1999 PLP 1689 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

Dr. Abdul Manaf (respondent No.5 in C.A. No.1556 of 1998 and respondent No.1 in C.A. No.1557 of 1998 hereinafter to be referred as the respondent, filed Service Appeal No.35 of 1995 before the Balochistan Service Tribunal, Quetta, impleading besides Government of Balochistan and various functionaries of Health Department of Balochistan, Dr. Muhammad Tahir Achakzai (appellant in C.A. 1556/98) hereinnafter to be referred as appellant No. I and Dr. Muhammad Hashim Khan (appellant in C.A No. 1557/98), hereinafter to be referred as appellant No.2, as respondents, on 28-9-1995. The respondent claimed the following reliefs in his above Service Appeal:-- It is accordingly respectfully prayed that

(i) amendment made in the Rules through notification dated 11-4-1994 with retrospective effect may be declared to have been made without lawful authority based upon mala fide, unreasonable and discriminatory nature and consequently of no legal effect; (ii) declaring that private respondents are not eligible to be promoted to the post of Associate Professors and consequently reference of their cases to Provincial Selection Board and consequent reported recommendations made by it is consequently of no legal effect; (iii) declaring that appellant is the only eligible and competent person to be considered for promotion to the post of Associate Professor. (iv) Restraining permanently Provincial Government to accept the said recommendations and to promote private respondents to the post of Associate Professors. (v) Any other relief which this Hon'ble Tribunal may found fit and proper in the circumstances of the case may also be granted to the appellant with costs." During the pendency of the above service appeal of respondent, appellants Nos. I and 2 were promoted as Associate Professors (B- 19) posted in the Cardiology Department of Bolan Medical College, Quetta. Respondent accordingly filed amended Memos. of Appeal No. 35 of 1995 on 21-6-1997 challenging the promotion of appellants Nos. 1 and 2 to the posts of Associate Professors of Cardiology. The learned Service Tribunal accepted the Service Appeal of respondent through the impugned judgment against which leave was granted as follows:-- "Hearing the learned counsel, the question which arises for consideration is whether respondent Dr. Abdul Manan Tareen approached the Tribunal within time after preferring due representation/appeal departmentally. Another question is as to how the relevant Service Rules interact with the rules and regulations of the Pakistan Medical and Dental Council, more particularly with reference to the changes introduced in the latter. The questions being of some affected thereby, we public importance, a number of people being grant leave in both these petitions. Having accorded leave, as above, we also join Dr. Aslarn Baloch and Dr. Jameel-ur-Rehman as respondents. Let necessary amended memos. "be filed. Since the controversy is vital to affectees at the higher echelon of the Government employed medical practitioners, we would direct that the appeals be fixed for hearing within the next four months. As a result of the above order granting leave to appeal, Dr. Aslarn Baloch and Dr. Jameelul-ur-Rehman have been impleaded as respondents in above appeals. They will be referred as the newly-added respondents hereinafter. The appellants Nos. I and 2 have also filed contempt application against the official respondent on the ground that in spite of stay granted by this Court on 30-3-1998 respondent has been promoted. Notice of this contempt application was issued to alleged contemner and the A.-G., Balochistan. This order will govern the disposal of the abovementioned two civil appeals as well as the contempt application filed therein. The learned counsel for the appellants I and 2 contended that the Service Appeal before the Balochistan Service Tribunal was not maintainable as the respondent before approaching the learned Service Tribunal did not avail of the departmental remedy provided under, Rule 4 of the Balochistan Civil Servants (Appeal) Rules, 1983 framed under section 25 of the Balochistan Civil Servants Act, 1974. It is further contended that appellants Nos.1 and 2 were appointed as Assistant Professor of Cardiology at the time when Balochistan Medical Educational Institution Service Rules, 1978 were enforced and as such their appointment could not be affected by any subsequent amendment made in the said Rules. The learned counsel for appellants 1 and 2 however, conceded that in so far promotion of respondent during pendency of their appeals was concerned, it did not contravene the interim order granted by this Court on 30-3-1998 as the purpose of the interim order was only to protect the appointments of appellants, which were held to be illegal by the learned Service Tribunal during the pendency of their appeals before this Court. The learned counsel, for the respondent on the other hand contended that his service appeal before the Tribunal was fully competent and the recruitment vires were rightly declared ultra vires as they were in conflict with the regulation issued by P.M.D.C. prescribing qualification for the posts of Assistant and Associate Professor of Cardiology. The newly-added respondents supported the contention of respondents' counsel and argued that they were adversely affected by the recruitment rules as well as the interim order passed by this Court on 30-1-1998, and as such they are entitled to challenge the validity of recruitment rules issued by the Government of Balochistan. The admitted position in these cases is that appellant No.1 was appointed as Assistant Professor of Cardiology (B-18) on the recommendations of Balochistan Public Service Commission vide notification dated 17-11-1987. Appellant No.2 was appointed on ad hoc basis as Assistant Professor of Cardiology on 11-11-1986. Government of Balochistan regularised the appointment of appellant No. 2 in relaxation of rules vide notification dated 19-4-1988. The notification 'dated 19-4-1988 with effect from 11-11-1986. The notification dated 19-4-1988 regularizing the appointment of appellant No. 2 retrospectively from 11-11-1986 was later withdrawn on 25-4-1995 and his appointment as Assistant Professor of Cardiology was regularised from 19-4-1988. Appellant No.2 challenged the notification dated 25-4-1995 withdrawing the earlier notification dated 19-4-1988 before the Balochistan Service Tribunal in Service Appeal No.34 of 1995 but same was dismissed on 26-9-1997. Respondent was appointed as Assistant Professor of Cardiology (B-18) on ad hoc basis on 3rd July 1989. His appointment was regularised on the recommendations of Balochistan Public Service Commission vide notification dated 11-10-1989. It is, therefore, quite clear that both appellants 1 and 2 were appointed Assistant Professor of Cardiology when respondent was not in service. His appointment as Assistant Professor of Cardiology was much after the appointment of appellants Nos. 1 and 2 and therefore, he was junior to appellants 1 and 2 in the cadre of Assistant Professor of Cardiology. In so far the newly-added respondents are concerned, they were appointed as Assistant Professor on regular basis on their own showing on 24-1-1990 and 3-6-1991. They do not deny that they were appointed as Assistant Professor in different department and have no concern with the Cardiology Department. Their main grievance is that their promotion to the post of Associate Professor has been withheld on account of stay granted by this Court in the above appeals. It is not necessary in these appeals to decide the validity of the Recruitment Rules issued by the Government of Balochistan as these appeals can be conveniently disposed of on other points raised in these appeals. The learned counsel for the respondent does not dispute that at the time respondent filed service appeal before the Tribunal, appellants Nos. 1 and 2 were not promoted to the post of Associate Professor of Cardiology (B-19). It is also not disputed by the learned counsel for the respondent that when appellants Nos.1 and 2 were promoted as Associate Professor, he did not challenge their appointment before the departmental authority but challenged the same before the Service Tribunal by filing an amended memo. of appeal before the Service Tribunal. It is also not denied by the learned counsel for the respondent that respondent had a remedy available to him against the alleged illegal appointment of appellants Nos. 1 and 2 as Associate Professor before the departmental authority. Under section 4 of the Balochistan Service Tribunals Act, 1973, an appeal before the Tribunal can be filed only after exhausting the departmental remedy by way of appeal or review/representation available to an aggrieved civil servant. Since remedy by way of appeal/representation was available to the respondent against the appointment of appellants Nos. 1 and 2 as Associate Professor Cardiology, no appeal could be filed before the Service Tribunal without exhausting departmental remedy provided under the law. In the case of Ali Raza Shah Naqvi v. Government of Sindh (PLD 1979 SC 856) this Court while interpreting section 4 of Sindh Service Tribunals Act (Act XV of 1973), which is identical to the Balochistan Service Tribunals Act, 1973, held as follows:--

11. When confronted with the above, the learned counsel for the petitioner argued that failure to appeal to the Chief Secretary was due to the ignorance of correct law on the subject and was not a deliberate mistake on the part of his client, and as such should be ignored by this Court. We regret, we cannot override the clear provision of the statute and hold an appeal before the Tribunal as competent which otherwise was incompetent due to the clear bar contained in section 4 of the aforesaid Act. This is apart from the fact that even otherwise ignorance of law is no excuse. Learned counsel then argued that his client again approached the Secretary against the Order dated 23-6-1976, and also made representation to the Education Minister and the Martial Law Authorities as pleaded by him in para. 4 of his appeal before the Tribunal, therefore, he could in this way be considered to have filed the appeal before the competent authority namely the Chief Secretary. This plea' has no merit. The order to be appealed against was that of 23-6-1976 against which no appeal is time (sic) or in any competent forum, viz. the Chief Secretary was filed and mere representations of the petitioner here and there could not be a substitute of the requisite appeal. In this view of the matter the other finding of the Tribunal that appeal against the relevant order before it was barred, is also correct. Same appears to be the position of the finding of the Tribunal that if the petitioner was trying to have Grade-18 or 19 or in the form of a promotion and if it was refused to him then appeal against an order refusing to grant a promotion was not maintainable before the Tribunal under proviso (b) to section 4 of the Sindh Service Tribunals Act XV of 1973. That this was the nature of the claim of the petitioner is supported by letter dated 7-10-1976 which, with reference to a representation made for that purpose, said that such unsupportable proposals should not be forwarded to the Directorate in future.

12. Learned counsel attempted to argue that his client had a strong case which should have been entertained by the Tribunal and relief should have been granted to him in respect of the scale of pay and grade and that his seniority should have been fixed accordingly. In this respect he also referred to Fazal Elahi Ejaz and 22 others v. Government of Punjab and 13 others (PLD 1977 Lah. 549), which according to him,' contains correct construction and interpretation of the rules, instructions and other texts and material relevant on the subject. As we have held that the Order of the Tribunal holding the appeal before it as incompetent is quite lawful, therefore, there is no occasion on our part to embark upon that exercise and consequently we reserve our views on the enunciation of law as made in Fazal Elahi Ejaz v. Government of Punjab PLD 1977 Lah. 549 and leave it over for examination in some more proper and well maintained case. All that, however, we need for the present observe is that as the writ petition in the aforesaid case was dismissed by the High Court as having abated under Article 212 of the 1973 Constitution, therefore, from that viewpoint any exposition of law on the merits of the subject-matter involved therein must be treated as obiter. In the case of Ehsanul Haque v. Service Tribunal, Islamabad (1979 SCMR 627) this Court while interpreting section 4 of Service Tribunals Act, 1973, which is similar to section 4 of Balochistan Service Tribunals Act, 1973, reiterated the view expressed in Ali Raza Shah Naqvi v. Government of Sindh (PLD 1979 SC 856). The case of Ali Raza Shah v. Government of Sindh was once again referred with approval in the case of Rai Muhammad Bashir v. Deputy Director, Food, Gujranwala (1991 SCMR 1874). In view of the above-cited settled legal position that an appeal before the Service Tribunal was not competent unless the aggrieved civil servant exhausted the departmental remedy available to him, the appeal filed by the respondent before the Service Tribunal was not competent. The learned counsel for the respondent as well as newly-added respondents, however, very vehemently contended that the rules of recruitment framed by the Government of Balochistan for recruitment of persons in Medical Educational Institutions of Balochistan in 1978 and 1988 were directly in conflict with the regulations framed by the P.M.D.C. which were binding on the Government of Balochistan and therefore, the order, passed by the learned Service Tribunal holding that the recruitment rules framed by the Balochistan Government were ultra vires, need no interference in these appeals. We do not intend to examine this question in these proceedings and reserve our opinion on the controversy as we have reached the conclusion that the appeal filed before the learned Tribunal was not competent as respondent has failed to exhaust the departmental remedy available to him before approaching the learned Service Tribunal. In so far newly-added respondents are concerned, they cannot be granted any relief firstly, for the reason that they belong to different department and cannot be said to be aggrieved by the appointment of appellants Nos. 1 and 2 as Associate Professor and secondly, the cases of newly-added, respondents have not been examined so far either by the departmental authority or learned Service Tribunal on merit and as such it is not possible to examine their contentions on merits in the present cases. It is true that while examining the question relating to terms and conditions of service of an aggrieved civil servant, the Service Tribunal has jurisdiction to determine the validity of service rules which had affected the terms and conditions of an aggrieved civil servant. However, in our view, the Service Tribunal cannot independently examine the question regarding the vires of a service rule if there is no controversy before it relating to the violation of terms and conditions of service of an aggrieved civil servant. It is open to the respondent or to the newly-added respondents, if they feel aggrieved by the promotion of appellants Nos. 1 and 2 to the post of Associate Professor, to avail the remedy as prescribed under the law. Since the learned counsel for the respondent has conceded before us that the subsequent promotion of the respondent by the departmental authority does not amount to contravention of the stay order granted by this Court, we do not find any justification for taking further proceeding on the contempt application (Crl. Original No. 61 of 1998) filed in the case, which is accordingly, dismissed. With these observations, the above appeals are allowed, the impugned judgment of the teamed Service Tribunal is set aside. In the circumstances of the cases, there will, however, be no order as to costs. M.B.A./M-339/S Order accordingly