1997 PLP 1725 (SCMR)

ABDUL HAFEEZ MEMON, J.‑‑‑Petitioner was selected for the Central Medical Services, Class II by the Director General of Health, Government of Pakistan, Ministry of Health and Social Welfare, Karachi, and appointed as Resident Medical Officer, Jinnah Central Hospital by an order dated 15‑6‑1990. Her service was terminated twice and after the orders of her termination were set aside as illegal by the High Court on 3‑10‑1963 in Constitutional .petition and by the Federal Services Tribunal on 15‑2‑1982 in the appeal, she was ultimately re‑instated in service and was finally posted at Haji Camp Dispensary, Karachi, on 29‑8‑1982. She applied for leave for 14 days on medical grounds. She was, however, directed vide memo. dated 12‑9‑1982 to appear before Medical Board for examination. She appeared before the Board on 22‑9‑1982 who declared her fit to resume duty. Thereafter she was posted as Causality Medical Officer. She, however, proceeded on leave and got her leave extended from time to time and finally approached the Civil Surgeon on 15‑11‑1983 for extension of leave. She was, however, directed to appear before the Medical Board and according to her she appeared before the Board lastly on 24‑11‑1984. She was thereafter informed by communication dated 24‑4‑1989 that the Central Medical Board had declared her 'invalid' on account of resistant hypertension having completely and permanently incapacitated her from further service of any kind., Against this she made representations to the Secretary Ministry of Health and also submitted a review application to Director General Health Government of Pakistan for convening "Review Medical Board" under FR 10‑A(C)(1) her application was granted and Review Medical Board was convened for 4‑5‑1984. She appeared before the Review Medical Board. As, however, she did not receive any intimation of the opinion of the Board. She filed Appeal No. 107 of 1984 on 26‑8‑1984 praying as under:‑ (i) To quash the illegal proceedings of the unauthorised Central Medical Board convened on 15‑11‑1983 and on 24‑1‑1984 respectively, and to set aside the impugned verdict of the Central Medical Board declaring the appellant invalid on the plea of alleged resistant hypertension incapacitated for further service of any kind, and to declare the same as being without lawful authority and of no legal effect. (ii) That the convening of the Appellate Medical Board on 4‑7‑1984 be declared without lawful authority and of no legal effect and .its proceedings be quashed, as being ah initio null and void." The petitioner was however informed under memorandum dated 8‑8‑1984 that the Appellate Medical Board had declared her permanently unfit for retention in Government Service and on her representation to the Secretary Ministry of Health on 1‑9‑1984 against the proceedings and the decision of the appellate Medical Board, she was informed by memo. dated 17‑12‑1984 that the decision of the Board was final. Against this she filed Appeal No. 4(K) of 1985 before the Service Tribunal to set aside the decision of the Appellate Medical Board dated 8‑8‑1984 and the impugned order dated 17‑12‑1984 passed by the respondent No. l as being without lawful authority and of no legal effect and that she continued to be in service. Thereafter she was retired from service on medical grounds vide notification dated 20‑4‑1986 which reads as under:‑‑ NOTIFICATION Islamabad, the 20th April, 1986. Consequent upon the opinion of Medical Board declaring Dr. Aziz Begum Chaudhary unfit for retention in Government service, the competent authority has been pleased to retire from service Dr. Aziz Begum Chaudhary,. Registrar (BPS‑17), Jinnah Postgraduate Medical Centre, Karachi, on Medical Grounds with effect from 24‑1‑1984. "(Sd.) BALAND AKHTAR, Deputy Secretary, Government of Pakistan." Petitioner challenged her retirement from service in Appeal No.120(K) of 1986 on 4‑9‑1986 before the Service Tribunal and prayed for setting aside the adverse verdict of the two aforesaid Medical Boards as being illegal and to set aside the order of her pre‑mature compulsory retirement and to order her reinstatement in service w.e.f. 2.1‑1‑1984 with all back benefits. The learned Tribunal held that Appeal No. 107(x) of 1984 filed by the petitioner against the proceedings of the Central Medical Board and the opinion rendered by the First Medical Board on 24‑1‑1983 declaring her as invalid for holding the post was not the final order for preferring the said Appeal No. 107(K) of 1984 under the provisions of section 4 of the Service Tribunal Act 1973 and was, therefore not maintainable As to the other Appeal No. 4(K) of 1985 file against the opinion of the Appellate Review Medical Board conveyed to the petitioner under Memorandum dated 8‑8‑1984 saying that she was declared permanently unfit for retention in Government service and the memorandum dated 17‑12‑1984 informing her that the decision of the Board was final, the learned Tribunal held that the Appellate Medical Board, on whose certificate the petitioner stood finally declared as invalid for Government service was not properly constituted as one of its members, namely, Dr. S.H. Shafqat, had earlier given his opinion to the First Medical Board that the petitioner was unfit for retention in service and hence the opinion of the Appellate Medical Board was of no legal effect. Regarding the third Appeal No. 120(K) of 19.86 filed against the order of the retirement of the petitioner from service the learned Tribunal held that although the notification did not say whether it referred to the opinion of the First Medical Board or to the Appellate Review Medical Board, it should have reference to the certificate issued by the Review Medical Board which was the final authority, and inasmuch as the Appellate Review Medical Board was not properly constituted, the order based on that opinion was totally invalid. The learned Tribunal further held that the order of retirement of petitioner from service was passed on 20‑4‑1986 but it was given retrospective effect from 24‑1‑1984 which could not be legally done. In the result, the learned Tribunal while dismissing the Appeal 107(K) of 1984 as being not maintainable allowed Appeal 4(4) of 1985 and Appeal. No.120(K) of 1986 and set aside the order of retirement of the petitioner from service, and ordered reinstatement of the petitioner in service with all the back benefits admissible to her. Being still not satisfied, the petitioner has filed this petition calling in question partially the judgment of the Tribunal dismissing one of the three appeals filed by the petitioner, namely, the Appeal No. 107(K) Of 1984 filed against the opinion dated 24‑1‑1983 of the First Medical Board, declaring the petitioner as resistant to hypertension and, therefore, invalid for holding the post. Mr. A. Aziz, learned counsel for the petitioner contended that the learned Service Tribunal was wrong in holding that the opinion of the first Medical Board (Central Medical Board) was not final and that the Appeal No. 107(K) of 1984 against it was not maintainable. Learned counsel submitted that the said opinion by the First Medical Board was final and would come in the way of the petitioner evenafter she is re‑instated in service persuant to the order of the Tribunal. We see no force in the contention. Indeed, after the first Medical Board had given its opinion Appellate Review Medical Board was constituted on the appeal filed by the petitioner. The said Board gave the opinion declaring the petitioner as not fit for retention in Government service. However, the opinion of this Appellate Review Board was declared invalid by the Tribunal for the reasons that the Board was not properly constituted. Therefore, the opinion of the First Medical Board (Central Medical Board) which had merged in the subsequent opinion by the Appellate Medical Board was also rendered invalid and did not hold the field. That being so, the apprehension expressed by the learned counsel for the petitioner that the opinion of the First Medical Board would come in the way of the petitioner even after she is re‑instated in service is misconceived and unwarranted as it cannot be conceived that any relevant authority would, in the circumstances, still press into aid on the opinion of the First Medical Board against the petitioner after her reinstatement in service. We, therefore, see no merit in this petition and dismiss it. A.A./A‑12,/S Leave refused.