P L D 2006 Lahore 469 (PLP)

SYED ZAHID HUSSAIN, J.--The petitioner, a Staff Nurse of Punjab Institute of Cardiology (shortly mentioned as PIC) Lahore had with a view to acquire higher and better qualification applied for admission in the course of Nursing Management and Teaching Administration along with other candidates. Since her application was not being forwarded and considering it a refusal on the part of respondent No.1, she has filed this petition seeking a direction to respondent No.1 to forward her application to respondent No.2 for consideration on merits.

2. In the parawise comments submitted by respondent No.1, the justification for non-recommending her application as brought forth is that "The petitioner joined PIC on 4-9-2002 and her service period at the time of forwarding application to respondent No.2 was three years, three months and eleven days only whereas 5 years length of services at PIC is required. Therefore, her application was not forwarded to the Respondent No.2 in the interest of nursing care of critical patients and heart patient of the Institute." Such criteria was laid down by PIC Lahore through notification dated 23-10-2004.

3. The central point sought to be highlighted by the learned counsel for the petitioner is that since conditions of service of the petitioner were governed by the Punjab Health Department Nursing Services Rules 1986, any such policy decision taken by respondent No.1 being in conflict with the said Rules can neither override the Rules nor can be invoked to her prejudice; and that she even meets the criteria for selection laid down by the Government of Punjab, Health Department through the Prospectus for the Session 2006-2007. On the other hand, the learned Law Officer and the learned counsel for respondent No.1 contended that the policy decision notified `4 on 23-10-2004 laying down the criteria for selection of candidates was within its ambit of power and since the petitioner had not completed 5 years stay in PIC she could not be recommended for that reason. It has been pointed out by the learned Law Officer that the petitioner was fully aware of such criteria applicable to Nursing Staff of PIC Lahore and realizing her ineligibility the petitioner had made a move for her posting in Lady Aitchison Hospital, Lahore which, however, could not materialize due to imposition of ban on transfers and postings.

4. The petitioner had indeed submitted admission Form on 1-12-2005 for the course of Nursing Management and Teaching Administration for the Session 2006-2007. From the material that has been placed on record it has transpired that she had applied for transfer to Lady Aitchison Hospital, Lahore and order of her adjustment and posting dated 31-1-2006 by the Government of Punjab, Health Department was conveyed to the Medical Superintendent PIC Lahore and the Medical Superintendent Lady Aitchison Hospital, Lahore for No Objection Certificate. Such a move of the petitioner apparently was in view of the policy of PIC i.e. 5 years service in the PIC in order to meet eligibility criteria. Through letter dated 2-2-2006 Medical Superintendent PIC Lahore conveyed No Objection to the transfer of the petitioner from PIC Lahore to Lady Aitchison Hospital, Lahore. This, however, could not be given effect to due to the subsequent ban on posting and transfer. There can be no two opinions that there should not be any curb or impediment on one's objective and ambition of acquiring higher and better qualification in the field of relevant profession subject of course to lawful limitations. The petitioner here in this case, belongs to the noble profession serving the ailing and suffering humanity. She has after joining this profession attended various courses and obtained training such as Diploma in Midwifery, Diploma in Specialized Nursing and A Accident and Emergency Nursing Course. She has served various Hospitals including Mayo Hospital Lahore. She is now facing a dilemma i.e. being stopped from acquiring higher/additional qualifications in her field of professionalism due to the policy of PIC and when she opted for transfer to the Lady Aitchison Hospital despite order of the competent authority and No Objection Certificates, she is unable to join that Hospital on account of some ban on transfer and posting. It will be rather unjust and unfair if her effort to join the course is stultified. Prima facie she seems to be victim of unreasonable and irrational approach of the respondents disabling her to get higher qualification, which ultimately is going to be beneficial not only to her but also the Hospital to which she may be assigned. According to the learned counsel, no such policy (as is prevailing in PIC) will stand in her way if order of her transfer is implemented. The various certificates that form part of the record of this petition, which the petitioner has been granted ever since her career of nursing, do go to establish her resolve and will of acquiring various specialization in the allied fields such as midwifery, accident and emergency nursing etc. It will, thus, be hard to disable her from pursuing her nursing career and acquiring further qualifications merely due to such administrative difficulties, executive policy or ban on transfer and posting etc. In such peculiar circumstances, the competent authority is always vested with the power to relax and waive such a stringent condition to relieve an individual from injustice and hardship. Such a dispensation on the part of the authorities will serve the cause of justice. Needless to emphasise that in the democratic set-up and written Constitution the people of this country are governed, ideal would be the situation if uniform policy would have been in force, equally applicable to all similarly situated. Different policies/criteria in hospitals/ institutions, in one and the same Province, under the administrative control of the Health Department negate the rationale and objective behind the provisions of Articles 4 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. The concept of equality before law and that all are equal before law has its genesis in Islamic fundamental principles elaborately propounded by the Holy Prophet Muhammad (peace be upon him) in the Last Sermon. Provisions of Articles 4, 25, 26 and 27 of the Constitution are also in line and consistent with the "equality of all" as enshrined by Islam. Not only that the Principles of Policy laid down in the Constitution also' enjoin upon the State to observe the same, clause (c) of Article 37 may for that purpose be referred which reads as follows: "Article

37. Promotion of social justice and eradication of social evils. The State shall: (a) ???????.. (b) ???????.. (c) make technical and professional education generally available and higher education equally accessible to all on the basis of merit;" This is being denied to the petitioner. Thus, without dilating much upon the issue as to the validity or otherwise of policy of the PIC i.e. five years stay in PIC Lahore for nomination of nursing staff, 1 consider it just and proper to direct that the order of Government of Punjab, Health Department, dated 31-1-2006 transferring the petitioner from PIC Lahore to Lady Aitchison Hospital, B Lahore should be given effect to forthwith so that the petitioner may pursue her study and training with respondent No.2. Since there is a short time left for commencement of the training course, the learned Additional Advocate General, Punjab will take up the matter with the concerned quarters in the Health Department for necessary steps in the matter. The petition is accepted to the extent mentioned above. No order as to costs. M.B.A./S-70/L??????????????????????????????????????????????????????????????????????????????????? Order accordingly.