RAHIM GUL Versus SECRETARY TO GOVERNMENT OF N.-W.F.P.

SHAFIUR RAHMAN, J.‑ ‑‑Leave to appeal was granted under Article 212(3) of the Constitution to examine whether the N.‑W.F.P. Service Tribunal by its judgment/Order dated 17‑6‑1978 correctly decided the question of seniority as between the appellant and respondent No.3 and whether at all such a service appeal was competent before the Service Tribunal in the matter of seniority and without exhausting the departmental remedies provided under section 22 of the N.‑W.F.P. Civil Servants Act, 1973.

2. The appellant started his service in the Health Department of the Government of N.‑W.F.P. The respondent No.3 started his service in the Khyber Medical College, Peshawar. According to the statement of facts not disputed, the appellant was appointed for the first time Assistant Professor in late 1969 while the aforesaid respondent joined as Assistant Professor in 1964. It is true that in the general Surgery, the appellant started as Assistant Professor in 1972, while the respondent No.3 in 1973. The grievance of respondent No.3 before the Service Tribunal was that the seniority list had to be maintained under the law grade‑wise and not speciality‑wise and this contention of the respondent No.3 prevailed with the Service Tribunal in view of the provisions of Khyber Medical College and Hayat Shaheed Teaching Hospital (Absorption of Employees) Rules, 1976 read with N.‑W.F.P. Khyber Medical College and Hayat Shaheed Teaching Hospital (Taking Over) Act, 1975. The objection of the appellant to the incompetence of the appeal fled by the respondent No.3 before the Service Tribunal on the ground that requirement of section 22 of the NWFP Civil Servants Act, 1973 was not satisfied was rejected by the Tribunal on the ground that no authority could be held to be above the Provincial Government. The Tribunal held as hereunder:‑‑

"It is not possible for us to lay down such a general rule, firstly because in the provincial sphere, the verdict of the Provincial Government on departmental side being final in service matters, no other authority in the province can be said to be above it for the purpose of clause (2) of section 22 of the North‑West Frontier Province Civil Servants Act, 1973, and secondly because the laying down of such a rule would render the words "whether original" used in section 4 of the North‑West Frontier Province Service Tribunals Act, 1974, infructuous, which words clearly suggest that in certain cases even an original order is appealable to Service Tribunals."

3. The third grievance of the parties related to the requirement of promotion for the post of Professor, General Surgery and the interpretation of rules on the subject whether the requirement of rive years' experience in General Surgery could include experience in Orthopaedics Surgery as such. The Tribunal held that the speciality being different, the opinion of the expert body, namely the Medical Council was correct that experience as Orthopaedics Surgeon could not be utilised as experience in General Surgery. On these grounds, the service appeal of the respondent No.3 was allowed. He was declared senior as Assistant Professor.

4. Mr. Muhammad Bilal, Advocate, the learned counsel for the appellant emphasised more the incompetence of the appeal filed before the Service Tribunal without exhausting the remedy provided under section 22 of the N.‑W.F.P. Civil Servants Act.

5. On an examination of the grounds given by the Service Tribunal, we find that both the grounds on this preliminary question are untenable. Under section 4 of the NWFP Civil Servants Act, 197.3, every civil servant holds the office during the pleasure of the Governor. Therefore, if the order is not passed by the Governor or in the name of the Governor, then that authority would not but be subordinate to the Governor and on that view of the matter a representation invoking the pleasure of the Governor under section 22 of the NWFP Civil Servants Act had to be availed of before rushing to the Service Tribunal. In the matter of service employment in the Government Departments, the Provincial s Government cannot be held to be at the apex but subordinate to Governor, at whose pleasure all the employments in the civil service of the Province take place.

6. As regards the original and the final order the Scheme of the N.‑W.F.P. Civil Servants Act shows that an original order will be subject‑matter of appeal before the Service Tribunal where an appeal or representation has been filed, the prescribed period has elapsed and no final Order has been passed disposing of the appeal or the representation. It would be, in the absence of an appellate order or an Order passed on the representation, the original order which would be brought before the Service Tribunal but that would be generally not possible without filing an appeal or representation provided under section 22 of the N.‑W.F.P. Civil Servants Act.

7. The respondent No.3 had not exhausted the remedies prescribed by law under section 22 of the Act and his appeal before the Service Tribunal in respect of seniority was incompetent and had to be dismissed as such.

8. As we had the occasion to hear the arguments on merits as well, and also otherwise consider it proper that the question involved be decided on merits, we have recorded findings on the questions raised in appeal. The matter of seniority could be the subject‑matter of service appeal before the Service Tribunal, provided the law on the subject was violated or not complied with. Such was the contention of the respondent. The NWFP Khyber Medical College and Hayat Shaheed Teaching Hospital (Taking‑over) Act, 1975 and the Khyber Medical College and Hayat Shaheed Teaching Hospital (Absorption of Employees) Rules, 1976, envisage grade‑wise seniority and not speciality‑wise seniority. The Service p Tribunal has given the date of appointment of the appellant as Assistant , Professor as 25‑I I‑1969 while that of the respondent No.3, as contained in the judgment of the Service Tribunal in para. 10, 20‑12‑1964. The learned counsel for the appellant is not in a position to contest or dispute this date. In view of these dates, the induction of the respondent No.3 as Assistant Professor was years ahead of the appellant and in that grade the respondent No.3 would be senior to the appellant.

9. Where the rules provided that experience in a particular speciality will be of avail to the candidates seeking promotion, the experience gained in other alike specialities cannot as a matter of right be utilised to count towards experience in that particular speciality. Where the experience required was in General Surgery, as in this case, the experience in, Orthopaedics Surgery, though may be alike and similar, cannot he as a matter of right, utilised as experience in General Surgery. E We find that on merits, the judgment/order of the Service Tribunal is correct, though with regard to the competency of the appeal it cannot be sustained.

A.A./R‑171/S Order accordingly,