PLJ 2007 SC 910
[Appellate Jurisdiction]
Present: Javed Iqbal, Abdul Hameed Dogar & Mian
Shakirullah Jan, JJ.
CHIEF EXECUTIVE AYUB MEDICAL INSTITUTION, ABBOTTABAD
& another--Petitioners
versus
Dr. WAQAR-UR-REHMAN QURESHI & 3 others--Respondents
Civil Petition No. 233 of 2007, decided on 26.3.2007.
(On appeal from the judgment dated 1.12.2006 of the
Peshawar High Court, Abbottabad Bench, in W.P. No. 339 of 2005).
(i) Probation
Period--
----Service matter--Civil servant was appointed as
lecturer--Probation period of two years--No letter was served after expiry of
two years--Probation period would be considered as extended--Civil servant
would be treated as regular employee--Services were repatriated to parent
department--Determination--Validity--Unless the letter of confirmation is
issued, the period of probation shall be deemed to have been extended for
another period of one year--Order of repatriation having been made within the
probation period. [P. 913] A
(ii) NWFP Medical
Institutions Rules, 2001--
----R. 10(i)--Constitution of Pakistan, 1973, Art.
212(3)--Notification was declared being without lawful authority and against
law and rules--Civil servant/respondent was appointed as lecturer--Post of
Assistant Professor was advertised--Applied through proper channel--Civil
servant was to undergo a period of probation--Probation period would be
considered as extended--Respondent would be treated as regular employee--Office
order was issued by the principal of the Medical Institution--Ex. Pakistan
Leave was granted--Notification--No objection to join his new assignment--On
expiry of leave he would have to complete remaining probation period--Chief
Executive repatriated the civil servant to his parent
department--Assailed--Held: Probation period would be considered as extended
for another year and on completion of the probation or extended period of
probation, the civil servant would be treated as a regular employee.
[P. 913] B
(iii) NWFP Medical
Institutions Rules, 2001--
----R. 10(i)--Civil servant--Appointed as Lecturer--Post
of Assistant Professor was advertised--Applied for--Probation period of two
years--No letter was issued after expiry of two years--Probation period would
be considered as extended for another year--On completion of the probation, or
extended period of probation, the civil servant would be treated as regular
employee--Principal granted Ex-Pakistan leave without pay--No objection to join
his new assignment and on expiry of leave repatriated the civil servant to his
parent department--Appeal was allowed by High Court--Leave to appeal--Question
of--Period of probation could either be suspended or postponed or extended
beyond the period of three years--Determination--Civil servant was regular
employee and the Institution had no objection for applying to overseas
employees corporation--Competent authority was pleased to grant Ex-Pakistan
leave without pay and institution had no objection to go to foreign to assume
his new job and on expiry of leave civil servant would have complete the
remaining probation period--Held: Period of probation could either be suspended
or postponed or extended beyond the period of three years--Entire action was
taken unilaterally without affording any opportunity of being heard which is
not only against principle of natural justice but against settled norms of
service law/rules prescribed for all Institution of nature through NWFP Medical
Institution Rules, 2001--Leave was refused. [Pp.
913 & 914] C, D & E
Mr. Muhammad Munir Peracha, ASC for Petitioners.
Respondents not represented.
Date of hearing: 26.3.2007.
Judgment
Abdul Hameed Dogar, J.--Petitioners seek leave to appeal
against the judgment dated 8.8.2003 passed by a learned Division Bench of the
Peshawar High Court, Abbottabad Bench, whereby Writ Petition No. 339 of 2005
filed by Respondent No. 1 was allowed by declaring the notification dated
10.8.1987 issued by Health & Social Welfare Department, Government of NWFP,
being without lawful authority and against the law and rules on the subject.
2. Briefly, stated
the facts giving rise to the filing of the instant petition are that on 17.1.1987
Respondent No. 1 was appointed as Lecturer in Khyber College of Dentistry. In
the meanwhile in Dentistry Department of Ayub Medical College, Abbottabad, a
post of Assistant Professor was advertised in the newspapers. He applied
through proper channel for the same and was provisionally appointed as
Assistant Professor Dentistry in BPS-18 vide office order dated F.
7-7-200-Estt/1064-59 dated 21.8.2000. He was to undergo a period of probation
for a period of two years and in case no letter was issued after the expiry of
two years, the probation period would be considered as extended for another
year and on completion of the probation or extended period of probation, the
Respondent No. 1 would be treated as a regular employee of the College. The
Principal of the Ayub Medical College also issued office order on 18.8.2000
wherein it was specifically mentioned that in continuation of office order of
Assistant Professor Dentistry issued on 16.8.2000, Respondent No. 1 was
designated as Assistant Professor Oral Surgery. On 15.11.2001 Overseas
Employment Corporation asked the Principal Ayub Medical College, Abbottabad to
relieve Respondent No. 1 on the ground that he was selected and his visa was
endorsed. The Principal Ayub Medical College vide notification dated 11.1.2002
granted 730 days Ex-Pakistan leave without pay from the date of availing to
Respondent No. 1 and that the Institution had no objection on his proceeding to
Saudi Arabia to join his new assignment and on expiry of leave, he would have
to complete the remaining probation period. The Chief Executive, Ayub Medical
Institution, Abbottabad, vide order dated 27.7.2002 repatriated the respondent
to his parent department i.e. Khyber College of Dentistry. Feeling aggrieved,
respondent challenged the aforesaid order before the learned High Court, which
was allowed, vide judgment-dated 1.12.2006.
3. We have heard
Mr. Muhammad Munir Peracha, learned ASC for the petitioners and have gone
through the record and the proceedings of the case in minute particulars.
4. Mr. Muhammad
Munir Peracha, learned ASC for the petitioner vehemently contended that the
impugned judgment suffers from legal defect and is not sustainable in law.
According to him the learned High Court wrongly assumed that the respondent was
a regular employee of Ayub Medical College, Abbottabad. He contended that the
learned High Court did not consider the case properly and misinterpreted the
provisions of NWFP Medical Health Institutions and Regulation of Health Care
Services Ordinance, 2002 as well as the Medical Institutions Rules, 2001.
According to him respondent was on probation when his services were repatriated
to his parent department and it is a
settled law that unless the letter of confirmation is issued, the period of
probation shall be deemed to have been extended for another period of one year.
He contented that as the order of repatriation having been made within the
probation period, therefore, the respondent was no more employee of the Ayub
Medical College.
5. The real
controversy in this case is whether the respondent was an employee of Ayub
Medical College or of Government of the NWFP through Health Department or
Khyber College of Dentistry. It is admitted fact that the respondent was
provisionally appointed as Assistant Professor Dentistry in BPS-18 and he was
to undergo a period of probation for two years and in case no letter was issued
after the expiry of two years, the probation period would be considered as
extended for another year and on completion of the probation or extended period
of probation, the respondent would be treated as a regular employee of the
College. It is pertinent to mention here that Office order dated 18.8.2000
issued by the Ayub Medical College specifically mention that in continuation of
office order of Assistant Professor Dentistry issued on 16.8.2000, Respondent
No. 1 was allowed the specialty as Assistant Professor Oral Surgery. Even in
the certificate dated 30.1.2001 issued by the Principal Ayub Medical College it
was clearly mentioned that the respondent was a regular employee of Ayub
Medical College since 23.9.2000 and the Institution had no objection for
applying to Overseas Employees Corporation for the post of Consultant of Oral
Surgery in Kindom of Saudi Arabia. The respondent was selected by Overseas
Employment Corporation and was relieved on 7.11.2001. A notification dated
11.1.2002 was also issued by the Principal Ayub Medical College indicating
therein that the competent authority was pleased to grant 730 days Ex-Pakistan
leave without pay from the date of availing to the respondent and the
Institution had no objection to go to Saudi Arabia to assume his new job and on
expiry of leave, he would have complete the remaining probation period. There
is no provision in the law that period of probation could either be suspended
or postponed or extended beyond the period of three years. Admittedly the
respondent was the employee of Ayub Medical College on completion of his three
years of service, his deputation abroad was allowed by the Ayub Medical College
and no fault or default of the respondent was found during the period of first
three years of his service. Rule 10(1) provides that the Government employees
already posted to the Institution shall continue to work as civil servants till
retirement, if they do not opt for absorption in the service of the
Institution. The respondent had retained a lien as lecturer in, College of
Dentistry, during the period of probation. Ex-Pakistan leave and No Objection
Certificate for contract service in Saudi Arabia was granted to him by the
Principal Ayub Medical College and it was specifically mentioned that the
competent authority had granted 730 days
Ex-Pakistan leave without
pay to Respondent
No. 1. He had no other alternate
except to presume that the Principal was representing the competent authority
and the sanction of the competent authority was correctly conveyed to him by
the Principal. The petitioner did not have the authority to unilaterally
repatriate the respondent to the Government of the NWFP. Before termination of
service of Respondent No. 1 with petitioners and his repatriation to Government
of NWFP, it was incumbent upon them to hold an inquiry to ascertain the fault,
if any, committed by Respondent No. 1. On the contrary, the entire action was
taken unilaterally without affording any opportunity of being heard which is
not only against the principles of natural justice but also against the settled
norms of service laws/rules prescribed for all Institutions of same nature
through the NWFP Medical Institutions Rules, 2001.
6. For what has
been discussed above, we are of the considered opinion that the impugned
judgment is based on valid and sound reasons and is entirely in consonance with
the law laid down by this Court. Neither, there is misreading, nor non-reading
of material evidence, or misconstruction of facts and law.
7. Resultantly,
the petition being devoid of force is dismissed and leave to appeal refused.
(R.A.) Leave
refused.
