' As the orders of the respondents dated 18-7-1994 are impugned in W.P. No, 8510/94 and W.P. No, 8423/94, both the writ petitions are proposed to be disposed of by a single judgment.
2. Both the writ petitions under Article 129 of the Constitution of the Islamic Republic of Pakistan, 1973 seek to declare Notification dated 18-7-1994, transferring Professor Dr. Tariq Iqbal Bhutta, the petitioner in W.P. No, 8510 of 1994 from King Edward Medical College, Lahore to Punjab Medical College, Faisalabad and posting him as Principal of the said College and transferring petitioner in W.P. No, 8423 of 1994, Dr. Saadat Ali Zaidi from Punjab Medical College, Faisalabad to Rawalpindi Medical College, Rawalpindi, to be ultra vires of the Government Policy, mala fide, without lawful jurisdiction and without lawful authority and, as such, of no legil effect. Further relief was claimed by way of declaration that the Government had deliberately failed to follow the imperative procedure laying down guidelines for selection against the post of the Principal without, which it had no authority to appoint petitioner in W.P. No, 8510 of 1994 to act as Professor of Paediatrics and, therefore, expose him to subsequent embarrassment in case of a regular appointee, being other than the petitioner.
3. Writ Petition No, 4663 of 1994 was filed earlier by Professor Dr. Saadat Ali Zaidi whereby the impugned order dated 18-4-1994 whereunder Dr. Wali Muhammad Saghar, Professor of Surgery of P.M.C., Faisalabad was appointed to hold additional charge of the Prinicpal, P.M.C., Faisalabad on retirement of Professor Dr. Zafar Ahmad Chaudhry, the then incumbent on 19-4-1994 afternoon. The main grievance of the petitioner was that on the retirement of Professor Dr. Zafar Ahmad Chaudhry, the Principal of P.M.C., Faisalabad he was the senior-most Professor in the College and that the Government was well-aware about the date of superannuation of the incumbent but 'failed to take steps to fill in the post of the Principal of the said college on regular basis under the rules and as he was the senior-most Professor of the College, he could not be ignored whereas the entrustment of additional charge was being made to a Professor who was junior to him and impugned act of respondents Nos. 1 and 2 had indirectly resulted into indirect demotion of the petitioner who was earlier receiving Rs,200 p.m. As additional pay as he was acting as Vice-Principal of the College. He had finally prayed for a direction to respondents Nos. 1 and 2 to fill up the post of Principal, P.M.C., Faisalabad on regular basis and pending such appointment respondents Nos. 1 and 2 be directed to assign the additional charge of the post of Principal, P.M.C., Faisalabad to the petitioner. That writ petition was held to have become infructuous on 11-5-1994 on the basis of statement made by the learned Additional Advocate-General, in Court, that Professor Dr. Wali Muhammad Saghar, respondent No, 3 therein had since been relieved of the additional charge of Acting Principal and instead another person had been asked to look after the affairs of the College till the appointment of a permanent incumbent. The Government failed to appoint a Principal on regular basis and the petitioner moved an application (Crl. Org. 351-W-94) requesting for the initiation of contempt proceedings against Secretary Health, Government of the Punjab, Lahore, as according to the petitioner the respondents had failed to comply with the directions of this Court in the said writ petition that the vacancy of the Principal, P.M.C., Faisalabad shall be filled in by making a permanent appointment within a period of one month from the date of order without fail. The Court was pleased to issue notice to the Secretary, Health Department on 13-6-1994 and directed him to appear personally in Court on 19-6-1994.
4. The Government on 30-4-1994 issued orders that during the interregnum Dr. Bashir Hussain Kahloon, M.S. Allied Hospital, Faisalabad (in Grade-19) shall hold the additional charge of the Principal of the College. Professor Dr. Bashir Hussain Kahloon belonged to the non-teaching cadre in the Health Department and an objection was raised regarding desirability of a non-teaching doctor to hold the additional charge. It was further contended that his appointment was made without consultation of the Services, General Administration and Information Department.
5. It was at this stage that Professor Dr. Tariq Iqbal Bhutta was transferred from Lahore and appointed as Principal, P.M.C., Faisalabad. The petitioner in his writ petition also attributed mala fides to a Minister from Faisalabad and the Minister of Health who, according to the petitioner, had a motive to deprive the petitioner from his hard earned right to be appointed as Principal of the P.M.C., Faisalabad according to rules and at least to officiate till regular appointment.
6. After the orders posting Professor Dr. Bashir Hussain Kahloon to hold the additional charge of Principal of P.M.C., Faisalabad were objected to Professor Dr. Mrs. Altaf Bashir, junior to the petitioner, was ordered to hold the additional charge and officiate as Principal P.M.C., Faisalabad. Yet another application for contempt of Court (132-W-94) was filed.
7. It is an admitted fact that the appointment of Principals of Medical Colleges in the Punjab was regulated by a policy adopted by Government of Punjab and circulated vide Memo. No, SO(Admn- I)14-22/80, dated 7-4-1981. The relevant conditions and manner of selection for appointment of Principal of Male Medical Colleges in Punjab as mentioned therein are as follows:-- "1. Principal of Male Medical Colleges in Punjab/Dean, Post Graduate 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 become Principal/Dean will have to forego this appointment and will be debarred from consideration for 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 Colleges as Principal, he can be posted as Professor in a College/Post Graduate Medical Institute."
' Earlier to his transfer and posting as Principal, P.M.C., Faisalabad, Professor Dr. Tariq Iqbal Bhutta had been transferred from Multan to K.E.M.C., Lahore in accordance with the policy of the Government for the posting of Professors etc. In the Teaching Institutions as revised by the Committee and approved by the Governor/MLA on 1-4-1979. The said policy continues till today without any modification. The policy decisions taken therein and duly approved by the M.L.A. Are:-- "(1) The existing policy i,e, senior-most Professor should have the choice to , come over to Lahore, if he so prefers, should continue.
(2) The initial posting of the Assistant Professors will take place according to the stations at which the vacancy is available.
(3) When an Assistant Professor is to be promoted as Associate Professor, he should be transferred to another station, other than Lahore.
(4) When an Associate Professor is to be promoted as Professor he must be transferred to another station, other than Lahore.
(5) The senior-most Assistant Professor/Associate Professor may be transferred to Lahore, if he so prefers."
8. After receiving the transfer and posting orders the petitioner Professor Dr. Tariq Iqbal Bhutta submitted a representation, through proper channel, against his transfer without first obtaining refusal of the persons senior to the petitioner as listed above. Prior to the submission of the representation, the petitioner also filed option on 16-4-1994 with the Secretary Health, Government of the Punjab, Health Department wherein it was mentioned that he was transferred from Nishtar Medical College, Multan after serving a period of 14 years and had recently been transferred to K.E.M.C., Lahore and that there were other Professors who were senior to him, any of them may kindly be sent as Principal, P.M.C., Faisalabad. Both the petitioners were not considered by the Government before issuing transfer/posting orders. The representation was in the following words:- - "It is, therefore, most respectfully prayed that the order for transfer of the petitioner to serve as Principal, Punjab Medical College, Faisalabad without refusal in writing, of his senior colleagues, thereby surrendering their seniority in his favour may kindly be recalled and the Department of Health may kindly be directed to withdraw the Orders.
' In the alternative it is prayed that the Health Department may be instructed to obtain refusal, in writing, from all the 23 Professors senior to the petitioner intimating to them that they, by said refusal, would loose their seniority in favour of the petitioner.
' It is also prayed that your honour may very graciously be pleased to direct that the order of transfer be held in abeyance in the meanwhile."
9. The representation of the petitioner in W.P. No, 8510 of 1994 was in clear enunciation of the rules and procedure, laid down for the posting of a Principal and he had clearly saved himself from condition No, A of Memo. No,SO (Admn. 1)14-22/80, dated 7-4-1981. His apprehension was that on the representation/writ of any of the seniors he would be reverted/transferred from P.M.C., Faisalabad and thus would lose his well-earned posting at Lahore as Head of the Department of Paediatrics K.E.M.C., Lahore.. The learned Additional Advocate-General was not in a position to say that all the senior Professors to the petitioner had, in writing, refused the posting as Principal, P.M.C., Faisalabad and in view of the above the apprehension of the petitioner appears to be well- founded.
10. The learned Additional Advocate-General failed to controvert the narration of facts as above.
The issuance of memo. Of 7-4-1981 and policy decision taken on 1-4-1979 were also not controverted. No subsequent modification/alteration in the above decision was brought on the file.
11. The learned Additional Advocate-General, however, challenged the maintainability of the writ petition and submitted that this Court lacked jurisdiction to entertain the writ petition in view of ouster as contained in Article 212(2) of the Constitution of the Islamic Republic of Pakistan, 1973 and cited various judgments of the superior Courts in support of his contention. On facts the learned Additional Advocate-General submitted that the letter of entrustment to Professor Dr. Wali Muhammad Saghar with the additional charge of the post of Principal, P.M.C., Faisalabad was withdrawn and Dr. Bashir Hussain Kahloon, Medical Superintendent Allied Hospital was directed to discharge the duties of the Principal under orders dated 30-4-1994. Objection was raised that Dr. Bashir Hussain Kahloon was not from the teaching cadre and, as such, letter dated 30-4-1994 was also withdrawn and Professor Dr. Mrs. Altaf Bashir was appointed to hold additional charge in absolute compliance of the rules of business. Tod question as to the seniority inter se between Professor Dr. Saadat Ali Zaidi, Professor Dr. Wali Muhammad Saghar and Professor Dr. Mrs. Altaf Bashir, the learned Additional Advocate-General admitted that Professor Dr. Saadat Ali Zaidi was senior most Professor at Punjab Medical College, Faisalabad and Professor Dr. Wali Muhammad Saghar and. Professor Dr. Mrs. Altaf Bashir, were in 2nd and 3rd place respectively. To the allegation of mala fide as alleged by Professor Dr. Saadat Ali Zaidi in his writ petition and as to why the senior Professor was not entrusted with the additional charge of the post of Principal, the learned Additional Advocate-General submitted that the post of Principal was a selection post and was not regulated by the ordinary rule of seniority-cum-fitness and that a summary was prepared to be placed before the Selection Board in the very near future and a regular Principal was going to be posted at Faisalabad. Regarding arrangements during the interregnum, he failed to satisfy the Court as to why Professor Saadat Ali Zaidi was deprived of the honour of holding the additional charge till the posting of a regular Principal, a singular honour, which could have ordinarily fallen on the senior-most Professor of the College who was discharging the duties of the Vice-Principal already, though there was no regular post of Vice-Principal, and was being paid Rs,200 p.m. As extra pay for the performance of such duties.
12. The post of Principal of a Medical College was to be filled in by selection from amongst the senior-most Professors as mentioned in memo. Dated 7-4-1981. This memo. Amounted to parameter fixed by the Government itself to regulate its own discretion in selection and, in my view, the Government was the first to be bound by such policy before it could impose the conditions thereof on the persons to be regulated thereunder. Surprisingly, the learned Additional Advocate General carried all questions regarding the responsibility of the Government, taken by itself under the said memo, and the applicability of the same on the conduct of business by the Government itself. The memo. Dated 7-4-1981 and the decisions of 1-4-1979 were not the terms and conditions of the service of the petitioners. It were rather the parametres within which the Government was to exercise its authority while transferring the Professors, Associate Professors and Assistant Professors in teaching institutions in Lahore and appointment of Principals of Medical Colleges in the Province. These two memos., decisions do not amount to terms and conditions of service of both the petitioners and, as such, all the rulings cited by the learned Additional Advocate-General at the Bar are not relevant. The point to be seen and appreciated, in the present case was that transfers of senior Professors from P.M.C., Faisalabad were ordered as desired by a public representative from Faisalabad whose wish could not be allowed to override the rules of procedure and business. The Department of Health, in the circumstances, appears to be regulated by promptings amounting to mala fides and not the rules of business, of course, beyond the parametres fixed by the Government itself in taking such decisions.
13. The Notification No, SO(E-II)PF-M-208/91, dated 18-7-1994 vide which Dr. Tariq Iqbal Bhutta was transferred with immediate effect from K.E.M.C. And posted as Professor of Paediatrics/Principal, Punjab Medical College, Faisalabad against an existing vacancy and the transfer of Professor Dr. Saadat Ali Zaidi (petitioner in W.P. No, 8423/94) Professor of Medicine, Punjab Medical College, Faisalabad to Rawalpindi Medical College against an existing vacancy was a cloak and garb in the circumstances to provide cover to the mala fides to deprive both the Professors from their right to represent and agitate under the rules.
13-A. Dr. Tariq Bhutta was still not posted on regular basis and Professors senior to him had not yet refused to accept the posting as Principal of P.M.C., Faisalabad and, as such, the respondents had transgressed its authority in issuing the notification of transfer, without looking into hiss representation and the apprehension expressed at the Bar that Mr. Bhutta's refusal to join at Faisalabad shall be taken as refusal to accept the post of Principal and he shall be made to lose his right as having been foregone, and shall be debarred from consideration for this post in future.
The mala fides are patent.
14. This Court cannot ignore the interest of justice and is of the view that graver the injustice greater the remedy and it shall, not hesitate in exercise of its Constitutional jurisdiction to forestall an attempt, cloaked and garbed to deprive a public servant from consideration for selection for appointment against the selection post. The respondents have vide Notification No,S0(E-II/PF- M208/91, dated 18-7-1994 tried to move outside the parametres fixed by itself and has thus committed an act without lawful authority. The notification cannot be taken by this Court as a notification of transfers simpliciter.
15. I am of the view that the respondents are taking all steps since 18-4-1994 with a sinister motive in the issuance of one order after the other to perpetuate their mala fides against petitioner in W.P.
No, 8423/94 in the garb of exercise of executive/administrative authority. All steps taken to further the said motive are ultra vires.
16. In view of what has been stated above, both the writ petitions are accepted. Notification No, SO(E-II)PF-M-298/91, dated 18-7-1994 is declared to be ultra vires to the Government Policy, mala fide, without jurisdiction and without lawful authority and of no legal effect. The notification of Professor Dr. Mrs. Altaf Bashir to hold the additional charge of the Principal, P.M.C., Faisalabad is also declared as such and of no legal effect.
17. The respondents are directed to follow the imperative procedure, adopted by itself earlier vide policy decision dated 1-4-1979, and conditions for appointment of Principals of Male Medical Colleges in Punjab settled vide memo. Dated 7-4-1981 and not to appoint a junior Professor till such time to hold the additional charge of the post of Principal, P.M.C., Faisalabad where the was a senior Professor available to hold the additional charge.
18. The parties shall bear their own costs.