1. Petitioner through this Constitutional petition has taken exception to the Letter No.PSC/RC.I1I-96/27- RC, dated 3-1-1996 whereby his application for the post of Associate Professor Cardiac Surgery was rejected.
2. Facts briefly for the disposal of this Constitutional petition are that an advertisement appeared in the daily press on 3-11-1995 calling applications for a post of Associate Professor, Cardiac Surgery on all Punjab basis. Last date for the submission of applications was 30-11-1995. According to the advertisement the conditions for applicant were as under:
(a) M.B.,B.S. Or equivalent qualification recognized by the P.M.D.C. And the post-graduate qualification of FCPS/MS/FRCS/Diplomat of American Board in the respective speciality, or equivalent medical qualification in the respective speciality recognized by the PMDC.
3. OR M.B.,B.S. Or equivalent medical qualification recognized by P.M.D.C. With FCPS/MS/FRCS/Diplomat of American Board in General Surgery or any other equivalent medical qualification recognized by the P.M.D.C.
(b) Five years' teaching experience in the speciality in recognized institution as Assistant Professor, or equivalent position recognized by P.M.D.C. With at least three research papers published in Standard Medical Journals. (Research Papers accepted for publication are not acceptable).
4. NOTE: Four photo copies of each research paper should be submitted with the application together with the original journals in which these have been published.
5. The petitioner submitted his- application within the complete in all respect. However, respondent No. l Punjab Public Service Commission rejected his application on 3-1-1996 on the ground that the original journal 'Pakistan Heart Journal' Vol: 28, Nos. 3, 4, has not been submitted alongwith the application.
6. Learned counsel has stated at the Bar that the petitioner submitted his research paper titled 'Coronary Revascularization Using Bilateral Internal May Artery' to respondent No.3 Pakistan Heart Journal much prior to the publication of the advertisement which was accepted on 16-7-1995.
7. Acceptance letter issued by respondent No.3 is appended as Annex. ' F' which is-in the following terms: "Dear Dr. Khalid Hameed, Your article entitled 'Coronary Revascularization Using Bilateral Internal Mammary Artery' has been accepted for publication. It shall appear in a forthcoming issue of the Pakistan Heart Journal."
8. On this basis it is argued that since the petitioner has done whatever was within his control as such he could not be punished for any fault if any made by respondent No.3 in late publication of the Research Paper. Learned counsel has further taken exception to the very advertisement as according to him the same was published in a mala fide manner as there was no post of Associate Professor through initial recruitment. According to him the same was sanctioned in a mala fide manner by respondent No.2 simply to accommodate the respondent. Learned counsel for the respondents have stated that the petitioner was not qualified as his article was not published before the closing date i.e. 30---11-1995.
9. I have considered the contentions. As far as the first argument of the learned counsel for the petitioner that the post has been created in a mala fide manner, no solid reason has been advanced. Mere bald allegation of mala fide has been levelled without detailing the same as envisaged by the dictum of Hon'ble Supreme Court in case reported Federation of Pakistan, v.
10. Saeed Ahmad (PLD 1974 SC 151) where it was held as under: Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides to establish it, because, there is, to start with, a presumption of regularity with regard to all official acts, and until that presumption is rebutted, the action cannot be challenged merely upon a vague allegation of mala fides. As has been pointed out by this Court in the case of the Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri PLD 1969 SC 14 mala fides must be pleaded with particularity, and once one kind of mala fides is alleged, no one should be allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched upon merely on the basis of vague and indefinite allegations, nor should the person alleging mala fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
11. Apart from this, learned counsel for the petitioner has not brought to my notice any document from which it can be gathered that the advertisement for the post of initial recruitment of Associate Professor was made without any basis. He has failed to quote/cite violation of any law/rules which have been infringed by the respondent in the creation of this post. There is another aspect of this case which cannot be lightly overlooked. The petitioner submitted his application in response to the advertisement. When his application was rejected by respondent No. 1, he approached this Court and was allowed to participate in the interview through an interim order passed on 24-3- 1996,. Now at this late stage he cannot turn round in view of his performance in the interview and take exception to the very creation of the post of Associate Professor. It is pertinent to mention here that the learned Additional Advocate-General pursuant to the direction made by this Court on 22- 9-1996 has brought the result of the interview in a sealed cover. The perusal thereof reveals that the performance of the petitioner in the interview was below to that of respondent No.4. Even otherwise the petitioner did not say a single word in his writ petition qua the veracity of the creation of the post of Associate Professor. In these circumstances, keeping in view the fact that the petitioner himself participated in the process he cannot turn around and say that the creation of post was illegal. Reliance in this respect is placed upon Ghulam Mohi-ud-Din v. Chief Settlement Commissioner (PLD 1964 SC 829) wherein it was held as under:-- "The principle upon which the writ is refused in such cases is not that jurisdiction has been conferred on the Tribunal concerned by waiver and acquiescence but that even though the impugned order is without jurisdiction the person seeking to have it quashed should not be granted that discretionary relief as he had stood by and allowed the Tribunal to usurp a jurisdiction which it did not possess knowing that the Tribunal concerned was committing such an illegality in consequence of something done by that person himself."
12. The other argument that the petitioner's application was rejected in an arbitrary manner on the ground that the original journal of Pakistan Heart Journal was not provided before 30-11-1995, the last date of the receipt of the application has got sounder footing. It is admitted that the petitioner submitted his application alongwith the photostat copies of his Research Article which respondent No.3 'Pakistan Heart Journal' had already approved for publication in the forthcoming issue. It is also admitted by both the parties that 'Pakistan Heart Journal' is published quarterly. In the petitioner's case as stated in the letter of 'Pakistan Heart Journal dated 16-7-1995, the Article was to be published in the forthcoming issue which was falling due in September, 1995 ` much prior to the closing date. If for one reason or other it has not been published in that issue and got published prior to the holding of interview the petitioner cannot be punished for that. Whatever was within the control of the petitioner he diligently did that. The 'Pakistan Heart Journal' respondent No.3 accepted his Article for publication and undertook to publish the same in their forthcoming issue.
13. Even otherwise the Article as already observed was published prior to the holding of interview. In these circumstances there was no justification to reject the petitioner's application for the inaction on the part of respondent No.3 and apply the instructions so rigidly particularly so when the article was published much prior to the holding of interview. I am fortified in this approach by a case titled 'Ghulam Murtaza v. Chairman, Selection Board, Principal, King Edward Medical College, Lahore and 2 others (1981 CLC 274) where the learned judge has held as under: "I have heard the learned counsel for the parties and perused the record with their assistance. It would appear from the statement of facts made above that the petitioner had filed a certificate of having completed the N.C.C. Training alongwith his application/admission form in the. The defect if any of signing of the certificate not by the Incharge but by the Authorized Officer was also removed and Formal certificate submitted before final selection. A little technicality has been made a fetish of deprivation. Merit has to be calculated for admission with reference to facts and reality. If these exist at the relevant the but the certification therefore which is not in the hands of the candidate follows subsequently, the candidate cannot be punished for the acts of others. In this view of the.
14. Matter, the petitioner's application for admission was rejected without lawful authority."
15. Similarly, in Habib-ur-Rehman v. Government of Pakistan and others (1979 SCMR 121) it was held by the Hon'ble Supreme Court in an admission to Medical College case that in the absence of a mandatory provision a certificate subsequently issued and produced before the selection, has to be taken into account. A learned Judge in a case reported in Dr. Zia Suleman Farooqi v. Punjab public Service Commission and others (PLD 1994 Lahore 55) held that rules and procedural formalities should not be followed in a machine like manner so as to destroy the very object for which the Commission was created selection of best equipped individuals for serving the people.
16. Even otherwise the instruction in the advertisement that the Article must have published in the magazine prior to the last date failing which the application would be rejected is of penal nature. It has to be beneficially interpreted as its strict compliance would generate frustration and amount to technical knock-out which course of action has always been disapproved by the superior Courts. Reliance in this respect is placed upon Manager, Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another (PLD 1975 SC 678) wherein it was held as under:-- "The proposition could hardly be disputed that the principal object behind all legal formalities is to safeguard the paramount interest of justice. In fact while considering the importance of legal technicalities and rules of procedure in the administration of justice, it is inevitable to recall the various evolutionary stages in the transition from justice without law of primitive society to justice in accordance with law of modern society and the conflict between equity and law in judicial history.
17. It cannot be denied that legal precepts were devised with a view to impart certainty, consistency and uniformity to administration of justice and to secure it against arbitrariness; errors of individual judgment and mala fide. Over a period of the this development of codes and rules led to the evolution of what is called jurisprudence of conception' a system of logical deduction from fixed premises. In order to avoid the rigidity and hardship of ultra formalism recourse is had to principle of equitable application and interpretation of legal precepts and conferment of judicial discretion on the Courts as envisaged by Order XLI, rule 33 of the C.P.C. In regard to Constitutional power of this Court to do complete justice in all matters. These to provisions read together lead to the irreparable conclusion that mere technicalities unless offering an insurmountable hurdle should not be allowed to defeat the ends of justice. It was observed by Kaikaus, J. In Imtiaz Ahmad v.
18. Ghulam Ali PLD 1963 SC 382 as follows:-- I must confess that having dealt with technicalities for more than forty years, out of which thirty years are at the bar, I do not feel much impressed with them. I think the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on ground of public policy. The English system of administration of justice on which our own is based may be to a certain extent technical but we are not to take from that system its defect. Any system which by giving effect to the form and not to the substance defects substantive rights is defective to that extent. The ideal must always be a system that gives to every person what ; I also failed to understand the reasoning advanced by the responder Punjab Public Service Commission at the the of the rejection of appeal of the petitioner that the page number of the Research Paper published in the 'Pakistan Heart Journal' did not tally with the photostat copies supplied by the petitioner alongwith his application on 29-11-1995. If while editing the Research Paper for printing purposes, the 'Pakistan Heart Journal' change the page numbering the petitioner cannot be criticised for that when the substance of the Article remained the same. This reasoning taken by the respondents in parawise comments is arbitrary in nature and shows non-application of mind. Resultantly, for what has been stated above, it is held that the rejection of the petitioner's application by the respondent is without lawful authority and is of no legal effect. Consequently the writ petition is accepted but there shall be no order as to costs.