2013 PLP (C (PLC(CS))

SHAUKAT AZIZ SIDDIQUI, J.

Petitioner invoked the constitutional jurisdiction of this court by way of filing instant writ petition with the following prayer:-- "In view of the foregoing facts and circumstances, it is respectfully prayed that the instant writ petition may graciously be accepted by declaring the impugned notification dated 16-10-2012 as illegal and unlawful and the same may kindly be set aside in the interest of justice and the respondents may kindly be directed to consider the petition for appointment/promotion against the post of Executive Director (BS-21) in Pakistan Institute of Medical Sciences, Islamabad w.e.f. from the date the post fell vacant, with all consequential benefits."

2. Grievance of the petitioner is that respondent No.3 has been appointed as Executive Director PIMS vide impugned order dated October 16, 2012 illegally, unlawfully and to sheer violation of the rules, depriving the petitioner from his valuable right of appointment consideration for promotion to the post of ED (BS-21) PIMS and the petitioner is the only qualified, eligible, entitled and fit to be appointed as Executive Director PIMS (BS-21) in accordance with rules notified vide S.R.O.548(I)/2003 dated 16th June 2003. Learned counsel for petitioner argued that appointment on deputation of respondent No.3 is against the prescribed method, qualification, experience and procedure as contemplated under S.R.O. No.769(I)/82, dated 7th August, 1982, S.R.O.548(I)/2003 dated 16th June, 2003 S.R.O.745(I)/2006 dated 15-7-2006 and S.R.O.1007(I)/2007 dated 29-9-2007. Learned counsel for petitioner contended that in view of above S.R.Os. the appointment of respondent No.3 is void ab initio on the grounds that, respondent No.3 does not possess M.B.B.S. or equivalent qualification which is the basic requisite qualification under the rules and being a Professor of Oral and Maxiliofacial Surgery, he belongs to the teaching cadre of the doctors of Punjab and not the Administrative and General cadre, that he does not possess the requisite postgraduate academic qualification of public health, does not have the requisite experience of service in the field of public health/Hospital Administration/Management, being an employee of Punjab Health Department does not stand any position in the Seniority of the officers of the relevant cadre in any institution of Federal Government under Ministry of CAAD and that his deputation is not according to the procedures and instructions contemplated in the relevant rules.

3. On the other hand, respondents filed their reply and parawise comments and raised the preliminary objection that writ petition on the issue is not maintainable being barred by jurisdiction of this Court as per Article 212 of the Constitution of Islamic Republic of Pakistan as the matter is purely service matter.

4. On facts, it is contended that respondent No.3 was appointed as Executive Director, PIMS on deputation basis in relaxation to rules by the competent authority i.e. Prime Minister of Pakistan through Establishment Division's Notification as temporary arrangement to run daily business of the Institute in the public interest and to meet contingency of unavoidable circumstances. That the respondent No.3 possesses the prescribed qualification Level-I, Level-IIb, Level-III notified on Dec. 22, 2011 by PMDC regarding regulations for the appointment of faculty Professional Staff/Examiners/Principals/ Deans/Administrative Staff and the matter regarding appointment and qualification of respondent No.3 is already sub judice before this court in Writ Petition No.3086 of 2012. That, the posting/transfer against administrative seats is purely administrative issue and respondent No.3 has been appointed by the competent authority on administrative grounds and the respondent No.3 was appointed on deputation basis by the competent authority in relaxation of rules in public interest to run the affairs of PIMS and to meet the contingency matters.

5. In order to narrow down the controversy, it seems appropriate to provide admitted facts, which are as under:

* Post of Executive Director PIMS (BS-21) can be filled, 80% by promotion and 20% through direct recruitment. * Respondent No.3, BS-20 Officer of Health Department Govt. of Punjab, brought to the post of ED, PIMS in BS-21 on deputation for an initial period of three years, vide notification dated 16-10-2012. * Appointment of respondent No.3 was against 20% for direct recruitment. * No competitive process was evolved before the appointment of respondent No.3. * 80% Promotion quota was not running in surplus and there is no finding to the effect that any qualified person is not in PIMS to be promoted as Executive Director. * Executive Director PIMS by virtue of his office was to become first Vice-Chancellor of Shaheed Zulfiqar Ali Bhutto, Medical University. * Basic qualification of respondent No.3 is B.D.S and not M.B.B.S. * No cogent and plausible reason available on record to justify non adherence to Rules. * It has not been denied that number of professionals who possess the requisite qualification and experience required for promotion as ED are available in PIMS.

6. Above noted admitted facts, exhibit that appointment of respondent No.3 as Executive Director PIMS is result of some extraneous consideration and not on the principles of merit, transparency, credible process and requisite qualification. It has also been established that senior professionals of PIMS who possess the qualification and experience to be promoted as ED have been denied the right of consideration, not on the basis of any valid reason rather on flimsy grounds, conjecture and surmises.

7. The august Supreme Court through number of authoritative pronouncements has held that appointments in Government Departments, Establishments, Organizations, Corporations and companies must be based on merits, made through open, transparent and credible competitive process. Appointments made on political affiliations, extraneous considerations, polluted process and based on favoritism have always been disapproved. Reference in this regard is being made to the following judgments:

(i) Tariq Aziz-ud-Din's case reported as 2010 SCMR 1301. (ii) Amina Turab case reported as PLD 2013 SC 195. (iii) Muhammad Yasin's case reported as PLD 2012 SC 132. (iv) Sh. Riaz-ul-Haq case in Constitutional Petition No.53 of 2007 and Hajj Corruption reported as PLD 2011 SC 963,

8. Another aspect, commonly noted in such like dubious appointments is that, appointing authority comes up with the explanation that appointment though made besides the prescribed procedure and without competitive process but appointee being most deserving person, highly qualified and richly experienced, accommodated in the public interest. I must observe that this approach, promoted the culture cf corruption, discrimination and undue favour. If someone picked by authority is of great caliber, immense talent, illustrious career, accepted eminence and exemplary profile then such person should not be shy of putting himself in the competitive process and earn the appointment on merit, instead of favour.

9. This court in case titled M. Ashraf Azeem v. Federal Government of Pakistan, Writ Petition No.2503 of 2009 Major General (R) Malik Muhammad Farooq v. Government of Pakistan and others Writ Petition No.1515 of 2013 and Dr. Asmat Ullah and others v. Islamic International University and others Writ Petition No.2942 of 2012 has already held the appointment as illegal which were made besides the competitive process recognized by law. In this view of the matter, instant petition is allowed to the effect that appointment of respondent No.3 as E.D. (BS-21) PIMS is declared as illegal, unprecedented, void, result of political influence and undue favour, therefore, same is set aside and consequently appointment of respondent No.3 as Vice Chancellor SZABMS also declared illegal, void, non-existent and is hereby set aside. Official respondents are directed to immediately commence the process of promotion to the post of ED PIMS by considering the eligibles on the basis of seniority cum fitness, obviously against 80% reserved for promotion. JJK/90/Isl. Petition allowed.