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Appeal No. 366(R) of 1985, decided on 13th August, 1987.

‑‑‑S.4‑‑Secretariat Instructions, 1971, Appendix E, para. 55‑‑Hospital Complex established and owned by Government, proposed to be given status of autonomous body by Health Division's Resolution‑‑Employees of such Complex whether ceased to be civil servants, outside the pale of Service Tribunal‑‑Word "Resolution", meaning and scope‑‑Word "resolution", as per para. 55 of Appendix E of Secretariat Instructions, is a form of communication used for making public, Government decision on important matters of policy, appointments of Committees or commissions of enquiry and of results of review of important reports of such bodies‑‑By resolution of Health Ministry itself a medical Complex established and owned by Government, held, could not be established as an autonomous body‑‑Such resolution could not make an institution established and owned by Government a body corporate/ juristic person distinct or independent from Government control and could not deprive of its employees of their status as civil servants‑‑Employees of medical complex in spite of resolution of Health Division would be deemed to be holding civil posts and were thus civil servants‑‑Service Tribunal would be competent to hear appeal of such civil servants.

‑‑‑S.4‑‑Civil servant's claim to higher post based on promotion‑ Jurisdiction of Service Tribunal not barred‑‑Where appeal of civil servant related to his right of promotion and not related to fitness of respondent to post claimed, such appeal, held, was not barred under S.4(1)(b) of Service Tribunals Act, 1973.

‑‑‑S.9‑‑Service Tribunals Act (LXX of 1973), S.4‑‑Establishment Division's O.M. No.54/13/51‑MEl, dated 10‑3‑1952‑‑Promotion to higher post‑‑Requirements‑‑Civil servant, held, could claim promotion to post only, if same was reserved for departmental promotion and such civil servant was eligible for promotion under the rules‑‑Establishment Division O.M. was issued to regulate recruitment of Superintendents to Secretariat Division only, and would be of no avail to civil servants who were claiming promotion to a post outside the Secretariat Division‑‑Civil servant's claim to promotion being unsupportable could not be sustained.

‑‑‑S.4‑‑Promotion of civil servant‑‑ Averment in written statement by Government Department that appellant's claim to promotion would be considered in due course‑‑Service Tribunal hoped that employee's rights be safeguarded and promotion to higher post would be made on regular basis as per departmental promotion quota‑‑Appeal of Civil servant being devoid of merit was dismissed in circumstances.

Dr. G.S. Khan, Bar‑at‑Law for Appellant.

Sardar Muhammad Amir Akbar Khan, Counsel for the Respondent‑Department.

Date of hearing: 12th April, 1987.

‑‑It is the case of the appellant that after having served the Pakistan Army Service Corps from 3‑9‑1948 to 20‑4‑1965 in the ministerial cadre, he joined erstwhile Central Government Hospital, Rawalpindi, as a Lower Division Clerk with effect from 24‑8‑1965 where he, thereafter, was promoted as Upper Division Clerk with effect from 18‑1‑1966 and as Office Superintendent in Grade‑9 with effect from 2‑2‑1977 and has since been so employed. Under a Directive of the President of Pakistan dated 6‑7‑1980 the said Central Government Hospital was transferred to the Punjab Provincial Government and its entire members of the staff who were the Federal Government employees, except a few who opted /volunteered to be transferred to the Province, were earmarked for placement on the strength of the then proposed Islamabad Hospital Complex. Tae appellant first opted for serving in the Punjab Provincial Health Department where he was duly promoted to BPS‑15. Later on, however, he withdrew his option with effect from 1‑10‑1982 but continued to serve in Rawalpindi General Hospital alongwith the other staff as Federal Government employee till 31‑10‑1984. He was again posted to Islamabad Hospital Complex with effect from 1‑11‑1984 vide Office Order, dated 17‑10‑1984. In the meantime the Respondent Ministry advertised, inter alia, a post of Superintendent (Admn.), in BPS‑15 to be filled in by direct recruitment. Aggrieved thereby the appellant submitted a departmental appeal praying for withdrawal of the post from the direct recruitment and consideration of the appellant therefor. During the pendency of the said departmental appeal, however, Respondent No.4 was appointed to the post and it had been communicated to the appellant vide respondent's letter, dated 27‑10‑1985 that his appeal was rejected, hence, this appeal.

2. It was mainly emphasized by the learned counsel for the appellant that the said post of the Superintendent (Admn), according to the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, read with the Establishment Division's O.M., dated 10‑3‑1952, is reserved for promotion only and cannot be filled in by direct recruitment but by the impugned action of the appointment of Respondent No.4 thereon the chances/ prospects of promotion of the appellant have been arbitrarily impaired; and that the appellant has a vested right to be considered for promotion to the said post and also has a vested right to challenge the illegal appointment of Respondent No.4, who although was neither qualified nor had the basic requisite practical experience, yet was illegally appointed in violation and disregard of the criteria laid down in the impugned advertisement. It was further contended that the impugned appointment of Respondent No.4 having been made without framing of rules in consultation with the Establishment Division/ Federal Public Service Commission is bad in law.

3. A preliminary objection about the competence of the present appeal was raised on behalf of the respondents. It was contended that the Islamabad Hospital Complex has since been established as an autonomous institution, by the name of Pakistan Institute of Medical Sciences (hereinafter referred to as the Institute), and, therefore, its employees, being employees of an autonomous body, are not civil servants. In support of this, Health Division's Resolution dated the 16th of October, 1986, was produced the preamble of which shows that it had been considered expedient to give the Institute autonomous character to facilitate its efficient functioning. We are afraid, the contention is misconceived and devoid of any legal force. It is to be seen that according to paragraph 55 of Appendix‑E to the Secretariat Instructions, 1971, 'Resolution' is a form of communication that is used for making public the Government decision on important matters of policy, appointments of Committees or Commissions of enquiry and of the results of the review of important reports of such bodies. Thus, the Resolution relied upon by the respondent may be good in so far as it announced the Government decision to establish the Institute as an autonomous body. Quite obviously, however, by a Resolution itself the Institute cannot be established as an autonomous body and for that something more is yet to be done. At best by a Resolution the Government can constitute a committee/body to supervise and oversee the functioning of the Institute and in the discharge of its such functions it may be authorised to exercise some administrative and financial powers but that will not make it a body corporate/ juristic person distinct from or independent of the Government control and cannot deprive of its employees of their status as Civil Servants, simply because, it can be so done only by or under Law. The position being so clear, it is not possible to accept the Institute as a juristic person or an autonomous body.

4. It is an undisputed fact that the Islamabad Hospital Complex, or the Pakistan Institute of Medical Sciences as it is now known, has been established by the Government of Pakistan. It is an institution under the Health Division like so many other institutions. Its employees are, therefore, holding civil posts in connection with the affairs of the Federation and are thus Civil Servants within the meaning of the Civil Servants Act, 1973, notwithstanding anything to the contrary in the aforesaid Resolution. The preliminary objection of the Respondents is accordingly repelled.

5. On merits, it was stated by the Respondents that the erstwhile Central Government Hospital, Rawalpindi, was transferred to the Provincial Government and is now being run by the Government of Punjab by the name of Rawalpindi General Hospital. According to a Directive of the President of Pakistan, the control of the said Hospital was to be taken over by the Provincial Government in all respects except that salaries, allowances etc. of the then existing staff (except those who opted for. transfer to the province) was continued to be paid by the Federal Government, and the Provincial Government was to undertake gradual replacement of the said staff which was to be placed on the strength of Islamabad Hospital Complex when it starts functioning. The employees of the Central Government Hospital were accordingly asked to give their option. A number of them opted to serve the Provincial Government and their services were accordingly placed at the disposal of the Government of the Punjab. The remaining of them were accommodated for the time being, against supernumerary posts created in the Central Government Poly‑clinic Hospital, Islamabad, to enable them to receive their salaries and allowances. In 1985 when the question of starting Outdoor Patients Department of the Islamabad Hospital Complex was considered it was decided with the approval of the President of Pakistan that only those of the former Central Government Hospital Employees would be posted to Islamabad Hospital Complex who were found suitable to work there. For this purpose an exercise was undertaken in the Health Division and only those of them who were found fit were posted to the Islamabad Hospital Complex, while the rest of them continued on supernumerary posts in the Central Government Polyclinic Hospital. In the meantime, it was decided that the Institute shall function as an autonomous body and shall have its own rules and regulations, including the Recruitment Rules. Pending finalization of rules no regular appointment/ promotion is to be made but Medical and pare‑Medical Personnel essential for commissioning of the Complex have been and are being appointed on ad hoc, on contract, or on deputation basis. Efforts are, however, being taken to absorb the surplus staff of the former Central Government Hospital in other Medical Institutions under the Health Division of the Federal Government. If they are so absorbed, they will be considered for promotion to the higher posts in their respective institutions according to the Government policy with regard ; to the absorption of surplus staff and the recruitment rules of those institutions. Accordingly those of the surplus employees, including the appellant, who have been absorbed in the Islamabad Hospital Complex will be considered for promotion to the higher posts according to the rules. It was contended that a temporary post of Superintendent (Admn.) in BPS‑16 was created in Islamabad Hospital Complex to be filled by direct recruitment. All the candidates were interviewed and the Respondent No.4 having been found suitable, was selected and appointed while the appellant who also appeared for test/interview, was not found suitable for the post by the Departmental Selection Committee.

6. Basing on the factual position of the case narrated by him the learned counsel for the Respondent‑Department raised another preliminary objection that the present appeal being in substance against the decision of the departmental authority determining the fitness of the Respondent No.4 is barred by Article (b) of the proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973. It is, however, to be seen that the appellant basically seeks to challenge the manner of appointment inasmuch as he has claimed that the post should have been filled up by promotion and not by direct recruitment. In our view, therefore, the present appeal is not hit by Article (b) of the proviso to subsection (1) of section 4 of the Service Tribunals Act, 1973, and the preliminary objection is accordingly repelled.

7. Be that as it may, however, so far as the claim of the appellant for promotion to the aforesaid post of the Superintendent (Admn.) is concerned, it cannot be Held maintainable for more than one reason, Under section 9 of the Civil Servants Act a person claiming promotion has to be "eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade of the service or cadre to which he belongs." It, therefore, follows that the appellant could claim a promotion to the post only if it was reserved for departmental promotion and the appellant was eligible for such promotion under the rules. In support of his contention that the post was reserved or departmental promotion the appellant has mainly relied on the Establishment Division's O.M. No.54/13/51- ME1, dated 10‑3‑1952, which has been brought on record. Having perused the said O.M. we are of the view that it was issued to regulate the recruitment of Superintendents in the Secretariat Divisions only and, therefore, it is of no avail to the appellant who is claiming promotion to a post in an Institute outside the Secretariat Division. Not only the appellant has failed to show that the post was reserved for departmental promotion, the record shows otherwise. Undeniably, the post was created to be filled up by direct recruitment on ad hoc basis. The obvious conclusion would, therefore, be that the appellant's claim for promotion to the said post of the Superintendent is unsupportable and cannot be sustained.

8. Before we part we may, however, bring it on record that it was contended on behalf of the appellant that by making direct recruitments in the Institute prospects of promotion of the existing Government employees who had been absorbed in the Islamabad Hospital Complex, are being impaired. We are doing this only because the appellant has expressed an apprehension and not because what he apprehends has already taken place. It has been averred in the written statement filed on behalf of the Respondent‑Health Division, that such absorbed employees shall be considered for promotion to the higher posts in due course. There is no reason to disbelieve this assurance and we accordingly trust that the prospects of promotion of existing Government employees absorbed in the Institute, shall be adequately safeguarded and they shall be duly allowed their share as a departmental promotion quota in the appointments to be made on' regular basis.

9. For the foregoing reasons and with the above observations the appeal is dismissed with no order as to costs.

10. Parties to be informed accordingly.

A.A./383/Sr.F.

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