Dr. Ali Hussain vs Govt. Of Punjab etc.

Stereo. H C J D A 38

Judgment Sheet

IN THE LAHORE HIGH COURT,

BAHAWALPUR BENCH, BAHAWALPUR

Judicial Department

W. P. No. 1447 / 2021 / BWP

Dr. Ali Hussain, Ex-Assistant Professor

Versus

Government of the Punjab through its Chief Secretary, Civil Secretariat, Lahore and six others

JUDGMENT

Date of Hearing: 06.09.2021 Petitioner(s) By: Mr. Muhammad Farooq Warind, Advocate Respondent(s) Mr. Khurram Shahzad, Advocate By: Ch. Shahid Mehmood, AAG

ABID HUSSAIN CHATTHA, J: The brief facts of this case are that Respondent No. 3, Sheikh Zayed Medical College/ Hospital, Rahim Yar Khan (the “SZMC”) established under Section 3 of the Punjab Medical and Health Institutions Act, 2003 (IX of 2003) (the “Act”), is an autonomous medical institution as defined in Section 2(d) of the Act and declared as such by the Government of the Punjab (the “Government”) vide its Notification No. SO(AMI) General-8/2003(P) dated 10.12.2003. The administration and management of the affairs of the SZMC as an independent institution are vested in its Board of Management (the “Board”) constituted under Section 6 of the Act and the Government is the controlling and supervisory authority thereof. The Government or the Board is empowered to appoint persons in the service of the SZMC under the provisions of the Act and Rules framed under Section 18 of the Act, namely, the Punjab Medical and Health Institutions Rules,

2003 (the “Rules”). As per Rule 10 of the Rules, there are two categories of employees of the SZMC, first; the Government employees appointed by transfer or promotion and the second; the employees in service of the SZMC appointed either on contract or on ad hoc basis. As per Schedule-III of the Appointment and Conditions of Service Rules for the Employees of the Institutions under Rule 12 of the Rules, the appointment of employees of the SZMC are made either by the Government on recommendations of Special Selection Board in case of employees of BS-17 and above or by the Board on the recommendations of the Selection Committee in case of the posts of BS-16 and below. However, under Section 9 of the Act, the Government or the Board, as the case may be, have concurrent authority to fill up the vacancy temporarily on ad hoc basis for a period of six months or till the arrival of the new incumbent recommended by the Special Selection Board, constituted under Section 10 of the Act read with the Rules. The Board being a competent authority appointed the Petitioner as Assistant Professor (BPS-18) on ad hoc basis for six months w.e.f. 01.07.2019 to 30.12.2019 vide notification bearing Ref. No. 42516-22/SZMC/SZH dated 07.10.2019 and the Petitioner duly performed his functions / duties under the said appointment. However, the Petitioner has not been paid his emoluments / salaries for the period from September to December, 2019. Hence, the instant Petition.

2.Learned counsel for the Petitioner argued that the Petitioner is entitled to receive monthly salaries for the period he served as an ad hoc employee, because the salary is not a state bounty rather it is a right of the Petitioner who has duly performed his duties as envisaged under Section 16 of the Punjab Civil Servants Act, 1974. No performance of duty could be left without payment of adequate agreed compensation otherwise the same is hit by Article 11 of the Constitution of the Islamic Republic of Pakistan, 1973 (the “Constitution”) and the superior

Courts have labeled it as forced labour. Learned counsel further submitted that the Petitioner submitted an application for releasing of his outstanding salaries before Respondent No. 5 (The Principal, SZMC) who sent the same to Respondent No. 7 (the Director Finance, SZMC) with the direction to release the salaries to the Petitioner for the unpaid period vide endorsement No. 1686/PA/SZMC dated 13.10.2020. But despite lapse of reasonable time, he did not issue any direction for releasing of salaries to the Petitioner. Hence, the Petitioner sought a declaration regarding his entitlement to receive his outstanding salaries for the period from September to December, 2019. Reliance was placed on the cases titled, “Abdul Qadir v. District Education Officer (EE & M), District Rahim Yar Khan and other” (2001 PLC (C.S.) 1073), “Qazi Akhtar Ali v. Director of Agriculture (Economics and Marketing) Punjab Agriculture House, Lahore and another” (2000 PLC (C.S.) 784); “Mst. Margrate v. Executive District Officer Schools and Literacy Department, District Charsadda and 4 others” (2005 PLC (C.S.) 886); “Mst. Shamim Bano v. Province of Punjab through Chief Secretary, Education and 3 others” (1998 PLC (C.S.) 337); “Mst. Ghosia Naz v. Deputy Education Officer” (1997 PLC (C.S.) 666); “Iftikhar Ahmad and others v. E.D.O. (Health)” (2009 PLC (C.S.) 600); “Ghulam Umar Kazi v. General Manager and others” (2006 PLC (C.S.) 1143); “Mujeebur Rehman and 24 others v. Province of Sindh through Secretary Education, Education Department, Government of Sindh and 3 others” (2012 PLC (C.S.) 708); and “Muhammad Rafique v.

WAPDA” (1989 PLC (C.S.) 417).

3.Report and Parawise comments were filed on behalf of Respondents No. 3 to 7, whereby, it was admitted that SZMC is an autonomous medical institution, administration and management of which vest in the Board constituted under Section 6 of the Act subject to the direction of the Government issued from time to time. It was further submitted that the

Petitioner retired from Government service on attaining the age of superannuation and was appointed on ad hoc basis for a period from 01.07.2019 to 31.12.2019 with the approval of the Board. The Government formulated Re-Employment Policy vide Notification No. SOR-I-10-1/2003 dated 16.06.2003 (the “Re- Employment Policy”) under Section 13(1) of the Punjab Civil Servants Act, 1974 which stipulated that “A retired civil servant shall not be re-employed under the Government unless such re- employment is necessary in the public interest and is made, except where the appointing authority is the Governor, with the prior approval of the authority next above the appointing authority.” He relied upon the following guidelines of the Re- Employment Policy applicable to the retired Government servants:-

“Re-employment to be generally avoided:

i)Section 13(1) of the Punjab Civil Servants Act, 1974 provides that a retired person shall not be re- employed under the Government unless such re- employment is necessary in the public interest.

ii)No Department or authority shall re-employ or move a summary to the Chief Minister for re- employment of a retired Government servant without placing the case before the Provincial Re- employment Board/ Committee, as the case may be.

iii)Re-employment after the age of superannuation/retirement shall generally be discouraged and shall only be made in very exceptional circumstances, where;

a. Suitable officer to replace the retiring officer is not available;

b. The re-employment does not cause promotion blockade, even if re- employment is proposed against an ex- cadre post;

c. The retired officer is a highly competent person with distinction in his professional field;

d. Retention of the retiring officer for a specific period is in the public interest.

iv)Re-employment shall not be allowed to retired officers beyond the age of 63 years.

v)Re-employment shall not be allowed to persons who have been or may be, retired on

or after completion of 25 years service qualifying for pension.

vi)The period of re-employment shall not exceed three years.”

4.Learned counsel for Respondents No. 3 to 7 submitted that during the audit of the SZMC conducted by the office of the Auditor General Punjab, appointment of the Petitioner was observed as irregular, in compliance of which salaries of the Petitioner were withheld by the SZMC subject to the directions of Respondent No. 2 (the Secretary, Government of the Punjab, Specialized Healthcare and Medical Education Department). The matter was placed before the Board in its 58 th meeting held on 14.01.2020, which considered and disapproved the re-employment of the Petitioner and other civil servants after their retirement on attaining the age of superannuation and referred the case to Respondent No. 2 vide letter dated 20.03.2020 for further directions with respect to disbursement of their unpaid salaries which is still awaited to-date. Learned counsel further submitted that Respondents No. 3 to 7 are subservient to the directions of the Government and have fulfilled their duty towards the Petitioner by referring the matter to Respondent No. 2 who is the competent authority to decide the issue of unpaid salaries. He conceded that the Writ Petition on the subject is maintainable but the Petitioner should have voiced his grievance, if any, before Respondent No. 2 being competent authority in the matter. He relied upon the orders dated 03.03.2021 passed in W.Ps. No. 1647 and 1642 of 2021 / BWP, whereby, this Court had referred the identical matters to Respondent No. 2 for decision in accordance with law and pleaded that this Petition be also dealt with accordingly.

5.At this juncture, learned counsel for the Petitioner submitted that Respondent No. 2 has already passed orders in compliance with the above referred orders passed by this Court dated 03.03.2021, whereby, he has again directed Respondent No. 4 to place the case before the Board for payment of unpaid

salaries. Therefore, any further recourse towards Respondent No. 2 would be an exercise in futility. The order No. SO(AMI.1)5- 393/21 dated 14.06.2021 passed by Respondent No. 2 in compliance of the order of this Court dated 03.03.2021 in W. P. No. 1647 / 2021 was allowed to be placed on record, paragraph No. 7 whereof, reads as under:-

“NOW, THEREFORE, in view of the foregoing, after examination of the relevant law, facts and perusal of record relevant to this matter, I, Barrister Nabeel Ahmad Awan, Secretary, Government of the Punjab, Specialized Healthcare & Medical Education Department, do hereby direct that Principal, Sheikh Zayed Medical College / Hospital, R.Y. Khan shall place the case of the petitioner before the Board of Management of SZMC, R.Y. Khan for approval of payment of salaries w.e.f. 01.10.2019 to 09.10.2019 and 28.11.2019 to 31.12.2019 to the petitioner for the work done. If desired by the Board, Admin Wing of this department is directed to initiate disciplinary proceedings against the concerned Principal, for his illegal acts.”

6.Arguments heard, record perused.

7.It is admitted that the Petitioner worked as an ad hoc employee in the SZMC under the Re-Employment Policy and has not been paid his salaries for four months from September to December, 2019. From the perusal of Re-Employment Policy it reveals that it was the duty of the Board or the Government to comply with the same and not the employee / Petitioner. The Board or the Government must bear the brunt for any illegal or irregular appointment under the Re-Employment Policy. The Petitioner cannot be made to suffer with respect to the emoluments of service duly rendered by him. The act of the

Respondents regarding stoppage of salaries of the Petitioner for the services rendered by him amounted to forced labour and is violative of Article 11 of the Constitution which stipulates as under:-

“(1) Slavery is non-existent and forbidden and no law shall permit or facilitate its introduction into Pakistan in any form.

(2)All forms of forced labour and traffic in human beings are prohibited...”

Hence, the Petitioner was entitled to all the emoluments regarding his appointment as there was no provision or concept for service without salary under the law. The Petitioner had been made to work without payment of emoluments which is against the law. Denial of his valuable right of remuneration is also against the dictate of Article 3 of the Constitution which casts a duty upon the State to “ensure the elimination of all forms of exploitation and gradual fulfilment of the fundamental principle, from each according to his ability to each according to his work.”

8.Respondent No. 2 through the order dated 14.06.2021 passed in the case of similarly placed persons recognized the right to unpaid salaries but fell short of resolving the matter. Rather, it tantamounts to make a mockery of such persons. The Board says that the Government is the competent authority, whereas, Respondent No. 2 has again referred the matter to the Board for approval. Therefore, any further recourse to Respondent No. 2 would be illusionary and an exercise in futility. The Re-Employment Policy indicates that there is not a complete embargo of such re-employment which could be made in public interest. The adherence to Re-Employment Policy was the duty of the Government or the Board. The sole responsibility regarding objection raised by the Director General Audit, Punjab, Lahore that the appointment of the Petitioner under Re- Employment Policy was illegal, is placed upon the Respondents. It was only on account of audit objection that Director Finance

of the SZMC stopped salaries of the Petitioner. The Board in its meeting held on 14.01.2020 has already disapproved the re- appointment of the Petitioner w.e.f. 01.01.2020. Hence, service of the Petitioner has already been dispensed with and the only alive issue is regarding the disbursement of unpaid salaries.

9.From the above discussion, it is crystal clear that the Petitioner is entitled to receive his unpaid salaries. Accordingly, this Petition is allowed and the Respondents are directed to forthwith release unpaid salaries of the Petitioner till the date of termination of his service within 30 days from the date of this Order.

(ABID HUSSAIN CHATTHA)

JUDGE

*WaqaR*