MUHAMMAD ZAMAN Versus SECRETARY, ESTABLISHMENT DIVISION, ISLAMABAD , Mian Ishtiaq Hussain

SYED ALLY MADAD SHAH (CHAIRMAN): ‑ ‑Both the appeals have been filed by Dr. Muhammad Zaman. They are inter‑linked. They have been heard together and are disposed of by this one judgment.

2. Facts in both the appeals are almost the same. The case of the appellant is that after passing M.B.B.S. ‑examination, he was appointed as Medical Officer (B‑17), ad hoc, at Tuberculosis Centre, Rawalpindi with effect from 12‑12‑1972. His appointment was made on regular basis subsequently on his clearance by the Federal Public Service Commission. While serving as the Medical Officer at the aforesaid Centre, he obtained Post‑Graduate Diploma in Tuberculosis and Chest Diseases (DTCD) from the University of Wales in the year 1976. From the Tuberculosis Centre, Rawalpindi, he was transferred in his own scale (B‑17) to the Central Government Poly Clinic, Islamabad, subsequently re‑named as Federal Government Services Hospital. In due course of time, he did some courses in Japan, USA and UK. In the year 1981, he was enrolled as a Member of the College of Physicians and Surgeons of Pakistan (MCPS). While remaining on the roll of the Federal Government Services Hospital, Islamabad, he was assigned the duty of Civil Surgeon in the Central Government Hospital, Rawalpindi. He was promoted as Medical Officer (B‑18) in the Federal Government Services Hospital on 27‑7‑1981. He was assigned duty of Associate Physician/Civil Surgeon from October, 1984 onwards. He was transferred as Medical Officer (B‑18) to the Pakistan Institute of Medical Sciences (PIMS) also known as Islamabad Hospital Complex, Islamabad, by order dated 18‑2‑1986 and he joined there, as such, on 22‑2‑1986. In addition to his duties as the Medical Officer, he was also assigned the functions of the Civil Surgeon for the employees of the PIMS. On reaching the maximum of BPS‑18, he was allowed move‑over to BPS‑19 with effect from 1‑12‑1985 while continuing serving as Associate Physician. He was appointed as Associate Physician (Pulmonology) with effect from 5‑1‑1987 and formal order of such assignment was made on 27‑6‑1987. Although the post of Associate Physician was based in BPS‑18, yet he drew pay in BPS‑19 he was already drawing by way of move‑over. The post of Associate Physician (Pulmonology) was upgraded to the post of Physician (B‑19) with effect from 11‑2‑1988 and he was regularly promoted to BPS‑19 with effect from the same date viz. 11‑2‑1988. In recognition of his good services, he was granted two advance increments with effect from 16‑10‑1986 vide order dated 17‑7‑1988. In recognition of his two Post‑graduation qualifications viz. DTCD (Wales) and MOPS (Pakistan), he was allowed four advance increments with effect from 1‑7‑1987 vide office order dated 17‑7‑1088. On reaching the maximum pay in BPS‑19, he was allowed move‑over to BPS‑20 with effect from 1‑12‑1988 as per order dated 6‑2‑1989. In the meantime, Dr. Muhammad Ashraf, who is respondent No. 4, was appointed, on contract basis, as a Physician (Pulmonology) in BPS‑19 against second post, by letter of appointment dated 9‑2‑1988 and he joined on 8‑3‑1988. His appointment was regularised with retrospective effect from 8‑3‑1988 vide order dated 12‑2‑1989. The appellant protested against the regularisation of the appointment of respondent No. 4, with retrospective effect, by way of representation made on 7‑11‑1989. As a counterblast, the respondent No. 4 filed Writ Petition No. 482 of 1989 before the Lahore High Court, Rawalpindi Bench, challenging the order of the Health Division dated 26‑9‑1988, whereby the appellant was appointed as Physician (Pulmonology) in BPS‑19 and also the order of the PIMS dated 6‑2‑1989, whereby the appellant was allowed move‑over to BPS‑20 from BPS‑19 with effect from 1‑12‑1988. The writ petition was initially resisted by the respondents, i.e. the Secretary, Health Division, the PIMS and the Board of Governors of PIMS. However, tables turned during the pendency of the writ petition and the orders of grant of advance increments and move‑over made in favour of the appellant were cancelled by separate orders dated 25‑1‑1990, 13‑6‑1990, 27‑6‑1990 and 13‑8‑1990 and his pay was reduced and he was relegated to second position and the respondent No. 4 was placed in first position and he was made Head of the Department. Resultantly, the writ petition filed by the respondent No. 4 was disposed of as having become infructuous. The appellant was required to refund the advance increments and salaries drawn by him by way of move‑over. He made departmental representation/appeal dated 12‑7-1990 to the Secretary, Health Division against the office orders dated 25‑1‑1990 and 13‑6‑1990, whereunder the advance increments granted to him were withdrawn. He also made another representation to the Secretary, Health Division on 21‑8‑1990 and the Departmental appeal to the Prime Minister against the order of his reversion dated 13‑8‑1990 on 23‑8‑1990. He was intimated under letter dated 30‑10‑1990 that his appeal to the Prime Minister was not acceded to. He preferred Appeal No. 462(R)/90 on 5‑11‑1990 for setting aside the following orders:‑‑

(i) the order dated 25‑1‑1990 whereby the order of grant of four advance increments to the appellant on the basis of acquiring higher qualifications was withdrawn.

(ii) the order dated 13‑6‑1990, whereby the order dated 17‑7‑1988 granting the appellant two advance increments for his good work and performance was cancelled.

(iii)the order dated 27‑6‑1990, whereby the order dated 6‑2‑1989 allowing the appellant move‑over from BPS‑19 to BPS‑20 was withdrawn.

(iv) the order dated 13‑8‑1990, whereby the order dated 3‑10‑1989 and 4‑10‑1989 upgrading the post of Physician (Puhnonology), BPS‑19, and promotion of the appellant to that post was withdrawn and the appellant was reverted to BPS‑18; and

(v) the order appointing respondent No. 4 as Physician (Pulmonology) be declared to be illegal and be cancelled.

The appellant filed separate Appeal No. 478(R)/90 on 20‑11‑1990 for setting aside the orders at S. No. (i), (ii) and (iii), thus confining Appeal No. 462(R)/90 to reliefs at S. No. (iv) and (v)

3. The appellant has assailed the impugned orders on the grounds that he was allowed four advance increments on having acquired additional qualifications and two advance increments in appreciation of his good services and he was not to be derived of those benefits unilaterally without even issuing him a show‑cause nonce, and likewise he could not be deprived of the benefit of move‑overs he had earned by virtue of those advance increments. He has taken the plea of locus poenitentiae that the orders of grant of advance increments and move‑overs had been implemented and they could not be withdrawn. He has contended that even if one of the posts of Physicians (Pulmonology) had been downgraded or even abolished, the junior most incumbent had to be reverted and he could be the respondent No. 4, who had been appointed as Physicians (Pulmonology) later.

4. The respondents have resisted the appeals contending that the appellant was not entitled to any advance increments and they were rightly withheld and as a repercussion of withdrawal of those orders, the orders of move‑over made on the basis of those advance increments also had to be recalled for want of admissibility and no notice was required to be issued for recalling those orders. They have challenged the maintainability of the appeals on the grounds that no departmental appeals were filed. They have further advanced the objection that the appeals are time‑barred.

5. Respondent No. 4 has also contended, in addition, that the appellant did not possess requisite qualifications for getting advance increments and earn move‑overs on the basis of those increments. He has also contended that the post of Physicians (Pulmonology) was advertised and he, the appellant and some other candidates had contested and he i.e. the respondent No. 4 qualified, whereas the appellant could not qualify and thus stood relegated to the lower position.

6. Dealing with the legal objections first, the respondents have contended that the appeals are not maintainable as they were filed without availing of remedy of departmental appeals and they are time‑barred as well.

7. As regards the maintainability, the appellant has stated at paragraph 23 of the memo of appeal that he had made departmental appeal/representation on 12‑7‑1990, a copy whereof has been filed as Annexure V at page 96, in respect of orders dated 25‑1‑1990 and 13‑6‑1990. According to him, no orders were received by him thereon. He has further stated that he had made representation dated 21‑8‑1990 (Annexure W at page 97) to the Secretary, Health and appeal to the Prime Minister on 23‑8‑1990 in respect of order dated 13‑8‑1990 and the appeal was rejected by order dated 30‑10‑1990. The representation/appeal addressed to the Prime Minister is Annexure X at page 99 of Appeal No. 462(R)/90 and the communication of the rejection of appeal is Annexure Y at page.

100. It follows that the departmental appeals were made against the orders dated 25‑1‑1990, 13‑6‑1990 and 13‑8‑1990. The appellant has also stated that he had made representation dated 7‑11‑1989 (Annexure N at page 31) against the order dated 12‑2‑1989, whereunder the respondent No. 4 was appointed as Physicians (Pulmonology) on regular basis and his appointment was made effective retrospectively from 8‑3‑1988 and that representation too remained un responded to. Of course, the learned counsel for the appellant frankly conceded that no departmental appeal/representation was filed in respect of order dated 27‑&1990. It would thus appear that departmental representations/appeals were filed in respect of orders dated 25‑1‑1990, 13‑&1990 and 13‑8‑1990 and also against the order dated 12‑2‑1989 and no departmental appeal/representation was filed in respect of the order dated 27‑6‑1990. It is laid down under proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973 that where an appeal or representation to a departmental authority is provided under the Civil Servants Ordinance or any rule against such order, no appeal shall lie to a Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date on which such appeal/application was so preferred. Since no departmental appeal/representation was filed against the order dated 27‑6‑1990, whereby the order dated 6‑2‑1989 allowing move‑over to the appellant from BPS‑19 to BPS‑20 was withdrawn, the appeal is not maintainable in respect of that order viz. 27‑&1990. But the appeals do puffer from non‑maintainability in respect of other orders against which, departmental appeals/representations were made, as aforesaid.

8. Taking the objection of limitation, departmental representations against orders dated 25‑1‑1990 and 13‑6‑1990 was made on 12‑7‑1990 and it is stated by the appellant that no orders were received by him thereon. In that case, he could have preferred appeal before the Tribunal after the expiry of 90 days and within the next thirty days of the date of appeals/representation dated 12‑7‑1990. Appeal No. 462(R)/90 filed on 5‑11‑1990 is, therefore, within the period of limitation in respect of the orders dated 25‑1‑1990 and 13‑6‑1990. The representation to the Secretary Health in respect of order dated 13‑8‑1990 had remained unresponded to, but appeal against that order to the Prune Minister was decided and the order of its rejection was made on 30‑10‑1990 and the appeal filed on 5‑11‑1990 is well within the period of limitation. The appeal/representation dated 7‑11‑1989 against the order dated 12‑2‑1989, whereby the respondent No. 4 was regularly appointed as Physicians (Pulmonology) with retrospective effect viz. 8‑3‑1988 was time‑barred and it also remained unresponded to and the appeal filed against that order first time on 5‑11‑1990 is time‑barred. Thus, the appeal in respect of order dated 12‑2‑1989 is time‑barred. The appeal in respect of the order dated 27‑6‑1990 against which no departmental appeal/representation was filed, is not maintainable.

9. As, regards the merits, the appellant was allowed four advance increments vide order dated 17‑7‑1988 on the basis of higher qualifications and the order was given effect to and the appellant had drawn monetary benefits inasmuch as that he was allowed move‑overs by counting those advance increments. The advance increments were withdrawn by order dated 25‑1‑1990 without issuing a show‑cause notice to the appellant. No locus poenitentiae was left for withdrawing those increments in the light of the decisions of the Supreme Court reported in PLD 1969 SC 407 and 1981 SCMR 523. Similar is the case in respect of two advance increments which were allowed to the appellant by order dated 17‑7‑1988 and were withdrawn by order dated 13‑&1990 which could not be withdrawn for the reasons stated above. The appellant was upgraded to the post of Physicians (Pulmonology), BPS‑19, vide order dated 3‑10‑1988 and he continuously served as such, and the withdrawal of that order by order dated 13‑8‑1990 without notice to the appellant is not sustainable in the light of the aforesaid decisions of the Supreme Court.

10. Consequent to the above findings, following decision is recorded:

(1) Appeal No. 462(R)/90, which, after the filing of Appeal No. 478(R)/90, relates to the orders dated 13‑8‑1990 and 12‑2‑1989, is allowed in respect of the order dated 13‑8‑1990, whereunder the orders dated 3‑10‑1988 and 4‑10‑1988 of upgradation of the appellant as Physicians (Pulmonology), BPS‑19, was cancelled and the impugned order dated 13‑8‑1990 is set aside with the direction that the appellant shall be deemed to have continued as Physicians (Pulmonology), BPS‑19, as it he was riot downgraded/demoted; and it is dismissed in respect of the order dated 12‑2‑1989 relating to the appointment of the respondent No. 4 as Physicians (Pulmonology ). BPS‑19, on regular basis with effect from 8-3‑1988; and

(2) Appeal No: 478(R)/90 pertaining to the orders dated 25‑1‑19414); 13‑6‑1990 and 27‑6‑1990 is allowed, whereby the earlier orders dated 17‑7‑1988 and 17‑7‑1988 of grant of four wad two advance increments, respectively to the appellant were cancelled and both the orders dated 25‑1‑1990 and 13‑6‑1990 are set aside and the said advance increments granted to the appellant and subsequently cancelled, are restored as if they were never cancelled; while the appeal is dismissed in respect of the order dated 27‑6‑1990, whereby the order dated 6‑2‑1989 of allowing move‑over from BPS‑19 to BPS‑20 was cancelled, as being time‑barred in respect of that order viz. 27‑6‑1990.

11. Both the appeals stand disposed of in the above terms. No order is made for costs.

A.A./745/Sr.F Order accordingly.