MUNIR A. SHEIKH, J.- In this Constitutional petition Dr. Bashir Ahmad petitioner who is at present holding the post of Principal, King Edward Medical College, Lahore has called in question the legality of order dated 26.9.1990 passed by the Chief Minister, Punjab appointing respondent No.2 as Principal of the said College with further prayer that the respondents be restrained from transferring the petitioner from his present appointment till he completes his tenure period in the said post.
2. The dispute between the petitioner and respondent No.2 relates to the appointment of Principal King Edward Medical College, Lahore which matter is governed by a policy decision of the Government of Punjab Health Department dated 5.4.1981 different clauses of which are relevant for determination of question raised in this Constitutional petition, therefore, the same is reproduced below for facility of ready reference:- APPOINTMENT OF PRINCLPALS OF MEDICAL COLLEGES IN THE PROVINCE.
" The question of prescribing conditions and method of selection to the posts of Principals/Dean of Medical Colleges in the Province has been engaging attention of Government for some the past.
After careful consideration, the following decisions have been taken:-
1. Principals of Male Medical Colleges in Punjab/Dean, Postgraduate Medical Institute, Lahore. a). Conditions and method of selection.
It will be a selection post. The senior most Professors will be considered by the Provincial Selection Board which shall submit its recommendations to the Government for final approval/orders. Those Professors who do not want to become Principal/Dean will have to forego this appointment and will be debarred from consideration of this post in future. They will be transferable to any of the six Male Medical Colleges preferably on the completion of their tenure. b) Tenure.
Tenure will be five years. If on the completion of tenure the Principal/Dean does not want to be transferred to other College as Principal, he can be posted as Professor in a College/Post-Graduate Medical Institute;
2. Principals of (i) Fatima Jinnah Medical College; (ii) College of Community Medicine, Lahore and
(iii) De' Montmorency College of Dentistry. Lahore.
(a) Conditions and Method of Selection.
As far Principals of Male Medical Colleges, except that they will become Professors in the same Institution as they cannot be transferred as Principal for want of another such institution.
(b) Tenure Tenure will be five years, after which they will become Professors.
2. It may be added that necessary amendment in the Rules of Business of the Provincial Government has been carried out vide SG & I Department Notification No.SO.Cab.III. 2-14/78 dated 27.1.1981.
3. It is requested that this decision may be brought to the notice of all concerned."
This policy decision was subsequently modified by Provincial Cabinet in the Meeting held on 21.9.1986 for the main reason that the previous policy gave a veto power to the officers to supersede and override the writ of the Government regarding posting, transfer and appointment of Civil Servants. The decision thus taken was as follows:- DECISION 1). Selection of Principal of Medical College/Dean POMI may continue to be recommended by the Principal Selection Board and the recommendation submitted to the Chief Minister/Governor for final orders.
2). The option given, under the policy circular dated 5th April, 1981, to those Professors who do not wish to be posted as Principal of a Medical College or Dean, PGMI, to forego this posting should be withdrawn. Section 9 of the Punjab Civil Servants Act and the Transfer Policy circulated by the SGA & I Department should apply, without any exception to all Civil Servants.
3) . The post of Principal should continue to remain a tenure post which can be extended or curtailed in suitable cases.
4) . The present policy regarding transfer and posting of Professors/Associate Professors and Assistant professors formulated in May 1979 should continue."
3. In the year 1982 post of Principal Quaid-e-Azam Medical College Bahawalpur fell vacant. The respondent No.2 was considered and selected by the Provincial Selection Board as Principal in accordance with the rules laid down in the policy and he was posted as Principal Quaid-e-Azam Medical College, Bahawalpur. He in exercise of his right of option as provided in sub-para (a) of Para 1 of the said Policy decided to forego this appointment and intimated the authorities accordingly in March, 1983. Consequently, the petitioner was approached by the Government and informed that he was likely to be considered for appointment to the post of Principal of Medical College and he should communicate his willingness. It was pointed out to him that in case he did not want to be a Principal he would have to forego this appointment and would be debarred from consideration for this post in future. In response to this, the petitioner gave his free consent to respondent No.1 for utilization of his services anywhere.
4. It appears that in the year 1985, the post of Principal of King Edward Medical College, Lahore became available. The petitioner alongwith other Senior Professors were considered for this post by the Selection Board and petitioner alongwith four Professors were cleared by the Selection Board for appointment to the post of Principal. The Health Minister recommended the petitioner for appointment as Principal Kind Edward Medical College, Lahore in the following terms:-
35. " K.E.M.C, is the oldest institution in the country and is badly in need of reconstruction and development which needs smooth administration. By & large the senior most Professors of the Province are the heads of various faculties. Prof. Bashir Ahmad is a pioneer in his field and had developed the finest department of Neuro Surgery at K.E.M.C. He is the senior most Professor in the approved list of Officers by the Punjab Provincial Selection Board.
36. In the light of my above observations, I am of the opinion that Prof. Bashir Ahmad is the ideal choice for posting as Principal, KEMC, Lahore.
Chief Minister may kindly approve."
Sd/(Syed Afzaal Ali Shah Health Minister.
The then Chief Minister, however, in exercise of his discretion in the matter approved the appointment of Dr. Iftikhar Ahmad as Principal King Edward Medical College, Lahore by order dated 8.11.1986 and consequently he was posted as Principal of the said College. Prior to that the respondent No.2 had made a representation to the Chief Minister and expressed his desire to withdraw option of foregoing appointment as Principal of Medical Colleges but this representation was turned down by the Chief Minister which was conveyed to the petitioner through letter dated 11.8.1986 (Annex: 'H'). Dr. Iftikhar Ahmad was transferred on 23.10.1989 and directed to report to the SGA & I Department Government of the Punjab for further orders and the present petitioner was posted with immediate effect as Principal of King Edward Medical College, Lahore w.e.f, the same date.
5. The respondent No.2, it appears approached the Service Tribunal. In the light of the change in the policy as afore-mentioned the Government conveyed to the respondent No.2 that bar against consideration of his case for appointment as Principal of Medical College was no more operative and according to the changed policy he could be considered for the said post but no commitment could be made that he would be appointed as Principal. On the basis of the stand taken by the Government the respondent No.2 did not press his appeal before the Service Tribunal and made a departmental representation to the Chief Minister complaining that his case was not considered while taking decision for appointment of the present petitioner as Principal King Edward Medical College, Lahore as according to the changed policy on account of previous option given by him he was not debarred from being considered and appointed as Principal. The then Chief Minister rejected his representation on 9.8.1990 observing that Dr. Bashir Ahmad the present petitioner was managing the affairs of the college so well. He however, observed that the respondent No.2 may be offered an equivalent post, as a consequence of which an offer was made to respondent No.2 for appointment as Dean. This offer was declined by respondent No.2 as it was not acceptable to him.
Thereafter the respondent No.2 it appears agitated the matter again by making another representation. The Care Taker Chief Minister accepted it and appointed respondent No.2 as Principal K.E.M.C Lahore till his retirement, on 30.6.1991 through impugned order dated 26.9.1990.
Regarding petitioner it was ordered that he may continue as Professor of Neuro Surgery King Edward Medical College who shall, however, be re-appointed as Principal after the retirement of respondent No.2. The order of the Chief Minister is reproduced below in extenso.
"I feel that since Dr. Shaukat Raza Khan did not suffer from any disability for being considered for posting as Principal of a Medical College at the the when the Government had decided to shift Prof. Dr. Iftikhar Ahmad as Principal of KEMC, he should have been given preference over Prof. Dr. Bashir Ahmad on the basis of his seniority and teaching experience. In all fairness he deserves to be compensated since he is retiring on 30th June, 1991 whereas Dr. Bashir Ahmad will be retiring on 1.1.1994 and has thus sufficient the to his credit to again serve as Principal of this prestigious Medical College, I, therefore, approve appointment of Dr. Shaukat Raza Khan, Professor of Paediatrics, as Principal of King Edward Medical College, Lahore in place of Dr. Bashir Ahmad who may continue as Prof, of Neuro Surgery, KEMC, Prof. Bashir Ahmad shall, however, be re-appointed as Principal, KEMC, subsequent to the retirement of Prof. Dr. Shaukat Raza Khan on 30.6.1991."
It is this order which has been challenged by the petitioner in this consitutional petition.
6. Before dealing with the merits of the case we are called upon to dispose of a preliminary objection raised by Mr. S.M. Zafar, Advocate, learned counsel for respondent No.2 regarding the maintainability of this petition in this Court. He maintained that the petitioner is in fact aggrieved of his transfer from the post of Principal to the post of Professor Neuro Surgery and eligibility of respondent No.2 to be considered for appointment to the post of Principal for which the remedy lies before the Service Tribunal established under Article 212 of the Constitution, as such, the jurisdiction of this Court is barred to entertain the writ petition. Reliance has been placed bn judgments reported as local Ahmad Khurram Versus Government of Pakistan and others (P.L.D. 1980 S.C. 153) and Aish Muhammad and 68 others Versus Pakistan and 75 others (1985 S.C.M.R. 774).
7. The argument is certainly ingenious but not tenable on close scrutiny. The direction of the competent authority for transfer of petitioner from the post of Principal and his appointment as Professor Neuro-Surgery has no independent existence as the same is merely the effect of the order of appointment of respondent No.2 as Principal in his place. The petitioner cannot obtain any relief against that part of the order unless the order for the appointment of respondent No.2 as Principal is removed. This being so, the question of jurisdiction is to be decided with reference to the impugned order regarding appointment of respondent No.2 as Principal.
8. It is evident from the policy decision as originally stood and modified subsequently that the post of Principal of Medical College is a Selection post and appointment of a person as Principal of such college involves process of selection from among the senior most Professors which means that before appointment of a person as Principal of the College a decision is to be taken about his fitness to hold that post or to be appointed to the said post. As a cosequence of this process if a person is appointed to the post of Principal it is obvious that in the estimation of the competent authority he was found to be fit to be appointed to the said post. The question arises whether to challenge the validity of the impugned order for appointment of respondent No.2 as Principal the petitioner has a remedy of appeal before the Service Tribunal under the Punjab Service Tribunal Act, 1974. The question of jurisdiction of this Court to entertain this writ petition involves around the determination of this crucial question and after examining the relevant law we hold the view that no appeal lies before the Service Tribunal as provided in proviso (b) to Section 4 of the Punjab Service Tribunals Act, 1974 which reads as follows:- "Appeals of Tribunals. (1)........................
(a) ..................................................
(b) No appeal shall lie to a Tribunal against an order or decision of a departmental authority determining fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
9. Since in determining the validity of order for appointment of respondent No as Principal, the legality of the process of determining the question of his fitness to hold or to be appointed to that post shall have necessarily to be examined, therefore, under the said proviso (b) to Section 4 of the Punjab Service Tribunal Act, 1974 the Service Tribunal, has no jurisdiction as no appeal lies thereto on that question.
10. It may be pointed out that we are conscious of the fact that this Court to under Article 199 of the Constitution cannot substitute its decision for the decision of the competent authority regarding fitness of a person to be appointed to a post or to hold a post where the said. Question has been determined in accordance with law and based on relevant consideration.
11. It is distinctly clear from the order passed by the competent authority for appointment of respondent No.2 as Principal that the same was passed on compassionate ground with a view to compensate respondent No.2. The competent authority was also influenced by the fact that respondent No.2 was retiring w.e.f. 30.6.1991 as such it is manifest that the intention was to accommodate him because it has been observed that the present petitioner could avail of opportunity thereafter as he was to retire in 1994. We are afraid this could be held a valid consideration for determining the fitness of a person to hold a post which is administrative in nature. The law, however, requires that when such power vests in the authority to determine such question the same is required to be decided objectively, dispassionately in public interest with special reference to the functions which a selectee is required to perform. Tested on this touch stone the impugned order is not sustainable under the law.
12. Coming to the question of eligibility of respondent No.2 it may be pointed out that in view of the impugned order having been otherwise found to be not in accordance with law this question pales into insignificance. However, since arguments were addressed on this question we consider it necessary to express our views with regard thereto. In our opinion the at of respondent No.2 of foregoing his previous appointment as Principal Quaid-e-Azam Medical College, Bahawalpur does not raise a question of eligibility That being so, the effect of the same simply was that respondent No.2 cannot claim as a matter of right his appointment as Principal. This was also the view of the Government when the request of respondent No.2 praying that he be allowed to withdraw his said option was turned down which decision was conveyed to him through letter dated 11.8.1986 (Annex: 'H'), even when the modification of the policy had already been made. However, there was no bar operative against the Government to consider in its discretion the case of respondent No.2 for appointment as Principal. Considering from this point of view after once the petitioner had already been appointed as Principal King Edward Medical College, Lahore, the respondent No.2 could not claim that he should have been appointed as Principal as a matter of right instead of the petitioner. The Chief Minister passed the impugned order on the assumption that the respondent No.2 being senior most Professor with teaching experience should have been appointed when the vacancy occurred alter the transfer of Dr. Iftikhar Ahmad as Principal of the College as if respondent No.2 had a vested right to be so appointed.
13. As has been pointed out earlier the representation of respondent No.2 made to the competent authority i.e. The then Chief Minister was rejected through order dated 9.8.1990 with the observation that the present petitioner was managing the affairs of the college so well. This order can safely be construed as an expression of opinion of the competent authority that the present petitioner was comparatively found more suitable for appointment as Principal. The respondent No.2 if felt aggrieved. Of the said order should have challenged the same and instead of doing that it appears he still made another representation on which the impugned order has been passed. The Care Taker Chief Minister was not conscious of the said order dated 9.8.1990 having already been passed by the then Chief Minister. After the rejection of his first representation the second representation under the law was not maintainable and the matter otherwise also could not have been re-opened. Nevertheless the Care Taker Chief Minister without hearing the petitioner passed the impugned order against the cardinal principles of natural justice.
14. Learned counsel for respondent No.2 raised an objection that the petitioner in the petition has not raised the ; above mentioned grounds for challenging the impugned order. The above facts on the basis of which we proceeded to determine the legality of the order under challenge are matters of record which being in possession and control of the Government. The petitioner could hardly have excess to the same so as to raise the contentions in the writ petition in accordance therewith. We, therefore, find no substance in this contention either as the learned counsel for respondent No.2 was heard at length in this behalf, therefore, no prejudice was caused to respondent No.2.
I6. For the foregoing reasons, this writ petition is accepted. The order dated 26.9.1990 for appointment of respondent No.2 as Principal King Edward Medical College, Lahore in place of the petitioner and petitioner's consequential transfer to the post of Professor Neuro Surgery is declared to have been passed without lawful authority and of no legal effect. There shall be no order as to costs.