PLJ 2009
Present:
Mehta Kailash Nath Kohli and Ahmed Khan Lashari, JJ.
Dr. Hafiz
MUHAMMAD RAFIQUE and others--Petitioners
versus
GOVERNMENT
OF BALOCHISTAN through its Chief
Secretary
Quetta and others--Respondents
C.P. No. 565
of 2003 and C.P. No. 495 of 2007, decided on 13.10.2008.
Constitution
of
----Art.
199--Constitutional petition--Implementation of service rules applicable in
Health Department--Different cadres of members working in Health
Department--Senior most doctors having service of couple of decades were
working in subordination of junior doctors--Validity--Rules were flagrantly
violated and various doctors who were eligible to be posted and promoted
according to their seniority have been deprived of their lawful rights--Held:
It is duty of Courts that when not only fundamental rights are violated there
is structural collapse the Courts should exercise the jurisdiction.
[Pp. 45 & 46] A & E
Constitution
of
----Arts. 27
& 199--Balochistan Civil Servants Act, 1974, Scope--Fundamental
rights--Writs of mandamus and prohibition--Senior most doctors having service
of couple of decades were working in subordination of junior
doctors--Constitutional petition--Jurisdiction of High Court--No person
otherwise qualified for appointment in service of Pakistan shall be
discriminated against in respect of any such appointment, while Art. 4 provides
equal treatment--Superior Courts have jurisdiction to direct enforcement of
fundamental rights by issuing writs of mandamus and prohibition. [Pp. 45 & 46] B, C & D
H. Shakil
Ahmed, Advocate for Petitioner in both petitions.
Syed Ayaz
Zahoor and Mr. Muhammad Mohsin Javed, Advocates for Respondents (in C.P. No.
565 of 2003).
Mr. Naeem
Akhtar, Advocate for Respondents (in CP No. 495 of 2007).
Date of
hearing: 30.9.2009.
Judgment
Mehta
Kailash Nath Kohli, J.--This petition has been directed for implementation of
various Service Rules applicable to the different cadres of members working in
the Health Department. Both petitions Bearing C.P. No. 495/2007 and CP No.
565/2003 are commonly disposed of through this judgment.
Facts of the
petition are that the petitioners are serving in Health Department, Government
of Balochistan in different capacities, and are governed by Balochistan Civil
Servants Act, 1974. Initially Service Rules pursuant to Section 25 of the
Balochistan Civil Servants Act, were framed in the year 1984 having been
promulgated on 13th December, 1984, (these Rules governed both cadres of
service i.e. general cadre and specialist teaching cadre). It is stated in the
petition that in the year 1995 separate Service Rules were promulgated for
specialist cadre applicable to the members having requisite qualification as
provided by the appendix to Service Rules of the year 1995 applicable to
employees of B-18 and above in the said Rules. It is further stated that
several amendments were brought in the year 1997 in the said Rules. It is also
case of the petitioners that in year 2001. Federal Government had implemented
National Health Policy of 2001 whereby it was suggested to introduce 4-Tiar
System to improve the working and efficiency of the Health Department. The
Government of Balochistan vide Notification dated 4th June, 2001 adopted 4-Tiar
System in the ratio 1:15:34:50% for upward elevation of the doctors of general
cadre. By means of another Notification dated 12th June, 2001, the Government
of Balochistan had fixed quota of 761 posts in B-18, B-19 and B-20, the
approval of said posts was also made relating to said 4-Tiar System. It is
further stated that the Government had issued/ re-designated the posts of
Health Management by virtue of Notification dated 26th June, 2001 and also
issued Notification whereby the Rules were framed for the Health Management
cadre on 28th August, 2001. In the said Management cadre Rule 15 provided
option to the members of general cadre for opting the Health Management cadre,
however, the members having attained age of 55 years or above were exempted
from requisite qualification. It has been stated that the Government of
Balochistan had also adopted a policy for contract appointment as well as
(Appointment, Promotion and Transfer) Rules 1979, were applicable to the
official respondents. In violation of above mentioned Rules and the decisions
of the Cabinet various people including private respondents have been posted to
Management cadre who belong either to general cadre or specialists teaching
cadre and the juniors have been posted to higher grade, while the employees of
higher grade are working in subordination of junior scale officers. Reference
to some of the posting and transfers were mentioned in the body of the petition
which were not denied by respondents, are reproduced herein below:--
a) Most
Junior Officers of Grade-19 posted on Senior most posts of Grade-20
S.No. Name and
1. Dr. Ellahi Bakhsh, Medical
Chief Medical Officer. Superintendent BMC
Hospital.
2. Dr. Changaiz Gichki, Medical
Chief Medical Officer. Superintendent
b) Most
Junior Officers of Grade-19 working on Senior most posts of Grade-19
S.No. Name and Designation. Place of posting
1. Dr. Yousaf Bazenjo, Chief Women Health
Medical Officer. Project
2. Dr. Dad Muhammad, Chief Director H.R.D.
Medical Officer.
3. Dr. Nawaz Kebzai, E.D.O.H. Pishin.
Chief Medical Officer.
4. Dr. Rahim Sherani,
Chief Medical Officer. E.D.O.H. Zhob.
5. Dr. Ayub, Chief Medical Officer. E.D.O.H. Ziarat.
c) Most
Junior Doctors of Grade-17/18 working on Senior most posts of Grade-19
S.NO. Name and Designation. Place of posting
1. Dr. Shakoor Alam (BPS-17). Provincial
Coordinator
Malaria Control
Programme
2. Dr. Nasir Khan, SMO (BPS-18) Provincial
Coordinator Aids
Control Programme
3. Dr. Bashir Achakzai, SMO (BPS-18) Provincial
Coordinator T.B.
Control Programme.
4. Dr. Aziz Lehri, SMO (BPS-18) E.D.O.H. Quetta
5. Dr. Shoib Magsi, SMO (BPS-18) E.D.O.H. Kharan
6. Dr. Anwar Kharani, SMO (BPS-18) E.D.O.H. Barkhan
7. Dr. Ashiq Magsi, SMO (BPS-18) E.D.O.H. Jhal Magsi.
8. Dr. Abdul Qadir Mengal, SMO (BPS-18). E.D.O.H. Nasirabad
It was
further pointed out that the Department has failed to maintain proper seniority
list and also failed to abide by the provisions of Civil Servants Act 1974
which provided that the promotion to the post of selection grade should be made
on the basis of Seniority-cum-merit'. It has been further stated that the
transfers and posting are made at the will of the officers holding political
influence/authority and the fundamental rights as contained in Article 4, 5, 25
and 27 of the Constitution of Islamic Republic of Pakistan, 1973 are being
violated. The following prayer was made:--
(a) "That the official respondents are under
obligation to follow and implement the departmental service rules and policy of
the government regarding tenure, posting, transfer and other related matters
and failure to do so, is unconstitutional, mala fide, discriminatory and of no
legal effect.
(b) That the private respondents cannot hold the
post in higher grade in the presence of persons available in the department and
the orders issued by the Government being nullity in the eye of law are liable
to be declared as of no legal effect.
(c) That the official respondents be directed to
implement the rules and the policies and all appointments, posting and
transfers be directed to be done in accordance with law.
(d) Any other order as may be deemed fit and
appropriate in the circumstances of the case may also be awarded in the
interest of justice."
The petition
was admitted and notices were issued to the respondents. Respondent No. 10 has
filed his counter affidavit and has stated that the Court has no jurisdiction
to adjudicate upon the matter reference to various sections and rules have been
made that the competent authority has got jurisdiction to promote and depute
according to their will and choice. Secretary, Government of Balochistan had
filed his comments and had admitted that 4-Tiar System was introduced pursuant
to policy of 2001 and consequently about 1055 posts were created in B-18 to
B-20, and further admitted that rules for special cadre have also been
promulgated with certain amendments. The Government of Balochistan was given
ample time on different dates of hearing and the Secretary to the Government of
Balochistan was required for regularizing and channelizing service cadres
according to their own rules. On the last date of hearing, the Secretary,
Health Department appeared before the Court and stated that he had sent the
summaries for correction of irregularities relating to appointment, promotions
and posting, of senior doctors to their relevant posts, according to cadre
& merit, however, stated that he has no authority under the amended
notification issued on 14th December 2002 to pass any order of transfer,
posting, promotion and only the Minister concerned is competent authority to
transfer employees of B-l to B-17, while appointment, transfer and posting of
employees of B-18 and above could be made by the Chief Minister. It was further
pointed out that he had submitted detailed summary whereby he had requested
that transfers, posting and promotions of various doctors, be made according to
seniority list. He had admitted that the employees, who are senior in higher
grade are working in subordination to junior doctors in violation of the rules.
He had also filed detailed list of the doctors who were senior most employees
of the department, have been ignored.
Mr. H.Shakil
Ahmed, Advocate appeared on behalf of the petitioners and stated that the
petitioners being senior most doctors are entitled to be posted according to
their option given in the year 1995, when they had opted for management cadre.
It was further stated that in violation of fundamental rights guaranteed by
Constitution of Islamic Republic of Pakistan, 1973, they are being treated
differently and junior doctors have been posted and are being promoted to
higher grade superseding genuine legal rights of the petitioners.
On the other
hand Mr. Aminuddin Bazai appearing on behalf of Government and in view of the
statement given by the Secretary, health Department was not able to defend the
action of the official respondents, however, Wazirzada Fazalur Rehman, Counsel
for the Respondent No. 10 as well as Mr. Naeem Akhtar, Advocate have stated
that the remedy by way of service appeal is available, as such this Court has
no jurisdiction.
We have
considered the arguments advanced by the counsel for the parties and perused
the record. On examination of the record we were shocked to know that the
senior most doctors having service of couple of decades are working in the
subordination of junior doctors. Section 9 of the Civil Servants Act clearly
provide the criteria of promotion to be made according to (seniority-cum-merit)
in relation to selection posts. The Government functionaries have failed to
demonstrate before us that the petitioners were not senior to that of
respondents or they were meritless to be appointed to the specific posts on
their cases were considered. Moreover, the Government has framed rules for
general management and special cadres they had obtained options for joining the
general and management cadre as well as special cadres. The posts have also
been specified by the Government as admitted by the Department after applying
4-Tiar System pursuant to Health Policy of 2001. The record further reflects
that the rules were flagrantly violated and various doctors who were eligible
to be posted and promoted according to their seniority have been deprived of
their lawful rights. Article 27 of the Constitution of Islamic Republic of
Pakistan occurs in the chapter of Fundamental Rights provides no person
otherwise qualified for appointment in the service of Pakistan shall be
discriminated against in respect of any such appointment, while Article 4
provides equal treatment. It is the duty of Courts that when not only
fundamental rights are violated there is structural collapse, the Courts should
exercise the jurisdiction. The Courts have already come to rescue where welfare
of society is involved. Reference is made to Karachi Building Control
Authority Vs. Saleem Akhtar and
others (1993 SCMR 1451) and M/s Ellahi Cotton Mills Ltd: & others Vs.
Federation of Pakistan through Secretary M/s Finance Islamabad and 6 others
(PLD 1997 SC 582) . So far as the question raised by the private counsel that
this Court has no jurisdiction to adjudicate upon the matter; suffice to
observe that the Superior Courts have jurisdiction to direct enforcement of
fundamental rights by issuing writs of mandamus and prohibition. In the case in
hand we are of the opinion that the department has failed to abide by the
provisions of law as well as the rules framed thereunder from time to time also
having failed to promulgate the seniority list. The junior doctors have been
assigned higher posts while senior doctors have been made subordinate to them.
Moreover; the cadres have been changed without considering and following the
law and Rules framed thereunder. The superior Courts have always disapproved
use of political influence while posting, transfers and promotions are made.
Thus the official respondents are directed to issue revised seniority list and
implement the provisions of Civil Servants Act and the rules framed thereunder
having been amended from time to time. The posts are to be filled strictly
according to the cadre to which they belong on the basis of principle contain
in Section 9 of the Civil Servants Act without any discrimination following the
provisions of law. Thus, for forgoing reasons we allow this petition with
direction to the official respondents to implement the provisions of law as
well as rules framed thereunder and to appoint, post and promote the doctors in
their own cadres i.e. (i) General cadre (ii) Specialist teaching cadre and
(iii) Health management cadre within period of 30 days and communicate the
result to Registrar of this Court for our perusal in Chamber. The petition is
disposed of in the above terms.
(Sh.A.S.) Petition disposed of.