' MAMOON RASHID SHEIKH, J.--- With the consent of the parties this case is being treated as a Pakka matter and shall be decided on the basis of the available record.
2. The respondents have filed their report and parawise comments which are supported by copies of extracts from the WAPDA Employees Medical Attendance Rules, 1979.
3. The brief facts giving rise to this petition are to the effect that the petitioner was selected for appointment on contract basis as Assistant Line Man (ALM) under the Faisalabad Electrie Supply Company (FESCO) in BPS-3 through appointment letter No,5043/Admn-II/A-25 dated 11-2-2010.
The said letter was issued by respondent No,l. According to Clause 19 of the terms and conditions of the appointment letter the petitioner was required to report to respondent No,4 along with a Medical Fitness Certificate on or before 15-3-2010. In compliance of the said requirement the petitioner appeared before respondent No,2 for medical check up who through the impugned medical report dated 25-2-2010 declared that the petitioner suffers from Diabetes Mellitus. It was, therefore, held by respondent No,2 that the petitioner is unfit for induction in service.
4. The impugned medical certificate dated 25-2-2010 has been challenged, inter alia, on the grounds that it is contrary to the Rules and Schedule as provided under the WAPDA Employees Medical Attendance Rules, 1979, the decision by respondent No,2 was not taken in a just, fair and proper manner, respondent No,2 has exercised his discretion in an arbitrary manner which is violative of Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, the impugned report is ultra vires of the Rules, (ibid) and is violative of the provisions of section 24-A of the General Clauses Act, 1897. In this respect the learned counsel for the petitioner has referred to the Rules, ibid, and prays that the case of the petitioner be referred for reappraisal to a Medical Board as contemplated under Rule 6 of the Rules, (ibid). Relies on the judgment reported as Farrukh Bashir v.
Federal Public Service Commission, Islamabad through Secretary and 2 others 2003 PLC (C.S.) 1161 to contend that the oncept of absolute discretion does not exist in law and it was wholly incompatible with the guarantee provided by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. The respondents having exercised absolute discretion in the petitioner's case have acted illegally. Further submits that the severity of Diabetes Mellitus of which the petitioner is stated, be (allegedly) suffering from cannot be determined through a one time medical examination. To arrive at a just and proper conclusion as to the nature and treatment of the said disease series of tests and monitoring of the patient is required over a period of time to determine whether a person who suffers from Diabetes Mellitus is insulin dependent or his disease can be controlled through regulation of diet or through intake of oral medicines. Also relies on the judgment reported as Dr. Naveeda Tufail and 72 others v. Government of Punjab and others 2003 SCMR 291 to submit that the right to work is not' less than a fundamental right of the petitioner which is being denied by the respondents.
5. The learned counsel for the respondents on the other hand has questioned the maintainability of the petition by contending that FESCO is a Public Limited Company and is not amenable to writ jurisdiction. On merits the learned counsel for the respondents refers to the respondents report and parawise comments as also the annexures appended thereto to controvert the petitioner's stand.
He has adverted to rule 7 of the Rules, ibid, which states that:-- "(7) New entrants including work charged will be recruited in medical category "A" unless otherwise specified by the Authority. The existing work charged employees who have rendered more than 10 years of service or have attained the age of 50 years can be retained in service even in lower medical categories in case their disability/disease, if any, is not advanced or of serious nature.
Retention in lower medical category will be on recommendation of Medical Board duly approved by Director General Medical Services."
' He has also referred to the directions for Medical Examination of New Entrants which arc Annexure "C" to the report and parawise comments.
' Also submits that the Schedule of Medical Categories and EYE/ENT standards under Rule 19 of the Rules, (ibid), stipulates that the petitioner does not fall within the given category. He cannot be given "AYE" status on account of his disability/disease which is of a permanent nature and cannot be cured. The petitioner, therefore, is not fit for general service, hence, he having not met the medical standard is not entitled to employment. The learned counsel for the respondents has also referred to Annexure-D to the report and parawise comments which is a copy of Clarification Regarding Medical Fitness of Drivers. The Clarification sets out the instructions to the Medical Board in respect of patients suffering from Diabetes Mellitus. It has also been stipulated therein that such patients who are insulin dependant should not be allowed to drive public vehicles/hold important machinery.
6. I have gone through the record as also the judgments cited by the learned counsel with their assistance. The learned counsel. Dilated upon the question of maintainability of the petition only in a perfunctory manner. The learned counsel for the petitioner relies on the judgment reported as Aitchison College Lahore v. Muhammad Zubair and another PLD 2002 SC 326 to contend that FESCO is under the control of the Federal Government and its activities are monitored through PEPCO. The shares of FESCO are wholly owned by the Government of Pakistan, hence, the petition is maintainable.
7. The fact remains that FESCO is an entity wholly owned and controlled by the Government and for all intents and purposes it follows the policies laid down by the Government of Pakistan vis-a-vis supply of electricity under its area of control. And more importantly it is a "public utility company".
Even otherwise, all the rules made applicable to the employees of FESCO are the ones applicable to WAPDA employees. Indeed, the respondents are trying to non-suit the petitioner by quoting from the WAPDA Employees Medical Attendance Rules, 1979. I, therefore, hold that the petition is maintainable.
8. Turning to the contention of the petitioner that respondent No,2 has issued the impugned medical report by using absolute discretion which is against the rights of the petitioner I find that the Rules (ibid), provide a remedy by giving the petitioner an opportunity of being examined by a Medical Board under Rule 6 of the Rules, ibid. The learned counsel for the respondents has tried to contend that the Medical Board is only meant for permanent employees and not for initial recruits.
A perusal of Rule 6, however, negates his contention inasmuch as Rule 6(a) clearly stipulates that the Medical Board can be assembled for initial recruits/recruitments.
9. Under the circumstances this petition is accepted. The respondents are directed to constitute a Medical Board so as to examine the petitioner and if he is found medically fit, he may be given employment in terms of employment letter No,5043/Admn-II/A-25 dated 11-2-2010.
' There shall be no order as to costs.