' MALIK HAMID SAEED, J---The unusual circumstances, in which the instant writ petition filed by Dr. Shahnaz Nadir, Petitioner, arises, are that the appointment of the Petitioner on the post of Senior Registrar, Gynae and Obstetrics for which she had applied within due date could not be finalized due to entertaining of the application of respondent No.4 Dr. Fauzia Faheem at a subsequent stage by the respondents after the due date and her subsequent selection on the said post on account of the interference of the Health Department whereby the selection process conducted by the Selection Committee duly constituted by the Management Committee of the Hospital under the North-West Frontier Province Medical Institution Act, 1999 was reviewed through another Committee constituted by the Secretary Health, respondent No.2.
2. According to the Petitioner, she being qualified in the relevant field and eligible to be appointed as Senior Registrar Gynae. And Obstetrics applied for her selection on the post in response to the advertisement made in the newspapers on 1-2-2003 which required that "Applications accompanied with complete bio data and attested photocopies of academic/experience documents and research publication must reach the office of the undersigned within 15 days of the publication of this advertisement". The last date for submission of the applications was thus coming as 15-1-2003 or at the most 16-1-2003, but amazingly the applications of respondent No.4 Dr. Fauzia Faheem and one Dr. Farhat Nasreen (not respondent in this petition) were entertained after the aforesaid due date, which later on resulted into filing of a representation by Dr. Fauzia Faheem to the Health Secretary, who in his turn accepted the same and constituted another Committee headed by him for reviewing the selection process of the earlier Committee already legally constituted by the Management Committee. Consequently the selection of Dr. Fouzia Faheem was made on the said post, therefore, the petitioner in the above situation prays for a declaration that the constitution of the said review committee is illegal, void ab-initio, which smacks of patent favouritism towards a junior and inexperienced doctor and is thus an act of patent mala fide towards the senior and most qualified doctor i.e. The petitioner.
3. The respondent No.4 in her comments has stated that she had submitted application for the post of Senior Registrar on 15-2-2003 and handed over the same to the then Chief Executive of the hospital, who received the same on 15-2-2003, however, documents in respect of the experience were not attached with the application and the Chief Executive directed respondent No.4 to submit the same, which she submitted on 18-2-2003, therefore, not only her was within time but she was also on top of merit in the interview and thus rightly selected on the post.
4. The Secretary Health N.-W.F.P. Respondent No.2 in his comments has stated that respondent No.4 submitted an appeal to the Health Department challenging/objecting the recommendations of the Selection Board constituted by the Management Committee and apprehending that she may not be appointed on the post. In response to the appeal of respondent No.4 the Health Department constituted a review committee to re-examine the selection process and to submit the findings to the Government. The Review Committee submitted the report and accordingly the case was finally reviewed by Secretary Health and recommendations were endorsed as per the decision of Review Committee.
5. Although the petitioner is also aggrieved of the impugned advertisement wherein the holders of the so-called additional qualification have been shown to be given preference in appointment, which is not provided in the P.M.D.C. Regulations and notified Rules of the Government for the post of Senior Registrar, yet we would not go to that extent because this aspect of the case has not been passionately agitated by the learned counsel for the petitioner during the course of arguments.
Similarly, we would also not make any observation with regard to the question that when the respondent No.4's application was already entertained by the Selection Committee even after the due date and she was duly called for interview and placed on top of the merit list, as is evident from the minutes of the Review Committee (Annexure: M with the writ petition) that Dr. Fouzia Faheem was already at the top of the merit list prepared by the earlier selection committee, then what bothered the respondent No.4 to make a representation/appeal to respondent No.2 for reviewing the decision of the selection committee which was already going in her favour and which fact then necessitated the constitution of a review committee by the respondent No.2, when no request for such constitution of the committee was made by the petitioner and when the alleged promotions and selections on the recommendations of the Selection Committee are to be notified as yet, because in the peculiar circumstances of this case the debatable points for determination in this writ petition are as to whether the respondents could entertain the application of respondent No.4 or for that matter of any other candidate after the closing date and whether respondent , No.2 was legally competent to constitute a Review Committee.
6. Under the North-West Frontier Province Medical and Health Institutions Reforms Act, 1999, the hospitals in the Province have been given full financial and administrative autonomy and the Institutional Management Committees have been entrusted with running the affairs of the respective hospitals. Under section 6 of the Act the Management Committee to administer and manage the affairs of a medical institution shall consist of---
(i) the Chief Executive of the Medical Institution concerned as Chairman;
(ii) the Dean/Principal of the medical institution concerned as Member;
(iii) the Medical Superintendent of the Hospital administered by the medical institution as Member;
(iv) the Director Finance and Departmental Grants Committee or the Officer-in-Charge of the said Committee of the institution concerned by whatever designation known as Member; and
(v) not less than three and not more than five non-official persons to be nominated by Government.
' The aforesaid Management Committee may, under section 11 of the Act, constitute Committees as provided under Clauses (a), (b),(c).(d),(e),(f), and any such Committee as it may deem necessary for giving effect to the provisions of the Act. In the N.-W.F.P. Medical Institution Rules, 2001, Clause
(p) of the Definitions relates to the definition of "Selection Committee" which means the Committee constituted by the Management Committee under section 11 of the Act for the purpose of making recommendations for initial recruitment, promotion, grant of selection grade and move-over, according to the prescribed criteria in respect of an employee of an institution. Thus for all intents and purposes, only the Management Committee is empowered to appoint a person in the service of the institution concerned as deemed necessary and on such terms and conditions as may be prescribed through the selection process to be conducted by the Selection Committee and no where in the Act or the Rules -the Health Secretary is figured or empowered either to become part of the Management Committee or to constitute a Selection Committee for the said purpose. The Secretary Health therefore cannot constitute a Committee of his own to review the decision or process of a Selection Committee, which is duly constituted by the Management Committee of the respective hospital. In this case; the Management Committee of the Hospital had duly constituted the, Selection Committee which completed the process towards the appointment of a Senior Registrar Gyane and Obstetrics in the hospital on the said post and its recommendations are yet to be approved or disapproved by the Management Committee, with which the Secretary Health or the Health Department is having no concern either on primary side or appellate side and therefore the interference of the Secretary Health in the matter whereby another Committee was constituted and thereby the process/decision of the earlier Selection Committee was reviewed was not warranting under the law, hence the act done is therefore illegal, void, without lawful authority and jurisdiction.
7. Annexure-E with the Writ .Petition is the advertisement for the post of Senior Registrars and some other posts published in the Daily "News" on 1-2-2003. The said advertisement required the candidates that they must submit their applications within 15 days of the publication of the advertisement. Annexure: H at Page 28 is the application of respondent No.4 Dr. Fauzia Fahim for the post of Senior. Registrar Gynae-A Unit, KTH, Peshawar, which is no doubt dated 15-2-2003, but according to the Diary of the office the date of its receipt in the office is 18-2-2003. At another place, the initial of the Chief Executive on the said application is also having the date of 18-2-2003 which clearly denotes that the said application was submitted to the office on 18-2-2003 i.e. 2/3 days later than the prescribed closing date for the receipt/submission of applications. Rights of individual are to be dealt with in accordance with law and the closing date being a universal rule the hospital authorities were duty bound to equally treat the candidates for the post in question, hence no special favour could have been dope to respondent No.4 when admittedly her application for the post was not within due date. The act of respondent No.3 whereby despite not submitting the application by respondent No.4 in time, she was called for interview is not sustainable and is required to be declared so.
8. For the qoresaid reasons, this writ petition is accepted to the extent that the act of entertaining the application of respondent No.4 after the due date for submission of applications for the post of Senior Registrar Gyane and Obstetrics, the constitution of Review Committee by respondent No.2 and appointment/selection of respondent No.4 against the post of Senior Registrar Gyane and Obstetrics in the light of the recommendations of the said Review Committee are hereby declared as illegal, unlawful and violative of the prescribed date for submission of applications as well as Article 4 of the Constitution, hence ineffective upon the rights of the petitioner, who had submitted her application for the said post within time. The respondent No.3 is therefore directed to exclude from consideration the application of respondent No.4 or any other candidate submitted after the closing date and to declare the result of the interview conducted by the earlier Selection Committee duly constituted by the Management Committee of the respondent/hospital and to issue appointment order of the successful candidate on the post of Senior Registrar Gynae and Obstetrics in the respondent hospital, who ranks first in the run. The parties are however, left to bear their own costs.
' DOST MUHAMMAD KHAN, J---I have had the privilege of reading the proposed judgment authored by my learned brother Mr. Justice Malik Hamid Saeed, J., and on facts/merits I agree with the conclusion recorded by his lordship but keeping in view the legal position involved I would like to record my own reasons.
2. Facts of the case are already discussed by my learned brother, the same, therefore, would not be referred unnecessarily.
' From tile respective contentions of the parties the admitted position is that the application filed by respondent No.4 was beyond the period fixed in the public notice. The respondents have almost conceded on this point in their comments. The important law point to be decided is as to whether the employer i.e. Respondent No.3 could extend the time fixed for receiving application from the candidates and that too in a clandestine way. The answer to it is a sure "NO".
' The legal terms, terminus quo is the starting point and the terminating date/point is called terminus ad quem. In view of provisions of section 9 of the General Clauses Act and general principles regulating the process of time given for the commencement of any act/task its terminus ad quem is once fixed, notified/published by the authority for the information of general public, then, it becomes functus officio after the date/time at the point of terminus ad quem. There is no cavil to the proposition that the competent authority fixing such time/period may rescind, extend or curtail it but such powers can be exercised by it before the point of terminus ad quem, but after the expiry of the time surely it has no power to do so.
' Applying the above principle of law, the date of commencement (terminus quo) in this case was 1-2-2003 when the notice was published in the newspaper while the last date i.e. Terminus ad quem was 16-2-2003. According to the terms and conditions given therein such applications submitted by the candidates were to be essentially accompanied by complete bio-data and attested copies of academic/experience documents etc. The respondent No.4 has failed to apply within the given time and her application was received by respondent No.3 after due date without lawful authority.
3. The term "due date" according to Black's Law Dictionary has been defined in the following terms".
' DUE DATE:-- "In general, the particular day on or before it something must be done to comply with law or contractual obligations."
4. Under the principles of Law of Contract the publication of the notice inviting applications within a specified period was an anticipatory offer subject to fulfilment of all the conditions laid down therein and the submission of application within the due date complete in all respect by the candidates was an anticipatory acceptance of the offer creating contractual obligations binding in nature for both the parties i.e. The employer and the employees/candidates albeit selection/appointment was to be made on merits criteria after the interview.
' Keeping in view the above rule, the offer thus made was accepted by the petitioner by submitting her application complete in all respects within the due date, therefore, the subsequent inclusion of respondent No.4 in the panel of the candidates after the due date was an act coram non-judice and without jurisdiction.
5. Even if the plea of bona fide as pleaded by the answering respondents is tested on the touchstone of rules of propriety and fair play, one fails to understand the logic behind accepting the application of respondent No.4 after the due date. If at all they were overwhelmed by the self proclaimed spirit of keeping the public interest supreme in getting services of more experienced one in the field, then the proper and permissible course was to have extended the last date for receiving applications from all those who have also not applied by then and for that purpose afresh public notice must have been issued so that much more qualified candidates vis-a-vis the petitioner and respondent No.4 would have come forward, the plea thus taken is an afterthought and the exercise carried out is neither transparent nor based on fair play and can not be endorsed/approved on the fallacious premises pleaded in defence.
6. Another aspect, more fatal one, is the intervention of respondent No.2 in the matter and the constitution of the Review Committee for reconsideration of the selection process. This step was taken at the instance of respondent No.4 at a time when by then the Selection Committee had not yet notified/announced the result of selection. This attempt, as it appears, was aimed at deploying a device to thwart the expected decision perceived by the respondent No.4 about her fate because of the late submission of the application.
' Whatever the motive behind it might be, the law on the point is clearer than crystal. The N.-W.F.P.
Medical and Health Institutions Reforms Act, 1999 came into force on 13th October, 1999 making the same absolutely autonomous in the affairs of its internal management which includes the service structure. Different Committees have been provided therein with specified functions and area of jurisdiction. The Selection Committee is one of those important limbs of the Institution which is exclusively entrusted with the powers, privileges, jurisdiction and authority to make appointment and selection to various posts within the Institution.
7. The Government of N.-W.F.P. Through Notification dated. 26th January, 2001 framed and notified rules to carry out the objects of the ibid Act. In the matter of appointments/selection laid down in rule 9, the Selection Committee constituted under section -11 of the ibid Act is the exchusive and final authority dealing with this subject thus once the interview for the sail post was carried out and completed by the Selection Committee, no other Committee or the Provincial Government has any power to intervene and superimpose its own decisions or to issue directions of the present nature.
The same amounts to encroachment on its lawful authority. If such practice is approved, it would be fraught with visible and invisible dangers defeating the very objects and purposes of the law promulgated for the same. There is one famous maxim "that when the purpose of law ceases then the law ceases itself". No faculty of law and justice would endorse such a course of action as it would throw the Institutions to unmanageable crisis and serious indiscipline within its ranks and files.
' True that the Provincial Government under sub-section 2 of section 5 of the ibid Act has been given supervisory control in respect of the affairs and management of the Medical Institutions but the scope of this provision can not be widened/enlarged to an extent giving the government free hand and authority to interfere without any pause and stop in the., internal affairs of the Institution.
Under the law the Government has no appellate powers to annul, set aside or render nugatory lawful decisions made by the selection or management committee of the institutions. It is cardinal principle of law that right of appeal and review is creation of a Statute and unless such right is expressly conferred upon, no individual can exercise such right nor any authority can assume such jurisdiction unless given to it by law. In this view of the matter the decisions superimposed from the above i.e. The Provincial Government, the constitution of the Review Committee for reconsideration of the selection which was by then not made and all subsequent actions taken, done and exercised were without lawful authority, without jurisdiction, the same are, therefore, ineffective on the rights of the petitioner. The selection of respondent No.4 thus made in preference to the petitioner is in disregard of law and rules hence is not sustainable in law.
' For the additional reasons given above in this separate note of mine, this Constitutional petition is accepted in the terms mentioned in the concluding Para of the main judgment. accordingly.