IN THE HIGH COURT OF SINDH, SUKKUR BENCH, SUKKUR

C.P No.D-554 of 2021

 

 

Petitioner:                                                      Dr. Farukh Imtiaz, through

Mr. Nisar. A. Bhanbharo, Advocate.

Respondents No.1 to 3:                                Through Mr. Ali Raza Balouch, Assistant Advocate General

Date of hearing:                                            10.11.2021

Date of decision:                                           10.11.2021 

 

O R D E R

Zulfiqar Ali Sangi, J:                  Through this petition, the Petitioner has sought following reliefs:-

a)                 That this Hon’ble Court may be pleased to issue writ declaring thereby the acts of respondents of withdrawing the NOCs and cancelling the notification dated 09.11.2020 as illegal ab-inito, null and void and having no legal sanctity.

b)                 To set aside the impugned orders dated 20.02.2021 and 22.02.2021 (Annexure A & B) and may further be pleased to allow Petitioner continue his services as Senior Medical Officer in Health Department, Government of Sindh.

c)                 To suspend the operation of impugned orders dated 20.02.2021 and 22.02.2021 till the final disposal of this petition.

 

2.         Learned Counsel for the Petitioner, at the very outset, submits that Petitioner was employee of Khairpur Medical University, Khairpur and after the declaration of Khairpur Medical Unversity, Khairpur as constituent College of Peoples Medical University and Health Sciences, Shaheed Benazirabad, directions were issued for receiving offer an option and letter was issued to all the serving employees of Khairpur Medical College, Khairpur for their willingness either to continue serving Health department, Government of Sindh or joining the Peoples University of Medical and Health Sciences Shaheed Benazirabad within prescribed limit of time viz. 90 days. He next contended that Petitioner opted such option and NOC in such respect was issued by the University after the approval given by the Syndicate and then joined as Senior Medical Officer in Health Department. Learned Counsel next contended that the Respondent No.4 withdrawn/cancelled the NOC issued in favour of the employees belonging to Khairpur Medical College, Khairpur to join health department on 20.02.2021. Thereafter the notification dated 22.02.2021 was issued by the Respondent No.2 whereby notification dated 09.11.2020 was withdrawn. He submits that Respondent No.4 was not competent to cancel NOC, which was issued after approval of the syndicate and only the syndicate was competent to do so. He further contends that action of Respondents No.2 & 4 is illegal, unlawful, against the law and such may be declared to be null and void.       

 

3.         Learned Assistant Advocate General has contended that the NOC was cancelled by the Respondent No.4 on the directions of the competent authority and on the recommendations of Principal Khairpur Medical College, Khairpur; that the Petitioner is working in the same scale and no any right of the Petitioner has been infringed; that since the NOC has been cancelled, which was basic document for issuance notification dated 09.11.2020, therefore, on its cancellation, the said notification dated 09.11.2020 has been withdrawn vide notification dated 22.02.2021. It is further contended that since no illegality or infirmity has been committed by the Respondents, therefore, petition may be dismissed.

 

4.         We have heard learned Counsel for the parties and have carefully examined the material available on record with their able assistance.

 

5.         It reflects from the comments of Respondents No.2 & 5 that the NOCs to join Health Department were withdrawn on the letter of Principal KMC Khairpur bearing letter No.KMC/P.Sec/132 dated 19.02.2021 due to the reasons of deficiency of faculty and due to delay in appointment of faculty as per advertisement annexed with the comments. The letter of withdrawal of NOC to join health department dated 19.02.2021 is reads as under:-

            “KMC/P.Sec/2021/132                                                                                     dated: 19.02.2021

 

                To,

                                The Vice Chancellor

                                Peoples University of Medical

                                And Health Sciences

                                Nawabshah (SBA)

 

                Subject:  WITHDRAWAL OF NOC TO JOIN HEALTH DEPARTMENT

               

Sir,

After merger of KMC Khairpur with PUMHS Nawabshah (SBA) and according to decision of 22nd syndicate meeting and with reference to letter of PUMHS Nawabshah in which options were invited from the employees of Khairpur Medicla College, Khairpur Mir’s to join university of otherwise. The option are already submitted to your good office for final decision from fourth coming syndicate meeting.

In view of instruction of higher authorities and deficiency of faculty that could occur, the NOCs of employees of KMC, Khairpur to join Health Department sent to your good office may be withdrawn”.

                                                                                                PRINCIPAL

                                                                                KHAIRPUR MEDICAL COLLEGE

                                                                                                KHAIRPUR MIR’S”

               

6.         Since the notification dated 09.11.2020 whereby the petitioner was allowed to join health department, Government of Sindh as Senior Medical Officer (BS-18) was issued on the basis of NOCs and later on such NOCs were withdrawn/cancelled and on such basis a notification dated 22.02.2021 was issued, whereby notification dated 09.11.2020 was withdrawn, is valid as the NOCs after its cancellation does not exist in field. We have also scanned Section 4(3)(4)&(5) of the Peoples University of Medical and Health Science for Women Shaheed Benazirabad Act, 2009, which state that any person transferred to the University under sub-section (2) may opt or serve the health Department, Government of Sindh and the option under sub-section (3) shall be exercised and submitted to the Government within ninety days of the commencement of this Act and the option so exercised shall be final; on receipt of the option under sub-section (4), Government may, transfer or as the case may be, allow such person to continue in the Health Department. This act was promulgated vide notification dated 12.11.2010.

 

7.         An objection was also raised by Petitioner’s Counsel that even if any posting order of the Petitioner can be withdrawn from the Health Department, Government of Sindh that can only be done by the approval of the Syndicate of the University and not by anyone else including the Vice Chancellor. However, we are not inclined to accept this argument as it is not supported by any law or even the provisions of the Act of the University in question rather in terms of Section 13(3) of the Act, the Vice Chancellor shall be the principal executive and he has to ensure that the provisions of this Act, the statutes, the regulations and the rules are properly observed, whereas, he also has the power for this purpose including administrative control over all officers, teachers and other employees of the University, therefore, this ground has no basis and is hereby repelled. 

 

8.         We have been informed that though after the notification dated 22.02.2021, the petitioner will remain in BS-18 and no any change has been made in his service, therefore, we see no justification to set-aside the impugned notification. Resultantly, this petition is dismissed.  

           

JUDGE

JUDGE

Faisal Mumtaz/PS