Professor Dr. NIZAKAT BEGUM, AYUB MEDICAL COLLEGE, ABBOTTABAD vs GOVERNMENT OF N.-W.F.P. through Secretary Health and 2 others

' HAMID ALI MIRZA, J.---This petition for leave to appeal is directed against the order dated 27-10- 2003 passed by learned -W.F.P. Service Tribunal, Peshawar in Service Appeal No,651 of 2002, whereby the said appeal was dismissed on the ground that the petitioner being employee of Autonomous Body was not civil servant, therefore, the appeal was incompetent before the said Tribunal.

2. We have heard learned counsel for the parties and perused the record.

3. Learned counsel for the petitioner submits that the petitioner has been proceeded against under N.-W.F.P. Removal From Service (Special Powers) Ordinance 2000 whereunder "person' has been defined under subsection (d) of section 2 as under:-- "person in corporation service" means every person in the employment of a corporation, corporate body, authority, statutory body or other organization or institution set up, established, owned, managed or controlled by Government, by or under any law for the time being in force or a body or organization in which Government has a controlling share or interest and includes the Chairman and the Managing Director, and the holder of any other office therein; ' Whereas section 9 of the said Ordinance reads as under:-- "(1) A person, who has been dismissed or removed or compulsorily retired from service or reduced to a lower post or pay scale or against whom any order has been made under section 3 by the competent Authority, may, within fifteen days from the date of communication of the order, prefer a representation to the Governor or such officer or authority as the Governor may designate: ' Provided that, where the order has been made by the Governor, such person may, within the aforesaid period, submit a review petition to the Governor.

(2) The Governor or an officer or authority, as may be designated for the purpose by the Governor, may, on consideration of the review petition or representation and petition or representation any other relevant material, confirm, set aside, vary or modify the ,order in respect of which such review petition or representation is made, within sixty days thereof.

' Section 10 of the same Ordinance reads as under--- "Notwithstanding anything contained in any :other law for the time being in force, any, person aggrieved by any final order under section.9 may within thirty days of the order, prefer an appeal to the Service Tribunals established under the North-West Frontier Province Service Tribunals Act, 1974 (N.-W.F.P. Act No,1 of 1974)"

' Section 5 of North-West Frontier Province Corporation Employees (Special Powers) Ordinance, .1978 reads as under:-- "Service of Corporation to be service of Pakistan.--Service of a corporation is hereby declared to be service of Pakistan and every person in corporation service who is removed from service, or reverted to a lower post or grade under this Ordinance, not being .a person who is on .Deputation to a corporation from any other Province or the Federation shall be deemed to be a civil servant for the purposes of the North-West Frontier Province Service Tribunals Act, 1974 (N.-W.F.P. Act I of 1974)."

4. Vide Notification No,SOII-II/3-1599 dated 10th March, 2000, issued by Secretary to Government of N.-W.F.P., Health Department in its extraordinary Gazette in exercise of powers conferred by subsection (2) of section 1 of the North-West Frontier Province Medical and Health Institutions Reforms Act, 1999; Government of N.-W:F.P. Directed that the said Act shall apply to .Following Medical Institutions with immediate effect:-

(1) Khyber Medical College, Khyber Teaching Hospital and. Khyber College of Dentistry, Peshawar.

(2) Ayub Medical College and Ayub Teaching Hospital, Abbottabad.

(3) Government Lady Reading Hospital and attached Clinical Departments of the Post-graduate Medical Institute, Peshawar.

(4) Hayatabad Medical . Complex, Peshawar and Post-graduate Medical Institute, Peshawar and its constitute Clinical Department and attached Clinical Departments.

5 By virtue of section' 3 of N.-W.F.P Medical and Health Institutions Reforms Act, 1999 Ayub Medical College and Ayub Teaching Hospital Abbottabad have been declared to be autonomous Bodies and vide subsection (2) of 'section 5 of the saint: Act the Administration and management of the:affairs of a health institution have been declared to be subject to the general supervision and control of -Government and shall vest in the body or authority in the Government and vide subsection (2) of section 10 employees serving in the affairs of such institutions shall continue to serve'the institution on the terms and conditions as applicable to them immediately before and vide section 15 of the same Act all persons acting or purporting to act in pursuance of any provisions of the said Act shall be deemed to be public servant and vide section,19 Ayub Medical College (Board of Governors) Ordinance, 1978 was repealed.

6. From the perusal of provisions of law cited above and notification, it would indicate that the petitioner being a "person" within the meaning of N.-W.F.P. Removal. From 'Service. (Special Powers)

Ordinance, .'2000 will have a remedy vide section 10 of the same Ordinance before the Service Tribunal of the Province being civil servant therefore, it could not be said that the appeal filed by the petitioner was incompetent. In the circumstances the finding of the learned Service Tribunal N.- W.F.P. Cannot be sustained in law and the same is reversed.

7. Consequently the petition, is converted into appeal and allowed. 'Thereby the case of the petitioner is remanded to the N.-W.F.P. Service Tribunal for decision afresh on merits in accordance with law.