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Petitioner: Dr. MUHAMMAD LATIF CHAUDHRY VS Respondent: GOVERNMENT OF THE PUNJAB
1986 P L C (C.S.) 602
[Service Tribunal Punjab]
Present: Sardar Abdul Jabbar Khan, Chairman,
Abdul Hamid Chaudhry and
Mian Faiz Karim, Members
Dr. MUHAMMAD LATIF CHAUDHRY
Versus
GOVERNMENT OF THE PUNJAB and 2 others
Case No. 910/1159 of 1984, decided on 2nd March, 1986.
Per Sardar Abdul Jabbar Khan, Chairman and Abdul Hamid, Member (Majority View)‑‑
(a) Provisional Constitution Order (1 of 1981)‑‑
‑‑‑Art. 15‑‑Punjab Service. Tribunals Act (IX of 1974), S. 4‑‑Bar of jurisdiction Representation of Civil Servant rejected by Martial Law Administrator‑‑Effect‑‑Bar of jurisdiction created under Art. 15, Provisional Constitution Order, 1981, held, would operate only against those orders which were passed by Governor/M.L. A. under provisions of Martial Law Regulations or Martial Law Orders‑‑Matter of civil servant not dealt with either under Martial Law Regulation or under Martial Law Order but dealt with under Service Rules would not attract bar of jurisdiction.
P L D 1947 P C 344 p. 358; P L D 1979 Kar. 300 p.306 (Paras. 14 and 15); 1982 S C M R 33; P L D 1963 S C 382 p. 400; PLD 1964 SC 572; 1984 S C M R 289; 1983 S C M R 765; 1984 P L C (C.S.) 452; 1985 S C M R 946; 1984 C L C 119; 1984 Part of C L C; 1983 P L C (CS) 31; Pervaiz Akhtar v. Inspector General of Police 1982 C L C 1693; Muhammad Naseeb v . Inspector General of Police 1984 P L C (CS) 643; Fazal Karim v. Government of Punjab 1983 P L C (CS) 214; 1980 S C M R 148; A I R 1924 Mad. 396; 1984 C L C 1286; 1984 C L C 1523; P L D 1975 Lah. 524; P L D 1969 S C 322; A I R 1942 OUDH 447; 1981 P L C 618 at 621; 1981 P L C 662; 1985 P L C 852; 1984 PLC 962; 1984 P L C 52; P L D 1975 S C 331; P L D 1977 S C 599; 19713 S C M R p. 367; P L D 1975 Lah. 825; 1983 P L C 905; A I R 1954 Mad. 19; N L R 1982 Lah. 147; 1982 C L C 711; P L D 1982 Lah. 384; P L D 1982 Lah. 831; P L D 1967 Lah. 938; P L D 1965 Dacca 231; 1984 S C M R 289 ref.
(b) Privately Managed Schools and Colleges (Taking Over) Regulation, 1972 [M.L.R. 118]‑‑
‑‑‑Fatima Jinnah Medical College‑‑Status of‑‑By virtue of M.L.R. No. 118, Fatima Jinnah Medical College, held, stood vested in Government with effect from 1‑9‑1972‑‑Notification is‑sued on 1‑7‑1980 was only issued to clear doubts thereof.
(c) Civil service
‑‑Resignation by civil servant‑‑Effect of‑‑Resignation from service once tendered by civil servant, and accepted by Government, held, could not be re‑opened under normal conditions‑‑However, resignation tendered under mistaken view of law could not be equated with resignation in ordinary circumstances.
P L D 1963 S C 382; P L D 1947 Pirvy Coiuncil 344; P L D 1964 S C 572; P L D 1979 Kar. 300; 1982 S C M R 33; 1985 S C M R 1394 p.1396; 1984 S C M R 289; P L D 1983 S C 765; 1984 S C M R 286; 1984 PLC (C.S.) 452; 1985 S C M R 946 ref.
(d) Civil service‑‑
‑‑‑ Resignation‑‑Tendering of‑‑Both Government and civil servant under mistaken belief considering Fatima Jinnah Medical College as private institution at time of resignation of employee‑‑Government getting verdict from High Court that said Medical College was Government institution since 1‑9‑1972‑‑Employee on knowledge of such fact approaching Governor for withdrawing of resignation submitted earlier‑‑Employee, held, would be entitled to status having been lost under mistaken belie of such employee as well as of Government‑‑Such lost status of employee had to be restored by Government itself whereas employee would be under no obligation to make specific and separate claim for same‑‑Bar of limitation of filing appeal would not be attracted in circumstances.
P L D 1969 SC 322; P L D 1971 S C 791 p. 811; P L D 1969 SC 322; 1982 S C M R 95; 1981 P L C (C.S.) 618 and 1981 P L C (CS) 662 ref.
Per Mian Faiz Karim, Member II (Minority View)‑‑
(e) Punjab Service Tribunals Act (IX of 1974)‑‑
‑‑‑Ss. 4 & 9‑‑Appeal‑‑Filing of, beyond prescribed period‑‑Voluntary resignation and acceptance of same by Government‑‑Final representation to Authority for withdrawing of resignation rejected in 1979‑‑Appeal filed by employee in 1984, held, would be beyond limitation‑ Circumstances of case would not justify condonation of delay.
P L D 1947 P C 344 p. 358; P L D 1979 Kar. 300 p.306; 1982 SC M R 33 and P L D 1963 S C 382 ref.
(f) Civil service-----
‑‑‑ Resignation from service‑‑Submission of resignation by employee being own creation, such employee, held, could not be treated as aggrieved of his own decision‑‑Employee having no right of appeal could not seek remedy.
(g) Civil service‑‑--
‑‑‑ Word "resignation", meaning of‑‑Resignation, held, would mean "to give up office, employment etc."‑‑Such resignation made without any trace of compulsion would not entitle employee to claim superior status subsequently over other employees having been recruited after taken over of College by Government‑‑Resignation submitted by employee would be final and closed matter.
P L D 1964 S C 572 ref.
(h) Civil service-----
‑‑‑ Resignation of employee‑‑Employee resigning from Government service in order to seek employment in particular institution and getting same on permanent basis‑‑Such employment after takeover of institution by Government, held, could not be reversed without lending power to Government through Service Tribunal or through High Court for setting aside posting by Governing body after taken over of institution by Government, on ground of mistake of law.
(i) Administration of justice‑‑
‑‑‑No mistake attributed to administration in seeking resignation of employee‑‑Such employee resigning of his own accord at his own initiation‑‑Recalling of resignation at such late stage, held, would create complications, hardships and anomalies as about fifty employees attaining seniority over years after resignation of employee would be losing vested right without fault of their own.
D.M. Awan, Masud Ahmad Riaz, Counsel for Appellant. Sh. Ghias Muhammad through Riaz Anwar Counsel for Respondents Nos. 6, 41, 42 and 57. A.G. Humayun, District Attorney for Respondents Nos. 1 and 2.
Respondent No. 7 in Person.
Maqsood Hussain for Respondent No. 14.
Nayyar lqbal Ghauri, counsel for Respondent No. 23.
Khalid Ranjha Counsel for Respondents Nos. 29, 41 and 57. Sajjad Hussain Counsel for
Respondents Nos. 31 and 50.
Fayyaz Ahmad Counsel for Respondent No. 44.
JUDGMENT
S. ABDUL JABBAR KHAN (CHAIRMAN).--‑‑Dr. Muhammad Latif Chaudhry, Professor of Opthalmology Fatima Jinnah Medical College, Lahore, has filed this appeal a/s 4 of the Punjab Service Tribunal, Lahore, in which he has impleaded the Government of the Punjab through Secretary to Government of the Punjab, Health Department, Lahore, Chief Secretary, SGA & I Department, Government of the Punjab, Lahore, and Messrs Dr. Mukhtar Ahmad Chishty and 55 others as per list annexed with the appeal, as respondents.
2. By virtue of this appeal he has prayed that‑‑
(a) Appeal may be accepted;
(b) In view of the peculiar situation it may be declared that the appellant has been in Government service continuously since 15‑9‑1967, and that he has been Professor of Opthalmology since 24‑4‑1975;
(c) The impugned orders, dated 14‑5‑1975 and 19‑5‑1975 may be set aside;
(d) The respondents Nos. 1 and 2 may be directed to fix the seniority of the appellant amongst the Professors of various Medical Colleges in view of his selection and appointment as Professor, vide notification, dated 24‑4‑1975, under the Rules and Law.
3. It may be mentioned at the very outset that out of contesting respondents Nos. 3 to 58 as per list attached with the appeal, only Mr. Sajjad Hussain, Advocate on behalf of contesting respondents Nos. 31 and 50, Mr. Maqsood Hussain, Advocate on behalf of respondent No. 14, Sh. Ghias Muhammad, Advocate through Mr. Riaz Anwar, Advocate on behalf of respondents Nos. 6, 41, 42 and 57, Dr. Khalid Ranjha, Advocate on behalf of respondents Nos. 29, 41 and 57, Ch. Fayyaz Ahmad, Advocate for respondent No. 44, Mr. Nayyar lqbal Ghauri, Advocate for respondent No. 23, appeared on behalf of their respective clients whereas respondent No. 7 appeared in person. Similarly ex parte proceedings were deemed to have been taken against all other contesting respondents who did not associate with the proceedings of this case.
4. Brief facts of the case are as under:‑‑
The appellant after obtaining various qualifications from the Punjab University as well as from abroad, was selected on the recommendations of the West Pakistan Public Service Commission and appointed as Assistant Professor of Opthalmology in King Edward Medical College, Lahore, by the Governor of West Pakistan w.e.f. 15‑9‑1967. Appellant was confirmed as such w.e.f. 26‑11‑1968 by order, dated 18‑5‑1971. On 17‑5‑1973, respondent No. 1 ordered that appellant be deputed to Fatima Jinnah Medical College, Lahore, for appointment as Professor of Opthalmology. It was also provided therein that terms and conditions to be offered to the appellant on deputation to the said Institute might be communicated after the approval of the Executive Body of the said Institute. Later on in October, 1973, vide letter Annexure D, such terms and conditions were issued. According to conditions (i) and (iii) the appellant's posting at Fatima Jinnah Medical College, Lahore, was treated to be 'on deputation' as if Fatima Jinnah Medical College, Lahore, was a non‑Government Institution. By operation of M.L.R. 118 the said Institution stood transferred w.e.f. 1‑9‑1972, in the name of the Government and thus consequent upon the said notification, this became a fulfledged Government Institution. At the end of 1974, there was a move for the appellant's repatriation to his parent Department on the ground that he was working in a non‑Government Institution. This move was strongly resisted by the Principal, Fatima Jinnah Medical College, Lahore, vide letter, dated 5‑12‑1974, and it was recommended that on his promotion the appellant might be allowed to stay in the said College. The appellant was recommended on the basis of his seniority as Assistant Professor to be promoted as Professor and his case was placed before the Provincial Selection Board of the SGA & I Department, which duly approved the appellant for promotion as Professor. These recommendations were also accepted by the Governor and by notification, dated 24‑4‑1975, the appellant was promoted as Professor of Ophthalmology in N.P.S.‑19 in the regular cadre of the Health Department. In part II of that notification on his promotion as Professor the appellant was posted at Quaid‑e‑Azam Medical College, Bahawalpur, against an existing vacancy where the appellant took over on 29‑4‑1975. Later on the Governing Body of the Fatima Jinnah Medical College decided to fill the post of Professor of Ophthalmology by direct recruitment according to the rules of that Institution. The appellant was selected for appointment as Professor by the Governing Body as well. The appellant submitted an application, dated 29‑4‑1975 to the Government that in case he was selected for the post of Professor at Fatima Jinnah Medical College, then he may be relieved from Government service. He was duly selected but a condition was placed by the said Governing Body that he has to resign from Government service in order to join the said Institution. Consequently the appellant submitted resignation, vide his letter, dated 19‑5‑1975, in the following terms:‑‑
"I have been offered a permanent post as Professor of Ophthalmology at Fatima Jinnah Medical College, Lahore. I, therefore, tender my resignation from the Government service."
It was accepted by letter, dated 19‑5‑1975. After joining the said Institutions the appellant submitted a representation, dated 7‑7‑1975, addressed to the Minister for Health, Annexure L, in which he submitted that his resignation may be reconsidered and he may be kept at Fatima Jinnah Medical College for a further period of 5 years and also recounted his service which he rendered in the said Institution earlier. The appellant was told, vide letter, dated 3‑5‑1976, vide Annexure M, that his representation addressed to the Minister for Health, stood rejected. The appellant submitted another representation Annexure '0', dated 29‑4‑1978, which was on the same lines and was also rejected, vide letter, dated 24‑2‑1979, Annexure 'P'.
5. The question of determination of the correct legal status of the Fatima Jinnah Medical College, and Sir Ganga Ram Hospital became the subject matter of judicial scrutiny in a writ petition filed by Dr. M.H. Randhawa, Associate Professor of Fatima Jinnah Medical College, Lahore.
The single Bench of Lahore High Court held that it was not a Government owned Institution and it did not stand taken over under the provisions of M.L.R. 118. The decision of learned Single Bench was challenged in I.C.A. and learned Division Bench comprising Mr. Justice Saad Saood Jan and Mr. Justice Ubaidullah Khan, vide their judgment, dated 15‑8‑1983, reversed the judgment of the learned Judge in the Chamber and clarified that this institution stood taken over by the Government w.e.f. 1‑9‑1972, under para. 4 of M.L.R. 118. Immediately after the said judgment was so delivered the appellant became aware of his status, so he filed an application to the Governor of Punjab to reconsider his case in view of the said judgment and also filed this appeal before us.
6. It will be useful to mention the status of contesting respondents at this stage. Dr. Syed Wasif Mohyuddin, Dr. Abdul Jalil Daula and Dr. Riaz Muhammad Mahju, Dr. Muhammad Khalil Rana and Dr. Muhammad Yasin Durrani, respondents Nos. 29, 41, 42, 57 and 58, respectively, joined the Department as Assistant Professors much later than the appellant. They were promoted as Professors of Ophthalmology on 29‑4‑198fl‑ 29‑4‑1980, 29‑4‑1980, 1981 and 1983, respectively. With regard to Muhammad Munirul Haq, it may be observed that he belongs to the same batch and according to the merit assigned by the Public Service Commission, the appellant was placed senior to Dr. Muhammad Munirul Haq in the cadre of Assistant Professors. Thereafter the appellant was promoted as Professor of Ophthalmology w.e.f. 24‑4‑1975, whereas, the respondent Dr. Munirul Haq was promoted as Professor of Ophthalmology on 9‑1‑1976. With regard to other respondents who were working in other Institutions it may be submitted that they were promoted much later than the appellant.
7. We have heard the learned counsel for the appellant as well as learned counsel for the contesting respondents as well as learned District Attorney assisted by the representative of the Department on behalf of Government, and have perused the entire record of this case carefully with their assistance.
8. Learned Counsel for the appellant have submitted that when the appellant was firstly sent on deputation to Fatima Jinnah Medical College, Lahore, and later on resigned from service to fulfil the condition for his employment in the said Institution as a fulfledged Professor of Ophthalmology, the legal status of Fatima Jinnah Medical College was not clear to Government whereas by operation of M.L.R. 118, the said Institution had already been taken over by the Government w.e.f 1‑9‑1972. It has been forcefully argued that the Government in the Health Department was quite oblivious of M.L.R. 118 as the legal effect of the said M . L. R . 118 would be that service of the Fatima Jinnal Medical College, Lahore, was also a Government service. In this manner even the period of deputation of the appellant earlier than hi appointment as Professor of Ophthalmology in 1975, would be a period in Government service. It has been further argued that had the Health Department been clear about the correct position then the appellant would have been allowed to continue as such in Fatima Jinnah Medical College, Lahore, and there was no question of his repatriation back to the parent Department. Similarly in these circumstances there would have been no question of recruitment of the appellant as a direct recruit to the post of Professor of Ophthalmology in said Institution and in these circumstances, his resignation, which he was forced to tender, would be under a mistaken belief that the said Institution was a non‑Government Institution and if the state of the said Institution would have been clear to him, he would have hardly resigned from the said job. He has also referred to the background of this case and has submitted that actually all this was done through a strong political lobby in order to dislocate appellant and to disturb his seniority to favour the next junior namely Dr. Muhammad Munirul Haq. To elaborate this argument, he submitted that these facts are supported by the event that the post of Professor at Quaid‑e‑Azam Medical College, Bahawalpur, remained vacant till an additional post was created at King Edward Medical College, Lahore, and Dr. Muhammad Munirul Haq, junior to the appellant was accommodated thereby promoting him as Professor of Ophthalmology in King Edward Medical College, Lahore. Learned Counsel for the appellant has very much relied on the judgment of Division Bench of Lahore High Court as well as Memorandum of Appeal filed by Government before the said Court during the hearing. It was the judgment of Mr. Justice Gul Muhammad Khan. It has been submitted by the learned counsel for the appellant that whereas the Government had taken a stand before this Tribunal that in fact the Government took over the Institution since 1980 but it has been categorically stated before the ICA Bench that this Institution was taken over by the Government by virtue of M.L.R. 118, para. 4 since1972. He has further relied on the judgment of this Tribunal passed in the case of Dr. Khalida Usmani, in which this Tribunal, following the judgment of Division Bench of Lahore High Court, has held that Fatima Jinnah Medical College stood vested in Government since 1972 by virtue of M.L.R. 118, which was a supra law. In support of his contention that all acts done since 1972, after the Fatima Jinnah Medical College stood vested in Government, legal effect and, therefore, the appellant would be considered to be Government service as Professor of Ophthalmology since 1975 under all circumstances, he has relied on P L D 1947 Privy Council 344 at page 358, P L D 1979 Kar. 300 at page 306 (Paras. 14 & 15), 1982 S C M R 33. According to him the gist of these rulings are that when all are under a mistake, there was neither stopple nor waiver, nor acquiescence. Learned Counsel for the appellant have also relied on P L D 1963 S C 382 at page 400, PLC 1994 S C 572 to show that no one should be prejudiced due to the mistakes of the Government. All technicalities have to be avoided. He has: further relied on 1984 SCMR 289 and 1983 S C M R 765 to show that an option given by a civil servant against the law which was then prevalent cannot operate against him. According to him if status of a Government servant is restored by operation of law then the mere fact that the appellant had not done anything for the restoration of his status will not go against him. Similarly he has relied on 1984 S C M R 286, 1984 P L C (C S) 452 of Federal Service Tribunal, Case No. 309/728 of 1984 decided by Punjab Service Tribunal. on 21‑11‑1984 in case of Muhammad Bashir Sh. v. Secretary, C & W Department and Case No. 449/992 of 1984, decided by P.S.T. in re. Hamid Ali Baig Mirza v. Secretary S.G.A. & I Department Punjab, Government, to indicate that decision of a Court is applicable to all civil servants including those who were not party to such a decision although their case might have been decided long ago. It is the Government's own duty to apply the revised judgment of the Court to identical similar cases if such a Government servant makes a representation. In these cases the civil servants concerned made representations to the Departments concerned after a long period of the decision of the Courts and ultimately filed appeals to the Service Tribunals which were accepted on the basis of new judgments of the Courts.
9. With regard to the point of limitation it has been submitted that the judgment of the High Court, Lahore pronouncing the correct status of Fatima Jinnah Medical College was reported in January, 1984 and it came to his knowledge in July, 1984, when he made representation. After waiting for 90 days he filed the present appeal within next 30 days. However, in the above quoted decided cases the successful appellants before the Service Tribunals had represented many years after the decision of the Service Tribunal concerned and then filed appeals in Service Tribunal on expiry of 90 days which were accepted. He has relied on 1985 S C M R 946, in which 12 years delay was ignored by the Punjab Service Tribunal and it was approved by Supreme Court of Pakistan on the ground that the pleas raised by the Government were "technical and procedural". He has also relied on 1984 C L C 119, wherein correct legal status of Fatima Jinnah Medical College was determined as Government Institution.
10. On the other hand elaborate written statement on behalf of Dr. Muhammad Munirul Haq, respondent No. 6, has been filed, in which a number of preliminary objections have been taken as well as merits of the case have also been elaborated in favour of respondents Dr. Munirul Haq and others. Learned Counsel for the respondent after adopting the said written statement on behalf of respondent No. 6 have relied on various written statements filed by the other respondents and have submitted that the appeal was liable to be dismissed on the following legal as well as factual grounds:‑‑
(1) That the appellant filed a representation before the Martial Law Administrator, Zone 'A' which was rejected by him, vide letter, dated 24‑2‑1979, with the observations:‑‑
"resignation once tendered and accepted cannot be withdrawn. It is, therefore, regretted that your request contained in the above petition cannot be accepted to."
In view of the above, it has been submitted that this Court has no jurisdiction to set aside the order of Martial Law Administrator ns it constituted a bar under Article 15(2) of Provisional Constitutional Order, 1981.
(2) That the appeal is directed against the notification No. S.O. (Admn. I)‑1/79‑73, dated 19‑5‑1975 by which the resignation of the appellant was accepted by the Governor of Punjab, therefore, the appeal having been filed after about 91 years on 12‑11‑1984, was hopelessly time‑barred and liable to be dismissed on this score alone.
(3) Assuming, without conceding, that plea with regard to judgment of the High Court as ground of condonation is valid, the appeal was filed beyond the prescribed period of 30 days even after the delivery of the said judgment on 15‑8‑1983 and its publication in January, 1984 part of C L C. According to the learned Counsel the appeal was filed, on 12‑11‑1984 is still hopelessly barred by time. Reliance has been placed on Supreme Court judgment in case of Hamad Raza v. Government of Pakistan (C.P.S.L.A. No. 1350 of 1980). It has been further submitted that even the decision of Division Bench of Lahore High Court in the case of Dr. Khalida Usmani who was serving in Fatima Jinnah Medical College was well known to all the staff members including the appellant, therefore, the delay cannot be condoned.
(4) That even the necessary answering respondents were not impleaded in the appeal so filed before this Tribunal and were impleaded after the appellant was directed to do so, therefore, the period of limitation would run against the appellant vis‑a‑vis the respondents.
(5) The appeal of the appellant was hit by law of estoppel as by his conduct in questioning the non‑Governmental status of Fatima Jinnah Medical College in view of the fact that he had himself been treating the same as private Institution which is obvious from his own conduct by accepting the service on deputation in the said Institution and later on resigned from Government service, when he was asked by the Governing Body of Fatima Jinnah Medical College to do so.
(6) Fatima Jinnah Medical College was functioning under the Governing Body registered under the law. Its corporate character remained intact despite promulgation of M.L.R. 118 notwithstanding the vesting of college in Government under M.L.R. 118. According to the well settled interpretation of the expression "Vest", its connotation is not fixed and it depends upon the context in which it is used. Having regard to the context, vesting cannot operate to convert Fatima Jinnah Medical College into a Government Institution for all purposes as divorced, from its corporate character, since in the context the word vest is readily understandable as referring to overall supervision of Government without disturbing its separate identity and corporate character. In this view of the matter, the staff working in Fatima Jinnah Medical College has a separate…
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