' While looking into the facts of this appeal it is surfaced that appellant Dr. Haroon Aziz Khan Babar was appointed as Medical Officer in the Health Department, Govt. Of Punjab on 7.3.1092. He obtained leave for a period of three years and completed his education from Royal College of Physician Ireland and United Kingdom and was awarded the Fellowship of the Royal College of Physician of Edinburg in 2005. Earlier to it, he was appointed as Senior Registrar (current charge basis) on 09.12.1995 and also awarded Diploma in Cardiology in 2001. He served as Assistant Professor Cardiology, AIMC and Consultant Cardiologist Jinnah Hospital, Lahore from June 2002 to October 2002. He again obtained leave and worked at King Abdul Aziz Specialist Hospital, Taif (Saadi Arabia) as Chief Consultant Cardiologist and Head Division of Cardiology till 2005 when he was offered appointment as Assistant Professor at Ch. Pervaiz Elahi Institute of Cardiology (CPEIC), Multan on contract basis. Consequently, he resigned as Medical Officer on 10.09.2005 being on the strength of Health Department, Govt. Of Punjab as he was appointed as Assistant Professor in CPEIC, Multan. In '2007, on the recommendations of Special Selection Board, he was appointed as Associate Professor of Cardiology (BS-19) on contract basis for three years in CPEIC, Multan and he assumed the charge on 08.08.2007. However this contract was terminated* on 28.02.2011 allegedly on account of political pressure exerted by Sardar Zulfiejar Ali Khan Khosa, the then Senior Advisor to Chief Minister Punjab pertaining to which a D.0 letter dated 11.05.2010 is also placed on the record.
2. The appellant assailed it before Hon'ble Lahore High Court, Lahore through writ petition No, 3356/2011. As a result of which the termination order was set aside on 05.07.2011. He filed another Writ Petition No, 16561/2012 for regularization of his appointment as it was done in the case of one Afsar All Bhatti. The Hon'ble High Court disposed of the writ petition with a direction. To consider the case of the appellant sympathetically. However, he assailed it through ICA No, 42/13 whereby in view of statement of the respondent's counsel it was ,ordered that the case of the petitioner be submitted to the Selection Board.
3. Aggrieved of the situation, respondent issued an order dated 23.08.2013 placing the services of the appellant at the disposal of EDO(Health), Lahore for further posting as per his status/rank. He assailed it before Hon'ble Lahore High Court, Lahore vide Writ Petition No, 22554 alleging therein that after tendering resignation from the post of Medical Officer on 10.09.2005 he was no more civil servant under the administrative control of Health Department, Government of Punjab. Butt even then he was proceeded under PEEDA Act 2006 and on account of his alleged willful absence from duty w.e.f 23.02.2012 a minor penalty of withholding of two increments for a period of two years was imposed upon him vide impugned order dated 08.04.2014 whereby his plea with regard to his resignation dated 10.09.2005 was brushed aside without recording any verdict. Instead of it, he was advised to put his resignation along with "No Dues Certificate" and deposit of one month pay in advance if he wishes to resign from service. The appellant challenged the impugned order by Writ Petition No, 13133/2014, which was dismissed vide order dated 13.05.2014 on the account that an alternate remedy was available to him. So he assailed it before the Chief Secretary Punjab inter- alia on the ground that the respondent before proceeding against him did not decide the question involved regarding his status of civil servant. However, when this departmental appeal was not decided within stipulated period, he filed the service appeal on 12.08.2014.
4. Conversely, the learned District Attorney and the learned Law Officer both prayed for rejection of the appeal as the appellant has been rightly punished on account of his willful absence. He is still civil servant because no resignation allegedly tendered by him on 10.09.2005 is available with the department. .5. After a careful scanning the facts of this appeal, the controversy found floated is just to the extent of an alleged resignation tendered, by the appellant from the post of Medical Officer on 10.09.2005 prior to his joining the new appointment as Assistant Professor in CPEIC, Multan on contract basis, which is however denied by the respondent as not available on the record of department. To establish it, the appellant has provided a certificate, issued by the Executive Director, CPEIC Multan dated 21.01.2014 along with copy of resignation dated 10.09.2005 whereby it is verified that the copy of said resignation-tendered by appellant from the .Post of Medical Officer on 10.09.2005 addressed to the Secretary Health Department is available at page No, 21 of his personal file. Surprisingly, in the parawise comments submitted by respondent no specific reply is given to this effect, rather it is treated as irrelevant in the words "needs no reply". Consequently on this point appellant is justified to plead that infact department is not willing to answer this issue in specific terms on account of a visible political vendetta in the backdrop of which a past and closed transaction has been re-opened just to create atmosphere of harassment against the appellant.
For this purpose the original resignation tendered by him on 10.09.2015 has also been removed from the record of department as its submission has not been denied categorically.
6. It is further an established fact that appellant was appointed as Assistant Professor on 15.09.2005 at CPEIC Multan on contract basis and obviously this appointment was not made by. Way of transfer or promotion, so if on 15.09.2005 the appellant was serving the Health Department as Medical Officer, then as to why required NOC was not obtained from him earlier to his joining against a post offered as a fresh appointment. Naturally he had resigned earlier to it on 10.09.2005.
It is also a hard fact that appellant served against both the positions in the same department i,e, as Medical Officer on regular basis and Assistant Professor on contract basis, then how it was possible that before joining against a new post on contract basis the required codal/procedural formalities were not fulfilled including NOC for his fresh appointment as Assistant Professor, which was neither offered to him as promotion post nor as a post by way of transfer. In the given situation the conduct of department with regard to non demanding of NOC from the appellant is sufficient to establish that his resignation tendered on 10.09.2005 was accordingly accepted. The stance taken by the department thereafter is nothing but to conceal the factual position with regard to tendering of resignation. A specific stand taken by appellant cannot be denied through non specific replies. This situation also reflects that the issue of non submission of resignation is raised by the respondent just to drag the appellant into departmental proceedings under PEEDA Act, 2006, which otherwise was not applicable on him being an employee on contract basis. Reliance is placed on 2014 SCM R 1199.
7. It is further, surprising that subsequently the appellant was also offered appointment to the post of Associate Professor of Cardiology in BS-19 on contract basis vide offer letter dated 08.08.2007, issued by Health Department, Govt. Of Punjab. It is not a letter issued without observing codal formalities, rather the post was offered to the appellant on the recommendations of the Special Selection Board in CPEIC, Multan. Obviously neither it was a promotion post nor offered to the appellant by way of transfer. If in those days the appellant was still employee of Health Department as Medical Officer, then why he was not asked to submit no objection certificate prior to joining this fresh appointment on contract basis to an elevated post.
8. As per version of the respondent this appointment letter was issued by the Section Officer without its approval by the authority. Moreover, this appointment was made against a newly created post of Associate Professor on the orders of Chief Minister and not on the basis of recommendations of Selection Board. But this stance of the department is unbelievable on the face of it. If an appointment letter for the post of Associate professor was issued by the Section Officer without approval of the authority then why said Section Officer has not been punished for a gross misconduct. At least no explanation is available before this Court to this effect. Further appellant was recommended by the Selection Board at Serial No, 3 for his appointment as Associate Professor. The man at Serial No, 1 did not join the post which thereafter was offered to the candidate at Serial No, 2 who joined it. Subsequently, the post of Associate Professor was created admittedly with the efforts of appellant and on the directive of Chief Minister Punjab dated 31.07.2007 for the joining of last candidate of the list so recommended who was none else but the appellant. It is further an admitted fact that no salary of the post of Medical Officer is received by the appellant from 10.09.2005 to onward nor any post on the basis of promotion is offered to him despite passage of so many years nor meanwhile he was subjected to any transfer or posting to various places as Medical Officer.
9. It is also noteworthy that after a visible political pressure the contract of appellant as Associate Professor was terminated on 28.02.2011 and subsequently this order of termination was set aside by the Hon'ble Lahore High Court, Lahore vide order dated 05.07.2011, but thereafter on 23.08.2013 his services were placed by the respondent at the disposal of EDO (Health), Lahore for further posting as per his status/rank against a vacant post with immediate effect. It is again horrible to note that even then in the impugned order dated 08.04.2014 he has been punished on the charge of willful absence from duty w.e.f 23.02.2012. If there was no complaint against him till 23.08.2013 with regard to any absence from duty then how he has been punished for his willful absence w.e.f 23.02.2012.
The impugned order is also reflecting another novelty that without recording any verdict regarding stance of appellant pertaining to his resignation, tendered on 10.09.2005, he is advised to put a resignation if he was willing to do so: The attributed bias of the authority is also evident from the fact that in pursuance of impugned order, the appellant submitted another resignation on ,13.05.2014 without prejudice to his earlier stand regarding his resignation tendered on 10.09.2005, but no further step has been taken so far.
10. In view of the fact discussed above it is quite established that the appellant had tendered his resignation from the post of Medical Officer on 10.09.2005 prior to joining the post of Assistant Professor in CPEIC, Multan on 15.09.2005 on contract basis. Consequently, further superstructure built against the appellant after the crucial date is devoid of any worth or legal implications and the order impugned is not sustainable being nullity and without any legal footing. The appeal is allowed in above terms.