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Initializing Secure Chambers
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Petitioner: HASAN IMAM JAFERY VS Respondent: SOCIAL SECURITYHonorable Justice MANZOOR HUSSAIN SIALCh. Muhammad Ikram Zahid
1993 P L C (C
1993 P L C (C.S.) 1040
[Lahore High Court]
Before Manzoor Hussain Sial and Mian Ghulam Ahmad, JJ
HASAN IMAM JAFERY
versus
SOCIAL SECURITY and others
I.CA. No. 292 of 1992, decided on 2nd November, 1992.
Constitution of Pakistan (1973)‑‑‑
‑‑‑‑Art. 199‑‑‑Constitutional jurisdiction, exercise of‑‑‑High Court in exercise of its Constitutional discretionary jurisdiction must consciously and resolutely refuse to come to aid of or allow it to be exploited by a crafty and fussy civil servant in interest of service discipline as also in public interest.
Ch. Muhammad Ikram Zahid for Appellant.
ORDER
MANZOOR HUSSAIN SIAL, J.‑‑‑Mr. Hassan Imam Jafery, appellant, through this Intra‑Court Appeal has called in question validity of an order passed on 7‑7‑92 by a learned Judge in Chamber, whereby writ petition No.5486 of 1992, earlier filed by him under Article 199, Constitution of Islamic Republic of Pakistan had been dismissed.
2. Dr. Hassan Imam Jafery, on his appointment as Medical Officer, had reported for duty on 24‑4‑84, in the office of Punjab Employees' Social Security Institution, 234‑B, Peoples Colony, Faisalabad. He was posted as Resident Medical Officer in the Social Security Hospital, Faisalabad. He was granted permission for private practice, on a move made by him, in the year 1990. An order on 11‑8‑90 was passed by the Medical Superintendent of the Hospital, posting him as an ordinary Medical Officer, no longer entitled to draw non -practicing allowance. This order was assailed by Dr. Hassan Imam Jafery, by filing a civil suit, on 6‑12‑90. His prayer for issuance of ad interim injunction was turned down by the trial Court. He however succeeded in appeal in that regard; but this Court, on 20‑5‑92, accepted the revision petition preferred by the Medical Superintendent, setting aside the order dated 13‑11‑1991, passed by Ch. Ahsan Ahmad; Addl. District Judge, Faisalabad, and restoring the trial. Court's order dated 16‑2‑91. Thereupon, the doctor filed the writ petition (No. 5486 of 1992), in order to achieve the same object, pleading that the process of normal civil litigation was very lengthy and was germane to denial of the requisite relief, and he was therefore invoking the constitutional jurisdiction of this Court in order to seek the only available efficacious, immediate and timely remedy, which he stood in need of. He however met failure, as although the writ petition was entertained on 20‑6‑1992, it was dismissed shortly afterwards on 7‑7‑92. Even initially this court had declined to afford to the petitioner any interim relief.
3. Main plea of the petitioner is that his shifting from the post of R.M.O. to that of M.O. amounted to his transfer, which the Medical Superintendent was not empowered to order, as the same was the exclusive authority of the Commissioner, Social Security, and in holding otherwise, this Court had actually conferred on the Medical Superintendent a power which he/she did not possess. Rules on the subject have been misconstrued by the learned Single Judge of this Court and the same has brought in its wake real hardship for him, amounting to injustice, it is so canvassed by the learned counsel for the appellant. It is also submitted that an element of malice actually attended the event of in his posting as M.O. ordered by the Medical Superintendent, as she had been using the hospital and its theatres personally and providing the same to the visiting physicians and surgeons for treatment of their private patients, and the appellant had been objecting to it, thus incurring annoyance of those involved, respondent No.3 in particular.
4. We have carefully considered the submissions in order to find out if the same have any substance and truth, even prima facie.
5. If indeed there was any weight in the argument that it was a case of transfer, although the learned Single Judge in Chambers has held otherwise, observing that it was only interchange of duty, within the same campus, and in the same hospital, the petitioner was at liberty to have approached the Commissioner in order to have the order undone; and it will not be denied that the Commissioner was empowered to step in and could have reversed the orders, if so warranted by the situation.
6. The appellant is not correct when he urges that even as R.M.O. he could have his private practice. If that was so, there was no need for him to have applied in that regard to the Commissioner; but he did so, and was granted the necessary permission, vide order dated 11‑1-90. When he intimated that he had actually started private practice w.e.f. 1‑8‑90, the impugned order by the Medical Superintendent was passed on 11‑8‑90, posting him as M.O., and holding him no more entitled to draw non‑practising allowance. Incidentally this development also demonstrates that the Medical Superintendent had not acted hurriedly in the matter, as if she was on the look out to secure his shifting from the post of R.M.O. elsewhere. The orders allowing him private practice were passed on as back as 11‑1‑90, whereas the impugned order was made on 11‑8‑90. How could, then, it be inferred that the order was tainted with mala fides or attended by ulterior intentions or objectives. On the contrary, it appeared to have been made in good faith and in public interest.
7. Post of R.M.O., as has been observed by the learned Judge in Chambers, carries with it is the facility of an on‑the‑premises residence, as R.M.O. has to be on duty round‑the‑clock, always available to attend to emergencies, and a doctor, who is engaged in his private practice, cannot possibly cater to the requirements of the patients pouring in or admitted in the hospital, day and night. Actually, it appears, the appellant has not much to grudge against or lose by his posting as M.O., in terms of residential allowance or non‑practising allowance, and his underlying desire and aim is to perpetuate his stay in the officially provided residence in the premises. This Court, especially in exercise of the discretion and the jurisdiction it is possessed of, under Article 199 of the Constitution, must consciously and resolutely refuse to come to the aid of or allow it to be exploited by a crafty and fussy civil servant, like the‑appellant, in the interest of service discipline, as also in public interest.
8. The learned Single Judge was in no way erratic or even hasty in declining to concede to the petitioner the relief he was seeking, and in dismissing the writ petition; and finding no worth and no substance in the pleas raised in the Intra‑Court Appeal, we proceed to dismiss it, in limine.
H.B.T./H‑65/L Intra‑Court Appeal dismissed.