2011 PLP (C (PLC(CS))

ABDUL SAMAD KHAN, J.

The dispute in instant constitutional petition emanates from Notification dated 18-11-2002 issued by respondent No 2, Principal Ayub Medical College Abbottabad, qua promotion of respondent No 1 Dr. Muhammad Hussain Khan as Professor of Biochemistry which is reproduced hereinbelow:

"Consequent upon the recommendation of Selection/Promotion Board Ayub Medical College and Ayub Teaching Hospital Abbottabad, in its meeting held on 12-11-2002, the competent authority is pleased to approve the promotion of Dr. Muhammad Hussain Khan Assistant Professor Biochemistry (BPS-19) to the post of Professor of Biochemistry (BPS-20) with immediate effect on usual terms and conditions."

2. The relevant facts in small compass in the background, are that appointment/promotion of petitioner Mst. Naureen Sultan who was serving as Assistant Professor Biochemistry (BPS-18) was approved to the post of Associate Professor Biochemistry (BPS-19) on acting charge basis with effect from 17-9-2001 vide Notification dated 18-10-2001 in terms of Rule 9 of sub-Rules (1 and 2) of N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1989 whereas her promotion as such was approved on regular basis w.e.f. 11-12-2001 i.e., the date of completion of requisite length of service, as per notification dated 4-7-2002. Respondent No 1 was appointed as Assistant Professor Biochemistry on 27-5-1984 and was promoted to the post of Associate Professor on 6-4-1994. As is evident from record, petitioner is having qualifications of M.B.,B.S. and M. Phil Biochemistry whereas respondent No.1 possesses qualifications of M.Sc. and Ph.D. in Biochemistry.

3. The promotion order dated 18-11-2002 as Professor has been assailed by the petitioner allegedly on the ground that neither he was M.B.,B.S. nor was in possession of equivalent medical qualifications hence was ineligible thereby making reference to his earlier writ petition for redressal of grievances respecting promotion to the said post, which occurred in the year 1998, culminating into dismissal on 25-1-2001 whereagainst august Supreme Court of Pakistan was approached but interference therewith was declined on the basis of judgment dated 3-10-2002. It is thus urged that once having been declared ineligible, respondent No 1 could not be promoted as Professor on the basis of same qualifications and petitioner being the only medical graduate with requisite experience ought to have been considered in his stead.

4. We have heard the arguments of learned counsel for the parties and have gone through the case file with their valuable assistance.

5. At the outset learned counsel for respondent No.1 raised preliminary objections qua maintainability of writ petition on the grounds of laches, petitioner having no locus standi to file instant petition and that she is not an aggrieved person within contemplation of Article 199 of Constitution of Pakistan, 1973.

6. There is no denial of the fact that notification in respect of promotion of respondent No.1 was issued on 18-11-2002 whereas instant petition was filed on 19-8-2009 i.e. after inordinate delay of 6 years and 8 months. We, would thus take up the first question pertaining to laches. Laches in simplest form mean failure of a person to do something which should have been done by him within reasonable time and is not synonymous with delay alone but it can be worked out to the disadvantage of another person in the matter of his right. No doubt there exists marked distinction in between delay in filing legal proceedings within the period specified in Limitation Act or any other law and delay in filing constitutional petition for which no statutory period is provided in that for the purpose of limitation, delay of each and every day is to be explained by showing sufficient cause for condonation thereof. Likewise, remedy in constitutional jurisdiction of the High Court cannot be availed of if it is not sought within reasonable time. While exercising jurisdiction under Article 199, the High Court grants relief on equitable principles subject to the condition that person invoking its jurisdiction is vigilant and not negligent and/or indolent or plausible explanation in respect of delay is forthcoming on record. Even otherwise, the concept of laches in service matters is different from ordinary litigation as principles of laches are strictly adhered to when a public servant or employee seeks restoration to his office or prays for redressal of other grievances against wrongful orders. In the instant case, though it is pleaded that petitioner has been agitating the matter before departmental authorities with due diligence but it would not suffice to absolve her of the penal consequences of laches as there is considerable delay in filing petition in the High Court.

7. Adverting to the question whether petitioner has got locus standi to challenge validity of promotion order of respondent No.1, appropriate it would be to refer to Regulations for Appointment of Teachers and Examiners in Under Graduate and Post-Graduate Medical and Dental Institutions of Pakistan (as amended upto 1-1-2002), framed by Pakistan Medical and Dental Council wherein basic qualifications and experience etc. have been provided for promotion of Professors and others. It appears therefrom that qualifications for the post of Professors are M.B.,B.S. or equivalent medical qualifications recognized/registered by PM and DC whereas experience in respect thereto is 3 years teaching experience as an Associate Professor in the respective subjects provided that the total experience of Assistant Professor and Associate Professor shall not be less than eight years. It is further provided in Explanatory I Note No.40 of PM and DC Regulations, 2002 that Non-Medical Graduates with Ph.D. and M.Sc. will only be considered when medical graduates are not available and verification is made by PM and DC and experience certificate is issued by it. Admittedly, respondent No.1 was promoted as Associate Professor on 6-4-1994 whereas petitioner was promoted as such on 11-12-2001 hence at the time of promotion of respondent No 1 as Professor, she was having experience of 11 months as Associate Professor, therefore, being short of requisite experience, she had no right whatsoever muchless a legal right to be considered. Viewing the matter from all angles, petitioner has got no locus standi to challenge promotion order of respondent No 1 in that she herself was ineligible to compete. Furthermore, a certificate regarding eligibility of respondent No.1 for promotion was also issued by PM and DC on 28-5-2002 coupled with the fact that failure on his part to get himself promoted in view of earlier litigation would not create any sort of hurdle in his way when provision pertaining to qualifications for promotion stood amended thereby deeming him eligible therefor.

8. Apparently, petitioner is not at all aggrieved person within the meaning of Article 199 of Constitution in that she had no right muchless a legal right to be promoted and as per settled law, before invokation of Jurisdiction of the High Court, petitioner is bound to show clear legal right not susceptible to doubt or controversy and infringement thereto OR for that matter if he/she has been wrongfully deprived of or refused something to which he/she was legally entitled. In the instant case, no right could be established by the petitioner hence no question of violation thereof arises, as such, she does not fall within purview of the words "aggrieved person" and is therefore, precluded to legitimately maintain the instant petition.

9. Apart from what has been stated hereinabove, she has already been promoted as Professor vide Notification dated 9-5-2006 and is serving as such. For the aforesaid reasons, instant writ petition is incompetent and un-maintainable besides being misconceived hence is dismissed with no order as to costs. H.B.T./212/P Petition dismissed.