2019 PLP (C (PLC(CS)N)

SYED ARSHAD ALI, J.

Dr. Mirza Faisal Ahmed Rafiq, through the present constitutional petition has challenged the appointment orders of respondents Nos. 9 and 10 as Assistant Professor Neurosurgery in Ayub Medical Institution, Abbottabad and also seeks writ of mandamus to respondents to appoint the petitioner against the post of Assistant Professor Neurosurgery.

2. The respondents were put to notice, who have filed their para-wise comments.

3. Learned counsel appearing on behalf of the petitioner while reiterating the contents/grounds as narrated in the petition has attacked on the appointment of respondents Nos. 9 and 10 on the following grounds:- (i) That according to merit list, which was initially displayed before interview, the petitioner's merit position was high on merit as compared to respondents Nos.9 and 10. (ii) That respondent No.9 was simultaneously serving as Lecturer in Pathology Department of Ayub Medical College and was getting salary and at the same time he was undergoing his postgraduate neurosurgical training in the department of Neurosurgery of Ayub Teaching Hospital, Abbottabad, therefore, under the guidelines issued by the PM&DC, trainees, who were undergoing FCPS are not allowed to work in other department for financial benefits. (iii) That the selection committee was illegally constituted as respondent No.8 was holding the post of Director Administration as additional charge and in fact he was Deputy Director Administration, therefore, his inclusion in the selection committee was not in accordance with rules. (iv) That in the advertisement one post of Assistant Professor Neurosurgery department was published against which two incumbent respondents Nos. 9 and 10 were appointed.

4. Learned counsel appearing behalf of respondents have reiterated their stance as narrated in their comments.

5. Arguments heard and record perused.

6. The close perusal of the record would unfold that respondents' institution through an advertisement sought applications against the vacancies which include one post of BPS-18 Assistant Professor Neurosurgery. According to the advertisement the qualification for the post was:- (i) MBBS or equivalent medical qualification recognized/ registered by PM&DC. (ii) PM&DC recognized Level-III qualification in respective subject like FCPS/MS/MD or other experience of Level-III qualification in the specialty approved and registered by PM&DC. (iii) No Level-II diploma holder be eligible for appointment/promotion. (iv) Required experience. Three years teaching experience in the respective subject as a Senior Registrar in a registered institute if qualification is general. No experience is required in case of sub-specialty qualifications.

7. Petitioner along with respondents Nos. 9 and 10 and one another were aspirant for the said position. All the applicants were interviewed and the merit position, which was placed before Board of Governor of Ayub Medical College, Abbottabad was as following:- S.No. Name Pre Interview Marks Interview Marks Total Remarks

1. Dr. Shahbaz Ali Khan 32 15 47 selected

2. Dr. Baynazir Khan 30 17 47 selected

3. Dr. Mirza Faisal A. Rafique 33 12.80 45.80

4. Dr. Naeemul Haq 27 11.20 38.20 It was also recommended to the Board of Governors in the aforesaid minutes of the meeting of the selection committee that due equal marks of Dr. Shahbaz Ali Khan and Dr. Baynazir Khan, the former was recommended against the available vacancy of Assistant Professor Neurosurgery whereas Dr. Baynazir Khan was recommended against the vacant post of Assistant Professor Endocrinology, which post was transferred to Neurosurgery Department. However, one member of selection, committee Professor Dr. Aftab Rabbani did not sign the minutes of meeting. The Board approved the said minutes of meeting, wherein non-signing the recommendation by Professor Dr. Aftab Rabbani was held as his dissent.

8. Regarding his first objection that the petitioner was higher on merit, the perusal of recommendation of selection committee shows that the petitioner had obtained higher marks at pre interview stage, however, in total calculation when the interview marks of the candidates were added his merit position was lower than the respondents Nos.9 and

10. The assertions that selection committee had awarded more marks to respondents Nos.9 and 10 as members of the selection committee were the immediate officers of respondents Nos.9 and 10 have no force. Indeed, the constitutional court has no jurisdiction to interfere in discretion of a selection committee on bald allegation of unsuccessful candidate. Reliance can be placed on Arshad Ali Tabassum v. The Registrar Lahore High Court 2015 SCMR 112, Muhammad Ashraf Sangri v. Federation of Pakistan 2014 SCMR 157 and Asif Mehmood Chughtai v. Government of Punjab 2000 SCMR 966.

9. Moving on to the Second objection that one of the respondents was simultaneously working in Ayub Medical College in department of Pathology and was also undergoing postgraduate studies, which is contrary to the PM&DC regulations. In comments respondents have stated that said regulation is not binding upon the respondents' institution. We do not agree with the submission of the official respondents that the guidelines issued by the PM&DC are not binding upon them for two reasons that PM&DC regulation being issued under the Federal Statute has binding effect and secondly even under section 7 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 any doctor selected or promoted for postgraduate medical training shall be treated on leave without pay and may be entitled only for stipend fixed by the Government from time to time for such training. However, violation of the said guidelines will not render a degree of FCPS/MCPS obtained by the said respondents as the same has not been provided in clear terms by Act and Regulations mentioned above. Therefore, the assertions that respondent No.9 had simultaneously undergone the postgraduate program and had also worked for gain in the sister institution will not nullify the degree obtained by him. However, the department may proceed against him for violating the relevant rules.

10. Regarding the constitution of selection committee that the petitioner could not cite any Rules, which bars the inclusion of Deputy Director Administration in the said committee. More particularly at the relevant time when post of Director Administration was vacant due to his retirement.

11. Moving further to the final objection of the petitioner that in the advertisement only one post of Assistant Professor Neurosurgery was advertised against which two persons have been appointed. In this regard, the minutes of meeting of the selection committee, which was duly approved by the Board of Governors can be referred, wherein it has been recommended that Dr. Baynazir Khan respondent No.10 was recommended against the vacant post of Assistant Professor Endocrinology and the Board of Governor had approved the transfer of one post of Assistant Professor Endocrinology to the department of Neurosurgery. Indeed, it is the prerogative of the respondents to transfer any post from one department to another department keeping in view requirement of the department. The courts have no gadgets to gauge the requirement/discretion of department to transfer any post from one department to another department.

12. In view of the above, we do not find ourselves inclined to interfere in the impugned appointments, therefore, this petition being devoid of any merit, is hereby dismissed. MH/336/P Petition dismissed.