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Appeal No. 2(K) of 1976, heard on 10th April, 1979.

--Ss. 4 & 7---Supplementary Rule 4-AA made under Fundamental Rule 10-A Retirement Medical grounds---Appellant retired on medical grounds with retrospective effect by amending his date of retirement and asked to refund amount of salary received after date of retirement so amended Amended order issued by Government simply to wriggle out of strong plea raised by appellant that amount of salary received by appellant for period alleged to have been paid in excess was actually paid for duties performed when appellant was very much in service Medical Board not finding appellant incapacitated or invalided for purpose of government service Order of appellant set aside and appellant ordered to be reinstated in service from date of his retirement as amended Appellant was also declared entitled to consequential service benefit.

‑‑‑Ss. 4 & 7‑‑Retirement‑‑Medical grounds‑ Opinion of competent Medical board to declare a civil servant invalid for purpose of retirement from Government service, held, was to be specific, definite and conclusive‑ Report of Medical Board qualified and non‑specific with indication for improvemc‑sit of his health to enable him to resume duties on performance of eye operation‑‑Second Medical Board never examined petitioner and did not submit any medical report‑‑Orders of retirement passed by Government, held, was without support of Rules and applicable instructions.

Manzoor Ali Khan for Appellant.

Syed Mohammad Shahudul Haque for Respondents.

Date of hearing: 10th April, 1979.

‑‑Mr. Abdul Rehman, the appellant, while he was serving as Deputy Director (Inspection), Department of Investment Promotion and Supplies, Karachi, received an order contained in the Notification No. PF‑1(60) Coord‑II, dated 21‑5‑1975 in which the Industries Division retired him from service with retrospective effect from 3‑8‑1974 (Annexure 'A' to the memo. of Appeal).

2. In pursuance of the aforementioned Notification the Department of Investment Promotion and Supplies, Karachi issued a letter No. E.V./136(1)/51, dated 31‑5‑1975 requiring him to furnish his relinquishment charge report forthwith. In addition they demanded from him to make necessary arrangements of refunding his salaries received after the date he was made to retire i.e. 3‑8‑1974 (Annexure 'B' to the memo. of appeal).

3. Consequent upon his retirement made vide Notification of the Ministry of Industries aforementioned, the A.G.P.R. Camp Office, Karachi also required the appellant vide their letter No. GA.IV/IP&S/ 2569‑70‑71, dated 16th June, 1975 (Annexure 'S(1)' to the memo. of appeal) to refund the amount of Rs.20,412.74 accruing to him on account of salaries he received and alleged to have been overpaid between 3‑8‑1974 and 31‑5‑1975 i.e. the date he was made to retire with retrospective effect and the date he was actually relieved of his charge of Deputy Director (Inspection).

4. The facts giving rise to this appeal, in fact, are that the appellant started weakening his eye‑sight and was required by the Department to appear before the Medical Board. The Medical Board, according to the Civil Surgeon, Central Government Karachi, letter No. 2232/CSCG, dated 12‑7‑1974 (Annexure 'C‑1' to the memo. of appeal), examined the appellant, on 11‑5‑1974 and gave their opinion as contained in the above letter of the Civil Surgeon, Central Government, Karachi that the eye‑sight of the appellant is too weak to enable him to do normal office work. The letter of the Civil Surgeon further suggested that in case the appellant gets himself operated upon, his eye‑sight is likely to improve and he may be able to do normal work but in his condition at the time he was not fit for Government service.

5. The appellant, on hearing the report of the Civil Surgeon regarding the findings of the Medical Board, at first, did not agree to the idea of getting his eyes operated upon. He then showed his willingness to be operated upon in the Spencer Eye Hospital (Annexure 'E' to the memo. of appeal). But since the Spencer Eye Hospital was a private owned hospital, the Government was unable to arrange his operation and suggested that he may be operated in the Jinnah Post‑Graduate Medical Centre, Karachi. Accordingly he was referred to Jinnah Post‑Graduate Medical Centre by the Civil Surgeon. The appellant regularly visited the Jinnah Post‑Graduate Medical Centre and continued to receive eye drops treatment by the specialist. This could possibly be due to the condition of his eyes, according to the specialist, not quite mature for the purpose of operation (Appellant's letters at Annexures 'G', 'I', 'J', 'K' and 'L').

6. The appellant was again directed to appear before the Medical Board, on 18‑2‑1975 (Annexure 'M' to the memo. of appeal). The appellant could not appear on the appointed date before the Medical Board on account of his illness but sought for another appointment instead (Annexure 'N' to the memo. of appeal).

7. The Department of Investment Promotion and Supplies after seemed to have been convinced at this juncture that the appellant was avoiding to be examined before the Medical Board, got the orders of his retirement issued by the Industries Division. The appellant having been aggrieved by the above order of his retirement from service with retrospective effect i.e. 3‑8‑1974 preferred a departmental appeal to the Secretary, Industries Division, on 30‑5‑1975 (Annexure'P' to the memo. of appeal).

8. The appellant also submitted another representation on 10‑7‑1975 against the Department of Investment Promotion and Supplies, Karachi letter, dated 31‑5‑1975 and A . G . P . R . Camp Karachi letter, dated 16‑6‑1975 in which they demanded refund of salaries paid to him from 3‑8‑1974 to 31‑5‑1975 i.e. the period he had actually worked and received the salaries for performing his duties of the Deputy Director. (Inspection) (Annexure 'T' to the memo. of appeal).

9. In spite of repeated reminders submitted by the appellant (Annexures 'U', 'V', 'W', 'X', and 'Y') to his representations of 30‑5‑1975 and 10‑7‑1975 he did not receive any reply. The appellant, therefore, came up in appeal against the impugned order of 21‑5‑1975 before this Tribunal, on 31‑2‑1975 with a prayer that the order contained in Notification, dated 21‑5‑1975 be set aside and he be re‑instated in service with all the benefits accruing to him.

10. During the pendency of this appeal, the Government have corrected upon their orders of retirement of the appellant and have amended the date of his retirement from 3‑8‑1974 to 31‑5‑1975 vide their Notification No. PF.1(60)/Coord‑II, dated 9th April, 1978. The Government, in this manner, have decided to withdraw their demand from the appellant for refunding the amount of Rs.20,412.74 which was actually paid to him for the period he had actually rendered service.

11. The learned counsel for the respondents pleaded that his appeal is hit by proviso (a) to subsection (1) of section 4 of the Service Tribunals Act, 1973 and is thus barred by limitation. He stated that the appellant in fact, preferred the departmental appeal, on 30‑5‑1975 against the impugned order of 21‑5‑1975 to which he did not receive any reply. He has come up before this Tribunal in appeal, on 31‑12‑1975 i.e. after the lapse of more than 7 months. He should have, in fact, filed the present appeal within one month after the expiry of ninety days from the date on which the departmental appeal, review or representation was actually preferred i.e. a maximum period of four months is allowed to him in which the last date available to the appellant for coming before this Tribunal was 21‑9‑1975 against which he has come up, on 31‑12‑1975 i.e. three months after the due date has expired.

12. He further argued that the Medical Board found the appellant unfit on 11‑5‑1974 for Government service. The Government, however, took a lenient view and allowed the appellant to have another opportunity of appearing before the Medical Board, on 18‑2‑1975 to get himself declared fit after he was given all this time in between these two dates for receiving treatment and eye operation. The appellant, instead, did not appear before the Medical Board, on 18-2-1975 knowing fully well that he was not keeping fit and the Board could have confirmed their previous opinion and would have declared him unfit for Government service.

13. He also pleaded that the Government have been benevolent to him in correcting the date of his retirement from 3‑8‑1974 to 31‑5‑1975 on humanitarian grounds and have saved him from refunding the amount of Rs.20,412.74 which was paid to him while he was sitting idle on account of failure of his eye‑sight.

14. The learned counsel for the appellant in reply contended that:‑‑

(a) The appellant has not been declared permanently invalid/ incapacitated for the purpose of his service. In accordance with the provisions of Supplementary Rule 4‑AA made under Fundamental Rule 10‑A applicable to 'Central Government Servants', a 'Medical Certificate' is necessarily required to be issued specifically for the condition falling under one of the prescribed pro formas as follows:‑‑

(i) We have examined Mr .of ..Ministry/ Department /Office, whose signature appears below, and find that he is not suffering from any disease which is communicable and likely to endanger the health of other Government servant or a disease which renders him temporarily unfit for duty or permanently unfit for Government service.

(ii) We have examined Mr ..of ..Ministry/Department/ Office, whose signature appears below, and find that he is suffering from ..which is a communicable disease and is likely to endanger the health of other Government servants which renders him temporarily unfit for duty, and we recommend that he may be granted leave for a period of ..for treatment and rest.

(iii) We have examined Mr. ..of ..Ministry/Department /Office, whose signature appears below, and find that he is suffering from ..which renders him permanently unfit for Government service and we recommend that he may be invalided from Government service.

The Medical opinion relied upon by the respondents said to have been expressed by the Medical Board, on 11‑5‑1974 does not state to have prescribed any one of the above three conditions enunciated in accordance with the provisions of S.R. 4‑AA and cannot, therefore, be legally maintainable for the purpose of retirement of appellant on account of allegedly rendering him unfit for Government service.

(b) Appellant has continued to work until 31‑5‑1975 when in an anomalous situation, he was retired with retrospective effect from 3‑8‑1974. He was paid for his work all his salaries etc. which proves beyond doubt that he was not incapacitated from performing his official duties.

(c) He was continuously under treatment of an eye specialist from the day he was referred to by the Civil Surgeon, Central Government on reference to him in turn from the Department.

(d) Medical opinion suggested operation but the condition of his eyes was not duly ripe for operation. He was, therefore, kept on oral treatment. It was certified that operation was likely to improve his eye‑sight and he may be able to do normal work. Before such an occasion could arise, the appellant was retired all of a sudden.

(e) The appellant, in fact, should have been referred to the Medical Board after he could not appear before it, on 18‑2‑1975. The authorities did not wait for the opinion of the 'Medical Board' to report on his fitness or otherwise for service as required by the rules but retired him from service unilaterly with retrospective effect.

15. The appellant submitted his departmental appeal on 30‑5‑1975 and continuously pursued the matter by submitting reminders ‑‑ the last reminder was submitted, on 12‑11‑1975 but was unsuccessful in obtaining the reply from the respondents till the present appeal was filed, on 30‑12‑1975. The Tribunal after having taken the lenient view of the above fact that the appellant has sincerely pursued the matter granted the request of the learned counsel and allowed the case to proceed on merits. The learned counsel for the appellant has, however, filed an affidavit for the condonation of the aforesaid delay under section 5 of the 'Limitation Act' of 1908 read with section 7 of the Service Tribunals Act, 1973 while presenting the instant appeal.

16. The Tribunal have thoughtfully considered the matter on merits after fully hearing the arguments advanced by both the parties and have arrived at the following conclusion:

(a) The retirement orders of the appellant issued by the respondent on 21‑5‑1975 with retrospective effect from 3‑8‑1974 are unjustified. Reasons have been attributed by the counsel for the respondents that the appellant was found medically unfit for Government Service by the Medical Board, on 11‑5‑1975 which do not hold any substance. Since the Government have lately modified the order of retirement of the appellant and amended the date of his retirement from 3‑8‑1974 to 31‑5‑1975 i.e. about 28 months after the suit was instituted and was pending in this Tribunal, this gives valid reason that the Government was indecisive and had a long afterthought in planning to amend the date of his retirement simply to lend support against the case of appellant saying that the appellant was exempted from refunding the huge amount received, as salary on the humanitarian grounds. The amendment order issued by the Government, on 9‑4‑1978 was simply to wriggle out of the strong plea raised by the counsel for the appellant that the amount of salary received by the appellant for the period alleged to have been paid in excess was actually paid to him for the duties the appellant had actually performed and was holding the office of Deputy Director (Inspection) and was very much in service.

(b) It is quite evident that the Medical Board did not at all find the appellant incapacitated /invalided for the purpose of Government service as required. The Medical Board under the provisions of F.R. 10‑A read with Supplementary Rule 4‑AA for Central Government Service was required to spell out the condition of the appellant being unfit.

17. The order of retirement of the appellant contained in the Notification No. P.F.1(60)/Coord‑11, dated 21‑5‑1975, issued by respondent No. 1, is, therefore, set aside completely, and it is hereby ordered that the appellant be re‑instated into service at once. He is deemed to be in service with effect from 31‑5‑1975, the date of his retirement as amended vide Notification No. PF.1(60)/Coord‑II, dated 9th April, 1978. He is thus entitled to all the consequential service benefits.

18. No order as to costs.

‑‑I agree with my learned brother in content and conclusion of the above judgment. I would, however, add a sentence to simplify the issue. Under the rules quoted, the opinion of the competent Medical Board to declare a civil servant invalid for the purpose of retirement from Government service has to be specific, definite and conclusive. The report of the Medical Board is qualified and non‑specific with an indication for improvement of his health to enable him to resume duties on performance of eye operation. The second Medical Board never examined the petitioner and did not submit any medical report. The orders of retirement passed by the Government have, therefore, no support of rules and applicable instructions.

M.Y.H.

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