2011 PLP 1298 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

This petition filed by the Government of Pakistan through Secretary Cabinet Division is directed against the judgment dated 25-6-2010 vide which the learned Federal Tribunal allowed the appeal of respondent Dr. M. Akbar Rajput observing that since the earlier orders dated 15-3-2003 and dated 16-11-2006 passed by the Federal Service Tribunal were never challenged by the petitioner, those have attained finality and "we are, therefore, left with no alternative but to accept the MP No.95/2008 dated 8-3-2008 and direct the respondents to implement the orders passed by this Tribunal on 15-3-2003 and 6-11-2006".

2. Facts giving rise to the instant petition briefly stated are that respondent Dr. M. Akbar Rajput was appointed through Placement Bureau as a Medical Officer in Sheikh Zayed Hospital on 22-3-1989. His services were terminated on 3-12-1990 for absence from duty, though according to petitioner he could not join office duty due to sickness and remained admitted in the same hospital. On 1-1-1995, he was however, reinstated but the issue of back benefit led to prolonged litigation. His grievance/prayer was that since the Medical Officers similarly placed (Dr. Arif Hussain and Dr. Mazhar Qazi) were regularized as far back as 1992, he may also be regularized. In the earlier round of litigation, the Federal Service Tribunal allowed his appeal vide judgment dated 15-3-2003 and directed that his claim for regularization and payment of other benefits should be decided within two months. However, the department for one reason or the other prolonged the issue and instead of challening the afore-referred judgment in the earlier round of litigation moved an application under section 12(2), C.P.C. before the Tribunal but the same was dismissed on 20-1-2004 with the direction as follows:-- "The respondents have submitted an application for modification of our judgment dated 15-3-2003. We are afraid this application is not tenable. There is no power vested in this Tribunal to review its judgment. The application cannot be treated to be one under section 12(2), C.P.C. The Law Officer of the respondents has made a categorical statement about misconduct of the appellant. No concealment of facts was made by him. We had passed the judgment inspite of his that statement. If the respondents were aggrieved by our judgment they could file an appeal against it in the apex Court. Now at this stage the implementation of the judgment cannot be avoided by the respondents on any pretext. In the above circumstances we again issue a direction to the respondents to implement the judgment of this Tribunal dated 15-3-2003 in letter and spirit. Adjourned to 25-2-2005."

3. Despite the afore-referred order, respondent's grievance remained un-redressed. He had to move the Tribunal once again which led to passage of the impugned judgment.

4. Learned counsel for the petitioners submits that having passed the judgment dated 15-3-2003, vide which the respondent's earlier appeal had been allowed,the learned Tribunal had become functus officio and could not have passed fresh order qua the same subject-matter. In support of his submissions, he relied on the cases of Muhammad Sami Ullah Ghauri, Research Officer, Islamabad v. Secretary, Establishment Division, Government of Pakistan, Islamabad (2002 SCMR 698), Muhammad Wasay Tareen v. Chief Justice of Balochistan, through Registrar of High Court of Balochistan, Quetta (2005 SCMR 464) and Miss Rahat Afroze v. State Life Insurance Corporation (2007 PLC (CS) 207). He further submits that the respondent had not been allowed back benefits by the Cabinet Secretariat, Establishment Division and in this regard he referred to letters dated 6-8-1998 and 7-10-1998.

5. Learned counsel for the respondent, on the other hand, defended the impugned judgment. However, in all fairness he submits, on court query, that he has no objection if the impugned judgment is set aside provided the earlier judgment dated 15-3-2003 against which the petitioners never filed any appeal before this Court be given effect to.

6. Having heard learned counsel for the parties at some length, we are of the view that admittedly the earlier judgment of the Tribunal is still in the field and in the operative part it was directed as follows:-- "In this regard we would like to refer to the letter dated 29-12-1994 issued by the Secretary, Cabinet Division to the Chairman/Dean, Shaikh Zayed Postgraduate Medical Institute, Lahore. In this letter a clear direrction was issued for reinstatement of the appellant with all back benefits including seniority. This letter is a direction of the Government of Pakistan and it should have been complied with. Accordingly we direct that while deciding the case of the appellant as per directions issued by us the directions issued by the Secretary, Cabinet Division shall also be implemented."

7. In the earlier judgment, learned Tribunal had directed that respondent be restored with all the back benefits including seniority. The case of the petitioner-government was that since respondent was appointed through Placement Bureau in 1989, was removed in 1990 but again reinstated in 1995, therefore, he was not entitled to arrears and other back benefits for the intervening period. Reliance in this regard was placed by learned counsel for the petitioner on letters of the Cabinet Secretariat dated 6-8-1998 and 7-10-1998. The letter dated 6th August, 1998 issued by the Cabinet Secretariat Establishment Division is to the following effect:-- "The undersigned is directed to refer to Cabinet Divisions's O.M. No. 6/11/94-PA/SZPGMI, dated 2-7-1996, on the above subject and to state that Dr. Muhammad Akbar Rajput Senior Resident (BS-17) Shaikh Zayed Postgraduate Medical Institute, Lahore is not entitled for payment of arrears/ back benefits in terms of this Division d.o letter No.4/2/93-CP.5 dated 20-11-1995. As far as the issue of regularization of his services is concerned, the same may please be resolved in the light of the instructions contained in para 2(ix) circulated with the Divisions d.o letter of even number dated 18-12-1993."

8. Para to which reference has been made above, has been reproduced in letter dated 29-12-1994 which stipulated as follows:-- "Restoration will purport to restore status quo ante and maintain as far as possible the terms and conditions prescribed in the original order of appointment."

9. The afore-referred two letters were preceded by letter dated 29th of December, 1994 from Cabinet Secretary to the Chairman Sheikh Zayed Postgraduate Medical Institute, Lahore, clearly indicated that Cabinet Division wanted the respondent to be reinstated. The said letter reads as follows:-- "According to you, Dr. Rajput did not qualify for restoration of appointment as he was employed on contract and relieved from his duties by not renewing his contract due to unsatisfactory performance. However, the documents sent to this Division do not corroborate the position taken by you. Vide the appointment letter issued by Shaikh Zayed Hospital, his appointment was on ad hoc basis and not on contract. Also the notification for the termination of his service did not specify that he was being relieved due to any unsatisfactory performance. In view of this, the Establishment Division has all along been stressing that the officer be reinstated. Nevertheless, the orders issued in this connection vide your letter of 4th December, 1994 indicate that Dr. Rajput has been appointed afresh as Senior Resident (General Surgery) for a period of 6 months. This order does not conform with the decision of restoration and the guidelines issued by the Establishment Division in this connection because:- "Restoration will purport to restore status quo ante and maintain as far as possible the terms and conditions prescribed in the original order of appointment." (Emphasis is supplied)

10. The intent and purpose of the afore-referred letters, therefore, was to reinstate the respondent with all back benefits and the interpretation accorded to it by the learned Tribunal in the judgment dated 15-3-2003 is correct as the status quo ante in terms of Black's Law Dictionary means "the situation that existed before some thing else (being discussed) occurred." In any case, the afore-referred judgment attained finality as it was never challenged by the petitioner-government before this Court and any contrary interpretation of a departmental correspondence cannot offset the judicial pronouncement.

11. Even otherwise, we also note that the respondent was appointed vide letter dated 25-5-1989, which clearly stipulated that "you are hereby offered the above post on ad hoc basis initially for six months with effect from 22nd March, 1989 till 21st September 1989. It will be regularized in accordance as per service selection rules, in BPS-17 (2065-155-3295) plus usual allowance as admissible under the rules."

12. On Court query, the learned counsel for the petitioners admits that there is nothing adverse against the petitioner at present and the adverse entries in the ACRs were expunged by the Tribunal on respondent's appeal and the judgments so passed were never challenged by the Federal Government.

13. For what has been discussed above, this petition is converted into appeal and partly allowed. The impugned judgment dated 25-6-2010 is set aside and the judgment of the learned Tribunal dated 15-3-2003, which remains in field, shall be given effect to, in letter and spirit forthwith. S.A.K./G-10/SC Appeal partly accepted.