Dr. MUHAMMAD SIDDIQUE Versus Dr. RIFFAT AYSHA ANIS
HAMID ALI MIRZA, J .---This civil petition for leave to appeal is directed against the judgment dated 31-7-2004 in Appeal No.380(R)(C.S.) of 2001 (Dr. Riffat Aysha Anis v. Dr. Muhammad Siddique) passed by learned Federal Service Tribunal, Islamabad, whereby appeal of the respondent Dr. Riffat Aysha Anis was allowed, thereby orders dated 7-4-2001 and 9-6-2001 were. set aside and the respondents Nos.2 and 3 were directed to assign Dr. Riffat Aysha Avis, respondent No. 1, one of the specialties in the Nutrition Division i.e. approved by the Government in 1991 and work out her seniority status from the date of entry into service and further the said respondents to convene meeting of the Selection Board to consider her claim for promotion to B-19 which process was directed to be completed within a period of three months.
2. Brief facts of the case are that the private respondent in the background of entry in the service and qualification stated that she was promoted. as Senior Scientific Officer in BPS-18 on 21-8-1988, whereas the petitioner was promoted as Senior Scientific Officer on 16-11-1994 and she was having better qualification than that of the petitioner but was ignored by the official respondents while the petitioner Dr. Muhammad Siddique was promoted as Principal Scientific Officer (BPS-19) in the meeting of D.P.C. held on 28-2-2001 vide order dated 7-4-2001 though he was junior to her, against the said order she submitted departmental representation dated 26-4-2001 which was rejected vide order, dated 9-6-2001, hence she filed service appeal before the Federal Service Tribunal which was heard and allowed as per impugned judgment against which the petitioner Dr. Muhammad Siddique has preferred this petition for leave to appeal.
3. We have heard learned counsel for the parties at length and perused the record.
4. Submissions of the learned counsel for the petitioner are that the latter prior to the instant petition had tiled C.P.L.A. No.1659 of 2002 before this Court which was heard by a Full Bench of this Court on 29-4-2003 and converted into appeal and allowed thereby the order, dated 18-9-2002 passed by the Federal Service Tribunal was set aside and the case was remanded to the said Tribunal to make decision afresh in accordance with law on merits as well as on the question of limitation expeditiously, preferably within a period of four months. He further submitted that after remand of the case the appeal was heard afresh by the Tribunal but the Tribunal has erred in law in holding that the appeal of the respondent Dr. Riffat Aysha was not time-barred and that she was illegally placed in the cadre of "miscellaneous" whereas she should have been placed in the cadre of "Nutrition" and that she was not justly and in accordance with rules considered for promotion in the cadre of "Nutrition" as such the impugned order passed by the Tribunal was not legal hence liable to be reversed. Learned counsel has taken us through the entire record of the case, submitting that the private respondent did not possess the requisite qualification for being placed in the cadre of "Nutrition" considering that the said discipline was under the Bio-Chemistry of which the petitioner possessed the requisite qualification, therefore, the representations made by the private respondent from time to time were turned down and further that the .D.P.C. rightly and correctly promoted the petitioner in BPS-19 as Chief Nutrition. He further submitted that after 1994 she did not challenge the decisions and orders made in favour of the petitioner. He also submitted that Dr. Ghulam Rasool, Miss Nafeesa, Muhammad Din and Dr. Farnaz Malik also challenged the seniority list dated 11-3-1998 and letter dated 21-6-1990 with regard to approved discipline against the petitioner Muhammad Siddique but their appeals were dismissed by the learned Federal Service Tribunal, vide judgment dated 25-11-1998. He also submitted that vide order, dated 3-7-2004 passed by the Federal Service Tribunal, the Service Appeal No.380(R)(C.S.) of 2001 filed by the respondent Dr. Riffat Aysha Anis was clubbed with other two Appeals Nos.416 and 425(R)(C.5.) of 2004, were allowed to remain pending, while respondent's appeal was separately heard and allowed. Learned counsel submitted that the appeal was barred by five years when each day's delay was to be explained and accounted for. He has placed reliance upon (i) Attaullah Brohi v. Sindh Agricultural Supplies Organization and others 2004 PLC (C.S.) I300, (ii) Rashid Ahmad Tahir v. Superintendent of Police 1990 SCMR 1518, (iii) Mst. Sirajun Munira v. Pakistan through Assistant Deputy Director-General (Adimn.) Islamabad 1998 SCMR 785, (iv) Government of the Punjab through Secretary (Services) and another v. Muhammad Saleem PLD 1985 SC 396, (v) Abdul Majeed and others v. Hamida Bibi and others 2002 SCMR 416 and (vi) Khan Muhammad and others v. Mst. Zainab Bibi through legal heirs and others 2000 SCMR 1227. He has also referred to page 2 of P.B.IV wherein required qualifications for the post of Principal/Chief Scientific Officer Nutrition Division as per NIH Employees Service Regulations, 1989 are .stated and so also qualifications of petitioner and that of private respondent. Learned counsel for the private respondent has taken us through the impugned judgment and the entire record, showing that after remand of the case by this Court, the appeal was decided on merits and the plea of limitation was duly considered and the learned Tribunal rightly held that as the private respondent was pursuing her remedy before different forums, and had remained vigilant and the delay, if any caused, was condoned by the learned Tribunal, which decision being also finding of fact cannot be interfered with by this Court. Reliance is placed upon (i) Baber Gul and another v. Sohail Ahmad Sheikh and others 2002 SCMR 581 and (ii) Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796. Learned counsel for the private respondent and official- respondents have supported the impugned judgment stating that the private respondent possessed Ph.D. degree in the Nutrition and was qualified in the field for the post whereas the petitioner did not possess the required qualification in the field of Nutrition therefore, the petitioner was erroneously and illegally promoted to the said post of Principal/Chief Scientific Officer in the Nutrition Division, in BPS-19. Learned counsel for the department/ functionaries submits that the private respondent has been placed senior to that of petitioner after the decision of the Tribunal and so far the promotion, required meeting of D.P.C. would be held after the decision of instant petition before this Court. Ms. Nahida Mehboob Elahi, learned D.A.G. submitted that the private respondent possessed higher 'qualification in the field of nutrition, therefore, she was entitled to be promoted considering that she was senior as she was earlier promoted in BPS-18 viz. on 21-8-1988, whereas the petitioner was promoted on 16-11-1994.
5. We do not find merit and substance in the contentions of the learned counsel for the petitioner whereas we find substance .and force in the submissions made by the learned counsel for the respondents.
6. So far the contention of limitation, we may state that after the remand of the case, learned Tribunal has iii detail dealt with the said plea of the petitioner in para.8 of the impugned judgment. Learned Tribunal has observed:--
"The record clearly indicates that the appellant filed her representation on 17-1-1991 immediately after the Speciality List was circulated by the respondent on 5-1-1991. The said representation has already been reproduced earlier in this order. Then she followed it up with yet another representation on 25-3-1991.., The Project Director made the following note on the appellant's said representation:--
The Human Nutrition is definitely defined discipline which is amended by the various Universities of world and presently Peshawar University and the Agriculture University Faisalabad till the recent past when Riffat Aysha did her Master Degree in Human Nutrition ... Under the facts stated above it is suggested that the seniority list keeping in view the Human Nutrition as a separate discipline may please be prepared and the persons possession basic or post-graduate qualification in Human Nutrition may please be placed under Human Nutrition Discipline.
Thereafter she followed it up with various representations on 19-1-1993, 24-7-1994, 14-3-1998, 3 2-1999, 4-12-1999 and 26-4-2001. These representations clearly indicate that the appellant was watchful of her service interest and continuously agitated her grievance. She was given repeated assurances by her officers for redressal of her grievances which is also borne out by the recommendatory remarks on her representations. These remarks on her various applications indicate that her supervisors sympathized with her request for assigning her to Nutrition which fact prevented her from approaching competent legal forum in time. Since she was illegally assigned to "miscellaneous" speciality which was not approved by the Government it has very adversely affected her interest. She was, with mala fide intention, deprived of her graduation in the hierarchy.
(9) In view of this fact we do not subscribe to the respondents' objection as far as limitation is concerned and the facts which ... will indicate serious miscarriage of justice and, as such, whatever delay has occurred it is .condoned and in this regard we drive strength from Honourable Supreme Court ruling reported in 2003 PLC (C.S.) 796 wherein it was ruled that on the basis of technicalities parties should not be non-suited."
As the learned Tribunal has condoned the delay keeping in view the facts and circumstances of the case, we are not inclined to interfere with such exercise of discretion which was rightly exercised by the Tribunal in view of law laid down by this Court in the above cited cases. We hold that the plea with regard to limitation raised, that the appeal was time-barred has no merit.
7. The next contention of the learned counsel for the petitioner that he was highly qualified in the said field of Nutrition, therefore, was rightly promoted whereas the respondent Dr. Riffat Aysha Anis did not possess the required qualifications for the post and was not senior to the petitioner, as she was on temporary basis therefore, she was rightly ignored as such the Service Tribunal has erred in law in holding otherwise.
8. We also do not find merit in the said submission of learned counsel for the petitioner.
9. Admittedly the private respondent was appointed as Scientific Officer on 21-11-1978 on her selection by Federal Public Service Commission when her educational. qualification was M.Sc. in Nutrition and she also possessed Diploma in Child Nutrition, therefore, it could not be said that her assignment or status was of temporary nature but it was on regular basis. She- was subsequently promoted as Senior Scientific Officer w.e.f. 21-8-1988 on the recommendation of D.P.C. vide Notification dated 15th September, 1988 whereas the petitioner Dr. Muhammad Siddique was promoted as Senior Scientific Officer in B-15 on 16-11-1994 much after the respondent. The respondent was awarded Ph.D. Degree in Biology from Quaid-i-Azam University on 18-6-1998, on the basis of her thesis on a stress on impact of iodine (an important nutritional variable) deficiency/iodine therapy on thyroid physiology of pregnant mothers, birth rate and goitre.
10. Respondent No.2 National Institution of Health, came into. existence on 10-9-1980 under the NIH Ordinance having four divisions in the MH (i) Public Health Division, (ii) Biological Production Division, (iii) Drug Division and (iv) Nutrition Division. Subsequently, respondent No.2 sent draft Regulations along with specialities and finally it was decided by the Federal Government vide its letter dated 26-2-1990 that NIH would have the following specialities of the Scientific posts in the NIH, (i) Pathology, (ii) Bio-Chemistry/Chemistry, (iii), Microbiology, (iv) Clinical and Public Health (v) Pharmacy/ Pharmaceutics,, and (vi) Engineering. After approval of the above specialities by the Federal Government, respondent No.2 NIH placed their officers in the six specialities .mentioned above and issued a provisional seniority list inviting options from the employees to choose one of the specialities vide .letter dated 5-9-1991. Respondent No.2 issued Provisional Seniority list on 5-1-1991 wherein- respondent Dr. Riffat Aysha was placed under the category of "miscellaneous" against which the said respondent submitted representation to the respondent No.2 Executive Director on 17-1-1991 requesting Therein for Speciality of Nutrition which was reminded through subsequent representations by the said respondent. It may be observed that no Speciality or Cadre was sanctioned or approved by the Federal Govern ment and no such Notification was issued for creation of such. cadre or speciality though there was full-hedged Nutrition Division in the NIH, respondent No.2 It may be observed that the petitioner being Senior Scientific Officer in the Bio-Chemistry as per final seniority list issued on 24-5-2001 was promoted nr Nutrition discipline when he belonged to Bio-Chemistry Speciality. The respondent was appointed as Scientific Officer on 21-11-1978 after she was selected by the Federal Public Service Commission when she was M.Sc. in Nutrition and had specialized in Child Nutrition, therefore, it could not be said that the status of the said responder was temporary but was regular. It would also appear from the record that she was assigned the post of Goitre Control Project which project is also related to the discipline of Nutrition. On the recommendation of the Departmental Promotion and Selection Committee and with the approval of the Board of Governors the respondent Mrs. Riffat Aysha Anis, Scientific Officer (Nutrition Education), in the Nutrition Division of the NIH was promoted to-the post of Senior Scientific Officer, BPS-18 with effect from 21st August, 1988 in the Goitre Control Project, which would also show that her services were regularised through the regular method of regularization after clearance from the D.P.C. as Senior Scientific Officer. It .may also be observed that the said respondent also obtained' Ph.D. Degree in Biology from Quaid-i-Azam University on 23-6-1998 on the basis of having carried out research on the topic "A stress on impact of iodine deficiency/iodine therapy on thyroid physiology of pregnant mothers, birth rate and goitre" . Thesis on the said topic 'is directly connected with the diet of a person as deficiency of iodine could lead to a disease which may cause hyper thyroid or hypo-thyroid which is called Goitre which is found in less quantity at high altitude from sea level consequently doctors advise salt containing iodine be taken or administered in the food so as to make up the deficiency of iodine otherwise it could cause many serious diseases. It would not be out of place to state here that when the NIH was created on 10-9-1980 under the NIH Ordinance one of the four divisions was Nutrition Division but while determining speciality, Nutrition speciality was not created. It may also be observed as far as 25-3-1991 the Project Manager made remarks on the application of said respondent as follows:--
"The Human Nutrition is definitely well-defined discipline which is awarded by the various Universities of world and presently Peshawar university and the Agriculture University Faisalabad till the recent past when Riffat Aysha did her Master Degree in Human Nutrition.
I myself did M.Sc. in Human Nutrition from faculty of medicine University of London U.K.
Under the facts stated above it is suggested that the seniority list keeping in view the Human Nutrition as a separate discipline may please be prepared and the persons possessing basic or post-graduate qualification in Human Nutrition may please be placed under Human Nutrition Discipline."
The above remarks -were forwarded to the Executive Director who observed:-- .
"I have no objection in having Nutrition as a Speciality. But please let me know how many people/person qualified the Nutrition and working in the Division."
Besides above vide letter dated 10-8-1999 Mr. Muhammad Saleem, Chief, in his letter also suggested Nutrition be included as a separate speciality/discipline or it should be incorporated with chemistry/biochemistry discipline. The said respondent possessed Masters Degree in Nutrition could have been placed in the Nutrition Division which contained various discipline including Chemistry/Bio-Chemistry. It is strange that Scientific Officer for Nutrition udder the chart existed but the said respondent was deliberately placed in a wrong, unapproved and non-sanctioned category of "miscellaneous" and was not placed in the seniority list according to her qualification. Record would reveal that the petitioner who was promoted as Chief Nutrition in BPS-19 was junior in service to that of said respondent who was Senior Scientific Officer in Bio-Chemistry whereas under the NIH Rules prescribed for the post of Principal/Chief Scientific Officer could be appointed and promoted amongst the Senior Scientific Officers who possessed M.B.,B.S. or equivalent qualification recognised by the P.M.D.C. or M.Sc. 2nd class in Bio-Chemistry or Chemistry, (ii) Post-Graduation in Nutrition e.g. M.Sc.. (Nutrition) or Diploma in Nutrition or Post-graduate degree in Bio-Chemistry such as Ph.D./M.Phil having produced five research papers and ten years experience in Nutrition work. The petitioner's qualifications as would appear from the record were masters degree in Chemistry in 1978 from the University of Peshawar and thereafter MPhil in the subject of Bio-Chemistry from the Quaid-i-Azam University in the year 1983 and then he obtained degree of Doctor of Philosophy from the Quaid-i-Azam University in the mon th of October, 2003. The petitioner has no experience in the Nutrition section except a certificate given by the Executive Director on the basis of which he was premoled which cannot be said to be a degree or qualification under the rules to entitle him under the rules to the promotion in the field/division of Nutrition. It may also be observed that there being no miscellaneous cadre and placing of said respondent under that category was unauthorised, illegal, therefore, the same has no sanction being not having been created by the Federal Government. In fact we have gone through the record and have seen that specialities had been interchanged among the officers in the miscellaneous discipline who were promoted in other discipline as Dr. Moti-ur-Rehman Khan was promoted as Chief Nutrition whereas he belonged to discipline of Public Health and (ii) Mr. Muhammad Saleem of Bio-Chemistry discipline was promoted as Chief' Nutrition, considering that speciality as defined in the Service Regulations of NIH would mean professional graduate qualification, possessing graduate degree in any special subject held by a person appointed in NIH. It may be recalled that vide later dated 26-2-1990 sent to the Joint Secretary Ministry of Health by Executive Director Mr. Abdul Ghafoor he has observed in para. 1 of the said letter that:-- "unless the different specialities are first determined, the seniority of the different categories of the scientific posts cannot be determined. Moreover, it is logical that for sake of promotion, a scientist can only be promoted in his own speciality e.g. a Scientific Officer' (Microbiology). BPS-17 can only be promoted as a Senior Scientific Officer (Microbiology) BPS-18. He cannot be promoted" in the specialities of Bio chemistry or Pathology. If these specialities are not mentioned, there will be a lot of dispute and confusions. At present there is no speciality mentioned in our Service Regulations.
(ii) Apparently, no incumbent will be affected by the proposal. In any way as the option of speciality will depend upon the choice of the Scientist if his speciality falls under two separate specialities. Rather the case which has now been initiated is to avoid some confusions at the later stage. "
The petitioner was placed in the Chemistry/Bio-Chemistry Discipline as per seniority list dated 5-1-1991 and he had no required qualification nor experience and research work to his credit for his promotion to B-19 as Chief of the Nutrition Division, whereas the said respondent possessed all required qualifications in the discipline of Nutrition therefore, she should have been placed in the said discipline keeping in view her long service background in the said field. Mere fact that Bio-Chemistry graduate could be accommodated in the Nutrition Division would not by itself sufficient to discard the seniority plus eligibility and qualifications of respondent, therefore, the petitioner's order for promotion to B-19 was not in accordance with the service Rules which was to be upon the seniority-cum-fitness of a person.
11. We do not find any legal or tactual infirmity with the impugned judgment, therefore, the petition has no merit, hence leave to appeal is declined and the petition is dismissed.
S.A.K./M-69/SC Leave refused.