2017 PLP (C (PLC(CS))

Through the instant Intra Court Appeal filed under Section 3 of Law Reforms Ordinance, 1972 the Appellant has called in question the legality of impugned judgment dated 11.12.2015 passed in Writ Petition No.25930/2011 by the learned Single Judge and also sought a direction to the Respondents Nos.1 to 3 to allow the Appellant to join the service on the basis of previous valid medical report w.e.f. 07.07.2011.

2. Brief facts revealing from the instant appeal are that the Appellant was initially appointed as Assistant Line Man (BPS-3) in the Respondents Department under the Employees Children Quota (Category-III) on contract basis vide the Respondents' Memo dated 06.01.2010 and the Appellant gave his joining after being declared medically fit for the job vide medical report issued by the Respondent No.4 dated 27.01.2010. The appointments of the Appellant and others were challenged before this Court through I.C.A. No.602/2010. However, on 18.10.2010 the same were declared ultra vires and directions were issued by this Court to the Respondents to fill the vacancies through transparent process. Therefore, the services of the Appellant along with others were terminated on 06.06.2011, after about one year and six months. When second time advertisement for the said posts was made the Appellant again qualified and advised to get medically examined from the Respondent No.4 vide Memo dated 07.07.2011 and in pursuance of which the Appellant appeared before the Respondent No.4 who declared the Appellant unfit for induction in service and under the certificate the Respondents Nos.1 to 3 refused the Appellant to join in service. Hence, the instant Appeal.

3. Learned counsel for the Appellant argued that the learned Single Judge in the impugned judgment has not appreciated the fact that in the first round the Appellant was appointed on the basis of a valid medical certificate, therefore, declaring the Appellant unfit in the second round for the same post shows mala fide of the Respondents. Learned counsel also argued that the Appellant was terminated verbally without any written order, as such, the act of the Respondents cannot be said to be legal. Learned counsel also pointed out that the Respondents Department was bound to take the joining of the Appellant without getting second medical report by virtue of A&CS, Rules, 1974 No.SOR.IV(S&GAD)-5-16/84 dated 18th April, 1984 (page-20 of the ICA) (the "Rules") as the same provides that All the appointing authorities are, therefore, advised not to insist on the production of medical certificate of fitness on subsequent appointments in cases where a government servant has already produced medical certificate on his first entry into government service provided that there is no break in his service. Learned counsel also contended that there was no break in service of the Appellant whereas the Respondents have technically retrenched the services of the Appellant and principle of locus poenitentiae apply in the case of the Appellant as the first appointment of the Appellant taken the legal effect and in such circumstances the legal act which is in motion cannot be rescinded. Learned counsel also laid much stress on the point that at the time of first appointment the Petitioner was medically fit but second time he was declared unfit for service, as such, the same creates serious doubt. Lastly, learned counsel maintained that the impugned judgment is liable to be set aside as the same did not deal with the issue of mala fide on the part of the Respondents.

4. We have heard the arguments and examined the record available with this Appeal which shows that the Appellant was firstly appointed as Assistant Line Man under Employee's Children Quota on contract basis (Category-III) by the Respondents Department but after his termination under the decision of this Court, fresh advertisement was made in which he again qualified and was issued employment letter dated 07.07.2011. In clause (ii) under Note: of the said letter it is specifically mentioned that you should appear before Medical Superintendent WAPDA Hospital, Faisalabad to obtain Medical Fitness Certificate during 27.07.2011 to 30.07.2011. It was necessary for the Appellant to get himself medically examined and obtain Medical fitness certificate but the same was issued declaring the Appellant unfit for service, as he had suffered from Hepatitis B, at the time. The contention of the learned counsel for the Appellant, that there is serious doubt in the medical report being contradictory to the previous one cannot be given weightage, as he admittedly was unwell at the time of his medical examination.

5. From the above Rule it is crystal clear that although an employee is not required to produce a fresh medical certificate of fitness in case he is seeking subsequent appointment, however, the same is subject to the condition that there must not be a break in service of the employee. In this regard, none else but the Appellant himself has admitted and sought in his prayer clause that the Respondents Nos.1 to 3 may be directed to allow the Appellant to join the service on the basis of previous valid medical report w.e.f. 07.07.2011. It is worth mentioned that, admittedly the Appellant's services were terminated on 06.06.2011, whereas his subsequent/new employment letter was issued on 07.07.2011, as such there was a break in his service of about one month, when such is the situation then how can the Appellant say that there is no break in his service, therefore, he cannot be benefited of his own reliance i.e. the Rules, which itself goes against him. We, therefore, fully agree with the finding of the learned Single Judge in which he has rightly held at paragraph 6 of the impugned order which reads as follows: "It is not denied by the Petitioner that he was not suffering from Hepatitis B at the time of first entry medical fitness on 30.07.2011. No ill-will or malice is found on part of Respondent authority in not allowing Petitioner to join the post in question. Even otherwise, qualitative PCR for HBV -- DNA has conclusively proved the diagnoses of Hepatitis B. Qualitative PCR is needed for initiation and monitoring of treatment, which the Petitioner had not opted for."

6. We do not see any illegality in the impugned judgment which has been passed strictly in accordance with law, as such does not warrant any interference by us. Consequently, the Appeal in hand, being devoid of any merit is hereby dismissed in limine. ZC/S-6/L Appeal dismissed.