2003 PLP (C (PLC(CS))

11. Arguments have been heard and record perused.

12. In order to appreciate the respective contentions raised by the parties, it is necessary to appreciate the necessary facts of .the case.

13. The petitioner was posted on deputation in the Pakistan Institute of Medical Sciences. Islamabad w.e.f. 1-2-1992 against the post of Associate Clinical Psychologist BS. 18 w.e:f 1-2-1992.

14. Through notification dated 24-11-1994 the petitioner was permanently absorbed in P.I.M.S. on the post of Physician (General Medicines) BS. 19 with immediate effect. The said notification is reproduced as under:-- Dated 24-11-1994- Notification. "No.PF.007-D/A, Phy/IH consequent upon Prime Minister's directive vide Principal Secretary to Prime Minister Letter No.8824/PSPM/94 dated 22-11-1994 Dr. Nighat Bilal presently working on deputation basis in BPS. 18 against the post of Associate Clinical Pshycologist is absorbed in P.I.M.S. on, the post of Physician (General Medicine) BPS-19 with immediate effect. (Dr.Asif Mehmood), Deputy Executive Director.

15. Dr. Jamal Zafar, Intervenor herein preferred Service Appeal No.165-R-96 before Federal Service Tribunal challenging the grant of BS-19 to the petitioner. In the said appeal, the Executive Director P.I.M.S. Islamabad as well as Dr. Nighat Bilal petitioner were arrayed as a party. In the said appeal Dr. Jamal Zafar claimed that he was entitled to be promoted to the post of Physician Grade. 19 instead of the present petitioner as he claimed to be the Senior most Associate Physician in Grade. 18 General Medicine. The said appeal was disposed of by the Federal Service Tribunal vide order dated 23-6-1996. The operative part of the order of the Federal Service Tribunal is as under:-- "Comments have been filed by respondents and we have heard the learned counsel for the parties at length. At the outset, Mr. Hafiz learned Rehman, the learned counsel for the appellant submitted that there are three vacancies out of which two have been filled up and one is still lying vacant, for which the appellant is eligible against promotion quota and his case deserves consideration. This position has been confirmed by the respondents and Mr. Mian Ishtiaq Hussain the learned Advocate appearing on behalf of respondent No. 1, made a statement that the third post for promotion quota is still vacant, and such a statement has been given in writing by the Joint Executive Director, P.I.M.S. In this situation, Mr. Hafiz S.A. Rehman submitted that directions be issued to the respondent No. 1 to consider the case of the appellant against promotion quota. Since one post of Physician (BS. 19) is lying vacant and the appellant is eligible against promotion quota, we direct that his case be considered for promotion according to law, and the appeal stands disposed of in the above terms".

16. The said order of the F.S.T. was not challenged any further. The notification dated 24-11-1994, granting BS. 19 to the petitioner remained intact and was continuously acted upon.

17. On 25-9-1997 the petitioner was directed to be repatriated from P.I.M.S. to the Health Department Government of Punjab, which was described as her parent department. The petitioner feeling aggrieved of the said order of repatriation .filed Writ Petition No.2153 of 1997 which was dismissed in limine primarily on the ground of the bar contained in Article 212 of the Constitution. The Intra-Court Appeal No.79 of 1997 filed by the petitioner was accepted by a Division Bench of this Court on 8-11-1999. It was held that the dispute which related to the question of repatriation of the petitioner from the Federal Government to the Provincial Government did not constitute terms and conditions of Service and that Article 212 of the Constitution of Islamic Republic of Pakistan was no bar to the exercise of writ jurisdiction by this Court. It was found that the petitioner had been primarily absorbed in the P.I.M.S. and that her lien with the Provincial Government had also been terminated. As regards the grade of the petitioner, the following observation was made:-- "However, the matter relating to the entitlement of the appellant to the grant of Grade. 19 could be examined without disturbing her status as permanent employee of the Federal Government. "

18. Even after 8-11-1999 when the aforesaid observation was made in Intra-Court Appeal, the petitioner continued to perform her duties in Grade. 19 without let or hindrance.

19. It was on the 3rd of May, 2001 that the Government of Pakistan Ministry of Health issued the following notification:-- "" GOVERNMENT OF PAKISTAN MINISTRY OF HEALTH. Islamabad, the 3rd May, 2001. No.F25-70/91-Estt.1. In pursuance of the decision of Honourable Lahore High Court, Rawalindi Bench, Rawalpindi dated 8-11-1999, Dr. Nighat Bilal, Senior Registrar (BS-18) Health Department, Government of Punjab is absorbed as Associate Physician (General Medicine) BS.18 against a vacant post in Pakistan Institute of Medical Science (P.I.M.S.) Islamabad with her right of Seniority w.e.f. 24-11-1994 in the above cadre. This supersedes all previous notifications and order on the subject. (S.A. Zafar) Deputy Secretary (Estt).""

20. This was followed by Notification No.PF.07 8-R-A, Phy(ADMN.) P.I.M.S. dated 25-5-2001 which purported to give effect to the notification of 3‑5‑2001 referred to above. The first important question that would fall for determination shall be the effect of order passed by the Federal Service Tribunal on 23‑6‑1996, the excerpt of which has reproduced hereinbefore. It is important to note that the principal grievance agitated by Dr. Jamal Zafar before F.S.T. was to the grant of Grade 19 to the petitioner. It was candidly acknowledged by the Joint Executive Director P.I.M.S. as well as the: learned counsel appearing for the appellant (Intervenor herein) that two posts of Grade 19 stood filled by them and one such post was still lying vacant, the appellant Dr. Jamal Zafar would be considered for promotion to the said vacant post. The status of the petitioner having been appointed to Grade 19 was thus acknowledged and confirmed by all concern. It is not on the record whether the case of Dr. Jamal Zafar was considered for promotion to the aforesaid 3rd vacant post or not, but that shall be beyond the purview of the instant writ petition. What is deducible from the above is that status of the petitioner in Grade 19 was duly accepted, acknowledged and confirmed by the parties. The order of F.S.T. was not challenged for the obvious reasons that it was based upon the consent of the parties.

21. It is also worth‑mentioning that from 24‑11‑1994 uptil 3‑5‑2001, the status of the petitioner in Grade 19 has been recognized and continuously acted upon. Even after the judgment dated 8‑11‑1999 passed in Intra‑Court Appeal No.79 of 1997 no action was taken until 3‑5‑2001 when the impugned notification was issued. The respondents have also not placed on the record any proceedings which justifiably led to the passing of the impugned notification dated 3‑5‑2001. For almost one and an half years after the judgment in Intra‑Court Appeal the petitioner performed her function in Grade 19.

22. The aforesaid conduct of the respondents shall preclude them from taking any receding steps to the doctrine of the petitioner on the principle of locus poenitentiae. As observed hereinbefore, the notification dated 24‑11‑1994 had taken legal effect in pursuance of which certain rights have been created in favour of the petitioner and as such this notification could neither be withdrawn or rescinded to the detriment of these rights.

23. This would take us to the next contention raised on behalf of the learned counsel for the petitioners that impugned notifications have been issued in violation of principle of natural justice inasmuch as the petitioner has not been given an opportunity of being heard before passing such orders. The respondents have not placed anything on the record whereby it could be shown that the petitioner was ever afforded any opportunity of being heard before the issuance of the impugned notifications of 3‑5‑2001 or 25‑5‑2001. Principles of natural justice shall be read as part and parcel of all the statutes, judicial, quasi‑judicial or administrative proceedings unless the applicability of the said principles are specifically excluded. In the instant case the principle audi alteram partem has not been followed, thus rendering the impugned notification null and void and ineffective upon the rights of the petitioners.

24. It has been urged on behalf of the respondents that in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the writ was not competent. It was contended that matter related to the terms and conditions of a civil servant and that it was only the appropriate Service Tribunal which had the exclusive jurisdiction.

25. This contention overlooks two salient features of this case. Firstly, it is admitted by both the parties and is also established on the record that this very question of grant of Grade 19 to the petitioner was taken before the F.S.T., in Appeal No. 165(R), 1996 by Dr. Jamal Zafar himself, wherein, apart from the petitioner the Executive Director P.I.M.S. was also a party. Both intervenor and the respondents had made specific contentions before the Tribunal that there was a third vacant post in Grade 19 which was available and against which the case of promotion of the intervenor shall be considered. What follows from this as a necessary corollary is that award of Grade 19 to the petitioner was specifically acknowledged by the respondents. Not only this, the appeal of the Intervenor was also disposed of by the Service Tribunal and the manner of the disposal of the appeal of the intervenor, leave no manner of doubt that a right had come to vest in the petitioner to hold a post in Grade

19. It is idle for the respondents to urge that the remedy for the petitioner in the circumstances of the case lay before the Service Tribunal and not before this Court.

26. Secondly, the act of the respondents in issuing the impugned notifications whereby the petitioner has been posted as Associate Physician (General Medicine) BS 18 involves the question of fitness of the petitioner to hold a particular post and the jurisdiction of the Service Tribunal has been excluded under section 4‑B of the Service Tribunals Act, 1973.

27. In view of the above, the objection to the jurisdiction of this Court is overruled.

28. The upshot of the above discussion, is that writ petition is allowed and the notification dated 3‑5‑2001 and 25‑5‑2001 challenged in the writ petition are declared to have been passed without lawful authority and of no legal effect. The petitioner shall be deemed to be a permanent employee of the Federal Government in Grade 19 within the meaning of the notification dated 24‑11‑1994. S.A.K./N‑268/L Petition allowed.