' AKHTAR ZAMAN MALGHANI, J.---The petitioner has sought following relief in the instant Constitution petition:-- "It is therefore, respectfully prayed that this Hon'ble Court may direct the respondent Nos.1 to 3 to cancel their order and the petitioner may kindly be declared unable/disable person for continue his job being the cancer patient and the respondent Nos.1 to 3 be directed to retired the Petitioner by giving all services benefits on the medical ground and further directing that the Petitioner be sent out side of country for better treatment on the expenses of Health Department in the interest of law and justice."
2. Facts of this unfortunate case are that the petitioner who is serving in Health Department for the last about 20 years as dispenser, developed severd pain in his right hand due to which he was medically treated in General Hospital (a private hospital) and then in the well-known hospital of the country "Agha Khan University Hospital". According to the petitioner all the expenses for treatment were borne by him and in this regard no money was paid to him by the Department.
During treatment it was diagnosed that he had developed tumor in right forearm which was excised and post operation radiotherapy was done, due to which nerves of the right arm were damaged and the petitioner lost the movement of husband. Finding himself in a dismissal and difficult situation, the petitioner applied for retirement on the ground of invalidation. It appears from the record that he was firstly referred to the Head Of Orthopedic Department, Sandaman (Provincial) Hospital, Quetta for his opinion who on 15-2-2000 opined that the petitioner is a patient of malignant spindle shaped Sarcoma, and recommended for invalidation but surprisingly the department did not act upon the advise of the Head of Orthopedic Department and lingered on the matter for about two years despite repeated request of the petitioner and submission of different medical certificates issued by different doctors who medically treated the petitioner and confirming the fact that the petitioner is suffering from cancer sickness. According to the record after about two years of the report given by the Head of Orthopedic Department, a Medical Board was constituted who gave its opinion and recommended the petitioner for light duty instead of retirement on the ground of invalidation. According to the petitioner his health is deteriorating day- by-day, as such; department should have retired him instead of asking for light duty, hence invoked the Constitutional jurisdiction of this Court.
3. We have heard the learned counsel for the petitioner as well as learned Advocate General and also perused the documents, medical certificates etc. Relied by the petitioner and the parawise comments filed by the official respondents.
4. The respondents in their parawise comments admitted to have not paid any expenses towards the treatment of the petitioner, however it is their case that the petitioner had himself directly approached Agha Khan Hospital without adopting the proper procedure, which would have entitled him for reimbursement of medical charges. The official respondents also admitted that the documents of petitioner reveal that he was suffering from cancer but according to them, same has been cured and the petitioner is enjoying a healthy life except a partial disability of the right forearm.
5. In the light of parawise comments we felt it necessary to refer the petitioner to Medical Board for second opinion as according to official respondents the petitioner was cured from the disease and enjoying a healthy life. On our reference the petitioner appeared before the Medical Board which gave its opinion on 23-9-2002, which is reproduced herein below:-- "Mr. Salah-ud-Din, was advised to appear before the Balochistan Provincial Medical Board. The official appeared before the Board on 16th September, 2002, he has been examined by the said Board on 24th June, 2002, the Board recommended that he should continue services as Government service and his job description may be changed accordingly to the decision of Departmental Committee as per rules and regulations.
' It is submitted that the previous decision of the Board stands as it is and the official concerned can not be re-examined by the same Board under F.R. 10-A; (a) Bus Rules C (i) of F.R. & S.R. (Revised edition 2002).
' Submitted for your kind information and further necessary action, please."
6. The perusal of above reproduced opinion of Medical Board shows that in fact no opinion regarding disability or otherwise was given by the Board but they stuck to their previous opinion without examining him as to whether the disease with which he is/was suffering, have been cured or not. Thus the second opinion of the Medical Board is of no help for deciding the present petition.
The department/official respondents admits 'that the petitioner was suffering from cancer but according to them he had been now cured but no document was placed on record to substantiate their claim. On the contrary the petitioner has placed a number medical certificates issued by the concerned Medical Officers/Experts of the well repute hospitals which show that he is still suffering from the disease and recommended for retiring him. We here may refer to most recently certificate issued on 8th April, 2003 by Dr. Saad A. Bashir Associate Professor and Chief of Neuro Surgery, recommending for retiring the' petitioner on medical ground. It would be expedient to reproduce the medical certificate above referred hereinbelow:-- TO WHOM IT MAY CONCERN ' Re: Mr. Salah-ud-Din A. Salam Panezai Mr. 097-79-86.
' This pt, has had a spindle cell carcinoma of his right forearm excised in 1997. This was followed by radiotherapy. He has sustained a slowly progressive injury to the nerve of right forearm-seen in examination and a nerve radiation studies.
' He has a functionally useless right upper limbs.
' I have examined him after nearly one and a half year and the movements in the fingers are less.
' The cause seems to be radiation injury.
' He is unable to work and should be retired on medical grounds due to a progressive and permanent disability. Sd.
SAAD A. BASHIR, MBBS, MD, FRCS,(SN)
Associate Prof. And Chief of Nerve Surgery.
7. It is evident from the contents of the medical certificate that the petitioner is a suffering from a progressive and permanent disability. Similar opinion was given by Dr. Khalid Chishti, Liaquat, National Hospital, Karachi after examining the petitioner on 9-4-2003.
8. We may here reproduce the opinion of Board expressed by it on 13-4-2002, which reads as under:-- "Reference letter No,15.S.M. Board/6011, dated 15th March, 2002 on the subject cited above.
2. Mr. Salah-ud-Din son of Abdul Salam N.I.C. No, 602-92363246, has been examined by the Standing Medical Board, of Sandeman (Provincial) Hospital Quetta on 19-3-2002. The Board has advised that he could be given light duty in his Department."
9. The bare perusal of the above mentioned report of Medical Board shows that even in this report the Board has not mentioned about the disease with which the petitioners is or was suffering and only stated that Board had advised for giving light duty to the petitioner in his department. But this advise, if any, had not been placed on record by the official respondents for our perusal to see as to whether the opinion of the Board is based on sound and cogent reasons which could negate the medical certificate produced by the petitioner. In absence of any document or opinion of Medical Board it can be safely concluded that the claim of the official respondents is not based on sound reasoning.
10. According to the Balochistan Civil Service Pension Rules, 1989 under rule 3 of Chapter 3 a government servant is entitled to invalid pension who by bodily or mental infirmity is permanently incapacitated for further service on production of a medical certificate prescribed in sub-rule (3) which requires such Government servant who wishes to retire on invalid person, to apply to the head of the department/attached department who shall direct him to present himself before a Medical Board or an invalidity Committee or Medical Officer for obtaining a medical certificate of in capacity for further service. According to note 3 to Sub-Rule (3) of Rule 3 in case of Government servant in BPS (1-15) medical certificate shall be required from the medical officer while Government servant in BPS-16 and above are required to produce medical certificate from a Medical Board or an Invaliding Committee. Similarly under note (4) a Government servant who has submitted a Medical Certificate of incapacity should be invalid from service on receipt of the medical certificate or from the date of expiry of leave if already on leave. Admittedly the petitioner is employed in a grade which is not BPS-16 or above, therefore, his case falls under the Note 3 to Sub-rule (3), as such; he was required to produce the certificate of Medical Officer and not of the Medical Board to which only cases of BPS-16 or above are required to be referred, as such; after submission of certificate dated 15-2-2000 issued by a competent Medical Officer to whom the case of the petitioner was referred, there was no justification for the respondents to re-submit his case to the Medical Board, that too, after lapse of two years in view of Note-4 read with Note 3 to Sub-Rule (3) of Rule 3.3., which provides that after submission of medical certificate, the Government servant should be invalided from service. Although in parawise comments the official respondents tried to the circumstances under which petitioner's case was referred to Medical Board by saying that the certificate issued was not authentic but no document has been placed on record to substantiate the contention and to prove that in fact the case of the petitioner was referred to Medical Board under such circumstances and the plea taken by the official respondents though is not an afterthought one, yet under the above quoted rule attracted in the case the respondents have no authority to refer the matter to Medical Board. A public functionary who under takes to perform an official act, must do so reasonable, in accordance with the procedure laid down in this behalf and with reasonable skill and diligence, particularly where rights of individual may be jeopardized by his neglect as in the instant case; in our considered view, the respondents failed to perform their official acts with due diligence and skill, thereby jeopardizing the rights of the petitioner which created in this favour due to invalidation in service. As already observed, no material has been placed on record to show that the petitioner was cured from the disease (cancer) from which he was suffering, even the Medical Board refused to give second opinion by examining petitioner's present position when he was referred by this court, therefore, after taking into consideration the medical certificates of the professional experts of well-repute hospitals produced by the petitioner including the certificate issued by the Head of Orthopedic Department to whom initially the case of the petitioner was referred as required by Pension Rules, we are of the considered view that the case of the .Petitioner was one of invalid Pension as defined by Rule 3.3. And the respondents were bound under law to have processed his case for pension as required under the rules and by not doing so they acted without lawful authority, as such; the respondents are directed to process the case of the petitioner for invalid Pension as provided by Rule 3.3. Of the Balochistan Civil Services Pension Rules, 1989.
' The petition is accordingly allowed. However the parties are left to bear their own costs.