AJMAL MIAN, J.---By this common judgment, we intend to dispose of the above four appeals which are with the leave of this Court and are directed against a common judgment dated 12-5- 1992 passed by the Federal Service Tribunal, Islamabad, hereinafter referred to as the Tribunal, in Appeals Nos. 462(R) of 1990 and 478(R) of 1990 filed by Dr. Muhammad Zaman against the orders dated 25-1-1990,13-6-1990, 27-6-1990,13-8-1990 and 12-2-1989 appointing Dr. Muhammad Ashraf as Physician (Pulmonology), allowing the same in the following terms:-- "(1)Appeal No. 462(R)/90 which, after the filing of Appeal No.478(R)/90, relates to the orders dated 13-8-1990 and 12-2-1989, is allowed in respect of the order dated 13-8-1990, whereunder the orders dated 3-10-1988 and 4-10-1988 of upgradation of the appellant as Physician (Pulmonology), BPS- 19, was cancelled and the impugned order dated 13-8-1990 is set aside with the direction that the appellant shall be deemed to have continued as Physician (Pulmonology), $PS-19, as if he was not down-graded/demoted; and it is dismissed in respect of the order dated 12-2-1989 relating to the appointment of the respondent No. 4 as Physician (Pulmonology), BPS-19, on regular basis with effect from 8-3-1988; and (2)Appeal No. 478(R) of 1990 pertaining to the orders dated 25-1-1990; 13-6-1990 and 27-6-1990 is allowed, whereby the earlier orders dated 17-7-1988 and 17-7-1988 of grant of four and two advance increments, respectively, to the appellant were cancelled and both the orders dated 25- 1-1990 and 13-6-1990 are set aside and the said advance increments granted to the appellant and subsequently cancelled, are restored as if they were never cancelled; while the appeal is dismissed in respect of the order dated 27-6-1990, whereby the order dated 6-2-1989 of allowing move-over from BPS-19 to BPS-20 was cancelled, as being time-barred in respect of that order viz. 27-6-1990."
Petitions for leave to appeal were filed separately; two by Dr. Muhammad Ashraf and two by the Federation of Pakistan i.e. C.P.L.As. Nos. 206, 207. 265 and 268 of 1992. The above petitions have been converted into Civil Appeals Nos. 361 of 1992, 362 of 1992, 593 of 1992 and 594 of 1992, respectively. Leave to appeal was granted in the above first three petitions for leave to appeal to consider the following questions:-- "(1)Whether rule of locus poenitentiae is applicable to the case of the respondent No. 1 in the facts and circumstances of the present matter?
(2)Whether upgradation of the post with retrospective effect and similarly upgradation of the respondent No. 1 retrospectively could be made in the facts and circumstances of the present case?"
Whereas leave in the above last petition for leave to appeal was granted for the reason that leaves were already granted in the above three petitions for leave to appeal.
2. The brief facts are that Dr. Muhammad Zaman after passing his M.B.,B.S. Examination was appointed as Medical Officer (B-17) ad hoc at Tuberculosis Centre, Rawalpindi, with effect from 12- 12-1972, which appointment was regularised upon clearance by the Federal Public Service Commission. While serving as the Medial Officer at the above Centre, he obtained a Diploma in Tuberculosis and Chest Diseases (DTCD) from the University of Wales in the year 1976. It appears that he was transferred from the above Tuberculosis Centre to the Central Government Polyclinic (which was renamed as Federal Government Services Hospital) in his own pay scale (B-17). It seems that while in service, he did some courses in Japan, U.S.A. And U.K In the year 1981, he was enrolled as a Member of the College of Physicians and Surgeons of Pakistan (MCPS). While remaining on the roll of the Federal Government Services Hospital, Islamabad, he was assigned the duty of civil Surgeon in the Central Government Hospital, Rawalpindi. After that he was promoted as Medical Officer (B-18) in the Federal Government Services Hospital on 27-7-1981. He was assigned the duty of Associate Physician/Civil Surgeon from October, 1984 onwards. He was transferred as a Medical Officer (818) to the Pakistan Institute of Medical Sciences (PIMS), Islamabad, by order dated 18-2-1986, where he reported for duty on 22-2-1986. He was also assigned the functions of the Civil Surgeon for the employees of the PIMS. On reaching the maximum of BPS-18, he was allowed move-over to BPS-19 with effect from 1-12-1985 while continuing serving as an Associate Physician. He was appointed as Associate Physician (Pulmonology) with effect from 5-1-1987 and a formal order in this behalf was issued on 27-6-1987.
Although the post of Associate Physician was in BPS-18, yet he drew pay in BPS-19 as he was already drawing the same by way of move-over. It appears that the post of Associate Physician (Pulmonology) was upgraded to the post of Physician (B-19) with effect from 11-2-1988 and he was regularly promoted to BPS-19 with effect from the same date, namely, 11-2-1988. It seems that in recognition of his good services, he was granted two advance increments with effect from 16-10- 1986 by order dated 17-7-1988. He was also allowed four advance increments with effect from 1-7- 1987 vide office order dated 17-7-1988 in recognition of his two post-graduation qualifications, namely, DTCD (Wales) and MCPS (Pakistan).
3. It appears that in the meantime, Dr. Muhammad Ashraf was appointed on.9-2-1988 on contract basis as the Physician (Pulmonology) in BPS-19 against second post, which he joined on 8-3-1988.
His appointment was regularised with retrospective effect from 8-3-1988 by order dated 12-2-1989.
It seems that Dr. Muhammad Zaman protested against the above regularisation of the appointment of Dr. Muhammad Ashraf retrospectively by way of a representation made on 7-11- 1989. Thereupon, Dr. Muhammad Ashraf filed Writ Petition No. 482 of 1989 before .The Lahore High Court, Rawalpindi Bench, challenging the order of the Health Division dated 26-9-1988, whereby Dr. Muhammad Zaman was appointed as Physician (Pulmonology) in BPS-19 and also the aforesaid order of PIMS dated 6-2-1989, whereby he was allowed move-over to BPS-20 from BPS-19 with effect from 1-12-1988. Initially, the above writ petition was resisted by Dr. Muhammad Zaman as well as by the Federation. While the above writ petition was pending, the aforesaid four orders dated 25-1-1990, 13-6-1990, 27-6-1990 and 13-8-1990 were passed withdrawing the grant of above increments, allowing of move-over from BPS-19 to BPS-20 and upgradation of the post of Physician (Pulmonology) to BPS-19. Thereupon, Dr. Muhammad Zaman filed Appeal No. 462(R) of 1990 challenging the above four orders passed against him and also the order dated 12-2-1989, whereby Dr. Muhammad Ashrafs appointment was regularised retrospectively. It appears that after that, Dr. Muhammad Zaman filed Appeal No. 478(R) of 1990, in which he challenged the above orders dated 25-1-1990, 13-6-1990 and 27-6-1990 withdrawing the grant of above increments and move-over from BPS-19 to BPS-20, whereas he confined his above earlier Appeal No. 462(R) of 1990 to the above two orders dated 13-8-1990, upgrading the post of Physician (Pulmonology) to BPS-19 and promoting him from the date of upgradation and the above order dated 12-2-1989 regularising the appointment of Dr. Muhammad Ashraf as Physician (Pulmonology) retrospectively from the date of appointment.
4. The above appeals were resisted by Dr. Muhammad Ashraf as well as by the Federation on merits as well as on the grounds of maintainability and limitation. The Tribunal held that Appeal No. 478(R) of 1990 filed in respect of above orders dated 25-1-1990 and 13-6-1990, whereby the orders of grant of four and two advance increments to Dr. Muhammad Zaman were withdrawn, was within limitation period and was competent. However, in respect of order dated 27-6-1990, whereby the order dated 6-2-1989 allowing move-over to Dr. Muhammad Zaman was withdrawn, the Tribunal held that the appeal was not competent as no representation or appeal was filed by Dr. Muhammad Zaman.
5. As regards Appeal No. 462(R) of 1990, the Tribunal held that the appeal against the order dated 13-8-1990, whereby the orders dated 3-10-1989 and 4-10-1989 upgrading the post of Physician (Pulmonology) to BPS-19 and promotion of Dr. Muhammad Zaman to the above post was withdrawn and he was reverted to BPS-18, was within time and was competent, but as regards the order dated 12-2-1989 regularising the appointment of Dr. Muhammad Ashraf to the post of Physician (Pulmonology) to BPS-19, it held that the appeal was time-barred. Consequently, the above two appeals were disposed of in terms of the above order quoted in para. 1 hereinabove.
Thereupon, the above parties filed aforesaid four petitions for leave to appeal, which were granted to consider the above questions.
6. We have heard Mr. MA. Siddiqui, learned A.S.C. Appearing for Dr. Muhammad Ashraf, Mr. K.M.A.
Samdani, learned ASC appearing for Dr. Muhammad Zaman, and Mr. Mumtaz Ali Mirza, learned Deputy Attorney-General appearing for the Federation. It is an admitted position that the above impugned orders, which were adverse and detrimental to the interest of Dr. Muhammad Zaman, were passed without hearing him and, therefore, the same violated the principle of natural justice and, hence, the same could not have been sustained on merits. The Tribunal was, therefore, justified in setting aside the above orders dated 25-1-1990 and 13-6-1990 withdrawing the grant of four and two advance increments respectively to Dr. Muhammad Zaman and, hence, no exception can be tauten. Since Dr. Muhammad Zaman had not filed any representation or appeal against the aforesaid order dated 27-6-1990, whereby the order dated 6-2-1989 allowing him move-over from BPS-19 to BPS-20 was cancelled, the appeal had beer, rightly dismissed.
7. Similarly, the order dated 13-8-1990, whereby the orders dated 3-10-1989 and 4-10-1989 upgrading the post of Physician (Pulmonology) to BPS-19 and promoting Dr. Muhammad Zaman to that post were withdrawn and he was reverted to BPS-18 without hearing him, has been rightly set aside by the Tribunal. As regards the above order dated 12-2-1989 regularising the appointment of Dr. Muhammad Ashraf retrospectively from the date of his appointment, it may be observed that the Tribunal has rightly dismissed the appeal as the same was time-barred in respect thereof.
8. However, Mr. MA. Siddiqui, learned ASC appearing for Dr. Muhammad Ashraf, has vehemently contended that the effect of the judgments of the Tribunal and of this Court would be that Dr. Muhammad Zaman would be treated as senior to Dr. Muhammad Ashraf. In this regard, it will suffice to observe that the official respondents concerned will re-examine the case of the above two contestants for the purpose of deciding the question of seniority inter se between them. Since the above impugned orders have been found to be not sustainable on account of violation of the principle of natural justice, it will be open to the official respondents, in case they so decide, to re- open the above question in accordance with law. With the above observations, the above appeals are disposed of.