1988 PLP (C (PLC(CS))

ABDUL QADEER CHAUDHRY, J.--The petitioner was appointed as Medical Officer by the Respondent No.l and was posted at K.M.C. Hospital Karachi. According to the petitioner she completed Post Graduation (M.C.P.S.) in Dermatology and Venereology in 1979. She made representation on 20-12-1979 to the Respondent No.l as to the need of opening a section of Dermatology in Abbasi Shaheed Hospital for treatment of skin disease and offered her services for that post. The petitioner again on 7-4-1985 submitted another application to the Respondent No.l offering her services without any further monetary benefits. On the petitioner's application she was transferred to Abbasi Shaheed Hospital to perform her duties as Skin Specialist since 12-5-1985. A Public Notice was issued in Daily Dawn inviting applications for appointment inter alia on the post of Dermatologist having the requisite qualification detailed as below: S. No. Name of Post BPS Required Qualification. 1.

2.

3. Dermatologist 18 MRCP (Dermatology) or F.C.P.S. or MBBS, MCPS (Dermatology) with five years experience. The advertisement is dated 27-5-1986 (Annexure 'H'). The petitioner and Respondent No.2 applied for the post. The Respondent No.l appointed Respondent No.2 on the said post and her appointment has been challenged in this Constitution Petition The following reliefs are claimed by the petitioner; (a) Declare that the appointment Order No. DMS/ESTT/4649/86 dated 8-12-1986 of the Respondent No. 1 appointing the Respondent No.2 as Dermatologist is illegal, without jurisdiction, mala fide and of no legal effect. (b) Permanently restrain the Respondent No.l from implementing and/or enforcing and/or taking any action pursuant to the Order No. DMS/ESTT/4649/86 dated 8-12-1986 in any manner whatsoever. (c) Any other order/relief which this Hon'ble Court deems fit in the circumstances of the case may also be passed.

2. Before admitting the petition the Court called for the parawise comments from Respondent No.

1. It has been denied that post of Dermatologist was created for the petitioner. The petitioner applied for transfer to Abbasi Shaheed Hospital and accordingly she was transferred and posted as Medical Officer in O.P.D. to attend to the skin cases. However, no post of Dermatologist existed at that time. The contention of the petitioner that Respondent No.2 was not qualified for the appointment of the post was disputed. The Respondent No.2 also filed counter-affidavit controverting the contention of the petitioner.

3. We have heard the learned counsel for the parties. It is contended by the learned counsel for the petitioner that requisite qualification for the appointment of Dermatologist is five years experience as mentioned in the advertisement. The Respondent No.2 lacks this experience, therefore, she was not entitled to be selected for this job. Dr. Altaf Bashir has filed Counter Affidavit. It is stated in this' counter-affidavit that Respondent No.2 has done M.C.P.S. in 1981 or 1983 does not affect the situation provided that five years experience is documented. The Respondent No.2 was appointed on unanimous recommendation of the Senior Selection Board. The Respondent No.2 was found eligible through documentary evidence, therefore, Senior Selection Board recommended her appointment and she was accordingly appointed. Since M.R.C.P.S./F.C.P.S. in Dermatology not being available, therefore, M.C.P.S. with five years experience was considered. The petitioner was interviewed by the Senior Selection Board and all the Members of the Board unanimously agreed to the appointment of Respondent No.2 in view of her qualification, experience and knowledge in the field of Dermatology. The Respondent No.2 in her counter-affidavit has stated that she had passed her M.B.B.S. examination in 1974 and thereafter completed her course job in Civil Hospital, Jinnah Post Graduate Medical Centre and in the Pakistan Army. She started attending the Dermatology Department as post graduate student and worked there from 22-10-1981 to 31-10-1983. She appeared in the examination of Dermatology and was conferred the Degree of- Dermatologist on 29-10-1983. Thereafter she worked in A1-Murtaza Hospital as Skin Specialist from 1-I1-1983 to 26-11-1985. She had also learnt minor skin surgical procedures in J.P.G.M.C. Lastly she worked in Abbasi Shaheed Hospital as Dermatologist on honorary basis from 28-11-1985 to 7-12-1986, therefore, the requirement of five years experience was completed when interview took place. Learned counsel for the petitioner has referred to Rule 80(4) of the Sin d Local Government Manual which prescribes that notwithstanding the foregoing provision the Mayor or Chairman may, in the case of emergency, create such posts as are considered necessary for a period of three months. It is, therefore, contended that the Mayor was only authorised to create a post for a limited period of three months. On the basis of this provision it has been argued that the appointment of the respondent No.2 for a period of 2 years is contrary to provisions of section 80(4). This contention cannot be considered in favour of the petitioner because the petitioner had herself applied for this post. She had appeared before the Selection Board and when she was not selected she has raised this objection. The petitioner had submitted to the jurisdiction of the Selection Board as such this objection has no force. Additionally, no objection can be taken by the petitioner to the appointment on this post for a period of three months; so on any of the two grounds the petitioner has no case. As regards the qualification it has been stated by the Respondent No.2 that she was fully qualified for this job and the respondent No. l has also taken the same stand. Learned counsel for the petitioner has also referred to the Sind Councils Unified Grades Service Rules, 1982. These rules have been framed under section 103 of Sind Local Government Ordinance, 1979 read with subsections (1) and (2) of section 78, thereof. Under section 78 of the Ordinance there shall be constituted a service known as the Sind Councils Unified Grades comprising such posts in Councils in such scales of pay as may, from time to time be specified. Under subsection (3) the Members of the Sind Local Council Service constituted under the repealed enactment shall, on the coming into force of this Ordinance, be deemed to be the members of the Sind Councils Unified Grade. Under the Rules of 1983 the method of recruitment to various branches has been mentioned. For the appointment of a Grade-18 officer in the Medical Branch, five years experience in the respective field has been prescribed. The learned counsel for the respondent No.2 has stated that as no rules have been framed, therefore, the relations between the two respondents are that of Master and Servant and writ is not competent. The learned counsel for the respondent on the other hand has submitted that the rules of 1983 are not applicable in regard to the appointment in the Municipal Corporation. He has submitted that West Pakistan Municipal Committees Service Rules, 1969 are applicable. There is force in the contention of the learned counsel for the respondent as under section 78 a service known as the Sind Council Unified Grade has been constituted. Under subsection (4) the Government is empowered to transfer a person belonging to the Sind Councils Unified Grade from one counsel to another council. The Municipal Corporation is also a creature of statute. Learned counsel for the petitioner had not been able to show that an employee of the Municipal Corporation belongs to the unified grades. The rules of 1983 have not repealed the rules of 1969. Under rule 6(1) of the West Pakistan Municipal Committees Service Rules, 1969 a Service Board shall be constituted for all appointments to the service of the Municipal Committee and service has been defined as a service constituted for a Municipality under these rules. The respondent No.2 has been selected by the Selection Board duly constituted in accordance with provision of 1969 Rules. Learned counsel for respondent No.l has also placed on record a resolution passed by the Municipal Corporation for the creation of a post of Dermatologist in Grade-18 and this resolution has been forwarded to the Government as required under section 51(8) of the Sind Local Government Ordinance 1979. It is thus, clear that the respondent No.2 has been selected by a Board constituted under Rules of 1969. On the facts of the case the contention of the learned counsel is disputed that the respondent No-2 was not qualified for the present post. Even in equity the petitioner is not entitled to the discretionary relief. She is already holding Grade-18 post. It is submitted by the learned counsel for the respondent No.l that she had been transferred from the Abbasi Shaheed Hospital to K.M.C. Hospital and she does not want to join that duty, therefore, this petition has been filed to avoid the transfer. The minutes of the Selection Board show that six candidates applied for the post and all appeared for interview. The Senior Selection Board unanimously agreed to select the Respondent No.2 against the existing vacancy. The Board also selected Dr. S. Shah Salim-ur-Rehman for keeping him on waiting list against any future vacancy. There were six candidates and all of them appeared before the Selection Board. The petitioner was one of the candidates. She cannot urge that if the appointment of respondent No.2 be declared as illegal she is entitled to be appointed as of right. Apart from petitioner five other candidates had appeared before the Selection Board. One of them was kept on the waiting list. The petitioner has not stated that Dr. S. Shah Salim-ur-Rehman was not eligible for appointment. Before seeking a discretionary relief the petitioner must show that a right is admitted or determined on the construction of statutes or a public document. She has failed to show that she has any vested right in the post. Another aspect of the case is that the petitioner has claimed a negative relief whereby she has challenged the appointment of respondent No.2 but no relief is sought that she may be appointed in place of Respondent No.

2. A relief in the negative form in the circumstances of the case cannot be granted. The petition has no force. The same stands dismissed in limine. M. Y. H./S-145/ K Petition dismissed.