2008 PLP (C (PLC(CS))

JUSTICE (RTD.) RUSTAM ALI MALIK (CHAIRMAN).

Appellant who is presently serving as Demonstrator in Rawalpindi Medical College, Rawalpindi has filed this appeal against the order, dated 20-4-1995 whereby the period of her absence from duty from 1-1-1987 to 1-2-1994 was treated as "break in service" by respondent No.2. The appellant has also challenged the order, dated 8-12-2004 whereby the departmental appeal filed by her had also been dismissed.

2. The brief facts are that after obtaining her M.B.,B.S. Degree, the appellant started "house job" in Services Hospital, Lahore, where she worked from May, 1981 to May, 1982. On the completion of house job period, she was appointed as Woman Medical Officer on ad hoc basis in the same hospital for a period of six months from 14-7-1982 to 14-1-1983. Her ad hoc appointment was subsequently extended for another six months from 15-1-1983 to 15-7-1983 and later for further six months with effect from 16-7-1983. Subsequently, she was selected as Woman Medical Officer through Punjab Public Service Commission and was posted in the same hospital on regular basis. She applied for leave from 1-1-1984 to 31-1-1984 which was sanctioned with full pay and allowances. She applied for further extension of leave for 41 days from 1-2-1984 to 12-3-1984 which was sanctioned vide order dated 31-3-1984. She once again applied for extension of leave from 13-3-1984 to 31-1-1985 as "extraordinary leave with pay". Similarly she was allowed extraordinary leave without pay from 1-2-1985 to 30-12-1985 (333 days) vide order, dated 9-5-1985. Thereafter, she applied for study leave vide an application, dated 23-12-1986 for a period of six months. w.e.f. 31-12-1985. According to her averments as contained in the memorandum of appeal, the appellant, on the expiry of extraordinary leave, reported for duty and requested for issuance of posting orders but no action was taken thereon despite her repeated requests. In the meanwhile many of her juniors were promoted to higher posts and scales (BS-18 and 19) while the appellant was not considered for promotion although she fulfilled the eligibility criteria. Vide letter, dated 23-11-1993, respondent No.3 i.e. Director-General Health Services, Punjab issued a show-cause notice to her on account of her unauthorized absence. She filed reply to the said show-cause notice and eventually a minor penalty of stoppage of one increment was imposed on her by respondent No.3. As a result of her continuous efforts and requests, her services were finally placed at the disposal of District Health Officer, Rawalpindi vide order, dated 26-1-1994. She submitted a representation before the Chief Minister, Punjab who vide order, dated 26-1-1994 was pleased to order the regularization of the period of her absence from duty from 1-1-1987 to 1-2-1994 by treating the aforesaid period as extraordinary leave without pay. Respondent No.2 also issued an order, dated 26-1-1994 in that respect concerning the regularization of the period of her absence from duty from 1-1-1986 till she assumed duty as extraordinary leave without pay. The appellant reported for duty to the District Health Officer, Rawalpindi who posted her at Basic Health Unit, Bagga Sheikhan, Tehsil and District Rawalpindi. However, later, the District Accounts Officer, Rawalpindi raised certain objections to the grant of extraordinary leave without pay to her. According to her averments, respondent No.2 without cancelling or withdrawing the earlier order, dated 26-1-1994 whereby the period of her absence from duty from 1-1-1986 till she assumed duty was treated as extraordinary leave without pay, issue the order, dated 20-4-1995 to the effect that the period of her absence from 1-1-1987 to 1-2-1994 shall be treated as break in service and her seniority will be counted from the date of her rejoining the duty in the Health Department. The appellant preferred a departmental appeal/representation against the order, dated 20-4-1995 and the said departmental appeal was rejected vide order, dated 8-12-2004 (which was received by her on 12-12-2004). By filing this appeal, the appellant has challenged the impugned orders, dated 20-4-1995 and 8-12-2004 and has prayed that the aforesaid orders be set aside and the earlier order whereby the period of her absence from duty from 1-1-1987 to 1-2-1994 was treated as extraordinary leave without pay be restored. She has also prayed that the respondents be directed to restore her seniority qua her batch-mates and to consider her for promotion to BS-18 and 19 from the date her juniors were promoted.

3. The respondents have resisted the appeal. In response to pre-admission notices issued by this Tribunal, they filed parawise comments wherein they have taken the pleas that (i) the appeal is barred by time; (ii) that the appellant has suppressed the material facts in the memorandum of appeal; (iii) that the appellant after her selection by Punjab Public Service Commission was posted in Services Hospital, Lahore vide order, dated 2-10-1983 and just after three months, she was granted leave for two years from 1-1-1984 to 31-12-1985. Thereafter, she requested for extension of leave for another 365 days, but it was refused and she was directed by the authority vide letter, dated 26-12-1985 to resume her duties immediately, but she remained absent from duty; (iv) that disciplinary proceedings under E&D Rules, 1975 were started against her on account of her wilful absence from duty since 3-12-1985 and the Director-General Health Services, Punjab was appointed as Authorized Officer, who issued show-cause notice to her for her wilful absence from duty. The appellant filed reply to the show-cause notice. The Authorized Officer vide his order, dated 19-1-1994 imposed minor penalty of stoppage of one increment for a year on her after the charge of misconduct (absence from duty) since 1-1-1986 was proved. The Authorized Officer recommended to the authority to treat the period of her absence from 1-1-1986 onwards as extraordinary leave without pay; (v) that Government of the Punjab, Health Department issued orders regarding her posting and adjustment of period of absence with effect from 1-1-1986 till the date of her rejoining duty, as per recommendations of the Authorized Officer. She joined duty on 1-2-1994 as per order, dated 26-1-1994. However, later, the Audit Department raised an objection regarding grant of extraordinary leave without pay for about eight years. In this respect, a summary was submitted to the Chief Minister, Punjab and who agreed with the views of the Finance Department that the appellant had served the Government for only a few months and now She wants to get seniority from 1983 which will set a precedent having far reaching consequences and hence the period of her absence from duty be treated as a break in service; (vi) that vide letter, dated 20-4-1995, the period of her absence was accordingly treated as break in service and she was informed that her seniority will be counted from 1-2-1994; (vii) that she had filed the appeal against the order, dated 20-4-1985 in July, 1995 which was barred by time and that she had never approached the Department in this respect until February, 2004 when she requested through Principal, Rawalpindi Medical College that her appeal filed nine years ago be decided. The Department issued the order, dated 8-12-2004 stating therein that the penalty imposed on her had attained finality as she had failed to prefer an appeal before the authority in time.

4. I have carefully considered the arguments advanced from both sides. The parties are in agreement so far as the facts of the case are concerned. There is no denying the fact, that the Secretary Health Department had issued the order, dated 26-1-1994 to the effect that period of her absence from duty from 1-1-1986 till the date of her joining duty, shall be treated as extraordinary leave without pay. Vide the same order, her services were placed at the disposal of Director Health Services, Rawalpindi for further posting. The Director Health Services, Rawalpindi vide his order, dated 1-2-1994 posted her at Rural Health Centre, Bagga Sheikhan, District Rawalpindi. Admittedly the appellant had been proceeded against under disciplinary rules on the allegation of unauthorized absence from duty and was awarded penalty of stoppage of one annual increment. The Secretary Health Department, Punjab had issued the order, dated 30-1-1994 treating the period of absence of the appellant from 1-1-1986 onwards as extraordinary leave without pay on the basis of a directive issued by the Chief Minister, Punjab. Admittedly, after the objection was raised by the District Accounts Officer, Rawalpindi (about treating her period of absence from 1-1-1986 to 1-2-1991 as EOL without pay) the Health Department submitted a summary to the Chief Minister, Punjab stating therein that on the receipt of the Chief Minister's directive the matter was referred to Finance Department for relaxation of Rule 9 of the Revised Leave Rules, 1981 and in reply thereto, the Finance Department had advised to submit a summary to the Chief Minister to treat the period of absence of the appellant from 1-1-1986 to 1-2-1994 as EOL without pay. In the summary, the Health Department recommended that the period of absence of Dr. Rubina Saeed from 1-1-1984 to 1-2-1994 be treated as EOL without pay in relaxation of Rule 9 of the Revised Leave Rules, 1981. However, to the said summary, the Secretary Finance Department added a note as follows:

"

7. Dr Rubina Saeed was selected by the PPSC in 1983. The Department has not indicated when she joined but she proceeded on leave from 1-1-1984 and rejoined on 1-2-1994. She now wishes to get her seniority from 1983 while in point of fact she has not worked for even one year in Government service. This would be highly unjust.

8. Finance Department would advise that her seniority may count from 1-2-1994 i.e. when she actually rejoined service and the period in-between may be treated as a break in service. If extraordinary leave (EOL) as suggested by Health Department is sanctioned, then it will set a precedent which would have far reaching consequences." The Chief Minister, Punjab agreed with the views of the Finance Department and the said decision was conveyed to the appellant by the Health Department vide letter, dated 20-4-1995 wherein she was informed that her request had been thoroughly examined and it had been decided by the Competent Authority that the period in question will be treated as a break in service and her seniority would be counted from 1-2-1994 i.e. from the date she had rejoined her service in the Health Department after her unauthorized absence from duty. The appellant filed a representation against the said order and the decision on which was eventually conveyed to her vide order, dated 8-12-2004.

5. The Honourable Supreme Court of Pakistan had observed in the authority reported as Ishfaq Hussain Rana v. Government of the Punjab through Secretary Agriculture Punjab and 38 others 1993 SCMR 1326 as following: "It is not disputed by the learned Advocate-General who appeared on behalf of the respondent that the Chief Minister was competent to make an order of the nature which he did in the case of the appellant. In fact, under the relevant constitutional provisions as these existed before amendment by the 8th Amendment, the executive authority of the Province was to be exercised by the Chief Minister. However, it was a different matter whether he should or should not have passed the impugned order for that question fell in the field of propriety."

6. In the present case also, the period of absence from duty of the appellant from 1-1-986 onwards was treated as extraordinary leave without pay by the Secretary Health, Government of the Punjab on the basis of an order passed by the Chief Minister Punjab in whom vested the executive authority. The relevant rules shall be deemed to have been relaxed by the Competent Authority in favour of the appellant. The question arises as to whether the said order could be withdrawn subsequently. In such a situation, the rule of locus poenitentiae comes into play. Once the order was passed for treating the period of her absence from duty as extraordinary leave without pay, and once the Competent Authority i.e. the Chief Executive of the Province had condoned the period of her absence, the sanction so granted could not be withdrawn subsequently, without issuing a notice to the appellant and without affording her an opportunity of being heard as the order, dated 26/30-1-1994 had created a valuable right for her. It is surprising that in the impugned order, dated 20-4-1995 passed by the Secretary to Government of the Punjab, Health Department, there is no mention of the earlier order, dated 26/30-1-1994 whereby the period of her absence from duty from 1-1-1986 onwards had been treated as extraordinary leave without pay. The Honourable apex Court held in PLD 1969 SC 407 that once an order has taken legal effect and certain rights have been created in favour of an individual, such orders could not be withdrawn subsequently.

7. The learned counsel for the appellant referring to a Notification, dated 3rd November, 1992 of Finance Division (Regulation Wing) Government of Pakistan has asserted that F.R. No.18 which provided that after five years' continuous absence, whether with or without leave a Government servant shall cease to be in Government employ, has been deleted. However, without going into the said question, the order for treating the period of absence of the appellant from duty from 1-1-986 to 1-2-1994 as a break in service and for treating her seniority from the date of rejoining duty is of such a nature which will seriously hamper her career as a civil servant, without being issued a show-cause notice.

8. Since the impugned orders are illegal, unjust and void, I am inclined to take a lenient view so far as the question of limitation is concerned. Even otherwise, the final order on the departmental representation appears to have been passed on 8-12-2004 whereas this appeal was filed on 8-1-2005 and which is therefore, within time.

9. In view of what has been stated above, this appeal is accepted the impugned orders, dated 20-4-1995 and 8-12-2004 are set aside and the earlier order of the Secretary Health Department, dated 26/30-1-1994 is restored. Respondent No.2 is directed to restore the seniority of the appellant qua her batch-mates and to consider her for further promotion to the next higher post/scale on merit, from the date when her juniors were promoted. H.B.T./49/PST Appeal accepted.