MUHAMMAD ILYAS LODHI (MEMBER).--- By way of this appeal, the appellant, Dr. Muhammad Akhtar Hussain prayed as under:-- "This Honourable Tribunal may kindly be pleased to set aside the orders contained in the Health'
Division O.M. Dated 22-5-1993 and hold that the appellant continues to be civil servant under the Health Division and direct the respondents to consider the name of the appellant for the post of Associate Physician (Dermatology) in the Federal Service Government Services Hospital, Islamabad alongwith other eligible Medical Officers for the Hospital. It is also requested that the present status of appellant in the P.I.M.S. e.g. Whether or not he is an employee of the Federal Government on deputation to P.I.M.S. May also kindly be decided."
2. Briefly the facts of the case are that the appellant joined as Medical Officer on ad hoc basis in the Health and Social Welfare Division, on 15-5-1980 and posted in the Central Government Hospital, Rawalpindi. On selection through FPSC, he was appointed as Medical Officer on regular basis vide Notification dated 2-12-1980 and subsequently transferred to Government Polyclinic, Islamabad on 15-1-1981. On 10-12-1985 the appellant was transferred to PIMS in the same capacity and later on was promoted as Medical Officer (B-18). On 23-1-1991, Health Division issued a Provisional Seniority List of Medical Officers (B-17 and 18) working under the Health Division and the name of the appellant appeared at Serial No. 99. On 10-2-1993, the appellant applied for the post of Associate Physician (Dermatology) in the Federal Government Services Hospital which was turned down vide PIMS memo., dated 29-6-1993. He filed a departmental appeal to the Minister for Health on 29-6- 1993 to which he received no reply, hence this appeal on 27-10-1993.
3. The learned counsel for the appellant argued that the impugned order is not a speaking order and is tantamount to depriving the appellant of his seniority and status as civil servant of the Federal Government which is contrary to rules and regulations. He submitted that initial appointment of the appellant and transfer to the PIMS was made -by the Health Division as he was holding the post of Central Government. He is a civil servant within the meaning of Civil Servants Act, 1973 as he never asked for posting or opted to serve PIMS and he is regularly contributing Provident Fund to the Federal Government and he was never informed that he would sever all connections with the Health Division on his transfer to PIMS.. The learned counsel for the appellant vehemently argued that his promotion order to (B-18) were issued by the Health Division and he was placed at Serial No.99 in the Provisional Seniority List of Medical Officers (B-17 and 18). He also argued that the post of Associate Physician (Dermatology) is promotion post and it is reserved for the Medical Officers serving in the FGSH. The appellant having experience of 15 years in B-17/18 and holding relevant Post-graduate Diploma, is entitled to be considered for the same alongwith other eligible doctors. He prayed that the appeal be accepted.
4. The learned counsel appeared on behalf of the respondent----Department argued that under the rules the appellant was transferred to PIMS, Islamabad alongwith his post where he has been working since 1985. His claim is not justifiable because the appointments in PIMS are outside the purview of the FPSC and the appointing authority is different from those in the Federal Government.
The seniority list of the Medical Officers working under Health Division including FGSH is combined but those doctors who are working in PIMS are not included in the seniority list. However, the name of the appellant remained in seniority list of Medical Officers of Grade-17 and 18 working under Health Division which is due to uncertain status of PIMS. He submitted that the appellant never informed the Ministry on achieving the diplomas in (Dermatology) and never applied for promotion prior to this representation. He submitted that according to sub-para (1) of para. (ii) of the President's Directive the services of the staff of former Central Government Hospital, Rawalpindi were placed on strength of PIMS and as such his transfer was implemented without seeking individual options and he is no longer regular employee of FGSH, Islamabad because he was transferred to PIMS, Islamabad which was established as an autonomous body alongwith his post.
Accordingly, he is not entitled to retain his Len on the post of Medical Officer in FGSH, Islamabad and also by availing facilities like training in foreign country and went to Saudi Arabia with Hajj Delegation Mission through PIMS and he was also granted move-over in BPS- 19 in DIMS Islamabad.
The learned counsel argued that the appellant has no right for promotion against the post of Federal Government Services Hospital, Islamabad as he is an employee of the PIMS which is an autonomous body. He prayed that the appeal be dismissed.
5. We have heard both the parties and perused the record. The appellant's version that be is still employee of the Federal Government as his name still appears in the seniority list of Medical Officers, Ministry of Health as well as he has also not been permanently absorbed in the PIMS, is not sustainable. Firstly, the seniority list is a provisional, mere inclusion of his name in the list does not confer a legal status unless it attains the finality. Secondly, since 1985 the appellant on his transfer to the PIMS has neither, asked for his status to be determined as permanent employee nor has asked for deputation terms/repatriation to the Federal Government.
6. As regards his prayer for determining his status, since this issue has not been raised in his departmental appeal, therefore, at this stage it cannot be, adjudicated upon under section 4(1) of the Service Tribunals Act, 1973. In view of the above at this belated state without first having his status determined, he cannot ask for his promotion to the Federal Government. With these observations, the appeal is dismissed with no order as to costs.
ABDUL RAZZAQ A. THAHIM (CHAIRMAN): --This appeal was admitted by the Tribunal on 16-11-1993 on a limited point that the appellant was not permanently absorbed in the PIMS and was entitled to be repatriated to the Federal Government Services Hospital.
2. The relevant facts for the purpose of this appeal are that the appellant was appointed as Medical Officer (BPS-17) on ad hoc basis by the Ministry of Health vide office order, dated 15-5-1980 and he was posted with the Central Government Hospital, Rawalpindi. After selection by the Federal Public Service Commission, he was allowed to continue on regular basis as Medical Officer (BPS-17) vide notification, dated 2-12-1980, alongwith others, and was posted to the Rawalpindi General Hospital. According to the terms and conditions, this appointment was temporary and liable to termination on a fortnight's notice without assigning reason. He was repatriated alongwith others to the Central Government Poly Clinic, Islamabad vide letter dated LS-1-1981, issued by the Medical Superintendent, Rawalpindi General Hospital. Thereafter, in compliance with the President's directive and as a result of the transfer of posts (temporary as well as permanent) of the former Central Government Hospital, Rawalpindi to the Islamabad Hospital Complex vide Ministry of Health Letter No. F.3-12/80-MF-II, dated 26-12-1984 and 22-8-1985, the appellant, alongwith 56 others, was taken on the strength of the Islamabad Complex with effect from 1-7-1985. From the above facts, it is clear that the appellant was absorbed permanently in the Islamabad Hospital Complex and this fact is further fortified by the fact that the appellant's name appears at SNo.2 of the list of Medical Officers (BPS-18) working on regular basis in the Complex; and further that he was allowed move-over to BPS-19 by the Islamabad Hospital Complex It is also pertinent to mention here that the appellant vide his application, dated 27-7-1991 addressed to the Executive Director, PIMS, Islamabad requested for promotion as Associate Physician Dermatology as he fulfilled all the requisite conditions laid down in the PIMS Regulations. In case he had any grouse with regard to his absorption in the PIMS it was open to him to agitate that matter in the year 1985 but he kept silent intentionally as to get the benefit of promotion to BPS-18 and 19 in the PIMS.
Therefore, it is unjustified to ask for repatriation at this belated stage to the Federal Government Services Hospital, Islamabad only to get promotion there. It may also be observed that in case the appellant is repatriated to the Federal Government Service Hospital, Islamabad, there will be so many persons affected by his coming to that Hospital and in that eventuality such persons have not been made party in this appeal and as such the appeal is hit on the point of non-joinder of necessary parties also.
3. Similar question came up for adjudication before the Supreme Court in Civil Petition for Leave to Appeal No.307 of 1993 (Parvez Khan v. Auditor---General of Pakistan, Lahore and others) and the Supreme Court by its judgment dated 10-11-1993 refused to grant leave. The relevant paragraphs of the judgment are reproduced below:-- "(2) Prior to 1986, the petitioner belonged to and was serving in the Office of the Accountant- General, N.-W.F.P. At Peshawar. It appears that certain posts, including the one occupied by the petitioner, were required to be surrendered to the office of the Auditor-General. While surrendering these. Posts the incumbents of the post were also surrendered to the AGPR. The consequence of such a surrender of posts and the incumbents thereof are provided in, ESTACODE 1983 Edition at Serial No.29. It provides as hereunder:-- "The persons who are transferred to another office alongwith post the question of the protection of their interest in their parent office will not arise, since they will be transferred on permanent basis and will thus sever their connection with the previous office."
(3) In 1992 when the promotion of persons junior to the petitioner, who were employed in his earlier parent office, took place, the petitioner sought retransfer to the said office which was denied to him on 8-2-1993. He approached the Service Tribunal on the 7th of March, 1993.
(4) The Service appeal filed by the petitioner against the order dated 8-2-1993 was within time ie.
Within thirty days of the final order. However, it was misconceived as the order to be challenged in appeal was not one which was passed on 8-2-1993 but the one passed in 1986 whereby the posts alongwith the incumbents were surrendered to the AGPR. If that surrender is upheld, there can arise no question of retransfer to the earlier department to which the petitioner at one time belonged. It is only when that transfer was removed from the scene or its terms altered that a claim to retransfer could be sustained. As that order remains in tact, no case for interference is made out.
(5) In the circumstances, leave to appeal is refused."
4. The result of the above discussions is that the appeal is devoid of merit and I fully agree with the learned Member Mr. M. Ilyas Lodhi that the appeal deserves dismissal and is accordingly dismissed with costs.