2006 PLP (C (PLC(CS))

NASIM SIKANDAR, J.

In this constitutional petition following prayer has been made. "In view of the foregoing it is respectfully prayed for and on behalf of the petitioner:-- (i) That the respondent No.1 who is holding or purporting to hold the post of Associate Surgeon Pakistan Institute of Medical Sciences, Islamabad to be called upon to show that under what authority of law he holds or purports to hold that post. (ii) That the impugned order is void, ab initio and is contrary to the provisions of Constitution of the Islamic Republic of Pakistan, 1973 especially of Article 18 thereof and in violation of the Rule 2(d) and Rule 7 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 be struck down quashed, reversed, modified or varied. (iii) That the impugned orders, having been issued unilaterally, abruptly, arbitrarily and in contravention of the age old and well meant doctrine of "audi alteram partem". And may graciously be struck down. (iv) The petitioner having acquired vested right in all aspects of morality, legality and equity be directed to be considered for appointment in accordance with law."

2. The petitioner Dr. Tariq Iqbal is working as Associate Surgeon (Plastic Surgery) (BS-18) on deputation basis at PIMS since 2001. That post was sought to be filled on contract basis as well as on regular basis through Federal Public Service Commission. However, in view of urgent need of the department, hospitals/institutes under the Ministry of Health were requested to furnish particulars of Medical Officers/Registrars (BS-17) eligible for promotion to the post of Associate Surgeon (Plastic Surgery).

3. In response two nominations were received. The first being Dr. Hamid-ud-Din, Medical Officer (BS-18), Jinnah Postgraduate Medical Centre, Karachi/respondent No.1 and secondly the petitioner Dr. Tariq Iqbal. The Departmental Promotion Committee on 14-1-2004 recommended the name of the petitioner for "Appointment by Transfer" as he was basically a Medical Officer (BS-18) of Federal Government Services Hospital Islamabad and was working as Associate Surgeon in PIMS on deputation basis. The proposal/recommendation of the DPC was, however, rejected by respondent No.2/Secretary Health on the ground that Dr. Tariq Iqbal did not possess the requisite decree/diploma in Plastic Surgery, while Dr. Hamid-ud-Din possessed the qualification and experience. Therefore, he was directed to be transferred and posted as Associate Surgeon (Plastic Surgery) in PIMS. That order is assailed in this constitutional petition on various grounds.

4. Having heard the learned counsel for the parties I am not persuaded to allow the said relief for the following reasons:-- Firstly, the observation of the respondent/Secretary Health that Dr. Hamid-ud-Din, Medical Officer possesses the required experience for the post is not seriously disputed. According to the office note a copy whereof has been placed on record, said Dr. Hamid-ud-Din is FCPS (Plastic Surgery) while the petitioner Dr. Tariq Iqbal is FCPS (General Surgery). The respondent Dr. Hamid-ud-Din is holding a regular appointment in that discipline since 17-8-1988 .while the petitioner Dr. Tariq Iqbal was appointed in General Surgery on 22-10-1990. Secondly, the emphasis that on disagreement with the recommendations of D.P.C. the matter ought to have been referred back to them by the Secretary is not supported from any provisions of Civil Servants Act or the Rules framed thereunder. The reference/reliance by the learned counsel for the petitioner on para-19 of a Division Bench judgment of this Court in re: Muhammad Zafeer Abbasi, Deputy Secretary v. Government of Pakistan (2003 PLC (CS) 503) is not relevant. In that case the petitioner civil servant was ignored/superseded by the Departmental Promotion Committee on the oral objection of one of the members of the Committee against whom a specific allegation of mala fide was made. In the case in hand the competent authority rejected the recommendation of D.P.C. for cogent and relevant reasons and instead transferred Dr. Hamid-ud-Din on account of his being eligible to holding the position. The position was filled merely by transfer as Dr. Hamid-ud-Din was already working as a Medical Officer in BS-18 while the post of Associate Surgeon in the Plastic Surgery Department of PIMS also fell in BS-18. The equivalence certificate dated 2-7-2004 by Pakistan Medical and Dental Council, Islamabad as relied upon by the petitioner Dr. Tariq Iqbal is hardly of any significance. The question of equivalence arises only when the holder of a specific degree/diploma or certificate is not available in the field. The respondent Dr. Hamid-ud-Din being a Fellow of College of Physicians and Surgery in Plastic Surgery Discipline, the question of equivalent professional qualification did riot arise at all, and Lastly, the reliance of the petitioner on S. L. No. 189 page 285 Esta Code in the given circumstances again is not relevant. A Departmental Promotion Committee only makes a recommendation while the appointing authority is obliged to accept or reject the recommendations in accordance with law, C equity and fairness. All the three requirements appear present in the decision in hand of the competent authority and, therefore, no possible exception to the same can be taken.

5. Dismissed in limine. H.B.T./T-105/L??????????????????????????????????????????????? ??????????????????????????????????? Petition dismissed.