1989 PLP (C (PLC(CS))

2. Vide letter No.516/GR dated 9‑2‑1980, Dr. Riaz Hussain Naik, the petitioner herein, was appointed as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, in the grade of Rs.900‑50‑1,150/60‑1,750, plus usual allowances as admissible under the rules by the then Executive Committee of the Board of Governors or Fatima Jinnah Medical College and its allied Hospitals Needless to add that originally the management and control of Fatima Jinnair Medical College and its allied teaching Hospitals vested in the Board of Governors of Fatima Jinnah Medical College and its allied Hospitals and it was treated as a non‑ Governmental institution.

3. Vide Notification No.SO(P&P)‑‑12/5‑79, dated 1‑7‑1980, the administrative control and management of the Fatima Jinnah Medical College, Lahore, and its allied Hospitals and other property attached to it was taken over t1y the Health Department of the Government of Punjab with effect from 1‑7‑1980 and the Fatima Jinaah Medical College, Lahore with its allied Hospitals became Government institution. It may, however, be noticed that vide another letter No.SO(P&P)‑12/5‑79(i) dated 1‑7‑1980, the Government of the Punjab decided to give some undertakings pursuant to notification whereby the control and management of Fatima Jinnah Medical College and its allied Hospitals was taken over. The undertakings so given include. "the terms and conditions of the present staff shall not be altered to their detriment."

4. Vide letter NO.S0.II/R‑22/R dated 28‑6‑1984, the petitioner, Dr. Riaz Hussain Naik, Deputy Medical Superintendent Sir Ganga Ram Hospital, Lahore was ordered to be transferred and his services were placed at the disposal of Director, Health Services, Punjab, Lahore, for his further posting. This order was passed by the Secretary to the Government of Punjab, Health Department.

5. Through Writ Petition No.2926/84, the petitioner assails the aforementioned order dated 28‑6‑1984. It was mainly urged that the petitioner happen,‑d to be the employee of Sir Ganga Ram Hospital. Lahore, prior to its nationalization and, therefore, protection regarding the existing terms and conditions of service, provided by the letter dated 1‑7‑1980, was available to him and he could not be transferred in violation of the undertaking thus given by the Government. The Writ Petition was admitted for regular hearing and the enforcement of the impugned order of transfer was suspended.

6. During the pendency of Writ Petition No.2926/84, the Government of Punjab, Health Department, through its circular letter No.SO(DEV.I)2‑18/81‑II dated 6‑5‑1985, notified the sanction of the Governor of the Punjab regarding the re‑designation of 10 posts of Senior Medical Officers in BS‑18 to that of Deputy Medical Superintendents. In the same circular letter, hospital‑wise break‑up of these ten posts has been provided. As per break‑up, Sir Ganga Ram Hospital. Lahore, has also been allowed one post. Subsequently, through Government of Punjab, Health Department s letter dated 6‑4‑1987, in case of various hospitals in the Province, including Sir Ganga Ram Hospital, Lahore, posts of Deputy Medical Superintendents were upgraded from BS‑18 to BS‑

19. The petitioner represented to the Government for being allowed BS‑18 and BS‑19 but without success. Thereafter, he has filed Writ Petition No.4095/87, assailing the failure of the Government in not allowing the aforementioned scales to him. 7. through parawise comments and written statements in both the cases, the Government of Punjab in Health Department have resisted the under consideration Writ Petitions. It has been urged that since after Sir Ganga Ram Hospital having been provincialized, the terms and conditions of the petitioner were governed by the provisions of the Civil Servants Act and the rules made thereunder and under the said provisions, the petitioner could be transferred anywhere in the Province. It has further been urged that through notification dated 6‑5‑1985, some posts of Senior Medical Officers in BS‑18 have been re designated as Deputy Medical Superintendents. but the petitioner was already in BS‑17 and, therefore, he could not claim benefit of the Notifications dated 6‑5‑1985 and 6‑4‑1987.

8. On behalf of the petitioner, it has been contended that in view of the undertaking given by the Government, at the time of taking over the control and management of Sir Ganga Ram Hospital, to the employees of the said Hospital, the petitioner could not be transferred and as he was already serving as Deputy Medical Superintendent in the said Hospital, he was entitled to be allowed BS‑18 because post of Deputy Medical Superintendent in Sir Ganga Ram Hospital, Lahore, has been upgraded from BS‑17 to BS‑19.

9. The divergent contentions raised and arguments advanced on behalf of both the parties have been thoroughly considered and fully analysed. So far as the question of transfer of the petitioner out of Sir Ganga Ram Hospital is concerned, it may be observed that ordinarily employees of a Government institution are liable to be transferred anywhere in the Province in accordance with the provisions of the Punjab Civil Servants Act, 1974, and the rules made thereunder, but in case of employees of Fatima Jinnah Medical College and of its allied teaching Hospitals, powers of transfer can be exercised by the authorities concerned subject to the undertaking given to the members of the staff of the College and its allied Hospitals, at the time of provincilization. The relevant of the undertaking is to the effect that the terms and conditions of the present staff shall not be altered to their detriment. In this ‑view of the matter, the petitioner, who was already serving as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, prior to its taking over by the Government, is entitled to avail of the protection awarded by the aforementioned undertaking and he cannot be transferred to his detriment from his present post.

10. Regarding the petitioner's claim for BS‑18 and BS‑19, it has been noticed that admittedly 10 posts of Senior Medical Officers in BS‑18 in nine hospitals of the Province have been re‑designated as Deputy Medical Superintendents. One such post has been allowed to Sir Ganga Ram Hospital, Lahore. The petitioner is admittedly serving as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore since prior to the taking over the control and management of this Hospital by the Government. As already observed, he enjoys the protection tarnished by the undertaking given by the Government at the time of taking over the control and management of the Hospital to the effect that the terms and conditions of the present staff shall not be altered to their detriment. The petitioner is thus entitled to continue as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, and he is not Gable to be transferred out of this Hospital, if such transfer works to his detriment. In his capacity as Deputy Medical Superintendent, he is entitled to be allowed BS‑18, through letter dated 6-5‑1985 on the score of principle of consistency. It has also been noticed that at the time of his appointment as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, in 1980 the petitioner was given verbal assurance by the Executive Committee of the Governing Body that he would be given Grade

18. It is so evident from the contents of letter No.1144/G.R. dated 4‑4‑1981, addressed by the then Medical Superintendent, Sir Ganga Ram Hospital, Lahore to the Secretary to the Government of Punjab, Health Department. Letter No.FR‑18 1 74(A) dated 6‑5‑1986, from the Government of Punjab, Finance Department, addressed to the Administrative Secretaries in the Province explains that there should be minimum length of service of five years in scale 17 for promotion to post carrying Scale

18. The petitioner fulfils this condition as he joined service as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, in Scale 17, in February, 1980. From the point of view of length of service, therefore, the he petitioner was entitled to get BS‑18 on 6‑5‑1985, when the post of Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, was upgraded by the Government through letter dated 6‑5‑1985.

11. The petitioner's claim for being allowed BS‑19 is without any substance. This scale, as per contents of the letter dated 6‑4‑1987, is available to those Deputy Medical Superintendents who are already in BS‑18 and who have rendered 12 years service in Scale 17 and above. The petitioner does not fulfil these conditions.

12. For the foregoing conclusions, Writ Petition No.2926/84 is allowed and the impugned order of transfer dated 28‑6‑1984 in respect of the petitioner is declared to be illegal and without lawful authority, while in retard to Writ Petition No.4095/87, which is partly allowed, it is directed that the petitioner in his capacity as Deputy Medical Superintendent, Sir Ganga Ram Hospital, Lahore, shall be allowed BS‑18 with effect from 6‑5‑1985, but his claim for BS‑19 with effect from 6‑4‑1987 is disallowed. There shall, however, be no order as to costs in, both the Writ Petitions. M.Z.S./R‑123/L Order accordingly.