M IANGUL HASSAN AURANGZEB, J. Through the instant writ petition the petitioner, Dr. Noor-us-Saba, impugns the notification dated 15.07.2019 issued by the Ministry of National Health Services, Regulations and Coordination ("Ministry of NIISR&C") whereby she was "repatriated" to her parent department, i.e. National Institute of Health, Islamabad ("NIH") from the Drug Regulatory Authority of Pakistan ("DRAP").
2. The record shows that on 29.10.1992, the petitioner was appointed as Scientific Officer (Microbiology) (BS-17) on regular basis in the NIH, which is an autonomous body presently under the administrative control of the Ministry of NHSR&C. Vide office order No.752 dated 23.06.2006, the petitioner along with other Scientific Officers in the NIH was upgraded and placed in pay scale of BS-18.
3. By virtue of the notification (SRO 491(1)/2000) dated 10.07.2000 issued by the erstwhile Ministry of Health, the National Control Laboratory for Biologicals at the N1H had been set up by the Federal Government in exercise of the powers conferred by Section 14 of the Drugs Act, 1976 for the testing and lot release of biological drugs.
4. On 26.06.2009, the Ministry of Health published an advertisement inviting applications for appointment on contract basis against project posts, including the post of Project Director in a project called "Strengthening of National Control Laboratory for Biologicals and its Independent Laboratory" ("the Project"). The petitioner successfully participated in the competitive process and vide notification dated 12.11.2009 issued by the Ministry of Health, she was appointed as Project Director in the Project on contract basis for a period of two years with effect from 06.11.2009. Vide office order No.902, dated 06.11.2009 issued by the NIH, the petitioner was relieved of her duties so that she could report to the Ministry of Health for joining her new assignment in the Project. On 06.11.2009, the petitioner reported for duty and assumed the charge of her office in the Project. The period of her contract appointment in the Project was extended from time to time by the Ministry of NHSR&C.
5. Vide letter dated 05.03.2010, the Ministry of Health informed the Executive Director, NH-I that the competent authority had been pleased to grant a right of reversion to the post of Scientific Officer (BS-17) for a period of two years to the petitioner. Thereafter, vide office order No.212 dated 15.03.2010, the NIH granted a right of reversion to the petitioner for a period of two years with effect from 06.11.2009. Subsequently, vide office order No.1090, dated 19.10.2011, the NIH granted an "extension in deputation" with effect from 06.10.2011 to 06.10.2012.
6. While serving as Project Director, her case for the regularization of her services was considered by the Cabinet Sub-Committee on Regularization of Contract / Daily Wages. Employees on 29.11.2012. The said Committee decided in principle to regularize her contractual services "subject to availability of posts and fulfillment of recruitment criterion." Furthermore, the said Committee directed the Ministry of NHSR&C to initiate a summary in this regard for the approval of the Prime Minister.
7. On 18.02.2013, the Ministry of NIISR&C submitted a summary to the Prime Minister soliciting his approval to the said Ministry's proposal to regularize the petitioner's contractual services of Project Director (BS-20) against the vacant post of Director (BS-20) in DRAP or as Director General (BS-20) in the Ministry of NHSR&C. In the said summary, it was mentioned that the petitioner was eligible for both the posts. On 06.05.2013, the Prime Minister approved the petitioner's regularization against the post of Director (BS-20) in DRAP. On 08.05.2013, the Ministry of NHSR&C issued a notification qua the petitioner's regularization as Director (BS-20) in DRAP. For the purposes of clarity, the said notification reads thus: "On the recommendations of the' Cabinet Committee on Regularization of Contract/Daily Wages Employees, the Prime Minister has been pleased to approve the regularization of Dr. Noor-us- Saba, Project Director (BS-20), National Control Laboratory for Biologicals against the vacant post of Director (BS-20) Drug Regulatory Authority of Pakistan from the date she assumes the charge of the post."
8. Vide office order No.66, dated 21.01.2015 issued by the NIH, the petitioner's name was struck off from the strength of the NIH with effect from 09.05.2013 as she had been regularized as Director (BS-20) in DRAP.
9. On 15.05.2018 the Ministry of NHSR&C moved a summary to the Prime Minister proposing review of the decision to "regularize" the petitioner's services and her subsequent placement in DRAP as Director (BS-20). In the said summary, the Ministry of NHSR&C pointed out irregularities that appeared to have been committed in the process for the petitioner's appointment as Director (BS- 20) in DRAP. On 27 .11 .2018, the Prime Minister approved the said proposal made by the Ministry of NHSR&C.
10. Vide notification dated 15.07.2019 issued by the Ministry of NHSR&C, the petitioner was "repatriated" to the NIH in the original substantive grade as Scientific Officer. The said notification has been assailed by the petitioner in the instant writ petition. Vide ad-interim order dated 22.07.2019, this Court suspended the operation of the said notification.
11. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that while the petitioner was working as Project Director in the Project on contract basis, the Ministry of NHSR&C sent her case for regularization to the Cabinet Sub- Committee which, in its meeting dated 29.11.2012, approved the regularization of the petitioner's contractual services as Project Director in the Project; that the Cabinet Sub-Committee had also directed that the Ministry of NHSR&C should initiate a summary for the petitioner's regularization for the approval of the Prime Minister; that accordingly, the Ministry of NHSR&C submitted the summary dated 18.02.2013 to the Prime Minister proposing the petitioner's regularization against the vacant post of Director (BS-20) in DRAP; that after the Prime Minister, on 06.05.2013, approved the said proposal, she was appointed as Director (BS-20) in DRAP vide notification dated 08.05.2013 issued by the Ministry of NHSR&C; that strong vested rights were created in the petitioner's favour on approval of her regularization by the Cabinet Sub-Committee as well as the Prime Minister and subsequent notification dated 08.05.2013; that the summary dated 15.05.2018 was submitted by the Ministry of NHSR&C to the Prime Minister proposing review of the earlier decision to regularize the petitioner's services; that although the said proposal was approved, there is no decision of the Prime Minister recalling the earlier approval for the petitioner's regularization; and that the petitioner has not been paid her salary from 2013 to 2017. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
12. On the other hand, learned counsel for DRAP submitted that the petitioner was serving as Scientific Officer (Microbiology) (BS-18) in the NIH when she applied for appointment on contract basis as Project Director in the Project; that although she had been relieved of her duties from the NIH on 06.11.2009 to join her duties as a contract employee in the Project, the petitioner's name had not been struck off from the strength of the NIH; that according to office order No.66 dated 21.01.2015 issued by the NIH, the petitioner's name was struck off from the strength of the NIH with effect from 09.05.2013; that after the petitioner had been appointed as Project Director in the Project on contract basis the Ministry of Health, vide letter dated 05.03.2010, granted the petitioner a right of reversion to the post of Scientific Officer (BS-17) in the NIH for a period of two years; that when the Cabinet Sub-Committee considered the petitioner for regularization in its meeting dated 29.11.2012, she was a permanent employee of the NIH; that at the time when the petitioner was considered for regularization by the Cabinet Sub-Committee or when the Prime Minister approved the proposal for her regularization, the rules or regulations prescribing the qualifications, terms and conditions for the appointment of Directors had not been made; that the petitioner had not been appointed as a Director (BPS-20) in DRAP as a result of any competitive process; that there is no recommendation of the Policy Board of DRAP to appoint the petitioner as Director (BS-20); that vide office order dated 14.02.2014, DRAP stopped the petitioner from holding the office of Director (Biological, Drugs); that it was not until 03.02.2017 that the petitioner was permitted to resume her duties as Director (Biological Drugs) in DRAP; that the summary dated 15.05.2018 moved by the Ministry of NHSR&C sets out ample grounds for reviewing the petitioner's regularization as a Director in DRAP; that the Prime Minister, on 27.11.2018, approved the proposal for reviewing the petitioner's regularization; that vide. notification dated 15.07.2019 issued by the Ministry of NHSR&C, the petitioner was repatriated to her parent department, i.e. the NIH; that it is due to the injunctive order dated 22.07.2019 passed by this Court that the petitioner continued to perform her duties as Director (Biological Drugs) in DRAP until her retirement on 03.02.2023; and that since the decision of the Prime Minister to review the petitioner's regularization as Director (BS-20) in DRAP does not suffer from any legal infirmity, the instant petition is liable to be dismissed.
13. As per the report submitted by the Ministry of NHSR&C on 14.02.2023, there is no post available in the NIH commensurate to the petitioner's grade and therefore the NIH is not in a position to accommodate her. In the said report, it is also asserted that the petitioner had been granted a right of reversion to the NIH for a period of two years, which expired on 05.11.2011; that on the expiry of her right of reversion, the petitioner did not rejoin her duty in the NIH; and that the petitioner's name had been struck off from the strength of the NIH with effect from 09.05.2013.
14. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 10 above and need not be recapitulated.
15. It is an admitted position that from 1992 to 2009, the petitioner served as Scientific Officer in the N1H. With the approval of the NIH, the petitioner successfully participated in the competitive process for appointment as Project Director in the Project on contract basis for a period of two years. In the year 2012, while the petitioner was serving as Project Director in the Project, the Ministry of NHSR&C submitted the petitioner's case for regularization to the Cabinet Sub-Committee. The said Committee, in its meeting dated 29.11.2012, decided in principle to regularize her contractual services and directed the Ministry of NHSR&C to initiate a summary in this regard for the approval of the Prime Minister. The Ministry of NHSR&C moved a summary on 18.02.2013 to the Prime Minister proposing that the petitioner's contractual services be regularized against the vacant post of Director (BS-20) in DRAP. On 06.05.2013, the Prime Minister approved the proposal to regularize-the petitioner against the vacant post of Director (BS-20) in DRAP. After this, the Ministry of NHSR&C issued the notification dated 08.05.2013 which had the effect of the petitioner being appointed as Director (BS-20) in DRAP.
16. Within a month of the issuance of the said notification dated 08.05.2013, Haider Bux Buzdar ("Buzdar"), who was serving as Deputy Director General in DRAP, filed Writ Petition No.2414/2013 (which was requisitioned by me from the record room) on 07.06.2013 before this Court challenging the said notification. Vide ad-interim order dated 10.06.2013, this Court suspended the operation of the said notification dated 08.05.2013. Buzdar's case in the said writ petition was that the post of Director (BS-20) in DRAP was to be filled through promotion from amongst the senior most BS-19 officers in DRAP and not through the process through which the petitioner had been appointed. if the Ministry of NHSR&C or DRAP had thought that the petitioner's appointment or "regularization" as Director (BS-20) in DRAP was unlawful or that the Cabinet Sub-Committee did not have the mandate to approve the petitioner's regularization, it could have taken a clear position to the said effect in the proceedings before this Court. However, the Ministry of NHSR&C and DRAP did not do so. On the contrary, the Ministry of NHSR&C and DRAP, in their written comments, opposed the said writ petition and defended Dr. Noor-us-Saba's appointment. They collectively took the position that respondent No.4 was neither promoted nor appointed rather regularized on the recommendation of the Cabinet Sub-Committee, and that her regularization against the vacant post of Director (BS- 20) in DRAP was against the 20% quota for direct appointment. The question as to the legality of the petitioner's appointment as Director (BS-20) in DRAP never came to be decided as the said writ petition was disposed of vide order dated 12.11.2014.
17. It was not until 15.05.2018 (i.e. five years after the issuance of the Ministry of NHSR&C's notification dated 08.05.2013) that the Ministry of NHSR&C submitted a summary to the Prime Minister proposing review of the earlier decision dated 06.05.2013 to regularize the petitioner's services and her subsequent placement as Director (BS-20) in DRAP through NHSR&C's notification dated 08.05.2013. On 27.11.2018, the Prime Minister approved the said proposal. Consequently, the Ministry of NHSR&C issued the notification dated 15.07.2019, whereby she was "repatriated" to her parent department, i.e. the NIH in her original substantive grade as Scientific Officer.
18. Since the Prime Minister's decision to approve the NHSR&C's proposal for review of the earlier decision dated 06.05.2013 to regularize the petitioner's services is entirely based on the contents of the NHSR&C's summary dated 15.05.2018, I propose to deal with each of the grounds taken by the Ministry of NHSR&C in the summary in support of the proposal to undo the Prime Minister's earlier decision dated 06.05.2013 or in other words to remove the petitioner from the position of Director(BS-20) in DRAP.
19. In the said summary dated 15.05.2018, it has been admitted that the Ministry of NHSR&C had submitted a request to the Cabinet Sub-Committee for the regularization of the petitioner's services. However, it is stated that in the said request to the Cabinet Sub-Committee as well as in the summary dated 18.02.2013 to the Prime Minister, it had erroneously been mentioned that the petitioner had been working in a position equivalent to BS-20. If at all this was an error it was one committed by the Ministry of NHSR&C and not by the petitioner. The Ministry of NHSR&C cannot seek to penalize the petitioner for its own follies. Be that as it may, it is not disputed that the petitioner served as Project Director in the Project and was drawing a salary of Rs.1,00,000/- per month. As per Office Memorandum dated 12.08.2008 issued by the Regulations Wing of the Finance Division, the pay package of an officer holding a post of BPS-20 or equivalent is Rs.100,000/- to Rs.118,000/-. Since the petitioner's salary was equivalent to the one drawn by the BPS-20 officer, I do not see how the Ministry of NHSR&C's proposal / request for the petitioner's regularization stating that she is working in a position equivalent to BS-20 to be erroneous.
20. In the Ministry of NHSR&C's summary dated 15.05.2018, it is stated that the petitioner's name was struck off from the strength of the NIH on 21.01.2015 "on the basis of unauthorized absence" from duty. This is factually incorrect and belied by Office Order No.66 dated 21.01.2015 issued by the N1H showing that her name was struck off from the strength of the NIH with effect from 09.05.2013, i.e. the date on which she was regularized as Director (BS-20) in DRAP pursuant to the Ministry of NHSR&C's notification dated 09.05.2013. The respondents could not bring any document on record to show that the NIH had called upon the petitioner to report for duty at any material stage after she had been appointed as Project Director in the Project.
21. Reference in the said summary dated 15.05.2018 is also made to the findings of an Inquiry Committee constituted by the Ministry of NHSR&C in which irregularities in the process of the petitioner's regularization had been pointed out. The first being that while recommending the petitioner's case to the Prime Minister for regularization, it had not been disclosed that she had been working as a permanent employee in the NIH. The summary dated 18.02.2013 had admittedly been prepared by the Ministry of NHSR&C, which could not have been unaware that the petitioner was serving as Scientific Officer at the NIH when she was appointed on contract basis as a Project Director in the Project. For omitting to mention the fact that the petitioner had been a permanent employee of the NIH in the summary dated 18.02.2013, it is the delinquent officers in the Ministry of NHSR&C that are to blame and not the petitioner, who had no role in drafting of the said summary.
22. True, at the stage when the petitioner's regularization was approved by the Cabinet Sub- Committee as well as by the Prime Minister, she had a right of reversion to the post that she had been permanently appointed to in the NIH. The Ministry of NHSR&C was well aware of this fact when it submitted the petitioner's name to the Cabinet Sub-Committee for being considered for regularization, and when it submitted a summary to the Prime Minister proposing the petitioner's regularization against the vacant post of Director (BS-20) in DRAP, and is therefore estopped from questioning the petitioner's regularization in DRAP.
23. Another irregularity referred to in the Ministry of NHSR&C's summary dated 15.05.2018 was that the Cabinet Sub-Committee had no mandate to regularize the services of a permanent employee or an employee who was purportedly working in BS-20. It appears that the Cabinet Sub- Committee was aware of its limited mandate not to regularize the services of a contract employee working in a post equivalent to BS-20. I say so because the Cabinet Sub-Committee, in its meeting dated 29.11.2012. had directed the Ministry of NIISR&C to initiate a summary for the petitioner's regularization for the approval of the Prime Minister. It ought to be borne in mind that the Cabinet Sub-Committee had not approved the petitioner's "regularization" as a Director (BS-20) in DRAP. It is the Ministry of NHSR&C that had proposed to the Prime Minister that the petitioner be "regularized" as Director (BS-20) in DRAP. Therefore, the impression projected by the Ministry of NHSR&C in its summary dated 15.05.2018 that the petitioner's "regularization by the Cabinet Sub- Committee" was irregular is devoid of substance and contrary to the documents on the record.
24. Another ground referred to in the summary dated 15.05.2018 for seeking review by the Prime Minister of his earlier decision dated 06.05.2013 was that the petitioner's academic qualifications did not match those required for the position of Director (BS-20) in DRAP. When the petitioner was considered for regularization by the Cabinet Sub-Committee, the DRAP Act had already been enacted on 13.11.2012. Section 4(1) of the DRAP Act, 2012 provides that the Authority shall consist of a full time Chief Executive Officer and thirteen Directors who shall be appointed by the Federal Government on the recommendation of the Policy Board, and that the qualifications, terms and conditions of the Chief Executive Officer and Directors shall be such as may be prescribed. The word "prescribed" has been defined by Section 2(xxix) of the DRAP Act, 2012 to mean prescribed by rules or regulations under the DRAP Act, 2012.
25. It is an admitted position that the petitioner did not go through any competitive process before being "regularized" as Director (BS-20) in DRAP. But it is also not disputed that rules prescribing the qualifications, method of appointment and terms and conditions for the position of Director (BS- 20) in DRAP had not been made at the time when the petitioner's regularization was approved by the Prime Minister or when the Ministry of NHSR&C issued the notification dated 08.05.2013 for the petitioner's regularization as Director (BS-20) in DRAP. However, the Policy Board of DRAP, in its first meeting held on 21.01.2013, had decided that for the post of Director (BS-20) in the Division of Biological Evaluation and Research, the candidate had to have Ph.D in Microbiology / Virology / Bacteriology / Molecular Biology / Immunology / Biotechnology with 10 years practical experience in testing of biological drugs. The petitioner's curriculum vitae is on the record, the contents whereof have not been denied either by DRAP or the Ministry of NHSR&C. The petitioner has a Ph.D in Microbiology from Quaid-e-Azam University and has more than ten years of practical experience of testing biological drugs during her employment as Scientific Officer in the NIH. Therefore, she did have the required qualifications for appointment as Director (BS-20) in DRAP.
26. The above discussion leads me to the conclusion that the case that the Ministry of NHSR&C has tried to make out in its summary dated 15.05.2018 to undo her earlier regularization by the Prime Minister is not just erroneous but misleading rendering the Prime Minister's decision made on the said summary unsustainable. Whenever a summary is submitted by a Ministry for the Cabinet or the Prime Minister proposing a decision which adversely affects the rights of any person or class of persons, it is imperative for the views of such person or class of persons also to be submitted to the Cabinet or the Prime Minister so that an informed and well-reasoned decision is taken. A summary that sets out half-truths, or does not set out the point of view of the person or class of persons against whose interests a decision is solicited, would be against the canons of equity, justice and fair play.
27. Rule 15(2) of the Rules of Business, 1973 provides inter alia that a case submitted to the Prime Minister for his order shall include a self-contained, concise and objective summary stating the relevant facts and the points for decision prepared on the same lines as those prescribed in these rules for a summary for the Cabinet. Rule 5(13) of the Rules of Business, 1973 empowers the Cabinet Division to issue instructions ancillary to the said Rules whenever considered desirable. In exercise of the said power the Cabinet Division, on 24.01.2018, issued instructions / guidelines for the submission of cases to the Cabinet / Cabinet Committees. These instructions / guidelines mandate that a summary must give sufficient background / history and explain the proposal comprehensively to enable the Cabinet to make an informed decision. It also provides that wherever required, views of the stakeholders and response of the sponsoring Division may be presented. The term "stakeholders" cannot be confined to other Government departments but would include persons whose rights or interests stand to be adversely affected by the decision solicited by the Ministry submitting the summary.
28. Since the summary dated 15.05.2018 submitted by the Ministry of NHSR&C sought the Prime Minister's earlier decision dated 06.05.2013 regarding the regularization of the petitioner and her subsequent placement in DRAP as Director (BS-20) to be reviewed, she was indeed a stakeholder whose views ought to have been mentioned and presented in the said summary. The historical background, especially pertaining to the joint efforts made by the Ministry of NHSR&C and DRAP to defend the petitioner's regularization and placement as Director (BS-20) in DRAP in proceedings before this Court in writ petition No.2414/2013, was a relevant fact which ought to have been mentioned in the summary to the Prime Minister. Another flaw in the summary dated 15.05.2018 was the omission to mention that the NIH was not willing to take the petitioner back in service almost a decade after she had been struck off the NIH's strength.
29. Through the impugned notification dated 15.07.2019. the petitioner has been "repatriated" to her parent department, i.e. NIH. At no material stage had the petitioner been sent on deputation either to the Project or to DRAP. Therefore, the question of "repatriation" did not arise. Additionally, the NIH has always maintained that since the petitioner's name was been struck off from the strength of the NIH with effect from 09.05.2013, she cannot be taken back in service by the NIH.
30. The Project (where the petitioner was serving as Project Director when the summary for her regularization was submitted to the Prime Minister) and DRAP (where she was regularized as a Director (BS-20)) are not without nexus. As a result of the enactment of the Constitution (Eighteenth Amendment) Act, 2010, the erstwhile Ministry of Health stood devolved to the Provinces.
The administrative control over the Project was shifted to the Cabinet Division on 30.06.2011. The Drug Regulatory Agency of Pakistan Ordinance, 2012 (Ordinance No.1 of 2012) was promulgated on 16.02.2012. Section 3 of the said Ordinance provided for the establishment of the Drug Regulatory Agency of Pakistan. As per the preamble to the said Ordinance, it was expedient to regulate, manufacture, import, export, storage, distribution and sale of therapeutic goods and medical devices. Section 2(n) of the said Ordinance defines "therapeutic goods" to include drugs and medicine or medical devices or biologicals or other related things as may be notified by the Agency.
31. Office Memorandum dated 08.05.2012 issued by the Cabinet Division shows that the administrative control over the Drug Regulatory Agency of Pakistan had been transferred from the Cabinet Division to the National Regulation and Services Division vide the Cabinet Division's memorandum dated 03.04.2012. The said Office Memorandum also shows that the subject of "National Control Laboratory for Biologicals" had been transferred to the Drug Regulatory Agency of Pakistan vide Ordinance No.1 of 2012. The said Ordinance was repealed and replaced by the Drug Regulatory Authority of Pakistan Act, 2012 which was enacted on 13.11.2012. The Prime Minister's decision dated 06.05.2013 caused the petitioner to be "regularized" in DRAP which has administrative control over the subject of "National Control Laboratory for Biologicals." Since the petitioner could not have been regularized in a project post, she was regularized in the Authority which had administrative control over the subject for the strengthening of which the Project was established.
32. In view of the above, the instant petition is allowed in that the impugned notification dated 15.07.2019 (which is based on the Prime Minister's decision dated 27.11.2018 which in turn was based on the Ministry of NIISR&C's summary dated 15.05.2018) is set-aside. The Prime Minister shall take a decision afresh on the basis of a summary which ought to include the petitioner's position and submitted strictly in accordance with the requirements of Rule 15(2) of the Rules of Business. 1973 read with the Cabinet Division's instructions / guidelines dated 24.01.2018 for the submission of cases to the Cabinet / Cabinet Committees. There shall be no order as to costs.