This Constitutional petition has been filed to call in question the impugned order dated 12-4-1995 passed by the Controller Personnel, Pakistan Television Corporation, Islamabad respondent No. 2, for the petitioner's retirement on medical ground.
2. Briefly stated the facts giving rise to this petition were that the petitioner was appointed as Associate Engineer (group 4) in the PTV on 14-6-1993. After the requisite medical tests conducted by the-Corporation's doctor, the petitioner was allowed to join his duties at the Lahore Centre of P.T.C. Accordingly, the petitioner joined his duties on 8-7-1993 but after about 19 days he felt some renal problem and was admitted in Ihsan Hospital, Lahore. On the advice of the Medical Board, the petitioner was shifted to C.M.H., Rawalpindi for renal transplantation. Accordingly he underwent a successful surgical operation and rejoined his service somewhere in February, 1994. He was formally confirmed on 3-3-1994 with effect from 8-10-1993. The petitioner performed his duties for a short period, became unwell and again proceeded on medical leave. On 26-7-1994, the petitioner was directed by the General Manager, P.T.V. To appear before a Special Board on 28-7-1994 which was constituted to decide the following three matters:-
(a) The status of Mr. Tasawwar Ahmad, regarding his treatment at the expenses of Corporation.
(b) Length of period for which such entitlement can be sustained.
(c) The Medical Board must decide whether, there would be any obligation on the part of P.T.V. To provide medical help to Mr. Tasawwar Ahmad under P.T.V. Service Rules or otherwise.
The Board was not specifically required to express an opinion regarding petitioner's physical fitness to perform his duties. The petitioner claims that he went to the Clinic of P.T.V. Medical Officer, situated at 367-M, Samanabad, Lahore but the Members of the Board did not assemble to examine him. However, keeping in view the previous history of his ailment the petitioner was retired from service vide order dated 12-4-1995 passed by the Controller Personnel, P.T.V., Islamabad, respondent No. 2.
4. The petitioner's learned counsel contends that after the kidney transplantation, the petitioner became fit to resume his duty; that he performed his duties satisfactorily and was confirmed in service on 3-3-1994; that the Medical Board never examined the petitioner regarding his fitness to remain in service; that the petitioner has been getting treatment from Col. Shaheen Moin, Associate Professor, Army Medical College, Rawalpindi, who certified on 19-11-1995 that the petitioner was fit to perform his routine duties. On the other hand, learned counsel for respondents raised a preliminary objection that the present writ petition was not competent under Article 199 of the Constitution. He further submitted that out of total length of service the petitioner worked only for 33 days and that he was rightly retired on medical grounds.
5. The Pakistan Television Corporation is a statutory public Corporation, mainly controlled by the Government and is performing functions to connection with the affairs of Centre. The relationship between the Corporation and its employees is governed by certain rules and is not that of master and servant. The above view finds support from the judgments in the cases of Muhammad Aslam Saleemi v. The Pakistan Television Corporation and another PLD 1977 Lah. 852 and Nasir Ahmad, Controller Administration, Broadcasting Corporation v. Federal Minister, Information and Broadcasting, Government of Pakistan, Islamabad and 3 others (1979 CLC 133). The petitioner being a confirmed/permanent employee of the PTV could competently invoke Constitutional jurisdiction of this Court.
Therefore, the preliminary objection raised by the respondents' learned counsel is repelled.
6. There is no condition either in the letter of appointment of the petitioner or the Pakistan Television Corporation Ltd. Employees' Service Rules for premature retirement of an employee on medical grounds. The learned Legal Advisor for the Corporation has candidly admitted the correctness of the above legal position but submitted that the petitioner was confirmed simply because his probation period had ended and not due to his satisfactory work. This argument cannot be countenanced because Rule 5.20 regarding confirmation of an employee clearly stipulates that confirmation may take place if an employee is considered fit for confirmation at the end of his probation period. Therefore, the factum of the petitioner's confirmation, prima facie, shows that his work was found to be satisfactory, hence he was considered fit for confirmation. The only rule regarding retirement of an employee is Rule 5.28 which relates to retirement from service on attaining the age of 60 years. The petitioner is a young man of about 30 years of age and could not be retired under Rule 5.28. The other provisions embodied in rule 5.30 (a to c) relate to review of employees for their retention in service after the age of 60 years. Hence the same cannot be made applicable to the petitioner's case. Even otherwise, the Medical Board constituted by the General Manager vide Office Order dated 26-7-1994 to decide the question regarding the petitioner's entitlement for medical treatment at the expenses of the Corporation had not actually examined the petitioner to determine his fitness to perform his duties. The petitioner has placed on record report dated 7-2-1994 made by Lt.-Col. Dr. Amin Waqar of the Nuclear Medical Centre Armed Forces Institute of Pathology, Rawalpindi which reads as under:-- "Renal transplant scintigraphy with Tc-99m DTPA on 6-2-1994.
Description.--The transplant kidney has good perfusion (PI: 100) with good selective uptake of activity. The activity starts appearing in the urinary bladder at 3-40 m.i.
Opinion. ---Well perused, well functioning transplant."
This opinion was expressed shortly after the petitioner's kidney transplant and showed that it was functioning well. The petitioner also placed on record the medical certificate (Annexure IX) from his treating physician Col. Shaheen Moin, Associate Professor of Medicine Army Medical College, Rawalpindi. Thus the medical report and the certificate produced by the petitioner support his claim that he is fit to perform his duties. There is no C reliable material from the respondent's side except the opinion expressed by the Medical Advisor of the Corporation who had not personally examined the petitioner but based his opinion 'on the previous history of the petitioner's ailment and opinion of the Medical Board. The same could not be relied upon in preference to the documents produced by the petitioner. Therefore, it can be safely concluded that there was no valid reason to hold that the petitioner was not fit to perform his duties. Moreover, as discussed above, there is a lacuna in the service rules as there is no provision in the rules for retirement of an employee on medical grounds. The competent Authority may take notice of this short coming in the rules and amend the same so as to make a definite provision for retirement of an employee if he is found to be medically unfit to perform his duties. In the absence of such a rule, respondent No. 4 was not competent to pass order dated 12-4-1995, regarding the Petitioner's retirement.
7. In this view of the matter, the writ petition is accepted and the impugned order dated 12-4-1995 passed by respondent No. 1 is declared to be without lawful authority and of no legal effect. The petitioner is ordered to be reinstated forthwith. He shall be paid his salary and other dues including the expenses incurred by him on medical treatment as admissible under the rules.