' MAMOON KAZI, J.---The question which has been raised in these appeals, by leave of this Court, is whether the doctors employed in the Pakistan Institute of Medical Sciences (hereinafter referred to as "PIMS") were civil servants within the meaning of Civil Servants Act, 1'973 and were thus governed by Notification No, S.R.O. 1203(1)/80, dated 29-11-1980 in the matters relating to their appointment, promotion and transfer. It has been pointed out that the Federal Service Tribunal has passed conflicting judgments while trying to resolve this issue as first an appeal filed by one Dr. Inamul Haq Shami was accepted but subsequently a completely different view was taken in another appeal filed by Dr. M. Najmul Ghani Khan.
2. Leave was granted by this Court to examine the question and resolve the issue.
3. PIMS was established vide resolution dated 16-10-1986 of the Ministry of Health (Health Division), Government of Pakistan. A "Board" was set up under the said Resolution to frame policies and supervise and manage the affairs of the said Institute. For discharge of its functions, the Board was to be guided on questions of policy by the instructions issued by the Federal Government. Vide paragraph 12 of the Resolution, the services of all such persons who were appointed in the former Central Government Hospital, Rawalpindi before 13-6-1980 and were subsequently working either in Rawalpindi Government Hospital or in the Central Government's Poly Clinic stood transferred to the said Institute on the same terms and conditions as were applicable to them immediately before passing of the Resolution. Under the said Resolution, the Board was authorised to appoint officers and servants and engage advisors and consultants as were considered necessary for the proper functioning of the Institute. The manner of selection of such officers and servants and their terms and conditions of service were to be prescribed by regulations, to be approved .By the Federal Government.
4. It may be pointed out that Notification No, SRO 1203(1)/80, dated 29-11-1980 had been issued by the Federal Government in pursuance of Rule 3(2)(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973. It provided for method, qualifications and other conditions for appointment to the clinical posts in Grade-17 and above under the Health and Social Welfare Division. According to clause (2) of the said notification, all posts in .Grade-17 were to be filled by direct recruitment and posts in Grades-18, 19 and 20 were to be filled both by promotion and direct recruitment.
5. On the strength of the said notification, one Dr. Inamul Haq Shami who was an Associate Surgeon in the Federal Government Services Hospital, Islamabad filed appeal before the Federal Service Tribunal, contending that recruitments made by PIMS were illegal and ultra vires as the same had been made in violation of the said notification which provided that in case of appointments in Grades-19 and 20, 80 per cent. Of the posts were to be filled by promotion and only the remaining 20 per cent. Were to be filled by direct recruitment. The appeal was resisted upon the ground that PIMS had been assigned autonomous status by the said resolution and, therefore, the said notification was not applicable to it. The objection was however overruled by the Tribunal and it was held that in absence of an Act of Parliament, an autonomous status could not be conferred on the said Institute and the Government was found by the instructions embodied in S.R.O. 1203(I)/80.
The appeal filed by Dr. Inamul Haq Shami was accordingly allowed by the Tribunal. However, a completely different view was taken by the Tribunal in the case of Dr. M. Najmul Ghani Khan wherein it was held that the said appellant was not entitled to claim entry into the said Institute and posts created in the said Institute by virtue of the said Resolution could not be regulated by the provisions of the said notification. '
6. After the decision of the Tribunal in Dr. Inamul Haq Shami's case, Dr. Rashid Anwar, the appellant in Civil Appeal No,86/1993 who was serving as Physician in the Federal Government Services Hospital, Islamabad sent his representation dated 23-1-1989 to the department basing his claim for promotion to Grade-20 on the said judgment. He again sent a reminder dated 8-2-1990 to the Government after which he was informed by the Ministry of Health through its letter dated 27-2- 1990 that his case 'for promotion would depend upon the availability of a post in BPS-20. A similar representation was made by Dr.Khurshid Ahmad, the appellant in Civil Appeal No,87/1993 who was also serving in the Federal Government Services Hospital, Islamabad as a Medical Officer, on 10-12- 1989 for promotion to the post of Radiologist in BPS-18. He once again sent his representation to the Ministry of Health on 13-1-1990 but his request was turned down as he was informed by a letter dated 10-1-1990 that no vacant post of Radiologist in BPS-18 was available against which the appellant could be promoted. By another letter dated 11-1-1990 the appellant was informed that he could not be considered for posting in the said Institute and by yet another letter dated 14-4-1990, he was informed that he was not governed by the provisions of Civil Servants (Appeals) Rules, 1977.
Similar representations sent by Dr. Agha Muhammad Sami Khan and Dr. M. Najmul Ghani Khan the appellants in Civil Appeals Nos. 88/1993 and 4/1994 respectively were also turned down by the said Ministry on more or less similar grounds. Both the appellants had sent their respective representations for promotion in the higher grade and accommodation in PIMS after the said decision in the case of Dr. Inamul Haq Shami. All the appellants thereafter filed their respective appeals before the Service Tribunal which were dismissed by separate judgments dated 2-7-1992 and 2-8-1990 respectively as the view taken in Dr. M. Najmul Ghani Khan's case was followed. The appeals were also rejected as being barred by limitation.
7. The main contention of Mr. Abid Hassan Minto learned counsel for the appellants before us has been that doctors employed by PIMS were civil servants, serving under the Health Department of Federal Government and therefore, they were governed in matters relating to their appointment and promotion by S.R.O. 1203(1)/80. The appellants were therefore, entitled to be considered for appointment in the said Institute.
8. So far as the status of PIMS as an autonomous body is concerned, even Raja Muhammad Bashir, learned Deputy Attorney-General very candidly conceded before us that such bodies created by a resolution of the Government cannot enjoy the same status as a legal person, having an autonomous character. In Mrs. M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612) a question was raised regarding the status of teachers serving in the Model Educational Institutions in Islamabad.
The contention which had been raised before the Service Tribunal was that respondent No,1 in the case was an employee of the Board of Governors of Islamabad College for Boys and hence she was not a civil servant and consequently the Tribunal could not exercise jurisdiction in the matter.
In this case a Resolution dated 24-1-1985 had been passed by the Government of Pakistan, Ministry of Education, resolving inter alia to constitute a Board of Governors for the Model Educational Institutions in Islamabad. It was further resolved that the Board would be an institution and would sue and be sued in its own name. When the matter came before this Court a question arose, whether the said Resolution created a juristic body in. The form of Board. It was held that since such resolution had not been passed in pursuance of any delegated statutory power, the Board was neither a corporate body nor a juristic person, competent to employ teachers. It was further held that respondent No,1 held a civil post in connection with the affairs of the Federation. In another case decided by this Court reported as Saeed Rabbani .V. Director-General, Leather Industry Development Organization (PLD 1994 SC 123) it was the status of Leather Industry Development Organization as an autonomous body which came to be considered before this Court. It was held that since the said organization was neither a statutory corporation nor a company incorporated under the Companies Ordinance, but the same was simply controlled by the Federal Government, the appellant who had joined the said organization as an assistant was held to be a civil servant and his appeal filed before the Service Tribunal was held to be maintainable. Reference has also been made by the learned counsel for the appellants to an unreported judgment of this Court in Civil Appeal No,3/1991: Federation of Pakistan v. Dr. Muhammad Shafique wherein the respondent was originally appointed as an Associate Surgeon in BPS-18 in the Federal Government Services Hospital but he was transferred to. PIMS after he had been selected by its Board of Governors for the post of Geneial Surgeon in BPS-19. The respondent continued to serve in PIMS until passing of the impugned order of his repatriation to the Federal Government Services Hospital, Islamabad. He filed an appeal before the Service Tribunal which was accepted but the' Government felt aggrieved and, therefore, the judgment of the Service Tribunal was challenged before this Court. While disposing of the appeal this Court observed that PIMS was a branch of the Health Division and consequently, it was held that the transfer of the respondent to Health Division was neither arbitrary nor illegal.
9. The contention of the learned Deputy Attorney-General however was that a clear intention had been manifested in the said Resolution dated 16-10-1986 to create a separate cadfre for employees serving in PIMS. Reference was made by him to the definition of the term ' cadre' occurring in Rule 9(4) of the Fundamental Rules, where it has been described as " strength of a service or a part of a service sanctioned as a separate unit". Consequently, according to learned Deputy Attorney-General, there could be different functional units even within the same department with different seniority lists. Reliance was placed by him in this regard upon Ch. Abdul Rashid v. Secretary, Establishment Division, Islamabad (1995 SCM R 567) wherein leave was granted by this Court to consider the question whether seniority of Civil Engineers and (E & M) Engineers, who claimed to be working in separate cadres, was to be maintained separately. Our attention was also invited to the Pakistan. Institute of Medical Sciences (Ordinance IX of 1995) which came into force on 12-1-1995 to provide for establishment of the Pakistan Institute of Medical Sciences. This Ordinance was followed by Ordinance No,LI of 1995 dated 18th April, 1995 which purported to revive the earlier Ordinance which had lapsed in terms of Article 89 of the Constitution. According to section 3 of the said Ordinance, the Institute was to be a corporate body which could, by the said name, sue and be sued. It was also vested with powers to acquire, hold and dispose of property, both movable and immovable. The said Ordinance also purported to create a Board of Governors as an independent body to run the affairs of the said Institute. According to section 20 of the Ordinance, all the interests and liabilities of the institute set up under the said Resolution, dated 16- 10-1986 were transferred to the new body set up under the said Ordinance and everything done, actions taken, obligations incurred, appointments made, etc. Were to be deemed to have been done under the said Ordinance.
10. So far as the Resolution dated 16-10-1986 is concerned, there can be no room for doubt that the Federal Government purported to constitute PIMS as an independent body and clothe it with a fully autonomous status. However the method adopted was ill-conceived. It appears that soon the Government realized the error committed and promulgated the two Ordinances. But as has been pointed out earlier, the status enjoyed by PIMS under the said Resolution could not be educated with the status it now enjoys after promulgation of the said Ordinances. Although Mr. Abid Hassan Minto has raised a question that an institute as contemplated by section 3 of either of the two Ordinances is yet to be constituted by the .Federal Government, but it is not necessary for us to enter into this controversy because neither the two Ordinances were in force at the time when the appellants were aggrieved nor there can be any question of the retrospective operation of the said Ordinances. It would therefore be futile to advert to any objection that may be raised in respect of the said Ordinances.
10-A. This brings us to the contention raised by the learned Deputy Attorney-General that the Government intended to provide a separate cadre for the doctors serving in PIMS. To say .The least about this contention, nothing has been laid by the. Deputy Attorney-General before us in support of the contention from which such an intention can be spelt out. However, the learned Deputy Attorney-General had no reservations while conceding that there was no order of the Government placing employees of PIMS and those of other Government hospitals in separate cadres. Under such circumstances it is difficult to accept the said contention of the learned Deputy Attorney- General. A natural corollary of this would be that the doctors employed by P.I.M.S. Were civil servants and so were the others employed in other Government hospitals and consequently in the matters of their appointment, promotion and transfer they were clearly to be governed by the instructions embodied in the Notification No,S.R.O.1203(I)/80, dated 29-11-1980. Article 240 of the Constitution provides that the terms and conditions of service of persons in the Service of Pakistan shall be determined: "(a) in the case of the services of the Federation, posts in connection with the affairs of the Federation and All Pakistan Services, by or under Act of Parliament; and (b) in the case of the services of a province and posts in connection with the affairs of a province, by. Or under Act of the Provincial Assembly". Civil Servants Act, 1973, which was enacted by the Parliament to regulate the appointment of persons in Service of Pakistan and their terms and conditions of service, came into force on 19-9-1973. Section 2(b) of the said Act defines civil servant as under:-- "'civil servant' means a person who is a member of an All-Pakistan Service or of a Civil Service of the Federation, or who holds a civil post in connection with the affairs of the Federation, including any y such post connected with defence, but does not include--
(i) a person who is on deputation to the Federation from any Province or other authority;
(ii) a person who is employed on contract, or on work-charged basis, or who is paid from contingencies; or
(iii) a person who is a 'worker' or 'workman' as defined in the Factories Act, 1934 (XXV of 1934), or the Workmen's Compensation Act, 1923 (VIII of 1923);"
' Section 3 of the Act provides that the terms and conditions of service of a "civil servant" shall be as provided in the Act and the Rules made thereunder. In pursuance of Rule 3(2)(1) of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 Notification No, S.R.0.1203(1)/80, dated 29-11-1980 was issued, which provided for the method of appointment in respect of clinical posts in Grade-17 and above under the Health and Social Welfare Division. This notification was equally applicable to doctors employed by PIMS as well as those working in Government hospitals under the Health Division. The Health Division was therefore committed under the said notification to fill the vacancies then existing in PIMS in accordance with the criteria laid down in the said notification.
There can therefore, be no doubt that the view taken by the Tribunal that the said notification could not be invoked by the appellants was not correct.
11. We now advert to the most crucial issue in the case as it has been observed by the tribunal that none of the appeal had been filed before it in terms of section 4(1)(a) of the Service Tribunals Act, 1973. The said section provides for an appeal to a Service Tribunal by a civil servant who is aggrieved by any final order, whether original or appellate, made in respect of any of the terms and condition of his service. The period of limitation prescribed for such appeal is 30 days which period, according to said section, would commence from the date of the communication of such order to him. As is further indicated by section 4, where any appeal, review or representation to a departmental authority is provided for under the Civil Servants Act, 1973 or in rules against any such order, no appeal shall lie to a Tribunal, unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of 90 days has elapsed from the date from which such appeal or representation was preferred. In the present case, none of the appellants before us appears to have preferred his appeal or representation to a competent departmental authority in the manner laid down in section 4, when he was aggrieved by filling of vacancies in PIMS without observing the criteria laid down in S.R.O.1203(I)/80. It was only after the Tribunal gave its decision it the case of Dr. Inamul Haq Shami that the appellants made their respective representations to the Ministry of 'Health and after the appellants' request was turned down, they filed their appeals before the Tribunal. Consequently, the Tribunal while rejecting their respective appeals took the view that the appeals filed by them were time-barred and incompetent. As has been further observed by the Tribunal, the appellants, with the exception of Dr. Agha Muhammad Sami Khan, did not even file an application before the Tribunal for condonation of the delay. Nothing has been placed in rebuttal by any of the appellants against such clear findings of fact. According to appellant Rashid Anwar, it was only after the decision in Dr. Shami's case that he sent his representation to the Ministry of Health regarding his entitlement to promotion in Grade-20 against the quota as determined in S.R.0.1203(1)/80. The appellant waited for a reply and it was only after such reply was received by him that the appellant filed an appeal before the Service Tribunal. In Dr. Khurshid Ahmad's case also an appeal was made by the appellant on 20-2-1990 which was turned down vide letter dated 14th April, 1990 by the Health Division. The appellant then waited until the said decision in Dr. Shami's case and thereafter he filed his appeal before the Tribunal. As is indicated by the Tribunal's judgment, none, except the Health and Establishment Divisions, had been impleaded as parties to the appeal. The request made by him further indicated that he only wanted to be promoted to the post of Radiologist in Grade-18 in the said Institute. Similar appears to be the case in Agha Muhammad Sami Khan's case. The appellant only wanted to be promoted to the post of Radiologist in BPS-19 against the 80 per cent. Quota reserved by the said notification for departmental promotions. No appeal was filed by the said appellant in terms of section 4(1)(a) of the Service Tribunals Act. Even in Dr. M. Najmul Ghani's case, nothing has been placed before us to indicate that any such appeal had been filed by him before moving the Service Tribunal. Consequently in no case the appeal filed before the Tribunal was competent in terms of section 4(1)(a) as the conditions required to be fulfilled by the appellants before filing such appeal had evidently not been satisfied. When the appellants were not considered and rival claims to the same posts were created, it was but imperative for the appellants to adhere to the procedure provided in section 4 of the Service Tribunals Act and file their appeals within time. However, none of the appeals was filed in accordance with the procedure laid down by the said section. Therefore, notwithstanding the view taken by us that the case of the appellants was governed by the provisions of S.R.O. 1203(1)/80, we find ourselves in agreement with the Tribunal that none of the appeals was maintainable before it.
12. In the result, the appeals are dismissed.