' MIAN FASIH-UL-MULK, J.--- Through the instant writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, petitioner Dr. Athar lqbal Lodhi seeks declaration to the effect that Notification No,SO(E)II/2007 dated 2-6-2010 issued by respondent No,1 and consequent letter No,PS-CE(AMI)OG/Vol:IV931-38 dated 10-6-2010 issued by respondent No,2 ordering repatriation of petitioner to Health Department Khyber Pakhtunkhwa Peshawar are illegal, based on mala fide and without lawful authority.
2. Briefly stated facts of petition are that petitioner was permanently absorbed in the service of Ayub Teaching Hospital w,e,f, 23-7-2003, but on 26-11-2006 through Notification No,ATH/Admn:/PF/ 7228-33 petitioner was relieved of his duties w,e,f, 25-11-2006 and was directed to report to Health Department. Petitioner filed Writ Petition No,368 of 2006, which was disposed of in terms of Notification No,PS-CE/Misc:/2008/9819-17 dated 21-6-2008 through which earlier mentioned notification dated 25-11-2006 stood recalled and Notification No,ATH/Admn/PF-5878-82 dated 29- 7-2003 absorbing service of petitioner in Ayub Teaching Hospital was restored. Thereafter respondent No,2 ordered grant of full back benefits including seniority to petitioner and petitioner was promoted to BPS-18 and finally to BPS-19. Respondents once again repatriated the services of petitioner to Health Department with immediate effect vide impugned notification dated 2-6-2010 and his services were placed at the disposal of EDO Health Abbottabad vide letter dated 10-6-2010.
3. Learned counsel for petitioner contended that services of petitioner have been absorbed in Ayub Teaching Institution long long ago and impugned notification directing repatriation of petitioner to Health Department is against rules and regulations as well as the judgment dated 25-6-2008 passed by this court.
4. On the other hand learned counsel for respondents opposed the writ petition and supported the impugned actions taken by respondents.
5. We have heard learned counsel for the parties and perused the record with their able assistance.
6. Initially, services of petitioner were permanently absorbed in Ayub Teaching Institution w,e,f, 23- 7-2003 but on 26-11-2006 through Notification No,ATH/Admin:/PF/7228-33 petitioner was relieved of his duties w,e,f, 25-11-2006 and was directed to report to Health Department. Petitioner filed Writ Petition No,368 of 2006, which was disposed of in terms of Notification No,PS-CE/Misc:/2008/9819-17 dated 21-6-2008 through which earlier mentioned notification dated 25-11-2006 stood recalled and Notification No,ATH/Admn/PF-5878-82 dated 29-7-2003 absorbing services of petitioner in Ayub Teathing Institution was restored. Thereafter respondent No,2 ordered grant of full back benefits including seniority to petitioner and petitioner was promoted to BPS-18 and BPS-19. Learned D.A.-G.
Representing respondent No,1 referred us to the letter of permanent absorption of petitioner dated 29-7-2003 and contended that a copy of this letter was forwarded to respondent No,1 with a request to relieve the officer and confirm his absorption. Since no NOC was issued by respondent No,1, therefore, the letter dated 29-7-2003 cannot be termed as permanent absorption letter. The contention of learned D.A.-G. Has no force in view of the service rules on the subject.
7. The service of petitioner are governed by N.-W.F.P. Medical Institution Rules, 2001. Part-II of the ibid rules relates rules to recruitment and other terms and conditions of service. Rule 10 initially provided option to Government employees which reads as under:--- Option to Government employees.---(I) The existing employees of Government posted in the institution, who do not opt for absorption in the service of the institution, shall continue to work as civil servants till retirement.
' Provided that for the purpose of their promotion, move over, grant of Selection grade etc. They shall be treated as employees of the institution.
(2) For the purpose of sub-rule (1), a combined seniority list of civil servants and employees of institution shall be maintained on the basis of their continuous regular appointment to the respective posts in the same or equivalent scale.
Rule 10 was substituted by Notification No,SOH-113-15/04(K) dated 16-2-2006, which is reproduced as under:--- "Option.--- (1) All persons serving in an institution who are covered by subsection (2) of section 11 of the North-West Frontier Province Medical and Health Institutions and Regulation of Health Care Services Ordinance, 2002 (N.-W.F.P. Ordinance No,XLVII of 2002), shall be given an option and the persons concerned shall have the right to opt for absorption in the institution concerned, but those who do not so opt shall continue to serve the institution on their existing terms and conditions till their retirement from service.
(2). The option under sub-rule (1) once exercised shall be final.
(3). A person who opts to serve under the institution shall cease to be an employee of Government from the date of his notification for absorption in the service of the institution.
Seniority of persons so absorbed shall be determined from the date of their regular. Appointment in the service and all such persons shall be governed by such rules and regulations as have been made or may hereinafter be prescribed
(4) .................................................................................
(5) .........................................................................................................................
(6) A joint seniority list of all civil servants serving in the institution who do not opt for absorption and the employees of the institution shall be maintained in the respective cadres with reference to their respective dates of regular appointment to the service or post for the purpose of their future promotion"
8. It is thus clear from rule l0 that a person who opts to serve under the Institution shall cease to be an employee of Government from the date of his notification for absorption in the service of the institution. There is no mention of issuance of NOC by Secretary Health or Provincial Government.
Learned counsel representing the Chief Executive and Management Council Ayub Medical Institution (respondents Nos.2 and 3) submitted that petitioner after absorption permanently in Ayub Medical Institution Abbottabad was promoted from BPS-17 to BPS-18 and from BPS-18 to BPS- 19 by the Promotion Committee and Management Council of the Institution. The representatives of Provincial Government being its members have never objected to the petitioner's promotion nor pleaded that petitioner was still an employee of Health Department of Provincial Government.
' In view of the above legal position we are constrained to hold that after permanent absorption of petitioner in Ayub Medical Institution, respondent No,1 had no lawful authority to repatriate the services of petitioner to the Health Department of Provincial Government. The impugned actions of respondents regarding repatriation as well as adjustment of petitioner are illegal and without lawful authority, therefore, set aside.
9. Consequently we allow this writ petition, set aside the impugned Notification dated 2-7-2010 and the consequent order dated 10-6-2010 with no order as to costs.