Full Judgment Text & Judicial Ruling

2009 P L C (C

2009 P L C (C.S.) 936

[Supreme Court of Pakistan]

Present: Iftikhar Muhammad Chaudhry, C.J., Ch. Ijaz Ahmed, and Mahmood Akhtar Shahid Siddiqui JJ

Dr. M. SOHAIL KARIM HASHMI

Versus

FEDERATION OF PAKISTAN through Secretary, Ministry of Health, Government of Pakistan, Islamabad and another

Civil Petitions Nos.912 and 913 of 2009; decided on 13th July, 2009.

(On appeal from the judgment, dated 28-4-2009 in Appeals Nos.657(R)(C.S.) of 2008 and 314(R)(C.S.) of 2009).

(a) Pakistan Medical and Dental Council Ordinance (XXXII of 1962)---

---Ss. 9(1) & 35---Civil Servants (Confirmation) Rules, 1993, R.6 (4)---Fundamental Rules, R.14-A---Constitution of Pakistan (1973), Art.212(3)---Lien, retention of---Principle---Appointment by Council---Scope---Appellant was an employee of Ministry of Health and applied for the post advertised in press by Pakistan Medical and Dental Council---Later on inquiry was conducted against appellant under S.35 of Pakistan Medical and Dental Council Ordinance, 1962, alleging against him acts of omission and commission, constituting inefficiency, misappropriation, misuse of power and misconduct, resultantly he was repatriated to Ministry of Health---Plea raised by appellant was that after successful completion of his probation, he had become a regular employee of Council and as such could not be repatriated to his previous department---Validity---Provisions relating to retention of lien or right of reversion were beneficial provisions vis-a-vis the government servants---Such provisions had to be construed accordingly to the advantage of government servants and not to their detriment---On his selection and appointment having relieved, appellant to join that post, Ministry of Health should have retained his lien---On completion of his probation, appellant should have been given option to rejoin his parent department and in case of his failing to do so, his lien should have been terminated and he should have been apprised of same accordingly---Appointment of appellant could not be challenged on the ground of irregularities. having been committed by concerned authorities in Pakistan Medical and Dental Council or Ministry of Health---Authorities initiated disciplinary proceedings against appellant, got inquiry conducted against him and finally issued him notice to show cause why action be not taken against him---When authorities were required by High Court to determine as to who was competent authority in respect of disciplinary proceedings initiated against appellant, authorities took somersault and came up with the stance that appellant was a civil servant having lien with Ministry of Health and thus 'repatriated him---If according to authorities, appellant was guilty of misconduct on all or any of the charges levelled against him in the charge-sheet, how he could be. repatriated to his parent department---Service Tribunal completely overlooked such aspect of the matter in the judgment and allowed to go unnoticed the self-contradictory stance taken and zigzag path followed by authorities from time to time---Judgment passed by Service Tribunal and order passed by authorities repatriating appellant to Ministry of Health were set aside---Appeal was allowed.?

Secretary to the Government of N.-W.F:P. v. Saadullah Khan 1996 SCMR 413 rel.

(b) Pakistan Medical and Dental Council ' Ordinance (XXXII of 1962)---

----S. 35 & Preamble---Medical and Dental Council---Object and scope---Inquiry Commission---Pakistan Medical and Dental Council is a statutory body, which is controlled and regulated by provisions of Pakistan Medical and Dental Council Ordinance, 1962---Council carries out purpose of Pakistan Medical and Dental Council Ordinance, 1962, by means of Regulations framed from time to time---Federal Government has power to appoint Commission of inquiry and may amend Regulations of the Council, or make such provision or order or take such other steps as may seem necessary to give effect to recommendations of the Commission---At any rate, the Council remains an independent body, which performs its functions subject to statutory controls and limits.?

M. Shoaib Shaheen, Advocate Supreme Court and Ejaz Muhammad Khan, Advocate-on-Record for Petitioner.

Ms. Naheeda Mehboob Elahi, D.A.-G., Mumtaz Ahmed, Section Officer (Adam.) Ministry of Health, Government of Pakistan, Islamabad for Respondent No.1.

Abdur Rehman Siddiqui, Advocate Supreme Court and Arshad Ali Chaudhry, Advocate-on-Record for Respondent No.2.

Date of hearing: 18th June, 2009.

JUDGMENT

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--- The above two petitions have been filed against the judgment dated 28-4-2008 of the Federal Service Tribunal, Islamabad passed in Appeals Nos.657(R)(C.S.) of 2008 and 314(R)(C.S.) of 2009 whereby the appeals by the petitioner against the order dated 13-5-2008 of the President, Pakistan Medical and Dental Council (PMDC), respondent No.2 repatriating the petitioner -to the Ministry of Health (MOH); Government of Pakistan were disposed of in the terms stated therein.

2. The facts forming background of these 'petitions are that the petitioner was appointed as Medical Officer (BPS-17) in the Ministry of Health (MOH) through the Federal Public Service Commission (FPSC). Later, he was appointed to an administrative post in BS-18 in the MOH, again through the FPSC. While thus working as Assistant Director-General (ADG) in the MOH, he applied for the post of Additional Registrar/Additional Secretary (BPS-19) in the PMDC advertised in the press. After having been selected, he was appointed as such on probation vide letter dated 7-11-2000. He requested the MOH to relieve him to enable him to join his new appointment with a right of reversion for two years. Vide Notification No.PF.1323-MSK/Admn.I dated 4-12-2000 the petitioner relinquished the charge of the post of ADG on 4-12-2000 and was relieved to join the new post in the PMDC. Having worked as Additional Registrar/Additional Secretary of the PMDC for a period slightly over one year, vide Notification dated 31-12-2001, he was appointed as Secretary/Registrar (BPS-20) of the PMDC w.e.f. 29-12-2001.

3. Based upon inquiry report dated 4-9-2007, conducted under the order of the Federal Government under section 35 of the Ordinance, the PMDC vide its No.PF.I-B-2000 (MSKH)-Admn.64871 dated 7-9-2007 issued charge-sheet to the petitioner for having committed acts of commission and omission, which constituted inefficiency, misappropriation, misuse of power and misconduct. The validity of his appointment, first as Additional Registrar and later as Registrar, PMDC was also questioned in the inquiry proceedings. The petitioner submitted his reply to the charge-sheet. But, a show-cause notice dated 20-10-2007 was issued to him stating, inter alia, that the charges having been established and proved against him, as to why one or more penalties including the penalty of dismissal from service be not imposed upon him.

4. Aggrieved by the show-cause notice, the petitioner invoked the jurisdiction of the Lahore High Court, Rawalpindi Bench by means of Writ Petition No.2291 of 2007. Vide order dated 15-4-2008, the learned Chief Justice of the Islamabad High Court (to which the writ petition was transferred on its establishment) held that since the matter was yet to be 'decided by the respondent No.2, any expression on merits would prejudice the case of either side and directed the petitioner to appear before the respondent, who shall grant an opportunity of hearing to him sand determine as to who was the competent authority under the Removal from Service (Special Powers) Ordinance, 2000 to initiate proceedings` against the petitioner and pass a speaking order before adverting to the main controversy.'

5. Accordingly, the respondent No.2, vide his order dated 14-5-2008 held that the petitioner was a regular Federal Government officer having lien, who was liable to be repatriated on the demand of his parent department. He further held that the petitioner being a government servant, the authority competent to initiate proceedings against him under the Removal from Service (Special Powers) Ordinance, 2000 was his parent department, i.e. the MOH. He placed reliance on MOH letters dated 26-1-2005 and 25-4-2005 as well as the instructions issued by the Establishment Division, Cabinet Secretariat, Government of Pakistan on 6-6-1982 laying down the procedure for absorbing a civil servant in an autonomous body to the following effect: -

"As regards absorption in autonomous bodies, a civil servant desiring regular appointment in autonomous bodies, who has not completed 25 years service qualifying for pension and` other retirement benefits, has to resign his post in the Government."

However, it is noteworthy that at no place in the five-paged order., of the respondent No.2 anywhere the view point of the petitioner appears to have been incorporated, rather the order gives the colour of an ex parte exercise where at times the respondent No.2 appears addressing the petitioner in the "first person", but not mentioning the stance being taken by the petitioner pursuant to the questions put to him. Not a single point that may have been agitated by the petitioner in the hearing held by the respondent No.2 is taken down in the order. On that score, it could not be said that a speaking order, as directed by the learned Chief Justice of the Islamabad High Court was passed in the matter. Be that as it may, in pursuance of the above order, the respondent No.2 issued Office Order dated 13-5-2008 in the following terms:---

"In pursuance of the order, passed by the undersigned in compliance to the decision of the Honourable Islamabad High Court, Islamabad on 15-4-2008 in Writ Petition No.2991 of 2007 and in terms of the Government of Pakistan, Ministry of Health's Notification No.PF.1323-MSKH/Admn-I, dated 19th January, 2005, the services of Dr. Muhammad Sohail Karim Hashmi presently working as Secretary, Pakistan Medical and Dental Council are repatriated to the Ministry of Health and he is relieved from duty with effect from 14th May, 2008 (AN).

??? (Sd.) (Prof. Dr. Syed Sibitul Hasnain), President, Pakistan Medical and Dental Council"

6. The petitioner challenged the above order before the Islamabad High Court in Writ Petition No.583 of 2008. A learned Single Judge of the Islamabad High Court, vide order dated 14-7-2008 found that the writ petition was not maintainable in view of the bar contained in Article 212 of the Constitution and remitted the matter to the Federal Service Tribunal (the Tribunal) so as to treat it as a Service Appeal pending before it to be decided after notice to the parties in accordance with law. The proceedings so transmitted to the Tribunal were treated as appeal and registered as Appeal No.314(R)CS/2009. In the meanwhile, the petitioner also challenged before the learned Tribunal the aforesaid order dated 13-5-2008 of the respondent No.2 in Appeal No.657(R)(C.S.) of 2008. By the impugned judgment, the appeals of the petitioner were disposed of in the following terms:---

"20. In view of the above discussion, we conclude as follows:

(i) Appellant is a civil servant with lien on the post of ADG (P&D), Ministry of Health, Islamabad.

(ii) That the appellant was neither confirmed in PM& DC through any decision of the competent authority i.e. the Council of PM&DC nor was he declared employee of PM&DC through any resolution of the Council.

(iii) Appellant did not resign from Government service for absorption in PM&DC as required under the rules and also elaborated in Establishment Division O.M. dated 6-6-1982 which provides for absorption of a civil servant in an autonomous body. In the said O.M. a civil servant who has not completed 25 years service qualifying for pension and other retirement benefit has to resign the post in the Government.

(iv) The post of Registrar/Secretary is a tenure post under the law. No person can be appointed on the said post for an indefinite period. Such indefinite appointment shall be in violation of law. In the system of Government service, employees are not allowed to stay on a particular post for long period because they develop vested interest which vitiates the concept of good governance.

(v) Appointment of the appellant in BS-19 in PM&DC and his subsequent promotion of BS-20 is in the nature of local promotion. Fundamental rules provide that a civil servant posted to an organization where his salary is paid from any source other than Federal Revenue shall be treated as `foreign service'. The appellant is, therefore, to be considered on foreign service during his stay with PM&DC and his promotion in the Autonomous Body shall be in the nature of local promotion.

(vi) MOH was required to notice actions of PM&DC which were in violation of law. Under the Rules of Business, 1973 and the Ordinance, it was the responsibility of the MOH to obtain reports, copies of minutes, extracts of accounts of PM&DC and other information as may be required, in terms of section 34 of the Ordinance. The Ministry was also duty bound under section 35 of the Ordinance to take appropriate action whenever it is made to appear that the Council is not complying with any of the provision of the Ordinance. The MOH failed to perform the business allocated to it under the Rules of Business, 1973 and its duties under the Ordinance.

(vii) Appellant was not appointed Registrar by the Council but was appointed as Secretary in its 97th session. The Notification of PM&DC dated 31-12-2001 being in violation of the decision of the Council to the extent of inclusion of appointment as Registrar (BS-20) w.e.f. 29-12-2001 was also void ab initio.

(viii) Ministry of Health was competent to order repatriation of the appellant on the post on which he had lien. The order of repatriation dated 19-1-2005 remained in the field as the same was not withdrawn by the Ministry of Health being the competent authority in the case. The Government of Pakistan has declared Federal Secretary of the concerned Ministry/ Division as competent authority for officers up to BS-19. Therefore, no exception can be taken to the order of repatriation dated 19-1-2005, passed in the case of a civil servant holding lien on the post of ADG in MOH.

(ix) The PM&DC, where the appellant served, has relieved him w.e.f. 14-5-2008 to report to the Ministry of Health in terms of Notification dated 19-1-2005. The appellant cannot force himself on respondent No.2 against their wish and in violation of their orders.

"21. Based on the above conclusions, we direct as follows:---

(i) Appellant shall report to the Ministry of Health for assumption of charge on the post of ADG (P&D), Ministry of Health, Islamabad.

(ii) Respondent No.1 shall immediately consider the appellant for promotion from the date his juniors were promoted, as was stated at the Bar by the learned counsel for the appellant.

(iii) Respondent shall comply with the provisions of the Ordinance and prescribe tenure for the post of Registrar/ Secretary/Treasurer to avoid complications of this nature in the future.

(iv) Respondents shall take appropriate measures under the law to validate actions taken by the appellant in his capacity as Registrar of PM&DC.

(v) The service rendered by the appellant in PM&DC shall count for pension subject to payment of pension contribution by respondent No.2 or the appellant."

7. Mr. Shoaib Shaheen, Advocate Supreme Court, learned counsel for the petitioner vehemently contended that after direct appointment of the petitioner as Additional Registrar/Additional Secretary (B-19) in the PMDC, he no longer remained a civil servant. His services were not transferred to the PMDC on deputation basis. Hence, after successful completion of his probation, he had become a regular employee of the PMDC and as such could not be repatriated to his previous department, viz., the MOH without his consent. He also contended that in terms of section 2(aa) of the Removal from Service Ordinance, 2000, the Prime Minister was the competent authority of the petitioner for the purposes of proceedings under the said Ordinance. He submitted that the repatriation of the petitioner ordered by the MOH was illegal and mala fide, inasmuch as in the first instance disciplinary proceedings were initiated against him, but without taking the same to their logical end, the respondents took a u-turn and issued the Notification of his repatriation to the MOH in violation of 6(2) of the Civil Servants (Confirmation) Rules, 1993.

8. Ms. Naheeda Mehboob Elahi, learned Deputy Attorney-General and Mr. Abdul Rehman Siddiqui, Advocate Supreme Court appeared on behalf of the respondents and 'supported the impugned judgment of the learned Federal Service Tribunal. It was contended that the petitioner had illegally got himself appointed as Additional Registrar/Additional Secretary (B19) in the PMDC. In fact, he was appointed as such on ad hoc basis for a period of six months. He was not declared by the PMDC as its regular employee and even though he was not given right of reversion by the MOH, yet he continued to be a civil servant on the basis of the provisions of FR 14-A. His subsequent appointment as Secretary/ Registrar, PMDC (B-20) was also illegal, inasmuch the post of Registrar was a tenure post and petitioner could not be appointed against the said post on permanent basis. By virtue of section 33(1)(e), the PMDC was required to provide for tenure of the post of Registrar, which was not done in the Regulations of 1967 and of 2007. He was not appointed as Registrar, but was only appointed as Secretary (B-20) PMDC in terms of section 9(1)(c) of the Ordinance.

9. We have heard the learned counsel for the parties and have gone through the record. For a whole-hogged resolution of the controversy raised in these petitions, let the nature of appointment of the petitioner in the PMDC be determined in the first instance. This 'would also address the peripheral questions such as, whether he was a regular employee of the PMDC or his services were transferred to that body on deputation basis, retention of lien on his previous post, etc.

10. The petitioner was appointed as Additional Registrar/Additional Secretary vide letter No.PF, 1-B-2000(Addl. Secy)/505 dated 7-11-2000, which is reproduced below:--

Subject:??????????? Recruitment to the Post of Additional Registrar/Additional Secretary, PM&DC

With reference to your application for the above post, I am. directed to inform you that the Executive Committee, PM&DC has approved your appointment as Additional Registrar/ Additional Secretary in the PM&DC on regular basis on the following terms and conditions:---

1.

Pay and allowances

BPS-19 (Rs.7750-385-11600) plus usual allowances as admissible to the employees of Federal Government

2.

Probation

(i) You will be on probation for a period of one year extendable by order either before or after its termination by further period not exceeding one year, provided that no order has been made by the day Billowing the termination of either of the afore-mentioned probationary period, the appointment shall be deemed to be held until further orders.? (ii) During the period of probation you are liable to be discharged from service at any time without assigning any reason, on a fortnight's notice.

3.

Performance of duties

You will be required. to perform the duties which may be assigned to you from time to time.

4.

Transfer

You are liable to be transferred to any equivalent post under the P.M. & DC anywhere in Pakistan.

5.

T.A./D.A.

No. T.A./D.A. will be allowed for joining the post.

(2) If the offer is acceptable to you on the terms and conditions mentioned above, you may report for duty to the Secretary, PM&DC at the earliest but not later than 10 days of the issuance of this letter, failing which offer of appointment will stand cancelled."

The petitioner, through a hand written application, requested the MOH to relieve him immediately to join the new assignment in the PMDC with right of reversion for two years. The MOH vide Notification No.PF.1323-MSK/Admn.I dated 4-12-2000 relieved the petitioner to join his new appointment as per following Notification:---

NOTIFICATION

PF1323-MSKH/Admn.I. Consequent upon his selection as Additional Registrar/Additional Secretary (BS-19) on regular basis in Pakistan Medical and Dental Council, Islamabad, Dr. Muhammad Sohail Karim Hashmi, Assistant Director-General (Health), Ministry of Health relinquished the charge of the post of Assistant Director General (Health) on 4th December, 2000 and he has been relieved from the same date."

11. From the above two documents, it is clear that the services of the petitioner were not requisitioned by the PMDC for posting on deputation basis nor his services were so transferred by the MOH. Rather he was appointed as Additional Registrar/Additional Secretary in the PMDC on probation on the terms and conditions prescribed in the offer letter. Accordingly, he was relieved by the MOH to join the new appointment. The respondents have placed on record a copy of letter dated 26-9-2000 of the PMDC to assert that the petitioner was offered the post of Additional Registrar/Additional Secretary on ad hoc basis for a period of six months or till the approval of the Council whichever was earlier.

12. The PMDC, vide its Notification No.PF.1-B(MSKH)/2000/ Admn./632 dated 31-12-2001 appointed the petitioner as Secretary/ Registrar (BPS-20) w.e.f. 29-12-2001. the Notification reads as under:

"Subject:?????????? NOTIFICATION

The Council in exercise of the powers conferred in section 9, subsection (1) clause (c) of the PM&DC Ordinance, 1962 has appointed Dr. M. Sohail Karim Hashmi Additional Secretary/ Additional Registrar (BPS-19) as Secretary/Registrar (BPS-20) w.e.f. 29-12-2001 in its 97th Session held on 29th and 30th December, 2001 in Islamabad.

(Sd.) (Prof. Dr. M. Hayat Zafar) President"

13. The respondents have disputed the appointment of the petitioner as Registrar stating that the PMDC in its 97th Meeting held on 29-30th December, 2001, in exercise of powers vested in it under section 9(1)(c) of the Pakistan Medical and Dental Council Ordinance, 1962 (hereinafter referred to as the Ordinance) had appointed the petitioner as Secretary of the Council, and had not appointed him as Registrar under the said provision.

14. The MOH, vide its Notification No.PF.1323-MSKH/Admn-I dated 19-1-2005 repatriated the services of the petitioner in the following terms:---

"The services of Dr. Muhammad Sohail Karim Hashmi, Assistant Director General (BS-18), Ministry of Health presently placed with the Pakistan Medical and Dental Council as Additional Registrar/Additional Secretary are repatriated to the Ministry of Health with immediate effect. On repatriation, he is posted as Assistant Director General (P&D) in the Ministry of Health."

The PMDC considered the issue of repatriation of the petitioner in its 104th Session held on 26 and 27th January, 2005 and requested the MOH to withdraw the orders of repatriation of the petitioner. The MOH did not accede to the request of the PMDC. It was stated that as required under the instructions issued by the Establishment Division vide their letter dated 6-6-1982, the petitioner did not resign from his post in the Government before being appointed in an autonomous body on regular basis. Therefore, being a regular officer of the administrative and general cadre, his name was borne on the seniority list of the officers of the cadre. However, at this juncture, the respondents took a u-turn, got an inquiry conducted against the petitioner, served him with a charge-sheet and finally issued him a show-cause notice stating therein a number of allegations, including the one that he got himself illegally appointed in the PMDC, first as Additional Registrar/Additional Secretary (B-19), and later as Secretary/Registrar (B-20). As stated earlier, the petitioner challenged the aforesaid show-cause notice, first before the High Court and later in the Federal Service Tribunal, leading to the present petitions.

The learned counsel for the petitioner has highlighted various discrepancies and contradictions in the stance taken by the respondents from time to time. The MOH allowed the petitioner to apply for the post of Additional Registrar/Additional Secretary and on his selection by, and -appointment in, the PMDC issued Notification relieving him from his duties in the Ministry. There is no recital in the above Notification that his services were placed at the disposal of the PMDC on deputation basis. His request to give him right of reversion for two years was kept pending, though it was bound to allow it as per the instructions now being relied upon by the MOH.

16. The learned counsel for the petitioner submitted that the petitioner was appointed in the PMDC on probation. Therefore, on…

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