2017 PLP 1842 (MLD)

QALANDAR ALI KHAN, J.

This single judgment is also directed to adjudicate upon the writ petition titled Dr. Khurshid Ahmad Prince v. Government of Khyber Pakhtunkhwa through Secretary Health and others (W.P. No.647-A/2012), as in both the writ petitions the petitioners assailed selection/appointment of respondent, Dr. Syed Yasir Hussain Gillani, as Senior Registrar Medicine (BPS-18) by invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973.

2. The background of both the instant writ petition by Dr. Farhat Naz, Junior Registrar, Medical-A Unit, Ayub Teaching Hospital, Abbottabad, and the connected Writ Petition No.647-A/2012 by Dr. Khurshid Ahmad Prince, briefly stated, is that a number of posts, including one post of Senior Registrar Medicine (BPS-18) in Ayub Teaching Hospital, Abbottabad, were advertised vide publication in the newspaper dated 30.08.2011. Both the petitioners as well as respondent, and others applied for the post; and the scrutiny committee constituted for the purpose, in its meeting dated 02.12.2011, prepared merit list, placing petitioner, Dr. Khurshid Ahmad Prince, at top of the list with total 40 marks, followed by petitioner, Dr. Farhat Naz, with 36 marks, respondent, Dr. Syed Yasir Hussain Gillani, with 33 marks, Dr. Fakhra Saba Zeb with 32 marks, Dr. Muhammad Muneer Noor with 32 marks., Dr. Muhammad Bilal Khattak with 32 marks and Dr. Toqueer Ahmad with 31 marks. The merit list prepared by the scrutiny committee was, however, changed by the Selection Board on the application to the Chief Executive, Ayub Medical Institution, Abbottabad, by respondent, Dr. Syed Yasir Hussain Gillani, who was awarded 5 marks for two years experience; and, simultaneously 5 marks earlier granted to petitioner, Dr. Farhat Naz, on account of her experience as Registrar were deducted, resulting in change of the merit list, as respondent, Dr. Syed Yasir Hussain Gillani, secured top position after further addition of 4 marks on account of research and 16 marks awarded to him in the interview, leading to his selection. According to this merit list, Dr. Muhammad Bilal Khattak stood at serial No.2 and provisionally selected against leave vacancy. Petitioner, Dr. Khurshid Ahmad Prince, was placed at serial No.3 and petitioner, Dr. Farhat Naz, was relegated to 4th position. The petitioners in both the writ petitions did not challenge the provisional selection against leave vacancy of Dr. Muhammad Bilal Khattak, grant of 54 marks to petitioner, Dr. Khurshid Ahmad Prince, except that instead of 5 marks for Registrar job he should have been awarded 5 marks for his periphery service under a distinct column, which would, however, not disturb his merit position at serial No.3 of the merit list. Likewise, neither of the parties were found objecting to award of marks to the seven candidates in the merit list under three columns, namely, academic, additional qualification and three years experience. The dispute between the petitioners and respondent, Dr. Syed Yasir Hussain Gillani, centered around award of 5 marks to the respondent on account of two years experience and deduction of 5 marks from petitioner, Dr. Farhat Naz, earlier awarded to her by the scrutiny committee on account of her working as Registrar. It may not be out of place to point out here that marks are awarded under the Notification of Health Department, Government of N.W.F.P, dated 13.04.1999, which provides for experience under 4(ii), prescribing 10 marks for two years experience after postgraduate qualification and 5 marks for Registrar job in the concerned specialty; which are, indeed, subject matter of these writ petitions.

3. The writ petitions were earlier partially accepted vide judgment dated 21.06.2016 and 'the selection process by the selection board/ management council culminating in appointment of the respondent as Senior Registrar Medicine was set aside; and the case was remanded/sent back to the quarter concerned under the new setup responsible for such selection, for reconsideration of selection of the Senior Registrar of Medicine in the light of respective claims of both the parties, strictly on the basis of merit, in accordance with law/rules.' The judgment of this Court was assailed before the august apex Court by the respondent, Dr. Syed Yasir Hussain Gillani, (C.As. Nos.1853-1854/2016), Management Council through Chief Executive, Ayub Teaching Hospital and another (C.A. No.1855/2016) and Chief Executive, Ayub Teaching Hospital and others (C.A. No.1856/2016); and the Honourable Supreme Court converted the petitions into appeals "with the consent of all" and allowed and the impugned judgment(s) of this Court was/were set aside and the matter was remanded to this Court "to decide the cases itself, resolving the issue whether the allocation of marks by the selection committee are in consonance with the rules or otherwise." 3(sic). Arguments of learned counsel for the parties heard at greater length, stretching over five days, and record also perused with their valuable assistance.

4. The actual controversy between the parties having been identified as addition of 5 marks in favour of respondent, Dr. Syed Yasir Hussain Gillani, on account of two years experience after postgraduate qualification and deduction of 5 marks granted to the petitioner, Dr. Farhat Naz, for Registrar job in the concerned specialty; one finds it, indeed, interesting that advertisement dated 30.08.2011 of the post of Senior Registrar Medicine (BPS-18) contained the requirement of (1) MBBS or equivalent medical qualification recognized by the (Pakistan Medical and Dental Council (PM&DC), and (2) FCPS/M.S/M.D in the respective subject or equivalent qualification in the specialty recognized by the PM&DC; without any reference to either of the experiences, which find mention in the merit lists prepared for the purpose of selection in accordance with the Notification of the Health Department, Government of N.W.F.P, dated 13.04.1999.

5. The origin of the dispute can be traced to the two merit lists, one prepared by the Scrutiny Committee and the other by the Selection Board, as in the former merit list, the petitioner, Dr. Farhat Naz, was awarded 5 marks for Registrar job whereas respondent, Dr. Syed Yasir Hussain Gillani, was not granted marks for two years experience after postgraduate qualification; while in the latter merit list, the respondent was granted 5 marks for two years experience after postgraduate qualification but 5 marks earlier granted to petitioner for Registrar job by the Scrutiny Committee were deducted; after the respondent moved application to the Chief Executive, Ayub Medical Institution, Abbottabad therein not only highlighting his academic record but also pointing out that some of his colleagues have been awarded 5 marks for the experience as Junior Registrar, while their selection as Junior Registrar, according to the respondent, was not according to 'protocol as no proper advertisement, interview or selection Board was constituted and that their selection was made by the former Chief Executive without proper approval of M.C.' Intriguingly, without notice to the petitioner against whom this application of the respondent was directed, her appointment as Junior Registrar was cancelled vide office order dated 16.06.2012, resulting in not only deduction of 5 marks earlier granted to the petitioner for Registrar job by the Scrutiny Committee but also addition of 5 marks in favour of the respondent for two years experience after postgraduate qualification, with regard to which neither any prayer/ request was made in the application of the respondent nor even a reference was made therein.

6. In order to resolve the issue whether the allocation of marks by the Selection Committee were in consonance with the rules or otherwise, in accordance with the directions contained in the order of the august apex Court dated 12.08.2016, it becomes imperative to refer to the PM&DC Regulations, 2011 governing appointment of staff/faculty, especially Senior Registrar in the Undergraduate or Postgraduate Medical and Dental Institutions. It is, as such, worthwhile to reproduce the relevant Regulations Nos.20 and 21 herein below:-- "

20. For the purpose of appointment/promotion, the experience gained in one speciality shall not be counted for appointment/ promotion in other speciality. For example experience gained in Orthopaedic Surgery cannot be counted for appointment/ promotion in General Surgery. Similarly experience gained in cardiology etc; cannot be counted for appointment/ promotion in General Medicine and vice versa. However if there is no separate Department of Cardiology, Neurology, Orthopeadics, etc. and the cases are dealt in the Department of Medicine and Surgery respectively then the experience gained of a subspecialty in such departments shall be counted as per recommendation of the Principal.

21. A Registrar/lecturer/demonstrator/instructor shall be given preference while being considered for appointment as Senior Registrar/Senior Lecturer/ Assistant Professor. The experience gained as Registrar/Lecturer/Demonstrator before the person has obtained postgraduate qualification required for appointment as senior Lecturer/Senior registrar shall not be counted towards appointment as Assistant Professor or beyond. Once a Registrar/ lecturer/demonstrator /Instructor has obtained postgraduate qualification required for appointment as senior Lecturer/ Senior registrar or Assistant Professor his teaching experience shall be counted as equivalent to Assistant Professor in a ratio of 1/4." Having regard to Regulation No.20, the respondent, Dr. Syed Yasir Hussain Gillani, acquired postgraduate qualification of FCPS in Medicine in the year 2010, but his experience since then is that of Lecturer Pharmacology in the Pharmacology Department, Ayub Medical College, Abbottabad. The respondent, no doubt, tendered resignation from the post of Lecturer Pharmacology, Ayub Medical College, Abbottabad on 15.08.2010 in order to join Frontier Medical College, Abbottabad as Assistant Professor Medicine in Internal Medicine, but the respondent himself moved an application for withdrawal of the resignation on the ground that the resignation was not accepted by the competent authority i.e. the Management Council of AMI. In his application for withdrawal of resignation, the respondent himself requested for adjustment of his period of absence into EOL. The Notification dated 01.09.2010 whereby resignation of the respondent was accepted by the Principal, Ayub Medical College, Abbottabad, was withdrawn by the Principal, AMC, Abbottabad vide Notification dated 20.01.2011, while treating the intervening period from 15.09.2010 to 19.01.2011 as Extraordinary Leave without pay. The respondent was accordingly directed to report to Head of Pharmacology Department and resume his erstwhile position of Lecturer Pharmacology Department; and was relieved from Pharmacology Department with effect from 24.07.2012(F.N) only after his impugned appointment as Senior Registrar Medicine vide order dated 26.04.2012, through Notification dated 27.04.2012. The learned counsel for the official as well as private respondents stressed that the experience gained by the respondent as Lecturer Pharmacology and as Assistant Professor of Medicine in Internal Medicine in Frontier Medical College, Abbottabad, after his post-graduation, provided basis for awarding him 5 marks for two years experience after post-graduation, by the Selection Board, which were earlier denied to him by the Scrutiny Committee, as not only Pharmacology was a subspecialty of Medicine but the respondent had also remained as Assistant Professor Medicine in Frontier Medical College, Atd. from 12.08.2010 to 28.02.2011. Apart from the fact that the respondent was Lecturer Pharmacology in a separate Department of Pharmacology in the Ayub Medical College, the learned counsel were unable to show that experience gained in Pharmacology can be counted for appointment/promotion as Senior Registrar (Medicine). Besides, the respondent had himself prayed for adjustment of his period of absence into EOL while asking for withdrawal of his resignation from the post of Lecturer Pharmacology, which was tendered on 15.08.2010 in order to join the post of Assistant Professor of Medicine in Internal Medicine in Frontier Medical College, Abbottabad; and the intervening period from 15.09.2010 to 19.01.2011 was accordingly treated as EOL without pay vide Notification dated 20.01.2011, whereby Notification of acceptance of the resignation of respondent was withdrawn. Therefore, his experience, if any, as Assistant Professor of Medicine in Internal Medicine in a private Medical College during this period would not accrue any benefit to him. As such, award of 5 marks to the respondent by the Selection Board on account of two years experience after postgraduate qualification was not justified under PM&DC Regulation No.20.

7. Adverting to the deduction of 5 marks for Registrar job in the concerned specialty by the Selection Board, which were awarded to petitioner, Dr. Farhat Naz, by the Scrutiny Committee, the same was equally not justified, as the petitioner acquired the postgraduate qualification of FCPS (Medicine) in the year 2010, and was appointed as Junior Registrar in Medical-A Unit vide office order dated 21.07.2010 by the Chief Executive, Ayub Medical Institution, Abbottabad. She remained Junior Registrar till her appointment was cancelled vide Office Order dated 16.06.2012 by the Chief Executive, Ayub Medical Institution, Abbottabad. The reason for cancellation of the appointment order furnished in the Office Order dated 16.06.2012 was that the petitioner was appointed through an Executive Order without completion of required procedure. It may be added here that the cancellation order was prompted by the application of the respondent whereby he expressed his reservations about award of 5 marks to the petitioner as Junior Registrar on the ground that her selection as Junior Registrar was not according to 'protocol as no proper advertisement, interview or Selection Board was constituted and that the selection was made by the Former Chief Executive without proper approval of M.C. Notwithstanding the fact that an employee cannot be penalized for a fault/default on the part of an institution/department/authority in the appointment order, the cancellation order unilaterally issued after almost two years of the appointment order can, by no stretch of imagination, deprive the petitioner of her experience for almost two years as Junior Registrar in Medicine. The learned counsel for the respondents also, belatedly, raised the issue of earned leave for 120 days and maternity leave for 90 days obtained by the petitioner; but they lost sight of the fact that both the earned leave and maternity leave were granted to the petitioner by the competent authority on Full Average Pay, which means that she was treated on duty during this period. In any case nothing is forthcoming to show that this period is to be excluded from experience as Junior Registrar Medicine. Similarly, the appointment of the petitioner as Junior Registrar vide Office Order dated 12.12.2012 and her arrival report dated 17.12.2012 would not amount to relinquishment of her claim to the post of Senior Registrar on the basis of her qualification and experience, as she had already filed writ petition for enforcement of her claim/right on 12.06.2012 i.e. prior to the said Office Order dated 12.12.2012.

8. As regards the case of petitioner, Dr. Khurshid Ahmad Prince, suffice it to say that there was no dispute with regard to award of marks to him on account of his qualification and experience, with the exception of 5 marks awarded to him for Registrar job, as he admittedly never remained Registrar instead of awarding him 5 marks for his periphery service; but such change in the merit list is not going to change his overall merit position.

9. As a last resort, the learned counsel for the respondents focused on the academic achievements of the respondent such as his securing Gold Medals and distinction of Second Best Graduate, but the learned counsel overlooked this aspect that the respondent was already awarded 18 marks for his academic qualification, which were more than any other candidate, besides awarding him 4 marks on account of research and maximum marks in interview i.e. 16 out of 20.

10. Being fully conscious of the limitation of this Court to perform the functions of a selection authority in service matter in its constitutional jurisdiction of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, in the light of 2008 SCMR 960, PLD 1956 (WP) Peshawar 121, 2005 PLC (CS) 645, and after resolving the issue of allocation of marks to the parties by the selection committee, in accordance with the order/direction of the august Apex court dated 12.08.2016, the matter of appointment of Senior Registrar (Medicine) is referred to the selecting authority for selection in accordance with rules and in the light of resolution of issue of allocation of marks to the parties by this Court in the forgoing findings. By the way, the reported availability of another vacancy or vacancies of Senior Registrar Medicine is going to make the job assigned to the selecting authority more easy as the authority would be in a position to accommodate the aspirants according to their merit under the relevant rules.

11. The writ petitions by the petitioners are, accordingly, disposed of in the above terms. ZC/41/P Order accordingly.