Federation of Pakistan VS Dr. Muhammad Abbas Zaidi and others.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

I.C.A. No.197 of 2017 Federation of Pakistan through Secretary CA&DD, Islamabad Versus.

Dr. Muhammad Abbas Zaidi and others S. No. of order Date of order/ Order with signature of Judge and that of parties or counsel / proceedings Proceedings where necessary. 21.12.2017 Mr. Shabbir Ahmed Abbasi, learned Deputy Attorney-General.

M/s Ch. Asghar Ali and Atique Tahir, Advocates for the respondents.

Through the instant intra Court appeal, the appellant, Federation of Pakistan through Secretary, Capital Administration and Development Division, impugns the order dated 25.04.2017, passed in criminal original petition No.154-W/2016.

2.Mr. Shabbir Ahmed Abbasi, learned Deputy Attorney-General submitted that the impugned order dated 25.04.2017 is not in accordance with the law; that the petitioners in writ petition No.1831/2014 had sought their consideration for placement in the next higher scale with effect from the date of their eligibility; that in making such a claim, the petitioners in writ petition No.1831/2014 placed reliance on the office memorandum dated 28.08.1991, issued by the Ministry of Finance; that the said writ petition was disposed of, vide order dated 23.12.2015, in which it was observed that vide office memorandum dated 08.12.2015, the issue agitated in the said petition had been resolved, and that the competent authority had decided to process the case of the writ petitioners in the light of the policy dated 28.08.1991; that the respondents filed

criminal original petition No.154-W/2016, wherein it was inter-alia pleaded that despite the said order dated 23.12.2015, the present appellant had not taken any action; and that the said criminal original petition was disposed of, vide order dated 25.04.2017, with the direction to the present appellant to extend the benefit of placing the respondents herein in next higher grades from the dates when they became eligible.

3.Learned Deputy Attorney-General further submitted that during the pendency of writ petition No.1831/2014, the Finance Division issued office memorandum dated 08.12.2015, which shows that the request of the respondents for placement in posts of higher scales would be processed/decided in the light of the policy contained in Finance Division’s office memorandum dated 28.08.1991; that during the pendency of criminal original petition No.154-W/2016, the Cabinet Secretariat issued notification dated 24.12.2016, which shows that the Departmental Promotion Committee had approved the Registrar/Senior Medical Officers and Medical Officers serving in BS-17 to be placed in BS-18; that the list of officers placed in BS-18 did not include some of the petitioners in writ petition No.1831/2014; that the writ petitioners whose names were not included in the said notification dated 24.12.2016 could impugn the same before the competent forum; and that criminal original petition No.154-W/2016 could not be disposed of with the directions to the appellant to extend the benefit of placing the respondents in next higher

grades. The learned Deputy Attorney- General prayed for the order dated 25.04.2017, to be set-aside.

4.On the other hand, learned counsel for the respondents submitted that the learned Single Judge-in-Chambers was correct in disposing of the criminal original petition No.154-W/2016 with the directions to the appellant; that the appellant was under an obligation to give benefit to the respondents under the policy enshrined in the office memorandum dated 28.08.1991, issued by the Finance Division; that the law does not prohibits this Court to issue directions in the petition for contempt of Court; and that the appellant had meted out discriminatory treatment by not giving a higher scale to persons similarly placed as the ones in the notification dated 24.12.2016. Learned counsel for the respondents prayed for the intra Court appeal to be dismissed.

5.We have heard the contentions of the learned counsel for the contesting parties, and have perused the record with their able assistance.

6.The record shows that 24 Medical Officers serving in BPS-17 in the National Institute of Rehabilitation Medicines (“N.I.R.M.”) had filed writ petition No.1831/2014, praying for a direction to the respondents in the said petition to consider the writ petitioners for promotion to the next higher grade, and to extend the benefit of service structure to the writ petitioners. The said writ petition was disposed of, vide order dated 23.12.2015, in the following terms:-

“As per office memorandum dated 08.12.2015, issue agitated through instant writ petition has been resolved and the authority decided to process the case of petitioners in the light of policy dated 28.08.1991. Learned counsel for the petitioners feels satisfied; therefore, instant petition is disposed of having borne fruit.”

7.It appears that during the pendency of writ petition No.1831/2014, the Finance Division issued office memorandum dated 08.12.2015 which shows that the request of the Medical Officers in N.I.R.M. for placement in posts in higher scales would be processed and decided in the light of the policy contained in Finance Division’s office memorandum dated 28.08.1991.

8.After the disposal of writ petition No.1831/2014 in the terms mentioned above, 24 petitioners filed criminal original petition No.154-W/2016, praying for a direction to the respondents therein to implement the said order dated 23.12.2015. The said petition was disposed of by this Court, vide order dated 25.04.2017, with the direction to the appellant to extend the benefit of placing the respondents who had filed the criminal original petition in the next higher grades from the date when they became eligible. Prior to the passing of the said order dated 25.04.2017, the Cabinet Secretariat, vide notification dated 24.12.2016, had (on the basis of the recommendations of the Departmental Promotion Committee) placed 15 (BPS-17) Registrar/Senior Medical Officers and Medical Officers serving in N.I.R.M. in BPS-18 under the Scheme for the Improvement of the Service Structure of Federal Government Health Services

Personnel. Since some of the petitioners who had filed criminal original petition No.154- W/2016, were not satisfied with the said notification dated 24.12.2016, they continued prosecuting the said contempt petition. We are of the view that the officers (who were petitioners in criminal original petition No.154-W/2016) and were not satisfied with the said notification dated 24.12.2016 could have impugned the same in appropriate proceedings. We are also of the view that in contempt proceedings a direction of the nature as given in the order dated 25.04.2017 could not be given. The petitioners in the said contempt petition at no stage made a request to convert the criminal original petition into a writ petition for the implementation of the said order dated 23.12.2015. Therefore, directions for implementation of the said order dated 23.12.2015 could not be given by the learned Single Judge-in-Chambers while adjudicating upon a petition for contempt of Court. Reference in this regard may be made to the following case law:- i. In the case of Dr. Nazir Saeed Vs. Muhammad Javed (PLD 2014 Lahore 660), the Division Bench of the Hon'ble Lahore High Court, inter-alia held that in a petition for contempt of Court, the Court could proceed against the contemnor under the contempt laws for non-compliance of the order passed by the Court and punish him for the same. Furthermore, it was held that any proceedings for contempt of Court, a direction for the implementation of an

order of the Court could not be given. Paragraph-15 of the said report is reproduced herein below:- “15. Upon going through the above cited law and the judgments on the subject, it becomes crystal clear that while exercising jurisdiction under Article 204 of the Constitution or under the provisions of Contempt of Courts Ordinance 2003, the Court can only "PUNISH" the contemnor and no more. Even if, for a while, this is presumed that the Court could look into the vires of an order passed in pursuance to its direction, it can only do the same with the perspective of punishing the contemnor.”

ii. In the case of Ms. Razia Yaqub Vs. Malik Muhammad Ashiq (PLD 2003 Lahore 486), it has been held as follows:- “5. The provisions of section 4 of the Contempt of Court Act, 1976 as well as the provisions of Article 204 of the Constitution of the Islamic Republic of Pakistan, 1973 provide that a contemner can be convicted by the Court and can be sentenced with imprisonment and [f]ine to the extent provided in the said provisions. No further jurisdiction has been conferred by the said provisions upon a Court seized of such a matter.”

9.In view of the above, the instant appeal is allowed, and the impugned order dated 25.04.2017, is set-aside. However, it may be observed that if any of the respondents herein are aggrieved by the non-inclusion of their names in the notification dated 24.12.2016, referred to above, they are at liberty to institute appropriate proceedings. There shall be no order as to costs.

(ATHAR MINALLAH) (MIANGUL HASSAN AURANGZEB)

JUDGE JUDGE

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