IHSAN-UL-HAQ CHAUDHARY, J.- It is proposed to decide Writ Petitions Nos. 4658/98, 295/98 & 1210/98 through this common judgment because the same are interconnected.
2. The relevant facts are that respondent No. 3 invited applications for the appointment of Associate Professor of Orthopaedic Surgery in BS-19 through advertisement in newspapers dated 3.8.1997, appended as Annexure-A. All the three writ petitioners applied for the above said post. The selection process was over but before the result could be declared, the petitioner, Dr. Ghulam Murtaza Cheema, filed a writ petition for declaration that respondent No. 6, Dr. Saleem Ahmad (petitioner in Writ Petition No. 295/98) was not eligible to be considered for the post of Associate Professor of Orthopaedic Surgery as he did not possess the requisite teaching experience of five years as he was on leave for a period of 280 days during this period, therefore, he was not eligible to apply for the post advertised and it was prayed that he be disqualified from the competition.
3. Dr. Saleem Ahmad, respondent No. 6 has also filed Writ Petition No. 295/98 wherein he has prayed that respondents Nos. 1 to 3 be restrained from compelling respondents Nos. 5 & 6 to amend his certificate of teaching experience and he be considered for the post of Associate Professor on the basis of the certificate and for any other relief as deemed proper.
4. Dr. Qazi Muhammad Saeed Salik filed the third Writ Petition No. 1210/98 wherein he had prayed for direction to respondent No. 1 to place his case before the Provincial Selection Board in the next meeting for appointment as Associate Professor (Orthopaedic Surgery), it was also prayed that till then Punjab Public Service Commission be restrained from declaring any other candidate successful except the petitioner or in the alternate till the decision of his promotion by the Provincial Selection Board, the Commission- shall not make any recommendation.
5. Writ Petition No. 4658/98 was admitted to regular hearing and notices were issued to the respondents while other to Writ Petitions were treated as notice cases with the consent of the parties.
6. Learned counsel for Dr. Ghulam Murtaza Cheema argued that respondent No. 6, Dr. Saleem Ahmad, was appointed as Assistant Professor on 1.10.1990 but he remained on Ex-Pakistan Leave from 16.1.1996 to 30.9.1996 and again from 1.10.1996 to 10.5.1997, in all for 280 days. It was added that this way he did not have the requisite teaching experience of five years to his credit on 3,8.1997 and certificate of experience issued in his favour on 13.8.1997 by Principal, Rawalpindi Medical College was incorrect. It was added that the petitioner complained to the Health Minister, Government of the Punjab, of this illegal issuance of certificate. The result was that Health Department issued certificate dated 31.12.1997, Annexure-E, wherein it was certified that Dr. Saleem Ahmad, respondent No. 6, did not possess the requisite teaching experience. The same position was confirmed by the Regulation Wing of SGA & I Department vide its letter dated 1.1.1998, placed on record. Learned counsel thereafter referred to the Rule 2.16 of the Civil Servants Rules, Punjab Vol. I and argued that such leave for personal trip is not covered by the Rule. It was added that PMDC clarified the position vide its letter dated 26.2.1998, written to the petitioner, that the period of afore-mentioned leave was to be deducted while working out of teaching experience. Learned Counsel in support his arguments relied on Al-Jehad Trust v. Federation of Pakistan (PLD 1996 SC 324).
7. On the other, Khawaja Haris Ahmad, Advocate learned counsel for respondent No. 6 argued that his client did his MBBS in 1980 and then joined Army as Captain on 10.2.1980. Thereafter he joined Zaid Hospital as Medical Officer on 4.3.1987 where he became Senior Registrar. He was appointed as Assistant Professor on 1.10.1990 in the Medical College, Rawalpindi: Thereafter he did his FRCS in the year 1991 from U.K. In 10 months. It was argued that petitioner/respondent No. 6 remained on leave for 280 days but he has applied for the regularization of this period and his representation to the PMDC for treating this period as teaching experience was still pending. It was added that the interviews were held on 4.11.1997 and as the result could not be declared on account of injunction issued by this Court, therefore, by this time in any case he had now the requisite teaching experience of five years. It was argued that the question of teaching experience for the period of leave on average or on half pay is within the domain of PMDC. It was argued that in any case only Ex-Pakistan Leave without pay could not be counted in teaching experience and period of all other leave including maternity etc. Are to be counted in the teaching experience, therefore rule of consistency was that this leave should also be counted towards teaching experience, moreso when there was no precedent contrary to it. Learned counsel in this behalf has relied on Zahoor Mahmood Farooqi v. The Punjab Public Service Commission, Lahore (PLD 1985 Lahore 385), (1989 PLC (CS) 752) and Government of N.W.F.P. Health and Social Welfare Department v. Dr. Shaikh Muzaffar Iqbal (1990 SCMR 1321). It was argued that neither the Health Department nor Regulation Wing of SGA & I Department has any right to issue any instructions or certificate. It was only the PMDC who can give opinion and that was final.
8. It was argued that the writ petitioner, Dr. Ghulam Murtaza Cheema, himself was not eligible for apply for the post advertised because he was never appointed as Assistant Professor. It was added that he served as Medical Officer and was appointed for the first time as Assistant Professor on 20.2.1992 but this appointment is of no avail to him for the post of Associate. Professor because it was as Assistant Professor (Surgery) and that to on current charge basis for a period of six months.
It was added that this order was followed by order dated 1.6.1992 whereby he was allowed to continue as Assistant Professor on current charge basis. It was argued that the certificate issued by the Principal King Edward Medical College, Lahore is incorrect because the petitioner served as Assistant Professor Surgery' as is clear from the orders of his appointment and not "Orthopaedic Surgery". It was argued that he did FRCS in October, 1992 and held the post on current charge basis, therefore, did not possess the requisite teaching experience of five years.
9. Mr. Iqbal Mehmood Awan, Advocate learned counsel for the petitioner in Writ Petition No. 12101/98, argued that the period the petitioner, Dr. Ghulam Murtaza Cheema, has served on current charge basis could not be counted towards his teaching experience and cannot be related as appointment as Assistant Professor. In this behalf he referred to Rule 10(b) of the Appointment and Conditions (Civil Servants) Rules, 1974. It was argued that the required teaching experience was that of Orthopaedic Surgery and not simple Surgery, therefore, he was not qualified to apply for the post.
10. Mr. Kitchi, learned Assisting. For the petitioner, while summing the arguments referred to Section 16 of the Civil Servants Act, 1974. It was added that the teaching experience gained by the petitioner whether on acting charge basis or officiating was to be counted as experience as Assistant Professor. It was argued that the petitioner was appointed as Assistant Professor from 20.2.1992, therefore, on 4.11.1997 when he applied for the post he had the requisite teaching experience of five years. It was added that experience during the period the petitioner remained posted on current charge basis could be counted experience as Assistant Professor. It was added that he, in view of the Article 240 of Constitution of Islamic Republic of Pakistan, 1973, law and rules enacted by the Provincial Government are to prevail against the PMDC Regulations.
11. Mr. Pervaiz I. Mir, Advocate who appeared on behalf of respondent No. 5 and submitted a policy statement to the effect that recognition and certification of teaching experience is not the duty of PMDC. The same is determined on the request of the concerned Doctor on the basis of certificate issued by Principal of Medical College. It was added that leave period could not be counted towards teaching experience.
12. I have given my anxious consideration to the arguments and gone through the record, provisions of law, rules as well as precedents. The first question for determination is as to whether the 280 days ex-Pakistan to Dr. Saleem Ahmad, respondent No. 6, could be treated as period of duty for working out reaching experience. Before answering this question, it is important to briefly refer the controversy involved in these writ petitions and recruitment rules. All the three petitioners have applied for the post of Associate Professor of Orthopaedic Surgery in BS-19. The appointment is governed by the Service Rules of 1988. The relevant portion of the same reads as under:- #tbs prescribed in clause or (ii) for initial appointment to the post of Assistant Professor in the speciality, and #to #tbs Post-graduate qualification #to #tbs From amongst Assistant Professors in the line possessing:- #to #tbs 5 years teaching experience in the speciality in a recognized institution as Assistant Professor or equivalent position recognized by PMDC with at least 3 research papers published in a standard medical journal. #to #tbs Qualification as prescribed in clause (i) or (ii) for initial appointment to the post of Assistant Professor of the specialty; and #to #tbs Promotion #to Inital Recruitment/ Transfer
(b) 5 years teaching experience as Associate Prof, in the speciality with at least 3 research papers published in a standard medical journal while working as Assistant Professor.
The qualifications of the Assistant Professor as referred to in clause (a) above are as under:- Name of the Initial recruitment or transfer.
Post
(i) (ii) #tbs
(iii) Assistant
(iv) Professor
(v) #to
(vi) (a) Qualification as prescribed in clause
(i) or (ii) for initial appointment to the post of Senior Registrar.
(b) 3 years teaching or practical experience in the subject in a recognized institution before or after post-graduation.
Lst 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 qualification; then:- MBBS or equivalent medical qualifications recognized by PMDC with FCPS (Surgery) or M.S. (Surgery) or equivalent qualification PMDC with 3 years practical experience in Orthopaedic Surgery in a recognized institution after post-graduation.
Lst Preference. Teaching experience.
2nd Preference. Practical experience after post graduation.
[(TEXT MIS-ARRANGED)]
13. Learned counsel for Dr. Ghulam Murtaza Cheema argued that the applications were invited on 3.8.1997 while Dr. Muhammad Saleem, respondent No. 6 was appointed as-Assistant Professor on 1.10.1990, therefore, he did not possess the requisite experience of 5 years for the reason that during this period he availed 280 days ex-Pakistan leave.
14. The word "experience" has neither been defined in the Civil Servants Act, 1874 nor in the rules framed thereunder, therefore, we have to refer its dictionary meaning. I am fortified in my view by judgment of Honourable Supreme Court in case of Khizer Hayat Malik v. Muhammad Rafique Malik (1987 SCMR 78). The relevant portion reads as under:- "The amendment in the Recruitment Rules which is the subject-matter of controversy has already been reproduced. The crucial words therein are "with five years' experience as such". The word "experience" has the Dictionary meaning (The Oxford English Dictionary Volume 3 page 430) 'practical demonstration', to fulfil in practice' 'knowledge resulting from actual observations or from what one has undergone'."
The 280 days ex-Pakistan leave availed by Dr. Muhammad Saleem was not normal incident of service like causal, medical including maternity leave, normal gazetted holidays and recreation leave, therefore, this period of 280 days cannot be counted towards the experience. The PMDC which has been entrusted with the matter has given in writing that this leave cannot be counted as teaching experience. The Doctors who did not apply on account of lack of experience and now are qualified would be deprived of the opportunity to compete, it would amount to punish them for their gentleman conduct on one had and pay premium to the petitioner for applying in spite of being not qualified on the other had.
15. On the other had, Dr. Muhammad Saleem, respondent No. 6 has also challenged the eligibility of the petitioner mainly on the ground that he was never appointed as Assistant Professor, it was however conceded that he has been officiating as Assistant Professor. The educational qualifications for the post of Assistant Professor are the, same as per rules as that of Senior Registrar because that one is promoted as Assistant Professor and then as Associate Professor. The qualifications are as under:- Name of the Initial recruitment or transfer.
Post Senior Professor (i) MBBS or equivalent medical qualification recognized by the PMDC and the following post-graduate qualifications in the subject/speciality: F.C.P.S. (Orthopaedic Surgery) or
(2) M.S. (Orthopaedic Surgery) or equivalent qualifications in the speciality recognized by P.M.D.C, or
(vii) F.C.P.S. (Surgery/'M.S. (Surgery) or equivalent qualification recognized by the PMDC with Minor Diploma in Orthopaedic Surgery recognized by the PMDC.
(viii) If no such candidate is available with the aforesaid qualifications the:- MBBS or equivalent medical qualifications recognized by the PMDC with Post-Graduate Minor Diploma in Orthopaedic Surgery or equivalent qualifications recognized by the PMDC with 2 years practical experience in a recognized instructions before or after post-graduation.
16. The admitted position is that the petitioner so far has not been promoted as Assistant Professor.
I am mindful of the old rules, according to which the Senior Registrar could be appointed as Associate Professor but the introduction of 1988 Rules these are to different steps. This was not all.
The qualifications as produced above, for appointment to the post of Associate Professor is the teaching experience in speciality whereas according to posting orders the petitioner was appointed as 'Assistant Professor Surgery' that to on work charge basis. According to new rules Surgery and Orthopaedic Surgery are to different specialities, therefore, the petitioner was also not eligible to apply for the post.
17. It is high time to take judicial notice of the evil of giving higher post to the privileged one's may be spouse, son and nephew etc. of the elite. This evil was mainly in the Education and Health Departments but is not spreading in the other' departments also. It give rise to heart burning to the efficient, energetic and upright officers and rocking the entries service structure.
18. I am conscious of the fact that rules permit a posting against higher post on current charge basis or on acting charge basis, but the Government was fully conscious that this may give rise to nepotism, favouritism and posting as a result of corruption of all sorts. Therefore the Government has made such posting subject to the following conditions:-
(i) Such appointment is to be made in prescribed manner;
(ii) the senior most civil servant belonging to the cadre or service who was otherwise eligible but did not possess the specified length of service could be appointed by the authority;
(iii) that the authority was satisfied itself on the report of Selection Authority that no suitable officer was available and it was not expedient to leave the post vacant;
(iv) no posting was to be made against a post likely to remain vacant for a period of less than six months; and
(v) no appointment was to be made without the recommendation of Departmental Promotion Committee or the Provincial Selection Board.
These are the basic requirements as are clear from 10-A of the Punjab Estacode, 1996.
19. Dr. Cheema as is clear from his posting order was twice posted as Assistant Professor on current charge basis from 23.2.1992 to 13.6.1995 and 14.6.1995 to update on acting charge basis. This was in utter disregard of the provisions of Estacode. The appointment was neither deemed to be regular basis nor was to confer any right for regular appointment.
20. If the appointment was to be made for less than six months then again senior most civil servant who was otherwise eligible in the opinion of the authority was to be posted on current charge basis.
The appointment was to end automatically on appointment of a person on regular basis or on the expiry of six months which were was earlier as per para 10-B of the Estacode.
21. It is a matter of common knowledge that the privileged civil servant having influential family background get posting higher than their on grade and entitlement. This may be result of nepotism, favouritism and corruption. This evil initially was common in the Health and Education Departments but like all other evils spreading at tremendous speed in other departments also, in this behalf reference can be made to Muhammad Zia-ul-Haq v. Government of Punjab (1996 PLC
(CS) 134). The classic case of the Education Department where a wife of a very senior politician holding pivotal position in the Punjab Assembly was being repeatedly posted against a higher post inspite of the orders being struck down by the High Court in Constitutional jurisdiction and ultimately direction had to be issued that she would receive the salary only when Accounts Officer certified that she was working against the post of her entitlement. The privileged one should not be given posting higher to his eligibility as it is not only source of corruption and inefficiency but it also discourages the up-rights, energetic and efficient one.
22. Dr. Saleem Ahmad, as already noted, prayed that respondents Nos.- 1 to 3 be restrained not to compel respondents Nos. 5 & 6 to amend the certificate of teaching experience of the petitioner earlier issued while direction to respondent No. 3 to declare the result at an early date on the basis of existing certificate of teaching experience in his favour. It is clear from the prayer that only anxiety is to protect the ill-gotten certificate secured through under had means. The writ cannot be issued to protect ill-gotten benefits. The merit of the certificate has already been determined by this Court in the light of the submission of the parties, therefore, his petition is liable to be dismissed.
23. Now coming to the writ of Dr. Salik. He has also applied for the appointment as Associate Professor through initial recruitment and he at the same time seeking appointment by promotion and for that he has prayed for a direction to respondents Nos. 1 & 2 to consider him immediately and till his consideration there should be no appointment through initial recruitment. The prayer is mis-conceived because posts are reserved separately for initial recruitment and promotion. As far the appointment through initial recruitment is concerned, the same is under process with the Public Service Commission. It seems he was a promoted to file this petition in view of the injunction issued by the High Court. This matter is being decided, therefore, the Commission would be at liberty to make the recommendations in accordance with law, rules and merits.
24. As far as appointment through promotion, the competent authority is under legal obligation to consider the petitioner for promotion strictly in accordance with law and rules but like other matters this is also ignored. The result is that civil servants are compelled to seek direction' from the Courts. This attitude callous cannot be appreciated. The promotion although is not a vested right yet it is desire of all civil servants to get the same in accordance with law at the proper time.
The Law Commission of Pakistan has already recommended that promotion shall also be made a vested right of a civil servant like other terms and conditions of service.
25, The upshot of this discussion is that writ petition of Dr. Ghulam Murtaza Cheema is accepted and that of Dr. Saleem Ahmad (W.P. No. 295/98) is dismissed. The result is that it is held that Dr. Saleem Ahmad was not qualified to apply for the post of Associate Professor as he lacked necessary teaching experience of five years. At the same time it is also declared that Dr. Ghulam Murtaza Cheema was also dis-qualified to apply for the post for the reason that he was not promoted/appointed on regular basis as Assistant Professor and secondly he did not have the teaching experience in the speciality i.e. Orthopaedic Surgery. The third writ petition by Dr. Salik is disposed of as per observations made above. No order to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.