P L D 1989 Supreme Court 350 (PLP)

NAIMUDDIN, J.‑‑This appeal by leave under Article 212 (3) of the Constitution arises in the following circumstances. The appellant joined the Civil Hospital, Karachi, as Casualty Medical Officer on 13‑10‑1967. He was appointed on ad hoe basis. In 1971 he, along with 27 other doctors, was selected by a team o officers of the Government of Libya for employment as Medical Officer in Libya. On selection, he was relieved. After completing 5 years in Libya, he asked the Health Department. Government of Sind whether he could be allowed to continue or his service in Libya beyond the period of 5 years. In reply he was informed by letter dated 13‑3‑197 that he had completed 5 years period in service in Libya, and was directed to report to the Health & Social Welfare Department, Government of Sind within three months of the receipt of the letter, otherwise, he was informed that he would have no claim to service in the Sind Government. The appellant did not comply with the directions.

2. However, the appellant returned to Pakistan on 18‑4‑1980 and reported for duty to the Medical Superintendent, Civil Hospital, Karachi alongwith an application dated 23‑4‑1980 which was forwarded by the Medical Superintendent to the Secretary. Health & Social Welfare 'Department, Government of Sind, Karachi. But the appellant, 'is stated by him, was required vide letter dated 10‑2‑1981 by the Secretary, Health & Social Welfare Department, Karachi to submit an application for fresh appointment.

3. At the time when the doctors were allowed to join service in Libya, the terms and conditions on which they were allowed to join the service of Government of Libya, were not settled. There were doctors in three categories: (a) those who were confirmed in their posts, (b) those who were not yet confirmed, and (c) those who 'were ad hoc appointees, These terms and conditions were, however, settled. and communicated to them including the appellant vide letter dated 11‑2‑1977. The terms and conditions read as follows;‑‑ (1) "Their service with the Government of Libya/ Malaysia/ Nigeria/ Saudi Arabia will commence from the date of release from the Health Department, and will terminate on the date they resume duty. (2) During the period of their foreign service they shall receive pay and allowances and traveling facilities offered to them by the respective Governments. (3) During, the period of service with Foreign Government, they shall make leave salary, pension contribution in foreign exchange to the audit officer concerned. They shall also continue to contribute towards General Provident Fund, Benevolent Fund and Group Insurance in foreign exchange, In the event of their failure to make payment on account of these contributions they would forfeit their service under the Government of Sind. (4) Their leave terms, during the period of their service with the foreign Government, shall be regulated according to the Rules of the Government. Leave salary due in respect of such leave will be paid by that Government only. No part of leave earned during foreign service will be credited to the Government of Sind, nor any liability in respect of leave salary on account of such leave devolves on this Government. (5) During the period of service with that Government they shall not be entitled to any medical facilities in respect of self and family members at the expense of Government of Sind but will be entitled to receive it as allowed by the Government concerned. (6) The Officers who have been confirmed shall retain their lien on permanent posts land those who have been selected by the Public Service Commission wherever necessary, and have been appointed against clear vacancies but have not been confirmed , shall retain their claim in, the Health Department and will be confirmed when their turn comes."

4. On 7‑3‑1981 the appellant made a petition for' regularization of his appointment and for resumption of his duty, to the Chief Secretary, Government of Sind. Since no action was, take ; ii on'. this petition within 90 days, the appellant filed an appeal before the Sind Service Tribunal, Karachi which was dismissed' in limine vide the impugned order.‑dated, 4‑7‑1981. In dismissing the, appeal the learned Tribunal observed as follows: "While on deputation the ‑ Terms arid‑4 conditions of the doctors sent out on deputation, were finalized and a copy of the said conditions were forwarded to the appellant also at Libya. Under paragraph (6) 5 of these terms and conditions Officers on deputation who have been confirmed department before proceeding on deputation, shall retain their, lien on permanent posts and those who halve ‑been selected by‑the, Public .'Service Commission and appointed, against a clear' vacancy, could retain their claim in the Health Department.' The appellant was only an ad hoc appointed, and had remained in service in Pakistan for about 3 years on ‑ad hoc basis. Under the circumstances, his lien or claim has not been retained in respect of his former appointment as Casualty Medical Officer. In any case not having returned from deputation within three months after he was recalled, his deputation too had expired. He has accordingly been asked to make a fresh application for the post but feeling aggrieved he has filed the service appeal claiming seniority for these years knowing fully well that his original post, not being on regular basis, the. question of seniority would not arise. There is',' therefore, no substance in this appeal which is accordingly dismissed in limine.

5. We have heard the appellant in person. The appellant was an ad hoe appointee and, hence, he could not have Hen under the Service Rules, on his post in the Health Department, Government of Sind. He, however, relied on the terms and conditions. But under term and condition No.6 only a confirmed employee was allowed to retain his lien and the appellant was not a permanent, employee. Even otherwise he did not comply with the same as he did not fulfill condition (3). Moreover, he was asked by the Sind Government, vide letter A dated 13‑3‑1976 to report to the Health Department within three months of the receipt of that letter, and was also informed that he would have no claim if he failed to resume his duty. The appellant did not resume his duty within the period mentioned in the said notice. The appellant himself has annexed a copy of the said notice to the Memorandum of Appeal. Indeed he reported for duty with effect from 23‑4‑1980 i.e. after four years from the date of the notice dated 13‑3‑1976. He submitted that he could not resume his duty earlier because the Government: ‑of Libya did not relieve him but this explanation would not entitle him to claim, as of right, departmental permission to resume his duty in Civil Hospital., Health, Department, Government of Sind. The order of the learned Tribunal is unexceptionable. We, therefore, dismisses the appeal. M. B. A. /B‑90/ S Appeal dismissed,