The petitioner, namely, Dr. Muhammad Amin Chugbtai, Radio-Therapist, (Registrar), Nishtar Hospital, Multan, made a representation to the Secretary to Government of the Punjab, Health Department, Lahore, vide his applica--tion dated 28-2-1980 (Annexure D), praying therein that he has been suffering from Bilateral Oto-Sclerosis, with deafness and that his general health was deteriorated, in that, he was getting attacks of Asthama, Insomnia and nervous breakdown, and, therefore, he be allowed to appear before the Medical Board to decide about his disability due to deafness. In consequence, the Health Department, vide its letter dated 2-4-1980 (Annexure E), passed orders for medical examination of the petitioner by the Standing Medical Board for assessing his capacity for further service under rule 3.3(2) of the West Pakistan Civil Services Pension Rules, 1963 (hereinafter called the Rules). It was followed by various clinical tests and examinations and eventually the matter was referred to Professor A. U. Lone, the Head of the Department of ENT; K. E. Medical College, Lahore; and Visiting Surgeon, Mayo Hospital, Lahore. Dr. Lone examined the petitioner and gave the following report on 8-9-1980 (Annexure L):- "A known Oto-Sclerosis with a good Air-bone gap (35-40 DB). Not willing for Surgery. Gets disturbed by hearing aid, as such has lot of problem of hearing."
2. Accordingly, the petitioner was required to undergo an operation as advised by Dr. Lone (Annexure M). The petitioner made a representation to the Chairmae., Standing Medical Board, Multan vide his application dated 2-3-1981 (Annexure N), that he was not willing to undergo the proposed operation as the prospects of this operation were not established and in case of failure of operation, the patient was going to get a dead ear till his end. The Standing Medical Board, vide its memorandum dated 29-6-81 (Annexure O) turned down the representation of the petitioner with the direction that the petitioner should be operated first and after that he should report to the Standing Medical Board for further decision. The petitioner approached the Government for the redress of his grievance but with no success.
3. The petitioner has assailed the validity of the impugned action of the respondents inter alia on the ground that in the purported exercise of powers under rule 3.3, the respondents cannot compel the petitioner to undergo surgery operation against his wishes for the purpose of taking a decision as to whether he has been permanently incapacitated for further service. It is also contended on behalf of the petitioner that the risk of dead ear after the operation cannot be ruled out. Therefore, the petitioner cannot be compelled to undergo the operation advised by Professor A. U. Lone, for the purpose of availing the benefit under the aforesaid Rules.
4. A report was called for from .Professor A. U. Lone regarding the prospects of Stapedectomy operation in this country. It is admitted in the report that the risk of dead ear cannot be ruled out.
Para. 4 of the report, however, says that "the chances of dead ear Stapedectomy are very rare.
John, J. Shea, the founder of this operation places the risk of dead ear as 0.2 per cent.". It is further stated in the report that the prospects of this operation are well established and the operation is being done since 1958. Though the first operation for this disease was done in 1876. Professor A. U.
Lone has, however, agreed with the apprehension of the petitioner expressed in para. 5 of Annexure N that "in case of success no person can give a guarantee that the hearing sense will last for ever. It is just possible that after some time gradual deterioration will lead to a dead ear".
5. The learned counsel for the petitioner has drawn my attention to the opinion expressed in the Book entitled, "Diseases of the Nose, Tbroat, and Ear", Edited by Chevalier Jackson, M. D. So. D. L. L. D., F. A. C. S., Late Honorary Professor of Laryngology and Broncho-Esophagology, Temple University Medical Centre, Philadelphia & Chevalier L. Jackson, M. D., M. Sc., F. A. C. S., Professor of Laryngology and Broncho-Esophagology, Temple University Medical Center, Philadelphia, Second Edition 1959.
The relevant passage at page 495 reads thus:- "The primary obstacle to the success of the fenestration operation has been the tendency of the fistula to become obliterated by formation of new bone. It is evident from the reports of the men doing the greater number of these operations, that no sure method of preventing this closure has yet been devised. In other words, no one can tell the patient that even if his hearing is improved immediately following the operation (which it usually is) that it will remain improved for so many months or so many years following the operation. If the fistula does close, or if the hearing for any reason goes down even slightly after what may appear to the patient to be a satisfactory improvement, the result is sometimes tragic. The mental reaction may be even worse than when the hearing was originally lost. In this connection one must not forget that no matter how much the hearing for the speech frequencies is improved on the basis of the lowering of the threshold, that unless the threshold is near or above the 30 decibel loss line the hearing will not be what is called `satisfactory' even for near speech. The patient wants satisfactory haring, not just temporary satisfaction, and not just some improvement in hearing."
6. As regards the prospects of operation, a perusal of the relevant passage from the said book would show that the operation is of little hazard to life but the overall statistics of functional results are very misleading. As regards operative hazards, reference may be made to the following passage occurring at pages 495/496: "Operative hazards include injuries to the fallopian canal and facial nerve to the membranous labyrinth, and the semicircular canals or the vestibular membranes, with consequent inflammatory reactions and loss of function of the labyrinth.
Paralysis of the facial nerve and prolonged vertigo are postoperative complications which, in the great majority of instances, clear up. Increased or total deafness occurring postoperatively does not clear up. Infection of the wound and delayed healing often require many months and even years of postoperative care.
A person who has had a fenestration operation should be forbidden to swim or use water in the ear. Cold winds or draughts and violent blowing of the nose should be avoided.
Although the operation apparently has had no curative effect upon the lesion, yet in the great majority of instances there has been an immediate improvement in the hearing. Overall statistics of functional results are very misleading because some surgeons report over 80 per cent. Of those operated upon with a satisfactory level of hearing (30 decibels and less below normal) and others report only 30 per cent. (one to five years after the operation). If the hearing is below the 30 decibel level the value of the operation is questionable in view of the risks involved. The hearing level obtained soon after the operation is apparently seldom if ever maintained, but in spite of this or of no improvement, some patients derive from the operation a sense of satisfaction and a better adjustment to their handicap. They feel that they have at least done all that can be done and there is no urge for further struggling to bring back the hearing, and to defer using a hearing aid.
The so-called `stapes mobilization' has been revived as a measure to improve hearing. This procedure has in some instances apparently improved the hearing as much as sometimes even more than the fenestration operation. The percentage of successes varies from series to series even in what are thought to be favourable cases. On the average, from 30 per cent. To 45 per cent.
Obtain a result which seems worthwhile.
The grant of invalid pension is governed by rule 3.3 which reads thus-,- "Invalid pension.-(1) An invalid pension is awarded on his retirement from Government service, before reaching the age of superannuation to a Government servant who by bodily or mental infirmity is perm--anently incapacitated for further service on production a medical certificate prescribed in sub-rule (3).
(21 A Government servant who wishes to retire on invalid pension should apply to his Head of Office or Department/Attached Depart--ment who should direct him to present himself before a Medical Board or an Invaliding Committee or a Medical Officer for obtaining a medical certificate of incapacity for further service in the following form:- Certified that I (we)--have carefully examined A. B. Son of C. D. a --in the--. His age is by his own statement----years, I (we) ----consider A. B. To be completely and permanently incapa--citated for further service of any kind (or in the Department to which he belongs) in consequence of---- (here state disease or cause).
Note.-(1) If the incapacity does not appear to be complete and permanent, the certificate should be modified accordingly and the following addition should be made: - I am (we are)-- of opinion that A. B. Is fit for further service of a less laborious character than that which be has been doing (or may after resting for-- -months, be fit for further service of a less laborious character than that which he has been doing).
Note.-(2) A medical certificate from a Medical Board of an Invaliding Committee shall be required in the case of a gazetted Government servant.
(3) A Government servant who has submitted a medical certificate of incapacity for further service should be invalided from Government service on receipt of the medical certificate, or from the date of expiry of leave if already on leave, or has been granted leave as a special case."
7. A bare perusal of the aforesaid rule clearly shows that the Government has no power to compel a Government servant to undergo surgery operation. A Government servant is entitled to seek his retirement, who by bodily or mental infirmity is permanently incapacitated for further service on production of a medical certificate as required by sub-rule (3) ibid. Sub-rule f2) of rule 3.3 further provides that if the incapacity does not appear to be complete and permanent, then on production of a medical certificate, a Government servant may, after providing rest for some months be declared fit for further service of a less laborious character than that which he has been doing prior to his incapacity. In these circumstances, the Standing Medical Board was only required to see whether the petitioner was permanently incapacitated for further service in the Government or that the incapacity was not complete and of a permanent nature but was of the kind which required less laborious character of service which the incumbent was performing prior to his incapacity. It is highly unjust, oppressive and unwarranted by law to compel the petitioner to take the risk of most tragic result of deprivation of sense of hearing for ever by undergoing the operation merely for the purpose of 'determination as to whether he is entitled to invalid pension. The petitioner has got a vested right to demand that his application for invalid pension is decided by the competent authority strictly in conformity with the Rules and in accordance with law. The imposition of condition of undergoing an operation for this purpose was wholly extrane--ous and ultra vires of Rule 3.3. The learned Assistant Advocate-General does not dispute the proposition of law that the question of invalid pension should be determined by the competent authority in conformity with the provisions of the aforesaid Rules which do not contemplate compulsory operation of the incumbent. I am also inclined to agree with the view expressed by the learned Assistant Advocate-General on this point.
8. In view of the above, the writ petition is accepted to the extent that respondent No. 2, namely, the Standing Medical Board, Multan, is directed to decide the question of incapacity or otherwise of the petitioner for further service in the Government, in accordance with the Rules and law, and without compelling him to undergo the impugned operation. Respon--dent No. 1 is also directed to expeditiously decide the case of the petitioner for the grant of invalid pension in the light of the observations made in this order, justly, fairly and in accordance with law.
There shall be no order as to costs.