MUNIR A. SHEIKH, J.---By this common judgment, we propose to decide Civil Appeals Nos.19, 20 and 425 of 1999 as they are directed against the consolidated judgment of the Lahore High Court passed in three writ petitions involving common questions of law and facts.
2. The facts of the case briefly stated are that the Punjab Public Service - Commission invited applications for appointment of one Associate Professor of Orthopaedic in BPS-19 by direct recruitment through advertisement which appeared in the newspaper dated 3-8-1997. Dr. Saleem Ahmad, appellant in Civil Appeal No,425 of 1999, Dr. Qazi M. Saeed Salik respondent No,7 and Dr. Ghulam Murtaza Cheema, appellant in C.A. No,19 of 1999 applied for the above post. After the conclusion of the process of the selection by the Commission but before the declaration of the result, Dr. Ghulam Murtaza Cheema filed W.P. No,4658 of 1998 against Dr. Saleem Ahmad that he was not eligible to be considered for the said post 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, was not qualified to apply for the post. A declaration was sought that he should be excluded from the competition. Dr. Saleem Ahmad, appellant also filed a writ petition in which he prayed that respondents Nos.1 to 3 in his writ petition may be restrained from compelling respondents Nos. 5 and 6 to amend his certificate of teaching experience and he should also be considered for the post of Associate Professor on the basis of the said certificate. Dr. Qazi Muhammad Saeed Salik also filed W.P. No,12101 of 1998 in which he prayed for a direction to respondent No,1 to place his case before the Provincial' Selection Board in the next meeting for his appointment through promotion 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.
3. It may be mentioned here that apart from other qualifications mentioned in the advertisement, the candidate must have also teaching experience as Assistant Professor Orthopaedic, therefore, the question as to whether Dr. Ghulam Murtaza Cheema and Dr.. Saleem Ahmad held the said teaching experience for the required period is the crucial point and the decision of these appeals rests on the decision of this question. The case of Dr. Ghulam Murtaza Cheema against Dr.- Saleem Ahmad was that the latter 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, therefore, if the said period is excluded from the period of teaching experience, he would not be qualified, for the remaining period would be less than five years, therefore, certificate of experience issued in his favour on 13-8-1997 by the Principal, Rawalpindi Medical College was incorrect. The objection against the period of experience of Dr. Ghulam Murtaza Cheema was that his appointment as Assistant Professor (Orthopaedic Surgery) was null and void, therefore, any teaching experience relating to said period of ad hoc acting charge basis appointment should be excluded from consideration.
4. The learned Judge of the High Court through the impugned judgment dated 15-9-1998 declared that neither Dr. Saleem Ahmad nor Dr. Ghulam Murtaza Cheema held experience of requisite period of five years, therefore, Writ petition filed by Dr. Ghulam Murtaza Cheema was accepted partly to the extent of declaring that Dr. Saleem Ahmad did not possess the requisite teaching experience. The writ petition of Dr. Qazi Saeed Salik in which he had also prayed for consideration of his case for appointment as Associate Professor through promotion was disposed of with the observation that the department was under an obligation to consider the case for promotion of the civil servants in accordance with law. Since some objectionable remarks were expressed as to the appointment of Dr. Ghulam Murtaza Cheema on ad hoc and acting charge basis as Associate.
Professor against the Government, therefore, Civil Appeal No,20 of 1998 by the Government of Punjab has been filed to seek expunction of those remarks.
5. We have heard learned counsel for the parties. It may be mentioned here that in the selection, the Public Service Commission on merits placed Dr. Saleem Ahmad at Serial No,1, Dr. Qazi Saeed Salik at No,2 and Dr. Ghulam Murtaza Cheema at No,3. In this view of the matter, we proceeded to consider the case of Dr.Saleem Ahmad in the order of priority, for if he was found to be qualified to apply on the criteria of experience of five years, the other two for the appointment by way of direct recruitment would stand excluded.
6. The only objection raised against Dr. Saleem Ahmad was that he remained absent on ex- Pakistan Leave for 280 days, therefore, if the said period was excluded from his period of teaching experience, the remaining period would be less than five years. The certificate qua his teaching experience issued by the Government of Punjab, Health Department reads as under:-- "ORDER: No,SO(Admin-I)2-28/90: Dr. Saleem Ahmad, Assistant Professor, Orthopaedic Surgery, R.M.C.
Rawalpindi is allowed ex-Pakistan leave for 230 days as per details given below:--
(1) Leave on half pay for 50 days from 1-10-1996 to 19-11-1996.
(2) Leave not due on half pay for 180 days from 20-11-1996 to 18-5-1997.
(3) Permission to avail summer vacations abroad from 8-8-1996 to 30-9-1996." Under the revised Leave Rules, 1981, the Government of the Punjab Health Department has no objection to his proceedings abroad.
(Sd.)
Secretary Health (URBAN), 1-8-1996."
It is manifest from this certificate that the said period of 284 days is inclusive of the period of summer vacations from 8-8-1996 to 30-9-1996.
7. Learned counsel for all the parties when questioned frankly conceded that the period falling in summer vacations weekly holidays and other public holidays cannot be excluded from the teaching experience of teaching staff, even though the teaching activities in the College remained closed during such vacations and holidays, therefore, the said period could not be excluded from the period of his teaching experience and if the same is counted, the remaining period of his absence on ex-Pakistan Leave would be 230 days.
8. According to the certificate issued on 8-8-1997 by the Principal, Rawalpindi Medical College, Rawalpindi, Dr. Saleem Ahmad worked at Stoke Mandevile Hospital Post Graduate Medical Centre from 1-2-1991 to 1-5-1992 as Visiting Orthopaedic Surgeon and gained his fellowship (FRCS) within ten months of his training. This period in our view was to be counted towards his teaching experience, for if a period of long summer vacations is to be included in the period of teaching there is no ground to exclude the above period during which he had been teaching abroad. If this period from 1-2-1991 to 1-5-1992 is included in his teaching experience, there is no dispute that he would be disqualified. He had, therefore, acquired the requisite experience required under the advertisement, therefore, the selection by the Public Service Commission allocating to him the first position on merits could not have been objected to on any ground, therefore, his writ petition was liable to be accepted.
9. Reverting to the case of Dr. Ghulam Murtaza Cheema, appellant in Civil Appeal No,19 of 1999, his case was that according to certificate of experience No,2/983/KEMC, Lahore dated 29-8-1997 issued by the Principal, K.E. Medical College, Lahore, he worked as Assistant Professor Surgery on current charge basis from 23-2-1992 to 13-6-1992. He was appointed as Assistant Professor Orthopaedic Surgery on current charge basis from 14-6-1992 to 13-6-1995 and as Assistant Professor Orthopaedic Surgery on acting charge basis from 14-6-1995 todate. His case was that if the period from 14-6-1992 todate was considered to be teaching experience, he had completed the teaching experience of five years as envisaged by the advertisement. It may be mentioned that he was a general surgeon and was not orthopaedic surgeon when he was appointed on current charge basis as Assistant Professor Surgery from 23-2-1992 to 13-6-1992, therefore, the said period could not be counted and included in the period of his teaching experience as Orthopaedic surgeon. It was pointed out by the respondent and also Dr. Qazi M. Saeed Salik that he was a general surgeon when appeared in the examination of FCPS Orthopaedic in October, 1992 result of which was announced on 3-12-1992 as such, he became orthopaedic surgeon on 3-12-1992 whereas he was appointed on current charge basis as Assistant Professor Orthopaedic according to his certificate of experience from 14-6-1992 without being orthopaedic surgeon. It was argued on behalf of Dr.Ghulam Murtaza Cheema that order of his appointment on current charge basis and acting charge basis from 14-6-1992 onward having not been directly challenged before any Court by any aggrieved person, therefore, teaching experience acquired during this period could not be excluded from consideration by holding in, these collateral proceedings that the said orders of his appointment were not legal. Even if this argument is accepted for the sake of arguments and his teaching experience during this period of appointments on ad hoc and acting charge basis is ordered to be counted, even then he has no case, for admittedly, he had not passed examination of FCPS Orthopaedic and was not orthopaedic surgeon from 14-6-1992 to 3-12-1992, therefore, this period could not be counted towards his teaching experience as orthopaedic surgeon and if the same is excluded, he had not admittedly completed the required teaching experience of five years, therefore, is to be excluded from consideration. Faced with this situation, Dr. Ghulam Murtaza Cheema argued that even a General Surgeon under the rules, under some conditions, one of which was non-availability of a qualified Orthopaedic Surgeon, could be appointed as Assistant Professor Orthopaedic, therefore, the said period should also be counted towards his teaching experience as Orthopaedic Surgeon.
10. We are afraid, the argument in our view is absolutely without any force. It is established fact that the other Orthopaedic Surgeons were available at the relevant time, therefore, on this assumption, Dr. Ghulam Murtaza Cheema could not claim any benefit, therefore, by no stretch of any reason, his period from 14-6-1992 to 3-12-1992 could be counted towards ' teaching experience as Orthopaedic Surgeon, for he was not qualified Orthopaedic Surgeon during the said period, therefore, if the, said period is not included, he would not fulfil the requisite qualification as regards teaching experience, therefore, his writ petition was rightly dismissed by the learned Judge of the High Court.
11. In Civil Appeal No,20 of 1999, learned counsel appearing for the appellant only prayed for expunction of remarks made in paragraph 28 of the impugned judgment by the learned Judge of the High Court against the Government in relation to appointment made on ad hoc and current charge basis. His argument was that the said appointment had not been challenged directly before any forum by the aggrieved civil servants, therefore, in collateral attack, no derogatory remarks could be made in respect of those appointments against the Provincial Government. He is aggrieved of the remarks made in paragraph 21 of the judgment. He argued that the following remarks made, in the said paragraph are uncalled for and before making the same, the Provincial Government was not afforded any opportunity of hearing:-- "21. It is a matter of common knowledge that the privileged civil servant having influential family background get posting higher than their own 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." The argument has force. In order to decide the question directly involving in the case as to teaching experience, it was not necessary to go into the deeper analysis i,e, legality of the orders passed as regards appointment of a person on current charge and acting charge basis, therefore, the said remarks and any other similar remarks made in any other part of the judgment are hereby expunged.
12. For the foregoing reasons, civil appeal filed by Dr. Saleem Ahmad is accepted and his selection is hereby declared to be validly made, therefore, his case for appointment through direct recruitment against the advertised post shall be processed in accordance with law. Civil Appeal filed by Dr. Ghulam Murtaza Cheema is dismissed and civil appeal filed by the Government of Punjab is disposed of with the expunction of objectionable remarks as observed above.
13. There will be, however, no order as to costs.