ABDUL SATTAR GORAYA, J. --- By means of this Constitution petition, orders of appointment dated 02.06.2007 in favour of respondents Nos.4 and 5 passed by the competent authority namely the Administrative Department have been brought under impeachment.
2. The necessary facts as steamed out of the record available before me are that in Quaid-e-Azam Medical College, Bahawalpur (QMC) under the management & control of respondent No. 2, certain posts of 'Associate Professors, Assistant Professors and Senior Registrars, had fallen vacant to be filled in through direct recruitment. Advertisement in Daily Khabrain was flashed on 05.04.2007. On the top of the said advertisement, it was made clear that interviews of the recruitment to the said posts, shall. Be held in the office of the Principal. The opportunity for walk-in , interview for fresh candidates, in addition to the one who have already applied, was offered. Petitioner, respondents , Nos.4 and 5 were the candidate for the post of Senior-Registrars in the subject. Of Ophthalmology.
The advertisement in respect of items Nos. 1 and 2 is reproduced hereunder for facility of reference:--- Sr.# NAME OF SPECIALTY DATE AND POSTS TIME 1 Professors Pharmacology, Physiology, 10-4-2007 Opthalmology, TB Diseases.
Cardiology, Orthapaedics, Paed, Gynea and Obstt: Associate Pharmacology, Anatomy, Professor Pathology (History-Path, Chemical Path, Haematology, Microbiology and Pathology), Biochemistry, Physiology, Comm. Medicine, Forensic Medicine, Medicine, Surgery, Paediatric, Opthalmology, TB & Chest Diseases, ENT, Dermatology, Psychiatry, Orthopaedic, Radiology (Diagnostic).
2 Assistant Pharmacology, Pathology 11-4-2007 Professor (History-Path, Chemical Path, (Wednesday)
Haematology, Microbiology 8.00 a.m. And Pathology), Anatomy, Biochemistry,' Physiology, Comm. Medicine, Forensic Medicine, Anaesthesia, Gynae and. Obstt., Paediatric, ENT, Neuro-Surgery Dermatology, Psychiatry, Paediatric Surgery, Radiology (Diagnostic)/ (Therapeutics), Nephrology, Gastroentrology, Neurology.
Senior Medicine, Surgery, Gynae: Registrars Obstt., Opthalmology, Anaesthesia, Paedoatroc, TB. And, Chest Diseases, ENT, Cardiology, Netiro-Surgery Dermatology, Psychiatry, Orthopaedic, Plastic Surgery, Paed, Surgery, Radiology (Diagnostic).
There is conspicuous note appearing at the footnote of the said advertisement that the selection shall be made in - accordance with the Recruitment Policy, 2004 as amended upto date. Only recognized qualification in accordance with the Regulation of Pakistan Medical & Dental Council equivalence, if any, approved by PM&DC, shall be considered. There remained hot contest between the petitioner, respondents Nos.4 and 5. According to the petitioner, following Board was constituted:-- - - Sr. Name & Designation Acted as Prof. Dr. A.I Ajwad Shah, Principal QMC, Chairman Bahawalpur.
2. Prof. Dr. Ashraf A.I A.I Tayyab, Nishtar Member/Technical Medical College, Multan Advisor
3. Assistant Profess. Tariq Arain. QMC. Member/Technical Advisor
4. Mr. Daud Tahir, presentative from Member Punjab Public Service Commission
5. Prof. Dr. Mazhar Ateeq, QMC, Member 3ahawalpur.
6. One. Member representing the Health Department The Special 'Selection Board recommended respondents Nos.4 and 5 to be appointed as Senior Registrars Ophthalmology (Eye)(BS-18)/QMC/BVH.' Consequently, the Departmental Authority issued the appointment order on 22.06.2007 in favour of respondent No. 4-Dr. Muhammad Younas Tahir and respondent No. 5 Dr. Muhammad Khalid
3. In the report & para-wise comments, respondent No. 1 emphatically denied that Professor Dr. Mazhar Ateeq was not a Member of the Special Selection Board. The objection to the extent of one Member does not merit and in any case will not affect the decision of this Constitution petition.
However, both the parties are unanimous on the point that the Special S section Board was constituted under Sections 9 & 10 of the Punjab Medical and Health institution Act, 2003 (Act IX of 2003),
4. This Court on 04.09.2007 directed the respondents to submit The parawise comments alongwith the comparative list to be filed by the respondents within two weeks. Requisite parawise comments have been received. Principal in his comments emphatically denied and controverted the allegations embodied in the Constitution petition and came-out with the feeble plea that qualification of the petitioner and in particular the Sanad was not considered by the Special Selection Board fur the two manifest reasons. Firstly, that it was not appended with the application form and secondly, Sanad of F.0 P.S. Held by the petitioner was never registered with the PM&DC, authorizing' him to practice in the subject of medicine and Ophthalmology, therefore, the decision taken by the Special Selection Board was absolutely correct and suffering from no legal infirmity.
5. Learned counsel for the petitioner argued that this was necessarily a case of maladministration and maltreatment on the part of the Special Selection Board. It was further argued that the petitioner in the interview and on the basis of meritorious record possessed by him, stood at number one but in a 'male fide manner, the result was changed by making certain additions & deletions in the record and recorded recommendations in favour of respondent No 4, on the basis of which the appointment order has been issued.
6. Learned counsel for respondents Nos.4 and 5 argued with full vehemence that it was imperative for the writ petitioner to bring on record the necessary documents and the meritorious record whatever he had in his possession in support of his claim and in absence of any documentary evidence or proof, the Special Selection Board or for that matter, the competent authority, is under no obligation to consider ,the case of the petitioner Bitterly argued that in the writ petition, certainly, the factual controversy is involved and this Court while sitting Constitutional jurisdiction cannot substitute its decision. Therefore, the writ petition merits no consideration. He argued with full vehemence that adequate remedy by of complaint before the Redressal Cell constituted in the office of the Secretary, Health Department, in terms of Paragraph 17 of the Contract Policy, is available and the proposed relief can be granted to him. Therefore, the petition before this Court is not competent.
7. Conversely, the learned counsel for the petitioner stated that no remedy whatsoever is available' before the Secretary Health and even this Court reaches at conclusion' that some remedy is available, therefore, the proposed relief can still be granted and petition is maintainable in view of reiteration in Yousaf A.I v.
Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak) 104, The Murree Brewery Co. Ltd. v. Pakistan through the Secretary to Government of ,Pakistan, Works Division and 2 others (PLD 1972 Supreme Court 279), Pakistan National Shipping Corporation v. Rent Controller, Lahore and 2 others (PLD 1992 Lahore 305), Hassan Din v. Hafiz Abdus Salam and others (PLD 1991 Supreme Court 65) and Mst. Kalsoom Malik and others v. Assistant Commissioner and others (1996 SCM R 710).
8. I have given my. Conscious thought to the arguments addressed at the bar and with the able assistance of learned counsel for the parties and the Principal of the Institution, present in Court, perused the record.
9. Principal of the College in his report & parawise comments laid much emphasis on the point that the petitioner never produced the degree of F.C.P.S. Duly registered by the PM & DC and the fact that the detailed marks were dispatched through fax were later in time, which could not have been considered. He came-out with the plea that the decision of the Special Selection Board in making recommendations in favour of respondents Nos.4 and 5 are absolutely correct and in conformity with the merits list drawn.
10. There is no denial of the fact that in this case appointment has been made under the Recruitment Policy dated 17.09.2004 drawn by Government of the Punjab Service and General Administration Department (Regulations Wing). According to the own showing of the Department), the advertisement was flashed in the Newspaper Daily Khabrain on 05.04.2007 by which it was made imperative that the candidate should walk-in Interview on 11.04.2007, scheduled to be held in the office of the Principal Para 13(iv) of the said Policy in terms provided that at least 15 days' time, from the date advertisement, shall be given for submission of applications. Under item No (x) it has also been provided that the candidate shall be required to produce National Identity Card, domicile certificate and transcripts of Qualifications, in original, at the time of interview. This is common, ground between the two that the petitioner alongwith respondents Nos.4 & 5 was interviewed on 11.04.2007 and certain marks were allocated to him in the interview together with his two, other, competing candidates, Learned counsel for, the petitioner is firm in his stance that the petitioner had supplied alt testimonials including the one of Sanad of PM & DC and detailed marks through fax faithful compliance of the telephonic call but the meritorious record- was detached and the merit possessed by the petitioner was consciously kept out of consideration. No doubt the time as required vide pars 13(iv) was not provided. The proposition of law has been settled by now that where the law requires that something should be done in a specified manner and if it has not been done in that manner, the candidate or the person aggrieved of the action of the Departmental Authority, cannot be made to suffer. Principal of QM.0 produced a copy of Certificate of Medical Registration issued by the Pakistan Medical & Dental Council, Islamabad by which the Sanad of F.C.P.S. Has been registered and he has been allowed to practice in the subject of medicine, Surgery, Obstetrics & Gynecology. The relevant portion appearing on the Certificate of Medical Registration in respect of Dr. Muhammad Younas Tahir is reproduced hereunder:--- "Office of the Pakistan Medical & Dental Council, Islamabad. Date the 24.09.2007. 'It is hereby certified that the above is a true copy of the entries in the Medical Register (Part A) in respect of the medical practitioner specified therein. He/She is authorized to practice Medicine,' Surgery, Obstetrics & Gynecology".
Similarly, Dr. Muhammad Khalid, is shown to have been granted registration on 10.06.2004. I have noted with dismay that in this case the advertisement was flashed in the C.L.R. .;;:t newspaper on 05 04.2007 and the interview was held in the Chamber of the Principal on 11.04.2007. On a date, the interview was conducted or prior to that, the applications were invited, respondent No. 4 had no valid Certificate of Registration. He is shown to have been registered only on 24.09.2007. The moment, the instrument of registration 'was produced and I had a visual look on it, the whole foundation laid and the record built-up through fabrication to the benefit of respondents Nos.4 & 5 and to the prejudice of writ petitioner fell on the ground. There are sufficient reasons existing on the record to believe that the Special Selection Board surely made additions & deletions in the record with a view to accommodate respondents Nos.4 & 5. The impugned exercise either in the nature of making padding .In the record) addition or deletions or drawing a wrong merit list, the Special Selection Board out-stepped the limit of its jurisdiction. Thus, the additional marks F.C.P.S. Granted to respondent No. 4 could not have been added in the count while drawing the merit list. This admitted position that the petitioner is M.B.B.S.-cum-F.C.P.S. And also holds the additional qualifications of Diploma in Ophthalmolic Surgery=M.R.C.P.
11. Much emphasis has been laid by the learned counsel for respondents Nos.4 & 5 that adequate remedy is available before respondent No. 1 by way of complaint in terms of Paragraph 17 of the Recruitment Policy 'bearing No. SOR-IV(S&GAD)10-1/2003, dated Lahore, the 17th September, 2004, contention that the said remedy is available has no legal force. Before I dilate upon this important question of jurisdiction involved, it is better to reproduce paragraph No. 17 of the said Recruitment Policy:- "RECRUITMENT COMPLAINTS REDRESSAL CELL. (I) All documents shall constitute Recruitment Complaints Redressal Cells headed by an officer not below the rank of Additional Secretary [Deputy Secretary in case of Departments where post of Additional Secretary does not exist), All complaints regarding violation of any provision of the Recruitment. Policy shall be dealt with by these cells.
(ii) On receipt of complaints, the Incharge of the Cell shall immediately inform the Secretary concerned and the Minister Incharge about the complaint, who shall decide as to whether the complaint is genuine and merits probe.
(iii) If the complaint is considered frivolous, the same may be filed. If it is found genuine, an inquiry' may be ordered to ascertain as to whether or not the recruitment was made in a transparent manner on merit in accordance with the provisions of the Recruitment Policy. On receipt of the inquiry report, if no irregularity is found, the recruitment may be allowed to. Stand.
(iv) Where serious irregularities and violation of merit is found to have been committed, the department may, scrap the recruitment process, after the approval of the Chief Minister, provided that appointment orders have not been issued,
(v) Where appointment orders on regular or contract basis have already been issued and later it is determined that such appointments were made in violation of merit/selection criteria, etc. Further action may be taken in accordance with law and terms and conditions of contract.
(vi) Departments should take disciplinary action against the person responsible for committing irregularities in recruitment process."
Bare perusal of the said Policy discernibly shows that para No. 17 of the Recruitment Policy can neither be considered to be substitute of the Parent Act nor of the Rules framed there under.
Proviso to Section 21 of the Punjab Civil Servants Act, 1974 in terms provides that no representation shall lie on matter relating to the determination of fitness of a person to hold the particular post or to be promoted to a higher post. Similarly, Section 4(1)(b) of the Punjab Service Tribunals Act, 1974 postulates that no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade in order to better appreciate the question of law, both the Sections while placing them in juxtaposition are examined and reproduced hereunder:--- Section 21 of the Punjab Civil Section 4 of the Punjab Service Servants Act, 1974 Tribunals Act, 1974 Right of appear or representation. Appeal to Tribunals.---(1) Any civil -(1) Where a right to prefer an servant aggrieved by any final appeal or application or review in order, whether original or respect of any order relating to the appellate, made by a departmental terms and conditions of his service authority in respect of any of the is allowed to a civil servant by any terms and conditions of his service rules applicable to him such appeal may, within thirty days of the or application shall, except as may communication of such order to otherwise be prescribed, be made him or, within six months of within sixty days of the establishment of the appropriate communication to him of such Tribunal, whichever is later, prefer order . An appeal to the Tribunal:
(2) Where no provision for appeal Provided that:- #TBS
(a) Where an appeal review or representation to a departmental authority is provided under the Punjab Civil Servants Act, 1974, or any rules against any such order no appeal shall #TBE or review exists in the rules in respect of any order, a civil servant aggrieved by any such order may, except were such order is made by the Governor, within sixty days of the communication to him of such order, make a representation against it to the authority next #TBS above the authority which made the order: #TBE Provided that no representation shall lie on matters relating to the determination of fitness of a person to hold a particular post or to be promoted to a higher post. lie to Tribunal unless the aggrieved civil servant has preferred an appeal or application for review or representation to such departmental authority and a period of ninety days has elapsed from the date on which such appeal, application or representation was so preferred;
(b) no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or held a particular post< or to be promoted to a higher grade; and
(c) appeal shall lie to a Tribunal against an order or decision of a departmental authority .Made at any time before the 1st July, 1969.
A careful and deeper study of, the above two provisions of law makes to believe that paragraph 17 of the Recruitment Policy bearing No. SOR-IV (S&GAD)10-1/2003, dated Lahore, the 17th September, .2004 are obnoxious to Section. 4 of the Punjab Service Tribunals Act, 1974 and Section 21 of the Punjab. Civil Servants Act, 1974. Wisdom of the legislature in enacting the two afore-noted provisions of law, is sufficiently clear that consciously the right of appeal or even a representation has 'not been given against the appointment made by the competent authority, based on the recommendations of the Special. Selection Board.
Admittedly, in drawing the conclusion with regard to determination of fitness, the opinion of more than one person who is Member apart from the Chair is involved. The recommendations are always drawn after due scrutiny of the merit possessed by the candidate and achievements of the marks, acquired during the viva voce. It is pity that by enacting paragraph 17 and inserting in the Recruitment Policy dated 17.9.2004, preference has been given the opinion of the Incharge of the Complaint Cell to sit upon the findings and conclusions drawn by the full board which fundamentally is consisting of experts in the relevant subject. In each selection board, representative of the Administrative Department is always sitting as a Member where-after no justification in law is left available with the Department to scrutinize the cases of appointment through the solitary person of the rank of Additional Secretary. This power, I believe, has been kept consciously with the Department by the tamed bureaucracy. Under the guise of the complaint, in fact, for all practical purposes, right of appeal or the supervisory jurisdiction has been conferred upon the officer of the rank of Additional Secretary in BS-19, who can check the record or merit of the officer of equivalent rank as well or more than that while sitting in that capacity.
12. There is yet another reason to attract the power of judicial review. Sub-para (ii) of Para 17 of the Recruitment Policy in terms provides that on receipt of Complaint, the Incharge of the Complaint Cell shall immediately inform the Secretary concerned and the Minister Incharge about the complaint, who shall decide as to whether the complaint is genuine and merits probe. The proposition of law is too settled to admit any debate that authority of the Provincial Minister figures nowhere in the cases governed by the Statute or the appointment order, which in the event of regularization by the competent authority will achieve the status of civil servant. Right of appeal or review is a creature of the Statute. If someone is performing functions while sitting in appeal or where there is a conferment of power that person authorized in that behalf can annul the order passed by the competent authority or the recommendations of the Special Selection Board, he is not performing administrative duties but exercising legal authority to determine the question affecting rights of the subject and primarily acting judicially in discharge of his official duties. Such an action of the Departmental Authority or person performing the function of deciding the rights of the parties, his actions are subject to the controlling jurisdiction of this Court. Judicial action may be defined as adjudication upon the rights of- the parties who in general appear or are brought before the Tribunal by notice or process and upon whose claim, such decision or judgment is rendered. This act of the administrative or ministerial officer does not become judicial simply because it requires some discussion and judgments, but it becomes judicial only when there is an to be heard and the production and weighing of evidence and the decision to be taken therein. In any event, the position, therefore, springs out from the record is that the minister is performing the executive functions only, of course subject to the command of the Chief Minister. Article 1.29 of the Constitution provides that the executive authority of the Province shall be exercised in the name of Governor by the Provincial Government consisting or the Chief Minister and the Provincial Minister who can only act through the Chief Executive of the Province. In Article 139 of the Constitution, it has been provided that the order and the other instrument made and executed in the name of Governor would be authenticated in such manner as may be provided in the Rules of Business and such an order made on executive side, if so authenticated in the name of Governor, would not be called in question on the ground that it was not, an order or instrument made or executed by the Governor. A deeper study of the above-quoted provisions of the Constitution would discernibly show that the Minister can only perform the administrative functions ,and cannot exercise the judicial authority. Sub-para (ii) of the Paragraph afore-referred provides that the action in the matter to be probed into' further, on a complaint submitted by the person aggrieved is subject to the satisfaction of the Provincial Minister and the Additional Secretary-Incharge of the Complaint Redressal Cell will only exercise his power, if prior permission of the Provincial Minister is there. The naked power given to the Additional Secretary or the Provincial Minister, as the case may be, is not either backed by any statutory provisions or the Rules made there-under. In the given situation, I have no hesitation to hold that conferment of power to set aside the order of the competent authority in respect of appointment and the recommendations drawn by the Special Selection Board is bad in law.
13. The Recruitment Policy, in fact, has been constituted for a purpose to provide guidelines for making appointment under the Contract Policy. Recruitment Policy can neither achieve the status of a statutory Rules nor the law promulgated by the Provincial Assembly or the Parliament. As to when the instructions issued by the Department can qualify the statutory rules? In order to qualify the statutory rules capable of conferring right and, obligation enforceable at law, the departmental instructions must have been issued by the same Authority, who has power in law to make Rules, or draw the Policy Instructions referable to the specific statutory provisions of law having power to issue the statutory rules. I am fortified in my view by Mst. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553). In the said judgment the honourable author Judge of this Court had taken sufficient pain in scrutinizing each & every aspect of the case while sitting in Constitutional jurisdiction to pointedly bring- into focus that the administrative instructions can only achieve the statutory force when the competent authority had a power to do so. The policy decision dated 17.09.2004 drawn by the Services & General Administration Department (Regulation Wing) has C.L.R. fundamentally been drawn to provide a \guideline for the purpose of appointment and there are certain other provisions in the said Policy which are quite apt and in conformity with the provisions of the Punjab Civil Servants Act, 1974 and Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. In the circumstances, 1 feel no hesitation in holding that no power or remedy is available with the administrative department to upset the choice of Special Selection Board the Special Selection Board validly constituted for the purpose and single person appointed out of the bureaucracy, cannot be permitted to sit upon the choice of the Special Selection Board. The Recruitment Policy bearing No. SOR-IV (S&GAD)10-1/2003, dated Lahore, the 17th September, 2004 to the extent of paragraph No. 17 is declared ultra wires of law and no power is available with respondent No. 1 or any other person notified in this behalf to entertain and decide the complaint.
The only remedy for person aggrieved of an order of appointment by the competent authority is to-approach this Court for issuance of appropriate writ, order or direction in exercise of power of judicial review under Article 199 of the Constitution, if there is some violation of merit or the action.
14. For what has been stated above, the impugned orders dated 02.06.2007 passed in favour .Of respondents Nos.4 & 5 are hereby quashed and the matter is remitted again to Principal QMC, Bahawalpur who will constitute the same Special Selection Board comprising of the same'
Members except the Principal of the relevant time who I am told has left the Institution In his place, the sitting Principal shall sit 'as a Chairman. The numbers allocated by the various Members of viva voce/interview shall be kept intact and Special Selection Board shall scrutinize the record of all the contesting candidates namely the petitioner, respondents Nos.4 and 5 and on the basis of meritorious position held by them, fresh merit list shall be drawn and the recommendations so recorded shall be forwarded to the competent authority, who shall issue the appointment order on the basis of recommendations drawn by the. Special Selection Board. If the respective candidates in the meantime, get the Certificate of Medical Registration qua the degree of F.C.P.S. Or whatever qualification they additionally hold at the time of formulating the new merit list, it shall be taken into consideration. With" these observations, this Constitution petition is accepted in the terms indicated above. Costs will follow the events.