This judgment will dispose of Writ Petitions Nos. 531 of 1998 and 532 of 1998 as these have been filed by the same petitioners who call in question their non-selection to the posts of Senior Registrars (Orthopaedic Surgery) and one post of Assistant Professor (Orthopaedic Surgeon) in Writ Petition No, 531 of 1998 and 532 of 1998, respectively. To the posts of Senior Registrars, respondents Nos. 3 to 7 in Writ Petition No531 of-1998-- have been recommended and appointed; while to the post of Assistant Professor (Orthopaedic Surgeon), respondent No,3 in Writ Petition No,532 of 1998, has been selected.
2. The facts not in dispute are that respondent-Government in the Health Department wanted to fill seven posts of Senior Registrars, (Orthopaedic Surgery) and one post of Assistant Professor (Orthopaedic Surgeon) and for this purpose sent a requisition to respondent No,2, The Punjab Provincial Public Service Commission, (hereinafter referred to as the Commission). The Commission duly advertised the vacancies separately and invited applications. Number of persons applied for the posts. However, after short listing, only 31 eligible candidates were invited for interviews held in October, 1997. On the strength of academic/professional record etc. and performance in the interviews, the Commissiori prepared a merit list and recommended the first seven on the list for appointment as Senior Registrars. The recommendations were sent to respondent-Government on 30-10-1997. However, it seems the recommendations have not been acted upon due to stay order issued by this Court in Writ Petition No, 531 of 1998. To the post of Assistant Professor (Orthopaedic Surgery), in response to advertisement, the Commission received 25 applications. Out of which two were rejected and merit list of remaining 23 candidates was carried out. The first five on the merit list were called for interviews' and, as the petitioners appeared at Nos.7, 9, 11 and 15 on the merit list, they were not called for interviews. Dr.Omer Adil at No,3 in Writ Petition No, 532 of 1998, was recommended for the post of Assistant Professor.
3. The principal argument in support of the petitions is that the petitioners carry qualifications in the respective speciality and on true construction of the relevant rules, the petitioners ought to be preferred over respondents having qualifications in General Surgery although with three years practical experience. It has also been argued that the exercise of selection has to be transparent, fair and reasonable, and it is paramount that the Commission should have given reasons for excluding the petitioners because in the absence of the reasons in support of the selection it is difficult adjudge whether the exercise has been fair and reasonable. It has also been argued that the relevant rule of the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, is in conflict with the relevant regulation issued by Pakistan Medical and Dental Council (hereinafter referred to as the Council) and, therefore, to the extent of inconsistency, the latter has to prevail over the former. For this last proposition, Mr. Mansoor Ali Shah, Advocate learned counsel for the petitioners, has placed reliance on Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCM R 421); Miss Ghazala Quader v. Joint Admission Committee for Admission to 1st year M.B.,B.S. in Khyber Medical College, Peshawar etc. (1998 M LD 1238); Miss Hina Javed and others v. Government of N.-W.F.P. and others (1998 SCM R 1469), an unreported judgment dated 22-4-1997 delivered by Supreme Court in Civil Petition No,393-P of 1996 and Civil Petition No, 416-P of 1996 and finally on Single Bench judgment of this Court reported as Dr. Abrar Hussain Ahmed Khan and others v. Government-f Punjab and others (1995 CLC 1409). For the proposition that exereise has to be transparent, reasonable and fair, Mr. Mansoor Aliihah referred to Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Ltd., Rawalpindi (PLD 1991 SC 14); Ghulam Qadir v. Ahmad Yar and others (PLD 1990 SC 1049) and Karachi Building Control Authority and others v. Hashwani Sales and Services Limited and others (PLD 1993 SC 210).
4. Mr. Muhammad Iqbal Khichi, learned Assistant Advocate-General, has opposed these petitions by denying that the process of selection was not fair or reasonable. He has pointed out that, as claimed in the written statement, five of the candidates out of seven recommended for the posts of Senior Registrar (Orthopaedic Surgery) belong to the class of the petitioners and only two recommendees appearing at Nos. 3 and 4 of the merit list were in possession of the Degree of F.R.C.S. (Surgery) with more than three years required experience in the Orthopaedic Surgery, after their Post-Graduation. He has also claimed that there is no conflict between the Regulation framed by the Pakistan Medical and Dental Council and the relevant rule nor any priority is inferable in favour of candidates falling in category (i) of the rule. According to him both categories mentioned in (i) and (ii) are at par and have to compete inter se, purely on merits. He has also urged that in any case, the,pointment to a provincial service is made by laws of the Provincial Government, under Article. 240 of the Constitution and the Regulation made by the Council cannot override or regulate the appointments made in provincial service. More or less these arguments have been adopted by Mr. Mushtaq Masood and Mr. Taqi Ahmad Khan, Advocates, appearing for recommended candidates.
5. In order to appreciate the arguments, it is appropriate to reproduce the relevant rule in the Pubic Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, as substituted by way of amendment on 10-4-1995:-- "In Schedule-II for the qualification for appointment by initial recruitment/promotion against the post of Senior Registrar/Assistant Professors in all the specialties, the following shall be substituted:--
(i) M.B.,B.S. or equivalent medical qualifications recognised by the P.M.D.C. and the post-graduate qualifications of F.C.P.S./ M.S./F.R.C.S./M.R.C.P./ Diplomat of American Board in the respective specialty or equivalent medical qualifications in the respective specialty recognized by the P.M.D.C. or
(ii) M.B.,B.S. or equivalent medical qualifications recognised by the P.M.D.C. with F.C.P.S./ M.S. /F .R.0 .S. /M .R .0 .P. / Diplomate of American Board (General) Surgery, Medicine, or any other equivalent medical qualification recognised by the P.M.D.C. with 3 years practical experience in the respective speciality in a recognised institution after post-graduation."
The relevant regulations for the appointment of teachers and examiners in Under-Graduate and Post-Graduate Medical and Dental Institutions of Pakistan, as amended up to 7-1-1997, have been attached as Annexure 'F' in Writ Petition No, 531 of 1998, which read thus:-- Clinical Subjects: Cardiology, Neurology, Urogoly, Phychiatry, Dermatology, Paediatrics, T.B. and Chest Dieseases, Orthopaedic Surgery, Thoracic Surgery, Neurosurgery, Eye, E.N.T., Anaesthesiology and all other specialities as mentioned in the M.B., B.S. Regulations.
Post Basic Qualification Additional (Post- graduate Qualification0Experience Research Remarks Senior Registrar M.B., B.S. or Equivalent medical qualifications re- cognised/registered by the PM&DCF.C.P.S./M.S./M.D., in the respective speciality OR other equivalent qualifications in the speciality congnized/registered by the PM&DCThree years teaching/- practical experience in the subject speciality in a recognized institution before or after post-graduate qualifications Assistant Professor M.B., B.S. or Equivalent medical qualifications re- cognised/registered by the PM&DC-do- Three years teaching/practical experience in the respective speciality in the recognized institution in order of following preference: 1 PREFERENCE: Teaching Experience 2 PREFERENCE: Practical experience after Post-Graduation 3 PREFERENCE: Practical experience before The holders of additional qualification like M.C.P.S. shall not be eligible for appointment/promotion as senior Registrar Asstt. Professor Associate Professor and Professor for which holders of higher diploma/degree are only eligible ST ND RD Post-Graduation Attached with the Schedule are explanatory rules to the Regulation (Annexure 'F') and since Mr. Mansoor Ali Shah has relied on Explanation 42, the same is also reproduced:-- "42. A doctor possessing the qualifications of M.D./F.C.P.S. in Medicine/M.R.C.P. etc., can be appointed as senior Registrar in the sub-specialties of Medicine and a doctor possessing the qualifications of M.S./F.C.P.S. in Surgery/F.R.C.S. etc., can be appointed as Senior Registrar in the sub-specialties of Surgery, if a person with the requisite qualifications in the particular specialty is not available."
6. The comparative reading of the relevant rules/regulations hardly indicates any conflict or inconsistency. Even the explanation relied upon by Mr. Shah is permissive in nature and does not support his argument that category of eligible candidates mentioned in (i) of the Punjab Rules have to be in any manner preferred over the candidates mentioned in category (ii) of the same rules. To me it seems the law maker has placed these two categories at par. The language used does not support the contention that one has to be preferred over the other or that in the presence of candidates falling in category (i), the candidate falling in category (ii) cannot be considered.
There is considerable weight in the submission of learned Assistant Advocate-General that wherever the law maker wanted one category to be preferred over the other, it is so-stated specifically. He has referred to the rule in respect of appointment of Assistant Professor of Radiology (copy attached as Annexure ' A' to the report and parawise comments) wherein, after prescribing qualifications in (1)(ii), it is laid down "if no person with aforesaid qualification is available then:",(ii) learned Assistant Advocate-General is right in urging that in the absence of any such expression used in the relevant rule in respect of the cases in hand, it cannot be argued that the law giver warned to prefer one category over the other.
7. The judgments referred to by Mr. Mansoor Ali Shah do indicate that in the event of conflict between the regulation framed by the Council and a rule framed by Provincial Government under its Act/Ordinance, the former prevails. However, in my opinion this argument is not arising in these two cases. As has been seen, the Commission has kept the two categories at par and has treated each of the candidate belonging to the respective category on merit without any weightage to the candidates in category (i). The insistence of Mr.Mansoor Ali Shah that because Senior Registrars in the subject specialty of Orthopedic Surgery were required to be recruited, therefore, the petitioners having Post-Graduate qualifications in the specialty, should have been preferred, may have some basis in reason and logic, but the language of the respective rules as such does not give any support to the argument. Mr. Mansoor Ali Shah, therefore, went further and submitted that this Court should hold that, in these two cases, candidates belonging to category (i) should be preferred. In other words, he stressed that the relevant rules should be so interpreted as to give preference to candidates belonging to category (i) as this will be in accord with reason and logic.
Precisely he wants this Court to add the words "if no reason with the aforesaid qualifications is available then", as in the case of recruitment to the post of Assistant Professor of Radiology.
8. I am afraid, the argument of Mr. Mansoor Ali Shah is going too far. It has not been canvassed that this Court should assume the function of lawmaker. Under the Constitutional disposition, this Court cannot do so. However, Judges do make law by interpreting the relevant provisions and by removing the ambiguity, if any. In interpreting the laws, the Courts have to give effect to the legislative intention by giving ordinary meanings to the word used. The law-maker in these cases have deliberately not given any preference to (i) category over the other (ii), as it did in the case of the rule pertaining to recruitment of Assistant Professor of Radiology. The omission seems to be deliberate and Court has to recognise it. By holding that category (i) be preferred over category (ii) because it is logical and reasonable, the Court would be literally assuming the function of law- maker. I am clear that this Court may well be transgressing its jurisdiction in doing what Mr. Mansoor Ali Shah wants the Court to do. If at all, the argument may be addressed to the law-maker and it would be for him to see and assess the wisdom behind the argument of Mr. Mansoor Ali Shah.
9. Unreported judgment of Supreme Court dated 22-4-1997 in C.P. No, 393-P of 1996 and C.P.
No,416-P of 1996, hardly supports the contention that Category (i) has to be preferred over Category (ii). In the cases, Dr. Shah Wali Khan, Senior Registrar, Orthopaedics (petitioner) and Dr. Shahabuddin, also Senior Registrar, Bohan Block (respondent No,2) contested for the post of Assistant Professor (Orthopaedics) falling vacant in 1993, in promotion quota. Service Tribunal decided in favour of Dr. Shahabuddin. Leave was sought on the grounds inter alia that petitioner had experience in the specialty and, therefore, should have been preferred. The Court rejected the submission by holding: "The learned counsel for the petitioner has cited no rule providing for the experience in particular speciality taking precedence over experience gained in other alike specialties as a matter of right to be utilised/counted towards experience in particular without having prescribed qualification in that speciality."
In the cases before me, the argument is somewhat the same i,e, the qualification and experience in the speciality/sub-speciality/Category (i) be ordered to be given preference over experience in general surgery (Category (ii). As seen, Mr. Mansoor Ali Shah has sought refuge in logic only because there is no provision giving preference to Category (i) over the other (ii).
10.This takes me to the next question. It has been disclosed by the Commission in its report and parawise comments that for the post of Assistant Professor (Orthopaedic Surgery), petitioners stood at Nos. 7, 9, 11 and 15 respectively on the merit list and they were not called for interview. Only first five on the merit list were called for interview. For the seven posts of Senior Registrars, the petitioners were only called for interview, but they have not been able to attain recommendations of the Commission, on merits. It is on these facts that the argument of Mr. Mansoor Ali Shah that the exercise of selection has not been transparent and reasonable has to be examined. It may be noted that Mr. Mansoor has not levelled any allegation of malice or ill will or lack of bona fides against any member or official of the Commission.
11. It has not been disputed that initial presumption of correctness attaches to the official/public acts. In appropriate cases the Court can hold the same to have been rebutted and it is in such cases that the action can be struck down on the grounds of mala fides. There is nothing on record to tentatively displace this initial presumption of correctness. It is clear that in the absence of any mala fides, this Court will be starting a roving and fishing enquiry to find out if one or the other left out competitor has been properly dealt with. Apart from the near impossibility of the exercise, (unsuccessful being always in large numbers), asking for a roving enquiry in exercise of jurisdiction under Article 199 of the Constitution is not permissible. It was for the petitioners to have placed some material on record to initially take the Court alongwith them for the proposition that the evaluation of the respective candidates has not been correct. The Principle of transparency would not go to such an extent that each and every failing candidate be given elaborate reasons as to why he has not been selected and as to why the successful candidates have been selected. For all we know, even this exercise may not satisfy the failing candidates. Mr. Mansoor Ali Shah may be right in saying that this Court can insist on transparency and reasonableness, but again there has to be some material to show that the respondents-Authorities have proceeded in the matter in a surreptitious or in an unreasonable manner. As has been held in the case of Chairman; Regional Transport Authority (supra), the Superior Courts can also structure the discretion of public authority, but again before seeking order from the Court, a litigant has to discharge the initial onus that the discretion has been illegally malafidely and surreptitiously exercised, I, therefore, conclude that there is absolutely no material on record to come to a finding that in drawing the merit lists and in making selection, the respondent-Commission has acted in any manner which is objectionable in law.
12. For all that has been stated above, these two petitions are dismissed, F leaving the parties to bear their own costs.