JUDGMENT TANV1R BASHIR ANSARI, J.-- The facts giving rise to this writ petition are that the petitioner was employed as Senior Registrar (Medicine) from October, 1979 to 31st of January, 1981 in Ganga Ram Hospital, Lahore. During her tenure of duty at the Ganga Ram Hospital, it was taken over by the Government of Punjab in consequence of which she was treated as an employee of Punjab Government.
2. Through notification dated 19.11.1992 the Services of the petitioner were borrowed by the Federal Government and she was posted in Pakistan Institute of Medical Sciences (PIMS) Islamabad, on deputation in grade 18. According to the petitioner she was permanently absorbed in PIMS Islamabad in Grade 19 as Physician vide notification dated 24.11.1994.
3. One Dr. Jamal Zafar Intervenor in this Writ Petition was already in service of PIMS when the petitioner joined the Institute in 1992. Dr. Jamal Zafar who claimed to be the senior most Associate Physician in Grade 18 General Medicine was aggrieved of the notification dated 24.11.1994 whereby the petitioner was appointed in Grade. 19 in preference to Dr. Jamal Zafar.
4. An appeal bearing No. 165(R)/1996 was filed by Dr. Jamal Zafar before Federal Service Tribunal Islamabad. The petitioner was arrayed as respondent No. 2 therein. During the course of said appeal. Hafiz S.A. Rehman's, Advocate appearing for the appellant Dr. Jamal Zafar submitted that there were vacancies out of which two have been filed up and one is still lying vacant for which the appellant (Dr. Jamal Zafar) was eligible against the promotion quota. This position was confirmed by the learned counsel appearing for P.I.M.S. The learned counsel for Dr. Jamal Zafar felt satisfied if the case of the appellant is considered for promotion to the 3rd vacant post in Grade 19. The service appeal was disposed of by the Federal Service Tribunal, Islamabad in the above terms on 23.6.1996.
5. No further appeal was filed against the said order of Federal Service Tribunal. According to the petitioner, the Notification No. P/007-DA/Phy/IH, dated 24.11.1994 permanently absorbing the petitioner in Grade 19 was upheld and approved by necessary implication.
6. To continue the chronology of events, the Cabinet Secretariat Establishment Division through a notification dated 25.9.1997, describing the petitioner as Senior Registrar BS. 18 Health Department Government of Punjab directed her to be repatriated to Health Department Government of Punjab.
This led the petitioner to file W.P. No. 2153/1997 before this Court praying for an order that this notification of 25.9.1997 be declared to be illegal and of no legal effect. The said writ petition was dismissed in limine vide order dated 30.10.1997 with the observation that the petition related to the grievance of a civil servant in respect of her terms and conditions of service and was thus not maintainable in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
7. Aggrieved of the said order, the petitioner preferred I. C.A. No. 79/1997 which was allowed vide judgment dated 8.11.1999 passed by a learned Division Bench of this Court. While allowing the I.C.A., it was held that the question agitated in the writ petition was as to whether the petitioner was an employe of the Federal Government or the Provincial Government and that it did not pertain to the terms and conditions of service of a civil servant, It was held that order of repatriation of the petitioner as contained in the notification dated 25.9.1997 was passed without lawful authority and was of no legal effect and that the petitioner shall be deemed to be a permanent employee of Federal Government, It was however, observed that the matter relating to the entitlement of the appellant to the grant of Grade 19 could be examined without disturbing her status as permanent employee of the Federal Government.
8. It appears that respondent No. 1, feeling free to decide the question of the grade of the petitioner in view of the above-stated observation of the Division Bench of this Court caused to be issued notification dated 3.5.2001 whereby the petitioner was absorbed in BS. 1.8 against the vacant post in PIMS with her right of seniority i.e.f. 24.11.1994 in the above cadre, It was in pursuance of this that notification dated 25.5.2001 was issued by respondent No. 2 whereby it was decided to absorb the petitioner as Associate Physician (General Medicine BS. 18) against a vacant post.
9. Qazi Muhammad Jamil, Advocate in support of the writ petition has challenged both the above notifications dated 3.5.2001 and 25.5.2001 to be illegal and without lawful authority mainly on the following grounds:-
(a) that F.S.T, has already decided the issue while deciding the Service Appeal No. 165(R) 1996. The precise contention is that Dr. Jamal Zafar intervenor, the Executive Director, P.I.M.S, and the petitioner were parties to the appeal where this specific question of the award of Grade 19 to the petitioner was agitated. The Intervenor as well as Executive Director P.I.M.S, were satisfied with the position that Dr. Jamal Zafar shall be considered for promotion to the 3rd vacant post in Grade 19. It is contended that through this conduct the status of the petitioner being in Grade 19 had been established and that respondent had no locus Poenitentiae to recall the same arbitrarily.
(b) that the notification dated 24.11.1994 had created a vested right in favour of the petitioner to grade 19 which could not be taken away by a subsequent notification.
(c) that the decision to appoint her in Grade 18 vide the impugned notification amounted to her reduction in rank which is a major penalty under E&D Rules, 1973 and cannot be imposed arbitrarily.
(d) that the impugned notifications were hit by the principle of audi alteram parten as no notice or opportunity of being heard was given to the petitioner before the said notifications were issued.
(e) that there is no bar to the jurisdiction of the High Court under Article 212 of the Constitution of Islamic Republic of Pakistan as the question involves the fitness of the petitioner to hold the post of Associate Physician in Grade 19 and that Service Tribunal does not have jurisdiction under Section 4(b) of the Service Tribunal Act, 1973. The bar, in any event is not absolute.
(f) that in any event the impugned notifications could not operate retrospectively.
10. On the other hand, Hafiz S.A. Rehman's, Advocate for respondents and Choudhary Naseer Ahmad, Advocate for Intervenor have contended that Writ Petition is not competent, in view of the bar as contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973. It is contended that the petitioner has also not availed of the remedy of the appeal to the appellate authority as provided under Rules. On merits, it was urged that the petitioner was initially posted on deputation against the post of Associate Clinical Psychologist BS. 18 i.e.f. 1.2.1992. In pursuance of the directive of the then Prime Minister Secretariat dated 22.11.1994 the petitioner was absorbed by the P.I.M.S, against the post of Physician (General Medicines) BS.
19. According to the respondents that award of Grade 19 was without observing Rules and Regulations. Reference was also made to the Order of this Court dated 8.11.1999 passed in I.C.A. No. 79/1997, wherein, the respondents were permitted to reconsider the entitlement of the petitioner to the grant of Grade 19. It was contended that in pursuance of the said observation, the case of the petitioner was reconsidered and as the notification dated 24.11.1994 was found to be not in accordance with law, the error was rectified by issuing the notifications dated 3.5.2001 which are unexceptionable.
11. Arguments have been heard and record perused.
12. In order to appreciate the respective contentions raised by the parties, it is necessary to appreciate the necessary facts of the case.
13. The petitioner was posted on deputation in the Pakistan Institute of Medical Sciences, Islamabad i.e.f. 1.2.1992 against the post of Associate Clinical Psychologist BS-18 i.e.f. 1.2.1992.
14. Through notification dated 24.11.1994 the petitioner was permanently absorbed in P.I.M.S, on the post of Physician (General Medicines) BS. 19 with immediate effect. The said notification is reproduced as under:- Dated 24.11.1994.
Notification.
"No.PF.007-D/A, Phy/IH consequent upon Prime Minister's directive vide Principal Secretary to Prime Minister Letter No. 8824/PSPM/94, dated 22.11.1994 Dr. Nighat Bilal presently working on deputation basis in BPS. 18 against the post of Association Clinical Psychologist is absorbed in PIMS on the post of Physician (General Medicine) BPS-19 with immediate effect.
(Dr. Asif Mehmood)
Deputy Executive Director.
15. Dr. Jamal Zafar, Intervenor herein preferred Service Appeal No. 165-R/96 before Federal Service Tribunal challenging the grant of BS. 19 to the petitioner. In the said appeal, the Executive Director P.I.M.S., Islamabad as well as Dr. Nighat Bilal petitioner were arrayed as a party, In the said appeal Dr. Jamal Zafar claimed that he was entitled to be promoted to the post of Physician Grade 19 instead of the - present petitioner as he claimed to be the Senior most Associate Physician in Grade 18 General Medicine. The said appeal was disposed of by the Federal Service Tribunal vide order dated 23.6.1996. The operative part of the order of the Federal Service Tribunal is as under:- "Comments have been filed by respondents and we have heard the learned counsel for the parties at length. At the outset, Mr. Hafiz. S.A. Rehman's, the learned counsel for the appellant submitted that there are three vacancies out of which two have been filled up and one is still lying vacant, for which the appellant is eligible against promotion quota and his case deserves consideration. This position has been confirmed by the respondents and Mr. Mian Ishtiaq Hussan the learned Advocate appearing on behalf of respondent No. 1, made a statement that the third post for promotion quota is still vacant, and such a statement has been given in writing by the joint Executive Director, PIMS. In this situation, Mr. Hafiz S.A. Rehman's submitted that directions be issued to the respondent No. 1 to consider the case of the appellant against promotion quota. Since one post of Physician (BS. 19) is lying vacant and the appellant is eligible against promotion quota, we direct that his case be considered for promotion according to law, and the appeal stands disposed of in the above terms."
16. The said order of the F.S.T, was not challenged any further. The notification dated 24.11.1994, granting BS. 19 to the petitioner remained intact and was continuously acted upon.
17. On 25.9.1997 the petitioner was directed to be repatriated from PIMS to the Health Department Government of Punjab, which was described as her parent department. The petitioner feeling aggrieved of the said order of repatriation filed W.P. No. 2153/1997 which was dismissed in limine primarily on the ground of the bar contained in Article 212 of the Constitution. The I.C.A. No. 79 of 1997 filed by the petitioner was accepted by a Division Bench of this Court on 8.11.1999. It was held that the dispute which related to the question of repatriation of the petitioner from the Federal Government to the Provincial Government did not constitute terms and conditions of Service and that Article 212 of the Constitution of Islamic Republic of Pakistan was no bar to the exercise of writ jurisdiction by this Court, It was found that the petitioner had been primarily absorbed in the P.I.M.S, and that her lien with the Provincial Government had also been terminated. As regards the grade of the petitioner, the following observation was made:- " However, the matter relating to the entitlement of the appellant to the grant of Grade 19 could be examined without disturbing her status as permanent employee of the Federal Government."
18. Even after 8.11.1999 when the aforesaid observation was made in I.C.A., the petitioner continued to perform her duties in Grade 19 without let or hindrance.
19. It was on the 3rd of May, 2001 that the Government of Pakistan, Ministry of Health issued the following notification:- "GOVERNMENT OF PAKISTAN MINISTRY OF HEALTH.
Islamabad, the 3rd May, 2001.
NOTIFICATION No.F.25-70/91-Estt.
1. In pursuance of the decision of Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi dated 8.11.1999, Dr. Nighat Bilal, Senior Registrar (BS-18) Health Department, Government of Punjab is absorbed as Associate Physician (General Medicine) BS. 18 against a vacant post in Pakistan Institute of Medical Sciences (PIMS) Islamabad with her right of Seniority i.e.f. 24.11.1994 in the above cadre. This supersedes all previous notifications and orders on the subject.
(S.A. Zafar)
Deputy Secretary (Estt.)."
20. This was followed by Notification No. P.F. 07-8-R- A, Phy (ADMN) P.I.M.S., dated 25.5.2001 which purported to give effect to the notification of 3.5.2001 referred to above. The first important question that would fall for determination shall be the effect of order passed by the Federal Service Tribunal on 23.6.1996, the excerpt of which has reproduced hereinbefore, It is important to note that the principal grievance agitated by Dr. Jamal Zafar before F.S.T, was the grant of Grade-19 to the petitioner. It was candidly acknowledged by the Joint Executive Director P.I.M.S, as well as the learned counsel appearing for the appellant (Intervenor herein) that two posts of Grade 19 stood filled by them and as one such post was still lying vacant, the appellant Dr. Jamal Zafar would be considered for promotion to the said vacant post. The status of the petitioner having been appointed to Grade-19 was thus acknowledged and confirmed by all concerned. It is not on the record whether the case of Dr. Jamal Zafar was considered for promotion to the aforesaid 3rd vacant post or not, but that shall be beyond the purview of the instant writ petition. What is deducible from the above is that status of the petitioner in Grade 19 was duly accepted, acknowledged and confirmed by the parties. The order of F.S.T, was not challenged for the obvious reason that it was based upon the consent of the parties.
21. It is also worth mentioning that from 24.11.1994 uptill 3.5.2001, the status of the petitioner in Grade.
19 has been recognized and continuously acted upon. Even after the judgment dated 8.M.I999 passed in I.C.A. No. 79/1997 no action was taken until 3.5.2001 when the impugned notification was issued. The respondents have also not placed on the record any proceedings which justifiably led to the passing of the impugned notification dated 3.5.200U For almost one, and an half years after the judgment in ICA the petitioner performed her function in Grade 19.
22. The aforesaid conduct of the respondents shall preclude them from taking any receding steps to the detriment of the petitioner oh the principle of locus Poenitentiae. As observed herein before, the notification dated 24.11.1994 had taken legal effect in pursuance of which certain rights have been created in favour of the petitioner and as such, this notification could neither be withdrawn or rescinded to the detriment of those rights.
23. This would take us to the next contention raised on behalf of the learned counsel for the petitioner that impugned notifications have been issued in violation of principle of natural justice inasmuch as the petitioner has not been given an opportunity of being heard before passing such orders. The respondents have not placed anything on the record whereby it could be shown that the petitioner was ever afforded any opportunity of being heard before the issuance of the impugned notifications of 3.5.2001 or 25.5.2001. Principles of natural justice shall be read as part and parcel of all the statutes, judicial, ^a asudidal or administrative proceedings unless the applicability of the said principles are specifically excluded. In the instant case the principle of audi alteram parten has not been followed, thus rendering the impugned notification hull and void and ineffective upon the rights of the petitioners.
24. It has been urged on behalf of the respondents that in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, the writ was not competent. It was contended that matter related to the terms and conditions of a civil servant and that it was only the appropriate Service. Tribunal which had the exclusive jurisdiction.
25. This contention overlooks two salient features of this case. Firstly, it is admitted by both the parties and is also established on the record that this very question of grant of Grade 19 to the petitioner was .Taken before the F.S.T, in Appeal No. 165(R)/1996 by Dr. Jamal Zafar himself, wherein, apart from the petitioner the Executive Director P.I.M.S, was also a party. Both intervenor and the respondents had made specific contentions before the Tribunal that there was a third vacant post in Grade-19 which was available and against which the case of promotion of the intervenor shall be considered. What follows from this as a necessary corollary, is $hat award of Grade. 19 to the petitioner was specifically acknowledged by the respondents. Not only this, the appeal of the Intervenor was also disposed of by the Service Tribunal and. The manner of the disposal of the appeal of the intervenor, leaves no manner of doubt that a right had come to vest in the petitioner to hold a post in Grade 19. It is ideal for the respondents to urge that the remedy for the petitioner in the circumstances of the case lay before the Service Tribunal and not before this Court.
26. Secondly, the act of the respondents in issuing the impugned notifications whereby the petitioner has been posted as Associate Physician (General Medicine) BS. 18 involves the question of fitness of the petitioner to hold a particular post and the jurisdiction of the Service Tribunal has been excluded under Section 4(b) of the Service Tribunal Act, 1973.
27. In view of the above, the .Objection to the jurisdiction of this Court is over-ruled.
28. The upshot of the above discussion, is that Writ Petition is allowed and the notifications dated 3.5.2001 and 25.5.2001 challenged in the Writ Petition are declared to have been passed without lawful authority and of no legal effect. The petitioner shall be deemed to be a permanent employee of the Federal Government in Grade 19 within the meaning of the notification dated 24.11,1994.