Full Judgment Text & Judicial Ruling

2006 P L C (C

2006 P L C (C.S.) 526

[N.-W.F.P. Service Tribunal]

Before Muhammad Irshad Swati and Muhammad Shaukat, Members

NAZIR AHMAD, CHIEF RADIOGRAPHER D.H.Q. HOSPITAL, MARDAN

Versus

SECRETARY HEALTH, GOVERNMENT OF N.-W.F.P. and 4 others

Appeal No.334 of 1999, decided on 26th February, 2001.

North-West Frontier Province Civil Servants Act (XVIII of 1973)---

----Ss. 9 & 13---North-West Frontier Province Service Tribunals Act (I of 1974), S.4---Regularization of service before retirement---Promotion---Appeal to Service Tribunal---Appellant who joined service as Radiographer, firstly was promoted as Senior Radiographer in BPS-7 and finally was promoted as Chief Radiographer in BPS-16 on Active Charge Basis---Appellant submitted numerous applications opting for retirement subject to regularization of his service in BPS-16 as Chief Radiographer before retirement, but his services were not so regularized despite he had completed 7 years of service as Senior Radiographer, which was prerequisite for regular promotion to post of Chief Radiographer in BPS-16 and appellant was also recommended for said promotion by Director General Health---Appellant was retired without regularization of his service as Chief Radiographer in BPS-16---Validity---Appellant was eligible for regularization of his service as Chief Radiographer in BPS-16 as he not only had completed 7 years of service as Senior Radiographer which was prerequisite for such regularization, but he was also recommended for said regularization by the Authority---Application of appellant for his retirement was conditional as he applied for his retirement with benefit of regularization of his service as Chief Radiographer in BPS-16---Department should have issued retirement order after grant of benefit of regularization due to appellant, but that had not been done, obviously due to mala fide or negligence of concerned Authority---Service Tribunal directed authorities to settle case of regularization of appellant as Chief Radiographer BPS-16 before his retirement.

Haji Muhammad Alam for Appellants.

Abdul Wajid G.P. for Respondent.

JUDGMENT

MUHAMMAD IRSHAD SWATI (MEMBER).---This order will dispose of an appeal filed by the appellant against the order dated 28-1-1999 endorsed to him on 3-2-1999 whereby he was retired from service without regularizing his service in BPS-16 as Chief Radiographer effective from 29-1-1991 with the prayer that the impugned order may be set aside and his service be regularized in BPS-16 as Chief Radiogrpher w.e.f. 28-5-1991 before his retirement and on regularization of his service, he be entitled to one advance increment w.e.f. 28-5-1991.

Brief facts of the case as averred in the memo. of appeal are that the appellant joined the service in the Health Department as Radiographer w.e.f. 3-3-1960. He was subsequently promoted as Senior Radiographer in BPS-7 vide letter dated 15-5-1988. He was further promoted as Chief Radiographer in BPS-16 on Acting charge Basis vide letter dated 28-5-1991. The .appellant submitted numerous applications duly opted for retirement subject to regularization of his service in BPS-16 as Chief Radiographer before retirement but with no fruitful result. Since 1991 DPC was constituted twice but the respondents did not put up the case of regularization of appeal before the Committee. He has also completed 7 years of service as Senior Radiographer on 28-4-1995 prerequisite for regular promotion to the post of Chief Radiographer. Respondent No.2 has also recommended his case vide letter dated 3-12-1995. That all of a sudden the appellant received the impugned order whereby the respondents have passed an order of retirement of appellant commencing from 3-3-1999 without regularizing the service of the appellant as Chief Radiographer prior to his retirement. Hence he has filed the present appeal on the grounds that the due to mala fides on the part of the respondents they have deprived the appellant of one advance increment w.e.f. 29-5-1991 which is recurring financial loss and will hit the retiring benefits like pension and gratuity etc. of the appellant.

The respondents were summoned. They appeared through their representative/counsel and submitted written reply to the appeal. Raising preliminary objections to the appeal they submitted that the appellant had no cause of action, no locus standi. The appeal is not maintainable/competent and that the appeal is bad for non-joinder of necessary parties. On factual side they submitted that his case for promotion on regular basis w.e.f. 28-4-1995 was under consideration but the appellant submitted an application dated 18-12-1998 for retirement w.e.f. 3-3-1999, therefore, he was retired from service. According to 'the instructions contained in the Finance Department letter dated 1-10-1981 the appellant is not allowed to withdraw or modify the retirement order as the same has already been accepted and communicated to him.

In replication the appellant rebutted all the preliminary objections. On factual side the appellant submitted that he is entitled for regularization of service in BPS-16 since 1995.

Arguments heard and record perused.

The perusal of record would show that the appellant joined service as Radiographer in Health Department on 3-3-1960. He was promoted as Senior Radiographer BPS-7 on 15-5-1988. Subsequently he was promoted to the post of Chief Radiographer (BPS-16) on acting charge basis on the recommendation of the DPC on 28-5-1991. His promotion as Chief Radiographer was made on Acting Charge Basis as he had not completed 7 years service as Senior Radiographer on regular basis. However as the appellant was senior most Radiographer and was found fit on the basis of his service record by the DPC, he was promoted on Acting Charge Basis. The appellant completed 7 years service after his promotion as Senior Radiographer on 15-5-1995 and requested his department on 14-9-1995 to issue order of his promotion as Chief Radiographer on regular basis as he intended to retire from service after regularization of his service as Chief Radiographer. His case for regularization as Chief Radiographer w.e.f. 28-4-1995 was recommended by the Director-General Health Services to Secretary Health N.-W.F.P. vide letter dated 3-12-1995 but his regularization could not be made till 30-7-1998 when the appellant again referred to his previous application and requested for his regularization as Chief Radiographer and retirement from service w.e.f. 3-3-1991, subsequently the appellant again requested for regularization and retirement vide his application dated 21-12-1998. The Department issued orders of his retirement vide order dated 28-1-1999 without issuing the orders of regularization of his service as Chief Radiographer.

The Tribunal observes that the appellant was eligible for regularization for his service as Chief Radiographer BPS-16 on 28-4-1995 as recommended by the Director-General Health Services in his letter dated 3-12-1995 and admitted by the respondent department in his reply. The appellant has been requesting for regularization time and again. His application for retirement were conditional. He had applied for retirement with the benefit of regularization of his service as Chief Radiographer which was due to him w.e.f. 28-4-1995. The department should have issued the retirement order after the grant of benefit of regularization due to the appellant which has not been done, obviously due to mala fide or negligence. The Tribunal therefore, accepts the appeal, sets aside the impugned order dated 28-1-1999 and directs the respondents to settle the case of regularization of the appellant as Chief Radiographer PBS-16 before his retirement. No order as to costs.

File be consigned to the Record.

H.B.T./5/N.-W.F.P. Appeal accepted.

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