' SHAH KHAWAR, J. --- Through this petition the petitioner has called in question the order dated 14.01.2013 passed by the Government of the Punjab, Health Department whereby respondent No, 5 was appointed as Assistant Professor of Cardiology (BS-18) on adhoc basis at D.G. Khan Medical College, D.G. Khan for a period of one year with immediate effect or till the availability of regular incumbent/selectee of the Punjab Public Service Commission whichever is earlier.
2. Brief facts of the case are that respondent No, 2 invited applications for appointment in different specialties against the posts of Professor, Associate Professor and Assistant Professor through publication in "The Daily Express Multan" dated 11.10.2012. The petitioner alongwith respondent No, 5 applied for appointment against the post of Assistant Professor (BS-18). The names of the petitioner and respondent No, 5 appeared in the short listed candidates. The claim of the petitioner is that he fulfilled the criteria mentioned in the advertisement whereas respondent No, 5 did not meet the criteria of appointment but vide order dated 14.1.2013 respondent No, 5 was appointed as Assistant Professor (BS-18) on adhoc basis. It is also the case of the petitioner that the petitioner was not intimated the reasons for his non-consideration. Notices were issued to respondent No, 2 as well as respondent No,
5. Respondent No, 2 has fully justified the appointment of respondent No, 5 whereas the appointment of respondent No, 5 has been highly objected by the present petitioner.
It ,,has been emphasized on behalf of the petitioner that the requirement of such appointment was three years practical experience in the respective specialty, which respondent No, 5 did not hold from a recognized institution after his post-graduation. Further submitted that respondent No, 5 was working in Nishtar Hospital, Multan in Ward No, 1 (Cardiology Ward) and the same is not recognized for the purpose of post-graduate practical experience as the said ward is not affiliated with the College of Physicians & Surgeons of Pakistan. It is further contended that the petitioner being post-graduate in medicines is working in Ch. Zahoor Elahi, Institute of Cardiology, Multan since 2005. The said Institute of Cardiology is affiliated since 02.07.2008. Finally, it was contended on behalf of the petitioner that he has total experience of six years after post-graduation, which respondent No, 5 is lacking. Further contended that respondent No, 5 was proceeded against departmentally for his un-authorized leaves.
3. Arguments heard. Record perused.
4. According to the learned counsel appearing on behalf of respondents No, 1 and 2, the appointment of respondent No, 5 is in accordance with the criteria as he fulfilled all the pre- requisites mentioned in the advertisement. According to the result issued by respondents No, 1 and 2, both the petitioner and respondent No, 5 were evaluated, wherefrom respondent No, 5 secured 53 marks out of 100 marks whereas the petitioner secured 46 marks out of 100 marks. It has been contended that having secured more marks than the petitioner, respondent No, 5 was selected by the Selection Board duly constituted. The controversy in hand is pertaining to the qualification and eligibility for the post of Assistant Professor, which is in the sole domain of respondents No, 1 and 2.
Both the parties have presented divergent claims, which need evidence and in jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the same is not allowed. The High Court under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 can only interfere where action of the public functionaries is based on male fide, violation of law or rule and discrimination. Since the appointment in question has been made by the duly constituted Selection Committee by respondents No, 1 and 2 and their judgment could not be called in question by way of filing Constitutional petition. There are divergent claims based on facts, which are outside the domain of this Court. Reliance has been placed by the' learned counsel for respondent No, 5 on Rana Muhammad Samar v. Government of Punjab through Services, General Administration and Information Department and another (1990 SCM R 999), Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others (1992 SCM R 365), Muhammad Anis and others v. Abdul Haseeb and others (PLD 1994 Supreme Court 539), Miss Rukhsana Ijaz v. Secretary, Education, Punjab and others (1997 SCM R 167), Ayyaz Anjum v. Government of Punjab, Housing and Physical Planning Department through Secretary and others (1997 SCM R 169), Syed Mazhar Hussain Bukhari v. Secretary Government of Punjab, Local Government and Rural Development Department, Lahore and others (1998 SCM R 1948) and Khalid Mahmood Wattoo v. Government of Punjab and others (1998 SCM R 2280). The judgments relied upon place a bar under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 as well as Section 4 of the Punjab Service Tribunal Act, 1974 to interfere in such cases by this Court. Eveh otherwise the job of respondent No, 5 is on adhoc basis and could be withdrawn by respondents No, 1 and 2 after the same has been filled up by the Punjab Public Service Commission.
5. One of the important aspects of the matter, which is of great concern, is that the said selection of respondent No, 5 was made on adhoc basis for one year or till the filling up of the vacancy by the Public Service Commission. A considerable time has been passed but respondents No, 1 and 2 have not bothered to ask the Punjab Public Service Commission to initiate selection of the post of Assistant Professor on regular basis. Such lapse on the part of respondents No, 1 and 2 could not be ignored. It is the bounden duty of respondents No, 1 and 2 to get the post filled up through Punjab Public Service Commission at the earliest but the duty conferred upon them by the Constitution and law is not adhered to. This aspect of the matter also needs indulgence by this Court.
Respondents No, 1 and 2 are directed to get the post filled up by an open competition through the Punjab Public Service Commission within a period of three months so that such-like controversy may be avoided.
6. For what has been discussed above, the instant writ petition is not maintainable under Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973 being devoid of merits but at the same time respondents No, 1 to 4 are directed to get the post filled up through the Punjab Public Service Commission within the stipulated period mentioned. With these observations, the instant writ petition stands disposed of.