarily dragged in the litigation. In fact the petitioner has no grievance against his client. It is argued that this Court has no jurisdiction in this matter. In this behalf reliance is placed on Ishfaq Hussain Rana v.
Government of the Punjab (1993 SCMR 1326), Aish Muhammad v. Pakistan (1985 SCMR 774) and Muhammad Anis v. Abdul Haseeb (PLD 1994 SC 539).
5. Learned counsel for respondent No,4 argued that the result of the LL.B of his client was declared on 19-7-1993 as per Annexure R/6 with his written statement. It is explained that High Court made recommendations on 31-5-1993 while the Board of Revenue had sent its recommendations on 25- 5-1993 and the final selection was made on 19-12-1993 which is the material date and date of application is of no significance in such matters. In this behalf reliance is placed on Miss Sobia Hadi v. The Principal, K.E. Medical College/Chairman, Admission Board of the Medical College of Punjab, Lahore (PLD 1993 Lahore 673), Province of Punjab v. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351) and Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043). It is added that the recommending Authority as per rule was the Minister Incharge while the case of the petitioner was recommended by the Advisor, therefore, the recommendation was not in order.
6. Learned counsel for respondent No,5 argued that his client was holding a substantive post as was clear from Annexure-R-5/7 and other documents appended with the written statement.
7. I have given my anxious consideration to the arguments and gone through the record. The petitioner has in fact challenged the appointment of respondents Nos,4 and 5 who competed for promotion in the year 1993 with him. The respondent No,3 had been unnecessarily added. If anybody felt that respondent No,3 has been appointed wrongly and illegally, he can challenge it separately through a writ of quo warranto.
8. Now coming to the appointment of respondent No,4. It is not denied that the result of LL.B was declared on 19-7-1993 while the final selection was made on 19-12-1993, therefore, he was Law Graduate on the date of final selection. The argument that respondent No,5 was not eligible to compete for promotion because he was not holding a substantive post is without merit because the said respondent was appointed in 1983. It was clear from Annexure R-5/7 that he was holding a substantive post as his lien was kept intact. Moreover, these are questions of eligibility which are within the exclusive jurisdiction of the Service Tribunal. This cannot be made subject-matter of the writ petition. Learned counsel for the respondent No,5 pointed out that in fact the question of eligibility of his client was raised through an appeal before the Punjab Service Tribunal which was dismissed vide judgment, dated 11-6-1995, therefore, the petition in respect of respondents Nos,4 and 5 is also liable to be dismissed.
9. The upshot of this discussion is that the petition is disposed of with the above observations.