2000 PLP 443 (SCMR)

RAJA AFRASIAB KHAN, J.

Mrs. Hamida Qureshi, the appellant had been a Government servant and as such was posted to do her duties in the Population Welfare Department, Government of the Punjab. In 1986, she had pain in her right knee and also suffered from heart trouble. This being so, on 23-4-1987, she was referred to Medical Board for her medical examination. On 6-5-1987, she was examined by the above Board. She was found unfit for further Government service vide letter of the same date. Its relevant portion reads as under:-- (a) Completely and permanently incapacitated for further service of any kind." Emphasis supplied) In view of her above said health condition, the Director-General Government of Punjab, Planning and Development Department, Population Welfare Programme, Lahore vide his order, dated 22-11-1987 retired the appellant w.e.f. 6-5-1987. The order is as follows:-- "In pursuance of invalid certificate issued by the Medical Board, District Headquarters Hospital Rawalpindi, dated 6-5-1987, whereby Mst. Hamida Qureshi, Theatre Nurse was declared incapacitated for future service. She is therefore retired from service with effect from 6-5-1987, on medial grounds." (Emphasis supplied) In consequence thereof, the appellant received pension and other benefits. On 9-7-1995,. after about 8 years, she gave an application for her reinstatement in service on the ground that she had regained health and as such was fit to do her official duties. She undertook in her application to return the pensionary benefits as per rules. The department failed to decide her case for her reinstatement. She, therefore, instituted Writ Petition No.479 of 1996 which was disposed of as withdrawn on 4-11-1996 because she wanted to avail the remedy available to her under the law. On 5-11-1996, she made an application to respondent No.3 for referring her to Second Medical Board for examination. The respondent No.3. referred her to the Director Health Service, Rawalpindi on 14-11-1996. The Second Medical Board which was, accordingly, constituted, submitted report to the respondent No. 3 on 1-1-1997. The report reads thus:

"From The Medical Superintendent, D.H.Q., Hospital, Rawalpindi. To The Divisional Director, Population Welfare Department, Rawalpindi. Subject: Second Medical Board of Mrs. Hamida Qureshi Theatre Nurse. R.H.S.C.R.G.H. Rawalpindi. Ref: District Health Officer, Rawalpindi Letter No.25364/C, dated 17-11-1996 addressed to the undersigned and copy endorsed to you. A Board consisting of Sd/- (1) Dr. Sahibzada Masood-ur-Rasool . Chairman Medical Superintendent, D.H.Q. Sd/ Hospital, Rawalpindi (2) Dr. Hammamatul Bushra Khan, Member Visiting Physician, D. H. Q. Sd/ Hospital, Rawalpindi. (3) Dr. Tariq Rashid Toosy, Member Eye Specialist, D.H.Q. Hospital, Rawalpindi. Examined Mst. Hamida Oureshi on 18-12-1996. The Board is of the opinion that she is fit for Government service. Emphasis supplied) (Sd. ) Medical Superintendent, D.H.Q., Hospital, Rawalpindi." The appellant reported for duty on 1-1-1997 after obtaining fitness certificate. She returned the pension pay order, issued by the AGPR, Sub- office, Lahore on sanction of pension by Director-General, Population Welfare, Punjab and the benevolent grant sanctioned by the Federal Government availed up to 30-11-1996. On 9-1-1997, the Deputy Director (Adorn.) Divisional Directorate, Population Welfare Department, Rawalpindi recommended the case saying that the appellant was entitled to be re-appointed/re-inducted into service after retirement if permissible under the rules. The Government of Punjab vide its letter, dated 3-5-1997 refused to allow her to join duty on the ground that medical board which found her fit was not properly constituted. It was stated that she was found permanently unfit for further Government service on 6-5-1987. The order is as follows:

"I am directed to refer to your representation, dated 12-1-1997 on the subject and to intimate you that your representation was considered by the Secretary Population Welfare Department Punjab but rejected on the following grounds:-- (1) The proper Medical Board was not constituted for 2nd medical opinion by the competent Authority. (2) You were declared permanently unfit for further Government Service by Medical Board on 6-5-1987 and as such retired from service on the grounds of invalidation w.e.f 6-5-1987. It amounts to exercising the option for retirement and action taken thereof which cannot be withdrawn at such a belated stage on one or the other pretext." (Emphasis supplied) ' The appellant instituted Writ Petition No.645 of 1997 for issuance of a direction for decision of her application, dated 18-1-1997 which was withdrawn on 5-5-1997. After failing before the High Court, she instituted Appeal No.306 (R) of 1997 before the Federal Service Tribunal, Islamabad which was dismissed on 25-8-1997 holding:-- "Under the law, a civil servant has got two options, after the declaration of incapacitation by the Medical Board. If he considers the opinion of the Medical Board to be incorrect, he can file an appeal against the same within seven days and thereafter, in accordance with FR-10 the Review Board is constituted and the employee is examined again by such a Medical Board and if he is found fit to perform official functions he is reinstated in his position with continuity of service and benefits. In the alternative if a person does not object to the opinion of the said Medical Board and accents the invalidation pension he can inform the Department later-on after regaining health and the Department is empowered to constitute a fresh Medical Board and after verifying the fitness of said ex-employee, the Department is further empowered to re employ such a retired civil servant. Thus, there are two different concepts of getting employment after retirement on medical grounds. The first one is the reinstatement and the second one is the re-employment. The first one is the right of the civil servant concerned whereas the latter one is the discretion of the department. As a result of the above discussion, we are of the opinion, that the re-employment under CSR-519 was a discretion of the Respondent Department and not a right of the appellant and the appellant was likely to attain the age of superannuation shortly, therefore, there would be no use for an order of re-employment hence the appeal is dismissed" (Emphasis supplied) Leave was granted on 9-3-1998 to consider, "whether in view of the opinion of the 2nd Medical Board declaring the appellant fit for Government service, she was entitled to reinstatement/re-employment in Government Service. "

3. We have heard Mr. Muhammad Siddique Qureshi, Advocate, husband, of the appellant at considerable length. His only argument is that the appellant is entitled to be reinstated in service in view of the rule laid down by this Court in Divisional Superintendent Post Office v. Rehman Khan (PLD 1994 SC 647). We do not find any substance in the argument for the reason that the appellant has already been declared to be permanently unfit 'for further Government service by competently constituted medical board on 6-5-1987. This opinion of the Medical Board still holds the field to cover the case of the appellant. The subsequent opinion of the medical board referred to above is wholly doubtful on the face of it. It does not show that the appellant has completely and permanently recovered from her ailment with which she has been suffering earlier in 1987. This report only stated that the appellant was fit for Government service. This opinion is vague and ambiguous and has rightly been discarded by the departmental authorities as well as by the Tribunal. The appellant was, thus, rightly retired from service on the basis of report of the medical board, dated 6-5-1987. In this view of the matter, no lawful exception can be taken to the decision already rendered by the departmental authority which was upheld by the Tribunal vide its impugned decision. We may observe that the rule laid down in Rehman Khan's case, (supra) is distinguishable and not applicable to the case in hand for more than one reason. Firstly, the competent appellate authority reinstated Rehman Khan in the referred case on the basis of the opinion of the medical board because his ailment was temporary in nature. Secondly, this is a question of tact which is to be determined on the basis of available evidence on record. The evidence available in the referred case demonstrated that Rehman Khan in the referred case was medically fit to perform service. This fact was determined after scanning the evidence by the Tribunal and in consequence, the petition for leave to appeal was dismissed by this Court. In the case in hand, the appellant was not found fit on the medical ground to be reinstated by the department. Her appeal was dismissed by the Tribunal after perusal of the material available on record. The rules on the controversy are, thus, not attracted to this case. In this view of the matter, the appellant cannot press into service the rule laid down in the abovenoted case of Rehman Khan. Learned counsel failed to point out any substantial question of law involved in this case to warrant interference. All the financial benefits including the pension permissible in law shall have to be given to the appellant in accordance with the earlier decision of the Government if these have already not been given. With this observation, there is no substance in this appeal which is hereby dismissed. There shall be no order as to costs in the peculiar facts and circumstances of this case. Q.M.H./M.A.K./H-35/S Appeal dismissed.