1. Kazi Afaq Hussain, Member.--The instant case has a long and chequered history and a perusal of its record reveals that it has gone through various stages of litigation at myriad fora including the apex level of the Hon'ble Supreme Court of Pakistan.
2. 2.Aphoristically put, the instant Misc: Petition was tiled on 18.4.2016 for implementation of the judgments of this Tribunal dated 15.3.2003 and 6.112006 passed in Appeal No. 192(L)CS/2000/. The petitioner was appointed as Medical Officer in Sheikh Zayed Hospital, Lahore on 22.3.1989 through the Placement Bureau. The terms and conditions a his appointment stated that he would be regularized in service after expiry of six months. But for reasons best known to the respondents, except for the petitioner, all his colleagues having the same status were confirmed against their posts. To add insult to the injury, his services were terminated after expiry of 1 1/2 years on the ground of absence from duty. The petitioner contends that he was sick and admitted in the same hospital at the time of his termination.
3. 3.Aggrieved by this order the petitioner filed a departmental representation with the Establishment Division/Respondent No. 2 which was accepted by the Competent Authority and the petitioner was reinstated into service from the date of his termination. However, the respondents did not issue his regularization orders despite the orders of the Establishment Division/Respondent No. 2. Resultantly, the petitioner had no option but to file on appeal in this Tribunal praying for fegularization of his service and award of back benefits including seniority and promotion. This appeal was accepted vide judgment dated 15.3.2003 with the following observations:-- "(a) We direct the respondents to consider the claim of the petitioner for regularization and seniority from the date of his appointment keeping in view his case at par with the case of Dr. Arif Hussain and "Dr. Mazhar Qazi;
(b) That Departmental Promotion Committee shall take into consideration that since 1994 the service record of the petitioner is without any complaint. This fact has not been controverted by the Law Officer. He also says that there has been no complaint against the petitioner since 1994. This being the factual position that the petitioner is serving the Institution since 1989 he is justified in claiming that he should not be treated ad hoc for an indefinite period. His fate should be decided at the earliest. The request of the petitioner is genuine and the respondents cannot be permitted to treat the petitioner as an ad hoc appointee for an indefinite for an indefinite period. In the circumstances the respondents are directed to decide the case of the petitioner for regularization strictly on merits keeping in view his record of service and as mentioned above the casts of Dr. Arif Hussain and Dr. Mazhar Qazi; (c)In this regard we would like to refer to the letter dated 19.12.1994 issued by the Secretary, Cabinet Division to the Chairman/Dean, Sheikh Zayed Postgraduate Medical Institute Lahore. In this letter a clear direction was issued for reinstatement of the petitioner with all back benefits including seniority. This letter is a direction of the Government of Pakistan and it should have been complied with. Accordingly we direct that while deciding the case of the petitioner as per directions issued by us, the directions issued by the Secretary, Cabinet Division shall also be implemented; (d)The matter regarding pay and other benefits shall also be taken up by the respondents together with his claim for "regularization. This process shall be completed by the respondents within a period of two months from the date the order is received-by them."
4. In parsuance of the orders of the Hon'ble Supreme Court of Pakistan the petitioner filed the instant Misc: Petition on 18.4.2016. The learned counsel for the petitioner opened his arguments with a parochial stance that since the petitioner hailed from Sindh and had been inducted into serfice through Placement Bureau from District Thatha, he was always treated like a step child by the respondents. He was singled out when the question of regularization of service came up and was the only one terminated while others were regularized in service. The learned counsel submitted that rather than implementing the judgments. of this Tribunal, the respondents filed an application under Section 12(2) of CPC in this Tribunal. However, the same was dismissed on merits. The learned counsel continued and stated that the respondents did not stop here and allegedly changed the ACRs of the petitioner for the last 14 years and inserted adverse remarks which was done against all norms of fair-play and justice. The said adverse remarks were communicated to the petitioner through a joint letter dated 22.10.2003. The learned counsel stated that subsequently the adverse remarks were challenged in this Tribunal vide Appeals No. 214(L)CS/2004 on 28.02.2004 and 873(L)CS/2004 on 30.10.2004 respectively which were accepted by the Tribunal vide judgments dated 11.6.2008 and 24.6.2008 respectively and the alleged adverse remarks were ordered to be expunged. In the meanwhile the petitioner filed a new Misc. Petition No. 199/2003 in Appeal No. 192(L)CS/2000 for ante-dation of his promotion in this Tribunal and vide order dated 6 11.2006 this Tribunal directed the respondents to do the needful after implementing the judgment of the Court in letter and spirit. However, despite clear orders, the learned counsel added, the respondents time and again avoided to implement the orders of this Tribunal on one pretext or the other. So much so that order of the Tribunal was challenged in the Hon'ble Lahore High Court, Lahore through W.P.No. 1929/2005 and got the order of this Tribunal suspended at the initial stage.
4. However, the Writ Petition was eventually disposed of vide order dated 3,5.2006.
5. 5.The learned counsel contended that all the Courts including the apex Court had decided the cases in favour of the petitioner but even then the respondents were hesitant to implement various judgments given in his favour. He added that the only favour granted to the petitioner was grant of BS-18 in the year 2009. Consequently the petitioner had to file a petition for implementation of the earlier judgment of this Tribunal in Misc: Petition No. 95/2008 in Appeal No. 192(L)CS/2000. This Misc: Petition was accepted by the Tribunal and the respondents were again directed to implement the judgment in letter and spirit, vide order dated 25.6.2010. This order. of the Tribunal was challenged by the respondents in the Hon'ble Supreme Court of Pakistan .through CPLA No. 1515-L/2010.
6. However, the Hon'ble Supreme Court of Pakistan disposed of the same vide order dated 24.5.2011 directing the respondents to implement the judgment of the Tribunal dated 15.3.2003 and to hold a meeting of the DPC to sort out the matters pertaining to the seniority of the petitioner and also to gauge the impact on the status of other officials likely to be affected by such order. The learned counsel continued that again this order was not implemented. Ultimately, the petitioner filed a contempt petition before the Hon'ble Supreme Court of Pakistan in Crl. Org. No. 16/2011. The Hon'ble apex Court was pleased to direct the respondents vide order dated 6.6.2012 to place the case of the petitioner in a meeting of the DPC.
7. 6.In the meanwhile the post of Administrator in BS-20 fell vacant in Sheikh Zayed Hospital. The petitioner filed 'a Writ Petition No. 17277 of 2010 in the Hon'ble Lahore High Court, Lahore praying for his promotion and adjustment against the said post after according him due place in the seniority list as per orders of this Tribunal dated 15.3.2003 which would render him as the senior most Doctor in the Hospital and entitled for promotion to BS-20 and appointment against the post of Administrator. The Writ Petition was disposed of vide order dated 25.9.2012 with certain directions.
8. The operative part of the same is as under:-- "5. As the respondents have already requested the Secretary (Health), Government of the Punjab, for convening the DP&SC for deciding the petitioner's case, the present petition is premature.
9. However, the respondents are directed to complete the process of petitioner's promotion within three months from today, strictly in accordance with law."
10. 7.Ironically, the learned counsel added, that even this order was not implemented. Therefore, the petitioner had to file a contempt petition through Crl. Orig. No. 202-W/2013, During the proceedings the respondents took the plea before the Hon'ble Court that the petitioner was not the senior most Doctor and produced an order dated 28.2.2012 issued by Respondent No. 1 regarding ante-dation promotion of five Doctors which made them senior to the petitioner. The learned counsel contended that this was a wrong order as these doctors were regularized into service on 30.3:1989 whereas the date of regularization of the petitioner was 22.3.1989. The learned counsel added that Respondent No. 1 had no original jurisdiction to amend the seniority list which had already attained finality and the promotions were being carried out on the basis of the said seniority list.
11. 8.The learned counsel contended that eventually the petitioner's contempt petition was dismissed on 10.4.2014 without assigning any reason. Hence he had to file Intra Court Appeal No. 494 of 2014 which was also dismissed vide order dated 29.2.2016 on the point of maintainability. The Court ordered the petitioner to avail alternate remedy. Thereafter the petitioner filed a Constitutional Petition on 14.3.2016 before the Hon'ble Supreme Court of Pakistan which was returned on 5.4.2016 for filing the petition. for implementation of the judgment of this Tribunal before appropriate forum.
12. 9.In the meanwhile Sheikh Zayed Hospital had been devolved and handed over to the Government of the Punjab on 14.2.2012. Therefore the petitioner moved an application to the Secretary Health Department, Government of the Punjab praying for implementation of the orders of this Tribunal dated 15.3.2003. The Government of the Punjab through Chief Secretary as well as Secretary Health issued various notifications for implementation of the judgment of this Tribunal to the Chairman Sheikh Zayed Hospital but all these fell on deaf ears.
13. 10.Winding up his arguments the learned counsel for the petitioner emphasised that Respondent No. 1/Chairman, Sheikh Zayed Hospital had no authority to overrule the judgments of the superior Courts as well as this Tribunal as all these orders were in favour of the present petitioner and had attained finality. The learned counsel argued that similarly Respondent No. 1 had no authority to order antedate promotions or amend the without placing it before the Board of Governors. Hence the order dated 28.2.2012 was illegal, backdated and void.
11. Finally the learned counsel for the petitioner prayed that the instant Misc: Petition may be accepted and the respondents may be directed to implement the judgments of this Tribunal dated 15.3.2014 and 4.11.2006 and promote the petitioner to BS-18 with effect from 22.3.1994 to BS-19 with effect from 30.3.2000 and to BS-20 with effect from 30.6.2005 with all consequential benefits. In this regard he relied on various judgments of the Hon'ble Supreme Court of Pakistan in Chairman, State Life Insurance Corporation of Pakistan, Karachi and others v. Siddiq Akbar (2013 SCMR 752), whereby it has been held that once an employee is reinstated in service after his exoneration of the charges levelled against him, the period during which he remained either suspended or dismissed cannot be attributed as a fault on his part. In Capt, (Retd,) Abdul Qayyum, Executive Engineer v.
14. Muhammad lqbal Khokhar and 4 others (PLD 1992 (S.C.) 184), it has been held that after judgment of the Hon'ble Supreme Court of Pakistan, a right declared thereunder, cannot be overridden or nullified by an executive order, a rule or a dispensation short of legislative will. While taking notice of a news item in daily "The News" which was flashed with the heading "The OSD couple, waiting for Ged's or Supreme Court help" -- Regarding putting of two Government Officers namely Hasan Waseem Afzal and his wife Farkhanda Waseem Afzal as OSD (2013 SCMR 1150), held that where even a monient's delay could cause irreparable harm and immeasurable loses to the officers whose merit lacks intercessional props and pillars. We have, therefore, no alternative but to direct the Secretary Establishment to convene a meeting of HPSB DSC for passing an appropriate order after considering the aforesaid officers for promotion to the next higher scale <u>but before the sunset today. </u> In a famous case reported as Abdul Ilameed Anjum and others v. Federation of Pakistan and others 1PLD 2010 (S.C.) 8571, it has been held that <u><i>"Consideration " requires serious, reasonable, fair, bona ficleL honest and genuine application of mind and appreciation of the comparative rights and records. The object of "consideration" should be assessment of all facts with a purpose to grant relief and not with predisposition to deny the right. </i></u> In Khalid Mehmood v, Chief Secretary Government of Punjab and others (2013 SCMR 544), it has been held that the competent Authority was directed to consider civil servant for promotion to BS-18 with effect from the date when the vacancy occurred, provided he was qualified to be considered for the same. In Federation of Pakistan and others v. Anti?' Zaman Shinwari, Superintending Engineer (2008 SCMR 1138) while examining the attitude of the Department for not implementing the orders of the High Court held that factual position was conceded by the Department in the Service Tribunal as well as before High Court, but despite that the Department had failed to implement orders passed by the Service Tribunal--Attitude of the Department was hostile and injustice was done to Civil Servant without any substantial ground--High Court had rightly examined the attitude of Department and had rightly issued direction that Civil Servant be promoted to the next grade with immediate effect with all benefits--Judgment passed by the Tribunal and impugned judgment passed by the High Court could not be set aside--Civil Servant having already retired, his emoluments were ordered to be released within stipulated period. In a reported judgment of the Hon'ble Lahore High Court in Muhammad Zaka Ullah v. Secretary (Chairman, Railways) and another [2008 PLC (C.S.) 1], it has been held that The judgment, which had become final for all intents and purposes could not be frustrated in the matter it is sought to be done. Any such action is unsustainable in law and is declared so. In a judgment of the Hon'ble Lahore High Court reported as Shama Khan Zafar vs. District Coordination Officer Lodhran and others [2014 PLC (C.S.) 948] it has been held that a civil servant cannot be denied of his fundamental rights to be considered and promoted.
15. 12.The learned counsel for Respondent No. 1 controverted the assertions of the learned counsel for the petitioner whereas the learned A.A.-G for Respondent No. 2 submitted his comments whereby he pleaded that the matter concerned Respondents No. 3, 4 & 5 and Establishment Division/Respondent No. 2 was not a necessary party to the instant Misc: Petition. It may also be noted that none has put in appearance on behalf of Respondents No. 5, 4 & 5 despite repeated notices.
16. 13.The learned counsel for Respondent No. t opened his arguments and stated that Sheikh Zayed Hospital was established as an autonomous body on 29.5.1986 duly promulgated by the Ministry of Health, Government of the Punjab. Initially the administrative control of this Institution was with the Federal Ministry of Health and later on it was transferred to the Cabinet Division vide notification dated 13.2.1994. Subsequently after the promulgation of the 18th Amendment in the Constitution of the Islamic Republic of Pakistan, 1973 the administrative control of the Institute was devolved to the Government of the Punjab (Respondents No. 3, 4 & 5) vide notifications dated 14.2.2012. To augment his contention the learned counsel cited Appeals No. 295(L)CS/2010 & 75(L)CS/2011 which Were dismissed by this Tribunul for want of jurisdiction vide judgments dated 6.3.2012 and 9.5.2012 and in both these judgments this Tribunal had directed the appellants to. seek redregsal of their grievances from the appropriate forum. The learned counsel stated that meeting of the DPC was held on 12.10.2004 and the judgment of this Tribunal dated 15.3.2003 was complied with by appointing the petitioner on regular basis with effect from 5.4.2004 and 3.11.20b4 without back benefits. However, later on arrears to the tune of Rs. 534349/- were paid to the petitioner through a cheque on 20.10.2011 as back benefits. The learned counsel urged that the petitioner was a habitual litigant which was evident from his career as ever since his appointment he has been off and on filing frivolous cases of all kinds. The learned counsel mentioned at least eight (8) such cases filed by the petitioner at various stages. The learned counsel believed that the order of this Tribunal dated 15.3.2003 was already implemented and there was no grievance left for the petitioner. The learned counsel added that the seniority of the petitioner was affected by order dated 28.2.2012 which was never challenged by the petitioner at any forum. Similarly a new order through which the services of some doctors were regularized and petitioner's seniority was affected was never challenged. The learned counsel submitted that all issues which have been taken, up in the Misc: Petition have already been adequately thrashed in various cases before the superior Courts. Hence the Misc: Petition was frivolous and not maintainable.
17. 14.The learned counsel submitted that the petitioner had already retired from service with effect from 31.3.2016 and during his service he was regularized from the date of initial appointment i.e. 22.3.1989. The learned counsel elaborated that he was appointed on ad hoc basis in BS-17 on 22.3.1989 and was relieved from his duties after expiry of ad hoc period on 15.12.1990 whereas he was reinstated into service on 1.1.1995 in BS-17 from the date of termination after a gap of five (5) years and he rejoined on 5.1.1995. The learned counsel stated that his seniority was not only counted from the date of his regularization i.e. 5.4.2004 but also from the date of initial appointment i.e. 22.3.1989. The learned counsel submitted that the petitioner had already been promoted to BS-18 on 20.11.2009 and had' been paid all the arrears and back benefits on 20.10.2011.
18. 15.The learned counsel informed that to comply with the orders of the Hon'ble Supreme Court of Pakistan a meeting of the DPC was held for petitioner's promotion to BS-19 alongwith other doctors on 12.3.2013 where the relevant papers of all the senior doctors including the petitioner were perused. Accordingly the senior most Doctor in the seniority list was promoted to BS-19 on regular basis with effect from 12.3.2013. In the meeting it was observed that as per the seniority list of Medical Officer of BS-18 the petitioner's name appeared at S.No. 5 whereas only one vacancy in BS- 19, was available, therefore, the senior most Doctor on the seniority list was promoted.
19. 16.To conclude his argdments the learned counsel prayed for dismissal of the Misc: Petition being devoid of merits.
20. 17.We have incisively perused the record and have meticulously weighed the arguments given by both the learned counsel. We are of the considered opinion that the matter has already been thrashed out at various levels including, the apex level of the Hon'ble Supreme Court of Pakistan, but the respondents despite clear orders have been hesitant in implementing the judgments of this Tribunal dated 15.3.2003 and 4.11.2006. A perusal of the orders of the Hon'ble Supreme Court of Pakistin would reveal that it in a very comprehensive order in which the whole case has been discussed threadbare and a categorical direction has been. issued to the respondents not only to implement the judgments of this Tribunal but to also pay heed to the letter dated 19.12.1994 written by the Secretary Cabinet Division to the Chairman, Sheikh Zuyed Hospital, Lahore/ Respondent No. 1.
21. In this letter. a clear direction has been issued for the reinstatement of the petitioner with all back benefits including seniority. The Hon'ble Supreme Court of Pakistan further held that this letter was a direction of the Government of Pakistan and should have been complied with. ,The Hon'ble Supreme Court of Pakistan further directed that the matter regarding his pay and other benefits shall also be taken up by the respondents together with his claim for regularization and the process was to be completed by the respondents within a period of two months. We have also observed with concern that the Chief Secretary and Secretary, Health of the Government of the Punjab had also issued clear instructions to the Chairman, Sheikh Zayed Hospital, Lahore/Respondent No. 1 to implement the orders of the superior Courts. Similarly it is amazing that the Chairman, Sheikh Zayed Hospital, Lahore/Respondent No. 1 unilaterally changed the seniority list through an illegal order without convening a meeting of the DPC.
18. Hence we are of the view that there is an ample and adequate proof of the fact that the respondents have not only defied the orders of the superior Courts but have also delayed the matter inordinately on one pretext or the other.
19. We, therefore, accept the Instant Misc: Petition and direct the respondents to implement the judgments of this Tribunal dated 15.3.2003 and 4.11.2006 and consider promotion of the petitioner to BS-18 with effect from 22.3.1994, to BS-19 with effect from 30.3.2000 and to' BS-20 with effect from 30,6.2005 with all consequential benefits. The respondents are further, directed to keep in view the directions of the Hon'ble Supreme Court of Pakistan and those issued by the Secretary Cabinet Division while implementing this order within 30-days from the date of its receipt. No order as to costs.