' This I.C.A. Is directed against the judgment, dated 30-10-2002, passed by a learned Judge in Chamber, whereby, Notifications dated 3-5-2001 and 25-5-2001, were declared to have been issued without lawful authority and the respondent was declared to be a permanent employee of Federal Government in BPS-19.
2. Brief facts of the case are that the respondent was employed as Senior Registrar (Medicine)
Ganga Ram Hospital, Lahore. During his tenure of duty at Ganga Ram Hospital, the hospital was taken over by the Government of Punjab, in consequence where of, she was treated as an employee of Government of Punjab. Through Notification dated 19-11-1992, her services were borrowed by the Federal Government and she was posted in PIMS, Islamabad, on deputation in Grade-18. According to her, she was permanently absorbed in PIMS in BPS-19, as Physician vide Notification, dated 24-11-1994. Feeling aggrieved of the notification of absorption of the respondent, the appellant, Dr. Jamal Zafar, approached Federal Service Tribunal, challenging the validity of aforesaid notification. During the pendency of appeal before the learned Federal Service Tribunal, it was submitted by Representative of PIMS that there are three posts of BPS-19, out of which two have been filled up and one is lying vacant and the appellant, being eligible for the post of BPS-19 could be considered for appointment. Learned counsel representing the appellant, felt satisfied on the undertaking that if the appellant is considered, he will not press the appeal before the learned Tribunal. On the undertaking given, appeal before the Tribunal was accordingly disposed of. After disposal of appeal by the Federal Service Tribunal, Cabinet Secretariat, Establishment Division, through Notification, dated 25-9-1997, describing the respondent as Senior Registrar (BPS-18), repatriated her to the Health Department, Government of Punjab. Feeling aggrieved of the notification, thus issued, she preferred Writ Petition No,2153 of 1997, before the Lahore High Court, Rawalpindi Bench, Rawalpindi. The writ petition was dismissed in limine holding that she is civil servant and the grievance is relating to her terms and conditions of service and is challengeable before the Federal Service Tribunal. Against the dismissal of writ petition, she preferred I.C.A. 7 of 1997, which was allowed that order of repatriation as contained in aforesaid notification was issued without lawful authority and respondent was deemed to be a permanent employee of the Federal Government. It was further observed that the matter relating to entitlement of the respondent to hold BPS-19 could be examined without disturbing her status as a permanent employee of the Federal Government.
3. The respondent-Department feeling free to decide the question of grade as observed by the learned Division Bench, issued Notification, dated 3-5-2001, whereby the petitioner was absorbed in BPS-18, against a vacant post in PIMS with her right of seniority w.e.f, 24-11-1994 in the cadre, and in pursuance of the notification of absorption, she was posted as physician in BPS-18, against a vacant post vide Notification, dated 25-5-2001. The respondent challenged both the Notifications through Writ petition No, 2334 of 2001 with the prayer that she be placed in seniority prior to the issuance of the impugned Notifications.
4. After hearing learned counsel for the parties the writ petition was accepted and the respondent was declared to be a permanent employee of the Federal Government in BPS-19 and impugned Notifications were declared to have been issued without lawful authority. It was further observed by the learned Judge in Chamber that grant of BPS-19 to the respondent was taken to the FST by the appellant himself and the manner in which the appeal was disposed of by the Federal Service Tribunal leaves no doubt that right had come to vest with the respondent to hold the post in Grade-19, hence, this I.C.A.
5. The I.C.A. Came up for hearing before learned Division Bench of Lahore High Court, Rawalpindi Bench, Rawalpindi, on 29-6-2005, whereby, after hearing learned counsel for the parties, it was dismissed on the question of its maintainability. The order passed by the learned Division Bench is reproduced hereunder:-- "The matter pertains to the terms and conditions of a civil servant and the law has provided remedy of appeal before the higher competent forum, thus, in view of the bar contained in subsection 3(2) of Law Reforms Ordinance, this appeal being incompetent is dismissed."
6. The respondent preferred civil petition before the Honourable Supreme Court on the ground that learned Division Bench, has not decided the case on merits. The Honourable Supreme Court, converted the petition into appeal and directed this Court to redecide the matter after discussing the merits of the case.
7. Learned counsel for the appellant submits that grievance of the respondent was related to her terms and conditions of service and learned Judge in chamber was not competent to grant the relief in view of bar contained in Article 212 of the Constitution of Pakistan. He further submitted that the disposal of service appeal did not create any legal right to respondent against the rules of service, however, any right accrued to her in the appeal was vanished after the observation made by learned Division Bench that the matter relating to entitlement of the appellant to the grant of BPS-19 could be examined without disturbing her status as permanent employee of the Federal Government.
8. Learned counsel for the respondent, at the very outset, questioned the maintainability of the I.C.A.
On the ground that it was hopelessly time-barred, as time spent in getting certified copy of an order cannot be excluded from the period of limitation. He further submitted that the matter falls within the exceptions mentioned in proviso to section 4 of the Service Tribunal Act, 1973 and any order or decision by the authority determining the fitness or otherwise of a person, to hold a particular post, no appeal lay to the Service Tribunal and there was only remedy left with the respondent to invoke the constitutional jurisdiction of this Court.
6. (sic) We have heard learned counsel for the parties and perused the record. Question of limitation is to be decided first. Writ petition was decided on 2-12-2002. The appellant applied for its certified copies on 4-12-2002, which was received by him on 19-12-2002, whereas the instant I.C.A.
Was filed on 3-1-2003. Limitation prescribed for filing of an I.C.A. Is 20 days. Admittedly, if, time spent in securing certified copies of the judgment impugned is excluded the I.C.A. Is within the time. The Honourable Supreme Court in case Board of Governors, Area Study Centre for Africa and North America, Quaid-e-Azam University, Islamabad and another v. Mst. Zahra PLD 2005 SC 153 was pleased to hold that both the parties to the litigation were under the impression that certified copy was required for filing an I.C.A. Therefore, time spent in obtaining certified copies was excluded from period of limitation. The same view was taken by the Honourable Supreme Court in the cases of Ghulam Hussain Shah v. Ghulam Muhammad PLD 1974 SC 344, Wali Muhammad and others v. Wali Muhammad PLD 1974 SC 56, Tahir Ali and others v. Chief Judge, Karachi Small Causes Court and another PLD 1963 SC 147 and Khalid Mehmood Watoo v. Government of Punjab 1998 SCM R 2280.
Taking guidance from the aforementioned judgments passed by the Honourable Supreme Court, we are convinced that the time spent for obtaining certified copies of the judgment is to be excluded and the appellant was not expected to hurriedly file an appeal without examining the reasons given against him in the impugned judgment. We, therefore, are convinced to hold that the objection is not sustainable and accordingly turned down the same holding that I.C.A. Was instituted within time.
7. (sic) As regard to the question of maintainability, it is appropriate to see the prayer made by the writ petitioner which is reproduced hereunder:-- "It is therefore, prayed that the Notification F.25-70/91 Est.1, dated 3rd May, 2001, being without lawful authority may be declared of no legal effect and the previous Notification No,PF.007/DA/Phy/IH, dated 23-11-1994, be declared still operative and fully applicable. It is further prayed that the respondents be directed to place the petitioner in the same grade and position as she was holding before passing of impugned Notification as per original seniority list circulated (Annexure VI). Any other relief considered appropriate in the circumstances of the case may also kindly be granted.
8. Perusal from the prayer as framed and worded, it appears that the respondent has sought determination of her seniority for promotion to Grade-19. Primarily, the dispute of seniority raised by the petitioner in her writ petition relates to the terms and conditions for her service, therefore, the learned Judge in Chamber, was not supposed to entertain and adjudicate the matter, due to the bar contained under Article 212 of the Constitution of Islamic Republic of Pakistan. Reference may be had to Khalid Mehmood Watoo v. Government of Punjab 1998 SCM R 2280. In another case titled as Asad Ullah Rashid v. Haji Muhammad Muneer and others 1998 SCM R 2129 it was held that the orders passed by the competent authority, even if mala fide, ultra vires or coram non judice, falls within the ambit of Service Tribunal and jurisdiction of Civil Court including the High Court is ipso facto ousted, in view of the provisions of Article 212 of the Constitution of Pakistan.
9. With a view to appreciate the case on merit it appears appropriate to examine the facts of the case. The respondent was posted on deputation in the PIMS on 1-2-1992. Therefore, vide Notification dated 24-11-1994 she was permanently absorbed. The Notification No,PF.007-D/A.Phy/IH, dated 24- 11-1994 of absorption annexed with the writ petition is reproduced below:-- "Consequent upon Prime Minister's directive vide Principal Secretary to Prime Minister letter No,8824/PSPM/94, dated 22-11-1994 Dr. Nighat Bilal presently working on deputation basis in BPS-18 against the post of Associate Clinical Psychologist is absorbed in PIMS on the post of Physician (General Medicine) BPS-19 with immediate effect.
(Dr. Asif Mehmood), Deputy Executive Director."
' The appellant joined PIMS as Medical Officer in April, 1986. Thereafter, he passed FPSC examination in October, 1989. He was promoted to BS-18 on 13-9-1992. During the period the respondent was on deputation with the PIMS for a period of three years. Apparently the appellant was senior most Physicians in the department and the respondent could not sit over his head being on deputation with the department by securing orders through back doors. Her appointment to a higher post was contrary to the prescribed method under Civil Servant Act, 1973 and the policy governing appointments on deputation to the Federal Government. The basic principles enunciated in the policy at Serial No,26-30 and 33 at page No,375-389 and 397-396 of ESTACOD, 2000 are as under:- -
(1) There should be vacant post in the cadre to which appointment is sought to be made on deputation.
(2) Posting on deputation should not interfere with the service interests of those already employed in the cadre.
(3) The deputation can be absorbed if Service Rules provide for absorption.
(4) Deputations counts his seniority from the date of absorption i.e, regular appointment to the cadre.
In the instant case, the whole process of appointment on deputation was flawed and the respondent was absorbed in BPS-19 on the basis of direction issued by the Prime Minister Secretariat without considering appellants' case at all.
10. For what has been discussed above, we are of the view that the relief granted through constitutional petition is not sustainable. Therefore, we allow this appeal, set aside the impugned order passed in writ petition, and accept this appeal with no orders as to costs.