2007 SCMR 1442 (PLP)

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 and Social Welfare Department, Government of N.-W.F.P. 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 Advocate Supreme Court for the petitioners and have gone through the record and the proceedings of the case in minute particulars.

4. Mr. Muhammad Munir Peracha, learned Advocate Supreme Court 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 N.-W.F.P. 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 N.-W.F.P. 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 mentions that in continuation of Office Order of Assistant Professor Dentistry issued on 16-8-2000, respondent No.1 was allowed the speciality 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 if Oral Surgery in Kingdom of Saudi Arabia. The respondent was elected 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 were 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 N.-W.F.P. Before termination of service of respondent No.1 with petitioners and his repatriation to Government of N.-W.F.P., 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 N.-W.F.P. 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. M.H./C-21/SC???????????????????????????????????????????????????????????? ??????????? Petition dismissed.