This order shall dispose of the instant writ petition as well as W.P. No, 2189-2012 as both these matters involve common question of law and facts.
2. Through this writ petition, the petitioner has challenged the Notification No, SO(GC)M-226/99 dated 18.02.2012 (Annex-'C') and prayed for upholding of Notification No, S.O(GC)M-226/99 dated 16.02.2012 (Annex-B') with further prayer to direct Respondents No, 1 & 2 to fill in the Administrative and Executive posts in the general cadre under the rules on merits amongst the eligible Principal Medical Officers (PMOs) possessing the requisite Post Graduate Qualification. While addressing the question of maintainability, learned counsel for the petitioner did not press the first part of prayer and confine only to the issuance of writ of quo-warranto vide order of this Court dated 4.10.2012.
3. In W.P. No, 2189/2012 the petitioner sought that the appointments of Respondents No, 3, 4, 5 & 6 may be declared as illegal, unlawful being non qualified and ineligible with further direction to Respondents No, 1 and 2 to- appoint eligible and qualified doctors of BS-20 on all BS-20 administrative posts in the Health Department in accordance with the rules and merits without further delay.
4. The brief facts giving rise to filing of this writ petition as contained therein are that Respondent No, 3 is an Additional Principal Medical Officer (APMO) of BS-19. Vide Notification No, SOR-III-1-30/94 dated 21.11.1994 Respondent No, 2 created following four tier structure of general cadre doctors:-- S/No,Designation Grade a Principal Medical Officer (PMO) BS-20 b Additional Principal Medical Officer
(APMO) BS-19 c Senior Medical Officer(SMO) BS-18 d Medical Officer(MO) BS-17 In the said Notification at Serial No, 7 the- qualification and postings of PMOs, a Principal Medical Officer(PMO) is mentioned as follows :--
(I) A Principal Medical (PMO ) of BS-20 with an additional post graduate qualification will be designated as under :--
(a) MS of DHQ hospitals at Divisional Headquarters,
(b) MS, of DHQ Hospitals of 250 beds and above (e) Director Provincial Health Dev Centre Lahore
(d) Director Health Services
(e) MS Teaching hospitals
(f) MS Punjab Institute of Cardiology, Lahore
(g) MS Government Mental Hospital, Lahore
(h) 'Surgeon Medico-legal Punjab, Lahore
(i) Executive Director Special Projects,"
(j) Surgeon General, Punjab, Lahore
(k) Gen. Manger Government MSD, Lahore
(l) Director Blood Transfusion Services Punjab, Lahore, and
(m) Chief Chemical Examiner to Government of the Punjab Lahore.
The Government of the Punjab created 45 executive and 75 general duty posts for the doctors of the rank of Principal Medical Officer and as Respondent No, 3 is an APMO of BS-19 who neither possessed of the requisite Postgraduate qualification nor the grade yet was posted as Medical Superintendent DHQ Hospital, Rawalpindi on 09.02.2010 and after completing 2-years month and 7- days the petitioner was appointed in his place vide Notification No, S.0 (GC) M-226/99 dated 16.02.2011 But only after two days of taking over the charge' by the petitioner i,e, on 18.02.2012 vide Notification No, S.O (GC)M-266/99 Respondent No, 3 was reappointed at the place of the petitioner.
The petitioner within this background seeks issuance of a writ in the nature of quo-warranto questioning his eligibility/ qualification to be appointed and hold the said post.
4. Learned counsel for the petitioner submits that Respondent No 3 neither possesses B.S. 20 grade nor any requisite post graduate qualification, thus is not qualified to hold such post; that the Notification dated 18.02.2012 is ultra vires of constitution and needs to be set aside as the same is corum non-judice; that under Section 18 of the Punjab Medical and Health Institutions Act 2003 the government is required to appoint a whole time M.S. of Institution possessing such qualification on such terms and conditions as it may determine from a panel of three individuals recommended by the board and vide notification dated 15.09.2003 the board was constituted which was empowered to recommend the appointments against BS 17 and above that vide notification dated 21.11.1994 at Serial No, 7 of the schedule the requisite qualification for appointment of Principal Medical Officer or equivalent (BS-20) is DHQ/DPH/DMCH/MPH/DHA/MCPS/FCPS in community medicine/M.Sc. (Med.
Admn) and 5-years service as DHO/MS of the hospitals/Addl. Director Health services/MS THQ Hospital/AMS and In-service training at the provincial Health Development Centre but Respondent No, 3 did not possess such degrees. Places reliance on PLJ 2012 S.C. 73 (Original Jurisdiction); Muhammad Iqbal Khattak versus federation of 'Pakistan (2010 CLD 1572(Lahore); PLD 2011 Supreme Court 927 (Suo Motu Case No, 18 of 2010); PAKISTAN TOBACCO BOARD and another versus Tahir Raza and others (2007 SCMR 97) to argue that in fact the merit is the qualification which is made basis for seniority-cum-fitness.
5. Conversely, learned Assistant Advocate General questions the maintainability of this writ petition on the ground that after order dated 4.10.2012 the petition was required to be amended, which was not; that the petitioner himself is interested person and is direct beneficiary, hence cannot be a petitioner in a writ of quo warranto; that earlier in Writ Petition No, 607/12 titled Muhammad Afzal Sajid versus Government of. Punjab through Chief Minister & 2 others on the same subject matter was dismissed by this Court on 07.03.2012, where after ICA No, 32 of 2012 titled Muhammad Afzal Sajid versus Government of Punjab, etc. filed against the said order was also dismissed on 7.05.2012 by a Division Bench of this Court where after CPSLA No, 1306 of 2012 was dismissed by the Hon'ble Supreme Court of Pakistan on 10.08.2012, which fact was concealed from this Court; that in the writ of quo warranto it is the qualification of a person to hold the post is challenged and not the appointment; that in the subsequent Notification dated 18.10.2004 the Medical Superintendent can be appointed from BS-19 by a competent authority, which criteria is laid down for seats in District Headquarters Hospitals in Punjab for the Principal Medical Superintendents in the Punjab from B.S. 19/20. Learned A.A.G also argued that as per news items the Chief Minister of Punjab has expressed his strong resentment over the poor cleanliness arrangement in the hospitals and thereafter he immediately transferred the petitioner by posting him as OSD and initiated action against him while accompanying the sitting MNA, namely, Muhammad Hand Abbasi and Malik Shakil Awan and the Commissioner Rawalpindi. Places reliance on Dr. Shazia Khawaja versus Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others (2012 PLC(C.S.) 1057 (Lahore), Asghar Ali and others versus Mansoor Muzaffar Ali and 3 others (2012 PLC(C.S.) 502 (Islamabad High Court), Tariq Mehmood Ali Khan and 3 others versus Sindh Bar Council through Secretary and 3 others (2011 YLR 2899 (Karachi) and Arbab Imtiaz Khan versus Assim Jamil Zubedi and another (2011 PLC (C.S.) 482 (Sindh High Court) & prays for dismissal of the writ petition.
6. Learned counsel for Respondent No, 3 adds that the present writ petition was filed immediately after dismissal of earlier Writ Petition No, 607 of 2012 on 07.03.2012 and the matter has already attained finality when the Hon'ble Supreme Court of Pakistan had dismissed CP No, 1306/2012 after consulting the available record, which establishes that all the points now raised before this Court were raised and dealt with through an authoritative pronouncement. Places reliance on Syed Masood Alam Rizvi and others versus Dr. Muhammad Saeed (2009 SCMR 477), Amanul Mulk vs. Mian Ghafoor-Ur-Rehman and others (1997 SCMR 1796) and Muhammad Yasin Saqib versus Chairman, Pakistan Telecommunication Corporation, Islamabad and 7 others (2003 PLC(C.S.) 1105) to argue that repetitive writ petition by or on behalf of the litigant is deplorable and the matter is hit by the principle of constructive res judicata. Submits that the petition for quo warranto is not maintainable by an interested person. On merits the learned counsel submits that the petitioner is duly qualified as per Notification dated 18.10.2004; that the petitioner has been in Grade-19 and occupies the post as M.S, he possesses the degree of Masters in Public Health which is required therefore, prays for the dismissal of the petition.
7. I have heard the learned counsel for the parties and perused the record.
8. The question before this Court is as to whether writ of quo warranto can be issued against Respondent No,
3. The petitioner .remained Medical Superintendent of the concerned Hospital but was substituted by Respondent No, 3 on the indulgence of Chief Minister and the sitting M.N.A and the -Commissioner, Rawalpindi Division, Rawalpindi. Respondent No, 3 occupies BPS-19 and holds a degree in Public Health. The earlier Writ Petition No, 607 of 2012 challenged the posting of BPS-19 as Principal Medical Officer was dismissed for the reason that the petitioner therein was not a doctor, hence not an aggrieved person which order has attained finality.
9. This leads me to the point that the petitioner being a doctor but an interested person will be the direct beneficiary of a writ of quo warranto. The petitioner has also failed to amend the writ petition accordingly after the order dated 04.10.2012 passed by this Court. The law on the scope of writ of quo warranto is based upon the illuminating judgments given by the august Court in Aziz- ur-Rahman Chowdhury vs. M. Nasiruddin etc (PLD 1965 Supreme Court 236) When Court can inquire into conduct and motives and can dismiss the writ petition where information laid was of vexatious nature. In esteemed judgment given in Hafiz Hamdullah vs. Saifullah Khan and others (PLD 2007 Supreme Court 52), it is held that to invoke jurisdiction under Article 199 for quo warranto a person is not required to fulfill the conditions so as to bring him in to the meaning of an aggrieved person and is not required to establish his locus standi. He just has to show that the incumbent is not legally qualified to hold or remain in the office. In Pakistan Tobacco Board and another vs. Tahir Raza and others (2007 SCIVIR 97) the proceedings are held as primarily inquisitorial and not adversarial as the incumbent must be a person holding a public office without any legal warrant. View taken by the Division Bench of Sindh High Court in Arbab Imtiaz Khan vs. Assim Jamil Zubedi and another [2011 PLC (C.S) 482] and provides the condition i,e, holder of a public office, without requisite qualification not appointed by the competent authority. However, recent judgment of Single Bench of this Court in Dr. Shazia Khawaja vs. Chairman and Dean of Sheikh Zayed Post Graduate Medical Institute and Hospital, Lahore and 7 others [2012 PLC (C.S)1057], wherein this Court has held that the conduct of the petitioner is relevant.
10. Scanning of the above-referred judgments and applying the dicta laid down therein, it is safely concluded that the petition is motivated; therefore, the writ of quo warranto cannot be issued.
However, Respondent No, 1 is directed to re-scrutinize the qualification and grade of Principal Medical Officers already posted in District Headquarter Hospitals throughout Province of the Punjab as per their eligibility criteria and intimate this Court through the Deputy Registrar (Judicial) of this Court.
Disposed of in the above terms.