' QALANDAR ALI KHAN, J.--- Mushtaq Hussain, petitioner, has filed this writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, with the following prayer; "That on acceptance of the instant writ petition, both the orders dated 27.01.2014 of repatriation to the Health Department, Government of Khyber Pakhtunkhwa and order dated 01.02.2014 of relieving from Ayub Teaching Hospital Abbottabad be set-aside order dated 28.02.2003 whereby the services the present petitioner were absorbed permanently at Ayub Teaching Hospital be declared to be legal and petitioner be declared to be employee of Ayub Teaching Hospital, Abbottabad and any other relief which this Honourable Court deem fit and proper in the circumstances of the case. "
2. The facts leading to the filing of the instant writ petition, briefly stated, are that petitioner was employee of Health Department, Government of Khyber Pakhtunkhwa, with effect from 22.11.1989 and was posted at District Head Quarter Hospital (DHQ) Abbottabad, where he performed his duty as junior clerk till 1998. In order to make functional certain units/departments of Ayub Teaching Hospital (ATH) in the year 1995, some of the employees of DHQ Hospital, Abbottabad, including the petitioner, were transferred to Ayub Teaching Hospital, Abbottabad. With the enactment of Act-XII of 1999, amended in 2002, and rules of 2001, Civil Servants working in Ayub Teaching Hospital were given option of permanent absorption in the hospital and the petitioner accordingly opted for permanent absorption. He was accordingly absorbed permanently vide notification dated 28.02.2003. Thereafter, on account of some dispute on transfer from one department to another in the hospital, the petitioner and some other staff members were repatriated from Ayub Teaching Hospital vide office order dated 27.01.2014 and also relieved vide order dated 01.02.2014; hence the instant writ petition, inter alia, on the grounds that after permanent absorption in the year 2003, the petitioner could neither be repatriated nor relieved on any ground, whatsoever, after having become permanent employee of the hospital.
3. The writ petition was resisted by respondents Nos.1 to 5 i.e, Administration of Ayub Teaching Hospital, Abbottabad, mainly, on the grounds of persistent misconduct, insubordination and defiance of orders of his superiors by the petitioner and further that the process of absorption was not yet complete as confirmation sought from D.G. Health Services NWFP, Peshawar was never received. Therefore, according to respondents, the petitioner was still an employee of Provincial Health Services and could be repatriated at any time.
4. Arguments of Mr. Fawad Saleh, Advocate, learned counsel for petitioner, Sardar Jan Alan, Advocate, learned counsel for respondents Nos.1 to 5 and Mr. Muhammad Naeem Abbasi, Additional Advocate General heard. Record perused.
5. The respondents have not disputed notification dated 28.02.2003, which reads as follows; "The following staff of Provincial Health Services and working in this Institution on detailment from DHQ Hospital Abbottabad is hereby absorbed permanently in the services of Ayub Teaching Hospital Abbottabad w.e.f, 28.02.2003 "1..................................................
2. Mr. Mushtaq Hussain Junior Clerk.
3........................................................................
4...............................................................................
All of them severed their connection whatsoever with their parent department w.e.f, 28.02.2003 (A.
N)."
6. The permanent absorption of the petitioner along with others was notified by the Chief Executive, clearly showing permanent absorption of the petitioner and his severing connection with his parent department with effect from 28.02.2003 (AN). No doubt, in a copy A endorsed to the Director General Health Services NWFP, Peshawar, he was requested to relieve the above officials with effect from 28.02.2003 and also confirm their absorption; but the D.G. Health neither communicated confirmation of the absorption nor ever raised any objection to relieving of the petitioner and others with effect from 28.02.2003. Ever since his permanent absorption in the Ayub Teaching Hospital, Abbottabad, in the year 2003, the petitioner performed his duty being treated as a permanent employee of the hospital and even promoted as senior clerk (B-7) in the year 2005. It was only after the petitioner raised objection to his transfer and discrimination by the Hospital Administration that he was repatriated vide the impugned office order dated 27.01.2014, in the first place, and then relived from the hospital with effect from 27.01.2013, vide office order dated 01.02.2014, by the Medical Superintendent ATH, and not by the Chief Executive who had notified the permanent absorption of the petitioner, more than a decade ago.
7. Apart from question raised about the authority of the Medical Superintendent to order repatriation of the petitioner after his permanent absorption by the Chief Executive, the notification with regard to permanent absorption of the petitioner was never questioned either by the Provincial Government or by the Hospital Administration during intervening period of more than 10 years. The D.G Health Services neither confirmed nor objected to permanent absorption of the petitioner, and remained silent. It is said that there are occasions when silence speaks. The silence of D.G Health, in the circumstances, would amount to approval/confirmation of the absorption, notwithstanding the fact that the permanent absorption was unconditional and not subject to confirmation of the D.G. Health.
8. The misconduct, insubordination and defiance of the orders of Hospital Administration by the petitioner, though could justify departmental proceedings, but by no stretch of imagination justified repatriation of the petitioner after his permanent absorption more than 10 years back. It was, perhaps, this background that the D.G Health Services, Government of KPK, Peshawar, requested the M/S ATH to withdraw relieving order of the petitioner and submit draft charge sheet/statement of allegations against him if he was guilty of misconduct, vide letter dated 02.11.2012.
9. In short, the respondents were unable to defend their unwarranted act of repatriation and relieving of the petitioner from ATH; which act is, as such, declared illegal, unlawful and without jurisdiction/authority, together with impugned orders dated 27.01.2014 and 01.02.2014. Consequently, on acceptance of the writ petition, the petitioner is declared as employee of the Ayub Teaching Hospital, Abbottabad, after his permanent absorption vide notification dated 28.02.2003.