The decision of the Government of Punjab backed by the approval of the Governor Punjab/the competent authority, to fill up all vacant posts of Specialist Doctors at District Headquarter and Tehsil Headquarter Hospitals in Punjab in order to provide better health cover to the community at Tehsil and District level, was conveyed by the Secretary Health, Government of the Punjab, Health Department to the District Nazims of all Districts in Punjab vide letter dated 14.11.2002. Advertisement for such recruitment of Specialist Doctors on contract basis was to be published by the District Governments. It was thus that the District Co-ordination Officer, Gujranwala advertised the posts of Specialist Doctors to be filled up, which included a Cardiologist and a Urologist. The petitioner in Writ Petition No, 17253/03, who was one of the candidates for the post of Cardiologist and petitioner in Writ Petition No, 17254/03 who had applied for appointment as Urologist, have filed these two petitions with the grievance that the Selection Committee was not legally constituted and the recommendations made by such Committee are illegal and without lawful authority. In view of the identity of the controversy and that both the petitions can be disposed of by a common order, the same have been heard together and being disposed of accordingly.
2. The learned counsel for the petitioners in both these petitions contends that procedure and criteria, which had been prescribed by the Government and conveyed so to the District Government has not been followed and adhered to inasmuch as the Committee, which had to comprise a Professor of requisite specialty, was not made member of such Committee and the process undertaken by the Committee consisting of an Assistant Professor is violative of the procedure prescribed and thus is illegal. According to him mere appearance of the petitioners before the Committee would not estop them from raising such objection, which goes to the very root of jurisdiction of the matter; in view of Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 S.C. 314) and Messrs Pioneer Cement Limited through Kanwar lqbal Talib, duly authorized Director v. Province of the Punjab through Secretary, Local Government Department, Lahore and another (2000 CLC 54). He has also endeavoured to show that the petitioners in these petitions had better merit and experience and have illegally been ignored on an erroneous view that they were average. According to him the petitioners being in Government service were entitled to relaxation in upper age limit and were not overage.
The learned Additional Advocate General Punjab and the learned counsel for the respondents have vehemently contested the petitions. It is contended that since the petitioners appeared before the Committee and participated in the process of selection, they were estopped to raise any objection relating to the Constitution of the Committee. It is contended that inclusion of a Professor in the Selection Committee was not mandatory requirement and even an Assistant Professor could also be included in the Committee. It is further contended that the petitioners were estopped to agitate about the improper Constitution of the Committee or the selection made also for the reason as they were overage. In support of their respective contentions reference has been made to Maqbool Ahmad Maqbool v. The-Province of Punjab and 10 others (1971 SCMR 727), Abdur Rehman Janjua v.
Punjab Bar Council and 3 others (PLD 1983 Lahore 47), and Mrs. Saeeda Bukhari v. Secretary, Ministry of Education, Government of the Punjab, Lahore and another (PLD 1988 Lahore 553).
3. The respective contentions of the learned counsel for the parties have been considered in the light of the comments and the material on the record.
4. There is no denying the fact that the recruitment of Specialist Doctors had to be made and undertaken pursuant to the decision of the Government of Punjab as conveyed through letter dated 14.11.2002 to the District Nazim. The criteria and the procedure laid down therein provided for the Constitution of a Selection Committee, that is : The selection of Specialist doctors shall be made by the following Selection Committee:-- (a)District Co-ordination officer.Chairman (b)Executive District Officer (Health)Member (c)Medical Superintendent District Head quarter Hospital. Member A professor of the concerned SpecialtyMember (d)Representative of the District NazimMember After advertisement in the national press, the District Co-ordination Officer, Gujranwala, vide letter dated 25.10.2003 'requested the Secretary Health, Government of the Punjab, Health Department to detail the professors of the concerned specialties for the Constitution of the Selection Committee.
As a sequel, the Health Department Government of the Punjab requested the Principal, King Edward Medical College, Lahore to depute Professors of the specialties to act as Members of the Selection Board. This was vide communication dated 30.10.2003. In the comments the position summarized is that: "In order to fulfill the requirement of one member i,e, Professor of concerned specialty, this office approached the Secretary health, Government of the Punjab, Health Department Lahore .vide No, 1281/E-1 dated 25.10.2003 (Annex-D) to depute the Prof. Of Cardiology for recruitment of Cardiologist for DHQ Hospital, Gujranwala. On this request the Government of the Punjab Health Department ordered the Principal, KEMC, Lahore for deputing the Professor of concerned speciality vide No, SO (SC)4-24/2002 dated 30.10.2003 (Annex-E). In compliance to the Govt. direction available Dr. Shahid Hamid, Assistant Professor KEMC, Lahore participated as member of the District Selection Committee."
It is thus an admitted position that instead of a Professor of the concerned specialty an Assistant Professor participated in the selection process of the Specialist Doctors. In this context it is to be seen as to whether true compliance of the criteria and procedure prescribed for such selection was made. In the letter dated 14.11.2002, it was emphasized that the selection of Specialist Doctors shall be made by the Committee consisting of a Professor of the specialty. There appears to be a wisdom and rationale behind the insistence of inclusion of a Professor of the concerned specialty as member of the Committee, that an experienced Specialist in the field should make selection, whereas the experience of an Assistant Professor may not equate and match with that of a Professor. The experience and length of service of a Professor would have been beneficial in making a right selection. In such circumstances, when the selection of a specialist doctor was to be made, the underlying idea of the presence and participation of a Professor of. the concerned specialty was not difficult to discern. Such requirement was object oriented, which could not be disregarded or waived. In case, the Professor of the concerned specialty was not available on a particular date, the meeting could be postponed for few days. In the context of the selection of a Doctor of a particular specialty, the presence of the Professor of that specialty was essential and necessary, which could not be condoned or overlooked. The reliance of the learned counsel for the contesting respondents upon Maqbool Ahmed Maqbool's case (Supra) is inapt inasmuch as in that case the challenge made by the petitioner was that "a Single Member of the Commission was not qualified to assume the functions of the Public Service Commission or to conduct its meetings or business when the minimum quorum, as laid down by law, is of two Members of the Commission". The writ petition was dismissed by the High Court in view of Rule 8 of the Rules of Procedure of the West Pakistan Public Service Commission, which provided that "The Commission may refer any matter to an individual member or to a Committee consisting of members and such other persons, if any, as the Commission may appoint, for consideration and report to the Commission." It was in view of this enabling provision that the Hon'ble Supreme Court upheld the view taken by the High Court that "it cannot be said that the interview of the candidates in this case by a single member of the Commission was unlawful, the holding of interview by that member having been authorized under rule 8." It was in this context that the conduct of -the petitioner in not objecting to the interview by a single member was noted by their Lordships. Since in the precedent case rule itself provided for the interview to be conducted by a single member, the petitioner who had appeared before the single member for interview was non-suited. In the present case, however, there is no such rule invoke-able rather the principle stated in Chittaranjan Cotton Mills Ltd. v. Staff Union (PLD 1971 S.C. 197) is more appropriately attracted, wherein it was held that "Where the Court is not properly constituted at all the proceedings must be held to be coram. non judice and, therefore, non-existent in the eye of law. There can also be no doubt that in such circumstances "it could never be too late to admit and give effect to the plea that the order was a nullity", as was observed by the Privy Council in the case of Chief Kwame Asante, Tredahone v.
Chief Kwame Tawia." It was thus held that the proceedings before the Court, which was not properly constituted, were coram non judice and were declared to be void. In Haji Abdul Sattar v.
Additional District Judge, Rawalpindi and others (1984 SCMR 925) it was held that The appellant's objection to the jurisdiction of the Rent Controller based on the ground of the property being an industrial concern had no doubt been taken for the first time in the writ petition but there is no absolute rule that objection to jurisdiction of the Rent controller if not taken before him or the appellate Court can in no case be taken in the writ jurisdiction. In this connection reference can be made to the decisions of this Court in Chittaranjan Cotton Mills Ltd. v. Staff Union (1) and -Rashid Ahmad v. State (2)." Likewise was the principle stated and view taken in Muhammad Afzal v. Board of Revenue, West Pakistan and another (PLD 1967 S.C. 314). I, therefore, do not find force in the objection that the petitioners once having appeared before the Committee were estopped to raise objection to the very Constitution of the Committee itself.
5. It may be observed that when a thing is prescribed to be performed in a particular manner and by a particular person, it has got to be done accordingly. Some significant observations appearing in Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others (PLD 1972 Lahore 316) can appropriately be made use of : "In the Province of West Pakistan v. Jogesh Chandra Lodh (2) while dealing with a case of requisition of property under the (Emergency) Requisition of Property Act (XIII of 1948) it was observed : "When powers of the Provincial Government have been delegated to an officer that officer is substituted for the Provincial Government for the purpose of Section 3, with the result that it is he who has to form an opinion that it is expedient or necessary to requisition any property for the administration and development of the Province or for any other public interest connected therewith. The forming of the opinion is a sine qua non for making of an order under Section 3." It was further held: "It was perfectly clear from these proceedings that the Additional District Magistrate who made the order under Section 3 merely acted as a tool of the Land Acquisition Department or the Government and did not at all apply his mind to the question 'whether it was necessary or expedient to requisition the property for a public purpose. On this ground alone, therefore, the order must be held to be invalid". The Municipal Committee and after its supersession the Administrator alone was competent to order the removal of the petitioner under Section 29 of the Ordinance read with Article 45(4) of the Order. When a statute confers a certain duty on an officer it is that officer who has to make up his mind and pass the order in accordance with law and exercise his discretion uninfluenced by any opinion of his superior officer." in Administrative Law by Sir William Wade.
Eighth Edition (2000) at Page No, 315 it has been noted that: "An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred,, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the Courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees br delegates, however expressly authorized by the authority endowed with the power. One aspect of this principle is the rule that the participation of nonmembers in the deliberations or decisions of a collective body may invalidate its acts. The decision of a disciplinary committee, for example, is like to be invalid if any non-member of the committee has taken part in its proceedings." Strict adherence and observance of criteria i,e, the presence of Professor of concerned specialty assumes importance and significance in view of the duty to be performed by the Selection Committee i,e, the selection of Specialist Doctors. Therefore, in the absence of Professor since the Selection Committee was not legally and properly constituted as per the mandate of the competent authority, the process undertaken and selection made cannot be blessed with legality.
The recommendations/selection made by the Committee have to be declared as illegal and of no effect. The process of selection, therefore, will 'have to be undertaken by appointing and including in the Selection Committee the Professors of concerned specialty i,e, Cardiologist and Urologist.
Since the scrutiny and assessm ent of respective merits or suitability of a particular candidate for a particular post does not fall within the domain of this Court in writ jurisdiction, I have refrained from touching that aspect of the matter as it will be for the legally constituted Selection Committee to assess the respective merits of the candidates. Such Committee will be free to make its own assessm ent on merits. The writ petitions are accepted to the extent indicated above. No order as to costs.