' RAJA BASHIR AHMAD KHAN (CHAIRMAN).---This is an appeal against the order of the Secretary, Health No, 22/20-23/DHS/86, dated 22-10-1986 and Notification No, 22/20-23,/DHS, dated 22-3- 1992.
2. Briefly stated the facts are that the appellant joined Government service as Civil Medical Officer on 1-2-1984. He was nominated for the diploma course in Cardiology against the seat reserved for Azad Kashmir in the National Institute of Cardiovascular Diseases, Karachi. The appellant joined the said Institute on 15-9-1984 and successfully completed his course and rejoined his service on 12-1- 1986. The Secretary, Health Services granted leave without pay of 730 days with effect from 4-11- 1984 in favour of the appellant. This period was to be treated as on deputation. The Secretary, Health arbitrarily and without any request or application on behalf of the appellant sanctioned leave without pay. The appellant brought the facts in the notice of Secretary, Health that the period spent in the Institute for the special course should be treated as on deputation/training. The Secretary, Health turned down his request and against this order of Health Secretary he filed an appeal before the Government which was rejected by the Government under the impugned notification.
3. The respondents have filed written objections to the memorandum of appeal whereby the facts stated in it have been denied. The appellant has also submitted replication wherein he has reiterated his claim as set up in the memorandum of appeal.
4. We have heard the learned counsel for the parties and have gone through the record.
5. The argument of the counsel for appellant is that appellant was nominated against the reserve seat for Azad Kashmir and the period spent in the special course was treated as on deputation. The Secretary, Health has of his own and without any request on behalf of appellant sanctioned leave without pay for 730 days. Appellant had never applied for any kind of leave. He was nominated by the Government and, therefore, the order sanctioning leave without pay was unwarranted. On the other hand it is argued that the appellant was never deputed for the special course in Cardiology and was merely nominated by the Secretary, Health on the application of the appellant.
6. The perusal of the record shows that appellant was appointed as Civil Medical Officer on 30-1- 1984 on ad hoc basis alongwith other Doctors. He applied for privilege leave for 30 days commencing 19-9-1984 or the date of availing the same. The competent authority allowed privilege leave in favour of appellant from 19-9-1984 to 18-10-1984 (or date of availing). The appellant, however, submitted his departure report to avail privilege leave from 4-10-1984 to 3-11- 1984 and thereafter he again submitted an application for grant of promotion to Grade B-18 against the post of Cardiologist/Medical Specialist in the Department of Health. The Government allowed the promotion after creation of a post in Grade B-18 in C.M.H. Muzaffarabad and ad hoc appointment of appellant was made on 18-2-1988. Appellant then made efforts for nomination for training in United Kingdom in the field of Cardiology and Notification No, D&V.FT/(35)III, dated 30-4- 1988 was issued and he was allowed to proceed on deputation for training in the said field under Notification No, Admin/A-3(16)S.OIII/89, dated 10-12-1989. The appellant in short, completed training in United Kingdom but failed to report back to his duty and was ultimately sacked from service on account of continuous absence from his job. This brief history has been narrated with a view to show the conduct of appellant in discharge of his moral duties towards service of the country which provided him first a chance to get admission in a Medical College in Pakistan and later on enabled him to receive training in United Kingdom at the expense of the State which involved huge amount of money and what, in turn, he gives to the country is to allow himself to be found guilty of gross-misconduct thereby earning dismissal from service.
7. The order under which the appellant was nominated for admission in diploma course is reproduced below: ' To ' Director and Chairman, ' Academic Council, ' National Institute of Cardiovascular Diseases, Karachi.
Subject: ADMISSION FOR DIPLOMA COURSE IN CARDIOLOGY. Reference: Our Letter No, 8581/86/AK/SH, dated the 15th October, 1983.
' Attached application, dated the 18th June, 1984 in respect of Doctor Masood Ahmed Butt, Medical Officer, Azad Kashmir C.M.H., Muzaffarabad for admission in diploma course in Cardiology is recommended and forwarded herewith in original alongwith its enclosures for consideration.
Doctor Masood Ahmed Butt is nominated on the seat reserved for Azad Kashmir.
Brigadier, (Secretary Health) A J & K Council."
8. The perusal of order shows that appellant was nominated by Secretary, Health and it appears that this nomination was made on the application dated 8-6-1984 of appellant. Unfortunately this application was attached with his nomination order and is not traceable but the fact remains that the appellant was nominated for the said course on his own application.
' This fact is proved by Letter No, NICVD/160/6397, dated 29-10-1984 from Executive Director, Institute of Cardiovascular Diseases, Karachi of Secretary Health. The letter is reproduced below:- "The Secretary, Health, Azad Jammu and Kashmir, Muzaffarabad.
' Further to our Letter No, NICVD/160/5524 of August 30, 1984. It is to inform you that Doctor Masood Ahmed Butt has joined the Diploma Course from September 15, 1984.
Prof. MA. Najeeb, Brig. M.B., F.R.C.P. Executive Director."
9. From this letter it is evident that appellant had joined the diploma course in Cardiology from 15- 9-1984. Appellant had applied for privilege leave for one month with effect from 19-9-1984 which he availed from 4-10-1984 to 3-11-1984. He applied for the said leave on 9-9-1984 and the letter of Executive Director of the Institute is indicative of the fact that appellant after submitting this application on 9-9-1984 had gone to Karachi and joined the Institute on 15-9-1984 without the permission of the Government and later on manoeuvred to get his nomination from the Secretary of Health Department. The whole edifice of the case of the appellant is built on the ground that he was in fact deputed for the course by the Government. There is no such order of the Government on the record. The Secretary appears to have written the Institute for allowing appellant to continue his course which he had himself joined without the permission of the Government or the Department. We find a note of Secretary, Health dated 2-4-1988 which explains the facts forming basis for the nomination of the appellant for the course. Prime Minister on 27-1-1988 nominated Mr. Khalil Ahmed Qureshi, Secretary Services to hear the appellant and submit his recommendations in the matter of appellant's appeal against the impugned order of Secretary, Health. The Secretary Services had formulated amongst others the following proposition:- {{URDU TEXT}}
10. In reply to this proposition Secretary, Health offered his explanation as under:- {{URDU TEXT}} "In the last I request your kindself that I fulfil all the requirements on my own expenses for the abovementioned diploma among all the Azad Jammu and Kashmir Doctors". {{URDU TEXT}}
11. From the explanation of Secretary, Health it appears that the nomination of appellant was made on his own application and with his desire to get the training on his own expenses. There is a definite procedure for allowing civil servants to proceed on training on deputation which is reflected by the format adopted in Notification No, Admin/A-3(16)S.O.III/89, dated 10-12-1989 in respect of appellant's training in United Kingdom. The Notification is reproduced below:- {{URDU TEXT}}
12. It is evident from this Notification that the trainee deputanist is allowed TA./D.A. For the journey.
The post is kept vacant and the trainee is given full pay alongwith all allowances and is treated on duty. Nothing of this kind was done in the case of appellant when he was sent to Karachi. It appears that after completing his course which he had offered to do on his own expenses he tried to make it a case of deputation in order to squeeze money from the National Exchequer to which he was not entitled. We, therefore, cannot allow this interiorly motivated manoeuvrings of appellant and reject his claim.
13. The respondents have also raised the question of limitation. In the title of the appeal the appellant has challenged the order of Secretary, Health No, 22/20-23/DHS, dated 22-10-1986. This order was passed by Secretary, Health against the Order No, 3217-28/SH/85, dated 14-2-1985 (Annexure `D'). The original order in this appeal is Order No, 3217-28/SH/85, dated 14-2-1985. This order was appealable only to the Government and no review application was competent against this order.
14. The appellant instead of filing an appeal against the order dated 14-2-1985 filed a revision application before the Secretary, Health and the order passed by the Secretary, Health was made subject of appeal before the Government. The course adopted by the appellant first by filing review application before the Secretary, Health and second by preferring an appeal is not warranted by law and in fact on this score the present appeal is hopelessly time-barred and liable to be dismissed. The learned counsel for the appellant has referred 1987 SCMR 110, 1990 PLC (C.S.) 497 and PLD 1975 Lah. 707 on the point that the order passed by the Secretary was void and was passed on the back of the appellant and is not hit by limitation. Under Rule 9 of the Azad Jammu and Kashmir Leave Rules, 1983 the Head of the Office can grant leave without pay for two years at his discretion. Secretary, Health Services undoubtedly is the Head of the Office and was competent to grant leave. Even if the order has been passed in the absence of the appellant the limitation shall run from the date on which the said order came into the notice of the appellant. From the order dated 22nd October, 1986 it appears that appellant filed review application before the Secretary on 21-9-1986. The order of the Secretary appears to have been dispatched to the appellant and we can presume that in the ordinary course of business he must have received the same. The appellant has not stated any specific date on which he had the notice of this order of the Secretary, Health. We, therefore, hold that the order was communicated to the appellant in due course of ordinary business. He has not challenged the said order so far directly before the Government. The authorities cited by the appellant are, therefore, not of any assistance to him. The appeal is hopelessly time-barred. There is another aspect of the case. The appellant has not so far filed any appeal against the original Order No, 3217- 28/SH/85, dated 14-2-1985 of Secretary, Health before the Government. The order was not reviewable by the Secretary. The appellant has filed appeal before the Government against incompetent order of the Secretary, Health. The appeal is, therefore, also liable to be dismissed on this score.
15. The appellant had added ground No, 8(e) in his grounds of appeal. No executive order of the Government appears to have been passed in pursuance of the order of the then Prime Minister Raja Mumtaz Hussain Rathore. The successor Prime Minister is free to recall the order of his predecessor at any time before it becomes operative. The order of the then Prime Minister was not issued by the Government under Rules of Business, therefore, the order of mere acceptance of appeal can be recalled by the Prime Minister in chair.
16. The conclusion which we reach from the above discussion is that this appeal is liable to be dismissed being incompetent and without any force. We, therefore, order accordingly. The appeal is dismissed with costs.