' The petitioner through this Constitutional petition has prayed for issuance of writ of quo warranto calling upon respondents Nos.3 and 4 to show under what authority of law they claim to hold the public office of Assistant Professors of Urology.
2. The relevant facts are that respondent No,1 placed a requisition with respondent No,2 for recruitment of four Assistant Professors of Urology. The respondent No, 2 accordingly invited the applications through publication of notice in daily 'Nation' dated 7-10-1988. The petitioner, respondents Nos.3 and 4 and others applied for these posts. The respondent No,2 after scrutinizing their applications sent for only eight candidates. They were interviewed and the respondent No,2 recommended the following names:-- ' Dr. Naeem Akhtar respondent No,3.
' Dr. Riaz Ahmad Tasnim.
' Dr. Muhammad Akmal Sahu respondent No,4. Muhammad Nawaz Chaughtai.
3. The interviews were held by respondent No,2 on 27-3-1989 and recommendations were made on 12-4-1989. One. Dr. Moeen Ahmad Ghori on 15-1-1989 sent a written complaint that respondent No,3 is not eligible and he is seeking appointment on the basis of fake certificate of experience. The respondent No,2 for the reasons best known to him did not take into consideration. However, when its recommendations came for conisderation before respondent No,1 who after going through the contents of the complaint proceeded to direct Ghulam Hassain Siyal, Assistant, Section Admn. I to hold an enquiry in the matter. The Enquiry Officer after full verifications held that the certificate of experience furnished by respondent No,3 is a fake and bogus , document. The result was that Dr. Riaz Ahmad Tasnim, respondent No,4 and Muhammad Nawaz Chaughtai were appointed as Assistant Professors vide letter dated 24-4-1989 but the appointment of respondent No,3 was withheld. However, the appointment letter of respondent No,3 was also issued on 11-7-1989. The petitioner has now challenged the appointment of respondents Nos.3 and 4 through this Constitutional petition. The same was admitted to hearing and notices were issued to the respondents who have entered appearance and contested the petition: It is argued on behalf of the petitioner that the certificate of experience dated 8-10-1988 appended as Annexure according to which respondent No,3 was working as Additional Resident Medical Officer in the Urology Department of Nishtar Medical College from 1-1-1984 to 30-6-1984, is fake and bogus. It is explained that in 1984 Mr. Muzaahir Hussain Hashmi was Medical Superintendent of Nishtar Medical College but no appointment letter was issued by him has been produced at the time of service it was Dr. Khurshid Ahmad who was Medical Superintendent of the said Hospital while the certificate has been issued by respondent No,5 who has no jurisdiction, authority or connection. It is added that even the certificate was issued on a plain paper and not on the letter head of the hospital. It is added that when respondent No,3 was exposed he took up the plea that he was working on honorary basis and not regular. It is submitted that this contention is falsified by the certificate and other record. The next submission is that respondent No,5 has tried to shift the responsibility to respondent No,6 as according to him, he issued certificate Annexure 'B' on the basis of certificate issued by respondent No,6. It is maintained that respondent No,6 is man of no scruples and in this behalf learned counsel has referred to the case of Dr. Muhammad Hanif Arif v. Secretary to Government of Punjab, Health Department, Lahore (1986 PLC (CS) 451). This respondent has appended the certificate of experience issued to respondent No,3 with his written statement. The same is without date and that respondent No,3 was whole time employed. The arguments are concluded on this point with the submission that the respondents although belong to one of the most respectable professions yet they behaved like ordinary criminals. They not only forged and fabricated documents but cheated the Government through pay master and public in general. The argument in respect of respondent No,4 is that he was covered by second part of the qualification.
The same was to come into play only if none of the candidates was available with the qualifications contained in first part of the advertisement. It is submitted that the admitted position is that the candidates were available with preliminary qualification, therefore, the man with secondary qualifications could not be considered. The learned counsel has concluded his arguments with the submission that when this fallacy was pointed out to respondent No,2 it accepted its responsibility and notified that it is prepared to review its recommendations in respect of respondent No,4.
4. On the other hand learned counsel for respondent No,3 has argued that the petitioner has no locus poenitentiae to file the petition. In this behalf he has relied on the judgment of this Court reported as Abdul Aziz v. Muhammad Ali and others (PLD 1967 Lah. 762). It is submitted that the so-called enquiry was conducted by Clerk, therefore, does not merit any consideration. In this behalf it is added that in any case the enquiry was quashed by the Government while ,it was ordered that further enquiry in the matter should be conducted by the enquiry team of Chief Minister. The next submission is that this is a case of disputed facts and therefore, this Court cannot undertake the adjudication especially when an enquiry ordered by the Government is yet to be finalised. It is added that the certificate of experience was duly verified by PMDC through the certificates issued by it, therefore, certificates of respondents Nos.5 and 6 are of no legal consequence. The next submission in this behalf is that certificates may be defective or lacunive but admittedly the same were issued by respondents Nos.5 and 6 who never denied the same either before the Departmental authorities or Public Service Commission or in written statement in this Court. The certificate was issued by respondent No,5 as M.S. Because Dr. Khurshid Ahmad, the then M.S. Was not available. It is submitted that his client had unparallel qualifications. Since there were very limited course of additional Medical Officers available, therefore, he worked on honorary basis to gain experience. It is maintained that it is for this reason neither any appointment letter is there nor his name appears on any record like attendance register etc. It is alleged that the Professors have created monopolies. The result is that they are not allowing posting of FRCS at Lahore. On the other hand they get the M.S. Who were their pupils and had worked with them, just for two years or so and bestowed the degree of M.S. It is added that in this way the fate of the plea have been left in the hands of two Professors. It is added that in other countries the M.S. Degree is granted after one has done FRSC after doing M.B.,B.S. And gave 3 years' experience but in our counrty unfortunately this is not followed. The next submission is that the relief in the Constitutional jurisdiction is discretionary and the petitioner is not entitled to relief in view of the circumstances explained. In this behalf learned counsel has referred to Standard Printing Press v. Sindh E.S.S.I. 1988 SCMR 91, Lt.-Col. Shah Dad v. Border Area Allotment Committee etc. 1986 SCMR 88, Abdul Aziz and others v. Noor Mai 1985 CLC 2546 and Azadar Ussain Zaidi v. PIA Corporation PLD 1987 Karachi 14.
' Mr. Masud Riaz, Advocate, who also appeared for the said respondent added that the appointments are to be made in view of section 4 of Punjab Civil Servants Act, in accordance with the rules while rule 18 of the appointment rules deals with initial appointment. It is provided that Government has to determine experience or equivalence of experience. This is their statutory obligation and cannot therefore, be interfered. It is submitted that at the most the Government can be given direction in this behalf. He summed up the arguments that the certificates of experience are valid and especially certificate issued by P.M.D.C. Was binding on the Public Service Commission. He submitted that the date of experience in accordance with rule 18(2) is the last date of application.
4-A, Mr. Aurangza ib Mirza, Advocate for respondents Nos.5 and 6 submitted that the certificates were issued by his clients. They owned it and same is the position in this Court, therefore, the question of certificates of experience being bogus etc. Does not arise.
5. Rana Muhammad Sarwar, Advocate, appearing for respondent No,4 argued that there was no complaint as far as his client is concerned. The recommendations were accepted as legal. The Public Service Commission recommended only four persons therefore, there was no choice with the Government and there being no other person eligible from 1st category therefore, his client was rightly appointed. It is added that the recommendations are legal and binding. He raised a.
Preliminary objection to the effect that the petition is barred by laches as it was filed after fourteen months of the appointment of his client. The discretion cannot be exercised in favour of the petitioner and in any case, the writ is not, to be issued as a matter of course. The learned counsel in this behalf has referred to A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah. 227, Asseff Ahmad Ali v. M. Khan Junejo PLD 1986 Lah. 310, Ch. Muhammad Anwar v. Muhammad Rashid PLD 1987 SC (AJ&K) 41.
' The next legal objection is that respondent No,2 cannot withdraw its recommendation. The admission made by it in the written statement in respect of his client is mala fide. It is estopped by its conduct and lost right to repent. In this behalf he referred to Pakistan through Ministry of Finance v. Muhammad Himayatullah Farukhi PLD 1969 SC 407, Lt.-Col. G. L. Battacharya v. The State etc. PLD 1964 SC 503 and Uzma Ishaque v. Azad J&K Nomination Board for Professional Colleges through its Chairman PLD 1986 Azad J&K 112.
' He also reiterated the argument of the learned counsel for respondent No,3 and added that roving enquiry is not possible in writ petition and delay is relevant and material. In this behalf he referred to the cases of Syed Muzaffar Ali Burney and another v. Hafiz Muhammad Ahmad and 2 others PLD 1989 SC 162, Haji Khizar Hayat v. Sarfraz Khan and others PLD 1968 Lah. 381 and Khan Abdur Rehman Khan v. Saadullah Khan PLD 1956 Pesh.
58.
6. Mr. Muhammad Iqbal Khichi, learned AA.-G appearing for respondents Nos.1 and 2 argued that the learned counsel for respondent No,3 had wrong notions about the degree of M.S. The same is granted as a result of examination both in written and oral arranged by the Punjab University. This is in addition to the practical experience of 3 years. On merits of this case he submitted that qualification and experience are one of the basic requirements and the date will be the closing date of application which in this case was 27th October, 1988. He maintained that the Public Service Commission has acted bona fide as on the one hand it tried to have contact with the complainant Dr. Moeen Ahmad Ghori but could not find anything. On the other hand, on telephone it was confirmed from respondents Nos. 5 and 6 whether they have issued the certificates in dispute or not. He submitted that the respondent No,2 while formulating the recommendations inadvertently treated respondent No,4 in category I while according to the policy of the Public Service Commission the list of two categories were to be prepared separately and then Zonal allocation made. He submitted after enquiry by Ghulam Hussain Sial, Assistant of the Health Department, the enquiry was conducted by Mrs. Farkhanda, concerned Deputy Secretary and she also found the certificates bogus. He maintained that the petition is barred by laches. In this behalf he referred to the case of A.M. Khan Leghari v. Government of Pakistan PLD 1967 Lah.
227.
7. The learned counsel for the petitioner while replying to the arguments of the respondents submitted that the question of laches is not relevant in the present case. In this behalf he submitted that the petitioner came to know of the misdeeds of the respondents Nos.3 and 4 and lapse of respondents Nos.1 and 2 after going through the news item in daily `Mashriq'. He never knew about the appointment of respondent No,3 which was made separately and immediately thereafter he proceeded on 3 months ex-Pakistan Leave, therefore, there is no delay and in the alternative it is maintained that the delay is not fatal. The learned counsel in this behalf has referred to Mr. Fazlul Quader Chowdhry etc. v. Muhamad Abdul Haque PLD 1963.SC 486, Athar Rehman v. Muhammad Latif Tahir etc. PLD 1981 Lah. 48, Baij Nath v. State of U.P. AIR 1965 Allahabad 151 and has also referred to Bassu on Constitution. He further added that neither it is a case of estoppel nor laches. In this behalf he referred to the case of Muhammad Ismail Qureshi through his Legal Heirs v. Gulab Din and others 1988 SCMR 1001, Farzand All v. Province a West Pakistan through the Secretary, Department of Agricultural, Government of W.P. PLD 1970 SC 98. It is submitted that refusal to issue writ petition in the circumstances will amount to illegal appointment of respondents Nos.3 and 4. The learned counsel in this behalf has referred to law of Halsbury, Law of England Volume 15 paras. 1477, 1478 and 1482. It is submitted that the petitioner and others have qualified written as well as interview but since the respondents Nos. 3 and 4 and other two candidates were higher in merit, therefore, they were appointed.
8. The learned counsel while replying to the argument as to locus poenitentiae raised on behalf of the respondent submitted that it has no application when the order is void. In this behalf he has referred to Iftikhar Aziz Ahmad v. Government of Pakistan 1991 SCMR 489. It is added that reference to the principle in this writ petition is irrelevant because that may operate against respondents Nos.1 and 2 but is not hurdle in any manner in issuing the writ petition. The learned counsel summing up the arguments submitted that even if the certificates issued by respondents Nos.5 and 6 are accepted, the same were of no legal consequence because ultimately experience is not counted. It is besides the fact that this is an afterthought as there is no mention in the certificate. The learned counsel submitted that in accordance with policy decision 13-G, the concerned authority, is PMDC. There are no instructions issued by the PMDC in this behalf. He referred to explanatory No,5 at page 14 and submitted that it is only a question of teaching experience which can be taken into consideration. To formulate for the same is two years' experience and ultimately teaching experience will be counted as one year's experience. The learned counsel vehemently maintained that there is no such relaxation in case of practical experience. The learned counsel submitted that in view of the legal and factual position this writ petition be allowed and the appointments of respondents Nos.3 and 4 be declared illegal and instead the petitioner be directed to be appointed.
9. Rana Muhammad Sarwar, Advocate, on behalf of respondent No,4 while replying to the prayer clause submitted that the petitioner and other 3 were rejected, therefore, they cannot be considered for appointment instead of respondents Nos.3 and 4 especially when the petitioner did not challenge the appointment of respondents Nos.3 and 4.
10. Ch. Mushtaq Masud, Advocate while summing up the arguments on behalf of respondent No,3 argued that Dr. Khurshid Ahmad when contacted verified the issuance of certificate of experience by respondent No,5, therefore, whether it was issued by respondent No,5 authorisedly or illegally, has become immaterial. In this behalf he has placed on record photo copy of the duplicate certificate dated 8-10-1988.
11. I have given my anxious consideration to the arguments of the learned counsel for the 'parties, gone through the record, relevant law, rules and precedents. The admitted position on record is that the prescribed qualifications for the said post of Assistant Professor, Urology were as under:-- "MBBS or equivalent Medical Qualifications recognised by the PMDC and following post-graduate qualifications in the subject-speciality:
(1) FCPS (Urology) or
(2) MS (Urology) or equivalent qualifications recognised by the PMDC. Or
(3) FCPS (Surgery) MS (Surgery) or equivalent qualifications recognised by the PMDC with Minor Diploma in Urology recognised by the PMDC.
(b) Three years' teaching or practical experience in the subject in a recognised institution before or after post-graduation.
Ist Preference: Teaching Experience 2nd Preference: Practical experience after post-graduation. 3rd Preference: Practical experience before post-graduation.
(ii) If no such candidate is available with the aforesaid qualifications: THEN: Equivalent MBBS or equivalent medical qualifications recognised by PMDC with FSPC (Surgery) or MS (Surgery) or quivalent qualifications recognised by PMDC with three years' practical experience in Urology in a recognised institution after post-graduation.
Ist Preference: Teaching experience.
2nd Preference: Practical experience after post-graduation."
' The other 'relevant fact is that 8 candidates including the petitioner, respondents Nos.3 and 4 qualified for the post but since there were only 4 posts, therefore, respondent No,2 recommended the names of respondents Nos.3 and 4, Riaz Ahmad Tasneem and Muhammad Nawaz Chaughtai.
Zone-wise allocation was as under :--
(1) All Punjab: 1
(2) Zone 1: consisting of Lahore etc.
(3) Zone 2: Bahawalpur etc. 1
12. Now the question arises whether the respondent No,3 possessed requisite experience of 3 years.
The period in dispute is from 1-1-1984 to 30-6-1984 as given in Certificate Annexure 'B'. The certificate clearly seems to be fake, bogus and fabricated. There is merit in the plea of the learned counsel for the petitioner that respondent "No3 was not M.S. Of Nishtar Hospital, Multan at the relevant time, therefore, this fact alone is sufficient to discard the certificate. The respondent No,1 immediately after receipt of the recommendation of respondent No,2 alongwith complaint of Moeen Ghori proceeded to depute Mr. Ghulam Hussain Sial, to hold an enquiry into the allegations.
The said Assistant concluded that the certificate is fake and in support of his conclusion he relied on the following factors:- "(1) No post of Additional Resident Medical Officer, Urology, had been sanctioned for Nishtar Hospital, Multan, during the period from 1-1-1984 to 30-6-1984.
(2) There was no order of appointment of Dr. Naeem Akhtar in Nishtar Hospital, Multan, during the said period.
(3) No pay had been drawn by Dr. Naeem Akhtar from the Treasury at Multan for the relevant period.
(4) The Attendance Register of Medical Officers maintained in Nishatar Hospital, Multan, during 1984, contained no entry about Dr. Naeem Akhtar as Addl. RMO while other Medical Officers had been marking their attendance in the said register.
(5) There was no record whatsoever in Nishtar Hospital, Multan, regarding any appointment given to or office held by Dr.Naeem Akhtar in any capacity; except a file containing copies of the questioned Experience Certificate.
(6) Also Experience Certificate in favour of Dr. Naeem Akhtar as Addl. RMO in the Urology Department of Nishtar Hospital, Multan, for the period from 1-1-1984 to 30-6-1984, was purported to have been given by Dr. M. Hayat Zafar on 8/9th October 1988, while on the said date, the office of Medical Superintendent, Nishtar Hospital, Multan was held by Dr. Khurshid Ahmad. Similarly, during the period of Experience Certificate i,e, from 1-1-1984 to 30-6-1984, the office of Medical Superintendent, Nishtar Hospital, Multan, was held by Dr. Mazahir Ali Hashmi who when contacted, informed that he did not remember having given any such appointment.
(7) The application submitted by Dr. Naeem Akhtar to the Punjab Public Service Commission contained an entry that he applied for the post of Medical Officer in Health Department in the year 1983 but he did not avail of the offer of appointment dated 4-2-1984 given to him because he had proceeded abroad for post-graduate studies. This constituted an admission that he was not in Pakistan in Feb.
1984. Hence, the Experience Certificate of serving as Additional RMO Urology, in Nishtar Hospital, Multan from 1-1-1984 to 30-6-1984 was fictitious/bogus to his own admission."
' It transpired during the arguments that subsequenty the Department had deputed Mrs. Farkhanda, concerned Deputy Secretary to look into the matter.
' She also reported that the certificate is bogus. The respondent No,3 in order to meet the arguments on behalf of the learned counsel for the petitioner and these two enquiry reports, argued that in fact his client was doing this assignment honorary, therefore, there was no question of any record being maintained. The learned counsel for the petitioner rightly pointed out that the certificate Annexure B' is silent that the appointment was honorary. This is very material. Even if this certificate is presumed genuine then it will not help respondent No,3 to make his total experience 3 years because according to the policy decision 13-G the honorary experience can only be counted as far teaching is concerned.
13. Now if this certificate is excluded from consideration, then the respondent No,3 did not possess the qualifications required for the post of Assistant Professor, therefore, his selection was illegal.
14. Now coming to respondent No,4 the matter is all the more simple; the respondent No,2 has candidly conceded his lapse. The admitted position is that the said respondent was covered by category 2 and he was to be considered only if none was available in the category I. It was argued on his behalf that since only the names of four candidates were recommended to respondent No,1 for appointment, therefore, it is clear that there was no other candidate except the respondent No,4. The argument is misconceived because 8 candidates had cleared the examination held by respondent No,2. The respondent No2 did not prepare the list of successful candidates category- wise and zone-wise. This created the problem as far as respondent No,4 is concerned. The relevant Para of the report of respondent No2 reads as under:-- ' It appears that at the time of formulation of recommendations, category-wise lists were not prepared by the Commission as required tinder the rules through an oversight with the result that the name of Dr. 'Muhammad Akmal Sahu was inadvertently included in the merit list of those who were recommended for appointment as Assistant Professor Urology in the Health Department. The Commission is, however, prepared to review and even withdraw the recommendation already made in favour of Dr. Muhammad Akmal Sahu after decision of the Court on this petition:.
' In this view of the matter, the appointment of respondent No is also illegal.
15. Now coming to the respondents Nos.5 and 6 the respondent No,6 was examined by both the Enquiry Officer& Mr. Ghulam Hussain Sial, in his report recorded as under.:- "Dr. M. Hanif Arif appeared before the undersigned on the specified time-and date and at the very outset, he declared:- "The Department has no right to suspect our character or to challenge the experience certificates issued by us (Professor/Associate Professor etc.). I feel offended that I have been called. I would not have come but I came as the career of the candidate (Dr. Naeem Akhtar) was involved."
' While Mr. Sial has written in his report which reads as under:-- "He advised me that this issue should be closed and hushed up. He declared that his certificate could not be questioned by anybody including the President of Pakistan."
This Officer is mainly responsible for this fraud. The respondent No,5 has clearly taken up the position that he issued the certificate Annexure '13' on the basis of certificate issued by respondent No, 6 and he has appended copy thereof alongwith his written statement. Not only this he also used objectionable language in respect of the Head of the State. This comes within the mischief of misconduct, therefore, disciplinary proceedings should be initiated against him. While the disciplinary proceedings against respondent No, 5 shall be initiated under Pension Rules.
16. Now coming back to the main case. The merit list prepared by respondent No,2 is illegal and faulty in respect of respondents Nos.3 and 4, therefore, the same is set aside to their extent., The other two persons namely Riaz Ahmad Tasneem and Muhammad Nawaz Chughtai recommended by the respondent No,2 and appointed by respondent No,1 are not affected by this judgment as in any case they were eligible for appointment while the respondent No,3 had not qualified.
17. The result is that respondent No,2 is directed to formulate a fresh merit list in respect of the petitioner, respondent No,4 and remaining 4 candidates, who qualified the examination and make fresh recommendations strictly in accordance with law and rules in respect of remaining two vacancies of Assistant Professors, Urology. The writ petition is allowed in these terms with no order as to costs.