The succinct facts germane to the disposal of instant constitutional petition are that the petitioner , who was initially appointed as Junior Special Education Teacher (H.I. Field/BS-16) in the Special Education Department and attained the rank of Senior Special Education Teacher (H.I. Field/BS-17), had applied for the post of Headmaster (H.I. Field/BS-18) through proper channel in the same department. He was eventually selected as such by the Punjab Public Service Commission and offer of appointment dated 18.08.2016 was duly accepted by him, yet the respondents denied the issuance of his appointment letter inter alia on the premise that he failed to furnish the medical certificate as a pre-requisite for the purpose.
2. Feeling aggrieved, the petitioner filed a representation before the Secretary Special Education, which was turned down on 09.11.2017; and appeal filed by him there-against was also meted out a similar treatment by the Chief Secretary Punjab, who, vide impugned order dated 29.08.2019, maintained earlie r view of the Secretary Special Education, to the effect that non-provision of medical fitness certificate by the petitioner was fatal for the issuance of appointment letter . Hence, the instant constitutional petition was instituted by the petitioner with the following prayer:- "Under the above mentioned circumstances it is most respectfully prayed that the instant writ petition may kindly be accepted and order dated 29.8.2019 passed by the respondent No.1 may kindly be declared to be illegal, ultra- vires, without jurisdiction, perverse and erroneous and may kindly be set-aside, and the Special Education Department/Respondent No.2, being competent authority may kindly be directed to issue the appointment order in favour of the petitioner against the post of Headmaster (HI) (B-18), in response and acceptance submitted by the petitioner , in the interest of justice.
Any other relief which this Hon'ble Court deems fit and appropriate may be also awarded."
3. I have heard the learned counsel for the petitioner and the learned Assistant Advocate General assisted by the Law Of ficer of the respondents.
4. There is no denying the fact that the petitioner was working in the University as Assistant Professor after obtaining the permission from his parent department under the Punjab Civil Services (Applications for Posts) Rules, 1987 and had retained lien period intact. He was already in government service when he was declared eligible and recommended by PPSC to be appointed for new assignment as Headmaster . The respondents have overlooked their authority in utter breach of law, in that, the petitioner was not obliged to provide another medical certificate, being already in government service. It is obvious and clear from the bare perusal of SOR.IV(S&GAD)-5-16/84 dated 18th April, 1984, that demand of fresh medical fitness certificate was negligent act on part of the respondents. It is abundantly clear that the respondents had to concede a precious right that accrued to the petitioner as they could not call upon the petitioner to produce such medical certificate for the purpose. Such requirement was mandatory only for first appointment in any Government department.
5. Examination of relevant SOR.IV(S&GAD)-5-16/84 dated 18th April, 1984, as adopted, explicitly reads, as under:- "I am directed to say that rules 3.2 to 3.6 of the Civil Service Rules (Punjab), Vol.I, Part-I require production of medical certificate of fitness on first entry into Government service. A question has arisen as to whether a Government servant who was medically found fit on his first appointment should again furnish medical certificate of fitness on his appointment to another post within or outside his parent department. According to Note 3, below rule 3.2 of the rules ibid, a temporary Government servant who has already produced medical certificate in one office, should not, if transferred to another office without break in his service, be required to produce fresh certificate. All appointing authorities are therefore advised not to insist on the production of medical certificate of fitness on subsequent appointments in cases where a Government servant has already produced medical certificate on his first entry into government service provided that there is no break in his service." (emphasis supplied)
This reveals that the Government had already issued instructions as pointed-out hereinabove to all the appointing authorities to abstain from foisting the production of fresh medical certificate of fitness upon any government servant on account of his/her another appointment in the Government department. In such eventuality , it was incumbent upon the respondents to issue appointment letter to the petitioner and its denial is tantamount to flagrant defiance of the law as it deprives the petitioner of the invaluable right already accru ed to him in consequence of his worth demonstrated in the prescribed manner . The demand of a fresh medical fitness certificate which eludes the fruit he had to reap in the form of his new appointment was a careless attitude on the part of respondents who had erroneously discharged their authority in an unjust and unwarranted manner . The act of the respondents was patently in derogation to the law and, on the face of it, was illegal, unlawful and without any legal justification inasmuch as no fresh medical fitness certificate was required for appointment to another post particularly when the applicant/candidate was already performing the duties and holding a post as civil servant in same department of the Government.
6. It is not far-fetched to mention that the provisions of rules No.4 & 5 of the Punjab Civil Services (Applications for Posts) Rules, 1987, have further depicted such prospective appointments in the following manner: "4. Forwarding of Applications.- (1) If any civil servant applies for permission and is otherwise eligible to appear at a competitive examination to be held by the Commission, his application shall be forwarded thrice but not more than thrice for each examination during whole of his service.
(2) If any civil servant applies for permission and is otherwise eligible for recrui tment to any other post his application shall always be forwarded.
Explanation: The appointing authority may withhold permission to apply , if for reasons to be recorded in writing such permission is considered to be against public interest.
5. Release on Selection for Appointment to a Post for which application has been forwarded.- When a civil servant whose application has been forwarded in accordance with rule 4, is selected for appointment, he shall be released."
According to these rules the application for another post of an employee could only be accepted if it was forwarded through the office of competent authority and thus, was enough to regard the fitness of that person as valid and consent of that department not to object to relieve him on his selection. The demand of respondents to produce a fresh medical certificate or No Objection Certificate from his existing department was nothing short of disregarding the rationale underlying the rules ibid and can only be declared as uncalled for. It is settled law that party should not be made to suffer for action or inaction of the authority , who was obliged to follow the law. The Hon'ble Supreme Court of Pakistan, vide judgment dated 11.06.2014, passed in C.P. No.51-L of 2014 titled Ahsan Jabbar v.
Government of the Punjab, and others has held that if some fault was committed by the departmental authorities while assessing eligibility for appointment, the employee could not be deprived from his job due to faults of the department. A lawful right was emanated by the recommendation of PPSC and offer letter accepted by the petitioner , which was hampered/frustrated without any legal justification.
7. Another reason assigned for refusal to issue the appointment letter to the petitioner as Headmaster (BS-18) on the account that a period of 190 days had elapsed since the recommendations of Public Service Commission, is also not tenable. Suffice it to observe that neither the petitioner was a new appointee nor was the demand of fresh medical fitness certificate sustainable by any stretch of imagination. Although the inference of the respondents was not worth consideration, the respondents never wrote any letter to the Hospital concerned for petitioner 's medical examination following his acceptance of offer of appointment. Such inaction on their part smacks of indifferent and even apathetic conduct to thwart petitioner from exercising a right vested in him under the law. The act of the respondents flouted the relevant rules and turns out to be in utter derogation to the law. The respondents miserably failed to discharge the legal obligation rather breached their solemn responsibility . Even otherwise, the petitioner cannot be made victim of a wrongdoing of the authorities to which he was not at all guilty or at fault. It is but sheer violation of law to suggest deviating course in conflict with the Government Circular itself that permits any new incumbent to join the service without furnishing fresh medical fitness certificate. It is to be borne in mind that an employee ought not to be penalized or blamed for the faults or omissions on the part of employer in the recruitment process. Hence, it goes without saying that the denial of issuance of appointment letter to petitioner in terms of the recommendation of the Punjab Public Service Commission was without any rhyme and reason.
8. In view of the above, it becomes obvious and clear that the petitioner has been made victim of a wrong doing of the respondents, to which, the petitioner was not at all guilty or at fault. As noted above, if there was any lapse it was on the part of the respondents. If any Circular , Notification or memorandum as noted above, had gone unnoticed by the respondents, it is not the mistake of petitioner who cannot be attributed any wrong, and the respondents cannot be allowed to take benefit of their own oversight, lapse or ignorance of law .
9. For the foregoing reasons, the action of the respondents qua non-issuance of appointment letter to the petitioner is hereby declared to be without lawful authority , illegal, contrary to the settled principle of law as well as the Rules & Regulations and therefore, the same are hereby set-aside being of no legal effect, with a direction to the respondents to issue appointment letter to the petitioner within a period of one month from the receipt of certified copy of this order , strictly in accordance with law .
Accordingly , this petition is allowed .