1989 PLP (C (PLC(CS))

CH. A. REHMAN KHAN (MEMBER).--Dr. Inamul Haq Shami, the appellant, Associate Surgcon, Fedcral Government Services Hospital. Islamabad has preferred this appeal for enforcement of recruitment rules notified vide SRO. No.1203(I)/80 in respect of clinical posts in Pakistan institute of Medical Sciences (PIMS). The appellant matt,. a departmental representation which was rejected vide Health Division's letter No. PF/5/PHS/CGPC/PER.I, dated the 10th June, 1987.

2. The facts of the case arc that the appellant is an Associate Surgeon working in the Federal Government Services Hospital, Islamabad. The Pakistan Institute of Medical Science, Islamabad which has been established as a new medical institution under the Health Division vide Resolution, dated 16-10-1986, has proceeded to make appointments of Medical Officers in various grades in violation of the rules laid down in SRO. No. 1203(1)/80, dated 29-11-1980.

3. It was contended by learned counsel for the appellant that the direct recruitments made by the Pakistan Institute of Medical Sciences are illegal and ultra vires. Relevant extracts of SRO are appended below:- "MINISTRY OF HEALTH AND SOCIAL WELFARE (HEALTH AND SOCIAL VAIELFARE DIVISION) Islamabad, the 29th November, 1980. S.R.O. 1203(1)/80: to pursuance of sub-rules 2(l) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, following methods, qualifications and other conditions are laid down for appointment to the clinical posts in Grade-17 and above under the Health and Social Welfare Division:--

2. Method of appointment: (a) All the posts in Grade-17 shall be filled by direct recruitment. (b) 50% of the posts in Grade-18 shall be filled by promotion and 50% by direct recruitment. (c) 80 % posts in Grade 19 and 20 shall be filled by promotion and 20% by direct recruitment. Provided that if no suitable officer is available for promotion, the vacancy or vacancies may be filled by direct recruitment". xx xx xx xx

4. It was strongly contended by the learned counsel for the appellant that till such time the Pakistan Institute of Medical Sciences is declared as an Autonomous Body through an Act of Parliament, the Resolution, dated 16-10-1980 does not empower the respondents to make direct recruitment/appointment to the clinical posts borne on the strength of the Institution. All such recruitments/appointments must only be made as laid down in the above S.R.O. In case of appointment in Grade 19 and 20, it is laid down that 80% posts shall be filled by promotion and 20% by direct recruitment. This is a mandatory provision and, therefore, cannot be violated by taking refuge under the Resolution, dated 16-10-1980.

5. In view of the above facts it was submitted that all direct recruitments made by PIMS may be declared illegal and ultra-vires. The respondents be directed to follow the instructions laid down in SRO No. 1203(1)/80 strictly till such time the Pakistan Institute of Medial Sciences is declared an Autonomous Body by Act of the Parliament or a Special Ordinance by the President of Pakistan.

6. It was contended by learned counsel for the state and representative of the respondents that the Islamabad Hospital Complex (Now called Pakistan Institute of Medical Sciences) was a newly established Institution. From the very beginning, it was intended, that this hospital shall be an autonomous body. As such, all the appointments have been made by direct recruitment. This institution was to be governed according to the Resolution of Ministry of Health, Special Education and Social Welfare (Health Division), dated 16-10-1986 published in the Gazette of Pakistan Notification, dated 22-10-1986.

7. It was submitted that Dr. Inamul Haq Shami, the appellant is working as Associate Surgeon in the Federal Government Services Hospital, Islamabad. The appellant applied for the post of BPS-19 in PIMS for direct recruitment but he was not selected as a result of the interview by the Selection Board. As such the appellant was not offered any appointment in BPS-l

9. As the appellant is not an employee of Pakistan Institute of Medical Sciences, he could not claim promotion in that organization, particularly on a post which was not reserved for promotion. Since PIMS is intended to function as an Autonomous Body from the very beginning, the instructions contained in SRO. 1203(1)/80, dated 29-11-1980 do not apply for recruitment against the post created there. It was, however, submitted that the appellant will be considered for promotion on his turn' whenever a post of BPS-19 in general surgery is available in the organization to which he belongs and the post belongs to promotion quota. It was, therefore, submitted that the appeal may be dismissed being incompetent.

8. We have carefully perused the record produced before us by the respondent and we have given our anxious thoughts to the above arguments. We, however cannot escape the irresistible conclusion. We are of the considered view that the Resolution dated 16-10-1986, regarding the establishment of Pakistan Institute of Medical Sciences (PIMS), Islamabad does not have the force of an Act of Parliament. Although the respondents had submitted a written statement duly signed by Joint Secretary (Health) that steps were being taken to convert PIMS into a full-fledged Autonomous Body through an enactment but for some reasons it was still in the offing. In the absence of any act or Ordinance declaring the PIMS as an autonomous body, the instructions contained in SRO. No.1203(I)/80 for the recruitment/appointment of medical staff against the clinical posts to the institution which is under the Ministry of Health, Special Education and Social Welfare, Islamabad shall remain in force. Any action not purported to be taken according to the law becomes a nullity in the eyes of law and hence ceases to exist.

9. In view of the above facts the appeal is allowed. The case of the promotion of the appellant should be considered under the existing rules contained in the aforesaid SRO. Ordered accordingly.

10. Parties be informed. A.A. /485/Sr. F Appeal accepted.