2014 PLP 1322 (YLR)

MAZHAR ALAM KHAN MIANKHEL, J.

By this single judgment, we propose to decide Writ Petitions No.1918-P and 1975-P of 2013 as a common question of law and fact is involved in both these petitions.

2. Through Writ Petition No.1918-P of 2013, the petitioners namely, Dr. Abid Ali and others have asked for the issuance of an appropriate writ, declaring that the Notification bearing No.5779-81/PGMI, dated 3-7-2013, issued by the Dean, Post Graduate Medical Institute, Hayatabad Medical Complex, Peshawar, whereby, it has been notified that the seats for induction into "Stipendiary Slot of FCPS Part-II" would be adjusted on seniority basis, being without jurisdiction, nullity in the eye of law, is of no effect whatsoever. They have also asked for the issuance of an appropriate writ directing the respondents to make induction/selection into "Stipendiary Slot of FCPS Part-II" strictly in accordance with the procedure, provided in the Prospectus and purely on merit list of the candidate for induction, July, 2013.

3. Through Writ Petition No.1975-P of 2013, the petitioners namely, Dr. Mohibullah Khan and others, have asked for the issuance of an appropriate writ directing the respondents to induct the candidates i.e. the petitioners and others in FCPS Part-II training in accordance with batch-wise/seniority basis.

4. The stance of the respondents in this petition and the petitioners of the connected writ petition is the same.

5. The learned counsel appearing on behalf of the petitioners of the present writ petition contended that when from the very inception of PGMI in 1984, the Stipendiary TMO slots were inducted/selected strictly on merit basis and not vice versa, how the respondents could ignore the law/policy by selecting/inducting the candidates to FCPS Part-II on seniority basis, which is not only discriminatory one but also against the law as well as Constitution of Islamic Republic of Pakistan, 1973 and also in violation of Rule 17 of the Pakistan Medical and Dental Council (Post-Graduate Education) Regulations, 2011, as such, the act of the respondents is liable to be condemned. The learned counsel by concluding his arguments lastly contended that when it is a settled principle of law that in every institution for admission/induction/selection purposes, merit is considered to be the sole criteria but in the present case, issuance of impugned notification by the respondents, is not only without jurisdiction but also hurts the sentiments of the petitioners and stampeding the law in this regard.

6. As against that, the learned counsel appearing on behalf of the respondents i.e. Post-Graduate Medical Institute by opposing the contentions, so raised by the learned counsel for the petitioners, vehemently argued that the candidates, after passing of FCPS Part-I, have to get admission in FCPS Part-II within three years, failing which, passing of Part-I becomes redundant/useless and they have to repeat the Part-I, so, in order to secure the future of such candidates, criteria for adjustment on the basis of seniority was being introduced through the said notification. The learned counsel lastly argued that since the notification, impugned herein, is not only in accordance with law but also issued in good faith so as to save the future of the deserving old/senior: candidates, is not open to any interference.

7. The learned counsel appearing on behalf of the petitioners of the connected writ petition by advancing his case in support of notification and further elaborating the stance of the official respondents contended that since the petitioners have passed FCPS Part-I in the earlier batches, they are entitled to be inducted first into the FCPS Part-II training, otherwise, on expiry of the stipulated period, passing of Part-I, would become useless but, under the procedure, provided in the prospectus, they are being deprived from their due rights and the candidates, who are much junior to them, are going to be inducted into the FCPS Part-II, which action of the respondents is liable to be condemned by issuing a writ in this regard.

8. We have gone through the record carefully and considered the submissions made by the learned counsel for both the parties.

9. Before we proceed further with the matter, it would be worthwhile to reproduce herein below the criteria for induction into "Training Slots of Part-II FCPS Training Programme, PGMI Khyber Pakhtunkhwa", which has been provided in the "Prospectus" of the Postgraduate Medical Institute, Peshawar and the relevant provisions thereof read as under:-- (1) Applications (i) Applications for all the posts shall be invited by the Dean. PGMI through an advertisement in the press in April/May for induction in the training course in July each year. The last date for submission of applications shall be definite. No applications shall be accepted after the due date. (ii) Applications must be made on the specific admission form in Prospectus available from the Dean's office, PGMI, HMC, Peshawar. (iii) Applications should be delivered personally or posted through a registered post to the Dean's office at PGMI, HMC well in advance. Receipt should be obtained at the time of personal delivery. (2) Documents Required. i. ii. iii. iv. v. vi. vii. viii. ix. x. xi. xii. xiii. xiv. xv. xvi. (3) Award of Merit Marks for Induction

1. The merit marks shall be taken as an aggregate percentage of all professional examinations comp-rising the MBBS degree. Example: 1st Prof. Examination 700/1000 = 70% 2nd Prof. Examination 650/1000 = 65% 3rd Prof. F Examination 600/1000 = 60% 4th Prof. Examination 700/1000 = 70% Aggregate percentage = 66.25% 2. 2.5% marks shall be deducted for each additional attempt in each Prof Examination i.e. if the first professional examination is passed on 2nd attempt and 70% marks obtained, it will be counted as 67.5% EXAMPLE 1st Prof. Examination 700/1000 = 70% Less 2.5% Marks = 2.5% = 67.5% (4) Selection and Related Matters The selection will be done by the selection and induction board of PGM1 (i) The applicant shall appear before the selection board of PGMI on the given date and time. (ii) . (iii) . Final rules and regulations of PM&DC for postgraduate medical training shall apply. (iv) Candidates shall be selected for all clinical units in all teaching hospitals on merit. The list of clinical units in the PGMI constituent and affiliated hospitals are shown at the end of this section. The number of candidates selected for a unit shall depend on the available slots. (v) Candidates selected for a clinical unit shall not be allowed to change their supervisor, unit or specialty except in special circumstances like transfer/retirement of a Supervisor or any other valid reason. A special committee for this purpose will meet periodically to process each application. (vi) A candidate selected for a particular hospital will not be allowed to change the hospital of the initial selection. (vii) A candidate having completed his training in one specialty shall be allowed to undertake training in another specialty only after passing the FCPS-II examination in the parent specialty. (viii) Candidates completing training in a specialty and passing the FCPS examination and wishing to do Sub-specialization in a related field shall be considered for selection without fulfilling the three years mandatory period of Government service between two training periods. (ix) Repeat admission in the same course shall not be allowed (x) . (xi) . (xii) . (xiii) . (xiv) . (xv) . (xvi) . (xvii) . (xviii) . (xix) . (xx) . (xxi) Preference. * (xxii) . *(Note) This clause of preference to the students/graduates of public sector medical colleges over the students/Graduates of private medical colleges was declared against the mandate of the Constitution of Islamic Republic of Pakistan, 1973 on the touchstone of discrimination vide judgment, delivered in the case of Dr. Muhammad Daud etc. vs. Government etc. in Writ Petition No.2028-P of 2012, dated 19-2-2013 by this Court.

10. At this stage, relevant Rule of the Pakistan Medical and Dental Council (Postgraduate Education) Regulations, 2011 also requires verbatim reproduction, which reads as under:--

17. Selection and Registration of Postgraduate Trainee.

(1) The teaching institution must ensure that the Council recognized programs select from among eligible applicants on the basis of residency program, related criteria such as their preparedness, ability, aptitude, academic credentials, communication skills, and personal qualities such as motivation and integrity. These may be evaluated by considering performance in MBBS or/and a competitive test conducted for the purpose. The Council-accredited programs must not discriminate with regard to sex, race, age, religion, color, national origin, disability, or any other applicable legally protected status. (2) All postgraduate institutions which have recognized P.G. courses, get their postgraduate students registered by the Council and where after the obtained qualifications of these students shall be registered by the Council.

11. Perusal of the record would reveal that the criteria regulating the induction into training slots of Part-II FCPS is provided in the prospectus for the year, 2012 and onward and all the relevant rules of procedure have been reproduced herein above. For the above referred induction, applications for 210 seats were called for and the last date for receipt thereof was 20th June, 2013. Some 357 candidates applied for the same and, on the basis of criteria, referred to above, merit list according to their aggregate percentage was prepared. Objections, if any, were also called for upto 2-7-2013 and dates for interview were also notified as 4th & 5th of July, 2013, when, in the meanwhile, the Dean, PGMI, issued the impugned notification dated 3-7-2013 for adjustment of the seniority of prospective TMOs in view of sanctioning of 200 additional seats by the courtesy of all the concerned and thereby postponed the interviews till mid of July, 2013. This, altogether change in the criteria was being introduced on the basis of 200 additional seats but, till today, no such seats have been sanctioned by the concerned, as was confirmed by the learned Additional Advocate-General, during the course of hearing.

12. If the matter of seniority of prospective TMOs is considered in such a way, especially when, there are no additional seats, then the candidates, who have attained a position on the merit, that too, on the basis of prescribed criteria, definitely will have to suffer. Justification for such adjustment would have been there, Had there been said additional seats but in absence of the same, the prescribed criteria can't be changed/overlooked. The arguments of the learned counsel for the petitioners in the connected writ petition that the adjustment of the seniority of the prospective TMOs is on the basis of first come, first served and this criteria is followed throughout the country but the learned counsel was unable to lay hand on any one of such examples. We are sorry to hold that a sudden summersault, having no back of the statute, by introducing entirely a new and alien to the Rules/Prospectus criteria can't be allowed to be adopted just on the whims and caprices of the few. This attempt having no support from the law, on the face of it, appears to be based on mala fide and just to accommodate the loved ones of persons having a pivotal role and say in the system. To enjoy the protection of law and to be treated in accordance with law is an inalienable right of every citizen as provided in Article 4 of the Constitution of Islamic Republic of Pakistan, 1973. Similarly, Article 25 of the Constitution ensures the equality of all the citizens before the law and entitled them to be equally protected. Whereas, Article 37(C) of the Constitution, provides accessibility to all for professional and higher education on the basis of merit. So, such deviation, from the prescribed criteria, can't be allowed.

13. Besides the above all, the Dean of the PGMI has no authority to introduce a totally new and alien criteria to the procedure laid down in the prospectus, formulated by a committee of three Professors, one Chairman and two Members and an Associate Professor as its Secretary. So, such deviation from the prescribed criteria is without jurisdiction and against the law. So, he has violated the law in vogue and there is no room for the old students to be inducted by bypassing the qualified and legible candidates, who stood on merit. Therefore, in the peculiar facts and circumstances of the case, we're left with no option but to allow Writ Petition No.1918-P of 2013, titled Dr. Abid Ali and others v. Government of KPK and others.

14. For the reasons discussed above, we admit and allow the aforesaid writ petition (Writ Petition No.1918-P of 2013), set aside the Notification dated 3-7-2013, impugned herein, being illegal and against the law and direct the respondents to make induction/selection purely in accordance with the merit list of candidates for Induction July, 2013 by following the procedure provided in the law. During the course of hearing, a great concern was shown by some of the candidates that the applications of unqualified and ineligible candidates were entertained by the respondents after the cut-off date for submission of application forms. So, we further direct the respondents/concerned authority to be careful that no application, submitted after the cut-off date, be entertained/ considered and the persons, unqualified and ineligible, shouldn't be considered at all and don't repeat such like attempt by issuing such-like illegal notifications and whatsoever, the criteria they want to adopt should explicitly be prescribed in the Rules/prospectus.

15. Some of the candidates, who had filed a Civil Miscellaneous Application for their impleadment being candidates of Dentistry by alleging that they have been greatly discriminated by allocating a quota not suitable as compared to their strength. Since it is not the matter for consideration before us and we, as a Court, can't legislate for them but can direct the policy makers to accommodate the candidates of all the relevant fields in Medical Science to avoid the aspect of discrimination.

16. In view of the above, the connected Writ Petition No.1975-P of 2012, titled Dr. Mohibullah Khan and others v. PGMI and others, being devoid of merits is dismissed in limine. JJK/473/P Petition dismissed.