2011 PLP (C (PLC(CS))

MUHAMMAD HASHIM KHAN KAKAR, (CHAIRMAN).

This appeal under section 4 of the Balochistan Service Tribunals Act has been filed by Dr. Khalid Amin (appellant) against the denial of his re-instatement/re-employment after having declared fit Medically by the Doctor and also against the order dated 26-7-2010 whereby the Balochistan Provincial Standing Medical Board rejected his request for re-examination.

2. The facts, in brief, as averred in the memo of appeal are that the appellant was serving in Health Department as ENT Specialist and in the year 1998, he was examined by the then Balochistan Provincial Standing Medical Board (hereinafter referred to as Medical Board) and declared as unfit for service. On the basis of the opinion of the Medical Board, he was allowed invalid pension and was retired from service vide order 14th May 1998. Later on he regained his health and applied for reinstatement which was turned down. The appellant while finding no other way out, approached this Tribunal by instituting the instant appeal.

3. On the other hand, the respondent contested the appeal on legal and factual grounds by filing written replies.

4. We have heard the learned counsel for the parties at length and also perused the record with their valuable assistance.

5. The learned counsel for appellant Mr. Naeem Bazai-Advocate contended that the impugned order is against law, facts and material available on record, hence not tenable. He also contended that the concerned doctor declared the appellant fit for duty, hence respondents were having no choice except to reinstate him into service. He further contended that the provisions contained in the Civil Service Regulation and FRs, prescribe the mode of re-employment after an employee regained health. Hence the appellant was also entitled to be reinstated in service.

6. On the other hand the learned Additional Advocate-General Balochistan Mr. Naseer Ahmed Bangulzai contended that the appeal, is not maintainable as the appellant after retirement has ceased to be a civil servant and a civil servant once retired on medical grounds cannot be re-instated into service. He further contended that the decision of Medical Board was not challenged within the prescribed period of 7 days as envisaged under provision of FR-10-A(c)(1) Fundamental Rules, as such, the appeal is hopelessly barred by time.

7. We have first to take up the contention of learned Assistant Advocate-General that an employee invalidated and incapacitated during tenure of his service cannot be re-employed if subsequently at any stage he is declared and certified that he can efficiently discharge his duties. The contention of the learned Advocate-General is baseless, unfounded and without substance because any civil servant who has been invalidated and incapacitated during tenure of his service can be reinstated if subsequently at any stage it is declared and certified that he can efficiently discharge his duties, even if he has availed his invalidity pension and dues, Rule 519 of Chapter XXI of the Civil Service Regulations dealing with the "re-employment of pensioners" reads as follows:-- "After Invalid Pension:

519. There is no bar to the re-employment of an officer who has regained health after obtaining invalid pension, or if an officer is invalided as being incapacitated for employment in a particular branch of the service, to his re-employment in some other branch of the service, the rules in such a case as to refunding gratuity, drawing pension, and counting service, the same as in the case of re-employment after compensation pension."

8. So far as the contention, of Assistant Advocate-General that the appeal is not competent as the appellant after retirement has ceased to be a civil servant is also devoid of force because a person having retired from service would fall within purview of definition of civil servant in terms of section 2(1)(b) Balochistan Civil Servants Act 1974 and is competent to invoke the jurisdiction of service Tribunal for redressal of any grievance relating to the terms and conditions of service.

9. The prime contention of the appellant is that after having been declared fit by the doctor, he was entitled to be reinstated into service on the strength of R.519 of Civil Service Regulation. The record reveals that the appellant was declared permanently unfit for any kind of service by the Balochistan Provincial Standing Medical Board on 17-1-1998. Fundamental Rule 10-A(c)(1) deals with general condition of service and it provides that after a government servant is certified to be permanently invalidated by the authority concerned, such government servant may within 7 days of the receipt to him of the official intimation of the finding of the Medical Board Apply to the Director General Health for review of his case by a second medical board. According to appellant's own showing, he after taking some medical treatment for few months regained health but it is very strange and astonishing that in spite of regaining health, he has approached this Tribunal as well as the competent authority after lapse of about 12 years. Admittedly, law aids vigilant and not those who slumber on their rights. Limitation is most crucial and important point in judicial system wherein more than often default of one party confers ipso facto right to the other. Admittedly the claim of appellant is hopelessly time barred and the matter being a past and closed transaction cannot be reopened.

10. Reverting to the merits of the case, it is very disturbing to note that the appellant had been declared completely and permanently incapacitated for further service of any kind in consequence of vertigo and tinnitus. Tinnitus is an ear disease meaning sensation of sound not brought about by simultaneously externally applied mechanoacoustic or electrical signals whereas vertigo is a hallucination of movement and the term can be regarded as the symptom of a vestibular system lesion, whether peripheral or central. It also includes sensation of rotation and linear motion as intending to stagger to one side. Admittedly no one can be declared invalid on the sole basis of vertigo and tinnitus because one can easily be recovered after going through a formal treatment. The record reveals that the appellant was examined by the Medical Board on his own request, it seems that the invalidating certificate issued in favour of appellant is not based on facts and is the outcome of collusion between the appellant and the then Medical Board. It would be suffice to add here that during the course of arguments our attention was drawn to the fact by the Secretary Medical Board that during the year 1995 to 2000 about 4000 baseless invalid certificates were issued by the then Medical Board. It was also brought to our Notice that on account of issuing false invalid certificates and causing huge loss to the Government ex-chaquer, all the members of the then Medical Board were not only removed from service but were also convicted by the Accountability Court Quetta and their convictions were also upheld by the superior Courts. We are of the considered view that equity demands one should come to the Court with clean hands; whereas the appellant has completely failed to establish his contention.

11. In view of the above discussion, the appeal is hereby dismissed being time barred and without merits. There shall be no order as to costs. H.B.T./18/BST Appeal dismissed.