1991 PLP (C (PLC(CS))

Representation

• Ch. Masood Zakaria for Petitioner.
• Muhammad Iqbal Khichi, Addl. A-G. with Muhammad Rashid Malik for Respondents Nos.1 and 2.
• Masood Ahmed Riaz and Ch. Mushtaq Masood for Respondent No.3.
• Rana Muhammad Sarwar and Mian Pervaiz Akhtar for Respondent No.4.
• Aurangzeb Mirza for Respondent No.6. .
• 4. On the other hand learned counsel for respondent No.3 has argued that the petitioner has no locus poenitentiae to file the petition. In this behalf he has relied on the judgment of this Court reported as Abdul Aziz v. Muhammad Ali and others (P L D .1967 Lah. 762). It is submitted that the so-called enquiry was conducted by Clerk, therefore, does not merit any consideration. In this behalf it is added that in any case the enquiry was quashed by the Government while it was ordered that further enquiry in the matter should be conducted by the enquiry team of Chief Minister. The next submission is that this is a case of disputed facts and therefore, this Court cannot undertake the adjudication especially when an enquiry ordered by the Government is yet to be finalised. It is added that the certificate of experience was duly verified by PMDC through the certificates issued by it, therefore, certificates of respondents Nos.5 and 6 are of no legal consequence. The next submission in this behalf is that certificates may be defective or lacunae but admittedly the same were issued by respondents Nos.5 and 6 who never denied the same either before the Departmental authorities or Public Service Commission or in written statement in this Court. The certificate was issued by respondent No.5 as M.S. because Dr. Khurshid Ahmad, the then M.S. was not available. It is submitted that his client had unparallel qualifications: Since there were very limited course of additional Medical. Officers available, therefore, he worked on honorary basis to gain experience. It is maintained that it is for this reason neither any appointment letter is there nor his name appears on any record like attendance register etc. It is alleged that the Professors have created monopolies. The result is that they are not allowing posting of FRCS at Lahore. On the other hand they get the M.S. who were their pupils and had worked with them, just for two years or so and bestowed the degree of M.S. 1t is added that in this way the fate of the plea have been left in the hands of two Professors. It is added that in other countries the M.S. Degree is granted after one has done FRSC after doing M.B.,B.S. and gave 3 years' experience but in our country unfortunately this is not followed. T1he next submission is that the relief in the Constitutional jurisdiction is discretionary and the petitioner is not entitled to relief m view of the circumstances explained. In this behalf learned counsel has referred to Standard Printing Press v. Sindh E.S.S.I.1988 SCMR 91, Lt.-Col. Shah Dad v. Border Area Allotment Committee etc. 1986 SCMR 88. Abdul Aziz and others v. Noor Mai 1985 CLC 2546 and Azadar Ussain Zaidi v. PIA Corporation PLD 1987 Karachi 14.
• Mr. Masud Riaz, Advocate, who also appeared for the said respondent added that the appointments are to be made in view of section 4 of Punjab Civil Servants Act, in accordance with the rules while rule 18 of the appointment rules deals with initial appointment. It is provided that Government has to determine experience or equivalence of experience. This is their statutory obligation and cannot therefore, be interfered. It is submitted that at the most the Government can be given direction in this behalf. He summed up the arguments that the certificates of experience are valid and especially certificate issued by P.M.D.C. was binding on the Public Service Commission. He submitted that the date of experience m accordance with rule 18(2) is the last date of application.
• 4-A. Mr. Aurangzaib Mirza, Advocate for respondents Nos.5 and 6 submitted that the certificates were issued by his clients. They owned it and same is the position in this Court, therefore, the question of certificates of experience being bogus etc. does not arise.
• ?5. Rana Muhammad Sarwar, Advocate, appearing for respondent No.4 argued that there was no complaint as far as his client is concerned. The recommendations were accepted as legal. The Public Service Commission recommended only four persons therefore, there was no choice with the Government and there being no other person eligible from 1st category therefore, his client was rightly appointed. It is added that the recommendations are legal and- binding. He raised a preliminary objection to the effect that the petition is barred by laches as it was filed after fourteen months of the appointment of his client. The discretion cannot be exercised in favour of the petitioner and in any case, the writ is not, to be issued as a matter of course. The learned counsel in this behalf has referred to A.M. Khan Leghari v. Government of Pakistan P L D 1967 Lah 227, Asseff Ahmad Ali v. M. Khan Junejo P L D 1986 Lah. 310, Ch. Muhammad Anwar v. Muhammad Rashid P L D 1987 S C (AJ&K) 41.
• He also reiterated the argument of the learned counsel for respondent No.3 and added that roving enquiry is not possible in writ petition and delay is relevant and material. In this behalf he referred to the cases of Syed Muzaffar Ali Burney and another v. Hafiz Muhammad Ahmad and 2 others P L D 1989 SC 162, Haji Khizar Hayat v. Sarfraz Khan and others P L D 1968 Lah. 381 and Khan Abdur Rehman Khan v. Saadullah Khan P L D 1956 Pesh. 58.
• 6. Mr. Muhammad Iqbal Khichi, learned A.A: G appearing for respondents Nos.l and 2 argued that the learned counsel for respondent No.3 had wrong notions about the degree of M.S. The same is granted as a result of examination both in written and oral arranged by the Punjab University. This is in addition to the practical experience of 3 years. On merits of this case he submitted that qualification and experience are one of the basic requirements and the date will be the closing date of application, which in this case was 27th October, 1988. He maintained that the Public Service Commission has acted bona fide as on the one hand it tried to have contact with the complainant Dr. Moeen Ahmad Ghori but could not find anything. On the other hand, on telephone it was confirmed from respondents Nos. 5 and 6 whether they have issued the certificates in dispute or not. He submitted that the respondent No.2 while formulating the recommendations inadvertently treated respondent No.4 in category I while according to the policy of the Public Service Commission the list of two categories were to be prepared separately and then Zonal allocation made. He submitted tat after enquiry by Ghulam Hussain Sial, Assistant of the Health Department, the enquiry was conducted by Mrs. Farkhanda, concerned Deputy Secretary and she also found the certificates bogus. He maintained that the petition is barred by laches. In this behalf he referred to the case of A.M. Khan Leghari v. Government of Pakistan P L D 1967 Lah. 227.
• 9. Rana Muhammad Sarwar, Advocate, on behalf of respondent No.4 while replying to the prayer clause submitted that the petitioner and other 3 were rejected, therefore, they cannot be considered for appointment instead of respondents Nos.3 and 4 especially when the petitioner did not challenge the appointment of respondents Nos.3 and 4.
• 10. Ch. Mushtaq Masud, Advocate while summing up the arguments on behalf of respond No.3 argued that Dr. Khurshid Ahmad when contacted verified the issuance of certificate of experience by respondent No.1, therefore, whether it was issued by respondent, No.5 authorisedly or illegally, has become immaterial. In this behalf he has placed on record photocopy of the duplicate certificate dated 8-10-1988.

Judgment & Decree