' ABDUL SATTAR KHAN, CHAIRMAN.---This appeal under section 4 of the N.-W.F.P. Service Tribunals Act, 1974 has been filed by Shamshad Bibi (appellant) against the denial of her reinstatement/reemployment after having declared fit medically by the Standing Medical Board and also against the order dated 9-4-2004 vide which her appeal was rejected, with the prayer that on acceptance of this appeal, the impugned order dated 9-4-2004 may be set aside by reinstating the appellant with full back wages and benefits of service.
2. The facts, in brief, as averred in the memo. Of appeal are that the appellant was appointed as PT in the Education Department vide order dated 31-3-1985 (Annexure-A) and after completion of her PTC course, she was given the post of PTC. She while serving as such complained of ill health and was referred to Standing Medical Board which vide its meeting dated 9-8-1997 declared the appellant as unfit for service (Anexure-B). On the basis of the opinion of the Medical. Board, she was allowed invalid pension and was retired from service vide order dated 15-9-1997 (Annexure- C). Later on she regained her health and applied for reinstatement. Her application was duty processed and vide letter dated 30-10-2002 it was sent to respondent No.3 (Annexure-D). Pursuant to the said letter dated 30-10-2002, respondent No.3 directed and conveyed letter dated 16-12- 2002 to respondent No.4 with direction to the appellant to appear before the Standing Medical Board/Standing Invaliding Committee on 8-1-2003 for medical examination before the M.S Police/Services Hospital Peshawar (Annexure-E). Accordingly, she appeared before the Board and vide letter dated 21-2-2003, the Chairman,. Standing Medical Board conveyed its decision to respondent No.4 and gave its opinion declaring the appellants fit for service (Annexures F&G), and on its receipt, respondent No.4 made certain objections on it and referred the matter again to respondent No.3 vide letter dated 1-3-2003 (Annexure-H). The office of Assistant Director (Estab.)
Directorate of School and Literacy N.-W.F.P., Peshawar, sent certain clarifications in this respect (Annexure-I). In the meantime, the matter was kept without any proceedings, as such the - appellant filed her departmental appeal on 16-9-2003 (Annexure-J) which was ?Ejected on 94- 2004 vide Annexure-K. Hence this appeal.
3. The grounds of appeal are to the effect that the impugned order is against law, facts and Material available on record, hence not tenable; that the Standing Medical Board declared the appellant fit for duty, hence respondents were having no choice except to reinstate her into service; that the decision of the first Medical Board was not challenged as at that time the appellant was not feeling medically fit, however, having regained her health, she was again declared as medically fit for service and therefore, the period of 7 days of reviewing the appeal is for the respondents to have challenged the opinion of the Medical Board and having not done so, it attained finality, hence the impugned order is not maintainable; that the provisions contained in the Civil Service Regulation and F.Rs. Prescribe the mode of re-employment after an employee re- gained health despite the legal provision there are instances, whereby the similarly placed employees have been re-employed (Annexures L&M); and that the appellant is ready to deposit the pensionary dues in easy instalments in case she is 'reinstated into service.
4. Respondents have filed their written reply and refuted the claim of the appellant by alleging that her request is not covered by the rules, therefore, it cannot be honoured. In rebuttal, no replication was filed by the appellant.
5. Arguments heard and record perused.
6. From perusal of the record it is evident that appellant was initially appointed as PT (untrained) in the Education Department in 1985. After acquiring the requisite qualification, she was posted against the PTC post. While posted at Govt. Primary School, Jhaffar, she was allowed to retire from service w.e.f. 6-8-1997 (F.N) on medical ground vide order dated 15-9-1997. After regaining health and found fit by the doctor, she applied for her reinstatement. The appellant was medically examined by a duty constituted Medical Board and was found fit for service. Fitness certificate was also issued. However, on one pretext or the other, the appellant was not reinstated into service.
Feeling aggrieved, she filed her departmental appeal on 16-9-2003 which was rejected on 9-4- 2004. Hence this appeal.
7. The prime contention of the appellant is that after having been declared fit by a duly constituted Standing Medical Board, she was entitled to be reinstated/re-emptoyed into service on the strength of R.519 of Civil Service Regulations. Reliance was also placed on PLD 1994 SC 647. It was also argued that the appellant is ready to refund pensionary benefits, which she already received.
8: The plea of the respondent department is that appellant has applied for Medical Board herself and as such she has not challenged the proceedings of the first Medical Board within 7 days. After expiry of about four years, she intends to rejoin the Education-Department. Since her request is not covered by rules, therefore, in the light of Notification dated 16-12-2003 of the Govt. Of N.-W.F.P.
Establishment and Admn. Department, the appeal is liable to be dismissed.
9. The Tribunal observes that the claim of the appellant is bona fide. She was declared fit by a duty constituted Medical Board on the order/direction of Director General, Health Services, N.-W.F.P. R.519 of C.S.R. Fully covers her case which is reproduced below:-- "R.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 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."
' The authority cited by the learned counsel for the appellant is also on all fours and is fully applicable to the case of the appellant. The plea taken by the respondent deptt: is baseless, unfounded and without substance. There is no bar to the re-employment of the appellant on the basis of notification, referred to above, by the respondent department in their written reply. In the circumstances, the appellant has made out a case for indulgence of the Tribunal. Accordingly, the appeal is accepted. The appellant is re-employed/reinstated into service. The intervening period be treated as leave to the kind due/duty according to rules. The appellant shall refund the pensionary benefits she has already received. No order as to costs. File be consigned to the record.