' IJAZ UL AHSAN, J.--- Through this constitutional petition, the petitioner, who is an Associate Professor of Pathology Allama Iqbal Medical College, Jinnah Hospital, Lahore challenges the appointment of respondent No.6 as Professor of Pathology in Allama Iqbal Medical College, Lahore.
2. Brief facts of the case are that Allama lqbal Medical College ("AIMC") advertised different posts in the newspaper including a post of Professor of Pathology. The basic qualification required for the post was MBBS or equivalent medical qualifications recognized/registered, by the Pakistan Medical and Dental Council ("PM&DC"). In addition, postgraduate qualification of PM&DC recognized level II B and level III qualifications in Pathology FCPS/M. Phil, or equivalent PM&DC level II B and level III qualifications in the respective subject was also required. Further, at least three years teaching experience as Associate Professor or nine years teaching experience as Assistant Professor along with required research publications was also pre-requisite.
3. The, petitioner, along with respondent No.6 applied for the said post. The petitioner and respondent No.6 were shortlisted. They were interviewed on 3-12-2013 by the Special Selection Board of AIMC. On conclusion of the process, respondent No.6 was offered the post of Professor of Pathology at AIMC, which she accepted. The petitioner is aggrieved of the appointment and challenges the same through this constitutional petition.
4. The learned counsel for the petitioner submits that respondent No.6 was not eligible for the post as she did not fulfill the required criteria. It is alleged that respondent No.6 does not have the requisite qualifications in the field of Pathology. In this regard, the petitioner wrote letters to respondents Nos.2 and 4 i.e. Secretary Health, Government of Punjab and Principal, AIMC informing them that respondent No.6 did not possess the requisite qualifications to be considered for the post of Professor of Pathology. However, the said information did not receive any positive response.
The petitioner also alleges that respondent No.6 has received a degree in Molecular Biology, which is neither an approved subject of PM&DC nor is it taught by any other recognized approved institute of PM&Dc. It is further alleged that respondent No.6 has exerted political influence to get the post of Professor of Pathology without being qualified for the same.
5. Report and parawise comments were procured from the respondents. Respondent No.3, which is a regulatory authority dealing with such matters, in its comments, has stated that respondent No.6 is validly registered with PM&DC and has been issued eligibility certificate for the post of Professor.
All her qualifications are also registered with PM&DC. PM&DC has also submitted a copy of the certificate recognizing the experience of respondent No.6.
6. In the report filed by the Government of Punjab, it has categorically been stated that in December, 2013, a post of Professor of Pathology was advertised and recommendation of Special Selection Board of AIMC, Jinnah Hospital, Lahore was received by the Health Department.
Respondent No.6 was recommended for appointment as Professor of Pathology on ad hoc basis being No.1 on the merit list having obtained 106/150 marks. The petitioner having lesser marks i.e. 101/150 was placed as reserved/waiting candidate. On receipt of the recommendation, the case was examined in light of Service Rules governing the post. It was found that respondent No.6 received her M.Phil. Microbiology. Degree in 2005 and Ph.D in the same subject in 2011 as per certificate issued by PM&DC. She possessed 8 years 5 months and 18 days experience to her credit and had also published the requisite research papers. Her qualifications having been found to be in accordance with rules, regulations and requirements, offer of appointment was made to her vide letter dated 13-6-2014.
7. The learned counsel for respondent No.6 has raised a preliminary objection regarding maintainability of this petition in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). The learned counsel for respondent No.6 has pointed out that the petitioner has challenged the eligibility of respondent No.6 to be appointed against the post of Professor of Pathology at Allama Iqbal Medical College. He submits that the petitioner as well as respondent No.6 are admittedly civil servants. In case the petitioner wishes to challenge the appointment of respondent No.6 on the basis of her ineligibility, the matter cannot be resolved by resorting to the constitutional jurisdiction of this Court in view of the bar contained in Article 212 of the Constitution. He further submits that the question of eligibility relates to terms and conditions of service and squarely falls within the exclusive jurisdiction of the Service Tribunal.
He has further submitted that the petitioner participated in the selection process, however, he did not succeed. He is, therefore, an interested person and cannot rely on issuance of writ of quo warranto to dislodge or remove respondent No.6 from the post to which she has been appointed after going through the due process. She is amply qualified for the post as has been confirmed by the concerned Universities as well as PM&DC which is the regulatory authority in this field. He has vehemently argued that respondent No.6 meets the qualification and eligibility criteria on the basis of which the Special Selection Board has recommended .Her for appointment.
8. Although this petition is not formally admitted to regular hearing, since both the parties are represented and the case has been heard at considerable length, therefore, with the consent of both the learned counsel this case is treated as an admitted case and is being decided as such.
9. I have heard the learned counsel for the parties and gone through the record with their assistance.
10. The main question requiring determination is whether the respondents No.6, who has been appointed as a Professor of Pathology in AIMC, is eligible to hold the said post on the basis of her qualification. The petitioner has repeatedly alleged in paragraphs 4 and 5 as well as the grounds of the petition that she is ineligible to hold the said post. Further, in his representation moved before Secretary Health, Government of Punjab on 10-1-2014, the same allegation was made stating that she did not possess the required qualification and was, therefore, not eligible to be considered for appointment as Professor of Pathology.
11. Before proceeding to consider the question raised relating to eligibility and whether or not such question can be examined in exercise of extraordinary constitutional jurisdiction of this Court, the conduct of the petitioner needs to be examined. In the opinion of this Court, the question whether or not the petitioner has come to this Court with clean hands is material from the point of view of invoking the constitutional jurisdiction of this Court which is equitable and discretionary in nature.
While initial arguments were being heard by this Court on 3-12-2014, the learned counsel for the petitioner made a categorical statement that the Degree of Master of Philosophy held by respondent No.6 was fake and bogus. This was a serious allegation and needed a serious probe.
Consequently, the learned Additional Advocate-General was directed to obtain a report from the University of Punjab regarding genuineness of the degree and also to ensure presence of Controller of Examination of the University of Punjab before this Court. The needful was done. When the matter came up for hearing on 12-1-2015, the Assistant Controller (Certificates), University of Punjab appeared before this Court along with all relevant record. He was directed to consult the record and confirm to this Court the status of the degree of respondent No.6. After consulting the record, he confirmed that the degree issued in favour of respondent No.6 was genuine and had been issued by the University on completion of all requirements for issuance of such degree. The said official was also directed by this Court to verify degrees of M.Phil and Ph.D. Issued in favour of respondent No.6. The said degrees were also verified and confirmed as having issued by the University of Punjab. It was further stated that although the degree states that it has been issued in the subject to Molecular Biology, a certificate issued by the Controller of Examination, University of Punjab, who is the competent authority for this purpose, also verifies that respondent No.6 had completed her M.Phil jointly from University of Nebraska Medical Centre, Omaha USA and the Centre of Excellence in Molecular Biology (CEMB), University of Punjab in the field of Microbiology/Molecular Biology. This Court also examined the original record produced by the Assistant Controller (Certificates), University of Punjab in order to satisfy itself that the aforenoted statements were duly supported by the record. After due satisfaction, the original record was returned to the representative of the University.
12. The above facts and circumstances indicate that the petitioner was willing to level reckless and baseless allegations against respondent No.6 in an attempt to cast a shadow on her eligibility to hold the post of Professor of Pathology, AIMC. Such conduct reflects lack of bona fides on the part of the petitioner besides indicating that he has not approached this Court with clean hands. These facts alone furnish sufficient basis for this Court to refuse exercise of jurisdiction in favour of the petitioner.
13. Notwithstanding what has been stated above, I consider it appropriate and in the interest of justice to examine other aspects of the case in order to satisfy myself regarding certain material facts regardless of the motives of the petitioner.
14. As far as the bar of Article 212 of the Constitution is concerned, the argument of the learned counsel for respondent No.6 has not impressed me. The case before this Court is an issue involving initial appointment. Hence, it falls outside the purview of Service Tribunals Act, 1973. I have carefully scanned through the case-law cited at the bar. I find that the judgments cited by the learned counsel have been rendered in a different context, on the basis of a different set of facts and circumstances and are therefore distinguishable. These do not help the case of respondent No.6 as far as the bar of Article 212 of the Constitution is concerned.
15. The petitioner seeks issuance of a writ of quo warranto against respondent No.6. Admittedly, the petitioner is an interested party and has not approached this Court pro-bono publico. He had competed with respondent No.6 and others for the post of Professor of Pathology but had not succeeded on account of having been awarded lesser marks by the Special Selection Board. In these circumstances, a writ of quo warranto cannot ordinarily be issued. Reliance in this regard is placed on Muhammad Yasin Saqib v. Chairman, Pakistan Telecommunication Corporation, Islamabad and 7 others (2003 PLC (C.S.) 1105) where it has been held that a writ of quo warranto is not maintainable if it has been filed by an interested party who was directly affected by the appointment that he challenges. In Muhammad Liaquat Munir Rao v. Shams-ud-Din and others (2004 PLC (C.S.) 1328), the Hon'ble Supreme Court of Pakistan deprecated the trend amongst civil servants to institute proceeding by way of seeking writ of quo warranto. It was held that such writs cannot be issued as a matter of course. The High Court would be entitled to look into the conduct, motive and lack of bona fides of the petitioner for the purpose of grant or refusal of relief in exercise of discretionary jurisdiction.
16. In the above context reference may also be made to Dr. Azim-ur-Rehman Khan Meo v.
Government of Sindh and another (2004 SCMR 1299), wherein before issuance of a writ, the bona fides of the petitioner and whether or not he had come with clean hands was held to be a material factor in granting or refusal of relief by this Court. Likewise, in 2003 PLC (C.S.) 1105 as well as in 2004 PLC (C.S.) 1328 (Supra), it was held that before issuing a writ of quo warranto, this Court would look into the conduct and bona fides of the petitioner.
17. The conduct and bona fide of the petitioner has already been discussed in the earlier part of this judgment which has been found to be reckless and motivated by a blind desire to dislodge respondent No.6 from her post.
18. It is an admitted fact that the petitioner was awarded lesser marks than respondent No.6 by the Special Selection Board. The Health Department has confirmed and verified the degrees, experience and educational testimonials of the petitioner. All relevant authorities and regulatory functionaries have confirmed in writing before this Court in their parawise comments that respondent No.6 possesses all requisite qualifications which make her eligible and entitle to hold the position of Professor of Pathology in AIMC. The Pakistan Medical and Dental Council, which is the regularity authority in the field, has issued a certificate to the effect that respondent No.6 is eligible for the post of Professor in the subject of Pathology in accordance with the regulations of the said Council for the appointment of professors. On the contrary, there is nothing on record nor has the petitioner placed any documentation before this Court that may show that respondent No.6 is not qualified to hold the post in question.
19. Perusal of the record indicates that respondent No.6 had submitted the following documents, the authenticity of which stands confirmed:--
(i) Recognition of experience certificate issued by PM&DC, which is the regulatory authority in the field and certificates issued by it are accepted by all departments. The certificate issued in favour of respondent No.6 inter-alia states, "You have 8 years 5 months and 18 days teaching experience as Assistant Professor, Associate Professor and Professor in the subject of Pathology and have 5 publications in PM&DC approved journals with full credit. You are eligible for the post of professor in the subject of Pathology according to the regulations of the council for the appointment of Lecturers/Senior Registrars, Assistant Professor, Associate Professors, Professors and Examiners."
(ii) A certificate issued by PM&DC regarding full medical registration of respondent No.6.
(iii) A degree issued by the University of the Punjab in M.B.B.S.
(iv) A degree for M.Phil in the subject of Molecular Biology issued by the University of Punjab.
(v) A Ph.D Degree in Molecular Biology issued by the University of Punjab.
(vi) A certificate issued by the Controller (Examination), University of Punjab certifying that respondent No.6 had completed her M.Phil jointly from University of Nebraska, Medical Center Omaha, NE USA and Centre of Excellence in Molecular Biology (CEMB), University of Punjab, Lahore in Micro Biology/ Molecular Biology.
(vii) A certificate and letter issued by the University of Nebraska, Medical Centre indicating that respondent No.6 had attended the Graduate Program of the said University in the subjects of Pathology and Microbiology.
20. As stated above, although the petitioner had alleged that some of the degrees of respondent No.6 were fake, on verification, the same were confirmed and re-verified by the concerned institutions. It is not the case of the petitioner nor has his learned counsel alleged in his - arguments before this Court that respondent No.3 had issued registration or recognition of experience in violation of its rules and "regulations.
21. It may further be noted that respondent No.6 was recommended for appointment as Professor of Pathology by a committee of professionals in the field. The committee awarded more marks to respondent No.6 compared to the petitioner, which resulted in her being recommended for the post.
22. The question that requires consideration at this stage is whether this Court can substitute its own opinion for that of the regulatory authorities and the selection committee. The answer has to be in the C negative unless mala fide, bias or error of judgment were floating on the surface of the record. None of the three factors has either been alleged in the petition or argued before this Court today. In this regard reference can usefully be made to Dr.Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960), in which, on the basis of facts quite similar to the present case, the Hon'ble Supreme Court of Pakistan held that in exercise of constitutional jurisdiction, the High Court was not expected to perform the functions of a selection authority in service matters so as to substitute its opinion for that of the competent authority.
23. In Muhammad Ashraf Sanghri v. Federation of Pakistan and others (2014 SCMR 157), the Hon'ble Supreme Court of Pakistan was pleased to hold that it was not possible for a Court of law to substitute its own opinion for that of an interview board in order to give a party relief. It was further held, "obviously, if any mala fide or bias or for that utter error of judgment was floating on the surface of the record, we would have certainly intervened as courts of law are more familiar with such improprieties rather than dilating into question of fitness of any candidate for a particular post which as observed above is a subjective matter and can best be assessed by the functionaries, who are entrusted with this responsibility." Reference in this context can also usefully be made to Federation of Pakistan through Secretary Establishment and others v. Ghulam Shabbir and others (2011 SCMR 1198) and Government of Punjab through Secretary (S&GAD), Lahore and another v. Zafar Maqbool Khan and others (2012 SCMR 686).
24. The report filed by the Government of Punjab, which has not been rebutted or contested by the petitioner shows that the Government received recommendations of the Special Selection Board at Allama Iqbal Medical College/Jinnah Hospital, Lahore for appointment of respondent No.6 as Professor of Pathology on ad hoc basis being. No.1 on merit having been awarded 106 out of 150 marks. Whereas the petitioner, who received 101 out 150 marks was placed as reserved/waiting candidate. On receipt of recommendations of Special Selection Board of Allama Iqbal Medical College, the case of respondent No.6 was examined in the light of service rules covering the post and it was found that she did her M. Phil. Microbiology in 2005 and Ph.D. In 2011 and as per PM&DC certificate, she possessed 8 years 5 months and 18 days experience to her credit (4 years 3 months and 6 days as Assistant Professor of Pathology and 4 years 2 months and 12 days as Associate Professor/Professor of Pathology). Therefore, respondent No.6 was rightly appointed to the said post as she was eligible and met all criteria which was advertised and her eligibility was also confirmed and verified by the regulator and other professional institutions.
25. Finally, she was recommended by the Special Selection Board constituted for the said purpose.
The Board comprised of eminent professionals in the field. I have found no reason to substitute the said recommendations with those of my own or interfere in these in any manner. The learned counsel for the petitioner did not press any other ground in support of his case.
26. I am, therefore, not convinced that the challenge to the appointment of respondent No.6 as a Professor of Pathology on the ground that she is not eligible or that she does not meet the requirements advertised by the respondents is a valid one. It is not supported by the record and no justification or basis exists for interference by this Court in exercise of its powers under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.
27. For reasons recorded above, I find this petition to be without merit. It is accordingly dismissed.