1. ' ABDUL RASHEED MEMON (MEMBER-II).---In brief the facts of the case as presented by the appellant are that in pursuance of an advertisement for the post of Medical Officers by SESSI he appeared and was selected for appointment as Resident Medical Officer in Sindh Employees Social Security Institution, Government of Sindh wherein he joined duty on 24-10-1993. However, despite completion of required formalities and reporting for duty, no posting order was issued. However, - two doctors namely Dr. Faiz Muhammad Surhio and Dr. Raunaq Hussain Shah Rizvi were posted in the month of May, 1994 as Resident Medical Officers, Landhi Hospital, Karachi, while the appellant alongwith 31 doctors were given posting orders in the month of September, 1994, wherein appellant was posted as Resident Medical Officer at Valika Hospital, SITE, Karachi with effect from 12-9-1994.
2. After one month of his posting, he was transferred and posted as Resident Medical Officer at Dhabeji Medical Centre, District Thatta on 11-10-1994, where he joined his new assignment on 16-10- 1994. Dr. Abdullah Memon (respondent No,3) was Senior Medical Officer and the Incharge of the appellant at Bhabeji Medical Centre.
3. ' Appellant has further stated that while appellant was posted there, he was made to work for 18 hours a day from 2-00 p.m. To 8-00 a.m. Of the next morning and he was made to remain present inside the Medical Centre even when he was supposed to be off the duty. No holiday or any casual leave was permitted to the appellant under the orders of the Senior Medical Officer Dr. Abdullah Memon. After his posting at Dhabeji Medical Centre, the appellant observed that the respondent No,3, Dr. Abdullah Memon, extended his unlawful demands from the appellant in the shape of gifts.
4. ' Initially, the appellant, under compelling circumstances, had to provide certain things, more particularly foodstuff, but when such demand continued and the demand was multiplied by some other item, which was beyond the reach of the appellant, which resulted in unfair attitude of the Senior Medical Officer towards the appellant. At one stage the respondent No,3 extended direct and open threats to the appellant. The said SMO had indicated that whatever benefits were to be received by him through the employees and others, the same were to be shared by him with Medical Adviser at the Head Office. This threat turned true.
5. ' That on 5-4-1995 at about 12-30 a.m. While the appellant was off the duty, one Senior Medical Officer Dr. Zaheer from Head Office and Mr. Anis Zubair, Director Finance, made a surprise visit at Medical Dispensary and a false report of pilferage, misuse of medicines and ignoring the patients etc. Was made. Thereafter the Senior Medical Officer Abdullah Memon, who sins at Landhi Circle, visited the Medical Dispensary Dhabeji on 22-6-1995 in the absence of the appellant at about 2-00 p.m. On that day the appellant was sick on leave. This Dr. Abdullah Memon got the lock of the personal cupboard of the appellant broken through his Chowkidar Shahid Hussain. And prepared a false case against the appellant. Appellant had repeatedly reported against this Chowkidar for his misbehaviour and misconduct but the Senior Medical Officer having special connection with him had taken no action. On coming to know about this conduct of the Senior Medical Officer, the appellant made a written complaint to the Head Office on 3-5-1995 but with no result. However, the appellant was suspended on 7-5-1995 without providing charge-sheet---On 30th May, 1995 the appellant was served with a show-cause notice which was replied on 11-6-1995.
6. ' Appellant was also refused his, monthly salary for the month of May and June, 1995 which was released to him after he filed a petition before the District & Sessions Judge, Thatta. Senior Medical Officer, Dr. Abdullah Memon continued to harass the appellant in collusion with certain other officers at the Head Office and he was again deprived of the benefits of his salary for the months of September, 1995 to April, 1996.
7. ' That on 6-12-1995 respondent No,2 called the appellant and asked him to give in writing his grievance for holding an enquiry into the charges. The appellant submitted the reply but with no result. Accordingly, the appellant made another application on 19-12-1995 whereupon he was reinstated in service with effect from 24-12-1995 and on the same day the appellant was also served with a letter of enquiry to be conducted by one authorized Officer Dr. Shahida Muzaffar but no enquiry was conducted. In February, 1996 the appellant was served with a charge-sheet by Dr, Shahida Muzaffar showing herself to be an Enquiry Officer. According to this charge-sheet, Dr. Irfan Ansari and Mr. Sarwar Ali Khan, Director (Admn), were nominated as Enquiry Officer. Till November, 1996 no enquiry was conducted. On 20-11-1996, the appellant was called and certain questions were asked from him and was asked to wait for further intimation from the Enquiry Officer of the Administration. Since that date there is no further action in the matter. The salary from September, 1995 to April, 1996 was not paid. The salary for the months from May, 1996 was deposited in the appellant's bank account in February, 1997. Further salary from July, 1997 till date was again withheld without any reason, or intimation.
8. ' Appellant has further stated that he was selected on regular basis, and all doctors who were selected alongwith the appellant have been regularized but the appellant was not regularized till to date.
9. ' The appellant has been transferred to Valika Hospital SITE, Karachi, in the month of September, 1997. However, the appellant was not paid monthly salary which has been delivered to the appellant by the respondent No,3 on 20-11-1997. This also confirms the malicious attitude of the respondent No,3 to deprive him of his dues. The undisputed fact that he was continuously denied his right to have the monthly salary and was deprived of his right of his regularization. The appellant sent a representation on 2nd August, 1997 for redressal of his grievance which has not been replied by Government. The appellant has prayed as under:-
(a) to regularise the appellant like all other doctors appointed with or after his appointment and regulate his seniority with others.
(b) to grant yearly increments and all the fringe benefits permissible by rules to the appellant from the very beginning.
(c) to pay all withheld salary of the appellant under proper intimation in writing and ensure regular payment of salary to him.
(d) to permit the appellant to avail leaves and holidays as per rules.
(e) to stop discriminatory treatment with the appellant.
(f) that duty hours for the appellant be same as that of all others and as per law.
10. ' The advocate for the appellant has also stated that in order to deprive the appellant of justice the proceedings against him are not being finalized but were delayed so that he does not get benefit at any other forum, therefore, the proceedings have remained incomplete for so long. He requested that this point may also be kept in view while deciding this appeal.
11. ' On the other side the respondents Nos.2 and 3 in their written statement have stated that:
(a) The above appeal is not maintainable in law as no final order has been passed by the Departmental Authority.
(b) The appellant is not an aggrieved person and as such this Hon'ble Tribunal has no jurisdiction to proceed with the above matter.
12. (c). The other doctors against whom the appellant has grievance of regularization or seniority are the necessary parties and in their absence the appeal is not competent in law.
13. ' However, they have also narrated the same facts as the appellant accepting that his averments against the respondent No,3 i,e, Abdullah Memon are incorrect, baseless and mala fide hence denied. Thus keeping in view the fact that no final action has materialized against the appellant hence the respondents have prayed that no relief was available to the appellant, as disciplinary action on account of misconduct is pending and regularization is dependent upon satisfactory performance. His performance being unsatisfactory no such recommendations for regularization have been made. The appellant can get salary and even the same has been paid for the period claimed in the appeal. In the end they have stated that there is no discriminatory treatment with the appellant. There is no dispute. There is no ill-motive to victimize the appellant. The prayer is unwarranted by law and is misconceived.
14. ' The A.A.-G. Has also stated that the appeal was not maintainable under section 4 of the Sindh Service Tribunal Act, 1973. No final order has been passed against the appellant. Thus he is not an aggrieved person and hence not entitled to any relief. All the dues on account of salary etc. Have been paid and no amount was outstanding. He placed on record the brief facts about enquiries conducted against the appellant from which it was evident that three enquiries remained inconclusive and in the fourth enquiry it was suggested that the enquiry may be dropped and the fifth was under process. Advocate for respondents has relied his arguments on the following decisions of the Superior Courts and Tribunals.
(1) PLD 1981 Supreme Court (612-613).
15. ' S.22---Representation---Delay in disposal-Departmental authorities proscrastinating or contumaciously refusing to pass final order, remedy for aggrieved civil servant; to represent to next higher authority and after waiting for a reasonable time to seek Constitutional remedy for direction to departmental authority to perform duty enjoined upon it by law--Service Tribunal being a statutory forum with restricted jurisdiction, held, cannot in absence of a final order of departmental authority adjudicate on all legitimate grievances of civil servants---Constitution of Pakistan (1973), Art.199. (Civil Services).
(2) 1982 PLC (C.S.) 122 (Service Tribunal Punjab).
16. ' R.13---Appeal---Letter collectively as pressed to various superior and higher authorities including appellate authority with endorsement to authority imposing penalty---Superior authority advising that such letter being not in accordance with rules could not be treated as, an appeal---No proper appeal filed even thereafter---Such letter in circumstances, rightly not treated as appeal and as such appeal before Tribunal not maintainable for not having filed proper departmental appeal--- Punjab Sery ice Tribunal Act (IX of 1974), S.4.
(3) 1987 SCMR (156-157).
(b) Civil Servants Act (LXII of 1573).
17. ' Ss.7(5), 11(3) and 25(2)---Temporary Employment Rules, 1965, R.2(2), (3)---Expressions "temporary employment" and "temporary employee"---Definition-No rule or term and condition of appointment cited for claiming that continuation for eight years or more in service ipso facto converted temporary appointment into permanent appointment--Post against which appointment was made being itself temporary, employee, held, could not be made permanent nor could his posting on a permanent post make his appointment permanent--No concept of automatic confirmation exists and same is discretion of employer exercisable on availability of permanent post and after completion of probationary period---Power of employing person and terminating their employment given in public interest, held, had to be exercised in public interest, without arbitrariness or malice---Appointment of employee being expressed to be temporary, he could not become a permanent employee notwithstanding completion of probationary, period-- Termination of his service being in accordance with conditions of his employment, not violative of S.11(3), Civil Servants Act, 1973 or Temporary Employment Rules, 1965, employee, held, could not seek redress against same.
(4) 1992 PLC (C.S.) 711 (Federal Service Tribunal).
18. ' S.4(1)---Appeal-Competency-Aggrieved Civil Servant could prefer appeal to Service Tribunal only against a final order, original or appellate, made by departmental authority in respect of terms and conditions of his service---There being no original or appellate order which could be appealed ' against, appeal was not maintainable.
(5) 1992 PLC (C.S.) 219 (Federal Service Tribunal).
19. ' S.4---Appeal before Service Tribunal suffering from incompetence and was barred by time--Civil servant's departmental appeal addressed to Establishment Secretary, was by no means sufficient to fulfil jurisdictional requirements, for competent Authority for such purpose was Prime Minister and not Establishment Secretary---Departmental appeal was 'thus incompetent-Civil servant having been informed of the acceptance of his resignation through Notification dated 20-8-1989, his departmental appeal filed on 20-11-1990, was time-barred---Civil servant's appeal was dismissed as incompetent, time-barred and without any merit.
(6) 1994 PLC (C.S.) 24 (Federal Service Tribunal). (a) Civil Servants Act (LXXI of 1973).
20. ' S.16---Service Tribunals Act (LXX of 1973), S.4---Terms and conditions of service---Connotation-- -Disciplinary proceedings initiated against any civil servant, unless and until, taken to logical end or culminate into imposition of penalty, could not be brought under the definition of "terms and conditions" of a civil servant, under S.16, Civil Servants Act and as such could not be brought for redress of the grievance before the Service Tribunal---Civil servants who were aggrieved by any final order, whether original or appellate, made by a Departmental Authority in respect of any of the terms and conditions of their service could only file appeal before the Service Tribunal---No departmental proceedings having yet been finalised against civil servant, no adverse order having been passed against him; no terms and conditions of service having been violated and there being no final order, appeal before Service Tribunal was not competent.
(7) 1996 SCMR (818-819)
(c) Civil Servants (Confirmation) Rules, 1973-- ' R. 6---Constitution of Pakistan (1973). Art. 212---Non-impleading of necessary parties in appeal before Service Tribunal against whom civil servant had claimed relief and Service Tribunal had directed that civil servant be placed above those unimpeded parties--Validity---Judgment of Service Tribunal was absolutely unwarranted by law and also violative of the principles of natural justice-- -Civil servants appeal before Service Tribunal was, thus, incompetent. (Natural justice, principles of).
21. Besides this also quotations from various other authorities under which petitions addressed to collective authorities cannot be treated as an appeal were also placed on record. Thus the appeal of the appellant does not lie at this stage for the following ground$:
(i) There is no final order.
(ii) Proper parties have not been joined.
(iii) No proper departmental appeal was filed under the service laws.
22. ' Accordingly the appeal was dismissed under a short order on 21-12-1999 with no order as to costs and these are the reasons for the same.
23. ' Given under our hands and Seal of this Tribunal on this 11th day of January, 2000 at Karachi.