MUHAMMAD SAJID MEHMOOD SETHI, J. Through instant petition, petitioner has challenged notification dated 20.12.2021, issued by Government of the Punjab, Specialized Healthcare & Medical Education Department, whereby respondent No.5 was appointed as Administrator of the Punjab Human Organs Transplantation Authority ("PHOT A").
2. Brief facts of the case are that in response to advertisement, petitioner as well as respondents No.5 & 6 and others applied for the post in question. The Monitoring Authority interviewed the candidates and consequently , petitioner was placed at Sr.No.1 in the Merit List and respondents No.5 & 6 at Serial Nos.2 & 3, respectively .
Thereafter , a summary was submitted before the Chief Minister , who approved the name of respondent No.5 and ultimately impugned Notification dated 20.12.2021 was issued. Hence, instant petition.
3. Learned counsel for petitioner submits that impugned Notification is illegal, void ab initio and has been issued in violation of law laid down by Hon'ble superior Courts. He adds that petitioner has been ignored by the Chief Minister without any lawful justification and reasons. He contends that discretion vested with the Chief Minister has been exercised in an arbitrary manner , which is against the norms of justice. He submits that petitioner being at top of the Merit List was required to be treated in accordance with law in view of Article 4 of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constituion"), thus, impugned appointment of respondent No.5 is unsustainable in the eye of law. He has placed reliance upon Dr. Iqrar Ahmad Khan v. Government of the Punjab through Secretary Agricultural Department, Lahore and others [2020 PLC (C.S.) 1087] and Dr. Iqrar Ahmad Khan v . Dr. Muhammad Ashraf and others ( 2021 SCMR 1509 ).
4. Learned Additional Advocate General and Assistant Advocate General, assisted by learned counsel for respondent No.5 submit that petitioner lacked requisite 10-years' management experience as he had only three years' experience as Principal of SIMS and he has only teaching experience, thus, petitioner was not eligible to be considered for appointment against the post in question. They contend that respondent No.5 had management / administrative experience of 21-years, project handling experience of 17-years, financial handling experience of 18- years and teaching experience of 36-years, thus, he being eligible and better qualified was rightly appointed and impugned Notification does not suffer from any legal defect. They submit that even otherwise, this Court has no jurisdiction to intervene in the domain of the executive and matter in hand is a technical and policy matter . They argue that this Court is not expected to perform functions of a selection authority in service matters so as to substitute its opinion for that of competent authority . They have relied upon Dr. Mir Alam Jan v. Dr. Muhammad Shahzad and others (2008 SCMR 960), Muhammad Ashraf Sangri v. Federation of Pakistan and others (2014 SCMR 157), Arshad Ali Tabassum v. The Registrar , Lahore High Court, Lahore (2015 SCMR 112), Messrs Power Construction Corporation of China Ltd. through Authorised Representative v. Pakistan Water and Power Development Authority through Chairman WAPDA and 2 others [PLD 2017 Supreme Court 83], Shahid Pervaiz v. Ejaz Ahmad and others (2017 SCMR 206), Shahid Aziz v. Chairman, Punjab Labour Appellate Tribunal, Multan and 4 others (2021 PLC 118), Chief Executive Officer, Multan Electric Power Company Ltd, Khanewal Road, Multan v. Muhammad Ilyas and others (2021 SCMR 775), Khushal Khan Khattak University through Vice-Chancellor and others v. Jabran Ali Khan and others (2021 SCMR 977) and Danish Usman v. Government of Khyber Pakhtunkhwa, through Chief Secretary and 6 others [2022 PLC (C.S.) 418]
5. Arguments heard. Available record perused.
6. Perusal of record reveals that respondent-PHOT A floated advertisement inviting applications for recruitment against the post of Administrator , requiring following qualification and experience: "MBBS with Level-III qualification as defined by PMDC/PMC (FCPS or any other equivalent local or foreign qualification)
At least 10 years of experience at manag ement level in Medical Institution / Hospital. Experience in leading health related projects and of heading autonomous organizations would be preferred."
A Monitoring Authority comprising of the following was established for appointment against the post in question: i. Prof. Yasmin Rashid Minister for Health, Punjab Chairperson ii. Secretary to the Government, SHC&ME Department Secretary/Member iii. Secretary to the Government, Home Department or his representative not below the rank of Additional SecretaryMember iv. President, Transplantation Society of Pakistan or his nominee Member v. Executive Director , Pakistan Medical Research Council or his nomineeMember vi. President, Ophthalmologic Society of Pakistan or his nominee Member vii. President, Pakistan Medical Association of Pakistan or his nomineeMember viii. President, Pakistan Society of Gastroenterology or his nominee Member ix. Dr. Faisal Saud Dar, Dean, Pakistan Kidney & Liver Institute & Research Centre, Lahore. (Liver Transplant Surgeon)Member x. Chairperson of the Punjab Health Care Commission or a nominee of the Health Care CommissionMember xi. Prof. Ghias-un-Nabi Tayyab Professor Gastroenterology Ameer-ud-Din Medical College/Lahore General Hospital, LahoreMember The Monitoring Authority called the candidates for interview encompassing followin g aspects as evident from letter dated 19.1 1.2021 addressed to petitioner , relevant portion whereof is reproduced hereunder:-
1. You are hereby informed to appear before Monitoring Authority of PHOT A for interview to be held on 30.11.2021, (Tuesday) at: 11:00 AM at the committee room of the office of the Secretary , Specialized Healthcare & Medical Education Department, 1 1-A Lawrence Road, Mozzang Chungi, Lahore.
2. It is hereby intimated that you will have to submit an Essay of 200 words regarding "My Vision of PHOT A and my priorities as Director General / Administrator PHOT A". This essay must be sent on the email address (photaheadoffice@gmail.com) by 1600 hrs on 25th of November 2021.
3. You are also requested to submit list of your National and International Publications in the indexed Journals by 25th of November 2021 on the aforementioned email address.
4. You are also required to give a presentation on Power Point (Maximum of 3 slides) before the Monitoring Authority , on the day of interview regarding your vision of PHOT A.
5. You are further required to bring following documents, in original and two sets of photocopies with you at the time of interview . a) All educational documents (Matric, Intermediate, Bachelor Degree, Post Graduate Degrees/Diplomas/Certificates) b) Result Card or detailed marks certificates of all your post graduate examinations. c) All Experience Certificates. d) Domicile Certificate of Province of Punjab issued on or before closing date. e) Graduate, Post Graduate, Thesis / Project report, if any . f) Research Papers / Publications. g) Certificate of Registration with relevant Regulatory Institution. h) Original and V alid National Identity Card (Computerized).
The minutes of meeting of Monitoring Authority held on 30.11.2021 reveal that following assessment criteria was followed for evaluation of potential candidates for the post in question:-
1. Academic and Experience Marks 10 Marks a) Academic Marks 06 Marks Percentage of Marks Marks Awarded i) 80% & above 06 Marks ii) 61-79 % 05 Marks iii) 50-60 % 04 Marks b) Experience after being eligible for the post 04 Marks 01 Whole Year 01 Mark
2. Research / Publications 10 Marks i) More than 15 Publications in impact factor / International Medical Journal08 Marks ii) 10 to 15 Publications in impact factor / International Medical Journal05 Marks iii) Relevant Publications a) 02 Relevant Publications 02 Marks b) 01 Relevant Publication 01 Mark
3. Essay Marks 10 Marks
4. Presentation Marks 10 Marks
5. Interview Marks 10 Marks GRANT T OTAL MARKS=50 The Monitoring Committee interviewed 13 candidates and after interview , petition er was placed at Sr.No.1 in the Merit List and respondents No.5 & 6 at Serial Nos.2 & 3, respectively . Thereafter , a summary was submitted before the Chief Minister , relevant text whereof is reproduced hereunder:-
4. The total number of applications received were 21 out of which 15 candidates, being eligible, were shortlisted for the interview . As per section 8(3) of the Act, the Monitoring Authority , comprising 11 members, interviewed the candidates on 30.1 1.2021.
5. The Monitoring Authority developed a robust evaluation criteria, comprising 50 marks whereby 20 marks were assigned to academic qualifications, experience and publications in the international / impact factor journals.
Additionally every candidate was asked to submit a written paper of two hundred words describing his vision for PHOT A. Furthermore, every candidate was also asked to make a powerpoint presentation before the Monitoring Authority during the interview explaining his strengths to lead the Organization in a modern way in the current challenging times. Lastly , only 10 marks were reserved for interviews.
6. All members of the Monitoring Authority evaluated each of the 13 candidates who appeared in the interviews, individually , and a merit list was prepared on the basis of such evaluation. Two candidates namely Dr. Irshad Hussain and Dr. Mumtaz Ahmed did not appear in the interviews. A copy of evaluat ion criteria comprising 50 marks is attached at Annex-E.
7. On the basis of detailed evaluation carried out by the Monitoring Authority , as per procedure mentioned at para 05 above, the following three candidates have been shortlisted for appointment as Administrator PHOT A as per order of merit. i) Prof. Dr . Mehmood Ayaz (Annexure- F) ii) Prof. Dr . Asad Aslam (Annex-G) iii) Prof. Dr . Farid Ahmed Khan(Annex-H)
8. Section 8(3) of the Act 2010 requires that the Monitoring Authority shall appoint an Administrator , preferably from the medical profession, in consultation with the Government.
9. In view of the above, Chief Minister is requested to kindly approve the nomination of one of the recommended candidates as mentioned at para 07 above, in order of merit, so that the same may be appointed as Administrator of the Punjab Human Organs Transplantation Authority by the Monitoring Authority under section 8(3) of the Transplantation of Human Organs and Tissues Act 2010."
7. Undeniably , under Section 8(3) of the Transplantation of Human Organs and Tissues Act, 2010 ("the Act of 2010"), the Monitoring Authority is bestowed with the function to appoint an Administrator with consultation with the Government (who is Chief Minister as per the Punjab Government Rules of Business, 2011), therefore, the recommendations of the Monitoring Authority are to be given due weight and the Government / Chief Minister , if differs with the same, has to provide cogent reasons. The only reason that respondent No.5 had better management experience than petitioner cannot be made basis to supersede a cand idate securing top position after going through a detailed process of interview conducted by the Monitoring Authority .
Under the provisions of the Act of 2010, absolute power of appointment of Administrator PHOT A has not been given to the Government i.e. Chief Minister to appoint any person of his choice but the Monitoring Authority consisting of eminent professionals was constituted who after detailed scrutiny of the credentials and lengthy interview of each candidate, recommended three names as per order of merit. The appointment of Administrator PHOT A has been structured to preclude the arbitrary and capricious exercise of discretion at the cost of appointments on merit. The superior Courts have time and again held that the appointments have to be made on the principle of merit unless cogent reasons for not appointing the person who is highest in merit are given, which would be subject to judicial review . The Chief Minister should have to give cogent reasons if he was persuaded to make a dif ferent opinion than that of Monitoring Authority .
8. This Court in the case of Dr. Iqrar Ahmad Khan supra, has already observed that the competent authority has prerogative to differ with the opinion of Selection Committee but said decision must be based on cogent reasons.
The relevant part of the observations is reproduced as under:- "15. Needless to observe here that the appointing authority / competent authority has power to differ with the opinion / recommendation of the Search Committee but the decision must be based on rules of fairness and cogent reasons as absolute power is not vested with the competent authority to appoint any person of its choice. Search Committee consisted upon professionals who after detailed scrutiny of credentials and interview of each candidate awarded highest marks to petitioner in all the fields and no charge over the capacity and honesty of Search Committee has been leveled by the competent authority .
18. Unwillingness of the competent authority to appoint the candidate highest in merit is not only in violation of afore-noted judgments but also appears to be based on mala fide of the respondents No. 2 to 5 which is evident from their reply wherein they have submitted that the petitioner retained the post of Vice Chancellor because of the political influence of his family . The fact that the respondents have expressly stated this in their reply shows that they are not willing to appoint the petitioner , due to political affiliation of family or family member(s) of petitioner , disregarding the directions of this Court as well as that of Hon'ble Supreme Court of Pakistan.
The Hon'ble Apex Court in the case of Chief Justice of Pakistan Iftikhar Muha mmad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 Supreme Court 6), has detailed three kinds of mala fide i.e. personal malice and bias, mala fide in fact and mala fide in law, which are present in the instant case, thus, impugned actions are unsustainable."
9. The aforesaid decision of this Court was reversed by learned Division Bench of this Court, however , was upheld by the Hon'ble Apex Court in case reported as Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf and others (2021 SCMR 1509 ). The operative part of the observations of Hon'ble Apex Court is reproduced hereunder for ready reference and guidance:- "20. The record further reveals that the Secretary , Agriculture Department, Government of Punjab, was part of the Search Committee. The said Secretary is the Principal Accounting Officer of the Government of Punjab. He was a member of the Search Committee that placed the Appellant at Serial No. 1 of the merit list. It is worth mentioning that the same Secretary has given the Appellant 10 out of 10 marks in the category of "Administrative and Financial Management". Further , the Appellant was given 45 marks in the Interview . As against this, the Respondent was given only 31 marks in the Interview . The same Secretary was part of the interview as well. Therefore, when the representative of the Government who had first-hand knowledge of all material and relevant facts also gave highest marks to the Appellant and low marks to the Respondent, we do not see why the Appellant was not appointed and that too without cogent and convincing reasons.
21. Keeping in view the fact that other persons have been appointed as Vice Chancellors, and while considering their appointments, the pendency of audit paras has not been considered as a material and determining factor reflecting on their administrative ability or financial controls, we do not see why the same standard was not applied in the case of the Appellant and that too without due application of mind and examination of the documents or material attributable to alleged lax financial controls of the Appellant. Further , he was never confronted with the same and was virtually condemned unheard and behind his back. The reasons provided by the Chief Minster show an exercise of pick and choose with a pre-determined mind and a conscious and deliberate effort appears to have been made to contrive reasons to appoint a person lower on merit and deprive a person better qualified, higher on merit and obviously more suitable for the post in question. This act of the Chief Minister amounts to an illegal, arbitrary , capricious and unbridled exercise of discretion by the Chief Minister and cannot be countenanced especially so when the Search Commi ttee, comprising of credible academicians, independent members and representatives of the Government itself with impeccable credentials, placed the Appellant on top of the merit list.
Not only was he at No.1 of the merit list in the written exam, but, he was also given the highest marks in the interview . The same interview in which the Respondent did not perform as well.
22. From the facts and circumstances discernable from the record, it is evident that the Appellant was denied an. appointment unlawfully and arbitrarily and reasons were contrived to furnish a basis for a predetermined decision which fail to stand the test for judicial scrutiny . It was precisely for this reason that in our order dated 28.04.2018, while retaining the discretion of the government to appoint a person lower on merit we had circumscribed and structured the exercise of discretion by making it obligatory on the authority to record cogent reasons with a rider that such reasons will be justiciable. As discussed in the preceding paragraphs, the impugned order not only lacks bona fide and transparency but also assign reasons which are neither cogent nor show any consistency in executive decision making.
The afore-referred decisions laid down a rule of universal application which was meant to prevent the unstructured, arbitrary , biased and unregulated exercise of discretion solely dependent upon the sweet will of the Chief Minister , with the object of safeguarding and upholding the principle of merit, therefore, these are binding on all executive and judicial functionaries within the contemplation of Article 189 of the Constitution.
10. The case law cited by learned Law Officers and learned counsel for responde nt No.5 is mainly with regard to their argument that this Court cannot take upon itself the function of the appointing authority in order to judge the suitability of a candidate, and shortlisted candidate has no vested right to be appointed. Needless to say that reasons provided by the Chief Minister for not appointing the petitioner , who was placed highest on the merit list, are justiciable especially when in the instant case, admittedly no reasons were given by the Chief Minister and this Court can examine them on the touchstone of validity , fairness and compliance with the law, rules and departmental practice. Discretion of the Chief Minister in this regard was not unfettered, unbridled and unregulated and impugned action of the Chief Minster amounts to an illegal, arbitrary , capricious and unbridled exercise of discretion. And when discretion is exercise d by an authority in an arbitrary manner and against the law laid down by superior Courts, the jurisdiction of this Court to interfere under Article 199 of the Constitution of Pakistan, 1973 is not barred. Reference can be made to The State v. Zia-ur-Rahman and others (PLD 1973 Supreme Court 49), Federation of Pakistan and another v. Malik Ghulam Mustafa Khar (PLD 1989 Supreme Court 26) and Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others (PLD 2010 Supreme Court 61).
11. As a sequel to above discussion, instant petition is allowed and impugned Notification dated 20.12.2021 is declared illegal, unlawful and without lawful authority . Consequently , the matter is referred to the Chief Minister , Punjab, with the direction to appoint the candidate highest on merit and in case, there are justifiable reasons for not appointing the said candidate, proceed to appoint any other candidate in the order of priority as per the recommendations already made, preferab ly within a period of fifteen days from the date of receipt of certified copy of this order .