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Petitioner: Dr. MUHAMMAD MUNIRULHAQ and others VS Respondent: Dr. MUHAMMAD LATIF JUDGMENT
Court Name: Supreme Court of Pakistan Judge(s): Nasim Hasan Shah, Shafi-ur-Rehman, Rustam S. Sidhwa Title:Dr. MUHAMMAD MUNIRULHAQ and others vs Dr. MUHAMMAD LATIF
JUDGMENT
Reported As: 1992 SCMR 2135 Result: Appeals allowed Judgment JUDGMENT ' SHAFIUR RAHMAN, J.---These three appeals under Article 212(3) of the Constitution arise out of the same judgment of the Punjab Service Tribunal dated 19th of February, 1986. The question of law requiring examination in these appeals are, inter alia, "whether the question of the bar of limitation could be overcome by making the general observations as was done by the Service. Tribunal. Further, on merits when the respondent No,1 had himself submitted his resignation and had preferred a job other than the one which he was being offered by the Government could he be allowed to repudiate his own act". 2. The factual background of these appeals requires disclosure in some detail. ' Dr. Muhammad Latif Chaudhry (respondent No,1 in all appeals) who was the appellant before the Service Tribunal was offered a temporary post of Assistant Professor of Opthalmology on the recommendation of the West Pakistan Public Service Commission by the Government of West Pakistan by a letter dated 14th. Of September, 1967. He took up the appointment. He was confirmed in the same post with effect from 26-11-1968 by an Order dated 18th of May, 1971. 3. In Lahore, there happened also to be Fatima Jinnah Medical College, Lahore. It was set up and housed in the building of Balak Ram Medical College which alongwith its attached hospital known as Ganga Ram Hospital, Lahore was non-Muslim evacuee trust property. After independence, a society by the name of the Association for the Control and Management of the Fatima Jinnah Medical College, Lahore and Sir Ganga Ram Hospital,Lahore was formed on 2-5-1950 and registered under the Societies Registration Act, 1860 on 9-5-1950. One of the objects of the Society was to maintain and manage this College and Hospitals. There were seven members of the
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Society. The Management of the affairs of the Society was vested in Governing Body consisting of sixteen members, to be constituted as hereunder:-- "(1) Director-General of Health Pakistan, during the term of his office, who shall also be the Chairman of the Governing Body. (2) Director of Health Services, Punjab, during the term of his office, who shall also be the Honorary Secretary. (3) Accountant-General, Punjab, during the term of his office, who shall also be the Honorary Treasurer. (4) Surgeon-General with the Government of East Bengal. (5) Inspector-General of Civil Hospitals, N.-W.F.P. (6) Inspector-General of Civil H[ospitals, Sindh. (7) Six members to be nominated by the Central Government of Pakistan. (8) Four members to be nominated by the Punjab Government." ' For performance of functions, "the Society was to have an executive committee for attending to day to day work. Four nominees of the governing body, including the Honorary Secretary and the Honorary Treasurer, Principal of Fatima Jinnah Medical College and Medical Superintendent, Sir Ganga Ram Hospital, who was also to be the Ex Officio Secretary of the Committee, were to constitute the executive committee. The executive committee through its Secretary was to maintain the accounts of the Society and all money received was to be deposited in Lloyds Bank Limited, Lahore, or any other scheduled Bank in Pakistan to the credit of the Society. The Honorary Treasurer and the Honorary Secretary of the governing body were jointly to operate the bank accounts. The governing body and the executive committee had all along been performing their functions under the rules and regulations of the Society". 4. On 1-4-1972, came to be enforced Chief Martial Law Administrator Regulation No,118 (hereinafter referred to as MLR 118). The material provisions of it are contained in paragraphs 4, 7 and 17 which are reproduced hereunder:-- "4. As from the first day of September, 1972, all privately-managed colleges, together with all property attached to them, shall vest-- (a) in the Central Government, if they are situated in the Islamabad Capital Territory; and (b) in the Provincial Government, if they are situated in a Province. 7.--(1) No person who owns or manages a privately-managed college or a privately-managed school shall-- (a) employ or engage any person for the purposes of the college or school, other than a person who was so employed or engaged immediately before the fifteenth day of March, 1972; or (b) save as otherwise provided in sub paragraph (2), change the terms and conditions of service of any person in his employment immediately before the fifteenth day of March, 1972. (2) As from the 1st day of October, 1972, the teachers of all privately-managed colleges and privately-managed schools shall be entitled to the same scales of pay to which the teachers of equivalent qualifications, seniority and experience in the colleges and schools maintained by Government are entitled. 17. Contravention of any of the provisions of this Regulation shall be punishable with rigorous imprisonment for a term which may extend to three years, or with fine, or with both." 5. Notwithstanding these self-operative provisions of MLR 118, the Governing Body of the Fatima Jinnah Medical College continued to function and to exercise all the powers and authority in respect of the College till 1-7-1980 when a notification, taking notice of and giving effect to the provisions of MLR 118, appeared on the scene. 6. Soon, after his confirmation as Assistant Professor Ophthalmology notified on 18-5-1971, w.e.f, 26- 11-1968, the Government of the Punjab in the Health Department permitted the deputation of
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respondent No,1 on a higher post in the Fatima Jinnah Medical College as would appear from the following sanction letter:-- "Dr. Muhammad Latif Ch., Assistant Professor, Ophthalmology, King Edward Medical College, Lahore, is hereby deputed to Fatima Jinnah Medical College, Lahore for appointment as Professor of Ophthalmology vice Dr. Raja Mumtaz Qjli Khan already repatriated to the parent Department. ' The terms and conditions to be offered to Dr. Muhammad Latif Ch. On deputation as Professor of Ophthalmology to Fatima Jinnah Medical College, Lahore, may kindly be communicated after having the approval of the Executive Body." ' A request was also addressed to the Principal, King Edward Medical College, Lahore to the effect that "Dr. Muhammad Latif Ch. May immediately be relieved for taking charge of his new assignment, as Professor of Ophthalmology, Fatima Jinnah Medical College, Lahore". 7. The formal letter of deputation issued in October, 1973 and incorporated the terms as hereunder:- "The Government of the Punjab is pleased to depute Dr. Muhammad Latif Chaudhry, Assistant Professor, Ophthalmology, K.E.M.C., Lahore to F.J.M.C., Lahore, for appointment as Professor of Ophthalmology for a period of two years with effect from 18-5-1973 on the following terms and conditions:-- (i) He will be allowed to receive the pay and technical pay admissible to him as Assistant Professor in the parent Department plus a deputation pay at the rate of 20% of his basic pay while on deputation. If he promoted as Professor in his parent department he will not be entitled to any deputation pay. (ii) He will be entitled to leave, medical facilities and TA/DA as admissible to him under the Government while on deputation. Pay/TA/DA for joining the post under the FJMC, Lahore and on his repatriation to the parent department shall be the responsibility of the Governing Body of FJMC, Lahore. (iii) The Govering Body of FJMC, Lahore, will pay towards leave, salary and pension contribution through the. Accountant-General, Punjab, Lahore, for the entitled period of deputation at Provincial Government rates. (iv) He shall be entitled to residential accommodation in accordance with the instructions contained in Finance Departments' Circular Letter No,PS-11-13(2)/Estt. Dated 7-7-1966." 8. On 5-12-1974, an anticipatory communication was addressed by Principal, Fatima Jinnah Medical College, Lahore, to the Secretary to Government of the Punjab, Health Department, in terms as hereunder:- "Dr. Muhammad Latif Chaudhry has been working in this College as Professor of Ophthalmology since 18-5-1973. He has built up a new unit and has ordered eye equipments worth Rs,7-1/2 lacs which will be received during this year. I have heard that he is going to be promoted in his parent department and he is being recalled. All the labour that he has put in here in this College and the equipment worth Rs,7-1/2 lacs would be a waste if he is shifted from here. Even the students will suffer. It is requested that he may be promoted and allowed to stay in this College." ' As anticipated, Dr. Muhammad Latif Chaudhry/respondent No,1 was promoted a few months thereafter and the notification dated 24-4-1975 was issued on the subject, as hereunder:- "No, SO (Admn.I)-1/9-73.--The Government of the Punjab in consultation with the Selection Board of S.GA. & I. Department is pleased to promote Dr. Muhammad Latif Chaudhry, Assistant Professor of Ophthalmology, presently working at Fatima Jinnah Medical College, Lahore, as Professor of Ophthalmology, in National Pay Scale No,19, with immediate effect. II ' On promotion he is posted as Professor of Ophthalmology at Quaid-eAzam Medical College, Bahawalpur against an existing vacancy. III
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' He is directed to report for duty at Bahawalpur within 15 days of the issue of this notification failing which he will be debarred from promotion for future." 9. This notification had two immediate consequences. The first was a strike by the students of the FJMC against the transfer of Dr. Muhammad Latif Chaudhry/respondent No,1 from that College. It continued for more than three days and the Minister's statement appearing in the press has been placed on record at page 197 of the Paper Book in CA.178 of 1986, as hereunder:- "Minister regrets FJMC strike ' By our woman Reporter ' Brig. Sahibdad Khan, Health Minister when contacted on Saturday, stated that it was unfortunate that the F.J. Medical College girls were adamant on continuing strike. ' He said that it was in Dr. Latif Chaudhry's interest that he should take charge of the Professor's post that is lying vacant at the Bahawalpur Medical College as it would mean a promotion for him. ' The Minister said that when the post of the Professor of Ophthalmology is advertised Dr. Latif Chaudhry could apply for it and be appointed on a permanent basis at the Fatima Jinnah Medical College. ' It is learnt that the F.J. Medical College Administrator will advertise the vacancy in a couple of days." 10. On 28-4-1975 the press advertisement of the post of Professor of Ophthalmology in the Fatima Jinnah Medical College appeared making it clear that it was a non-governmental post with no pensionary benefits but on confirmation contributary provident fund facility was available. Respondent No,1, in compliance with the notification of his promotion and posting at Bahawalpur took over the charge on 25-4-1975 at Bahawalpur. On the 29th of April, 1975, he addressed a letter to the Secretary, Government of Punjab, Health Department, through proper channel, as hereunder:- "I wish to apply for the post of a Professor of Ophthalmology at Fatima Jinnah Medical College, Lahore which has been advertised in the Press on 28th April 1975. ' It is, therefore, requested that my application may be forwarded to the Principal, Fatima Jinnah Medical College, Lahore. It is further requested that if I am selected and confirmed on permanent basis, I may please be relieved from the Government service." ' It was recommended and forwarded for further necessary action by the Administrator, Quaid-i- Azam Medical College, Bahawalpur. 11. On the 14th of May, 1975, the Principal, F.J. Medical College, Lahore, addressed the following letter to respondent No,1-- "Subject: Appointment as Professor of Ophthalmology. ' Reference your application. ' You are hereby offered a post of Professor of Ophthalmology in the National Pay Scale No,19 i.e, Rs,1,800-80-2,200 in this College, provided you resign from Government service, on the following terms and conditions:-- (1) You will be governed by the Rules and Regulations framed by the Governing Body of this College regarding your service from time to time. (2) In case you wish to resign your appointment at any time during your service, you will have to give one month's notice or pay one month's pay in lieu thereof. (3) You must be domiciled in Pakistan. (4) You will have to produce a Medical Certificate of fitness for first entry into service. ' If you accept the offer on the terms and conditions mentioned above, you are requested to please report for duty to this office immediately. ' A copy of the Matriculation Certificate & M.B.,B.S. Degree together with the domicile certificate may please be submitted in the College before joining the duty. Please fill in the charge report of taking
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over the charge of the post and send to the undersigned. ' No T.A./D.A. Will be paid to you for joining the first appointment." 12. On the 19th of May, 1975, the respondent No,1 addressed the following letter to the Secretary, Health Department, Government of Punjab:-- "Reference my application dated 30-4-1975. ' 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 forthwith, so as to join my new assignment. Kindly accept the same." 13. On the 7th July, 1975, the respondent No,1 addressed the following application through proper channel to the Minister of Health, Government of the Punjab:-- "I joined as Assistant Professor of (Oph) at K.E. Medical College, Lahore in September, 1967. ' In May 1973 I was sent to Fatima Jinnah Medical College on Deputation as Professor of Ophthalmology. ' In April 1975 having been promoted as Professor. Of Ophthalmology in my own cadre, I was posted at Quaid-e-Azam Medical College, Bahawalpur. ' As the Eye Department of F.J. Medical College is being equipped with latest equipment for Therapeutic research and teaching purposes and in view of this specialised equipment being half installed as yet I requested the Government to keep me at F.J. Medical College on deputation after having been promoted as Professor in my own cadre. ' My appointment at F.J. Medical College was made conditional to my resignation from Government service. ' Hence I had to resign on 19-5-1975 from Government service to join the staff of F.J. Medical College. ' In view of the excellent service record and about 8 years of Government service it is requested that my resignation may kindly be reconsidered and I may be kept at F.J. Medical College on deputation for a further period of 5 years. ' I should be highly obliged for a favourable consideration." 14. A letter, it appears, to the same effect was addressed by the Principal, Fatima Jinnah Medical College and a reply to the Principal was sent as hereunder:- "Subject: Transfer of Government service on permanent basis in respect of Dr. M. Latif Chaudhry Prof. Of Ophthal. ' Reference your Letter No,PF/6023/FJ dated 30-7-1975 on the subject noted above. ' It is regretted to point out that your recommendations are not understandable. Dr. M. Latif Chaudhry, Prof. Of Ophthalmology resigned from Government service for joining the service under the FJMC, Lahore. His resignation was accepted and conveyed to him. The matter ends so far as Government is concerned." ' A copy of it was also forwarded to respondent No,1, on 29-8-1975, by the Principal, F.J. Medical College, Lahore. ' As regards, the request made to the Minister, it was replied to on 3rd of May, 1976 by the following communication:-- "Subject: Withdrawal of resignation. ' Reference your representation addressed to the Health Minister, for the withdrawal of resignation. ' It has again been duly considered and rejected." 15. The second representation was addressed to the Martial Law Administrator Zone 'A', on 29th April, 1978 and this appears to be in breach of service discipline as it was not routed through the proper channel. It was in this particular representation that for the first time the following grounds were made the basis for claiming relief against the resignation:--
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(i) It was during the previous regime that due to developments mentioned below, I was forced to resign from the service and thus deprived of the privileged position of a government employee. (ii) Despite my request and initial favourable response from the Health Department, I was transferred to Bahawalpur, where I had to report for duty. (iii) I applied for this post and my application was forwarded by the Health Department with a precondition that I will have to resign from the Government service, if selected by Fatima Jinnah Medical College. (iv) I was selected on merit for the above post, and in accordance with the departmental condition, I had to resign from the Provincial Government under compulsion. (v) It is respectfully submitted that premature termination of my deputation in spite of initial favourable response from the Government, my transfer to Bahawalpur and the imposition of a precondition in forwarding my application to Fatimah Jinnah Medical College, was manoeuvred through strong political lobby, in order to dislocate me from Lahore and disturb my seniority with an ulterior motive to favour the next junior person." ' The relief that he sought was as hereunder: "In view of the above it is obvious that I was victimised and was deprived of my Government job and seniority. It is, therefore, requested that my case may be reviewed and (i) my esignation from the service may be treated as null and void, (ii) my subsequent service period with Fatima Jinnah Medical College, Lahore may be treated as on deputation, (iii) my original seniority in the department may be maintained. ' It is further submitted that similar pleas were conceded to by the Government in cases of Mr. M. H. Jaffri, Additional Secretary, Education and (late) Mr. Saeed Anwar, Section Officer." ' The Martial Law authorities informed him on 24th of February, 1979, as hereunder: "Your representation dated 29-4-1978 on the above subject refers. ' Resignation once tendered and accepted cannot be withdrawn. It is, therefore, regretted that your request contained in the above petition cannot be acceded to." 16. On 1-7-1980, the following notification was published:-- "No, SO(P & P)-12/5-79.--The Governor of the Punjab is pleased to direct that the administrative control and management of the Fatima Jinnah Medical College, Lahore, with its allied hospital and other property attached to it, which on nationalization stood vested in the Government of the Punjab as from the first day of September, 1972 under para.4 of the Martial Law Regulation No,118, be taken over by the Health Department of the Government of the Punjab with immediate effect." 17. On 13-7-1980, the policy of the Government of the Punjab with regard to the Fatima Jinnah Medical College was notified for the benefit of its employees and those affected by the take-over. The condition of the policy which is relevant and important for the case is condition No,2 which prescribed that the employees of the College as on 1-7-1980, whether temporary or permanent, shall not be adversely dealt with in the matter of their terms and conditions of service. 18. The same year i.e,, in 1980, a dispute between the two appointees of the Fatima Jinnah Medical College with regard to their seniority and intervention of the Punjab Administrative Vigilance Commission therein was brought to the Court in Writ Petition No,3972-S of 1980. The learned Judge in chambers concluded the controversy by holding as hereunder: "...The Government of the Punjab never took over the administration and control of Fatima Jinnah Medical College as a matter of fact. The employees of the College were not civil servants and did not enjoy any facility of the Government as such. Rather, it always acknowledged and allowed the Board of Governors and the Executive Committee, appointed under the direction of the Central Government, to manage and administer it. So much so that even the order passed by the Governor under section 24 of the Ordinance, on the reference made by the Commission, before the Notification dated 1st of July, 1980, was implemented not by a Department of the Government but
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by the Secretary Health in his capacity as Chairman of the Executive Committee of the Fatima Jinnah Medical College. Further, the College never vested automatically in the Government of the Punjab under para. 4 of the Martial Law Regulation 118 and as a matter of law it zould not have so happened as it was being managed under the direction of the Central Government though maintained in equal shares by the Central and the Punjab Governments. Again, the College was not an 'agency' as defined in section 2(H) of Ordinance X of 1979. In any case, the reference made by the Commission was also not valid and the implementation of the order of the Governor sought for by the Services and General Administration Department was far in excess of the order of the Governor." ' On an Intra-Court Appeal (Dr. Khalida Usmani v. Dr. M.H.Randhawa and 4 others - 1984 CLC 119 - Lahore) a Bench of the High Court reversed the judgment holding that the effect of MLR 118 was that from 1972, the Fatima Jinnah Medical College vested in the Provincial Government and the interference of the Punjab Administrative Vigilance Commission and Governor could not be declared to be without lawful authority. ' While this controversy between the two staff members was going on, respondent No,1 was also on the strength of Fatima Jinnah Medical College. When the judgment was published and received publicity, he (respondent No,1) addressed a representation on 15-7-1984 to the Governor through proper channel. Apart from the points pressed by him in his earlier representation, he took up the following additional grounds in it: "...On 18-5-1973 when I was sent on deputation to Fatima Jinnah Medical College, the said institution was in fact another Government Institution and I shall be legally deemed to be serving a Government Institution throughout. In other words, I remained continuously performing my duties and functions as Government servant after having been promoted as Professor of Ophthalmology irrespective of my resignation. Though my resignation was even otherwise illegal being under compulsion, yet after the promulgation of Martial Law Regulation 118, notification dated 1-7-1980 and the Judgment of Lahore High Court given in this context, the resignation shall be ab initio void and illegal. The resignation as such shall not in any way affect the continuity of my service as a Government servant in my capacity as Professor of Ophthalmology. As already stated above, I was promoted as Professor of Opthalmology on 24-4-1975 and posted at Quaid-e-Azam Medical College, Bahawalpur. Therefore, under the legal position as explained above, my original seniority as Professor of Ophthalmology in the cadre of Province of .Punjab remains unchanged." ' The relief claimed was as hereunder: "In view of the submissions made above, it is most respectfully requested that my original seniority in the cadre of Professors of the Province of Punjab may kindly be maintained and my service be treated as continuous without any break on and with effect from 15-9-1967." 18A. Having not received any response on this representation, respondent No,1 filed an appeal before the Service Tribunal. In this appeal as presented before the Service Tribunal, no ground of being compelled or forced to resign was made the basis for claiming the relief. It was mainly the mistake with regard to the legal position of the Fatima Jinnah Medical College, and the relief sought was as hereunder:- "That it is clear from the judgment of High Court as well as the mandatory provisions of MLR 118 that since 1-9-1972 the Fatima Jinnah Medical College vested in Government. Therefore all the powers with regard to the officers of Grade 19 of this College also vested in the Governor. Consequently the impugned orders dated 14-5-1975 regarding appellant's second selection and appointment by the Governing Body as well as appellant's resignation dated 19-5-1975 and its acceptance by order dated 19-5-1975 are void ab initio and ultra vires the provisions of statute MLR 118. ' It is, therefore, respectfully prayed that in view of the peculiar situation of the case it may kindly be declared that appellant has been in Government service continuously since 15-9-1967 and that, he
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has been a Professor of Opthamology since 19-4-1975. The…
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