JAWAD HASSAN, J. --- Through the instant Infra-Court Appeal, filed under Section 3 of the Law Reforms Ordinance, 1972, the appellant has called in question the legality of impugned order dated 23.10.2014 passed in writ petition No, 28268/2014 by the learned Single Judge, whereby the writ petition filed by the appellant was dismissed.
2. Learned counsel for the appellant inter alia submitted that the impugned order is against' law and facts; that the learned Single Judge has not appreciated the fact that the academic and experience qualifications were to be scrutinized prior to the issuance of Interview Call and not subsequent thereto; that there is no provision in any statute or rule for formation of such a Committee as was constituted in the case of the appellant, as such its decision has no value in the eye of law; that the learned Single Judge has ignored the fact that the requisite experience as Assistant Professor in Paediatrics has already been recognized by the competent authority i,e, Pakistan Medical and Dental Council (PM & DC) by issuing certificate in this regard; that the certificate issued by the College of Physician and Surgeons recognizing his experience qua the advertised post has also not been taken, into account; that regarding Paediatrics (Accident and Emergency), there is to recognized specialization, there is no degree or course of study leading to this degree, there is no post in the Service Rules rather, only recognized specialization is Paediatrics Medicine; that the appellant was posted against the designation (Accident and Emergency) only as an in-house arrangement by the Children Hospital; that the appellant has neither been recorded any opportunity of personal hearing before the Secretary where he filed his representation nor before the Committee constituted for the purpose, as such there is a clear violation of natural justice: that the appellant had challenged the process of initial recruitment to the post of Professor of Paediatrics and, not any terms and conditions attached to the post of Assistant Professor, as such the writ petition was maintainable before the learned Single Judge.
3. On the other hand, learned Law Officers as well as learned counsel appeared on behalf of the respondents vehemently controverted the arguments, advanced by the learned counsel for the appellant and submitted that the impugned order has been passed strictly in accordance with the law and facts, therefore, does not warrant any interference by this Division Bench. They also prayed for dismissal of this appeal.
4. We have heard the arguments of both the sides and perused the record minutely..
5. First of all we would like to resolve the issue of maintainability of the writ petition. The learned Single Judge in the impugned order has observed in the last paragraph that "the issue raised in this petition boils down to the ascertainment of terms & conditions of service of the petitioner which is in the exclusive domain of the respective department and thereafter in case of any further grievance the respective Tribunals therefore, no case for interference by this Court is made out."
From the perusal of the entire record it reveals that the whole case revolves around the initial appointment on the post of Professor Paediatrics in BS.20. There is nothing, on regard to the service of the appellant which presently he holds. Although there is no denial that the appellant is a civil servant yet the matters regarding initial recruitment against any post do not fall within the domain of terms and conditions of service of a civil servant. Therefore, learned Single Judge erred while holding that this Court cannot interfere in the instant matter whereas XIX the petition was competent before this Court.
6. Now we advert to the main issue regarding lack of experience of the appellant qua the post advertised i,e, Professor of Paediatrics. The appellant, in support of his contentions, has placed reliance on certain documents and placed on record copies of following documents: Serial Number Document Dated/Annexure
1. Advertisement 30.03.2014/Annexure- IV
2. Experience certificate 31.03.2011/Annexure-I
3. Certificate of PCSP 07.01.2002/Annexure- V
4. Certificate of PM & DC 07.06.2011/Annexure- VI
5. Representation 13.10.2014/Annexure-IX
6. Recognition of experience issued by the PM & DC20.02.2015
7. List of doctors for experience certificates issued by ChildrenNil
8. Copy of Report and Parawise Comments by the respondents.
No, 1, 4 to 7 (PM & DC) in W.P.
No, 7148/2015Nil
9. Copy of Minutes of the Executive Committee Meeting of PM & DC14.02.2015
7. On the complaint of the two doctors namely Dr. Iftikhar Ejaz and Dr. Muhammad Haroon Hamid/the respondents No,3 and 4 a Committee was constituted by the respondents as to ascertain whether the experience relied upon by the appellant is the requisite experience for the post advertised in the newspaper. The said committee opined as following: "As evident from the record Dr. Muhammad Nasir Rana was initially appointed as Assistant Prof. of Paed Accident and Emergency in 2007 and his services were regularized against the same post in 2009. His experience against the post of Assistant Prof. of Paed Accident and Emergency cannot be counted towards appointment against the post of Prof. of Paediatric Medicine as his appointment was made as Assistant Prof. of Paediatric Accident and Emergency.
8. In pursuance of the said findings of the Committee the PPSC rescheduled the interview for 30 & 31.10.2014. The appellant has laid much stress on the letter/recognition of experience dated 20.02.2015 issued by the PMDC in response to the application filed by the appellant dated 12.04.2014.
In the said letter the PMDC has recognized that "You have 9 years, 11 months & 6 days teaching experience as Assistant Professor and Associate Professor in the subject of Paediatrics and have five research publications in PM&DC approved journals with full credits. You are eligible for the post of Professor in the subject of Paediatrics according to the regulations of the Council for the appointment of Lecturers/senior Registrar's, Assistant Professors, Associate Processors, Professors and Examiners." Furthermore, in W.P. No, 7148/2015 report and Parawise comments submitted by the PMDC this issue has also been discussed wherein the Executive Committee in its meeting held on 14.02.2015 has specifically held as follows: "The Executive Committee considered the above matter and decided that teaching experience of Dr. Muhammad Nasir Rana (21848-P) working in Accident and Emergency Department at the Children's Hospital &Institute of Child Health, Lahore shall be counted as Professor of Paediatrics."
9. In the said comments it was also mentioned that in pursuance of the order dAed 14.04.2015 passed by Bahawalpur Bench of this Court, the case was considered by the Executive Committee of the Council in its meeting held on 24.08.2015 at Karachi and decided that the experience issued to the appellant (21848-P) is as per PM&DC Regulations. The record further reveals that the Minutes of the Executive Committee Meeting held on 14.02.2015 at Islamabad clearly depicts that the Executive Committee considered the above-referred letter and decided that the 'experience of Assistant Professor Paediatric working in Accident and Emergency at the Children's Hospital & Institute of Child Health, Lahore should be counted as Assistant Professor of Paediatrics.
Furthermore, the learned Law Officer has also produced copy of an amendment notification dated 16.0.2001 which shows that the Emergency Pediatrics (at serial No,9) was also included in the Health Subspecialties of Assistant Professor BS-18. The record clearly shows that the requirement for the post advertised is not particularly having specialty in the 'Paeaiatric Medicine' rather only 'Paediatric' is basic qualification. Even otherwise, the 'Emergency Paediatric' in which the appellant has experience, is included in the Health Subspecialty of Assistant Professor BS-18, therefore, it can safely be held that the appellant has the requisite experience/qualification in the relevant field and fit for the said post. As such, the distinction qua the experience of the appellant, made by the respondents cannot be said to be made in its true perspective.
10. However, on the other hand, the Minutes of the Meeting held on 09.10.2014 in the office of Additional Secretary (Technical) Health Department, attached with the file, shows that the eligibility of the appellant for the post of Professor of Paediatric Medicine was discussed and it found that his experience against the post of Assistant Professor of Paediatric (Accident and Emergency) cannot be counted towards appointment against the Post of Professor of Paediatric Medicine as his appointment was made as Assistant Professor of Paediatric (Accident and Emergency). The said Minutes show that neither the appellant was ever heard personally to defend his case nor any documents produced by the appellant in this case have ever been discussed and considered. We are of the opinion that if the appellant was afforded an opportunity of fair trial or documents produced by him mentioned in the above table were considered by the Committee constituted by the respondents for the purpose, the opinion of the same might have been different qua the present one.
11.From the above discussion, it .can safely be held that the learned Single Judge had not taken into consideration the above-mentioned facts and dismissed the petition mainly keeping in view the report of the respondents Committee which is not sustainable in the eye of, law. We, therefore, hold that the appellant has the requisite experience/qualification as per the advertisement dated 30.3.2014 for the required post i,e, Professor of Paediatrics (Case No, 220-RC/2014). Consequently, the impugned order dated 23.10.2014 passed by the learned Single Judge is set aside and the instant appeal is hereby allowed. As per order dated 29.10.2014 passed in C.M. No, 1/2014 appointment to one post of Professor of Pediatric Medicine was ordered to remain subject to the final outcome of this appeal. As the appeal has been decided in favour of the appellant, therefore, the respondents are directed to appoint the appellant on the post of Professor of Paediatric published in the advertisement within a period of two weeks after the receipt of this order.