Syed Mansoor Ali Shah, J.--In the writ petition, Respondent No. 1 challenged the appointment of Appellant No. 2 as Chairman and Dean of Sheikh Zayed Postgraduate Medical Institute ("Institute") on the ground that it was against the "policy and law." It was further prayed by Respondent No. 1 that senior most person should be appointed as Chairman and Dean of the Institute. The said writ petition was allowed vide order dated 26.1.2010 'passed by the learned Single Judge in chambers, declaring the appointment of Appellant No 2 to be illegal and directed that proper procedure be adopted in appointing the Chairman and Respondent No 1 be considered wjule doing so.
Appellants through this Intra Court Appeal have challenged the order passed by the learned Single Judge in chambers.
2. At the outset, Imran Aziz, Advocate, counsel for the appellants argued that the writ petition was not maintainable as it was hit by the bar contained Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It was argued that Respondent No. 1 was aggrieved of the appointment of Appellant No. 2 which fell within the terms and conditions of service and was covered under Section 4 of the Service Tribunals Act, 1973. Counsel relied on Province of the Punjab through Secretary, Health Department vs. Dr. S. Muhammad Zafar Bukhari (PLD 1997 SC 351), Imam Bakhsh and 4 others vs. Deputy Commissioner, Layyah and 16 others (1992 SCMR 365) and Khalid Mahmood Wattoo vs. Government of Punjab and others (1998 SCMR 2280) in support of his contention. Perusal of Section 4(b) of the Service Tribunals Act, 1973 reveals that in matters of "fitness" no appeal lies. The present post admittedly is a selection post to be filled on the basis of merit criteria provided in Para 8 of the Resolution dated 29.5.1986. The impugned order dated 20.7.2009 of the Competent Authority followed by impugned notification dated 21.7.2009 issued by the Cabinet Division appointing Appellant No. 2 to the post of Chairman and Dean of the Institute determines "fitness" of Appellant No. 2 to the post and is, therefore, a subjective assessment. As there are no Rules or Regulations under the Resolution or Civil Servants Act, 1973 for the appointment of Chairman and Dean, therefore, the question of eligibility to the said post does not arise. The impugned order squarely falls outside the domain of Section 4(b) of the Service Tribunals Act, 1973. The preliminary objection of the appellant is, therefore, overruled.
3. Counsel for the appellants argued that post of Chairman is a selection post which is to be filled by the Federal Government on the basis of the criteria given therein. It was further submitted that the Resolution is not a statutory document, therefore, the appointment to the post of Chairman (BS-22) is not regulated by any statutory rules.
4. He further submitted that writ of quo warranto .does not lie where the petitioner has a personal interest in the post in question and referred to the prayer of the writ petition as well as grounds 'z' and `za' of the writ petition to support his contention and placed reliance on Imam Bakhsh and 4 others vs. Deputy Commissioner, Lahhay and 16 others (1992 SCMR 365). He contended that it has been the consistent practice that the Chairman and Dean of the Institute has been appointed on the basis of a summary put up before the Prime Minister and relied on the earlier summaries since 1997 put up for the appointment to the post. of Chairman and Dean before the Prime Minister through the Cabinet and Establishment Division of the Federal Government.
5. Ch. Aamer Rehman, Learned Deputy Attorney General tracing the history of the Institute submitted that Zulfiqar Ali Bhutto Trust was constituted vide Deed of Trust dated 06.11.1973 with the, purpose to establish, maintain and run a hospital/medical college in Larkana and to promote medical, educational, religious, economic, social and cultural well-being of the people of Pakistan and for such purpose(s) to undertake or establish a project or projects in any part of Pakistan. The signatories to the Deed of Trust were Madam Nusrat Bhutto and others. Thereafter, under MLO No. 22 dated 15.10.1977, the Board of Trustees of Zulfiqar Ali Bhutto Trust and the Board of Directors of every institution connected therewith were suspended and the powers of the Board of Trustees were directed to vest in and be exercised and performed by Chief Martial Law Administrator
(CMLA) or by such other person or body or persons as may be appointed by him in this behalf.
6. He submitted that thereafter vide President's Order No. 4 of 1978 dated 26.3.1978, Zulfiqar Ali Bhutto Trust was renamed as Sheikh Zayed Bin Sultan Alnahyan Trust and the Deed of Trust dated 6.11.1973 stood amended accordingly and the Board of Trustees of the aforesaid Trust and the Board of Directors of every institution connected therewith were to vest in the Board of Trustees composed of such persons as the President would from time to time appoint.
7. Vide SRO No. 580 (I) of 1978 issued under Article 3(2) of the P.O. No. 4 of 1978, the President appointed the following persons to constitute the Board of Trustees of Sheikh Zayed Bin Sultan Alnahyan Trust:-- {{TABLE}} Secretary General-in-Chief Chairman Attorney General for Pakistan Member Auditor-General of Pakistan Member Secretary, Ministry of Health and Population (Health Division)Member Secretary, Ministry of Housing and WorksMember {{TABLE}}
8. Thereafter, vide SRO No. 870 (I) of 1984 dated 7.10.1984, SRO No. 279 (I) of 1989 dated 30.3.1989 and SRO dated 2.4.1991, the Board of Trustees of Sheikh Zayed Bin Sultan Alnahyan Trust was reconstituted.
9. The Learned DAG submitted that aside from the above-mentioned Trust, Vide Resolution dated 29.5.1986 issued by the Ministry of Health, Special Education and Social Welfare (Health Division), Sheikh Zaved Postgraduate Medical Institute was constituted with the objective to manage the administration and development of the Institute, Federal Postgraduate Medical Institute and the National Clinical Research Complex. The Institute is to perform its function under the Resolution through Board, Executive Committee and Chairman. Para 8 of the said Resolution provides for the appointment of a Chairman.
10. That vide notification dated 13.2.1994, the administrative control of the Institute alongwith its staff and equipment was transferred from the Ministry of Health to the Cabinet Division with immediate effect.
11.He submitted that the post of Chairman and Dean in Grade-22 is a selection post and not a promotion post. He referred to Section 9(3) of the Civil Servants Act, 1973 and Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 to show that there is no provision that provides for the process of appointment to the post of Grade-22. He further submitted that the post of Chairman is not a promotion post because it is not possible that an officer once promoted is reverted to its original post after three years.
12.Mian Bilal Bashir, Advocate submitted that the Institute is an attached department of the Federal Government as held by the august Supreme Court of Pakistan in Mrs. M.N.Arshad and others vs. Miss Naeema Khan and others (PLD 1990 SC 612) and the post of Grade-22 is a civil post while the officers are civil servants. He referred to Office Memorandums dated 30.11.2005 and 06.09.2000 to submit that Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are applicable to the Institute and in cases of promotion to Grade 20 and above, the Prime Minister is the competent appointing authority on the recommendations of the Central Selection Board.
13.The counsel submitted that the writ petition filed by Respondent No. 1 was in the nature of certiorari and his grievance is against the notification promoting the appellant to the post of Chairman and Dean. He further submitted that under paragraph 3 of the Resolution, the Federal Government may, from time to time, issue directives and instructions to the Institute and submitted that such a direction was the Office Memorandum dated 30.11.2005 wherein it is stated that promotion to BS-20 and above shall be on the basis of the recommendations of the Central Selection Board.
14.Mian Bashir Ahmed, Advocate submitted that the entire procedure has been violated in the appointment of Appellant No. 2 and relied on Secretary Ministry of Health, Government of Pakistan, Islamabad and another vs. Dr. Rehana Hameed and others (2010 SCMR 511). He relied on Abid Hassan and others vs. P.I.A.C. and others (2005 SCMR 25) to submit that the discretionary powers ought to be exercised transparently however in the present they were not. He relied on Abdul Bashir and 9 others vs. Government of Balochistan through Chief Secretary Civil Secretariat, Quetta and 3 others (2001 PLC (C.S) 771) to submit that the rules have been violated in the present case. He also referred to Abdul Qayyum Khan vs. District Officer, Passenger and Freight Transit Terminal, Lahore General Bus Stand, Badami Bagh Lahore (2003 MLD 670) to submit that the. Cabinet Division has responsibility to act fairly and justly which has not been done in the present case and finally submitted that Articles 2-A, 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, have been violated.
15. Arguments heard.
16. Admitted facts are that vide Resolution dated 29.5.1986 issued by the Ministry of Health, Special Education and Social Welfare (Health Division), Sheikh Zayed Postgraduate Medical Institute ("Institute") was established and given autonomous character in the following terms: "Whereas it is expedient to establish the Sheikh Zayed Postgraduate Medical Institute and to give autonomous character to facilitate its unhindered and efficient functioning."
17. Para 4 of the Resolution provides that the Management of the Institute will perform its functions through the:-- a. Board b. Executive Committee c. Chairman
18. Para 8 provides for the post of Chairman, as follows:- 8(1). Chairman--(1) The Chairman who shall be an eminent Person of scientific and medical repute, shall be the Chief Executive of the Institute and shall be appointed by the Federal Government for a term of three years extendable for a further period not exceeding three years at a time on such terms and conditions as may be determined by the Federal Government: Provided that the Federal Government may, at any time, terminate the appointment of the Chairman without assigning any reason.
(2)-------------- (3)-------------- (emphasis supplied).
19. The "Board" under the Resolution means the Board of Governors of the Institute. "Institute" means the Federal Postgraduate Medical Institute, Lahore and includes the Sheikh Zayed Hospital, Lahore and the National Clinical Research Complex of the Pakistan Medical Research Council.
20. On 13.2.1994, the administrative dbntrol of the Institute was transferred from the Ministry of Health to the Cabinet Division and vide Resolution of Cabinet Division dated 4.4.1998, the post of Chairman was renamed as "Chairman and Dean." Therefore, the post of Chairman is referred to as "Chairman and Dean" throughout this judgment.
21.The post of Chairman and Dean according to PC-1 prepared by the Ministry of Health, Special Education and Social Welfare and attached to the Ministry's letter dated 1.8.1967 is a Grade-22 Post (the said post has been described as that of a "Dean" in PC-1). The said post is being filled since the year 1997 by the Prime Minister on the basis of a summary put up by the Cabinet Division, which is the mode and manner employed to fill a Grade-22 post.
22.After the decision of the august Supreme Court of Pakistan in Mrs M.N. Arshad v. Miss Naeema Khan (PLD 1990 SC 612) all the autonomous bodies established through Resolutions of the Federal Government were declared to be departments of the Federal Government and the officers holding posts in the said bodies to be Civil Servants. Subsequent to the said judgment, Office Memorandtim ("0.M") dated 6.9.2000 was issued by the Establishment Division of the Federal Government which is reproduced hereunder:- GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)
No. 4/1/91-R7/R.3 Islamabad the 6th September, 2000 OFFICE MEMORANDUM SUBJECT:-- GOVERNMENT POLICY IN REGARD TO AUTONOMOUS BODIES ESTABLISHED THROUGH RESOLUTIONS.
The undersigned is directed to state that a number of autonomous bodies were established by the Federal Government from time to time through Resolutions under which some measure of functional autonomy was allowed to the Board of Governors/Board of Directors for the purpose of effective discharge of their allocated responsibilities. The legal status of such organizations came up for consideration before the. Supreme Court in Civil Appeal No. 154 of 1988, and it was held by the Court that organizations established through Resolutions were not bodies corporate but Government departments, and their employees were held to be civil servants.
2. In the light of the aforesaid decision of the Supreme Court the question whether the organizations established through Resolution should be made bodies corporate after fulfilling the required legal formality, or be run as a department of Government has remained under consideration of the Government for some time. The Chief Executive has now been pleased to approve the following general policy guidelines:--
(i) All Ministries/Divisions Incharge of organizations established through Resolution should determine in consultation with the Management Services Wing of Cabinet Division whether those organizations should be run as Government Department (i.e. Attached Department or Subordinate Office) or as autonomous body.
(ii) Where it is considered necessary in the public interest to run an organization as an autonomous body for the effective discharge of its functions, the Ministry/Division concerned should either get it registered as a Society or a Company under the relevant law or draft a separate legislation in consultation with law and Cabinet Divisions for changing legal status of the organization to that of a body corporate.
3. All Ministries/Divisions are requested to take necessary action accordingly. (AMIR-UL-HAQ) DEPUTY SECRETARY
23. The above O.M. was followed by another O.M. dated 30.11.2005 which is reproduced hereunder: GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)
No. 1-98-2004-E-6 Islamabad the November 30, 2005 OFFICE MEMORANDUM SUBJECT:-- ORGANIZATIONS/BODIES ESTABLISHED THROUGH RESOLUTIONS.
The undersigned is directed to say that in the light of judgment of the Supreme Court of Pakistan in Civil Appeal No. 154 of 1988, all organizations established through Resolutions are not body corporate but Government departments, and their employees are held to be civil servants.
2. Establishment Division issued instructions vide O.M. No. 4/1/91-R.7/R.3, di ted 6.9.2000 (copy enclosed) conveying that:
(i) All Ministries/Divisions Incharge of organizations established through Resolution should determine in consultation with the Management Services Wing whether those organizations should be run as Government Department (i.e. Attached Department or Subordinate Office) or as autonomous body.
(ii) Where it is considered necessary in the public interest to run an organization as an autonomous body for the effective discharge of its functions, the Ministry/Division concerned should either get it registered as a Society or a Company under the relevant law or draft a separate legislation in consultation with law and Cabinet Divisions for changing legal status of the organization to that of a body corporate.
3. In view of the above position, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are applicable to all such organizations unless their status has been altered subsequently, as instructed. Accordingly, in case of promotion to BS-20 and above, the Prime Minister is the competent authority, on the recommendations of the Central Selection Board, (emphasis supplied)
4. All Ministries/Divisions are requested to follow the Rules/Instructions as applicable in the case.
5. Kindly acknowledge receipt of the O.M. (SAJID BALOCH) DEPUTY SECRETARY (E-II)
24.Learned Deputy Attorney General confirmed that it has not yet been decided if the Institute is to be run as a government department or an autonomous body. However, it appears that in the absence of exercising any such option the Institute is being run as a government department under the administrative control of the Cabinet Division and the post of Chairman and Dean is being treated as a Grade 22 post under the Civil Servants (Appointment, Promotion and Transfer)
Rules, 1973.
25.Section 9(3) of the Civil Servants Act, 1973 and Rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 provide that the appointing authority of pay scales 20 and above shall be the Prime Minister. Rule 7 of the Rules provides that promotions and transfers of posts in basic pay Scales 2 to 18 shall be made on the recommendation of the appropriate Departmental Promotion Committee and promotions and transfer to posts in basic pay Scales 19 to 21 shall be made on the recommendation of the Selection Boards. Reference is also made to Section 9(3) of the Civil Servants Act, 1973 which provides that promotion to posts in basic pay Scales 20 to 21 and equivalent shall be made on the recommendation of a Selection Board.
Therefore, under the Act and the Rules, the appointing authority is the Prime Minister and there is no requirement of the recommendation of the Selection Board for appointment to the post of Grade- 22 (i.e., Chat-man and Dean of the Institute).
26.According to PC-1 form of the Federal Postgraduate Medical Institute, Lahore, the post of Dean is shown to be in Grade-22. The said PC-1 is part of the letter dated 1.8.1967 issued by the Ministry of Health, Special Education and Welfare (Health Division), Government of Pakistan. Even in subsequent summaries put up before Prime Minister for filling up the post of Chairman and Dean, the said post has been shown to be a Grade-22 post.
27.Counsel for Respondent No. 1 has contended that Office Memorandum dated 30.11.2005 (supra) provides as follows:-- "In view of the above position, the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are applicable to all such organizations unless their status has been altered subsequently, as instructed. Accordingly, in case of promotion to BS-20 and above, the Prime Minister is the competent authority, on the recommendations of the Central Selection Board."
Therefore, the case of Appellant No. 2 for the appointment Of Chairman and Dean should have been routed through the Central Selection Board. The portion starting with "Accordingly" is a simple reconfirmation that Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 are applicable to the present organizations. The said Rules clearly provide for Selection Board upto Grade-21 only, therefore, the counsel for Respondent No. 1 has misread the said Office Memorandum. Any such interpretation of the said Office Memorandum will be directly inconsistent with the Rules. There are no rules or procedure provided for the appointment to the post of BS-22. It is further pointed out that "Civil Servants (Appointment and Tenure of Posts in BPS-22) Rules, 1993 were rescinded on 4.4.1998 and since then there are no Rules governing the appointment to the said grade. This has also been confirmed by the august Supreme Court of Pakistan vide its judgment dated 28-4-2010 passed in Tariq Azizudin Case (HRC No. 8340-G/2009). The argument of the appellant, therefore, has no force.
28.However the matter does not end here. The process employed and the discretion exercised by the competent authority for filling the selection post of Chairman and Dean (Grade-22) in the absence of Rules under the Act or Rules and Regulations under the Resolution over the years, leading to the impugned appointment, has seriously occupied our minds.
29.There are two important aspects of the appointment to the post of Chairman and Dean of the Institute. First, the process, which entails search and selection of a panel of prospective candidates by the Board of Governors of the Institute, the summary prepared by the Cabinet Division, the consultations with the Establishment Division and the final summary put up before the Competent Authority for final approval. This component of the appointment procedure for convenience can be referred to as "summary preparation process". Second, the final discretion exercised by the Prime Minister on the basis of the 'summary' put up before him.
30.The quality of discretion exercised by the Prime Minister is fundamentally dependant on the quality of the "summary" put up before the said authority by the concerned Division. Therefore, the "summary preparation process" is an intrinsic and integral part of the final discretion exercised by the Prime Minister. The decision of the Prime Minister cannot be judicially reviewed in isolation. This exercise would be deficient and cosmetic unless and until the "summary preparation process" is also judicially reviewed. Failure of discretion at any stage of the "summary preparation process" will result in the collapse of the entire discretionary edifice including the final order. Therefore, when we judicially review the impugned order passed by the competent authority we are also judicially reviewing the entire appointment process.
31.In order to review the process and the final discretion of the competent authority, we start with the constitutive document that lays down the fundamental objective criteria which needs to be achieved by the appointment process. The qualification of the Chairman and Dean is given in Para 8 of the Resolution which is as under: 8(1). Chairman--(1) The Chairman who shall be an eminent person of scientific and medical repute, shall be the Chief Executive of the Institute and shall be appointed by the Federal Government for a term of three years extendable for a further period not exceeding three years at a time on such terms and conditions as may be determined by the Federal Government: Provided that the Federal Government may, at any time, terminate the appointment of the Chairman without assigning any reason.
(2)-------
(3) ------- (emphasis supplied).
32. It is clear from the above that the post of Chairman al d Dean is a selection post and has to be filled by "an eminent person of scientific and medical repute". It is not a promotion post or cadre post restricted to the existing employees of the Institute. Appointment to the said post is open to all provided they meet the qualificational requirement of the post.
33. The post of Chairman and Dean over the years has been filled by the Prime Minister who exercised discretion on the basis of the summaries put up by Cabinet Division. We now take up the summary for each year put up before the competent authority to review the procedure adopted over the years.
34. YEAR 1997
2. Dr. Zafar Aziz, Principal, Fatima Jinnah Medical College, Lahore was appointed as Chairman, Shaikh Zayed Postgraduate Medical Institute, Lahore on deputation basis, with effect from 17th March, 1997 (Annexure-II). He is attaining the age of superannuation viz 60 years on 9th August, 1997. Accordingly, an Acting Chairman of the said Institute will need to be appointed till such time that the Chairman/Dean, SZPGMI, Lahore is selected by the competent authority.
3. Dr. Tahir Shafi, Professor of Nephrology (BPS-21) is the senior most professor in the Institute and has been Acting as Chairman of the SZPGMI during absences of the Chairman. The Bio-data of Prof. Tahir Shafi is placed at (Annexure-III).
4. It is proposed that Prof. Tahir Shafi, Professor of Nephrology (BPS-21) may be appointed as Acting Chairman of SZPGMI, Lahore on retirement of Dr. Zafar Aziz and until further orders.
35. YEAR 2001 The Chief Executive's Secretariat through letter dated 28-5-2001 directed the Chairman, Board of Governors of the Institute to recommend a panel of doctors for the post of Chairman and Dean for selection. The Chairman of the Board of Governors prepared a panel of nominees namely: Prof Dr. Muhammad Saeed, Prof Dr. Naseer Ahmed and Prof. Mehdi Hasan Mumtaz for the post of Chairman and Dean for consideration. Establishment Division on the said recommendations vide its Letter dated 7-8-2001 recommended the name of Dr. Naseer Ahmed. The letter stated: "23. the fact remains that Dr. Saeed is a controversial person and his appointment as Chairman will not be in the interest of the institution.
24.The Cabinet Division is also of the view that in the interest of the Institute, the Chairman, SZPGMI should be an eminent person of scientific and medical repute having vast experience in his relevant field as well as hospital administration and, if possible free of controversy.
25.In view of the above the Establishment Division recommend that Professor Dr. Naseer Ahmed may be assigned the Chairmanship of SZPGMI.
26.Approval of the Chief Executive is solicited to the proposal made in para 25 above.
However, vide Office Memorandum dated 10-10-2001 the Competent Authority (Prime Minister) was pleased to appoint Dr. Muhammad Saeed as Chairman of the Institute.
36. YEAR 2003 Letter issued by the Prime Minister's Secretariat on the summary submitted by the Cabinet Division dated 14-5-2003 states: "3. Approval of the Prime Minister was solicited by the Cabinet Division to fill the post vide summary of even number dated 11-12-2002 (Annex-I). On this proposal, it was conveyed by the Establishment Division that the case may be processed through a selection board in the light of their O.M. No. 6/4/96-R.3, dated 10-5-1997 which provides for constitution of a selection board for making such recommendations to the approving authority. Accordingly, another summary for the Prime Minister was moved on 16-01-2003 on which the Prime Minister was pleased to constitute a Selection Board for recommending a panel of three eminent persons of scientific and medical repute for appointment against the post (Annex-II). The Board comprised the following:-- {{TABLE}} i. Cabinet Secretary Chairman ii. Additional Secretary (IPC)Member iii. Director General Health Member (Technical) {{TABLE}}
4. A meeting of the above Selection Board was held on 10.5.2003 under the Chairmanship of Acting Cabinet Secretary......
5. The committee considered a panel of eight persons which included four names furnished by the SZPGMI, one name each submitted by the Ministry of Health and Ministry of Defense (through Prime Minister's Secretariat) and two names of private doctors who had applied for the post on their own. The Selection Board considered all the candidates keeping in view their qualifications, experience and capacity to administer an Institute like SZPGMI in the light of Section 8(1) of the Resolution. The Committee recommended the following panel in order of merit/ priority for appointment to the post:--
1. Dr. Abdul Majeed Rajput......
2. Dr. Sajid Maqbool
3. Maj. Gen. (Retd) Tasneem Ahmed
6. .......
7. The Prime Minister is requested to consider and approve one of the three persons recommended by the Board in order of priority as indicated under Para 5 above for appointment as Chairman/Dean of Sheikh Zayed Postgraduate Medical Institute"
Thereafter the Cabinet Division put up fresh summary dated 24.6.2003. Para 12 of the said summary states: "12. The recommendations of the selection committee made earlier in Para 3/n above were based on the nominations made available to us by SZPGMI and the Ministry of Health. At present, Dr. Sajjid Maqbool included in the panel at Serial No. 2 of Para 3 above is no more available as he has been recently deputed to the Government of Punjab as the head of the Children Hospital, Lahore. Maj. Gen. (Retd.) Tasneem Ahmed is the only an MBBS and would, therefore, not qualify to be a Dean.
Now we are left with a single candidature of Dr. Abdul Majeed Rajput, presently working Principal Executive Officer/Dean, Rawalpindi Medical College. However it may be mentioned that present incumbent of the post .Dr. Anwaar Ahmed was appointed as the acting Chairman w.e.f 18th February 2003 he is also performing ctuite satisfactorily, for last four months. (emphasis supplied).
The Cabinet Division in subsequent summary dated 2.7.2003 stated the following in para 15: "15. A meeting of the Selection Board was accordingly held in the office of Cabinet Secretary on 30- 6-2003 to consider an appropriate person for appointment to the post of Chairman SZPGMI, Lahore. The Board considered above nominations received and recommended the following panel in order of merit / priority for appointment to the post of Chairman, SZPGMI, Lahore:-- i. Prof. Dr. Tahir Shafi..... ii. Dr. Abdul Majeed Rajput.... iii. Prof. (Retd.) Dr. Muhammad Zahir Shah....
16. The Prime Minister is requested to consider and approve one of the three persons recommended by the Board for appointment as the Dean/Chairman SZPGMI, Lahore.
However, Vide Letter dated 10-7-2003 the Prime Minister approved Dr. Anwaar Ahmed Khan as the Chairman/Dean of SZPGMI with immediate effect.
37. YEAR 2006 Summary dated 13-7-2006 was put up by the Cabinet Division in the following manner:--
2. "Professor Dr. Anwaar Ahmad Khan, is a permanent employee of Shaikh Zayed Medical Complex.
He was promoted as Professor and Head of Department of (Gastroenterology) on 22.04.1996.
Thereafter he was granted BPS-21 under the Meritorious Quota Scheme for Professional and Technical Personnel on 14.11.2005. He was appointed as Chairman/Dean on 12th July 2003 initially in his own pay and scale but subsequently allowed BPS-21 on substantive basis tenable during his tenure appointment (Annex-II & III).
3. Cabinet Division believes that this officer is best suited to continue the excellent work initiated by him for upgradation/improvement of the Institute. A profile of his achievements/projects started by him is at Annex-IV.
4. The post of the Chairman/Dean is tenable in BPS-21/22. A number of Chairmen/Deans have been appointed as such in BPS-22 for the period of their tenures (Annex-V).
5. In view of the above and in the interest of continuity of policies, Cabinet' Division proposes that Professor Dr. Anwaar Ahmad Khan may be given a further tenure of 3 years in the enhanced grade of BPS-22."
38. YEAR 2009 On 1.7.2009 summary put up by the Cabinet Division provided: "3. Prof Dr. Anwaar Ahmed Khan was appointed as Chairman/Dean (BS-21) on 12th July, 2003. On expiry of the 'tenure of three years, he was re-appointed for the second tenure in BPS-22 for three years on 12th July 2006 (Annex-II). His tenure will expire on 11th July, 2009.
4. Following three options are proposed for appointment'of Chairman/Dean, SZPGMI:--
(i) In view of outstanding performance of Dr. Anwaar Ahmed Khan his tenure may be extended till 7.1.2011 his date of superannuation. This will have to be done in relaxation of the conditions of two tenures of 3 years each as given in Para 8 of Resolution: or Dr. Zafar Iqbal, Professor of Medicine (BPS-21 meritorious) may be considered for appointment as Chairman, SZPGMI for a period of three years 'cv.e.f. 12.7.2009. Among the doctors serving in the Institute, he qualifies the criteria of requisite experience and capability as per evaluation made by the incumbent Chairman and still has five years' of service left before attaining the age of superannuation on 25th June, 2014; or
(iii) The post of Chairman/Dean, SZPGMI may be advertised for fresh recruitment and a selection committee may be constituted. However, the present Chairman may continue, in public interest, till his successor is appointed.
5. Orders of the Prime. Minister are solicited on the options contained in Para 4. In the interest of continuity of the current policies the option given in Paras 4(i) and 4(ii) are preferred.
Prime Minister was pleased to approve the proposal at para 4(i) of the Summary on 20.7.2009.
39. Summary for the year 1997 does not show how the names of the two candidates have been put up. There has been no advertisement. Cabinet Division proposed the name of Dr. Tahir Shaft as an "Acting Chairman," however, the said doctor, ignoring the recommendation of the Cabinet Division was appointed as Chairman and Dean by the competent authority on 23.10.1997. It is also noted that there is no provision for the appointment of an Acting Chairman and Dean under Para 8 of the Resolution. In 2001, Board of Governors was asked to send a panel of nominees for the post of Chairman and Dean by the Chief Executive Secretariat. Thereafter, three names were proposed.
There is nothing on the record to show how these three names were short listed without any search carried out or without any open public advertisement. The recommendee of the Cabinet Division was one Professor Dr. Naseer Ahmad, however, Dr. Muhammad Saeed was appointed by the competent authority inspite of the fact that he was stated to be controversial. In the year 2003, recruitment process included a selection board on the basis of Office Memorandum No. 6/4/96-R.3 dated 10.05.1997 which is reproduced hereunder for ready reference with the relevant portion underlined in bold:-- (AMENDED UPTO 13TH JUNE, 2002)
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)
No. 6/4/96-R.3 Islamabad the 10th May, 1997 OFFICE MEMORANDUM SUBJECT:-- PROCEDURE REGARDING APPOINTMENTS IN AUTONOMOUS SEMI AUTONOMOUS BODIES, UNDER THE FEDERAL GOVERNMENT OF PAKISTAN In supersession of the instructions issued vide Office Memorandum No. 1/85/94-E.6 dated the 12th September, 1994, the undersigned is directed to state that henceforth the cases of appointment to various posts in autonomous, semi-autonomous bodies shall lie processed in accordance with the following guidelines:- {{TABLE}} S. No. Nature of Case Selection Procedure Approving Authority i. Appointment of Chief Executive/Head of the Organization.Selection Board headed by the Minister Incharge to consider and recommend from a panel of three names for each vacancy.Prime Minister/Chief Executive: @ Provided that where the charge of a Ministry/Division is held by the Chief Executive, the Selection Board shall be headed by the Secretary of the respective Ministry/Division ii. (a) Posting of government servants of BS-21 and aboveTo be processed through the Establishment Divison.Prime Minister/Chief Executive
(b) Posting of government servants of BS-20-- Establishment Secretary
(c) Posting of government servents of BS-17 to 19.To be processed in the Ministry/Division concerned.Secretary of concerned Ministry/Division
(d) Posting of government servants in BS-16 and below.To be processed by the Department concerned.Head of Department. iii (a) Appointment to posts in Management Grades other than of a Finance Member/Director and those covered by (i) and
(ii) above.Selection Board headed by the Secretary of the Ministry/Division concerned to consider and recommend from a panel of three names for each vacancy.Prime Ministry/Chief Executive iii (b) Appointment to posts carrying a minimum pay equal to the minimum of BSP-20 and above.Section Board headed by the Secretary of the Ministry/Division concerned to consider and recommend from aMinister Incharge penal of three names for each vacancy. iv. Appointment of Heads of Subsidiary Companies not included in Management Grade.Selection Board headed by the Secretary of the Ministry/Division concerned and recommend from a panel of three names for each vacancy.Minister Incharge v. Appointment to post other than those mentioned above.Through appropriate Selection Board set up in the Organization.@An Officer authorized by the Head of the Organization concerned. {{TABLE}} Amended vide Establishment Division's O.M. No. 6/4/96- R.3 dated 26.5.2000. @ Amended vide Establishment Division's O.M. No. 6/4/96- R.3 dated 6.6.2002.
2. This procedure shall be applicable, mutatis mutandis, for selections for these posts from open market.
3. The Constitution of Selection Boards for posts mentioned at Serial Numbers (i), (ii), (iii) and (iv) of Para I shall be subject to the approval of the 'Prime Minister/Chief Executive through Establishment Division (unless already so approved). The Constitution of the Selection Board at Sr.No. (v) of Para I shall be approved by the Minister Incharge of the Ministry/Division concerned.
4. In case where the services of any Government Servant are required for posting on deputation in any autonomous/semi autonomous body, the administrative Ministry/Division concerned shall propose a panel of at least three names through the Establishment Division in case where the Prime Minister/Chief Executive is the competent authority.
5. Appointment to the post of Member (Finance), Director (Finance) or the Chief Finance Officer in any autonomous/semi autonomous body irrespective of the designation shall be made with the approval of the Prime Minister/Chief Executive in case the post is in BS-20, equivalent or above.
However, for these posts in BS-19/equivalent the Government's approval will be accorded by the Finance Secretary in consultation with the Establishment Secretary. **6. All appointments approved by the President or the Chief Executive/Prime Minister shall be notified by the Establishment Division Posting of Officers of BS-20 in autonomous and semi- autonomous bodies will also he notified by the Establishment Division. The terms and conditions of deputation to autonomous bodies shall be regulated by the prescribed standard terms and conditions of deputation. Any deviation from the standard terms and conditions of deputation shall require prior approval of Finance and Establishment Divisions.
(substituted vide O.M. No. 6/4/96-R.3 dated 10.4.2002).
7. In, cases where these instructions are in conflict with the provisions of the Laws governing any Corporation, the provision of the Law to the extent of, conflict shall prevail.
8. Establishment Division's U.O. No. 1/85/94-E.6 dated the 5th May, 1996 regarding ban on promotion in the Corporations, is hereby cancelled. (Zarmast Khan Khattak) Deputy Secretary to the Government of Pakistan.
The Selection Board was appointed which recommended three names for the post. Later on, Cabinet Division in its fresh summary dated 24.6.2003 added the name, of Dr. Anwaar Ahmad Khan.
Once again the matter was placed before the Selection Board, three fresh names were given which did not include the name of Dr. Anwaar Ahmed Khan but the competent authority ignoring the recommendation of the Selection Board, appointed Dr. Anwaar Ahmad Khan. In 2006, no other name was brought under discussion, Selection Board under Office Memorandum dated 10.5.1997 was not constituted. Fresh appointment through extension was granted to Dr. Anwaar Ahmad Khan without carrying out a comparative assessment from amongst the other prospective candidates.
Cabinet Division gave a subjective assessment in the said summary to the effect that the aforesaid officer is "best suited to continue the excellent work initiated by him." This assessm ent was done without any comparative data on the record. In the year 2009, out of the three choices given in the said summary (Para 38 supra) namely, 4(i), (ii) & (iii) the competent authority selected 4(i) without furnishing reasons. Dr. Anwaar Ahmad Khan was granted an extension for another three years (going into his 7th year) when he had already served two terms without giving reasons for the same.
40. Perusal of the appointment process in general and the ' process of the impugned appointment in the year 2009, in particular shows that there is no uniformity, transparency, certainty or structure about the process. We have noted that in the absence of Rules and Regulations of the Institute or Rules under the Civil Servants Act, 1973 the process employed is unguided, un-planned, unsystematic, arbitrary, aimless, perfunctory, mechanical, haphazard, discrete and unreasonable.
It appears to us that the process was not geared to search and select the best man for the post.
Except in the year 2001, the Board of Governors of the Institute were never consulted, no effort was made for the search of best talent through public advertisement nationally or internationally.
Considering the technical nature of the post, it was essential that the Technical Search Committee should have been constituted by the Institute and the Cabinet Division.. Even the role of Establishment Division has been lukewarm, even though the final 'responsibility rests on the said Division in the matters of appointment under the Rules of Business, 1973. Such an unguided and unstructured process of appointment is facially discriminatory as it blocks merit, cripples opportunities and impairs the access of talented doctors of this country to the coveted post of Chairman and Dean of the Institute. Such a loose structure driven on the whims and caprice of a few invites corruption and nepotism. The process of appointment over the years and the one adopted in the year 2009 is most unsatisfactory to say the least and cannot be sustained. At this stage we wish to make it clear that this decision has no bearing on the credentials and ability of Appellant No. 2. We are not concerned with the individuals but with the process.
41. The scope, nature and quality of the "summary" to be placed before the competent authority for the appointment of. Chairman and Dean of the Institution is provided in Rules 15 (2) and 18 of the Rules of Business, 1973 of the Federal Government. The requirement of consultation with the Establishment Division is provided in Rule 11 of the said Rules. All these Rules are provided hereunder:--
15. Reference to the Prime Minister.
15(2). "A case submitted to the Prime Minister for his orders shall include a self-contained, concise and objective summary stating the relevant facts and the points for decision prepared on the same lines as those prescribed in these rules for a summary for the cabinet...."
18. Manner of submission of Cabinet Cases. (1). "In respect of all cases to be submitted to the Cabinet, the Secretary of the Division concerned' shall transmit to the Cabinet secretary a concise, lucid and printed memorandum of the case (hereinafter referred to as the "summary"), giving the background and relevant facts, the points for decision and the recommendations of the Minister in Charge in the event of the views of the division being different from the views of the Minister, both the views shall be included in the summary."
(2)------- (3)The summary shall be self-contained as far as possible, not exceeding two printed pages and may include as appendices only such relevant papers as are necessary for the proper appreciation of the case.
(4)Where a case concerns more than one division, the summary shall not be submittedthe cabinet unless it has been considered by all the divisions concerned. In the event of a difference of opinion between them, the points of difference shall be clearly stated in the summary, a copy of which shall be sent by the sponsoring division to the other division concerned simultaneously."
11. Consultation with the Establishment Division: No Division shall, without previous consultation with the Establishment Division, issue, or authorize the, issue of, any orders, other than orders in pursuance of any general or special delegation made by the Establishment Division, which involve:-
(c) Appointment to a post in BS-20 and above and equivalent whether by initial appointment or promotion or transfer.
42.We also rely to Office Memorandum dated 10.5.1997 (No. 6/4/96-R.3) (supra) which lays down the procedure regarding appointment in autonomous and semi-autonomous organizations under the Federal Government of Pakistan and provides that the appointment of Chief Executive/Head of the Organization shall be by the Prime Minister and further provides that the selection procedure which entail a Selection Board headed by the Secretary of the respective Division to consider and recommend from a panel of three names for each vacancy. This was followed in this case in the year 2003, when the Selection Board was also constituted comprising Cabinet Secretary as Chairman, Additional Secretary (ICP) and Director Health as Members. For unknown reasons, the said memorandum was not followed subsequently. The learned Deputy Attorney General confirms that the said Office Memorandum holds the field even today.
43.The above Rules and the aforementioned Office Memorandum were not adhered to in this case. Appointment or selection without any guideline or criteria for selection is a recipe for disaster.
Recruitment process that is unguided and unstructured, can be easily highjacked by the influential and strong of the society thereby depriving the right person the opportunity to hold the post. Such a loose structure of selection process allows corruption, nepotism and jobbery to make its way into the system thereby crippling the foundation of the institutions.
44.It might be a loud reminder to reproduce what the father of the nation Quaid-e-Azam Muhammad Ali Jinnah said in his Presidential Address to the Constituent Assembly of Pakistan at Karachi on 11th August, 1947:-- "The next thing that strikes me is this: Here again it is a legacy which has been passed on to us.
Alongwith many other things, good and bad, has arrived this great evil-the evil of nepotism and jobbery. This evil must be crushed relentlessly. I want to make it quite clear that I shall never tolerate any kind of jobbery, nepotism or any influence directly or indirectly brought to bear upon me. Wherever, I will find that such a practice is in vogue or is continuing anywhere, low or high, I shall certainly not countenance it." (emphasis supplied).
45.In Law of Writs by V.G. Ramachandran's it is observed as follows: "The administration possesses vast discretionary powers and if complete and absolute freedom is given, it will lead to arbitrary exercise of power. The wider the discretion the greater is the possibility of its abuse. As is rightly said, 'Every power tends to corrupt and absolute power tends to corrupt absolutely.' All powers have legal limits. The wider the power, the greater the need for the restraint in its exercise. It is well to remember what Burke said in the House of Commons in 1772 in connection with the motion for Select Committee for enquiry into the affairs of the East India Company and Clive. He said that when discretionary power is lodged in the hands of any man or class of men, experience has shown that it could be abused. Where no laws exist, men might be arbitrary and very necessary acts of Government will often be, in such cases, represented by the interested and malevolent as instances of wanton oppression. There must be control over the discretionary powers of the administration so that there will be a 'government of laws and not of men".
46.In Delhi Transport Corporation V. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101) it was held that: "There is need to minimize the scope of the arbitrary use of power in all walks of life. It is inadvisable to depend on the good sense of individuals, however high-placed they may be. It is all the more improper and undesirable to expose the precious rights like the rights of life, liberty to say that individuals are not and do not become wise because they occupy high seats of power; and good sense, circumspection and fairness does not go with the posts however high they may be. There is only a complainant presumption that those who occupy high posts have a high sense of responsibility. The presumption is neither legal nor rational. History does not support it and reality does not warrant it. In particular, in a society 'pledged to uphold the rule of law, it would be both unwise ar 1 impolitic to have any aspect of its life to be governed by discretion when it can conveniently and easily be covered by the rule of law. "
47.Public institution cannot flourish and good governance cannot take root in this country unless public functionaries uphold the rule of law at all times and act strictly in accordance with law. To ensure that public functionaries act in accordance with law, fundamental function that needs to be meticulously regulated is their "exercise of discretion". Discretion of the public functionaries must strictly be within the framework of the law. In the absence of legislation, it must stand the test of fairness, procedural propriety, reasonableness, logic, transparency and good governance.
48.In this case the process could have been easily structured. Office Memorandum dated 10-5- 1997 (No. 6/4/96-R.3) is still in the field and prescribes a selection procedure through a selection board for appointment of Chief Executive and Head of Organizations and does not appear to be in conflict with the Civil Servants (Appointment, Promotion and Transfer) Rules, 1993 as it specifically provides for appointment of Chief Executive/Head of organizations. Even otherwise, it is mandatory to put a system in place before the selection process can begin.
49.Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on an objective-criteria. As the present case pertains to selection and appointment of the most "eminent person of scientific and medical repute" for the post, the requirement of an objective criteria for the exercise of discretion becomes fundamental. The objective criteria now-a-days is based on objectively quantifiable evaluation basis which is publicly known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery. The final order of the appointing authority must speak for itself, clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectivity and without comparative assessment of the candidates available in the talent pool.
50.The importance of a fair and intelligent appointment process and structured discretion becomes doubly important when the appointment is of a Chief Executive of a medical institute which has a direct interface with the people and deals with their lives and welfare. The discretion exercised by the competent authority for selection of a Chairman and Dean of a medical institute is a sacred trust and the said trust has to be responsibility and diligently discharged.
51.The authorities preparing the summary and the order of the competent authority appointing Appellant No. 2 on 20.07.2009 failed to exercise discretion in accordance with law. The summary put up on 01.07.2009 by the Cabinet Division had the following three options:-- (i)In view of outstanding performance of Dr. Anwaar Ahmed Khan his tenure may be extended till 7-1-2011 his date of superannuation. This will have to be done in relaxation of the conditions of two tenures of 3 years each as given in Para 8 of Resolution: or (ii)Dr. Zafar Iqbal, Professor of Medicine (BPS-21 meritorious) may be considered for appointment as Chairman, SZPGMI for a period of three years w.e.f. 12.7.2009. Among the doctors serving in the Institute, he qualifies the criteria of requisite experience and capability as per evaluation made by the incumbent Chairman and still has five years of service left before attaining the age of superannuation on 25th June, 2014.
(iii) The post of Chairman/Dean, SZPGMI may be advertised for fresh recruitment and a selection committee may be constituted. However, the present Chairman may continue, in public interest, till his successor is appointed.
Option 4(i) which was approved by the competent authority required the relaxation of the conditions of two tenures of three years each as given in Para 8` of the Resolution. However, there is not a word regarding the same in the appointment order. No reason whatsoever has been given why the said doctor has been allowed to embark upon his 3rd tenure. Medical Science is a growing and a developing field which requires a person with demonstrable skill set and a pioneering approach towards medical science and technology. It is, therefore, odd that same person is holding the post for the last six years, has been given fresh extension for other three years. Said person could be the most competent mind in the country for the said post but in the absence of proper search for the most "eminent person of scientific and medical repute" extension of Appellant No: 2 .becomes suspect. The summary put up by the Cabinet Division also fails to have satisfied the conscience of this Court regarding search for the best person for the said job. There is also no reason why options 4 (ii) and (iii) above were ignored by the competent authority. The treatment given to the three options placed before the competent authority in the summary of Cabinet Division is not satisfactory and does not show a structure discretion as mandated by the august Supreme Court of. Pakistan. The discretionary powers exercised by the competent authority lacks "open reasons, open findings, open precedent, and fair and formal procedure". Reliance is placed on Aman Ullah Khan and others V. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092).
52. The meaning and scope of discretion have come up before the Courts earlier. In Sharp V.
Wakefield (1891 AC 173), Lord Halsbury observed:-- "Discretion' means when it is said that something is to be done within the discretion of the authorities that something is to be done according to the rules of reason and justice, not according to private opinion...according to law and not humour. It is to be not arbitrary, vague, and fanciful, but legal and regular. And it must be exercised within the limit, to which an honest man competent to the discharge of his office ought to confine himself..."
In R. v. Askew, [(1768) 4 Burr 2186] the concept of judicial discretion which is not confined to Courts strict sensu, imports a duty to be fair, candid and unprejudiced; not arbitrary, capricious or biased; much less, warped by resentment, or personal dislike.
In Judicial Review of Administrative Action, by De Smith (1995) it is observed: The term itself implies vigilance, care, caution and circumspection. When the legislature confers discretion on a Court of law or on an administrative authority, it also imposes responsibility that such discretion is exercised honestly, properly and reasonably.
In Union of India v. Kuldeep Singh [(2004) 2 SCC 590] The word 'discretion' standing single and unsupported by circumstances signifies the exercise of judgment, skill or wisdom as distinguished from folly, unthinking or haste; evidently, therefore, a discretion cannot be arbitrary but must be a judicial thinking. The word in itself implies vigilant circumspection and care; therefore, where the legislature concedes discretion, it also imposes a heavy responsibility.
53. We rely with advantage on Aman Ullah Khan and others V. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others (PLD 1990 SC 1092), relevant para therefrom reads as under: "Wherever wide-worded powers conferring discretion exist, there remains always the need to structure the discretion and it has been pointed out in the Administrative Law Text by Kenneth Culp Davis (page 94) that the structuring of discretion only means regularizing it, organizing it, producing order in it so that decision will achieve the high quality of justice. The seven instruments that are most useful in the structuring of discretionary power are open plans, open policy statements, open rules, open findings, open reasons, open precedents and fair informal procedure. Somehow, in our context, the wide worded conferment of discretionary powers or reservation of discretion, without framing rules to regulate its exercise, has been taken to be an enhancement of the power and it gives that impression in the first instance but where the authorities fail to rationalize it and regulate it by Rules, or Policy statements or precedents, the Courts have to intervene more often, than is necessary, apart from the exercise of such power appearing arbitrary and capricious at times", (emphasis supplied).
Further reliance with advantage is placed on Chairman, Regional Transport Authority, Rawalpindi V Pakistan Mutual Insurance Company Limited, Rawalpindi (PLD 1991 SC 14), Director Food, N. W.F.P. and another V. Messrs Madina Flour & General Mills (Pvt.) Ltd. & 18 others (PLD 2001 SC 1), Chief Secretary Punjab and others V: Abdul Raoof Dasti (2006 SCMR 1876), Abdul Wahab and another V.
Secretary, Government of Balochistan and another (2009 SCMR 1354) and Delhi Transport Corporation V. D.T.C. Mazdoor Congress and others (AIR 1991 SC 101), 54.Ch. Ijaz Ahmed, J. speaking for the august Supreme Court of Pakistan in Tariq Aziz-ud-Din' case (HRC 8340/G/2009) held: The above principles of structuring of discretion actually has been derived from the concept of rule of law which, inter alia, emphasize that action must be based on fair, open and just consideration to decide the matters more particularly when such powers are to be exercised on discretion. In other words, the arbitrariness in any manner is to be avoided to ensure that the action based on discretion is fair and transparent.
55.We are, therefore, of the view that the summary dated 1.7.2009 and the impugned orders dated 20.7.2009 and 21.7.2009 appointing Appellant No. 2 through fresh extension of three years does not pass the test of lawful exercise of discretion. The appointment order of Appellant No. 2 is, therefore, set aside. In order to avoid any administrative discontinuity, Appellant No 2 will be deemed to be an Acting Chairman and Dean of the Institute from the date of this order till the appointment of new Chairman and Dean takes place within a maximum period of four months from today in accordance with the process, guidelines, directions given hereunder. Appellant No 2 as well as Respondent No. 1 are free to participate in the fresh process of appointment of Chairman and Dean if they so desire. It is clarified that this decision has no bearing on the qualifications performance and ability of Appellant No. 2. The Court has been dissatisfied with the process of appointment and not with the person. In. case Appellant No. 2 does not wish to continue as Acting Chairman and Dean, the Board of Governors are directed to ensure that the administration of the Institute does not suffer any set back and the management of the institute is handed over to the Executive Committee provided under the Resolution till the new Chairman and Dean is appointed. It is also clarified that all orders passed actions taken by Appellant No. 2 as Chairman and Dean shall be deemed to be valid.
56. Till the Rules and Regulations are framed by the Institute under the Resolution or appropriate Rules for the officers in Grade-22 are framed under the Civil Servants Act, 1973, the respondents will follow the under mentioned guidelines and immediately initiate the appointment process for the selection of a new Chairman and Dean of the Institute. The Board of Governors, the Cabinet Division and the Establishment Division will ensure that:--
(i) The Board of Governors will constitute a Search Committee for the search of Chairman and Dean of the Institute.
(ii) The post of Chairman and Dean shall be advertised by the Search Committee nationally and internationally in reputable print media in order to search for the most "eminent person of scientific and medical repute" as provided in Para 8 of the Resolution.
(iii)Board of Governors of the Institute will short list the names of candidates and present a panel of a minimum of five names before the Cabinet Division after due consultation with the Establishment Division and place it before the Selection Board to be constituted under O.M. dated 10.5.1997 (supra).
(iv)Recommendation of the Selection Board will be placed before the Competent Authority for final decision. The competent authority on the basis of an objective criteria evaluate the recommendations and appoint the most suitable candidate for the post by furnishing reasons. In case the recommendations are rejected by the competent authority, the recruitment process will be initiated afresh.
57. For the above reasons, this appeal is dismissed, impugned order of appointment of Appellant No. 2 dated 21.7.2009 is set aside and, order of the learned single judge is maintained subject to the terms of this order with the direction to the Competent Authority, Cabinet Division and the Institute to immediately commence the appointment process for the appointment of a Chairman and Dean of the Institute which shall be completed without fail in four months from the date of this judgment. Appellant No. 2 shall continue as Acting Chairman and Dean till the appointment of the new Chairman and Dean of the Institute.