1999 PLP (C (PLC(CS))

2nd Preference. Practical experience after post‑graduation. 3rd Preference. Practical experience before post‑graduation. (ii) If no such candidate is available with the aforesaid qualification, then: M.B.,B.S. or equivalent medical qualifications recognised by P.M.D.C. with F. C. P. S. (Surgery) or M. S. (Surgery)or equivalent qualification P.M.D.C.with 3 years practical experience in Orthopaedic Surgery in a recognised Institution after post‑graduation. 1st Preference. Teaching experience. 2nd Preference. Practical experience after post‑graduation.

13. Learned counsel for Dr. Ghulam Murtaza Cheema argued that the applications were invited on 3‑8‑1997 while Dr. Muhammad Saleem, respondent No.6 was appointed as Assistant Professor on 1‑10‑1990, therefore, he did not possess the requisite experience of 5 years for the reason that during this period he availed 280 days ex‑Pakistan leave.

14. The word "experience" has neither been defined in the Civil Servants Act, 1974 nor in the rules framed thereunder, therefore, we have to refer its dictionary meaning. I am fortified in my view by judgment of Honourable Supreme Court in case of Khizar Hayat Malik v. Muhammad Rafique Malik (1987 SCMR 78). The relevant portion reads as under:‑‑ "The amendment in the Recruitment Rules which is the subject matter of controversy has already been reproduced. The crucial words therein are "with five years' experience as such". The word "experience" has the Dictionary meaning (The Oxford English Dictionary Volume 3 page 430) 'practical demonstration', 'to fulfil in practice' ' knowledge resulting from actual observations or from what one has undergone'." The 280 days ex‑Pakistan leave availed by Dr. Muhammad Saleem was not normal incident of service like causal, medical including maternity leave; A normal gazetted holidays and recreation leave, therefore, this period of 280 days cannot be counted towards the experience. The P.M.D.C. which has been entrusted with the matter has given in writing that this leave cannot be counted as teaching experience. The Doctors who did not apply on account of lack of experience and now are qualified would be deprived of the opportunity to compete. It would amount to punish them for their gentleman conduct on one hand and pay premium to the petitioner for applying in spite of being not qualified on the other hand.

15. On the other hand, Dr. Muhammad Saleem, respondent No.6 has also challenged the eligibility of the petitioner mainly on the ground that he was never appointed as Assistant Professor. It was, however, conceded that he has been officiating as Assistant Professor. The educational qualifications for the post of Assistant Professor are the same as per rules as that of Senior Registrar because that one is promoted as Assistant Professor and then as Associate Professor. The qualifications are as under:‑‑ Name of Initial recruitment or transfer. the Post. Senior (i) M.B.,B.S. or equivalent medical Registrar qualification recognised by the P.M.D.C. and the following post graduate qualifications in the subject/speciality:‑‑ F.C.P.S. (Orthopaedic Surgery) or (2) M.S. (Orthopedic Surgery)or equivalent qualifications in the speciality recognised by P.M.D.C. or (ii) F.C.P.S. (Surgery/M.S. (Surgery) or equivalent qualifications recognised by the P.M.D.C. with Minor Diploma in Orthopaedic Surgery recognised by the P.M.D.C. (iii) If no such candidate is available with the aforesaid qualifications the:‑‑ M.B.B.S. or equivalent medical qualifications recognised by the P.M.D.C. with Post‑graduate Minor Diploma in Orthopaedic Surgery or equivalent qualifications recognised by the P.M.D.C. with 2 years practical experience in a recognised instructions before or after post‑graduation.

16. The admitted position is that the petitioner so far has not been promoted as Assistant Professor. I am mindful of the old rules, according to which the Senior Registrar could be appointed as Associate Professor but with the introduction of 1988 Rules these are two different steps. This was not all. The qualifications as reproduced above, for appointment to the post of Associate Professor is the teaching experience in speciality whereas according to posting orders the petitioner was appointed as 'Assistant Professor Surgery' that too on work‑charge basis. According to new rules Surgery and Orthopaedic Surgery are two different specialities, therefore, the petitioner was also not eligible to apply for the post.

17. It is high time to take judicial notice of the evil of giving higher post to the privileged one's may be spouse, son and nephew etc. of the elite. This evil was mainly in the Education and Health Departments but is now spreading in the other departments also. It gives rise to heart burning to the efficient, energetic and up‑right officers and rocking the entire service structure.

18. I am conscious of the fact that rules permit a posting against higher post on current charge basis or on acting charge basis, but the Government was fully conscious that this may give rise to nepotism, favouritism and posting as a result of corruption of all sorts. Therefore, the Government has made such posting subject to the following conditions:‑‑ (i) Such appointment is to be made in prescribed manner; (ii) the senior most civil servant belonging to the cadre or service who was otherwise eligible but did not possess the specified length of service could be appointed by the authority; (iii) that the authority was satisfied itself on the report of Selection Authority that no suitable officer was available and it was not expedient to leave the post vacant; (iv) no posting was to be made against a post likely td remain vacant for a period of less than six months; and (v) no appointment was to be made without the recommendation of Departmental Promotion Committee or the Provincial Selection Board. These are the basic requirements as are clear from para. 10‑A of the Punjab ESTACODE, 1996.

19. Dr. Cheema as is clear from his posting order was twice posted as Assistant Professor on current charge basis from 23‑2‑1992 to 13‑6‑1995 and 14‑6‑1995 to update on acting charge basis. This was in utter disregard of the provisions of ESTACODE. The appointment was neither deemed to be regular basis nor was to confer any right for regular appointment.

20. If the appointment was to be made for less than six months then again senior most civil servant who Was otherwise eligible in the opinion of the authority was to be posted on current charge basis. The appointment was to end automatically on appointment of a person on regular basis or on the expiry of six months whichever was earlier as per para. 10‑B of the ESTACODE.

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, favourtism 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. In this behalf reference can be made to Muhammad Zia‑ul‑Haq v. Government of Punjab 1996 PLC (C.S.) 134). The classic case of the Education Department where a wife of a very senior politician holding pivotal position in the Punjab Assembly was being repeatedly posted against a higher post in spite of the orders being struck down by the High Court in Constitutional jurisdiction and ultimately direction had to be issued that she would receive the salary only when Accounts Officer certified that she was working against the post of her entitlement. The privileged one should not be given posting higher to his eligibility as it is not only source, of corruption and inefficiency but it also discourages the up-rights, energetic one.

22. Dr. Saleem.Ahmad, as already noted, prayed that respondent to 3 be restrained not to compel respondents Nos.5 and 6 to amend the certificate of teaching experience of the petitioner earlier issued while direction to respondent No. 3 to declare the result at an early date on the basis of existing certificate of teaching experience in his favour. It is clear from the prayer that only anxiety is to protect the ill‑gotten certificate secured through under hand means. The writ cannot be issued to protect ill‑gotten benefits. The merit of the certificate has already been determined by this Court in the light of the submission of the parties, therefore, his petition is liable to be dismissed.

23. Now coming to the writ of Dr. Salik. He has also applied for the appointment as Associate Professor through initial recruitment and he at the same time seeking appointment by promotion and for that he has prayed for a direction to respondents Nos. l and 2 to consider him immediately and till his consideration there should be no appointment through initial recruitment. The prayer is mis‑conceived because posts are reserved separately for initial recruitment and promotion. As far the appointment through initial recruitment is concerned, the same is under process with the Public Service Commission. It seems he was prompted to file this petition in view of the injunction issued by the High Court. This matter is being decided, therefore, the Commission would be at liberty to make the recommendations in accordance with law rules and merits.

24. As far as appointment through promotion, the competent authority is under legal obligation to consider the petitioner for promotion strictly in accordance with law and rules but like other matters this is also ignored. The result is that civil servants are compelled to seek direction from the Courts. This attitude callous cannot be appreciated. The promotion although is not a vested right yet it is desire of all civil servants to get the same in accordance with law at the proper time. The Law Commission of Pakistan has already recommended that promotion shall also be made a vested right of a civil servant like other terms and conditions of service.

25. The upshot of this discussion is that writ petition of Dr. Ghulam Murtaza Cheema is accepted and that of Dr. Saleem Ahmad (Writ Petition No.295 of 1998) is dismissed. The result is that it is held that Dr. Saleem Ahmad was not qualified to apply for the post of Associate Professor as he lacked necessary teaching experience of five years. At the same time it is also declared that Dr. Ghulam Murtaza Cheema was also disqualified to apply for the post for the reason that he was not promoted on regular basis as Assistant Professor and secondly he did not have the teaching experience in the speciality i.e. Orthopaedic Surgery. The third writ petition by Dr. Salik is disposed of as per observations made above. No order to costs.