ABEEDULLAH JAN (MEMBER).-The case under consideration is the combined appeal of Dr. Muhammad Ali Khan and Dr. Mukarram Shah under section 4 of the N.-W.F.P. Service Tribunals Act, 1974. The appeal is directed against the Government's Notification dated 19th July, 1980, whereby the condition of three years teaching experience was relaxed in favour of Dr. Zair Muhammad and Dr. Umar Ali, respondents Nos. 4 and 5, respectively, and the said respondents were promoted as Associate Professors alongwith the appellants with effect from 19-7-1980. The appellants have questioned the 'competency of respondent No. 3 i.e. Governor of N.-W.F.P. To relax rules framed by Pakistan Medical and Dental Council and have claimed that the said relaxation in favour of respondents Nos. 4 and 5 has affected the appellants' seniority in the cadre of Associate Professors. .
2. The facts leading to the present appeal are that the appellants and respondents Nos. 4 and 5 were serving as Assistant Professors. A few posts of Associate Professors in Khyber Medical College, Peshawar, fell vacant which were filled through promotion. One of the requisite qualifications for promotion to the post of Associate Professor in the rules, as laid down by the Medical and Dental Council of Pakistan, is three years teaching experience as Assistant Professor in the relevant subject. The appellants possessed this qualification but the respondents Nos. 4 and 5. Were lacking three years teaching experience. The condition of teaching experience was relaxed by the respondent Nos. 3 i.e. Governor, N.-W.F.P, in favour of respondents Nos. 4 and 5 and they were promoted as Associate Professors alongwith the appellants vide Notification dated 19-7-1980. The appellants felt aggrieved and preferred the present appeal contending that the respondent No. 3 i.e. Governor. N.-W.F.P., was not competent to relax the condition of three years teaching experience in favour of respondents Nos. 4 and 5.
3. On the basis of the arguments heard and file perused, we find that issues before us for consideration are (i) whether appellants could be promoted in preference to the respondents Nos.
4 and 5 (who were senior in the cadre of Assistant Professor) on the ground that the appellants had three years teaching experience whereas the respondents Nos. 4 and 5 did not fulfil this condition, (ii) whether the respondent No. 3 i.e. Governor, N.-W,F.P., was competent to relax the condition of three years teaching experience in favour of respondents Nos. 4 and 5 for promotion to the post of Associate Professor, and (i.e) whether the said relaxation has given any cause of action to the appellants.
4. Before the arguments of the counsel for the appellants were heard, it was observed by the Tribunal that:
(i) No appeal or representation was made by the appellants to the departmental authorities before preferring the present appeal in the Service Tribunal.
(ii) The grounds of appeal that "the appellants were to be promoted in 1978/79 but it was not done so" and "the aforesaid relaxation has rendered the appellants junior to respondents Nos. 4 and 5", the first part is in conflict with the provision contained in section 4 (b) (1) of the N.-W.F.P. Service Tribunals Act, 1974, which excludes the jurisdiction of the Tribunal in cases seeking or involving promotion and the second part is loose and vague.
5. The counsel for the appellants, while discussiug the aforementioned observations of the Tribunal, argued that the appellant's seniority was affected by the relaxation of teaching experience in favour of respon--dents Nos. 4 and 5, who should not have been promoted by the respondent No. 3 before completing three years teaching experience. The counsel claimed that if appellants had been promoted prior to the illegal promo--tion of respondents Nos. 4 and 5, the appellants would have stood senior to the respondents Nos. 4 and 5 because a person promoted earlier is senior to a person promoted subsequently.
6. As regards the maturity, the counsel argued that the impugned order was passed by the Governor, N.-W.F.P., therefore, no further appeal or review was possible under the rules. The Governor being the final authority, no higher authority than him could be approached under section 4 (a) of the N.-W.F.P. Service Tribunals Act, 1974 read with section 22 6f the Civil Servants Act, 1973.
7. The counsel for respondents Nos. 1 to 4 raised objections that (i) the appellants have no lacus standi nor have they- any cause of action. (ii) The appeal is time barred. (i.e) The Tribunal has no jurisdiction as the matter pertains to the determination of fitness of a civil servant for promotion to a higher post or grade and (iv) the appeal as framed is incompetent.
8. While arguing the case, the counsel: for respondent No. 4 observed that (i) respondents Nos. 4 and 5 were placed above the appellants in order of merit drawn by the Public Service Commission at the time of selection and by the competent authority at the time of initial recruitment. (ii) The terms and conditions of service of the appellants and respondents Nos. 4 and 5 are governed by the N.-W.F.P. Civil Servants Act, 1973. Section 23 of the said Act empowers the Governor, N.-W.F.P., to deal with the case of any civil servant in such manners as may appear to him to be just and equitable. (i.e) `Being eligible for promotion' is different from `being found fit for promotion. The appellants being junior to the respondents Nos. 4 and 5 were not eligible to be considered for promotion in preference to the respondents Nos. 4 and 5. (iv) Promotion cannot be claimed as of right and that too by superseding those who are senior (vi) The appellants are wrong in assuming that they can claim promotion at a time of their own choice.
9. The counsel for respondent No. 4 also referred to Government Notification dated 24th April, 1978 and stated that this Notification inter alia lays down the qualifications for promotion to the post of Associate Professor. These qualifications are `Post-Graduate Degree in the relevant field with 5 years experience after post graduation or 3 years experience as Assistant Professor.' The counsel claimed that the respondent No. 4 had possessed 5 years post graduate experience, he was, therefore, qualified for promotion and that he was rightly promoted with effect from 19th July, 1980.
10. The Additional Government Pleader, on behalf of respondent No. 1, mentioned in the written reply that respondents Nos. 4 and 5 were senior to the appellants on the basis of the merit assigned by the Public Service Commission. The seniority of respondents No. 4 and 5 was challeng--ed in the Peshawar High Court by the appellants but the Court declared the respondents Nos. 4 and 5 as senior and the appellant's writ petition was dis--missed. The competent authority, thereafter, on the recommendation of Provincial Selection Board and in accordance with the legal advice of Law Department, granted relaxation in the teaching experience and, therefore, respondents Nos. 4 and 5 were promoted to the post of Associate Professor alongwith the appellants. It was, therefore, contended in the written reply that respondents Nos. 4 and 5 were promoted according to the rules, which lay down, that promotion to the post of Associate Professor will be made according to the seniority-cum-fitness. The respondents Nos. 4 and 5 being senior to appellants were promoted in relaxation of the teaching ex--perience. The Governor, N.-W.F.P, was fully competent to relax any condi--tion in the service rules and that being so, the Notification appealed against, is correct and legal and is not assailable on the grounds given in the appeal.
11. The counsel for the appellants controverted the stand of the counsel for the respondents and stated that seniority of the appellants vis-avis respondents Nos. 4 and 5, in the lower grade (Assistant Professor), is still undecided and the dispute is pending before the Supreme Court of Pakistan. The counsel for the appellants also referred to para. 2, of the Government's Notification dated 19th July, 1980 and argued that if 5 years teaching ex--perience was required for promotion to the post of Associate Professor, as contended by the counsel for the respondent No. 4, the need for incorporat--ing para. 2, reproduced below, in the said Notification would not have arisen: "The Governor, N.-W.F.P. Is further pleased to relax condition of teach--ing experience in favour of Dr. Umar Ali at serial No. 1 and Dr. Zahir Muhammad serial No. 3."
12. The counsel further went on to observe that respondent No. 3 i.e. Governor N.-W.F.P. Was conscious of the rules framed by the Pakistan Medical and Dental Council for the Associate Professors but since those rules were framed under section 33, subsection (2) (d) of the Pakistan Medical and Dental Council Ordinance, 19&2 under Central Legislation, the Governor, N.-W. F.P, was not competent to make any change or departure from the said rules without obtaining prior concurrence from the Federal Government. If respondent No. 3, had not relaxed the rules, the appellants would have been promoted with effect from 19th July, 1980, whereas respondents Nos. 4 and 5, being not qualified, would have been left out and thus the appellants would have become senior to respondents Nos. 4 and 5.
13. After having heard the detailed arguments of the learned counsel for the parties, I now proceed to examine the issues raised in paragraph No. 3.
It has not been denied that respondents Nos. 4 and 5 are senior to appellants in the cadre of Assistant Professor. The counsel for the appellants, however mentioned that seniority among appellants and respondents Nos. 4 and 5 is disputed and an appeal in this behalf is pending in the Supreme Court of Pakistan. The fact is that respondents Nos. 4 and 5 were assigned higher position in the merit list by the Public Service Commission. They have also been shown senior to appellants in the seniority list maintained by the Administrative Department. Unless this position is changed by the Supreme Court of Pakistan, the respondents Nos. 4 and 5 would be considered senior to appellants in the cadre of Assistant Profassor. That being so, two options were available (i) to allow the post to remain vacant till the senior (respondents Nos. 4 and 5) had fulfilled the requisite qualification of three years teaching experience (ii) to relax the condition of teaching experience in favour of respondents Nos. 4 and 5 so as to maintain inter se seniority for justice, equity and good service order. The Government exercised its option in favour of choice Nos. (ii). The Governor, N.- W.F.P., therefore, relaxed the rule in favour of respondents Nos. 4 and 5 of which he was fully competent under N.-W.F.P. Civil Servants Act, 1973.
14. I am of the firm view that there is no substance in the contention of the learned counsel for the appellants, that the Governor, N.-W.F.P., is not competent to relax rules framed by the Pakistan Medical and Dental Council. There is no doubt that the rules providing for teaching experience have been framed by the Pakistan Medical and Dental Council under the Pakistan Medical and Dental Council Ordinance, 1962, but that does not mean that the power to relax any of the rules cannot be exercised without the prior concurrence of the Federal Government. The appellants and respondents Nos. 4 and 5 are the civil servants of the North-West Frontier Province and their terms and conditions of service are regulated by the N.-W.F.P. Civil Servants Act, 1973. Under section 23 of the said Act, the Governor, N.-W.F.P., is fully competent to deal with the case of any civil servant in such manner as may appear to him to be just and equitable. In spite of the fact that teaching experience is, prescribed by the Medical acid Dental Council of Pakistan, the Governor is vested with powers to relax any of the rules and I have not been referred to any law or rules that for such relaxation, prior concurrence of the Federal Government is a condition precedent. In such a state of affairs, I cannot subscribe to the view expresst6d by the learned counsel for the appellants.
15. The net result of the above discussion is that the appellants could not be promoted in preference to the respondents Nos. 4 and 5 who were senior, the Governor, N.-W.F.P, is competent to relax rules applicable to civil servants employed in the affairs of North-West Frontiers Province and the said relaxation has given no cause of action to the appellants. The appeal fails and is, therefore, dismissed. Since difficult question of law and interpretation was involved, the parties are left to bear their own costs.
IZZAT BAKHSH AWAN (MEMBER).-The appellants Dr. Muhammad Ali and Dr. Mukarram Shah, both Associate Professors at Khyber Medical College, Peshawar, have approached this Tribunal with an appeal against Notification No. SO (H)/IV-5-34/78 dated 19-7-1978 issued by Government of N.- W.F.P. Through its Secretary, Health Department who has been arraigned as respondent Nos.
1. The appellants are aggrieved of the relax--ation in the conditions of teaching experience granted to Dr. Zahir Muhammad, Associate Professor Medicines and Dr. Omer Ali, Associate Professor Surgery, Khyber Medical College, Peshawar, respondents Nos. 4 and 5 respectively, by the Governor, N.- W.F.P. Vide the aforesaid Notifi--cation. Their contention is that the said respondents did not qualify to be promoted to the post of Associate Professors (Grade 19) in the said College as according to the rules framed by Pakistan Medical and Dental Council, a copy of which was placed on the record, they before their appointment as Associate Professors, must have three years' teaching experience as Assistant Professor in the relevant subject apart from other qualifications. The respondents filed their written statements and the case come up for argument before us. The learned counsel for the respondents argued that as Governor, N.-W.F.P. Is the appointing authority, therefore, he has powers to relax conditions prescribed for appointment of Associate Professors.
However, he has not been able to point out any rules which would positively confer such powers on the Governor to do so. The learned counsel for respondents also argued that the appeal being in the nature of a challange to the promotion of respondents Nos. 4 and 5 was not competent as the issue of promotion could not be agitated before the Tribunal under the law.
2. The learned counsel for the appellants, however, took us through the rules framed by the Medical and Dental Council of Pakistan, extract of which was placed with the appeal as Annexure I.
Qualifications and experience prescribed for the post of Associate Professor, according to the said rules, are as follows :-
(i) Basic qualifications M. B., B. S. Or equivalent medical qualifica--tions recognized by the Council.
(ii) Post graduate qualifications M. D. (Pak.), Ph. D., F.C.P.S. Or other equivalent qualification recognized by the Council.
(i.e) Three years' teaching experience as an Assistant Professor in the relevant subject is essential.
3. According to the appellants, they possessed the aforesaid qualifi--cations to be promoted as Associate Professors in the years 1978-79 but at that time respondent No. 4 lacked and was lacking experience of three years teaching' as an Assistant Professor at the time of appointment. The grievance of the appellant is that interested quarters kept pending orders of promotion of the appellants in order to favour respondents Nos. 4 and 5 for a long time but they got impatient and obtained qualification of three years experience relaxed from the Governor of the Province and promoted them. The consequence of such a promotion was that they were placed senior in position to that of the appellants. The learned counsel for the appellants argued that this Tribunal is competent to declare the aforesaid relaxation as to be without lawful authority. The learned coun--sel further argued that no Provincial rules, if any, could be made in contra--vention of the aforesaid rules framed by the Medical and Dental Council of Pakistan and that the Governor of the Province was not competent to relax the said rules, the object of which is to maintain a uniform standard throughout the country and be in line with the universally accepted standards of the medical profession.
4. There appears to be force in the argument of the learned counsel for the appellants. This appeal is mainly directed against the order of the relaxation in the condition of teaching experience for the post of Associate Professor which was passed vide the impugned Notification, therefore, this Tribunal is competent to see whether such an order has been passed within the competence or jurisdiction of the Governor. The perusal of the rules framed by the Medical and Dental Council reveals that the said rules were made as a Regulation for the appointment of Assistant Profes-- sors, Associate Professors and Professors in Medical and Dental Institu--tions of Pakistan. The Medical Council Ordinance of 1962 under its section 33 has given powers to the Council to make regulations with regards to the matters cited therein. In sub clause (d) of clause-I of section 33 of the said Ordinance, the Council has been empowered to prescribe minimum qualifications and experience required of teachers for appointment in Medical and Dental Institutions. As such the rules quoted above are statutory in their nature and are binding on all the Medical and Dental Institutions of Pakistan. The Medical and Dental Council of Pakistan is established to prescribe uniform standard of both teaching and education throughout Pakistan. The rest of the medical world looks at Pakistan medical profession in the light of these standards. If arbitrary relaxations are made in these, then the prestige of the medical profession of Pakistan will suffer badly in the outside world. Another danger may be that if the teaching start' doer not possess the qualifications prescribed by the Pakistan Medical and Dental Council, the Council may withdraw the recognition of the Khyber Medical College itself and its degrees may become just pieces of waste paper, because after all, it is the recogni--tion of the degree and not its award which really counts in the world. Needless to add that foreign countries may not even allow admission for purposes of post graduate qualifications. It is, therefore imperative for all such institutions to follow the said rules. It is for this reason that the Government of N.-W. F. P. Was obliged to relax the said rules in the instant case. The contention of the learned counsel for the appellant that the Government of N.-W.F.P. Has no authority to do so is valid. Neither the aforesaid Ordinance nor rules made thereunder have authorised the Provincial Government to relax any of the rules or regulations made by the Medical and Dental Council of Pakistan. Any rules framed by the Provin--cial Government to the contrary are also ultra vices of the said Ordinance. The appeal is, therefore, accepted and is held that respondent No. 3 had no authority to relax the rules framed by the Medical and Dental Council of Pakistan. Consequently the impugned Notification to the extent of appointing respondents Nos. 4 and 5 by relaxing their teaching experience as prescribed by Medical and Dental Council of Pakistan also is without jurisdiction. No orders as to costs.
FAQIR MUHAMMAD KHAN (MEMBER).-Under consideration is a combined appeal of Dr. Muhammad Ali Khan and Dr. Mukarram Shah, Associate Professors of Khyber Medical College, Peshawar against Notifica--tion No. S O (H)/1V-5-34/78 dated 19-7-1980 under which the condition of three years teaching experience as Assistant Professor was relaxed in favour of Dr. Zair Muhammad and Dr. Umar Ali respondents Nos. 4 and 5 respectively, and they were promoted as Associate Professors alorigwith the appellants with effect from 19-7-1980. The appellants have questioned the competency of the Governor N.-W.F.P. Respondent No. 3 to relax rules framed by Pakistan Medical and Dental Council and have claimed that the said relaxation in favour of respondents Nos. 4 and 5 has affected the appellants' seniority in the cadre of Associate Professors. The appeal was entrusted to a bench comprising Abeedullah Jan, Member and Izzat Bakhsh Awan, Member who went through the record and heard arguments: For reason of difference of opinion between the two learned Members, the appeal was referred to me by the Chairman for decision, according to law.
2. The appellants have pleaded that they possessed the qualifications prescribed by the Pakistan Medical and Dental Council for promotion as Associate Professors in 1978-79, but respondent No. 4 then lacked and was lacking the teaching experience of three years as Assistant Professor at the time of his promotion as Associate Professor. According to the appellants, certain interested quarters in the Health Department kept pending the case of their promotion in order to favour respondents Nos 4 and 5, but they did not wait for the said respondent's completion of three years teaching experience as Assistant Professors and obtained relaxation of this qualifica--tion from respondent No. 3 and issued the impugned notification dated 19-7-1980. The appellants have contended that, in consequence of the relaxation in the condition of teaching experience granted through the impugned notification dated 19-7-1980 in favour of respondents Nos. 4 and 5, the appellants were placed junior to the said respondents in. The cadre of Associate Professors. Thus, the appeal is mainly directed against the aforesaid relaxation which the learned counsel for the appellants has argued to be without lawful authority as, according to him, the Governor, N.-W.F.P was not competent to have relaxed the qualifications prescribed by the Medical and Dental Council under the Pakistan Medical and Dental Council Ordinance, 1962 and, therefore, the appellants should have been promoted as Associate Professors in preference to respondents Nos.
4 and 5 by virtue of which the appellants would have become senior to the said respondents.
3. The counsel for respondent No. 4 has argued that seniority in the cadre of Assistant Professors was fixed by the Pubic Service Commission on the bass of merit, and respondents Nos. 4 and 5 were placed senior to the appellants The inter se seniority as fixed by the Public Service Commission was upheld by the Peshawar High Court and is still valid unless it is disturbed under the older of the Supreme Court of Pakistan where an appeal is pending to this behalf. It, therefore, follows that if respondents Nos. 4 and 5 were not lacking in the teaching experience of three years as Assistant Professors at the time of ordering their promotion as Associate Professors, the inter se seniority would still have remained intact.
4 The counsel for respondent No. 4 has also rightly argued that the appellants and respondents Nos. 4 and 5 are the civil servants of the Government of North-West Frontier Province and their terms and condi--tions of service are regulated by the N.-W.F.P. Civil Servants Act, 1973. Section 23 of the said Act empowers the Governor, N.-W.F.P. To deal with the case of any civil servant in such manner as may appear to him to be just and equitable. No doubt, the qualifications and experience of teachers required for Medical and Dental Institutions are prescribed by the Medical and Dental Council of Pakistan for the purpose of maintaining uniform standards of teaching and education within the country, but the terms and conditions of the civil servants in N.-W.F.P. Are regulated according to the provisions of N.-W. F. P. Civil Servants Act, 1973. The existing Pakistan Medical and Dental Council Ordinance, 1962 does not say that the qualifications and experience required of teachers for appointment in Medical and Dental Institutions of Pakistan prescribed therein will be man--datory and binding on the Provincial Governments and that the Provincial Governments, who' themselves frame law for regulating the terms and conditions of their civil servants, will not be empowered to make relaxation therein. Thus, the Governor, N.-W. F. P. Who is fully competent to regu4 late the terms and conditions of service of the civil servants in N.-W. F. P.
Can make relaxation in this behalf, where he so considers appropriate. In the instant case, there was a hardship in that respondents Nos. 4 and 5 were senior to the appellants but they lacked the experience of teaching as Assistant Professors required for promotion as Associate Professors. This hardship was removed by granting relaxation in the condition of three year teaching experience as Assistant Professors in favour of respondents Nos.4 and 5. The said respondents had already completed about two years as Assistant Professors and the relaxation in effect was made for about one year and not three years of teaching as Assistant Professors. Also, the said respondents do possess the requisite academic' qualifications for the post of Associate Professor. Therefore, there should be no danger of withdrawal of 'recognition by the Pakistan Medical and Dental Council. In any case, this should not limit the authority of the Governor, N.-W. F. P. Vested in him under the N. W. F. P. Civil Servants Act, 1973. Furthermore, I am of the view that this relaxation has not harmed the interest of the appellants because they have also been promoted and the inter se seniority of the res--pondents and the appellants as inherited from the cadre of Assistant Professors has remained unaltered.
5. I, therefore, dismiss the appeal leaving the parties to bear their own costs.