Writ Petition 4739 of 2006 has been filed to call in question the "posting order" dated 1.9.2006 issued by Respondent No, 1 in favour of Respondent No, 7 appointing and posting Dr. Karim Shah Faizi as General Surgeon at District Headquarters Hospital Sahiwal.
2. Precisely, the facts of the case are that Respondent No, 3 issued advertisement in the press soliciting applications for appointment of various posts on contract basis including the post of General Surgeon DHQ Hospital Sahiwal. Pursuant thereto, petitioner alongwith a dozen or so other doctors including Respondent No, 7 applied for the said post. Apparently, a selection committee was constituted, which is alleged to have gone through the recruitment process, whereafter, vide the impugned letter dated 1.9.2006, Respondent No, 7 was selected, appointed and posted as the General Surgeon, DHQ Hospital Sahiwal, on contract basis for a period of two years.
3. It is contended by the learned counsel for the petitioner that Respondent No, 7 was not qualified to be considered for selection and appointment being more than 45 years old the maximum upper age limit prescribed by the advertisement and the instructions issued by the Government of the Punjab in this behalf. It is next asserted that the entire process of recruitment was tainted with mala fides and nepotism. In fact, even much prior to the commencement of the recruitment process, Respondent No, 7 had been selected on the recommendation of the Agriculture Minister Punjab, and in this regard, learned counsel has drawn this Court's attention to the letter dated 25.1.2005.
Adds that persons who were strangers to the constituted selection committee participated in the selection process thereby vitiating the entire proceedings. This fact, it is contended is evident from the interview list prepared which purportedly bears the name of such stranger. In these circumstances it is prayed that impugned letter of appointment of Respondent No, 7 be set aside and the person falling next on the merit list be appointed in his stead.
4. Whereas, learned counsel for Respondent No, 7 controverts the assertions as being canvassed by the learned counsel for the petitioner by contending that since he was already in service of the Government of the Punjab, his period of service is liable to excluded from the prescribed upper age limit, hence, he was eligible for being selected and appointed. Adds that Respondent No, 7 is better qualified than the petitioner and the other contesting candidates, thus, was eminently eligible for appointment. Allegations of mala fide and nepotism were denied by the learned counsel for Respondent No, 7 and it was contended that recruitment process was adhered to by the selection committee and the Members nominated and appointed as such. The additional person whose name figures in the interview list acted only as a secretary to the said committee.
Learned counsel has also taken the preliminary objection as to the maintainability of this writ petition contending that petitioner has an alternate remedy by approaching the relevant complaint redressal cell specifically constituted in this behalf. It is next asserted that in fact this petition is also not maintainable as the posting and not the initial appointment of Respondent No, 7 which is being called in question.
4. Learned counsel for rest of the respondents including the learned AAG has adopted the arguments of the learned counsel for Respondent No, 7.
5. In rebuttal, learned counsel for the petitioner asserts that in fact the petitioner has already availed .of the alternate remedy by approaching the relevant complaint redressal cell and that, in fact, an application in this regard was filed even much prior to the appointment of Respondent No, 7 which has since been admittedly decided against the petitioner, and that too without affording, him any opportunity of hearing. Further adds that through this writ petition letter dated. 1.9.2006 is being called in question which is the letter of appointment and posting of Respondent No, 7, hence, this petition is not only maintainable but liable to be accepted.
6. In the advertisement in issue, the maximum age limit for appointment is clearly shown as 45 years. It is not disputed between the parties that on the date of the interview and appointment, Respondent No, 7 was more than 45 years old. The appointment in question is to be affected on the contract basis. A self contained policy i,e, the contract appointment policy dated 29.12.2001 has been issued by the Govt of the Punjab in this behalf. The question of upper age limit is catered. for in clause (x) thereof. Clause (x) (iv) ibid clearly provides that where an upper age limit has been given, shall be shown as part of the advertisement and shall not be relaxed in individual cases.
Sub-para (v) no doubt stipulates that for a person already employed contract/regular basis with the Govt. of Punjab, the period spent by him in service, shall be excluded. It is the said provision which has been relied upon by the learned counsel for Respondent No,
7. Unfortunately, for Respondent No, 7 said provision i,e, para (x)(v) has a rider mentioned therein to the effect that upper age limit shall not exceed 35 years for recruitment of any post. The said provision is of no avail to Respondent No, 7 as a bare reading thereof makes it clear and obvious that no relaxation is available to a candidate under the said provision beyond the age being 35 years.
8. The upshot of the above discussion is that in the facts and circumstances of the case, Respondent No, 7 had broken the barrier of the upper age limit at the time of his appointment, hence, was ineligible.
9. Reverting now the question of mala fides and the caption of the letter of Minister of Agriculture dated 25.1.2005 for all practical purposes clinches the issue. Said caption reads as opening of second surgical unit in DHO Hospital Sahiwal to accommodate Dr. Karim Shah FRCS MO same hospital. It leaves no room for any doubt that the entire recruitment procedure smacks of mala fides and was tailored to benefit Respondent No, 7 who even otherwise was ineligible having crossed the upper age limit. It is admitted on record that at least one person who was not the member of appointed/designated selection committee participated in the meeting. There is nothing on the record to suggest that he participated as a secretary of the said committee, as alleged, and the learned counsel for Respondent No, 7 has been unable to point out any document on record to support his contention. Mere presence of an alien/stranger in the proceedings manifestly denudes the same of its validity, transparency and fairness.
10.As regards preliminary objection as to the maintainability of this petition on account of the alleged alternate remedy, I would only add that admittedly the matter had been referred to the complaint redressal cell even prior to the issuance of the appointment letter in question. It is the case of the respondents, as is evident from the reply/parawise comments, that said complaint was dismissed after considering the result of relative merits of the candidates. It leaves no room for any doubt that said complaint was decided after the process of interview had been completed. Thus, for all practical purposes petitioner has availed of the alternate remedy before approaching this Court. Even otherwise since the grievance redressal cell has already expressed its views, therefore, dispatching the petitioner to the same forum would be an exercise in futility and would by no stretch of the imagination be termed as an efficacious remedy. In the relevant clause of the petition, it has been noted that letter dated 1.9.2006 is being challenged, which is the letter of appointment and posting of Respondent No, 7, thus, in these circumstances, this petition cannot fail on the hyper technical objection raised in this behalf by respondents. This Court has ample jurisdiction to mould the relief in accordance with the facts and circumstances emerging from the case. Hence, this Court finds this petition as maintainable and appointment of Respondent No, 7 as illegal on account of being above the upper age limit and that entire proceedings for his recruitment were tainted with mala fides and even otherwise suspect. Consequently, by accepting this petition set aside the order of appointment of Respondent No, 7 dated 1.9.2006 with direction that next person falling on the merit list be appointed on contract basis as General Surgeon District Headquarters Hospital Sahiwal.
Petition accepted in terms reflected ibid.