' MIAN HAMID FAROOQ, J.--- Instant appeal by leave to the Court proceeds against the judgment, dated 10-7-2004 rendered by the Punjab Service Tribunal, Lahore (Tribunal), whereby the learned Tribunal ultimately accepted respondents' appeal in the following manner:-- "(9) The upshot of the discussion, therefore, is that the appellant has made out a case to persuade the Tribunal to intercede on her behalf. Resultantly, the order, dated 27-3-2004 promoting respondent No,3 to the rank of Professor of Pathology (BS-20) on regular basis in the cadre meant for Fatima Jinnah Medical College is set aside. The respondents shall now consider, in the light of the observations made in the instant judgment, the case of the appellant for promotion as Professor of pathology (BS-20) on acting charge basis w.e.f, 2-6-2003, the date on which respondent No,3 was appointed on current charge basis. Respondent No,3 may be accommodated for promotion anywhere else according to her entitlement. The appeal of the appellant is accepted leaving the parties to bear their own costs."
2. Facts of the case comprehensively tabulated in leave granting order dated 1-11-2004, read as follows:-- "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 Medical Law Regulation No,118 of 1972. As a result of the said takeover, 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 be 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 takeover of the F.J.M.C. By the Government, resolves around two such female members of the teaching staff namely, Dr. Abida Iqbal (respondent No,1) and Dr. Nazifa Ahmed (respondent No,2) who were both aspiring for the same one post of Professor of 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 Ahmed respondent as the Professor in the said Department.
(5) Dr. Nazifa Ahmed 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 the 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 Ahmed 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 Iqbal respondent belonged to the F.J.M.C. Cadre while Dr. Nazifa Ahmed 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 Ahmed 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."
3. This Court after hearing the learned Law officer, the learned counsel for Dr. Abida Iqbal and Dr. Nazifa Ahmad, who opted to appear in person, granted leave to consider the questions incorporated in para.27 of the leave granting order, which reads as under:- "(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 or an Associate Professor of a medical institution when these posts were required by the law to be fill(ed) 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 Ahmed respondent or superior to her in merit?
(h) was the learned Tribunal competent to deal with the question of promotions?
In view of these questions and others arising in the matter, we allow this petition and grant leave to the petitioners for the purpose."
4. Learned Law officer as well as the learned counsel for respondent No,1, have more or less reiterated their contentions recorded in leave granting order. However Dr. Nazifa Ahmad, (respondent No,2) chose to remain absent for the reasons best known to her. We have heard the learned Law Officer and Mr. Amir Alam. Khan, learned Advocate Supreme Court, representing Dr. Abida Iqbal, who apprised this Court that Dr. Abida Iqbal had retired from service upon superannuation since March, 2008.
5. Government of Punjab took over the control and management of Fatima Jinnah Medical College (F.J.M.C.) through notification dated 1-7-1980. Thus, all the employees of F.J.M.C. Including the members of teaching staff, became employees of Government of Punjab. Another notification of even date was issued by Government of Punjab, inter alia, stating that exclusive female character/status of F.J.M.C. Will be maintained; terms and conditions of the staff shall not be altered to their detriment; the present female staff shall not be transferred out of college and in the matter of recruitment/promotion, preference will be given to the females. It appears appropriate to reproduce the notification dated 1-7-1980, which reads as under:--- ' Annexure "A"
' Through Special Messenger No,SO(P&P)-12/5-79(i)
Government of the Punjab, Health Department.
' From ' Secretary to Government of the Punjab, Health Department, Lahore.
' To ' The Principal, Fatima Jinnah Medical College for Women, Lahore.
' Dated Lahore, the 1st July, 1980.
' Sub: Take over of Fatima Jinnah Medical College, Lahore and its Allied Hospital by the Punjab Government.
' Madam, ' I am directed to refer to this Department's Notification No, SO(P&P)-12/5-79, dated 1st July, 1980 and to state that the Government of the Punjab have decided to give the following undertaking to the officers and staff working in the Fatima Jinnah Medical College, Lahore:---
(a) the exclusive female character/status of this college will be maintained;
(b) the terms and conditions of the staff shall not be altered to their detriment; and
(c) the present female staff members shall not be transferred out of this college and that in the matter of recruitment/promotions, preference will be given to the females.
' The receipt of this communication may please be acknowledge.
Your obedient servant, (Sd.) (Abdul Rashid), Additional Secretary to Government of the Punjab Health Department for Secretary Health.
' No, SO(P&P)-12/5-79(i), dated Lahore, the 1st July, 1980.
' A copy is forwarded to Additional Secretary (Implementation and Coordination), Government of the Punjab, Services, General Administration and Information Department, for information with reference to his U.O. Dated the 30th June, 1980.
(Sd.) (Abdul Rashid), Additional Secretary to Government of the Punjab Health Department for Secretary Health.
6. To our mind the case of both the respondents was covered by the self-diminishing F.J. Cadre (as it was called). The service record of both the respondents would amply manifest that they were although similarly placed, yet Dr. Nazifa Ahmad had visible edge over Dr. Abida, as Dr. Nazifa was appointed as Assistant Professor after having been declared successful by the Punjab Public Service Commission (P.P.S.C.). She was further appointed as Associate Professor through the channel of P . P. S .0 .
' Dr. Abida Iqbal ' She was an employee of F.J.M.C. As a demonstrator at the time of its taking over; she applied to P.P.S.C. To compete for the post of Assistant Professor but she failed. Subsequently, she held the post of Assistant Professor, Microbiology, Department of Pathology, in the general cadre at King Edward Medical College, Lahore, from 1-1-1998 to 10-3-2000. Dr. Abida Iqbal was promoted to BS-18 and used designation of Assistant Professor. She did not opt to appear before the P.P.S.C. For the post of Associate professor; she started her career in F.J.M.C.
' Dr. Nazifa Ahmad ' She was also an employee of F.J.M.C. At the time of taking over of the institution by the Punjab Government; Dr. Ahmad applied to P.P.S.C. To compete the post of Assistant Professor through the examination held by P.P.S.C. And she was declared successful and was appointed as Assistant Professor; Dr. Ahmad after completion of 13 years' service as Assistant Professor secured the post of Associate Professor through the channel of P.P.S.C.; she started her career in F.J.M.C. And is serving the institution till date; she continuously remained posted in the said college and was never transferred.
7. In view of the above narrative qua career of service of both the respondents, it is evident that both the respondents were similarly placed and entitled to equal protection except that Dr. Nazifa Ahmad was appointed as Assistant Professor and the Associate Professor through the channel of P.P.S.C., while Dr. Abida Iqbal could not succeed in the competition of appointment of Assistant Professor and she did not appear before P.P.S.C. For the post of Associate Professor. Thus, it is not understandable as to why in view of the above scenario Dr. Abida Iqbal and Dr. Nazifa Ahmed could be treated differently. Rather the case of Dr. Nazifa Ahmed stands on a better footing as she remained in service in the F.J.M.C. Throughout whereas Dr. Abida Iqbal served outside the institution by holding a general cadre post of Assistant Professor, Microbiology in the Department of Pathology of the King Edward Medical College, Lahore from 1-1-1998 to 10-3-2000. We may, however, observe that by virtue of provisions of section 9 of the Punjab Civil Servants Act, 1974, every civil servant is liable to serve anywhere within or outside the Province in any post under the Government of Punjab. Therefore, no exception could be taken to the posting of Dr. Nazifa Ahmed as Professor of Pathology in Fatima Jinnah Medical College, Lahore.
8. Under paragraph 7, sub-paragraph (2) clause (b) of the Privately Managed Schools and College (Taking Over) Order, 1972 (M.L.R. No,118 of 1972), as amended by President's Order No,6 of 1983, the teachers of the Nationalized Colleges were given protection of such scales of pay and others benefits as were not less favourable than those to which the teachers of equivalent qualification, seniority and experience in the colleges maintained by the Government were entitled. The protection afforded by the Legislature was personal to the incumbents and there was no guarantee for the higher posts as held by this Court in the case of Province of Punjab v. Bashir Ahmed Bukhari PLD 1982 SC 27. In the case of Shamaun v. Secretary, Education, Punjab Government and another 1981 SCM R 802, a non-Christian Headmaster was posted in the Sacred Heart Cathedral High School, a nationalized institution under MLR No,118 of 1972, despite the assurance by the Government to the contrary. It was held that if an assurance outside the four corners of the law was held out by the executive, the Court process was not the forum for seeking its recognition or enforcement. It was further held that there was no fundamental right with regard to the posting, transfer or promotion as such.
9. We are not inclined to dilate upon other questions as Dr. Abida has retired from service since March, 2008 and most probably has received all the retiring benefits. Therefore, we feel that the rest of the questions formulated by this Court, as a matter of fact, have become redundant. We are mindful of the fact that if any findings adverse to the interest of Dr. Abida are rendered, it may prejudice her cause, who is no more in service and would have surrendered her claim of promotion as Professor of Pathology against Dr. Nazifa. However, benefits including the retirement benefits derived by Dr. Abida Iqbal shall remain intact in view of rule laid down by this Court in the case of Engineer-in-Chief Branch v. Jalaluddin PLD 1992 SC 207.
10. For the foregoing reasons, the present appeal is allowed. The impugned judgment, dated 10-7- 2004, passed by the Punjab Service Tribunal is set aside and the Service Appeal No,708 of 2004 of Dr. Abida Iqbal shall stand dismissed. No order as to costs.