MUMTAZ AHMED, CHAIRMAN. Engineer. Dr. Nazir Hussain, Project Director, 250 Bedded Hospital Skardu, has filed this service appeal while impugned the Notification bearing No. SEC-H-6(11)/250 Beds/2019-20, dated 12 February of 2020. Stating in his appeal that he was appointed a Project Director on additional charge basis for the PSDP Project namely "Establishment of 250 Bedded Hospital, Skardu; Subsequently he has been assigned fulltime Project Director vide Notification bearing No. SEC-W-SO-1(19)12021/2921, dated 15 July 2021, coupled with delegation of both administrative and financial powers without any time limit by the Secretary Ministry of Kashmir Affairs, Gilgit-Baltistan Division vide their letter No. PC-1/7/2019 dated 31.3.2021.
2. This Tribunal vide order dated 15.3.2024 suspended the impugned Notification No. SEC-H- 6(11)/2022-23 dated 04.3.2024, issued by the Health Department Gilgit-Baltistan Secretariate, while admitting the appeal for regular hearing. Notices were issued to respondents, directing them to appear and to file parawise comments to resolve the controversy. In compliance of this Tribunal's order respondents Nos. 1 to 4 submitted parawise comments while denying the submissions alleged by the appellant. The newly added respondent No. 8 i.e. Communication and Works (C& W) Department Gilgit-Baltistan adopted the parawise comments of respondents Nos. 1 to 4 through their Law Officer. The remaining respondents Nos.5 to 7 proceeded ex-parte.
3. Learned counsel for the appellant argued that the impugned Notification issued by the Health Department Gilgit-Baltistan dated 04.3.2024 is illegal, without lawful authority, while relieved the service of appellant as a Project Director (PD) of PSDP Project namely "Establishment of 250 Bedded Hospital, Skardu", without any prior show-cause notice, unheard and without cogent reason; contended the impugned letter issued by the Health Department dated 04.3.2024 and 11.03.2024 are unlawful, unjust. based on mala fide as well as to create unrest in the region for creating hindrance of smooth running of project; argued that by issuing notification, for the notification, for re-advertisement of post of Project Director (PD) is against all the principles laid down by the Planning and Development Division of Government of Pakistan; argued that the withdraw of appellant's additional charge of Project Director by the Health Department is beyond the scope and without lawful authority as the said project is under the control of the Ministry of Kashmir Affairs and Gilgit-Baltistan; counsel submitted that during the pendency of the suspension order, the Communication and Department with mala fide intention and ulterior motive as well as just to frustrate the order of this Hon'ble Tribunal, issued another office order bearing No. SW2(30)/PSDP/2024-25/5153 dated 05.8.2024 and relieved appellant from the post of superintending Engineer Kharmang and Ghance Circle, which is against the principles of natural justice, ultra vires and devoid of lawful authority to damage the service of appellant and that office order dated 05.8.2024 too required to be set aside along with the impugned notification. During the course of arguments learned counsel for the appellant stated that he has received instructions from his client, that appellant preferred to render his service at his original post i.e. Superintendent.
Engineer Circle Office Ganche and Kharmang anti ready to relinquish his additional charge as Project Director of Establishment of 250 Bedded Hospital, Skardu as he is senior most officer in the department and his promotion is underway.
4. Learned Law officers argued that the Notification issued by the Health Department is in- accordance with the practice and procedure as well as inconsonance with instruction issued by the Planning and Commission Division Islamabad and Planning and Development Gilgit- Baltistan bearing letter No. P&D-16(8)/PSDPI2024-25; argued that without fulfilling the codal formalities as per guidelines enumerated for appointment of independent Project Director (PD), the claim of the appellant is unjustified, illegal and against the practice; argued that the appellant without exhausting the departmental appeal rushed to the Tribunal, hence prima facie appeal is premature and liable to be dismissed; submits that the impugned office order issued by the Health Department was within their competence being principal accounting officer of PSDP, project in respect of Establishment of 250 Bedded Hospital Skardu, therefore, the act of Health Department is quite in-accordance with law; argued that appellant was never appointed as fulltime Project Director and he is on additional charge which can be withdrawn at any time by the appointing authority; finally argued for dismissal of appeal. He further submits that the authority issued order of additional charges to appellant can withdraw the same under law. Additional charges does not fall within the definition of terms and conditions of service and no person has right to claim, additional charge of Project Director as matter of right.
5. Heard the learned counsel for the appellant and law officers at length and gone through the record.
6. A question raised before this Tribunal, whether the appellant being, a Project Director, has a locus standi to approach the Service Tribunal. To resolve this crucial issue, we would like to reproduce the relevant provision of Section 5(1) of the Gilgit Baltistan Service Tribunal (Amendment) Act, 2022 for ready reference.
"Section 5: Appeal to Tribunal -- (I) Any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of his service may, within thirty days of the communication of such order to him or within six months of the establishment of the appropriate Tribunal, whichever is later prefer an appeal to the Tribunal..."
Since bare reading of the above provision the Project Director does not fail within the definition of Civil Servant, therefore, as Project Director knock the door of Tribunal is alien.
7. We are of the considered view that the additional charge of Project Director does not fall within the scope of terms and conditions of "Civil Servant" as defined under Section 5 sub-clause (i) of GB Service Tribunal Act, 2022, consequently the service of appellant in the capacity of additional charge does not qualify as civil servant under the act above. Furthermore, the authority who has appointed the appellant and granted additional charge is competent to withdraw the order, as there is no legal impediment or flaw preventing such withdrawal. Hence the authority has not committed any illegality or exercised their power arbitrarily.
8. On examination of Notification No. Sec-H-6(11)/202-23 dated 04.3.2024, while relieving the service of Engr. Dr. Nazir Hussain as Project Director "Establishment of 250 Bedded Hospital", has been granted additional charge to Engr. Muzahir Ali, Superintending Engineer, LG&RD is also illegal, unlawful against the practice and procedure as laid down by Planning Commission Manual for Development Project, 2024 of paras. Nos. 4.6 to 4, 10, hence, the said notification is hereby set aside to this extent.
9. During the pendency of service appeal bearing No. 49/2024, Engr. Dr. Nazir Hussain (Appellant) filed a separate Civil Misc. Petition bearing No.326/2024, challenging the relieving order dated 05.8.2024 bearing No. SW-2(30)/PSDP/2024-251/5153, stating therein that he has been relieved from his original post of Superintendent Engineer, Circle Office Ghance/Kharmang illegality and unlawfully on the ground of additional charge of Project Director "Establishment of 250 Bedded Hospital". We suspended the said office order dated 05.8.2024 vide our dated 13.8.2024, the said order is made as part of this judgement, while setting aside the office order dated 05.8.2024.
For what has been discussed above, we dismissed the service appeal bearing No. 49/2024, with direction to the respondents/provincial government to process and appoint fulltime Project Director "Establishment of 250 Bedded Hospital" Skardu within 15 days as provided and guidelines given by Ministry of Planning Commission Manual for development project, 2024 (Paras 4.6 to 4.10 inclusive all sub - clauses) coupled with Finance Division OM ENo.4(9)R- 14/2008 dated 18.4.2022. However, during the said period for 15 days the appellant will continue his services as Project Director. In case of failure to appoint Project Director (PD) for "Establishment of 250 Bedded Hospital", Skardu, the service of appellant as Project Director will be ceased off.
Appeal No. 49/2024 and C.M. No. 326/2024 disposed off in the above terms.
File be consigned to record room.