' SYED ALLY MADAD SHAH (CHAIRMAN).---Appellant Dr. Muhammad Shafiq is a Surgeon. He has preferred this appeal against the order of his transfer from Pakistan Institute of Medical Sciences (PIMS), Islamabad to the Federal Government Services Hospital, Islamabad as an Associate Surgeon, issued from the Health Division on 27-6-1988.
2. The appellant was originally appointed as an Associate Surgeon (BPS-18) in the Federal Government Services Hospital, Islamabad. He was transferred to the Pakistan Institute of Medical Sciences (Islamabad Hospitals Complex) by office order dated 18-2-1986. He was selected there for the post of a General Surgeon (BPS-19) and was appointed as such with effect from 5-1-1987. He continued serving there until the impugned order of his repatriation to the Federal Government Services Hospital, Islamabad was issued on 27-6-1988 and was relieved on 30-6-1988. He submitted departmental appeal to the Secretary, Health Division on 2-7-1988. Awaiting decision of his departmental appeal, he joined duty at the Federal Government Services Hospital on 6-7-1988.
He also submitted appeal to the President on 27-7-1988. Awaiting decision on his appeals for 90 days, he preferred this appeal on 27-10-1988. The appeal was initially directed against Pakistan through Secretary, Health Division, Joint Secretary, Health, Government of Pakistan; and Dr. Ali Masud Akram, Executive Director, Pakistan Institute of Medical Sciences. It was admitted on 28-11- 1988. Secretary, Establishment Division was impleaded as respondent later with permission of the Tribunal by order dated 6-4-1989. Notices of the appeal were issued to the respondents. Only the Pakistan Institute of Medical Sciences has filed objections in the form of comments. The other respondents have not filed written objections.
3. The appellant has taken exception to the impugned order of his repatriation dated 27-6-1988 mainly on the ground that it was made as a matter of punishment as amounted to his reversion from BPS-19 to BPS-18, without adopting the requisite procedure provided under the Government Servants (Efficiency and Discipline) Rules, 1973. Reference has been made to a show-cause notice dated 9-6-1988 served on him by the Executive Director, Pakistan... Institute of Medical Sciences, Islamabad. Reference has also been made to the reply made by the appellant to the show-cause notice dated 18-6-1988 wherein the allegations were denied. It has been contended that the impugned order was passed thereafter and it tantamounted to the awarding of punishment on the appellant without adopting the requisite procedure.
4. The respondents have not made proper representation in the case. The appeal was admitted on 28-11-1988. Notice to the respondents for filing written objections was issued on 4-1-1989. Of course, the Establishment Secretary was added as a respondent later i,e, on 6-4-1989. Comments were filed by only the Pakistan Institute of Medical Sciences on 6-4-1989. Written objections were not filed by the Ministry of Health, although several adjournments were sought therefor. Written objections have not been filed by the Establishment Division as well. At the hearing of appeal on 1- 3-1990, a Section Officer appeared from the Establishment Division and a Superintendent appeared from the Health Division. The appeal was opposed by Mr. Ali Abid, Section Officer, Establishment Division. He contended that the appellant's appointment in the PIMS was not made in accordance with the Civil Servants Act, 1973 as it was made by the Board of Governors which could not .Make the appointment. He further contended that the order of repatriation of the appellant was not made as a penalty under the Government Servants (Efficiency and Discipline)
Rules, 1973 but his repatriation was sought by the Pakistan Institute of Medical Sciences. The representative from the Health Division could not render any assistance.
5. The history of service of the appellant with the Pakistan Institute of Medical Sciences and events that led to his repatriation to the Federal Government Services Hospital under the impugned order, are succinctly stated in the written objections dated 22-2-1989 submitted by the Executive Director of the Institute, Dr. Ali Masud Akram, who is respondent No, 3 in appeal. It would be worthwhile to reproduce below the relevant paragraphs 1 to 5: "1. Dr. Muhammad Shafique, Associate Surgeon was transferred from. FGSH to PIMS by the Ministry of Health vide Letter No, 1-11/85-Per-H, dated 18th February, 1986. He was selected by the Ministry of Health for the post of Surgeon (Gen. Surgery) BPS-19 in PIMS and offered the appointment by PIMS.
However, the service of Dr. Muhammad Shafique was being continued by Ministry of Health as Associate Surgeon of Federal Government with other such employees. This was the reason due to which Ministry of Health re-patriated him as Associate Surgeon (BPS-18) to FGSH.
(2) No suspension orders were issued in respect of Dr. M. Shafique on 8-6-1988 by PIMS. However, as he was accused of serious allegation of corruption by the Deputy Director, WAPDA Tarbela, therefore, his out-patient days, in-patient days and operation days were withdrawn. It may be mentioned that suspension is a specific order under E&D Rules in Which the employee cannot draw full salary which was not issued.
(3) The show-cause notice was issued in view of the proof of serious allegations submitted by the Deputy Director, Wapda, Tarbela, that Dr. M. Shafique had received an amount of rupees 4,400 and 4,900 respectively from Mr. And Mrs. Suleman on account of operation performed in the Islamabad Hospital.
(4) The reply of show-cause notice had been received from Dr. Muhammad Shafique in which he had denied the allegations and submitted an affidavit of Mr. Suleman that the patient visited his private clinic and the bills were of private consultation and treatment by Dr. M. Shafique.
(5) Dr. M. Shafique working as Surgeon in PIMS was also on the record of Health Division as.
Associate Surgeon (BPS-18) of Federal Government, therefore, the allegation against him and his reply to the allegation was submitted to Secretary Health, for further disciplinary proceeding vide PIMS letter No, F.1-10/85/Admin. PIMS, dated 19th June, 1988 because Dr. M. Shafique was basically a Federal Government servant in BPS-18. With a view to save, the reputation of PIMS, it was also suggested that he may be taken back by the Health Division. Meanwhile, Dr. M. Shafique was repatriated by Health Division vide U.O. No, 29/MS/Per-I, dated 27-6-1988 as Associate Surgeon BPS-18 to Federal Government Services Hospital, Islamabad. Further necessary action was to be taken by the Health Division."
6. It would appear that the appellant was originally appointed in the Federal Government Services Hospital as Associate Surgeon and he was transferred, as such, to the Pakistan Institute of Medical Sciences, Islamabad, in February, 1986. He was selected for the post of a Surgeon (General Surgery), BPS-19, and was appointed there. His repatriation to the Federal Government Services Hospital was not in the public interest but on account of certain complaints against him and on the report made by the Executive Director of the Institute. The appellant's repatriation was as an Associate Surgeon in BPS-18. Thus, the order of his repatriation was not an order of his transfer simpliciter but it was a departmental action against him, although it was not a punishment under the Government Servants (E&D) Rules, 1973. No doubt, he was served a show-cause notice dated 9-6-1988 in respect of alleged illegal acceptance of Rs,9,300 from the two patients namely Mr. And Mrs. Suleman for the purpose of operation in the hospital. It was not a show-cause notice under the Government Servants ( E&D) Rules, 1973. Moreover, transfer from one post to another is not one of the punishments provided under the Efficiency and Discipline Rules. Therefore, C observance of the procedure laid down under the said Government Servants (E&D) Rules in making the order of repatriation of the appellant was not involved.
7. However, there is another aspect of the case as to whether the order of repatriation of the appellant was made in accordance with the relevant service rules. The appellant was transferred as an Associate Surgeon, BPS-18, from the Federal Government Services Hospital (then known as Central Government Poly Clinic, Islamabad) to the Pakistan Institute of Medical Sciences (Islamabad Complex), vide office order dated 18-2-1986 issued from the Health Division, which is reproduced below:- No,F.1-11/85-Per-II Government of Pakistan Ministry of Health, Special Education & Social Welfare (Health Division)
Islamabad, the 18th February, 1986. OFFICE ORDER ' With reference to his candidature for the post of Surgeon in the Pakistan Institute of Medical Sciences (Islamabad Hospital Complex), Dr. Muhammad Shafique is hereby transferred and posted to work in his existing scale of pay in the Pakistan Institute of Medical Sciences (Islamabad Hospital Complex) with immediate effect and until further orders.
(2) A decision regarding his appointment to the post applied for is being taken and the appointment will be made in due course subject to the approval of the competent authority. Dr. Muhammad Shafiq, (Sd.) S.H. Rizvi, Associate Surgeon. Joint Secretary.
' The aforesaid order was followed by the office order dated 20-2-1986 issued from the Central Government Poly Clinic, Islamabad to the effect that specialists/medical officers named therein, which included the name of the appellant also, were relieved from the Clinic with effect from 20-2- 1986 (A.N.), and were directed to report to Dr. A.H. Akhtar, lncharge Commission Team, PIMS (Islamabad Hospital Complex), Islamabad for duty and they were struck off the strength from the Central Government Poly Clinic, Islamabad (former C.G.H. Rawalpindi) (supernumerary posts) from the same date. Both the orders were filed by the appellant _at the hearing of the appeal. He was selected and appointed as Surgeon (General Survery) in BPS-19 on the recommendation of the Board of Governors of the Pakistan Institute of Medical Sciences as per letter of offer of appointment dated 27-6-1987. It was mentioned in the said letter of appointment that the period from 16-10-1986 to 4-1-1987 was treated as deputation from the Health Division. Thus, he was holding the post of Surgeon (General Survery) in BPS-19 when the impugned order of his repatriation to Federal Government, Services Hospital, Islamabad was made. His appointment with the PIMS was, however, on regular basis with effect from 5-1-1987. The preceding period from 16-10- 1986 to 4-1-1987 until he was regularly appointed was treated as deputation from the Health Division. It would appear from the office order dated 18-2-1986 reproduced above, that the appellant's transfer to PIMS was for his absorption in the Institute, if selected, and was actually selected and appointed and, therefore, his transfer on deputation stood terminated. By virtue of his regular appointment in BPS-19 in the Institute, he was not liable to face his repatriation to a post in a lower grade in another organisation viz. Federal Government Services Hospital. Whether the Board of Governors was competent to have made his appointment in the Pakistan Institute of Medical Sciences is altogether a different matter, but it could not be denied that his appointment there was made on regular basis and if he was desired to be shifted or removed, for whatever reason, action should have been taken in accordance with the relevant regulations made by the Institute, if any, and in case he was treated by the Health Division to be under their administrative control as a civil servant, he might have been transferred under the provisions of section 10 of the Civil Servants Act, 1973 on the terms and conditions he was entitled to at the time of his transfer.
The Institute could not get rid of him by approaching the Health Division just to have recalled him as there was no such condition in the letter of his appointment. It follows that the impugned order of repatriation of the appellant was an arbitrary order without any legal sanctions. The appeal is allowed and the impugned order is set aside. The appellant shall be restored to the position he held in the Pakistan Institute of Medical Sciences at the time the order was made. However, he shall not be entitled to any monetary benefits he would have earned had he not been shifted under the impugned order which was passed on account of certain serious complaints made against him.