1989 PLP (C (PLC(CS))

The petitioner is serving as an Assistant Professor (Radiology). He is desirous of posting as a Professor in the same department. The relevant facts are that after doing his M.B.,B.S. from the Punjab University he obtained a degree from Diplomate of the American board of Radiology. U.S.A. This degree is equivalent, to F.C.P.S, (Pakistan) The petitioner is stated to have practised tram 1976 to 1982 in New York as Radiologist. On return to Pakistan he joined as an Assistant Professor (Radiology) on contract basis on 10-7-198. Then he applied for the same post through Public Service Commission. He was selected and he joined teaching cadre of the Government of the Punjab, Health Department on 5-3-1983. There are now two posts of Profession (Radiology) available in the Provincial Health n Department and grievance of the petitioner is that in spite of the fact that he is a postgraduate yet he is not being considered for appointment against these vacancies. The petitioner has further attacked the recommendation of Pakistan Medical and Dental Council, hereinafter to be referred as council, contained in item No. 8 of its minutes of 73rd session of the Council held on 9th and 10th March, 1988 and the amendment in the rules effected by Government of Punjab through notification dated 3-7-1988. The petition came for preliminary hearing before my learned brother Mr. Rustam S. Sidhwa, J, and the, respondent was directed to submit report and parawise comments. The respondent has complied with this order. There was an application on behalf of Dr. Muhammad Ashraf and Muhammad Akbar Javed for impleading then as parties to the writ petition. This petition was all vide order, dated 9-7-1989 because they were at least proper parties to the proceedings. They have been impleaded as respondents Nos. 2 and I have heard the learned counsel for the petitioner as well as learned-J Advocate-General for respondent No. 1 and Syed Jamshed Ali Shah, Advocate for respondents Nos. 2 and

3. The learned counsel for the petitioner in support of the petition has argued following points:-- "(i) Firstly, that the amendment effected in the rues on 3-7-1988 is illegal as much as the minimum qualifications for these posts have to prescribed by the Council under Pakistan Medical and Dental Council Ordinance, 1963 which in turn is to be based on regulation of the Council. The learned counsel in this behalf has referred to sections 33(2)(d); section 2(n) and section 15 of the Ordinance, 1962; (ii) Secondly, that the amendment effected by respondent No. 1 in the Rules purporting to acting under section 23 of the Punjab Civil Servants Act 1974 ultra vires, because Government has no jurisdiction to prescribe the qualification; (iii) Thirdly, in case of conflict between provisions of Ordinance of 1962, a Federal Law and Punjab Civil Servants Act, 1974, a Provincial Law the Federal Law is to prevail. In this behalf reference has been made to article 143 of the Constitution of Islamic Republic of Pakistan and two unreported judgments of this Court in Writ Petition No. 67 of 1981 and Writ No. 61 of 1985." On the other hand the learned Advocate-General has argued that it is a case of promotion and got initials appointment, therefore, the learned counsel for the petitioner has wrongly referred to the rules pertaining to initial recruitment. It is added that it is only an Associate Professor, who can be considered for promotion for the post of Professor and not an Assistant Professor. It is concluded that the writ petition is utterly misconceived and merits dismissal. Syed Jamshed Ali Shah, Advocate for respondents Nos, 2 and 3 has argued that the. Provincial Government is fully competent to prescribe minimum qualifications in view of the sections 4 and 8 of the Punjab Civil Servants Act read with Rule 18 of the Punjab Civil Servants (Appointment and conditions of Service) Rules, 1974. The learned counsel for the petitioner has raised preliminary objection, which is two-fold. The learned counsel this way has attacked the locus standi of the petitioner to maintain this Constitutional petition on the one hand and on the other hand questioned the jurisdiction of this Court. The legal objection is that the dispute is within the exclusive jurisdiction of Punjab Service Tribunal, therefore, the jurisdiction of this Court is barred under Article

212. It is maintained that it is question of eligibility, which is subject matter of the writ petition. The learned counsel in this behalf has referred two cases reported as Iqan Ahmad Khurram v. Government of Pakistan P L D 1981) S C 153, Ch. Muhammad Insha Allah and others v. Chief Conservator of Forests P L D 1988 S C

155. It is argued that in case of eligibility for promotion it is Service Tribunal alone which is competent to decide grievance of the petitioner. The learned counsel for respondents Nos. 2 and 3 has argued that this is petition for issuance of writ of mandamus as is clear from the prayer clause. It is not competent because no civil servant has vested right to promotion and if he is illegally superceded then he can maintain an appeal in the Service Tribunal. The learned counsel has maintained that there is subtle but clear difference between eligibility on the one hand and fitness and suitability for promotion on the other hand. In this behalf the learned counsel has referred to judgment of Hon'ble Supreme Court in Civil Appeal No. 46-P of 1986. The learned counsel has further explained that the decisions referred to by the learned counsel for the petitioner are not relevant for two reasons:-- (i) Firstly, because in both the decisions the view of Hon'ble Supreme Court as expressed in case of N.-W.F.P, v. Dr. Sheikh Muzaffar Iqbal and others has not been referred; and (ii) Secondly, the Provincial Service is the exclusive subject of the Provincial Government as is clear from Article 240 of the Constitution. It is concluded that the amendment of 1988 of the Service Rules is legal. The learned counsel for the petitioner in reply to the arguments of the respondents has reiterated the arguments noted above, but summed up the points in different phraseology as under:-- (i) The Provincial Government is not competent to consider any person for appointment as Professor who is not a post graduate; (ii) The amendment of rules effected in 1988 is ultra vires; (iii) Thirdly, that if the amendment of 1988 is struck down as ultra vires, then the petitioner as well as respondent No. 2 will be considered for appointment as Professors. It is conceded that this will only be possible after relaxation of the original rule. The learned counsel for the petitioner maintained that the reference to case of Iqbal Ahmad and Ch. Muhammad Insha Allah by the learned counsel for the respondents Nos. 2 and 3 is irrelevant, however, he relies on the judgment of Hon'ble Supreme Court in the case of Dr. Sheikh Muzaffar Iqbal and others as cited on behalf of the respondents. I have given my anxious considerations to the arguments of the learned counsel for the parties and gone through the record as well as rules and precedents. Now I proceed to deal with the preliminary objections raised by the learned counsel for the respondents with reference to the arguments of the learned counsel for the petitioner. I am not dealing with the arguments of the learned counsel for the petitioner on merits in view of the order I propose to make because in that case the future and proper remedy is liable to be prejudiced. The basic objection of the respondents to the competency of the petition can be formulated as under:-- (a) that the petitioner is wrongly treating the case as of fresh appointment whereas it is a case of promotion, which is being granted strictly in accordance with the law and rules; (b) that the petitioner has no locus standi because further promotion is not a vested right of any civil servant and the petitioner as per his own showing is not eligible but basing his claim on relaxation; and (c) that it is a question of eligibility of the petitioner for the post of Professor ,and not fitness and suitability, therefore, the petitioner can maintain an appeal before the Provincial Service Tribunal if so advised. The claim of the petitioner as contained in the writ petition is that he being post-Graduate is fully eligible for appointment as Professor and has prayed for direction to the concerned authorities to forward his case for consideration of his appointment as Professor. In this behalf the petitioner has referred to the Punjab Health Department (Medical and Dental Teaching Posts) Rules, 1979. The rules have been placed as Annexure `13' on the file. The column No. 5 deals with the required qualifications for direct appointments. The relevant entry pertaining to the Radiology appears at page 15 of this paper work. It is clear from the column 5 of the rules that the same pertains to appointments. The respondents on the other hand have referred to sections 4, 8 and 23 of the Punjab Civil Servants Act 1974 and rule 18 of the (Appointment and conditions of Service) Rules, 1974 and to column 6 Punjab Health Department (Medical and Dental Teaching Posts) Rules, 1979. It is argued that Associate Professor in the line possessing qualifications prescribed for the post of Assistant Professor is eligible for promotion as Professor. The relevant provision pertaining to the qualifications for the. direct appointment as Professor reads as under:-- 1 2 3 4 5 Health Medical Teaching Institution Professor Radiology Government (i) for initial appointment to the post of Assistant Professor of the Speciality and (b) Eight years teaching experience in the subject in a recognised institution as Assistant Professor or an equivalent position While provision pertaining to the promotion as Professor is given in column 6, which reads as under:-- Column 6. "From amongst the Associate Professors in the line possessing qualifications prescribed in clause (i) for initial appointment to the post of Assistant Professor with five years teaching experience as such: It is therefore, clear that an Assistant Professor, how-highsoever he may be qualified is not eligible for promotion as Professor and amended rules is also, irrelevant for this reason that the petitioner is basing his claim on A misapprehension of correct rule applicable to him. The petitioner in his representation dated 7-3-1989 requested for relaxation of rule. The relevant portion of his application reads under 19-I:-- 1n my case a little relaxation is required in teaching experience i.e. 7 years instead of 8 years teaching experience to become eligible for promotion as Professor. The other question at the moment which needs to be decided is whether the petition is competent or it is a matter for determination by the Punjab Service Tribunal? The learned counsel for the respondents Nos. 2 and 3 has argued that it is the question of eligibility which is being canvassed and pleaded on behalf of the petitioner. On the other hand the learned counsel for the petitioner has maintained that since it is a question of suitability, therefore, the jurisdiction of the Tribunal is barred under proviso `b' to section 4 of the Punjab Service Tribunals. The learned counsel for respondents has referred to case of Insha Allah and Iqan Ahmad in this behalf. It seems that the petitioner did not foresee this legal objection, therefore, what was pleaded in the writ petition, was eligibility. However, at the hearing of arguments the learned counsel for the petitioner tried to wriggle out from this legal position. It is a case of eligibility for promotion and a question of suitability and fitness does not arise. The petitioner seems to be quite conscious of inherent weakness of his claim. It is for this reason that the emphasis was on the qualifications prescribed for appointment of Professor and not on the qualifications required for promotion as a Professor. The Hon'ble Supreme Court in the case of Iqan has held as under:-- "At to the ground concerning the non-maintainability of the petition, the High Court has held, and it is also the case of the petitioner, that the effect of the Rules is that it has altered the terms and conditions of service. This being so, the bar of Article 212 of the Constitution would be applicable with full force as in that exercise the question of vires of the Rules vis-a-vis section 25 of the Act would necessarily be considered. In this behalf the High Court has relied on the statement of law enunciated in Muhammad Hashim Khan and others v. Province of Baluchistan and others U and Fazal Elahi Ejaz and others v. Government of the Punjab and others with which I agree." "This is a common grievance in the other two petitions and they would also be hit by the same bar. We may here point out that a distinction has to be drawn between a case where the eligibility of an officer as to his fitness to hold a particular post or to be promoted to a higher grade under the Rules applicable to him and the Rules which by themselves alter the method of recruitment and promotion. In the former case, proviso (b) to section 4 of the Service Tribunals Act, 1973, will be applicable and no appeal will lie to the Service Tribunal. However, this will not be so in the latter case as the Rules per force alter the method of recruitment and promotion in super-session of the existing Rules which provide a cause of action for the grievance qua the alteration of terms and conditions of service and hence an appeal will lie to the Service Tribunal:" The petitioner has prayed for issuance of writ of mandamus. This also supports the arguments of the learned counsel for the respondents that only question of eligibility for promotion as Professor is involved. But it has been held by Hon'ble Supreme Court repeatedly that future promotion is not a vested right of a civil servant, therefore, he cannot challenge the vires of the rules effecting such future promotion. In this behalf reference can be made to the judgment of the Hon'ble Supreme Court in the case of. Dr. Sheikh Muzaffar lqbal and others. The relevant portion reads as under:-- 'The respondent was claiming a protection of the terms and conditions not of his service but that of the higher post. He could not have any vested right in respect of the terms and conditions of a post which was higher to the one which he was holding." It is therefore, clear that the present petition is not competent and misconceived. Now coming to the question of jurisdiction, I have held that the petitioner is trying to establish eligibility through this writ petition, therefore, this is not covered by ouster clause incorporated m proviso `b' to section 4 of the Punjab Service Tribunals Act. The only consequence is that petitioner can maintain an appeal before the Tribunal as in this writ petition or before the respondent No. 1 it is not fitness and the suitability, which is involved. It is for this reason that I have avoided to touch the merits as far as possible so it may not prejudice the case of either party before Tribunal or in any other forum. Now coming to the locus standi of the petitioner to maintain this petition, since petitioner cannot claim promotion as a matter of right, therefore, he cannot invoke the jurisdiction of this Court. The petitioner has failed to show that there is any violation of any law, rules or regulations. On the other hand he has clearly conceded that even under original rules he was not eligible. The result is that I do not find any merit in this writ petition. The same is dismissed in limine. AA./M-1489/L Petition dismissed.