MUHAMMAD BASHIR KHAN JEHANGIRI, J.---DR. Shah Wali Khan, petitioner, (in C.P. No.393-P/1996) and Dr. S. Amjad Hussain, petitioner (in C. P. No.416-P/1996), seek leave to appeal against the judgment of the learned N.-W.F.P. Service Tribunal, dated 2-10-1996, whereby their appeals against the promotion of Dr. Shahabuddin respondent No.2 as Assistant Professor (Orthopaedics), PGMI/LRH, Peshawar, were ,dismissed. Both the petitions arising out of the same judgment of the N.- W.F.P. Service Tribunal, are being disposed of together.
2. Dr. Shah Wali Khan, petitioner, started his service in the Health Department of the Government of N.-W.F.P., as Medical Officer (BS-17). Subsequently, he was promoted as Senior Registrar on 18-12- 1986. A post of Assistant Professor (Orthopaedics) in promotion quota fell vacant in 1993, for which the petitioner possessed the requisite qualification. It was, however, contested by Dr. Shahabuddin who was Senior Registrar, Boltan Block, since 14-1-1984 whereas the petitioner claimed to have been working as Senior Registrar (Orthopaedics). It appears that the Health, Department was inclined to support the petitioner for his appointment as Assistant Professor (Orthopaedics) whereupon Dr. Shahabuddin respondent No.3 filed Writ Petition No.2084 of 1991 in the Peshawar High Court and sought declaration that being Senior Registrar (Orthopaedics) he was entitled to be considered for promotion to the post of Assistant Professor Orthopaedics. A learned Division Bench of the High Court seized of the matter accepted the writ petition on 16-3-1993. The operative part of the judgment of the High Court reads as under:-- "The learned counsel for the petitioner has stated at the Bar that the eligibility of the petitioner does not stand in the way of Dr. Shah Wali respondent No.3 and in the light of the statement of the learned counsel for the petitioner at the Bar let the case of Dr. Shah Wali respondent No. 3 be declared for promotion."
The High Court further declared as under:-- "However, by accepting this writ petition, we declare that non --consideration of the petitioner by respondent' No. l to be eligible and for placing his name before the P.S.B. Is without lawful authority and of no legal effect and respondent No. l is directed to place the name of the The learned Service Tribunal deduced the ratio from the judgment of the High Court to hold that "the case of the petitioner's promotion pending before the P.S.B., shall be cleared for promotion and also of respondent No.2 be also placed before the P.S.B. For appointment/selection as Assistant Professor Orthopaedic." The Government of N.-W.F.P. As respondent No.1 challenged the decision of the High Court in Civil Petition No.202-P of 1993 before this Court wherein the leave was granted.
Nonetheless, the said Appeal (No.327 of 1994) was later on withdrawn. Respondent No. l after withdrawal of the appeal on 22-5-1995 prepared another working paper for promotion and placed respondent No. 2 at Serial No. l and the petitioner at Serial No. 3 of the merit list and recommended them to the P.S.B. For promotion. It appears that by notification dated 25-6-1995 respondent No.2 was promoted. Feeling aggrieved the petitioner and to others filed separate appeals before the Service Tribunal which, as stated earlier, were dismissed.
3. Mr. Jehanzeb Rahim, learned counsel for the petitioner, contended that respondent No. l as also the Service Tribunal had wrongly deduced the ratio from the judgment of the High Court in Writ Petition No.2084 of 1991 and thereby extended undue advantage to respondent No.2 and had illegally promoted him. In this context, the learned counsel for the petitioner maintained that the petitioners have been appointed as Senior Registrar (Orthopaedics) much earlier than the respondent who was holding the post of Senior Registrar, Boltan Block,, and thus did not possess all the requisite qualifications for the post of Assistant Professor (Orthopaedics) and could not have been promoted thereto while ignoring the petitioner for the promotion to the post.
4. On the contrary Mr. Muhammad Jamil Khan, learned counsel for the respondents, placed reliance on the joint seniority list of the Senior Registrars in the Health Department wherein Dr. Shahabuddin is shown to have been appointed as Senior Registrar, Boltan Block,, on 6-2-1984 while Dr. Shah Wali Khan has been appointed as Senior Registrar (Orthopaedics) on 18-12-1986. In so far as the qualification was concerned, learned counsel submits that the petitioner might have been admitted to M.C.P.S. (General Surgery) earlier but respondent No.2 had been admitted as F.C.P.S. (Orthopaedics). According to him the petitioner was senior both as Medical Officer as also as Senior Registrar and was qualified to hold the post of Assistant Professor (Orthopaedics) in preference to the petitioner.
5. The grievance of the learned counsel for the petitioner appears to be that respondent No.2 could not claim seniority grade-wise but could do so speciality-wise. Leave to appeal is sought to examine: --
(i) Whether the Service Tribunal by its impugned judgment/order had correctly deduced the ratio from the judgment of the High Court in Writ Petition No.2284 of 1991 and (ii)Whether the Service Tribunal by its impugned judgment/order had correctly decided the question of seniority between the petitioner on the one hand and respondent No.2 on the other.
5-A. In so far as the first proposition is concerned, we find that the Tribunal has rightly deduced ratio from the judgment of the High Court that respondent No.2 was declared eligible for promotion as Assistant Professor (Orthopaedics) and that the panel of Senior Registrars including the petitioner as well as the respondent were equally eligible. The end result was that all the qualified Senior Registrars were considered on the touchstone of qualification and experience and correctly held the respondent to be entitled to promotion as Assistant Registrar (Orthopaedics).
6. Mr. M. Latif Khan, learned Advocate Supreme Court, for Dr. S. Amjad Hussain, petitioner, in support of his petition adopted the arguments of Mr. Jehanzeb Rahim, Advocate Supreme Court.
7. In support of the second proposition, Mr. Muhammad Jamil Khan, Advocate Supreme Court, cited the case of Dr. Rahim Gul v. Secretary to Government of N.-W.F.P., Health Department, Peshawar (1991 SCM R 1199). The law propounded in the case of Dr. Rahim Gul (supra) in para.9 of the judgment is reproduced hereunder:-- "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 be as a matter of right, utilised as experience in General Surgery.
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. "
8. The learned counsel for the petitioner has cited no rule providing for the experience in particular speciality taking precedence over experience gained in other alike specialities as a matter of right to be utilised/counted towards experience in particular speciality without having prescribed qualification in that speciality. We have, therefore, no hesitation to hold that respondent No.2 being senior to the petitioner and having the requisite qualification in the speciality of F.C.P.S. (Orthopaedics) was qualified for promotion as Assistant Professor against the petitioner who no doubt had been working for sometime as Senior Registrar (Orthopaedics) but was otherwise holding the qualification of M.R.C.P. (General Surgery). In the instant case, the qualification required was of Orthopaedic Surgery and the qualification in General Surgery, though may be alike and similar to the Orthopaedics Surgery could not be as a matter of right utilised as experience in Orthopaedic Surgery.
9. The judgment of the learned Tribunal appears to us to be correct and warrants no interference.
Both the petitions for leave to appeal are thus dismissed.