1999 PLP (C (PLC(CS))

Surgery, Neurosurgery, Eye, E.N.T., Anaesthesiology and all other specialities as mentioned in the M.B.B.S. Regulations. Post Basic Qualification Additional (Post-Graduate Qualification) Experience Reasearch Remarks Senior Registrar M.B.,B.S. or equivalent medical qualifications recognised/ registered by the PM&DC F.C.P.S/M.S./M.D., in the respective speciality OR other equivalent qualification in the speciality recognized/registered by the PM&DC Three years teaching/ practical experience in the respective speciality in the recognised institution before or after post-grauate qualifications - - Assistant Professor M.B.B.S. or equivalent medical qualifications re-congised/registered by the PM&DC -do- Three years teaching/ practical experience in the respective speciality in the recognized institution in order of following preference: 1ST PREFERENCE Teaching Experience 2ND PREFERENCE Practical experience after Post-Graduation 3RD PREFERENCE Practical experience before Post-Graduation - The holders of additional qualification likeM.C.P.S shall not be eligible for appointment/promotion as Senior Registrar Asstt. Professor Associate Professor and Professor for which holders of higher diploma/ degree are only eligible Attached with the Schedule are explanatory rules to the Regulation (Annexure 'F ) and since Mr. Mansoor Ali Shah has relied on Explanation 42, the same is also reproduced:‑‑ "

42. A doctor possessing the qualifications of M.D./F.C.P.S. in Medicine/M.R.C.P. etc., can be appointed as senior Registrar in the sub‑specialities of Medicine and a doctor possessing the qualifications of M.S./F.C.P.S. in Surgery/F.R.C.S. etc., can be appointed as Senior Registrar in the sub‑specialities of Surgery, if a person with the requisite qualifications in the particular speciality is not available."

6. The comparative reading of the relevant rules/regulations hardly indicates any conflict or inconsistency. Even the explanation relied upon by Mr. Shah is permissive in nature and does not support his argument that category of eligible candidates mentioned in (i) of the Punjab Rules have to be in any manner preferred over the candidates mentioned in category (ii) of the same rules. To me it seems the law maker has placed these two categories at par. The language used does not support the contention that one has to be preferred over the other or that in the presence of candidates falling in category (i), the candidate falling in category (ii) cannot be considered. There is considerable weight in the submission of learned Assistant Advocate‑General that wherever the law maker wanted one category to be preferred over the other, it is so‑stated specifically. He has referred to the rule in respect of appointment of Assistant Professor of Radiology (copy attached as Annexure 'A' to the report and parawise comments) wherein, after prescribing qualifications in (1)(ii), it is laid down "if no person with aforesaid qualification is available then:", (ii) learned Assistant Advocate‑General is right in urging that in the absence of any such expression used in the relevant rule in respect of the cases in hand, it cannot be argued that the law giver wanted to prefer one category over the other.

7. The judgments referred to by Mr. Mansoor Ali Shah do indicate that in the event of conflict between the regulation framed by the Council and a rule framed by Provincial Government under its Act/Ordinance, the former prevails. However, in my opinion this argument is not arising in these two cases. As has been seen, the Commission has kept the two categories at par and has treated each of the candidate belonging to the respective category on merit without any weightage to the candidates in category (i). The insistence of Mr. Mansoor Ali Shah that because Senior Registrars in the subject speciality of Orthopaedic Surgery were required to be recruited, therefore, the petitioners having Post‑Graduate qualifications in the speciality, should have been preferred, may have some basis in reason and logic, but the language of the respective rules as such does not give any support to the argument. Mr. Mansoor Ali Shah, therefore, went further and submitted that this Court should hold that, in these two cases, candidates belonging to category (i) should be preferred. In other words, he stressed that the relevant rules should be so interpreted as to give preference to candidates belonging to category (i) as this will be in accord with reason and logic. Precisely he wants this Court to add the words "if no reason with the aforesaid qualifications is available then", as in the case of recruitment to the post of Assistant Professor of Radiology.

8. I am afraid, the argument of Mr. Mansoor Ali Shah is gong too far. It has not been canvassed that this Court should assume the function of law maker. Under the Constitutional disposition, this Court cannot do so. However, Judges do make law by interpreting the relevant provisions and by removing the ambiguity, if any. In interpreting the laws, the Courts have to give effect to the legislative intention by giving ordinary meanings to the word used. The law‑maker in these cases have deliberately not given any preference to (i) category over the other (ii), as it did in the case of the rule pertaining to recruitment of Assistant Professor of Radiology. The omission seems to be deliberate and Court has to recognize it. By holding that category (i) be preferred over category (ii) because it is logical and reasonable, the Court would be literally assuming the function of law‑maker. I am clear that this Court may well be transgressing its jurisdiction in doing what Mr. Mansoor Ali Shah wants the Court to do. If at all, the argument may be addressed to the law‑maker and it would be for him to see and assess the wisdom behind the argument of Mr. Mansoor Ali Shah.

9. Unreported judgment of Supreme Court dated 22‑4‑1997 in C.P. No. 393‑P of 1996 and C.P. No.416‑P of 1996, hardly supports the contention that Category (i) has to be preferred over Category (ii). In the cases, Dr. Shah Wali Khan, Senior Registrar, Orthopaedics (petitioner) and Dr. Shahabuddin, also Senior Registrar, Boltan Block (respondent No.2) contested for the post of Assistant Professor (Orthopaedics) falling vacant in 1993, in promotion quota. Service Tribunal decided in favour of Dr Shahabuddin. Leave was sought on the grounds inter alia that petitioner had experience in the speciality and, therefore, should have been preferred. The Court rejected the submission by holding: "The learned counsel for the petitioner has cited no rule providing for the experience in particular speciality taking precedence over experience gained in other alike specialities as a matter of right to be utilised/counted towards experience in particular without having prescribed qualification in that speciality." In the cases before me, the argument is somewhat the same i.e. the qualification and experience in the speciality/sub‑speciality/Category (i) be ordered to be given preference over experience in general surgery (Category (ii). A^ seen, Mr. Mansoor Ali Shah has sought refuge in logic only because there is no provision giving preference to Category (i) over the other (ii).

10. This takes me to the next question. It has been disclosed by the Commission in its report and parawise comments that for the post of Assistant Professor (Orthopaedic Surgery), petitioners stood at Nos. 7; 9, 11 and 15 respectively on the merit list and they were not called for interview. Only first five on the merit list were called for interview. For the seven posts of Senior Registrars, the petitioners were only called for interview, but they have not been able to attain recommendations of the Commission, on merits. It is on these facts that the argument of Mr. Mansoor Ali Shah that the exercise of selection has not been transparent and reasonable has to be examined. It may be noted that Mr. Mansoor has not levelled any allegation of malice or ill will or lack of bona fides against any member or official of the Commission.

11. It has not been disputed that initial presumption of correctness attaches to the official/public acts. In appropriate cases the Court can hold the same to have been rebutted and it is in such cases that the action can be struck down on the grounds of mala fides. There is nothing on record to tentatively displace this initial presumption of correctness. It is clear that in p the absence of any mala fides, this Court will be starting a roving and fishing enquiry to find out if one or the other left out competitor has been properly, dealt with. Apart from the near impossibility of the exercise, (unsuccessful being always in large numbers), asking for a roving enquiry in exercise of jurisdiction under Article 199 of the Constitution is not permissible. It was for the petitioners to have placed some material on record to initially take the Court alongwith them for the proposition that the evaluation of the respective candidates has not been correct. The Principle of transparency would not go to such an extent that each and every failing candidate be given elaborate reasons as to why he has not been selected and as to why the successful candidates have been selected. For all we know, even this exercise may not satisfy the failing candidates. Mr. Mansoor Ali Shah may be right in saying that this Court can insist on transparency and reasonableness, but again there has to be some material to show that the respondents‑Authorities have proceeded in the matter in a surreptitious or in an unreasonable manner. As has been held in the case of Chairman; Regional Transport Authority (supra), the Superior Courts can also structure the discretion of public authority, but again before seeking order from the Court, a litigant has to discharge the initial onus that the discretion has been illegally, malafidely and surreptitiously exercised, I, therefore, conclude that there is absolutely no material on record to come to a finding that in drawing the merit lists and in making selection, the respondent. Commission has acted in any manner which is objectionable in law.

12. For all that has been stated above, these two petitions are dismissed, leaving the parties to bear their own costs. Q.M.H./R‑74/L Petitions dismissed.