1. The petitioner seeks declaration that the impugned order, dated 12-1-2000 transferring, selecting and making the petitioner as O.S.D. And all consequent orders and actions of the respondents appointing, promoting, selecting respondent No,4 as Professor and Head of Department of Obstetris and Gynaecology of Sheikh Zayed Hospital and Federal Post Graduate Medical Institute to be without lawful authority, arbitrary, unlawful, void and ineffective viz the rights of the petitioner and seeks that he be declared that he is continuing as Professor and Head of Department of Obstetris and Gynaecology, Sheikh Zayed Hospital and Federal Post Graduate Medical Institute.
2. The background of the case as submitted by the petitioner, invoking Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 read with Article 2 of the Provisional Constitution Order No,1 of 1999 are that all powers for management of the Trust can only be exercised by Board of Trustees under the Trust Deed Resolution, dated 29th May, 1996 or Rules/Regulations framed thereunder abdicating Board of Trustees of its powers and vesting power in the Federal Government or its functionaries like respondent No,3 is unlawful and ultra vises the law. Even otherwise the said Resolution does riot enjoy any legal or Constitutional status under law and Constitution of Islamic Republic of Pakistan, therefore, all its provisions are unenforceable and are liable to be declared unlawful and of no legal effect. As such, the impugned orders and action of respondent by purported exercise of authority under the Resolution or any Rules/Regulations framed thereunder are without lawful authority; and that the impugned office order dated 12-1-2000 of the transfer and relegation of the petitioner to the post of O.S.D. Has been passed to punish the petitioner, without any show-cause notice, inquiry or opportunity of hearing.
2. As such, the same condemns the petitioner unheard and is thus void ab initio and without lawful authority. The impugned order and all subsequent actions and orders passed by the respondents are thus liable to be ignored and set aside; and that neither any sanctioned post of O.S.D. Nor any budget therefor exists in Sheikh Zayed Hospital and Post-Graduate Medical Institute. As such, petitioner could neither be transferred nor posted or relegated to non-existent post of OSD. The impugned orders and actions are as such without competence, arbitrary, illegal and unlawful and the same are liable to be totally ignored and petitioner thus, continues to be Professor Incharge and Head of Department of Obstetrics and Gynaecology in the Institute; and that Sheikh Zayed Hospital and Post-Graduate Medical Institute being a project of Sheikh Zayed Bin Sultan Al-Nahyan Trust can only be managed and regulated in accordance with the Trust Deed, whereunder only Board of, Trustees is competent to employ, remove, transfer, promote, relegate, terminate or dismiss an employee from a post or a position. Respondents Nos.1 o 3 are neither competent nor authorized to either pass the impugned orders or take any of the impugned actions against the petitioner or in favour of the respondent No,4; and that only Board of Trustees is competent to create a post in the interest of Trust or to take an action relating to its functionaries, if the same is in the welfare and for the advancement of the objects of Trust and the purposes of its project: As stated above no post or position of O.S.D. Exists in this Institute neither such a post has been created. Nor could such a post be in consonance with the object of the Trust or those of the Institute as the post or position of O.S.D. Under the settled Legal and Service nomenclature/parlance means as under:-- "a designation which came to be reserved for officers who were on the wrong side of the Ministry.
3. There was no special duty to perform and the object was to place them in unimportant positions. ' to keep the civil servants without posting as a measure of punishment for considerably long periods by making them O.S.D. Etc., without getting normal work which is a fraud on the statuts and abuse of executive power."
4. ' Neither respondents nor the Board of Trustees are, therefore, empowered to commit a fraud on statutes by abusive their executive powers in creating a post of O.S.D. Or by transferring/making the petitioner or any other person as O.S.D.; and that petitioner's posting or transfer as O.S.D. Is neither a term nor a condition of his service whereunder he cannot be transferred or posted to a non-existent, superfluous, unseless and dutyless position. By impugned order the" petitioner has been deprived of this post position, benefit, work, experience, application of mind and expertise, 'valuable rights and gainful employment of his professional capabilities to the benefit of patients and public at large. Such an order and action is contrary to natural justice, fundamental rights, law and equity. The impugned order is the clear violation of the objects of Trust, spirit of law and service of the society for which the Institute was established. On the contrary it is a balant dis-service of public at large and is contrary to public welfare, and that in view of submissions made above the impugned orders and actions of respondents are result of established legal and factual mala fides, arbitrariness, capriciousness and colourable exercise of jurisdiction wherefor the same are liable to be ignored being without lawful authority and of no legal effect and that the impugned orders and actions of respondents are bound to destroy a department of clinical and academic excellence built by the petitioner through his hard labour, superb professional input and outstanding managerial capabilities thereby causing loss to the Trust, the Institute, the State, the Nation and patients at large. It is further submitted that 32 doctors under training of the petitioner as their registered supervisor and examiner for DGO, MRCOG, FCPS and MCPS are already suffering .Tremendously without their supervisor and examiner to teach, train and educate them. As such, the impugned order and actions being against :public welfare deserve to be set aside and that promotion, appointment and ,posting of respondent No,4 in BPS-20 as Professor and also to the position of Head of Department/Professor Incharge of Department of Obstetrics and Gynaecology is even otherwise ultra vires the law as:
(i) Respondents Nos.2 and 3 are neither competent nor empowered to promote or post respondent No,4 to the said post and position. Respondent No,4 has neither been approved nor appointed by Board of Trustees or the alleged Board of Governors or even by respondent No,2.
(ii) Respondent No,4 had ceased to be an employee of the Institute by tendering registration and joining Shalimar Hospital, making his resignation irreversible.
(iii) Only one post of Processor exists in the said speciality, and department and the same was occupied by the petitioner despite his illegal and unlawful order of O.S.D. No new post was created.
(iv) The post of Professor was neither advertised or any applications were invited. In fact there was no vacant post in existence. Presuming without conceding that post of Professor was available for appointment yet the essential requirements, and procedures enunciated by law have balantly been ignored by the respondents.
(v) Respondent No,4 was unsuitable as well as ineligible to be appointed as Professor and Head of Department in presence of a more qualified and suitable Associate Professor in the Department itself who was only ignored for the mala fide reason of being petitioner's spouse.
(vi) Respondent No,4's promotion or appointment was neither consisdered nor recommended by, the Departmental Promotion Committee.
(vii) As explained above, respondent No,4's appointment was a direct consequence of petitioner's illegal, unlawful, incompetent, unauthorized and mala fide transfer as O.S.D. Till further orders.
(viii) By intonation of the impugned order, the same appears to be transitory and temporary till further order yet respondent No,3 has illegally and immorally endeavoured to seal the fate of the petitioner by permanently posting respondent No,4 in place of the petitioner which is further proof of colourable motives against the petitioner. and that by impugned order, dated 12-1-2000 and impugned orders and actions of appointing respondent No,4 in place of the petitioner, respondents have tried to impose penalty and punishment on the petitioner by apparently relegating him as O.S.D. Simiplicter yet the same is colourable and mala fide exercise of purported authority to oust the petitioner from service, thereby depriving him of his valuable legal rights and guaranteed fundamental rights.
5. ' As such, the order is against the law, Constitution, natural justice and le principles of equity.
3. Notice was given to the respondents and they have appeared through their counsel. They have submitted that vide Martial Law Order No,22 of 15-10-1977 which was subsequently validated by the insertion of Article 270-A in the Constitution of Islamic Republic of Pakistan, the power of the trustees were taken over by then Chief Martial Law Administrator. The hospital was completed in February, 1986 by the Pakistan Works Department (P.W.D.) and resolution was passed by the Ministry of Health on 29-5-1986 to govern and run the Sheikh Zayed Post-Graduate ,Medical Institute. The said Resolution provided the following objects:-
(i) To manage the administration of Sheikh Zayed Post-Graduate Medical Institute and National Clinical Research Centre.
(ii) To provide treatment facilities of international standard in Sheikh Zayed Hospital.
(iii) To develop facilities for post graduate medical qualifications.
(iv) To educate and trained men and women to become leaders the field of medical research, education and health delivery system.
(v) To develop a system to import continuing medical health education and training.
(vi) To develop National Clinical Research Complex with the help of Ministry of Science and Technology to carry out research studies on national health problem.
(vii) To develop as a centre for dissemination of knowledge of medical sciences.
(viii) Perform other functions as may be assigned by the Government for the purpose of Resolution.
6. ' Federal Government was empowered by para.3 to issue directives and instructions from time to time for the purpose of carrying out the object of the Resolution. The management was to consist a Board, Executive Committee and Chairman and the Board of Governors was vested with overall control, supervision and superintendence of the affairs of institute. The President of Pakistan was made a Patron-in-Chief of the Institute. The qualification for the appointment of Chairman was to be eminent person of scientific and medical repute, will to be act as Chief Executive of Institute and the Federal Government was declared the appointing authority of the Chairman. It was also provided that Federal Government to place funds at the disposal of the Institute for the smooth discharge of its function and efficient conduct of its affairs. The Institute was bound to submit budget of each year to Federal Government for approval showing receipts and expenditure and likely sums to be required from the Federal Government during the financial year. Accounts were to be maintained as per direction of the Federal Government and the accounts were to be audited by the Auditor General of Pakistan. The institute was given the discretion to appoint such officers, advisors, consultant and employees as it may deem necessary on the terms and conditions as may be prescribed and approved by the Federal Government. The institute was bound to submit yearly report on working of Institute to the Federal Government. It was also provided that Federal Government was to make rules for carrying out the purposes of the Resolution and the Institute was given the powers to make regulation but with prior approval of the Federal Government.
7. Federal Government provided a sum of Rs,950 million in budgetary grants for smooth and running of affairs of Sheikh Zayed Post-Graduate Medical Institute. Admittedly the appointment of the petitioner was made under the said Resolution, as such, he is estopped by his words and conduct to challenge the vires of the said resolution. Learned counsel also referred to clauses 5, 21, 24, 25 and 33 of the Trust Deed according to which the Trust was stressed to generate its own income and meet the expenses from such investment or from corpus of the trust and that actually the trust has failed to generate its income and it is the Federal Government on whose grant it is running.
8. Learned counsel submitted that in the case of Mrs. M.N. Arshad and another v. Miss Naeema Khan (PLD 1990 SC 612) that in Pakistan Corporations are either created by a statute-like Karachi Port Trust, incorporation under the Karachi Port Trust, or by registration under the statute-like the Companies under the Companies Ordinance, or association under the Societies Act or Cooperatives under the Cooperatives Societies Act or Government of Pakistan, Ministry of Education resolving inter alia to constitute a Board of Governors for the model eduction institute in Islamabad is not in pursuance of any such statute hence it is neither a body corporate nor a juristic person capable of employing teachers. It was, therefore, held that the teachers of the model school are civil servants. Similar is the case here. The Government of Pakistan Ministery of Health resolved to constitute a Board of Governor for unhindered and efficient working of Sheikh Zayed Post- Graduate Medical Institute as the Board is not in pursuance of a statute hence its employees are the civil servants for the purposes of the Service Tribunals Act. Learned counsel has specifically referred to the case of Ghazala Perveen v. Federation of Pakistan (1994 PLC (C.S.) 684) the Federal Service Tribunal relying on the Naeem Khan's case declared the employees of Sheikh Zayed Post Graduate Medical Institute to be Civil Servants and amenable to the jurisdiction of the Service Tribunal. Learned counsel also referred to the case of Pakistan Institute of Medical Sciences (PIM) which was created by a Resolution passed by the Ministry of Healty. In case of Dr. Rashid Anwar v.
9. Federation of Pakistan (1996 SCMR 1572) the question arose as to whether the employees of PIMS are Civil Servants, the Honle Supreme Court after considering the case of Naeema Khan (PLD J1990 SC 612) and an unreported judgment of the Hon'ble Supreme Court titled as Federation of Pakistan v. Dr. Muhammad Shafique concluded that the employees of PIMS are Civil Servants. Learned counsel for the respondents have submitted that once it is established that the petitioner is a civil servant and the matter relates to the terms and conditions of the service the jurisdiction of the High Court is barred.
10. ' I have given due consideration to the valuable arguments on both sides.
11. ' The petitioner is a Civil servant. He is aggrieved by the promotion, appointment and posting of respondent No,4 in BPS.20 as Professor and of the Department and his own posting or transferring as O.S.D. Thus, I am clear in my mind that this Court has got no jurisdiction in view of the bar contained under Article 212 of Constitution. The petition is, therefore, dismissed in limine.