' Fatima Jinnah Medical College was a non-Governmental Institution for females which was taken over by the Government of the Punjab through a notification, dated 1-7-1980 issued under Martial Law Regulation No,118 of 1972. As a result of the said take-over, the control and management of the said institution got vested in the Provincial Government and all the employees of the said institution including the members, of the teaching staff became employees of the Government of the Punjab and thus, civil servants under the Civil Servants Act, 1974 and consequently they became entitled and at the same time subject to all the rights and liabilities attaching to the Government employment.
2. But while provincializing the said institution and all those working therein, the Government wanted to ensure that no prejudice was caused to the object for which the F.J.M.C. Was founded by its fathers, and no prejudice was caused to its staff vis-a-vis the terms and conditions etc. Which had been guaranteed to them by the previous management. Consequently, the Government issued another notification on the same day i.e, on 1-7-1980 committing itself to maintain the exclusive female character of Fatima Jinnah Medical College (hereinafter, called the F.J.M.C.) guaranteeing further that the female staff members, on the role of the said institution on 1-7-1980 would not be transferred out of the said College that their pre-provincialization terms and conditions would not he altered to their disadvantage and also that in the matter of recruitment and promotions in the said college, preference will be given to the females.
3. The present controversy, arising out of the take-over of the F.J.M.C. By the Government revolves around two such female members, of the teaching staff namely, Dr. Abida Iqbal (respondent No,1) and Dr. Nazifa Ahmad (respondent No,2) who were both aspiring for the same one post of Professor Pathology in the said College..
4. Dr. Abida Iqbal respondent claims to have joined the F.J.M.C. As a Demonstrator in December, 1975. She further claims to have been promoted as an Assistant Professor of Pathology, on regular basis on 31-8-1999. She also claims to have secured a further promotion as an Associate Professor in the said discipline on 30-12-2002. And it is her further claim that she belonged to the F.J.M.C.
Cadre and thus, on account of the protection granted through the above mentioned notification, dated 1-7-1980, she, had a preferential right to be promoted and appointed to the only post of Professor of Pathology which promotion and post had been unlawfully denied to her through promotion and appointment of Dr. Nazifa Ahmad respondent as the Professor in the said Department.
5. Dr. Nazifa Ahmad respondent, on the other hand, also claims to have joined the same F.J.M.C. As a Demonstrator in the year 1977, and according to her service record she was initially appointed as an Assistant Professor, on Ad hoc basis on 16-9-1985 but on having successfully competed for the said post by taking the examination held by the Punjab Public Service Commission (hereinafter called as P.P.S.C.), she was appointed as an Assistant Professor, on regular basis, on 10-11-1986. She again competed before the P.P.S.C. For a post of an Associate Professor exclusively reserved for the F.J.M.C. In its Pathology Department and having been selected as such, she was this time promoted and appointed as an Associate Professor of Pathology in F.J.M.C. On 1-12-1991. On account of her seniority as an Associate Professor and otherwise, she was further promoted as the Professor of Pathology in the F.J.M.C. Through a notification, dated 27-3-2004.
6. Dr. Abida Iqbal felt aggrieved of the same and consequently approached the Punjab Service Tribunal through an appeal under section 4 of the Punjab Service Tribunals Act of 1974 praying that the above mentioned notification dated 27-3-2004 promoting and appointing Dr. Nazifa Ahmad respondent as the Professor of Pathology in F.J.M.C. Be set aside, that the Government be directed to consider Dr. Abida Iqbal for appointment to the post in question on acting charge basis and thereafter to consider her for promotion as the Professor of Pathology in BS-20 on regular basis.
7. This appeal was allowed by the learned Tribunal through a judgment, dated 10-7-2004, inter alia, on the ground that two separate and distinct cadres of the members, of the teaching staff existed in the F.J.M.C. i.e, the F.J.M.C. Cadre and the General Cadre; that Dr. Abida Tribal respondent belonged to the F.J.M.C. Cadre while Dr. Nazifa Ahmad respondent fell in the General Cadre, that according to the protection granted by the Government to the members, of the teaching staff on 1- 7-1980, the post of Professor in question belonged to the F.J. Cadre and could be filled only by a member of the said cadre; that since Dr. Nazifa Ahmad respondent did not belong to the said Cadre, therefore, her appointment to the said post was offensive of the above noticed commitment made by the Government in the year 1980 and was thus, not sustainable in law.
8. The Government of the Punjab felt aggrieved of the said judgment and approached this Court through C.P. No,2598-L of 2004 filed by its functionaries impugning the validity of the said decision of the learned Tribunal.
9. We have heard the learned Advocate Supreme Court for the petitioner-Government, the learned Advocate Supreme Court for Dr. Abida Iqbal respondent and Dr. Nazifa Ahmad respondent in person. We have also examined the record in the light of the submissions made before us.
10. Dr. Abida Iqbal defended the impugned judgment on the ground that she was an employee of the F.J.M.C. When the said College was taken over by the Government of the Punjab, that in view of the above mentioned undertaking given by the Government of the Punjab in the year, 1980 committing itself not to alter the terms and conditions of the then employees of the F.J.M.C. She was the only eligible candidate to be promoted and appointed to the only post in question of Professor of Pathology; that Dr. Nazifa Ahmad did not belong to the F.J. Cadre and belonged to the General Cadre and that in the circumstances she had no right to be promoted and appointed to the said post,
11. As against this, it was submitted by Dr. Nazifa respondent that like Dr. Abida Iqbal, she was also an employee of the F.J.M.C. When the said college had been taken over by the Government that throughout her career she had continuously remained posted in the said college and had never served outside the same; that the protection which was being claimed by Dr. Abida Iqbal respondent was equally available to her also; that having become a civil servant after the Provincialization of the F.J.M.C. She, like Dr. Abida respondent and many other members, of the teaching staff of the F.J.M.C., competed for the posts of Assistant Professors, through the examination held by the P.P.S.C. Because said was then the only channel through which one could get appointed as an Assistant Professor; that her only fault was that she had come out successful of the said examination and had consequently become an Assistant Professor in accordance with law while Dr. Abida Iqbal respondent had made more than one attempts for the said purpose but had failed each time that Dr. Abida respondent was pleading for punishment of Dr. Nazifa for having been selected by the P.P.S.C. For appointment as an Assistant Professor and wanted hers,elf rewarded for having failed to secure the said post, that in the year 1991 the P.P.S.C. Advertised the post of an Associate Professor of Pathology reserved exclusively for the F.J.M.C. For which she competed and was selected and appointed as an Associate Professor of Pathology in the F.J.M.C.; that Dr. Abida respondent had never ever been appointed as an Assistant Professor and that in the circumstances even her so-called promotion as an Associate Professor was illegal and was void; that she had no knowledge as to how and why she was being treated as a member of the General Cadre despite having started her career in the F.J.M.C. Prior to its Provincialization and despite having remained posted in the said college throughout her career and in spite of the fact that she was the only one who was selected and appointed as an Associate Professor by the P.P.S.C. Which post had been reserved and advertised exclusively for F.J.M.C. She added that she supported the Provincial Government in questioning the impugned judgment of the learned Tribunal which proceeded on premises which were factually incorrect and legally untenable.
12 The learned Advocate-General appearing for the petitioner Government and its functionaries made detailed submissions supporting the appointment of Dr. Nazifa Ahmad as the Professor, on merits and on law and giving reasons why Dr. Abida respondent was not found entitled to the same.
13. Having heard all the parties and having considered all aspects of the matter we find that a number of legal questions of public importance arise in this matter which require consideration and determination by this Court.
14. Dr. Nazifa Ahmad respondent has seriously questioned the appointment of Dr. Abida Iqbal respondent as an Assistant Professor and had added that since Dr. Abida Iqbal had never been appointed as an Assistant Professor, therefore, her alleged promotion as an Associate Professor was invalid and she was thus, not qualified to be appointed as a Professor. We have perused the order, dated 31-8-1999 issued by the Government of the Punjab on which reliance has been placed by Dr. Abida Iqbal to claim that she had in fact been appointed as an Assistant Professor from the said date. The said order reads as under:-- "In pursuance of the undertaking given to the employees appointed by the defunct governing body of Fatima Jinnah Medical College, Lahore, vide Health Department's Notification, dated '1-7-1980 at the time of Provincialization of Fatima Jinnah Medical College, Lahore. The Governor of the Punjab is pleased to promote the following Senior Demonstrators, of Fatima Jinnah Medical College Cadre (Dying Cadre) in BS-18 on regular basis with the designation of Assistant Professor as a special case of hardship." (emphasis is ours,). (sic)
' The name of Dr. Abida Iqbal respondent was included in the list of Demonstrators, promoted through this order.
15. Dr. Nazifa Ahmad respondent argued that this order could never be interpreted as appointing Dr. Abida Iqbal as an Assistant Professor. She explained that the said order had only promoted Dr. Abida Iqbal and others, in BS-18 and had allowed them only to use the designation of an Assistant Professor as a special case of hardship and that she had never been appointed or promoted as an Assistant Professor relying upon the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979. Dr. Narfa Ahmad respondent contended that the post of an Assistant Professor could be filled in only through initial recruitment and there was no concept of appointment to the said post through promotion from amongst the Demonstrators,. She added that this was why the order in question dated 31-8-1999 did not declare that Dr. Abida Iqbal had been appointed or promoted as an Assistant Professor and all this order had said was that she had been promoted to BS-18 and had been allowed to use the designation of an Assistant Professor as a special case of hardship, which was obviously not the same thing as becoming an Assistant Professor.
16. The firs,t question which would fall for determination and which would go to the root of the problem would be whether Dr. Abida Iqbal was ever appointed as an Assistant Professor and if not then her alleged promotion as an Associate Professor would also come under serious clouds and consequently, she might not even be found qualified for the post of a Professor which she was seeking. As has been noticed above, the post of an Assistant Professor could only be filled through initial recruitment and there was no provision of any appointment to the said post through promotion. Therefore, in view of the Rules of 1979; in the absence of any rules to the contrary and in view of a proper interpretation. Of the above mentioned order data' 31-9-1988, it could well be found that Dr. Abida Iqbal respondent was never appointed as an Assistant Professor. If this be so, then she was never qualified to be appointed or promoted as an Assistant Professor and in turn, not entitled even to be considered for the post of a Professor.
17. The next important question which would require resolution would be about the cadre business as service cadres have a special connotation in law. It was declared by the learned Tribunal that two distinct and separate cadres of the members, of the teaching staff existed in the F.J.M.C. i.e, F.J.
Cadre and the General Cadre and it had been further declared by the learned Tribunal that Dr. Abida Iqbal respondent belonged to the F.J. Cadre while Dr. Nazifa Ahmad fell in the General Cadre.
18. Dr. Nazifa respondent had vehemently questioned the existence of any such cadres and her consequent allocation to the General Cadre.
19. We asked the learned A.A.-G. About the law or the rules under which the said alleged cadres had been created and the criteria on the basis of which the members, of the teaching staff were placed in one cadre or the other. His answer was that no such cadres had ever been created under any law or any rule; that the expressions F.J. Cadre and the General Cadre, in the context of F.J.M.C.
Staff, were being used in a non-technical sense; that F.J. Cadre meant to identify those members, of the teaching staff who were in the employment of the F.J.M.C. At the time of its take-over and whose initial terms and conditions etc. Had been protected vide the above mentioned notification of 1-7-1980 and that the ones in the General Cadre were those who were not entitled to any such protection.
20. It then follows, prima facie, that no such cadres as.F.J. Cadre and General Cadre existed in law vis-a-vis the teaching staii to the F.J.M.C. And that the same was a misnomer.
21. The only question, therefore, which is relevant for the present purposes is whether a particular teacher was or was not entitled to the guarantees and the protection extended by the Government through the above mentioned notification dated 1-7-1980.
22. As has been noticed above, it is the case of Dr. Abida lqbal that she was covered by the said commitments made by the Government and that Dr. Nazifa Ahmad fell outside its ambit.
23. Dr. Abida respondent was an employee of the F.J.M.C. As a Demonstrator at the time of its take- over. So was Dr. Nazifa Ahmad respondents, Dr. Nazifa applied to the P.P.S.C. To compete for the post of Assistant Professor, So did Dr. Abida Iqbal, Dr. Nazifa succeeded but Dr. Abida Iqbal failed despite more than one attempts made by her. Dr. Nazifa thus, became an Assistant Professor through the otily legal and the right channel but Dr. Abida Iqbal got promoted to BS-18 and was allowed to use the designation of Assistant Professor, as a special case of hardship and that also thirteen years, after Dr. Nazifa had become an Assistant Professor. Dr. Nazifa again went back to P.P.S.C. And secured the post of Associate Professor reserved and advertised for the F.J.M.C. In the year 1991. Dr. Abida obviously did not go to the P.P.S.C. For the said post of Associate Professor because she had been declared by the P.P.S.C. To be unfit even for the post of an Assistant Professor. Both of them started their careers, in the F.J.M.C. And have remained in the said college till date.
24. If this be so, then how come that while Dr. Abida Iqbal was being considered as F.J. Cadre, meaning thereby that she continued to be entitled to the protection of 1-7-1980 and Dr. Nazifa Ahmad stood condemned out of this cadre and thus, declared disentitled to the said guarantees.
25. The explanation offered by Dr. Abida lqbal is that Dr. Nazifa had gone to the P.P.S.C. Seeking recruitment as an Assistant Professor. If this be the reason then Dr. Abida Iqbal respondent had also gone to the P.P.S.C. And had in fact gone more than once and the same estoppel should operate even against her.
26. As has been mentioned above, as a result of the Provincialization of the F.J.M.C. In the year 1980, the posts of Assistant Professors, in the said College had become posts in the Government of the Punjab subject to the undertaking of 1-7-1980, the members, of the staff of the said institution 1X civil servants; these posts, therefore, could be filled only in accordance with the law governing the subject and therefore, the recruitment to the posts of' Assistant Professors, could be made only through the P.P.S.C. Which was the only proper and legal path to reach the said posts. In the circumstances, the question would be whether some one from the F.J.M.C. Pursuing the said legal and the only proper path, could be condemned and declared deprived of the protection in question lawfully belonging to her only on account of following the said right path.
27. From the rather detailed discussion in the preceding paragraphs, the following questions arise for consideration and determination:--
(a) Do any cadres i.e, the F.J. Cadre and the General Cadre exist in law, vis-a-vis the Members, of the teaching staff of the F.J.M.C.?
(b) Was Dr. Nazifa respondent rightly placed outside the so-called F.J. Cadre meaning thereby that was she lawfully found disentitled to the guarantees given by the Government on 1-7-1980?
(c) Was Dr. Abida respondent ever appointed as an Assistant Professor and did any rules permit the promotion of a Demonstrator as an Assistant Professor?
(d) Could any authority in the Government appoint anyone as an Assistant Professor, Associate Professor of a Medical institution when these posts were required, by the law, to be filled in only through the Public Service Commission?
(e) Could Dr. Abida Iqbal be considered, in law, to be rightly appointed as an Associate Professor and if not, then could she be allowed to use her appointment to the said post to the prejudice of other colleagues?
(f) Was Dr. Abida Iqbal qualified, in law, to be considered for appointment as a Professor?
(g) Was she senior to Dr. Nazifa Ahmad respondent or superior to her in merit?
(h) Was the learned Tribunal competent to deal with the question of promotions?
28. In view of these questions and others, arising in the matter, we allow this petition and grant leave to the petitioners, for the purpose.
29. The order passed by us on 4-10-2004 suspending the operation of the impugned judgment shall continue in the meantime.
30. Since it is a service matter, therefore, it will be appropriate to hear the appeal arising out of this matter at an early date.