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Petitioner: IKRAMULLAH KHAN VS Respondent: SECRETARY, ESTABLISHMENT DIVISION,Saeed Akhtar & Mian Ishtiaq Hussain
1993 P L C (C
1993 P L C (C.S.) 171
[Federal Service Tribunal]
Present: Syed Ally Madad Shah, Chairman, S.M. Ishaq and Ch. Hasan Nawaz, Members
Dr. IKRAMULLAH KHAN and others
Versus
"SECRETARY, ESTABLISHMENT DIVISION and others
Appeals Nos. 48(R), 126(R), 133(R) and 187(R) of 1990, decided on 2nd July, 1992:
Per Ch. Hasan Nawaz, Member: Syed Ally Madad Shah, Chairman and S.M. Ishaq, Member agreeing‑‑‑
(a) Service Tribunals Act (LXX of 1973)‑‑‑
‑‑‑‑S. 4‑‑‑Appeal‑‑‑Competency‑‑‑Limitation‑‑‑Establishment of Pakistan Institute of Medical Sciences with its own employees having separate cadre‑‑Civil servants, employees of another cadre claiming promotion to the posts available in such institute‑‑‑Legality‑‑‑Pakistan Institute of Medical Services being a separate establishment with a separate cadre of employees; employees of other cadre could not claim promotion to seats lying vacant in said institution‑‑‑Government was thus under no legal obligation to fill the available posts by promotion of employees of another cadre‑‑‑Selection of respondents for the available posts would not give rise to any order final or otherwise so was to attract provisions of S.4, Service Tribunals Act, 1973 and make it legally obligatory on civil servants to make representations or departmental appeals‑‑ Questions of competency and limitation would thus loose relevancy‑‑‑Appeals, therefore, should not have been dismissed either as time‑barred or being incompetent‑‑‑Civil servants on the other hand having independent cause of action against orders passed by the Government or the Governing body whereby respondents civil servants had been appointed, there was hardly any justification for appellants for waiting till the announcement of Tribunal's judgment‑in‑a case of similar nature‑‑‑Appeal was thus barred by time‑No application for condonation of delay having been filed, appeal was, dismissed.
Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others 1984 SCMR 286; Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 ref.
Per Syed Ally Madad Shah, Chairman, S.M. Ishaq and Ch. Hasan Nawaz, Members agreeing‑‑
(b) Civil service‑‑‑
‑‑‑‑Appointment‑‑‑Pakistan Institute of Medical Sciences having autonomous status‑and enjoying an independent entity, Rules applicable for appointment to posts in Government administered institutions were not applicable to the appointments made in the Institute‑‑‑Civil servants belonging to another cadre of Government administered establishment had no case to seek entry in the service of Pakistan Institute of Medical Sciences on the basis of Notification which had been issued earlier by the Government for inducting some of its employees to such institute‑‑‑Appellant's appeal against' appointment of respondents to said institute was dismissed in circumstances.
Raja, Muhammad Asghar Khan for Appellant (in Appeal No. 48(R) of 1990).
Hafiz SA. Rehman for Respondents (in Appeal No. 48(R) of 1990)
Dr. G.S. Khan for Appellant (in Appeal No. 126(R) of 1990).
Respondent No. 4 Absent. (in Appeal No. 126(R) of 1990).
Syed Ijaz Hussain Shah for Respondents Nos. 3, 6 and 7 (in Appeal No. 126(R) of 1990)
Raja Muhammad Asghar Khan for Appellant (in Appeal No. 133(R) of 1990)
Hafiz SA. Rehman for the Government (in Appeal No. 133(R) of 1990)
Saeed Akhtar for Respondent No. 5 (in Appeal No. 133/R of 1990)
Raja Muhammad Asghar Khan for Appellant (in Appeal No. I87(R)
Hafiz SA. Rehman for the Government (in Appeal No. 187(R) of 1990).
Mian Ishtiaq Hussain for Pakistan Institute of Medical Sciences (in Appeal No. 187(R) of 1990).
Dates of hearing: 10th and 11th December, 1991.
JUDGMENT
CH. HASAN NAWAZ (MEMBER).‑‑‑This judgment purports to deal with four appeals, giving rise to identical questions of law and fact, filed under section 4 of the Service Tribunals Act, 1973 in the background of the following facts: ‑
1. On 16‑10‑1986, the Ministry of Health (Health Division), Government of Pakistan passed a Resolution to provide for the establishment of the Institute of Medical Sciences (PIMS) and for ancillary matters. The purpose was to give this Institute an autonomous character to facilitate its functioning. Paragraph‑2 of the Resolution provided that "as, soon as may be possible after the passing of this Resolution, the Federal Government shall establish, in accordance with the provision of this Resolution, an Institute to be called the Pakistan Institute of Medical Sciences. This Institute has accordingly been established in consequence of the Resolution.
2. A Board was set up under paragraph‑4 of the Resolution which provided as follows:
"4. (1) The Board may‑‑
(a) Frame policies and supervise management of the affairs of the Institute and do all such acts and take all such steps as are necessary for the promotion and fulfilment of the objective and functions of the Institute;
(b) Frame regulations to govern the working of the Institute and lay down procedure for the conduct of the business of the Board and working groups and committees appointed by it; and
(c) Divide the functioning of the institute into such number of Wings as it may deem fit.
(2) in the discharge of its functions, the Board shall be guided on questions of policy by the instructions, if any, given to it from time to time‑ by the Federal Government which shall be the sole judge as to whether a question is a question of policy or not:
(3) The regulations under clause (b) of sub‑paragraph (1) shall be framed with the approval of the Federal Government:"
3. Paragraph‑12 of the Resolution is also relevant. It is to the following effect:
"12. Transfer of existing employees of the former Central Government Hospital, Rawalpindi, to the Institute:
(1) Notwithstanding anything to the contrary in any contract or agreement or in the conditions of service, such persons in the service of Pakistan appointed in the former Central Government Hospital, Rawalpindi, before the thirtieth June, 1980, and subsequently working either in the Rawalpindi Government Hospital or in the Central Government Poly Clinic, against supernumerary posts created in the Central Government Poly Clinic, including persons on deputation to other organisations or abroad, as the Federal Government may direct shall stand transferred to the Institute on the same terms and conditions, including remuneration, tenure of service, rights and privileges as to pension and gratuity and other matters, as were applicable to them immediately before the passing of this Resolution.
(2) The Federal Government shall pay pension charges and gratuity in respect of and provident fund accumulations of, each employee transferred to the institute under sub‑paragraph (1) in such manner and to such extent as may be prescribed."
4. We might as well take notice of paragraph 13 which makes the following reading:
"13. Appointment of Officers etc.‑‑(1) The Board may, subject to the provisions of sub‑paragraph (2) and. such general or special instructions as the Federal Government' may give from time to time, appoint, on such terms and conditions, such officers and servants and engage such advisers and consultants, as it considers necessary. for the proper functioning of the Institute and for the performance of its functions.
(2) The manner of selection of the officers and servants of the Institute and their terms and conditions of service shall be such as may be prescribed by regulations approved by the Federal Government:'
5. Reference may also be made to SRO‑1203(1)/80, dated 29‑11‑1980 issued by the Health and Social Welfare Division, which has been relied upon by the appellant in all the four appeals as one of the two main grounds in support of the reliefs sought by them. It was issued in pursuance of sub‑rule 2(1) of rule 3 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, laying down the method, qualifications and other conditions for appointment to the clinical posts in Grade‑17 and above under the Health and Social Welfare Division. While dealing with the method of appointment, the notification provided that (a) all posts in Grade‑17 shall be filled by direct recruitment; that (b) 50% of the posts in Grade‑18 shall be filled by promotion and 50% by direct recruitment and that (c) 80% posts in Grades‑19 arid 20 shall be filled by promotion and 20%v by direct recruitment; provided that if no suitable officer is available for promotion, the vacancy or vacancies may be filled by direct recruitment and failing direct recruitment, by transfer.
6. The only other ground for reliance in these appeals is provided by the Tribunal's judgment dated 9‑1‑1989 of the case of Dr. Inamul Haq Shami who is an associate Surgeon in the Federal Government Services Hospital, Islamabad. In his appeal under section 4 of the Act Dr. Shami alleged that after the establishment of the Institute, the Health Division has proceeded to make appointments of Medical Officers in various grades in violation of the provisions of aforementioned notification dated 29‑11‑1980. The prayer in that appeal was that all direct recruitments made by the Institute may be declared as illegal and the respondents, who were the Secretaries of Health and Establishment Divisions, be directed to follow the instructions laid down in SRO No. 1203, dated 29‑11‑1980. It was held by the Tribunal that "in the absence of any Act or Ordinance declaring the PIMS as an autonomous body, the instructions contained in SRO No. 1203(1)/80 for the recruitment/appointment of medical staff against the clinical posts in the institution which is under the Ministry of Health, Special Education and Social Welfare, Islamabad shall remain in force" and that "any action not purported to be taken recording to the law becomes a nullity in the eyes of law and hence cases to exist". The appeal was accordingly allowed with a direction to the respondents that "case of promotion of the appellant should be considered under the existing rules contained in the aforesaid SRO."
7. No appeal was filed against the Tribunal's judgment in Dr. Shami's case. ,As we see from the Health Division's letter dated 20‑1‑1990, he was Granted presumptive seniority with fixation, of pay in B‑19 with effect from 5‑1‑1987. the date on which his junior was appointed to B‑19 post in the institute.
8. Basing his claim on the Tribunal's judgment in Dr. Shami's case, Dr. Ikramullah Khan of Appeal No. 48(R)/90 addressed a representation to the Secretary. Health Division on 4‑10‑1989 where it was prayed that he should be promoted to B‑19 and then to B‑20 in the Institute on the strength of SRO No.1203, dated 29‑11‑1980 with effect from a date before advertisements were published for filling the vacancies. He was informed through letter dated 17‑10‑1989 that his representation had been rejected. However, a few days later, on 20‑11‑1989 lie was promoted to B‑19 in his own speciality (Surgeon ENT) alongwith a few other doctors by the competent authority, from the date he was to assume charge of the post. He was not satisfied with the date of his promotion and he addressed a representation on 10‑12‑1989 to the Prime Minister, where ‑it was requested that he may be considered for promotion under the rules of 1980 from a date "when a vacancy falling in my share in the PIMS was to be filled, alongwith consequential benefits". After having been informed about the rejection of his representation through endorsement dated 6‑1‑1990, he filed his appeal on 4‑2-1990, where the relief sought is that "the impugned orders may be set aside and the respondents may be directed to consider the appellant for promotion as Surgeon (ENT) B‑19 and above in the PIMS from a date a vacancy falling in 80% quota of promotion became available with all back benefits".
9. Dr. Rashid Anwar of Appeal No. 126(R)/90 who is serving as Physician Paediatric Federal Government Services Hospital, Islamabad also submitted representation dated 23‑1‑1989 on the basis of Tribunal's judgment in Dr. Shami's case, with the request that his case for promotion to B‑20 in the Institute may be considered under SRO 1203 of 1980 and that his "seniority be decided from retrospective date". On reminder dated 8‑2‑1990, he was informed by the Ministry through letter dated 27‑2‑1990 that his case for promotion to B‑20 under the Ministry of Health will be considered on his turn according to the seniority list of the specialists, (BPS‑19) of Clinical posts on the availability of a post in BPS‑20. On rejection of the representation, he also came in appeal to the Tribunal on 4‑4‑1990, praying that "the appointment of respondents Nos. 3 to 7 may be set aside being violative of the Rules, and the respondents may be directed to fill the posts sanctioned for P.I.M.S. strictly in accordance with the Rules notified under SRO of 1980, and consider the appellant for promotion to B‑20 posts in the Institute in accordance with the rules with all back benefits."
10. Dr. Agha Muhammad Sami Khan appellant in Appeal No. 133(R)/90, a Radiologist in the Federal Government Services Hospital, Islamabad, also started his proceedings after judgment in Dr. Shami's case. He has pleaded that in spite of that judgment, the Executive Director, P.I.M.S. got an advertisement published in `Daily Jang' on 4‑3 1990, inviting applications for filling the posts of Radiologists (B‑19) in the Institute. On 5‑3‑1990 he made a. representation to Secretary Health Division requesting for promotion to the post of Radiologist in the Institute against 80% quota reserved for promotion. He filed the present appeal on 10‑4‑1990 after he was, informed through letter dated 13‑3‑1990 that his representation had been rejected. The prayer is that "the appointment/recruitment to the post of Radiologist (B‑19) in the Institute without first considering his case may be declared as illegal and contrary to rules" and that "the respondents may be directed to consider him for promotion to the post in accordance with the rules with all back benefits".
11. Dr. Khurshid Ahmad (Radio Diagnosis) of Appeal No. 187(R)/90 is also serving in 'the Federal Government Services Hospital, Islamabad as Medical Officer. Like others, his appeal is also the result of Tribunal's judgment in Dr. Shami's case. For the first time on 10‑12‑1989, he made a representation to the Secretary, Ministry of Health wherein it was requested that he may be promoted to the post of Radiologist (B‑18). He made a similar. representation on 13‑1‑1990 to the Minister for Health, this time with the request that he may be transferred and posted in the Institute as Radiologist against one. of the two available vacancies. He was informed by letter dated 10‑1‑1990 that no vacant post of Radiologist (B‑18) was available for promotion of the appellant. With reference to his application to the Minister, he was informed by letter dated 11‑1‑1990 that he could not be considered for posting against any' of the posts in B‑18 available in the Institute. His departmental appeal dated 20‑2‑1990 addressed to the Prime Minister was considered by the Ministry and he was informed by letter dated 14‑4‑1990 that it was not covered by the provisions of Civil Servants (Appeal) Rules, 1977. He then came in appeal to the Tribunal on 22‑5‑1990 with the prayer that the respondents may be directed to consider him for promotion against the post of Radiologist (B‑18) in the Institute with all consequential benefits.
12. It may be mentioned that the appellant's representations were rejected in all cases by the competent authority on the ground that the Institute having been declared by Government Resolution as an autonomous organisation, they had no claim for promotion or appointment in the Institute. Even in their written objections, the case set up by the Health and Establishment Divisions is that the Institute 'is an autonomous body and that the appellants cannot claim their postings as a matter of right on the basis of SRO No. 1203 of 1980. It was pleaded that certain posts were filled by initial appointment through open competition to fulfill the requirement of Institute for its functioning. It was further pleaded that the establishment of the Institute virtually gave rise to the creation of a new cadre of its employees and that the appellants had no right to he considered for posting against the posts available there.
13. As already noticed before, the appellants' reliance in the main is on the Tribunal's judgment in Dr. Shami's case. They claimed that they too, like Dr. Shami should be considered for posting in the Institute against promotion quota on the basis of SRO 1203 of 1980. It is pleaded that they are entitled to similar consideration without further ado, on the basis of Tribunal's judgment, even though they had not been impleaded as parties in that case. They have relied upon certain authorities in support of the contention that the Tribunal's judgment in that case is binding on the departmental authorities for a similar treatment to the appellant, regardless of whether they had filed any appeal to the Tribunal.
14. Before an address is made to the authorities relied upon by the appellants, it may be mentioned that an altogether different view was taken by, the Tribunal in Appeal No. 337(R)/87 filed by Dr. M. Najmul Ghani Khan on the same grounds. There too, reliance was placed on the Tribunal's earlier judgment in Dr. Shami's case. It was held by the Tribunal that "whatever may be the status of the Institute (PIMS), the appellant challenging the very existence of the Institute under the Resolution cannot claim entry into the service therein. The posts created on the basis of the Resolution cannot, therefore, be regulated by the provisions of SRO 1203 and the appellant has no case, as he cannot approbate and reprobate in the operation of the Resolution dated 16‑10‑1986. This view I am holding with due regard for the view adopted by the learned Members who decided Dr. Inamul Haq Shami's appeal." In view of the subsequent judgment delivered by the Tribunal on a similar appeal, it is not possible to say that the Tribunal's earlier judgment in Dr. Shami's case is binding upon the department and that the appellants must be considered for posting in the Institute on the basis of that judgment. The Tribunal itself has taken a different view, on a similar matter, regardless of its judgment in the earlier case. It may be mentioned that no appeal having been filed by Dr. M. Najmul Ghani Khan, the subsequent judgment of 22‑8‑1990 has also become final. This being so, the respondents can also claim that the subsequent judgment is binding rather than the earlier one relied upon by the appellant. I am of the view that the Tribunal's judgment in Dr. Shami's case has no binding force, in view of the subsequent judgment which has almost the effect of over ruling it. In any case, the appellants hardly have any reason to oppose the respondents' request that the subsequent judgment should be followed.
15. As for the authorities relied upon by the appellants in support of their case, it will be sufficient to say that they are based on distinguishable facts. Reference may be made only to the case of Chairman, Pakistan Railways, Lahore v. Muhammad Latif and others cited at the Bar as 1984 SCMR 286 by the appellants' learned counsel. It was ruled by the Supreme Court that the earlier decision with regard to the same establishment given by the competent Tribunal was determinative of the rules to be applied and that its benefit could not be denied to the respondents on the sole ground that he was not a party to the litigation, because it was declaratory of the rule of seniority applicable to the establishment. It was further held that the respondent had sought correction of his seniority from the department in accordance with the rules and the rejection of his request afforded him a good ground for preferring an appeal to the Tribunal. I feel no hesitation in saying that rule laid down by the Supreme Court in this judgment can hardly be availed of by the appellants simply for the reason that their appeals are not being thrown out merely because they were not parties in the case of Dr. Shami. Their appeals are going to be dealt with on merits and the Tribunal is competent to come to a different conclusion without offence to the rule laid down by the Supreme Court in 1984 SCMR 286. The fact that a different view has been taken by the Tribunal in a subsequent appeal' makes it all the more distinguishable. I am of the view that rulings in the cases cited at the Bar by the appellants' learned counsel in support of their contentions, were caused by altogether different circumstances. The Tribunal's judgment in Dr. Shami's appeal is not the one which must be applied to every other case. We are competent to examine the merits of the appellants' cases irrespective of that judgment.
16. The other main ground for reliance is provided to the appellants by SRO 1203(1)/80, dated 29‑11‑1980. I have already made a mention of this notification in the statement of facts. It is contended on behalf of the appellants that the Institute has not been established by a statute and it does not have any autonomous status. It has been argued that it is not a corporate body and it is under the Health and Social Welfare Division, like other attached departments. This being so, the appellants are entitled to be considered for promotion against promotion quota as laid down in this notification.
17. Reliance in support of this contention has been placed by the appellants' learned counsel on the case of Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612). Facts of this case stated in the Supreme Court's judgment are as follows:‑
"2...........Mrs. Shuja Qazi, retired as the Headmistress of Islamabad College for Boys, hereinafter referred to as the College, on 1‑10‑1985.Thereupon, respondent No. 1 being the senior most was appointed as an officiating Headmistress of the College on 31‑10‑1985. Initially the Ministry of Education, Government of Pakistan, advertised the post of the Headmistress for the College in July, 1985, but subsequently upon representation made by the teachers it was resolved to fill in the above vacancy by promotion. It appears that the Departmental Promotion Committee, comprised of a Joint Secretary/Joint Educational Adviser, Ministry of Education, as its Chairman and the Principals of I.C.G. and I.C.B. as Members, and one Mr. Naeem Ullah Khan, D.E.A. (ICI.) in the Ministry of Education as the Member/Secretary, interviewed as many as 16 junior teachers including the appellant and respondent No. 1. The Committee selected three prospective candidates out of the above 16 junior teachers which included the appellant. Finally the Chairman of the Board of Governors of the College i.e. the Secretary, Ministry of Education, after interviewing the above three selected candidates, selected the appellant in Appeal A and in consequence thereof, she was appointed as the Headmistress of the College by an order dated 24‑7‑1986. Aggrieved by the above appointment, respondent No. 1 made representation to the Chairman, Board of Governors, on 13‑8‑1986, but the same was declined through a letter dated 29‑10‑1986. Thereupon, respondent No. 1 filed the above appeal, which was allowed by the Tribunal through the impugned judgment in the above terms. In the impugned judgment, the Tribunal has held that respondent No. 1 was a civil servant and not an employee of the Board of Governors as the latter did not have a statutory autonomy. It also held that the Department Selection Committee was not constituted in terms of clause (2) of Rule 5 of the Islamabad Model Schools/Colleges (Service) Rules, 1984, as it was short by one Member. It further recorded a finding to the effect that respondent No. 1 was the senior most among the junior teachers. Thereupon, the appellant in Appeal A filed appeal A, whereas the Federal Government also felt aggrieved by the above order filed appeal B.
18. Objection was taken by the appellants' learned counsel in respect of the jurisdiction of the Tribunal on the ground that respondent No. 1 being an employee of the Board of Governors of the College, was not 'a civil servant. There in that case, like we find in the present one, the Model Educational Institutions in Islamabad were established by the Ministry of Education by means of a Resolution which provided for a Board of Governors of the College. This Board was repository of all powers of administration and governance of the College. After examination of the case‑law on the subject, it was observed by the Supreme Court that it was an admitted position that the Resolution had not been passed in pursuance of any delegated statutory powers. It was ruled that the Board was neither a corporate body nor a juristic person competent to employ teachers. In this view of the matter, the Supreme Court repelled the contentions that…
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