' The petitioner was appointed against one of the two posts as Assistant Professor Surgery, by the Executive Committee of respondent No, 4 on 18th October, 1973, as a result of selection after his interview alongwith others. It was stated in the appointment order (Annex. R/15) that the post is non-Government and non-pensionable. Dr. Khalida Usmani respondent No, 3 who had previously joined as Assistant Professor (Orthopedics) since 6th July, 1972, in the same College, had also applied for one of the two posts of Assistant-Professors Surgery but was not selected. Earlier she had worked as Assistant Professor Surgery against a leave vacancy from 23rd August, 1971 to 1st May, 1972, and honorarily from 2nd May, 1972 to 5th 'July, 1972, after her termination of the previous job.
2. On 8th June, 1974, a new post of Assistant Professor of Surgery was created and respondent No, 3 was appointed against it. It appears from Annex 'B' dated 20th September, 1974, that a request of the petitioner to decide the question of his seniority was considered by the Executive Committee of the College and he was declared as the senior most out of these three Assistant Professors including respondent No, 3.
3. In January, 1974, respondent No, 3, filed a representation to the Director-General, Health, Government of Pakistan, who was also the Chairman of Board of Governors. Another representation was addressed to the Board of Governors (respondent No, 4). They were considered on 6th December, 1974. The request made in the first representation was to 'condone the period in which was working honrary Assistant Professor as it was due to lack of post and not due to any fault of mine and according to rules up to 6 months period can be condoned for the purpose of seniority ' In the second representation she stated "I applied for one of these posts but Health Secretary (Dr. Rahmat Ullah Chaudhry) quite adamantly refused to appoint me against any one of these posts. Even though I was working in the Unit of General Surgery time period between April, 1973 to October. 1973, the posts were vacant, can be counted against my seniority". The Board of Governors after discussing all the aspects of the case rejected her representation and maintained the previous order.
4. It appears that respondent No, 3 abandoned her efforts to gain seniority over the petitioner for about 5 years. Meanwhile both the contestants were promoted as Associate Professors on 1st May, 1977. On 9th August, 1979, she appears to have approached the Board but it again maintained the previous order of seniority. Taking that as starting point she approached the Central Government as well as the Vigilance Commission created under the Punjab Administrative Vigilance Commission Ordinance (Ordinance X) of 1979 (hereinafter called the Ordinance) probably as a post of Professor was falling vacant. The grievance of respondent No, 3 was based mainly on the ground that she had not been given credit for her service for the period between 6th July, 1972 to 23rd May, 1974 (see para 4 of the order of the. Vigilance Commission). One of the objections of the petitioner against the above proceedings is that the Commission initiated proceedings on the initiation of the Central Government and not the application of respondent No, 3 but this is not borne out by the record.
5. Anyway, the Commission inquired into the matter, heard the parties and decided on 5th January, 1980. That the letter dated 20th September, 1974, of the Executive Committee of the College declaring the petitioner as the most senior Assistant Professor of Surgery was void. The petitioner challenged that order in Writ Petition No, 549-S-80, but the same was rejected on the ground that the act 9t' the Commission was a mere advice and not a decision so as to confer any right on respondent No, 3 or deprive the petitioner of his seniority. It was further observed that the petitioner shall be able to raise all the objections before the Governing Body, when the advice was sent to it under section 23 of the Ordinance.
6. The matter ultimately came up before the Governing Body who differed with the advice of the Commission and upheld its previous decision. Meanwhile, the Health Secretary (Centre) is said to have sent a D.
0. Letter to the Governor, Punjab. A reference is also said to have been made to the Governor by the Commission under section 24 of the Ordinance. The Governor accepted the advice of the Commission and set aside the order passed by the Governing Body. The Services, General Administration & Information Department issued two directions purporting to implement the order of the Governor. The petitioner challenged that order of the Governor as well as the directions to implement, through the present writ petition.
7. The learned counsel for the petitioner raised the following main points :-
(1) As Fatimah Jinnah Medical College is a Private Institution, the Ordinance is not applicable to it and consequently, the order of the Governor is void.
(ii) The M.L.R. 118 was not applicable to the College and in any case the administration and control of the College was never taken over by the Provincial Government.
(iii) That even if the college is governed by the Martial Law Regulation 118, yet the Government never took any step to either nationalize it or to administer, control and supervise it. This is sought to be supported by the relevant Rules made under Martial Law Regulation 118 and letters Annexures 'S' and '1" and the notification, dated 1st July, 1980.
(iv) The decision taken on 5th of January, 1980 was only by the Chairman of the Vigilance Commission and no other member took part in it. According to section 23 (4) of the relevant Ordinance only the Commission could hear and decide the matter before it.
(v) No reference was ever made by the Vigilance Commission to the Governor and the one being relied upon by the respondent is a reference by one member under orders of Mr. C. K. Hassan, the Central Health Secretary.
(vi) Having accepted the appointment conditionally the respondents could not reopen the same particularly after a lapse of 5 years. This aspect was noted by the Commission but it did not advert to it.
' It is to be noted that respondents 4 and 5 in their written statement dated 19th June, 1980, accepted the case of the petitioner but the learned Advocate-General who represented all the respondents except respondent 3, at the time of arguments contested the petition on behalf of all.
8. In support of his first point, the learned counsel relied on the judgment of a Division Bench of this Court in Muhammad Ahmad v. Nazi,' Ahmad Barki etc. (Writ Petition No, 2085-64) to say that Fatimah Jinnah Medical College is a private Institution registered under the Societies Act and is not a Government Department. He has also referred to Annex. `V"' W' and 'X' which are the registration certificates, memorandum of Articles of Association of the College and allied hospitals. All this is not disputed by the respondents who rely on Martial Law Regulation 118 to support that the College had vested in the Provincial Government since 1972. Respondent No, 3 has filed a written statement alongwith a number of annexures in that regard. A reference was also made to the notification dated 1st July, 1980, whereby the administrative control and management of the College with its allied hospitals and other property attached to it stood vested on nationalization in the Government of Punjab retrospectively with effect from 1st September, 1972.
9. The learned counsel for the petitioner argued on the basis of the above facts to say that obviously the Punjab Government did not take over administration and the management of the College at any time, till lst July, 1980, when it issued the notification of that date to assume administration and control of the College. It was further argued, that no notification could be issued with retrospective effect unless the law specifically empowered the authority concerned in that regard.
10. The plea, that the Provincial Government never concerned itself with the administration of the Fatima Jinnah Medical College under M.L.R. 118 till 1st July, 1980, is supported by the fact that both the petitioner and respondent No, 3 were appointed as Assistant -Professors respectively in 1973 and 1974 and later promoted in 1977 as Associate Professors, by the Governing Body of the College and not the Punjab Government. It was particularly stated in the appointment order of the petitioner that the post is non-Government. Their representations were also considered by the Executive Committee and the Board of Governors of the College. The orders of the Commission as well as that of the Governor also show that it was the Executive Committee/Board of Governors of the College who were managing the College. Even the final orders were sought to be implemented and in fact implemented not by the Government but the Executive Committee of the registered society.
11. So far as the Punjab Government's own position goes, it is also to the same effect. Annex. `L' is a letter dated 24th March, 1980, to the Secretary, Health Department, Government of Punjab, whereby the Secretary in his capacity as the Chairman of the Executive Committee, was directed, on behalf of the Governor, to ensure that the order of the Governor holding that respondent No, 3 was senior to the petitioner, in view of her longer continuous service in the cadre is implemented by the Governing Body of the Fatimah Jinnah Medical College. This is in fact one of the impugned orders and had been passed on the advice of the Commission. The same is the position as regards letter dated 16th April, 1980 (Annex. 'MI whereby respondent No, .3 was promoted as Professor of General Surgery by the Governor and the order was directed to be implemented by the Secretary Health as the Chairman Executive Committee of the College. Both the orders were then implemented by the Board of Governors vide its minutes of the meeting dated 3rd April, 1980 (Annex. 'N') and Annex. 'P', dated 20th April, 1980.
12. The position of the Provincial Government is further amply clarified in its report sent to this Court, in this very petition, in pursuance to the order, dated 26th April, 1980. It is stated in para 5 that the affairs of the College are managed by the Governing Body of 9 members headed by the Director- General Health Government of Pakistan with Secretary Health, Government of Punjab as its Secretary. The Governing Body is constituted by the Federal Government in consultation with the Provincial Government. The Executive Committee is headed by the Secretary Health, Government of Punjab. According to para 5 (c) of the report, the expenditure of the College is met by the 'Federal Government and the Provincial Government in the ratio of 50 :
50. The copies of the budgetary provisions produced by the learned Advocate-General support that aspect of the plea.
This is also supported by the rules 3-7 of the "Fatimah Jinnah Medical College for Women' and allied Hospitals Rules, 1972". Rule 19 divides the property of the College and hospital in 50 : 50 ratio in case of dissolution.
13. Para 2 (i) of another letter, dated 13th April, 1978 (Annex. Written by the Secretary Health (Punjab) to the Additional Secretary (Implementation), giving the same information as above shows further that the Governing Body had been established since 1955. Para 2 (ii) of it is about 50 : 50 ratio of recurring expenditure being borne by the Federal and Provincial Governments since 1948, while the capital expenditure is the exclusive responsibility of the Provincial Government. It appears further from it that in April, 1969, the Central Government desired that the College be provincialised as medical education, as the responsibility the Provincial Government. It takes note of the fact that the Provincial Health Department is not responsible for the day-to-day administration. Para 5 (0 and (ii) states that the employees and that they do not enjoy the facilities of the Government.
The reason as to why the Federal Government was holding on to the College was that it admitted foreign students against the 50% seats allocated to itself. Ultimately, it was , required that the College must be provincialized at the earliest.
14. Annex. '1' is yet another letter, dated 8th July, 1979, written by the Principal of the College in reply to the letter, dated 2nd June, 1979 (Annex. 'S'). It stated that buildings of the College and the Hospital was Hindu auqaf and that though the Central and Provincial Governments had agreed to share the expenditure in 50 : 50 ratio yet the center did not agree that this institution should have provincial status. Consequently, it was taken over neither by the Centre or the Province. It also mentioned the creation of the Board of Governors with full administrative powers to run the institution. It was registered under the Societies Act. 1960, and its rules and regulations were approved both by the Central and flit Provincial Governments. Subsequently, the rules and regulations were revised by the Central and Provincial Governments vide letter dated 16th November, 1979, of the Health Division. The letter' further noted that the matter was lying in the Health Division to get an Ordinance promulgated by the President of Pakistan. This is supported by a reference dated 13th January, 1979.
15. Yet another letter of the Provincial Government addressed to the Principal on 8th March, 1980, says that as the Ganga 'Ram Hospital is an autonomous body and its administration is under the control of a Governing Body, the Government cannot interfere in the administration of the hospital.
The Principal was, therefore, advised to proceed in accordance with the rules prescribed in that regard,
16. The respondents have also placed on record an order dated 7th February, 1981, passed by the Governor sanctioning future pensions of various employees who had retired and were being paid their pensions from the pension fund of the College. It was directed therein that they be paid from the Government Treasury/Banks, There is a similar letter written by the Principal to the petitioner saying that persons retiring between 1972-80 were paid their pensions under the authority of the Principal from the College Pension Fund. Another letter addressed to the petitioner shows that till 30th June. 1980, the entire staff of the College was selected/appointed by the Board of Governors, were non-transferable and were never on the list of Health Department Cadre. Some Government officers were on deputation. The Principal in her letter dated 15th June, 1980, to the Secretary, Health Department, stated that the Government was not disbursing the pensions of the College employees and that its buildings were not maintained by the P.W.D.
17. Thus all the facts given in paras 10-16 leave not even an iota of doubt that the College was a body being run under the control of the Central Government in consultation with the Provincial Government. Further, the notification dated 1st July, 1980, could not operate retrospectively in view of the very well established position of law. Reference be made to the case of Sh. Rehmatullah (PLD 1963 S. C. 311) and M. Akhtar Hussain (PLD 1970 S. C. 146).
18. The learned counsel for the petitioner had also placed on record a letter dated 7th August, 1980, issued by the office of the Accountant-General, Punjab, to the Secretary, Health Department, Government of the Punjab. It is to be noted that the Accountant-General is the ex officio Treasurer of the Board of Governors. Leaving aside its legal connotation the letter shows that the Health Division (of the Central Government) vide its notification dated 2nd August, 1979, approved the latest constitution of the Board of Governors. The Accountant-General was also riot sure if the concurrence of the Federal Government had been obtained prior to the issuance of notification dated 1st July, 1980, taking over the administrative control and management. He also sounded a note of caution that retrospective taking over would render all the previous actions till 31st June, 1980, void.
19. The position taken by the, learned Advocate-General hence rests purely on the legal effect of MLR 118, i,e, to say, did the administrative control and the management of the College vest automatically in the Government of Punjab on the promulgation of MLR 118 ?Para 2 (b) of MLR 118 defines 'Privately-managed College' as under :- "Privately-managed College" means a college maintained and managed by any parson or body other than the Central Government, a Provincial Government, a Municipal Committee, a Cantonment Board or any other local authority ;'
' Thus the College in question is an exception and so is not a 'privately-managed college' as it was being maintained by the Central and the Provincial Governments. The learned counsel for the petitioner also drew my attention to the list of Colleges taken over under MLR 118 at the relevant .
Time to say that it does not include the name of Fatimah Jinnah Medical College. This is, however, not very relevant as there is no such requirement of pars 4 or any other provision of the M.L.R. To prepare a list of the taken over Colleges Para 4 rather vests all the Colleges in the Government.
Reference was then made to rule 2 (c) where it is pointed out that the nationalized Colleges mean those other than the professional Colleges. It is argued that M.L.R. 118 either never intended to take over the professional Colleges or ever if it did so, the Provincial Government thought it fit not to take over Fatimah Jinnah Medical College. A perusal of the Punjab Nationalized Colleges (Men's and Women's) Teaching Posts Rules would show that they did not concern the nationalization itself.
They were rather meant to regulate the terms of the teachers of such 'Nationalized Colleges' as had been defined therein. Thus the only conclusion that can be drawn from the Rules is that they would not apply to those teachers even if the professional Colleges had been taken over under M.L.R.
118.
20. Hence, in order to hold that the administrative control of the Fatimah Jinnah Medical College vested automatically in the Government of the Punjab, it must answer all the specifications as given in para 2 (b) of M.L.R.
118. As stated in paras 10-16 above, the Fatimah Jinnah Medical College was being managed by the Board of Governors appointed under the direction of the Central Government (See para 5 (a) of the report). Some of the contents of the above paras may also give an indication that it was in the management of the Central Government in consultation with the Provincial Government (See Annex. 'R' and 'T'). The letter dated 8th March, 1980 of the Punjab Government that it had nothing to do with the day-to-day management of the College is quite clear and unequivocal. In any case, it cannot be said that the College was a 'Privately managed College' for it was being maintained and managed by a Governing Body appointed by the Central and the Provincial Governments. Even the 'Rules and Regulations' of Association as given in Annex. 'X' would show that all the members of the Governing Body as Mentioned in rule 6 are either ex officio Government officers or are to be nominated by the Central or the Punjab Government. Thus it was not a 'Privately-managed College' and so did not vest automatically in the Punjab Government under para. 4 of the M.L.R.
118.
21. In the alternative it was stated ,on behalf of the petitioner that even if the College was taken over, the Government should be deemed to have authorised the Governing Body to exercise all the powers of the Provincial Government in this regard. Consequently, it was urged that the action taken by the Governing Body shall be valid and final and could be challenged only in an appeal before the Services Tribunal. Firstly, the position is not so in view of my findings above. In any case, I am inclined to agree with the learned counsel that even if it was a case attracting the jurisdiction of the Provincial Government with regard to terms and conditions, the Article 212 will create an insurmountable bar in the way of the Commission to deal with the matter.
22. The next question is about the jurisdiction of the Punjab Administrative Vigilance Commission with regard to the matter in hand. The case of the respondents was that the Fatimah Jinnah Medical College is included in the definition of 'agency' as given in section 2(11) of Ordinance X of 1979. 'Agency' inter alia includes a company wholly or partly controlled by the Government of the Punjab. It is stated on this basis that the College is a society registered under the Societies Act and that as the Provincial Government is paying 50% of the expenditure and the Executive Committee is being headed by Secretary (Health), the Vigilance Commission rightly exercised its jurisdiction.
Leaving aside the fact whether a society is a company or other body included in the definition of agency, the question whether the Provincial Government could interfere in a matter where the Central Government also has the control is very doubtful. It may be noted that the principle laid down in the Constitution is that where both the Central as well as the Provincial Governments have the jurisdiction, the authority of the Central Government is to supervene. The interference by the Commission in such a situation cannot be justified or validated.
23. The other objection on behalf of the petitioner that only the Chairman had referred the matter under section 24 to the Governor and not the Commission, may also be considered. Section 24 provides that if there is a difference of opinion between the Commission and the agency with regard to the implementation of advice given by the Commission, the Commission may refer the matter to the Governor whose decision shall be final. The file placed before me does go to show that after the Board of Governors of the College declined to accept the advice of the Commission its Acting Chairman recorded a note dated 12th March, 1980 stating that 'the matter be brought before the Governor for directing the Department to accept the advice of Commission in full.'
Admittedly, there did exist another member (Mr. A. H. Aslam) of the Commission at the relevant time. The file does not show that the matter was brought before the Commission as such for its consideration and decision. Even no discussion with the member is recorded. Section 24(1) of Ordinance X of 1979, lays down that in case of difference of opinion between the Commission and the agency, the Commission may refer the matter to the Governor. Rule 3 (iv) of the Punjab Administrative Vigilance Commission Rules of Business, 1979, says that cases about reference to the Governor shall be brought before the Full Commission rule 4 lays down that cases needing decision of the %Commission may be disposed of either by discussion or by circulation. Rule 7 provides that the minutes of each meeting of the Commission shall be recorded by the Secretary and shall be maintained in a minute book. No copy of the minutes has been produced. An affidavit of the Chairman has been filed in Court deposing that it was so discussed with the other member but unfortunately 1 would not be able to rely on that oral assertion in view of the mandatory provisions of the rules. It is very well established that when law requires a thing to be done in a particular way it should be done in that way or not at all.
24. Any how the relevant part of the advice of the Commission is as under :-- `(a) that the letter No, 3907/FJ, dated 20th September 1974 ' issued by the Principal declaring Dr. Mukhtar Randhawa to be senior to the other two Assistant Professors of Surgery not having the sanction of the rules should be considered as legally void and should be withdrawn."
' This advice is against law and the facts of the case. The Commission in paras 9 and 10 of the advice noted that 'admittedly the Punjab Health Department Medical Institutions (Class 1) Service Rules 1971 as amended from time to time (hereinafter referred to as the Rules) are applicable, because of rule 9 of the F. J. Medical College for Women and Allied Hospital Rules, 1972.' So it could not rule that there was no sanction of rules if there was in fact a specific provision about it.
25. Rule 10 of the Rules, as also referred to by the Commission reads as under :- "Seniority (1) The seniority inter se of the members of the Service in the various grades thereof shall be determined-
(a) in the case of persons appointed by initial recruitment, in accordance with the order of merit assigned by the Commission ; provide d that persons selected for the service in an earlier selection shall rank senior to the persons selected in a later selection ; and.
' Admittedly, the contestants were appointed by initial recruitment. Respondent No, 3 was not found fit for the job when petitioner and another were selected. She, therefore, cannot become senior to the petitioner. Even otherwise, the newly-created post of Assistant Professor of Orthopedics to which she was appointed on 6th July, 1972, cannot be equated with the post of Assistant Professor of Surgery. Had it been so respondent No, 3 might have applied for transfer and not fresh appointment. Again had it been so, the Executive Committee would have done it earlier when she was the only applicant. Later she was rejected when petitioner and another- were selected. Any indulgence in favour of respondent No, 3 in that situation would mean allowing her indirectly what she could not gain directly. No Court or other forum will allow such a result in any case, the two conditions of the above rule stand quite fulfilled in favour of the petitioner as he was selected in preference to respondent in an earlier selection. He shall, therefore, be senior and could not have been declared junior on the ground that no rules of seniority exist or it did not have sanction of the Rules.
26. Further, the Chairman of the Commission rightly observed in his order that the dispute between the parties assumed importance because of a post of Professor of Surgery had fallen vacant. The Commission, however, travelled beyond the law itself when it tried to assume that question of seniority between the parties had to be answered on the basis of length of the experience as a Surgeon in defiance of rule 10 (See para 8 of the order). Annex. R/18 produced by respondent No, 3 and relied on by both the parties is a ruling of the Medical and Dental Council of Pakistan given in pursuance to a querry of respondent No,
3. It states that 'experience gained in one specialty can be counted for appointment/promotion only in that specialty'. It is to be noted that the Council specifically observed that experience in Orthopedic Surgery cannot be counted for general Surgery.
27. Again, the Commission mixed up the rule of seniority with that of the method of recruitment. The specialties in contra-distinction to clinical subjects are a part of the Appendix giving minimum prescribed qualifications and the method of recruitment for each post. The two aspects thus needed separate treatments. The seniority as said above is regulated by rule 10. The method of appointment of a Professor is by promotion from amongst the Associate Professors in the specialty with five years' experience as Associate Professor. The question of seniority and juniority does not come in that appointment. The selection therefore could be done only objectively by the competent authority and no advice could be given by the Commission in advance unless the 'agency' had violated any Rules or had abused its powers. The anticipatory action taken by the Commission is, not covered by the provisions of Ordinance X of 1979.
28. The reference made by the Commission to the Governor proceeds on the basis that though the respondent No, 3 was in service as a surgeon since 6th July,1972, yet the College declared the petitioner senior to her despite rule 10 of the Punjab Health Department Medical Institutions (Class I) Service Rules, 1971, which applies by adoption and embodies the universal principle of seniority on the basis of continuous service in a grade without reference to specialties. The rule 10 (a) which in fact is applicable has been reproduced in para 25 above. What the Commission appears to think to be applicable is rule 10 (b). This rule applies :- "in the case of Persons appointed otherwise with reference to the dates of their continuous appointment therein".
As said above, it was not a case of continuous appointment as the previous service of respondent No, 3 was in a different department. It was rather a case of fresh appointment and both the contestants had so applied. The respondent, therefore, could not turn round to claim) that it was a case of continuous officiating or appointment. It is, there-1, fore, clear that as the contesting parties were appointed on the basis of fresh selection against new and different posts, the rule 10 (a) and not rule 10 (b) had to regulate their seniority.
29. It appears from section 24 that what is to be implemented by the 'agency' is the advice of the Commission and in case of difference of opinion, the Commission has to make a reference to the Governor whose decision shall be final. The advice of the Commission in the case, was as under :- "(a) that the letter No, 3097/FJ, dated 20th September, 1974 issued by the Principal declaring Dr. Mukhtar Randhawa to be senior to the other two Assistant Professors of Surgery not having the sanction of the Rules should be considered as legally void and should be withdrawn ;
(b) that if it is intended to fix the interse seniority of the doctors working in a particular specialty the appropriate rules should first be framed and then a seniority list drawn up ;
(c) that the disputed period during which Dr. Khalida Usmani actually worked in the Surgery Department should be counted towards her experience in that speciality ;
(d) that before a seniority list is finalised under the new rules proposed to be made under (b) above a draft seniority list should be circulated amongst doctors concerned to enable them to raise objections, if any ;
(e) that pending a decision to fill the vacancy of the Professor of Surgery as indicated above, the temporary charge of the department should be given to one of the existing Professors so as not to prejudice the case of either constant ; and ( f ) that when the competent authority proceeds to make the selection both the claimants should be heard in person to ensure a just and equitable decision of the case."
' The College accepted all but (a) part of the advice. It meant that the College did not withdraw the order dated 20th September, 1974 of the Principal declaring petitioner senior to the respondent No,
3. In this view of the matter, the Governor could only direct under section 24 that (a) part of the advice be also implemented. That would mean deciding afresh the case of seniority. What, on the other hand, the College has been directed to implement is as under :-
(a) Letter dated, 24th March, 1980 of S. G. Adm, & Information Department to the Secretary, Health.
(b) Letter, dated 16th April, 1980 of Mr. Shafqat Mahmood, Deputy Secretary, S. G. Adm, and Information.
(i) direction to treat the order, dated 20th September, 1974 as void ;
(ii) treat the respondent No, 3 as senior to petitioner under rule 10 as she joined the College earlier than petitioner ;
(iii) seniority between petitioner and respondent No, 3 be predetermined in the light of the above ;
(iv) Selection for Professor be made on the basis of seniority-cum-fitness.
' The Governor of the Punjab and Martial Law Administrator, Zone 'A' (Punjab), has been pleased to order, with immediate effect, the promotion of Dr. Khalida Usmani, Associate Professor of General Surgery, Fatimah Jinnah Medical College for Women, Lahore, as Professor of General Surgery, Fatimah Jinnah Medical College for Women, Lahore, vice Professor Dr. Saulat Jehan, who retired from service after attaining the age of superannuation.
2. The Governor of the Punjab and MLA, Zone 'A' has further been pleased to direct that Dr. Khalida Usmani shall be placed incharge of the Unit of General Surgery vacated by Professor Saulat Jehan.
' Thus the direction at (ii) and (iv) in the first letter and entire second order are in excess of the advice to be implemented in parts (b) to (e).
30. It is to be noted that the order of the Governor has not been placed or the record. However, the Chief Secretary's communication to the Commission about it is as under :- "The issue of non-acceptance of Punjab Administrative Vigilance Commission's advice by the Governing Body of the Fatimah Jinnah Medical College, in the case of fixation of seniority of Dr. Khalida Usmani, Associate Professor of General Surgery, FJMC was referred separately in a summary to the Governor/MLA, as required under Rule 24 (1) of the PAVC's Ordinance. The Governor has been pleased to agree with the advice of the PAVC and has directed that it should be implemented, in toto, by the Governing Body of the FJMC.
' Instructions have already been issued, separately, to the Provincial Secretary Health to get the advice of the PAVC implemented by the Governing Body of Fatimah Jinnah Medical College."
' What was to be implemented under the Ordinance is the ad vice and not the arguments of the Commission. A comparison of the contents of the advice of the Commission and its communication as shown in para 29 above would make it clear that what was advised by the Commission and what was in fact to be implemented is far different from what the Services, General Administration and Information Department required of the Secretary Health to do. Thus the direction to be implemented it unlawful.
31. On its merit it is to be seen that the respondent was rejected in 1973 when petitioner and another were selected as Assistant Professors, Respondent No, 3 did not challenge that order. It is in the comments of the College sent to the Commission that respondent No, 3 had been told at the time of her selection in 1974 that she will not be allowed to count her previous service towards seniority.
Respondent No, 3 has not denied that in para 3 (ii) of her representation, dated 19th September, 1979, to the Chairman, Board of Governors of the College. She rather proceeded on its legal effect.
The petitioner has repeated that in para 1 of his petition to say that the Ex-Committee recorded a minute that her work as Assistant Professor Orthopedic Surgery will not be counted for seniority in General Surgery. This is repeated by the Board of Governors in para 2 of their minutes dated 7th February, 1980, of the meeting held to consider the advice of the Commission. The same thing is repeated by the Board of Governors on 11th August, 1979 (Annex. 'H'). In Muhammad Hafeez Khan v.
The Secretary (1981 S. C. M. R. 660) the petitioner accepted an offer, in Court of the Lahore Development Authority for a job. It was made clear in the order that the petitioner would not claim seniority viz-a-viz the other employee nor arrears of salary. His petition was then disposed of.
Subsequently, he attempted to resile but was not allowed to do so. The case in hand is rather worse for the respondent. She accepted the job on the condition. Later, she represented against the seniority but failed. She then kept quiet for about five years. It is unthinkable that she did not know about the rejection of her representation or had not inquired about it to know its fate. She shall rather be deemed to have acquiesced in the matter.
32. The sum and substance of the entire discussion made above is that the Government of the Punjab never took over the administration and control of Fatimah Jinnah Medical College as a matter of fact. The employees of the college were not civil servants and did not enjoy any facility of the Government as such. Rather, it always acknowledged and allowed the Board of Governors and the Executive Committee, appointed under the direction of the Central Government, to manage and administer it. So much so that even the order passed by the Governor under section 24 of the Ordinance on the reference made by the Commission before the Notification, dated 1st of July, 1980, was implemented not by a Department of the Government but by the Secretary Health in his capacity as Chairman of the Executive Committee of the Fatimah Jinnah Medical College. Further, the college never vested automatically in the Government of the Punjab under Para 4 of the Martial Law Regulation 118 and as a matter of law it could not have so happened as it was being managed under the direction of the Central Government though maintained in equal share by the Central and the Punjab Governments. Again, the college was not an 'agency' as defined in section 2 (ii) of Ordinance X of 1979. In any case, the reference made by the Commission was also not valid and the implementation of the order of the Governor sought for by the Services and General Administration Department was far in excess of the order of the Governor. Consequently, the impugned orders cannot be maintained on any ground whatever. On the other hand, the seniority of the petitioner is rather established under rule 10 (a) and it could not challenge.
' In view of the above, the impugned orders of respondents Nos. 1 and 2 and their implementation by respondents 4 and 5 are declared to be without lawful authority and of no effect. The parties are left to bear their own costs. Writ .