' SARDAR MUHAMMAD RAZA KHAN, J----Dr. Nighat Bilal seeks leave to appeal from the judgment dated 30-4-2008 of a learned Division Bench of Islamabad High Court, Islamabad exercising appellate jurisdiction in Intra-Court Appeal against the judgment dated 30-10-2002 passed by a learned Judge in Chambers, whereby, the Notifications dated 3-5-2001 and 25-5-2001 were declared to have been issued without lawful authority and. Dr. Nighat Bilal (respondent therein) was declared to be a permanent employee of Federal Government in BPS-19. The above declaration was set aside by the learned Division Bench by accepting I.C.A. Filed by Dr. Jamal Zafar, respondent No,3.
2. Brief service record of the petitioner is that after doing her bachelors in Medicine and Surgery in the year, 1975 she joined Ganga Ram Hospital, Lahore in 1977. After attaining the membership of College of Physicians and Surgeons (MCPS) in 1979 she acquired the fellowship of (FCPS) in 1986.
During this time in the year, 1980 Ganga Ram Hospital was taken over by Punjab Government and the petitioner, by then having attained BPS-18, became a civil servant.
3. With one or two transfers, she was ultimately sent to Pakistan Institute of Medical Sciences, Islamabad on deputation in BPS-l8 with effect from 19-11-1992. Government of Pakistan, Ministry of Health through Gazette Notification dated 3rd May, 2001 absorbed her as Associate Physician in BPS-19 with her right of seniority to be reckoned with effect from 24-11-1994. With such absorption she was posted at PIMS. The right of seniority was reckoned with effect from 24-11-1994 because through earlier issued Gazette Notification dated 24-11-1994, she was absorbed in PIMS on the post of Physician General Medicines in BPS-19 with immediate effect. In short, she stood permanently absorbed in Federal Government and was also promoted to BPS-19.
4. Against the aforesaid promotion of the petitioner, Dr. Jamal Zafar (respondent No,3) filed an appeal before Federal. Service Tribunal. Such appeal was pending when on 25-6-1996 the learned counsel for PIMS informed the Tribunal that one post in BPS-19 being vacant, was available for promotion quota. Hafiz S.A. Rehman, learned counsel for Dr. Jamal Zafar submitted for a direction to the Institute to consider the case of the petitioner against the available post in promotion quota.
The learned Tribunal disposed of the appeal in the following terms:--- "Since one post of Physician (B-19) is lying vacant and the appellant is eligible against promotion quota, we direct that his case be considered for promotion according to law, and the appeal stands disposed of in the above terms.
' Dated 25-6-1996 (Sd.) Chairman."
5. Neither the petitioner Dr. Nighat Bilal nor the respondent Dr. Jamal Zafar further challenged the above order and hence the order dated 25-6-1996 became final. As the dispute of seniority related to the appointment of Dr. Nighat Bilal in BPS-19, her such appointment became final through the above order so far as the contesting Doctors were concerned. Dr. Jamal Zafar is, therefore, estopped to challenge the appointment in BPS-19 of Dr. Nighat Bilal. The seniority would of course follow therefrom.
6. Despite the fact that the petitioner was absorbed in the Federal Government and despite the fact that she stood promoted to BPS-19 with effect from 24-11-1994, the Government of Pakistan vide Notification dated 25-9-1997 repatriated her to Health Department Government of Punjab with immediate effect. She challenged such repatriation through Writ Petition No,2153 of 1997 which was dismissed on 30-10-1997. Intra-Court Appeal No,79 of 1997 filed by the petitioner was accepted on 8-11-1999 (PP:121 to 125). It was never further appealed against by anyone and it stood finally determined that the petitioner shall be deemed to be a permanent employee of the Federal Government.
7. Through Notification dated 3-5-2001 (P: 114), the Government of Pakistan passed any order which was almost a repatriation of the petitioner. In pursuance whereof PIMS issued another Notification dated 25-5-2001 (P-19). She filed a Writ Petition No,2334 of 2001 against the aforesaid action of the Federal Government whereby she was brought again to zero point. It was never contested by the Federal Government and instead Dr. Zafar Jamal was the only contestant. The learned Court observed that "from 24-11-1994 up to 3-5-2001, the status of the petitioner in Grade-19 has been recognized and continuously acted upon. Even after the judgment dated 8-11-1999 passed in I.C.A.
No,79 of 1997 no action was taken until 3-5-2001 when the impugned Notification was issued. The respondents have also not placed on the record any , proceedings which justifiably led to the passing of the impugned Notification dated 3-5-2001. For almost one and an half years after the judgment in I.C.A. The petitioner performed her function in Grade-19". The writ petition was accepted on 2-12-2002 against which I.C.A. Was filed neither by the Government nor by PIMS but by Dr. Jamal Zafar. This was again dismissed. The opposite party Dr. Jamal Zafar came to the Supreme Court that the I.C.A. Was not maintainable. The case was remanded and ultimately Islamabad High Court rendered the judgment, now impugned before us.
8. Before entering into discussion one may recall that against the Single Bench judgment dated 2- 12-2002, the Government had filed direct appeal before the Supreme Court which was withdrawn on 7-2-2005. The past legal as well as factual history of the case boils down to unescapable conclusion, firstly, that the petitioner stood permanently absorbed in the Federal Government; secondly, that she attained BPS-19 with effect from 24-11-1994 and lost all her connections with the Government of Punjab and hence could not be repatriated through the Notifications dated 25-7- 1997, 3-5-2001 and 25-5-2001. The Federal Government was not only estopped by its own acts but such acts were subsequently confirmed expressly through judgments of the High Court and also that of the Federal Service Tribunal wherein Dr. Jamal Zafar by accepting consideration for BPS-19 had himself brought an end to the matter.
9. The question of absorption as well as promotion of a civil servant is a matter strictly related with the Government concerned. The narration of past history would indicate that the Government, as such, never contested the issue which instead was contested by Dr. Jamal Zafar who is totally estopped to re-agitate the same after the decision dated 25-6-1996 of the learned Tribunal.
10. Hafiz S.A. Rehman, learned counsel for the respondents has taken the only stance that the theory of locus poenitentiae was not applicable to the Federal Government and hence it could repatriate the petitioner even after the passage of three years, if absorption was considered unlawful. The Engineer-in-Chief Branch through Ministry of Defence, Rawalpindi and another v.
Jalaluddin PLD 1992 SC 207 and Nazir Ahmad Panhwar v. Government of Sindh through Chief Secretary Sindh, and others 2005 SCM R 1814 were relied upon in this context. We have gone through the rulings above but could not be convinced on the point that the petitioner's first absorption in the Federal Government was illegal or void ab initio. The Federal Government had the authority to order such absorption not being a matter alien to the Governments involved. Keeping in view the past service record and qualifications of the petitioner, the order was rightly passed being within the discretion of the Federal Government and hence there was no reason to recede. A valuable right had accrued to the petitioner which she had exercised for a period of three years right under the nose of Federal Government and hence it cannot be taken away through a unilateral action.
11. The second most important aspect of the case is that the original absorption in BPS-19 of the petitioner had finally been confirmed by the superior Courts during litigation in which the Federal Government was a party. Thus, it had no right or power to recede.
12. It is mentioned in dispatches, though not seriously argued before us, that the petitioner had attained first absorption through back door and that the Prime Minister had no jurisdiction to order absorption in BPS-19 and hence the Federal Government had the authority to undo the same. The matter can be negated for two-fold reason. Firstly, that such absorption has been confirmed and declared valid by the superior Courts in the past litigation reproduced in the earlier part of the judgment and thus had become a past and closed transaction, not to be challenged and re- agitated. Secondly, this Court has held in numerous verdicts that the Government cannot take benefit of its own illegalities. If the competent authority was of the view that some higher authority had no jurisdiction, it would have shown the courage to disobey the order. Once it is not done, the step so taken cannot be subsequently retraced by the Government if the incumbent otherwise was eligible for the benefit so granted. Nobody can doubt the eligibility of the petitioner keeping in view her past service record and qualifications.
13. Consequent upon what has been discussed above, the instant petition after conversion into appeal is accepted, the impugned judgment dated 30-4-2008 is set aside and that dated 2-12- 2002 is restored, holding that the petitioner shall be deemed to be permanent employee of the Federal Government.