2002 PLP (C (PLC(CS))

(iii)Only one post .of Processor exists in the said speciality, and department and the same was occupied by the petitioner despite his illegal and unlawful order of O.S.D. No new post was created. (iv)The post of Professor was neither advertised or any applications were invited. In fact there was no vacant post in existence. Presuming without conceding that post of Professor was available for appointment yet the essential requirements and procedures enunciated by law have balantly been ignored by the respondents. (v)Respondent No.4 was unsuitable as well as ineligible to be appointed as Professor and Head of Department in presence of a more qualified and suitable Associate Professor in the Department itself who was only ignored for the mala fide reason of being petitioner's spouse. (vi)Respondent No.4's promotion or appointment was neither consisdered nor recommended by the Departmental Promotion Committee. (vii) As explained above, respondent No.4's appointment was a direct consequence of petitioner's illegal, unlawful, incompetent, unauthorized and mala fide transfer as O.S.D. till further orders. (viii) By intonation of the impugned order, the same appears to be transitory and temporary till further order yet respondent No.3 has illegally and immorally endeavoured to seal the fate of the petitioner by permanently posting respondent No.4 in place of the petitioner which is further proof of colourable motives against the petitioner. and that by impugned order, dated 12‑1‑2000 and impugned orders and actions of appointing respondent No.4 in place of the petitioner, respondents have tried to impose penalty and punishment on the petitioner by apparently relegating him as O.S.D. simiplicter yet the same is colourable and mala fide exercise of purported authority to oust the petitioner from service, thereby depriving him of his valuable legal rights and guaranteed fundamental rights. As such, the order is against the law, Constitution, natural justice and principles of equity.

3. Notice was given to the respondents and they have appeared through their counsel. They have submitted that vide Martial Law Order No.22 of 15‑10‑1977 which was subsequently validated by the insertion of Article 270‑A in the Constitution of Islamic Republic of Pakistan, the power of the trustees were taken over by then Chief Martial Law Administrator. The hospital was completed in February, 1986 by the Pakistan Works Department (P.W.D.) and resolution was passed by the Ministry of Health on 29‑5‑1986 to govern and run the Sheikh Zayed Post‑Graduate Medical Institute. The said Resolution provided the following objects:‑ (i)To manage the administration of Sheikh Zayed Post‑Graduate Medical Institute and National Clinical Research Centre. (ii)To provide treatment facilities of international standard in Sheikh Zayed Hospital. (iii)To develop facilities for post graduate medical qualifications. (iv)To educate and trained men and women to become leaders in the field of medical research, education and health delivery system. (v)To develop a system to import continuing medical health education and training. (vi)To develop National Clinical Research Complex with the help of Ministry of Science and Technology to carry out research studies on national health problem. (vii) To develop as a centre for dissemination of knowledge of medical sciences. (viii) Perform other functions as may be assigned by the Government for the purpose of Resolution. Federal Government was empowered by para.3 to issue directives and instructions from time to time for the purpose of carrying out the object of the Resolution. The management was to consist a Board, Executive Committee and Chairman and the Board of Governors was vested with overall control, supervision and superintendence of the affairs of institute. The President of Pakistan was made a Patron‑in‑Chief of the Institute. The qualification for the appointment of Chairman was to be eminent person of scientific and medical repute, will to be act as Chief Executive of Institute and the Federal Government was declared the appointing authority of the Chairman. It was also provided that Federal Government to place funds at the disposal of the Institute for the smooth discharge of its function and efficient conduct of its affairs. The Institute was bound to submit budget of each year to Federal Government for approval showing receipts and expenditure and likely sums to tie required from the Federal Government (luring the financial year. Accounts were to be maintained as per direction of the Federal Government and the accounts were to be audited by the Auditor General of Pakistan. The institute was given the discretion to appoint such officers, advisors consultant and employees as it may deem necessary on the terms and conditions as may be prescribed and approved by the Federal Government. The institute was bound to submit yearly report on working of Institute to the Federal Government. It was also provided that Federal Government was to make rules for carrying out the purposes of the Resolution and the Institute was given the powers to make regulation but with prior approval of the Federal Government. Federal Government provided a sum of Rs.950 million in budgetary grants for smooth and running of affairs of Sheikh Zayed Post‑Graduate Medical Institute. Admittedly the appointment of the petitioner was made under the said Resolution, as such, he is estopped by his words and conduct to challenge the vires of the said resolution. Learned counsel also referred to clauses 5 21, 24, 25 and 33 of the Trust Deed according to which the Trust was stressed to generate its own income and meet the expenses from such investment or from corpus of the trust and that actually the trust has failed to generate its income and it is the Federal Government on whose grant it is running. Learned counsel submitted that in the case of Mrs. M.N. Arshad and another v. Miss Naeema Khan (PLD 1990 SC 612) that in Pakistan Corporations are either created by a statute‑like Karachi Port Trust, incorporation under the Karachi Port Trust, or by registration under the statute‑like the Companies under the Companies Ordinance, or association under the Societies Act or Cooperatives under the Cooperatives Societies Act or Government of Pakistan, Ministry of Education resolving inter alia to constitute a Board of Governors for the model education institute in Islamabad is not in pursuance of any such statute hence it is neither a body corporate nor a juristic person capable of employing teachers. It was, therefore, held that the teachers of the model school are civil servants. Similar is the case here. The Government of Pakistan Ministery of Health resolved to constitute a Board of Governor for unhindered and efficient working of Sheikh Zayed Post‑Graduate Medical Institute as Board is not in pursuance of a statute hence its employees are the civil srvants for the purposes of the Service 'tribunals Act. Learned counsel has specifically referred to the case of Ghazala Perveen v. Federation of Pakistan (1994 PLC (C.S.) 684) the Federal Service Tribunal relying on the Naeem Khan's case declared the employees of Sheikh Zayed Post Graduate Medical Institute to be Civil Servants and amenable to the jurisdiction of the Service Tribunal. Learned C counsel also referred to the case of Pakistan Institute of Medical Sciences ; (PIM) which was created by a Resolution passed by the Ministry of Healty. In case of Dr. Rashid Anwar v. Federation of Pakistan (1996 SCMR 1572) the question arose as to whether the employees of PIMS are Civil Servants, the Hon'le Supreme Court after considering the case of Naeema Khan (PLD 1990 SC 612) and an unreported judgment of the Hon'ble Supreme Court titled as Federation of Pakistan v. Dr. Muhammad Shafique concluded that the employees of PIMS are Civil Servants. Learned counsel for the respondents have submitted that once it is established that the petitioner is a civil servant and the matter relates to the terms and conditions of the service the jurisdiction of the High Court is barred. I have given due consideration to the valuable arguments on both sides. The petitioner is a Civil servant. He is aggrieved by the promotion, appointment and posting of respondent No.4 in BPS.20 as Professor and of the Department and his own posting or transferring as O.S.D. Thus, I am clear in my mind that this Court has got no jurisdiction in view of the bar contained under Article 212 of Constitution. The petition is, therefore, dismissed in limine. H.B.T./M‑540/L Petition dismissed.