' SALIM KHAN, J.--- Dr. Waqar-ur-Rehman Qureshi instituted this Writ Petition No,339 of 2005 of this Bench which was previously recorded as Writ Petition No,1197 of 2004 at Peshawar. The petitioner alleged that he was appointed as Lecturer in Khyber College of Dentistry on 17-1-1987. Then a post of Assistant Professor in Dentistry Department of Ayub Medical College, Abbottabad was advertised, the petitioner was selected and was informed as such, vide letter No,F.7-7/2000- Estt./9903-13, dated 16-8-2000, and was appointed vide office order No,F.7-7-2000-Estt/10646-59, dated 18-8-2000. Khyber College of Dentistry and Health Department relieved him for joining service at Ayub Medical College, and the petitioner continued his new A service till 14-1-2002. On application of the petitioner, the Principal, Ayub Medical College forwarded 'the application of the petitioner with N.O.C. Vide No,PF/8-3(101)81-Estt./1029, dated 30-1-2001 for a post of Consultant in Oral Surgery under the ministry of Health of the 'Kingdom of Saudi Arabia, the petitioner was selected and the post was offered to him through Oversees Employment Corporation of Pakistan.
The Health Department also allowed the petitioner for post abroad and the permission was granted vide No,P.F/8-3-(103)2000-Estt.-674-80, dated 11-1-2002.
2. The petitioner further submitted that leave was granted to him for a period of 730 days by the Principal Ayub Medical College, Abbottabad, but during the absence of petitioner from the country, order of repatriation of the petitioner to parent department was issued vide letter No,P.F.8- 3(101)/2000-Estt./10853-55, dated 27-7-2002; without any cogent reason, and the petitioner was repatriated without waiting for approval or reply of the Government. When the petitioner returned from Saudi Arabia, he found that the post in his office was not available for him as he was, declared already repatriated, although the Secretary Health Department advised the Principal Ayub Medical College to adjust the petitioner and meetings to this effect were also held, but in vain, hence the writ petition.
3. Comments were obtained. The main ground of the comments of the Chief Executive, Principal, and Head of Dentistry Department of Ayub Medical College, Abbottabad is that the petitioner was an employee of Health Department, Government of the N.-W.F.P., who was provisionally appointed at the college of Dentistry Ayub Medical College, he had not completed his probation period, was given deputation abroad by the Health Department, and, therefore, the present writ petition was not maintainable. Comments of respondent No,4 (Government of the N.-W.F.P. Through. Secretary Health Department, Peshawar) were also obtained who stated that the petitioner was an employee of Ayub Medical College, Abbottabad and that N.O.C. Granted 4. By the Health Department was not correct. A rejoinder was submitted by the petitioner.
4. We heard the arguments of the learned counsel for the parties and perused the record.
5. The main question in this case is whether the petitioner was employee of Ayub Medical College or of Government of the N.-W.F.P. Through Health Department of Khyber College of Dentistry.
6. The perusal of record , in the light of the arguments, shows that a post of Assistant Professor was advertised and the petitioner also applied through proper channel for the same. The appointment order sent to the petitioner on 16-8-2000 (copy Annexure E.1) shows that the petitioner was appointed as Assistant Professor Dentistry in BPS-18, his appointment was provisional, and he was to undergo a period of probation/trial for a period of two years, and, in case no letter was issued after the expiry of two years, the probation period would be considered as extended for another year, and, on completion of the probation or extended period of' probation, the petitioner would be treated as a regular employee of the college. On 18-8-2000, an office order (copy of Annexure "E.2") was issued by the Principal Ayub Medical College wherein the Principal Ayub Medical College clearly mentioned that in continuation of office order of Assistant Professor Dentistry issued on 16- 8-2000. Dr. Waqar-ur-Rehman was allowed the speciality as Assistant Professor Oral Surgery,
7. The petitioner, as lecturer, relinquished the charge in order to join the new post. It was vide certificate dated 30-1-2001 by the Principal, Ayub Medical College that it was declared that Dr. Waqar-ur-Rehman was a regular employee of Ayub Medical College since 23-9-2000, he was working as Assistant Profession of Dentistry (Oral Surgery) Department, and the institution had no objection for applying to Oversees Employees Corporation for the post of Consultant of Oral Surgery in Kingdom of Saudi Arabia. This letter clearly shows the admissions that the petitioner was a regular employee of Ayub Medical College, that he was serving there as Assistant Professor, and that the Institution had no objection to his application to the O.E.C.
8. The Oversees Employment Corporation, vide their letter dated 15-11-2001 to the Principal Ayub Medical College, Abbottabad requested the Principal Ayub Medical College, after mentioning that his application was forwarded by the Principal vide letter, dated 30-1-2001, to relieve the petitioner, giving information to the effect that the petitioner was selected and his visa was endorsed. It was on 7-11-2001 that the petitioner was relieved by the Health Department also vide letter of the said date to the Principal Ayub Medical College. A notification, dated 11-1-2002 was issued by the Principal Ayub Medical College mentioning therein that the competent authority was pleased to grant 730 days Ex-Pakistan leave without pay from the date of availing to Dr. Waqar-ur-Rehman Qureshi, Assistant Professor, Dentistry Department Oral Surgery, that the Institution had no objection on his proceeding to Saudi Arabia to joint his new assignment and, on expiry of leave, he would have to complete the remaining probation period.
9. The conditions that the petitioner would complete the remaining period of probation after his return from Saudi Arabia, however, was illegal and void. There is no law, rule or principle of service under which the period of probation could either be suspended, or postponed or extended beyond the period of three years. The petitioner was the employee of Ayub Medical College on completion of his three years of service, his deputation abroad was allowed by A.M.C. And no fault or default of the petitioner was found during the period of first three years of his service.
10. The letter of the Health Department mentioned was misunderstood which aggravated all the misunderstandings.
11. The learned counsel for the parties referred to North-West Frontier Province Medical Institutions Rules, 2001. Rule 8 of the said rules clearly provides that the service of each institution shall consist of such posts as the concerned Management Committee may, from time to time, determine: provided that all persons serving in connection with the affairs of an institution to which Act (meaning N.-W.F.P. Act No,XII of 1999) applies shall continue to hold their respective posts and serve the institution till they are absorbed in the service of the institution concerned or attain the age of superannuation. The petitioner was not just a person serving in connection with the affairs of Ayub Medical College. In fact he was a Lecturer in Khyber College of Dentistry Peshawar, was selected as Assistant Professor Ayub Medical College, and was appointed as such on regular basis, subject to completion of the period of probation. Rule 9 is regarding the method of appointment which clearly shows that all the vacancies shall be advertised, and the selection of direct recruitment shall be made on merit-cum-zonal allocation basis. The petitioner was recruited accordingly. Rule 10(1) provides that the Government Employees already posted to the institution shall continue to work as civil servants till retirement, if they do not opt for absorption in the services of the institution. The petitioner was not a Government employee already posted to Ayub Medical College and was not required to give an option for absorption or otherwise.
12. The learned counsel for the parties argued in detail the factum of the employment of the petitioner. The petitioner was not on deputation to Ayub Medical College from Khyber College of Dentistry. He had relinquished charge of the post at Khyber College of Dentistry for his appointment against the new post of Assistant Professor Dentistry (Oral Surgery). The position would have been different fer him, had he been on deputation as a civil servant. He would have to serve throughout Pakistan in the light of the provisions of the N.-W.F.P. Civil Servants Act, 1973, and, would be directly subordinate to the Government of the N.-W.F.P. For all practical purposes except that he would be working with the borrowing department/organization, and the Health Department, Government of the N.-W.F.P. Would have been the lending department for him.
13. He in fact, had retained a lien as Lecturer College of Dentistry, and was during the period of probation, when Ex-Pakistan leave and N.O.C. For contract service in Saudi Arabia was granted to him by the Principal, Ayub Medical College. This Principal had clearly mentioned that the competent authority had granted 730 days Ex-Pakistan leave without pay to the petitioner. The petitioner had no other alternative except to believe that the Principal was representing the competent authority and the sanction of the competent authority was correctly conveyed to him by the Principal.
14. The N.O.C. And the permission granted by the Health Department was necessary for the petitioner at the time when it was granted because he was during the period of probation, with a lien with the Health Department, and the health Department was still concerned with him. The N.O.C. And permission granted by the Health Department, therefore, was a further confirmation of the notification and N.O.C. Granted by the Ayub Medical College to the petitioner.
15. In the circumstances of the case, the petitioner was an employee of Ayub Medical College, with no relation of employment with Khyber College of Dentistry and the Health Department except with regard to the lien. The period of probation, though not complete at the time of leaving the country of the petitioner, could not be suspended, postponed or extended beyond the period of three years, and the period of leave is always treated as period of service, except for pay and pension. The respondents did not have the authority to unilaterally repatriate the petitioner to the Government of the N.-W.F.P. They had to take disciplinary action, if it was needed, and were to conduct a full- fledged inquiry for a fault of the petitioner, if any, and could then settle the termination service of the petitioner with Ayub Medical College, and the repatriation of the petitioner to the Government of the N.-W.F.P. The respondents, in Ayub Medical College, however, unilaterally repatriated the petitioner without his notice, without finding him guilty of any misconduct and without awarding him punishment of termination of service, which is against the settled principles of service as prescribed by law as well as against the prescribed rules of Ayub Medical College, as mentioned for all institutions of the same nature through the N.-W.F.P. Medical Institutions Rules, 2001.
16. In the circumstances of this case, we have come to the conclusion, that the view of the respondents, including the Chief Executive Ayub Medical Institution, Abbottabad, that as they were facing great difficulties in students teaching as well as patients care of the area, the petitioner be repatriated to his parent department so that a suitable persons could be appointed, and the notification of repatriation of the petitioner to his previous department with immediate effect vide notification dated 21-9-2002, are without lawful authority, void and ineffective on the rights of the petitioner. The respondents could appoint a suitable person on contract basis for the said period in order to remove their difficulty, which they have not done, and have illegally repatriated their employee to a department which had already relieved him for joining the new post, on which he had passed through probation period, and had become a regular employee of Ayub Medical College under the relevant rules.
17. We, therefore, accept the present writ petition by declaring the said letter and notification, being without lawful authority and against the law and rules on the subject.