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Petitioner: Dr. SUMERA TABASSUM VS Respondent: SECRETARY OF FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABADHonorable Justice Aziz-Ur-Rehman,Atiq Ahmed
2016 P L C (C.S.) 115
[Sindh High Court]
Before Syed Hasan Azhar Rizvi and Aziz-ur-Rehman, JJ
Dr. SUMERA TABASSUM
Versus
SECRETARY OF FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and 3 others
Constitutional Petition No.D-3090 of 2010, decided on 22nd January, 2015.
(a) Constitution of Pakistan---
----Art. 199---Federal Public Service Commission Ordinance (XLV of 1977), S.7---Constitutional petition---Civil service---Competitive examination---Advertisement for the post of lecturer---Post vacated due to non-joining of selected candidate---Waiting list---Scope---Discrimination--- Locus standi--- Public Service Commission/ Government should re-advertise/advertise the post which had remained vacant by non-joining of selected candidates or in case of subsequent requisition in the ordinary course of time---Practice of keeping a 'waiting list' in a 'competitive examination system' was nothing but an attempt to introduce a contradictory concept---Waiting list' was maintained in a `qualifying examination' while in a `competitive examination' all vacancies were filled up in one go---When selection was made out of one 'competitive examination , it could not be bifurcated into two or more---Selection had to be one when 'competitive examination' was one and in no event it could be said that any number of selections could be made of the same `competitive examination'---Petitioner had alleged discrimination on account of the appointment of "X" in place of "Y" but he was not made party in the constitutional petition---Discriminatory treatment could not be gone through appropriately in circumstances---Petitioner's name was never placed on the alleged 'waiting list' rather she was informed that her name could not be recommended for appointment---Petitioner had failed to establish any vested right in her favour---Petitioner was a low merit candidate and was not recommended by the Public Service Commission for the advertised post---No vested right of the petitioner had been infringed---Public Service Commission had never conveyed the petitioner that she was the next candidate in the 'merit list'/'waiting list' for alternate nomination and/or she would be recommended if principal nominee did not join the post---Until and unless department did cancel the offer of appointment issued to the principal nominee and thereafter a request was made to the Public Service Commission for 'alternate nomination' till then the offer of appointment of recommendee candidate would remain in field---Petitioner did not have any right or otherwise claim her recommendation against the subject post---Department had cancelled the offer of appointment of principal nominee and thereafter had requested for `alternate nomination' but the same was not acceded to by the Public Service Commission due to expiry of requisite time---Petitioner was barred from invoking the extraordinary jurisdiction of High Court in presence of availability of alternate remedy---Constitutional petition was liable to be dismissed on this ground also---Petitioner was never discriminated by the Public Service Commission and was not entitled to claim an equal treatment under the given facts, she could not be selected and appointed on the post which had fallen vacant as vacant posts including incoming/ requisitioned posts had to be re-advertised/advertised---Constitutional petition was dismissed, in circumstances.
Raffaqat Ali v. Executive District Officer [Health] and others 2011 PLC (C.S.) 1615; Dr. Fawad Anwar v. Government of N.-W.F.P through Secretary, Services and General Administration Department, Peshawar and 3 others PLD 1995 Pesh. 1; Dr. Faiz-ur-Rehman and others v. N.-W.F.P. Public Service Commission, Peshawar 1996 SCMR 589; Ejaz Majeed Bhatti and 5 others v. Punjab Public Service Commission 2011 PLC (C.S.) 1049; Shamsuddin Qazi v. Federation of Pakistan 2006 PLC (C.S.) 170; Shabana Akhtar v. District Coordination Officer Bhakkar and 2 others 2012 PLC (C.S.) 366; Faiz Bakhsh and others v. Deputy Commissioner/Land Acquisition Officer, Bahawalpur and others 2006 SCMR 219; Musa Nazir and others v. N.-W-F-P- Public Service Commission 1993 SCMR 1124=1993 PLC (C.S.) 1188; The Tariq Transport Company, Lahore v. The Sargodha-Bhera Bus Service, Sargodha and others PLD 1958 SC 437 and Mirza Shaukat Baig and others v. Shahid Jamil and others PLD 2005 SC 530 rel.
(b) Constitution of Pakistan---
---Art. 199---Constitutional petition---Scope---Constitutional petition was only meant for protection of vested right against its infringement and not otherwise.
Petitioner in Person.
Abdul Sadiq Tanoli, Standing Counsel along with Atiq Ahmed, Assistant Director FPSC for Respondent No.1.
M.M. Aqil Awan Amicus Curiae.
Date of hearing: 25th November, 2014.
JUDGMENT
AZIZ-UR-REHMAN, J.--- Through the captioned Constitutional Petition filed on 26-10-2010 by the Petitioner viz: Dr. Sumera Tabassum, under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the Petitioner is seeking the following reliefs:---
(a) Declare that the Respondent No.1 FPSC has shown indifferent and negligent attitude towards its duties and therefore also responsible for delay in recommending waiting list candidate.
(b) Honourable Court may be pleased to direct respondent No.I FPSC to send its recommendation in favour of top most waiting list candidate for the post of Lecturer 'Pharmacology' JPMC in Case No. F4 144/2008.
(c) Direct the respondents Nos.2 to 4 to follow the recommendation of FPSC in above stated case.
(d) Direct the respondents Nos.1 to 3 to make appropriate rules which make sure that there would not be repetition of the same process of 2-3 years in case of a candidate do not join his/her duties and therefore avoiding of delay in recruitment and wastage of public time and money.
(e) Meanwhile, restrain the respondents Nos.1 to 4 from requesting advertising selecting or posting any other person against the post of Lecturer Pharmacology' JPMC which is before the Court.
(f) May take all the records of Federal Public Service Commission [FPSC] regarding case F4 174/2008 and keep it under its kind control, as Petitioner fears that her name at number 1 of the waiting list of 'Pharmacology' post may be altered to fail Petitioner to get her right. This alternation may deprive the Petitioner's right even after getting her point agreed by the Honourable Court.
(g) Grant any other relief this Honourable Court may deem proper and fit under the circumstances of the petition/case.
2. The brief facts necessary for adjudication of the lis in the background are as follows:-
3. Per averments, the petitioner got her MBBS Degree from Karachi University, Karachi which indeed is a duly recognized University of Pakistan. The respondent No.1 i.e. Secretary Federal Public Service Commission [In short FPSC], Islamabad in the year, 2008, had got published advertisements in 'Daily News' of 17-7-2008 and 18-7-2008 whereby applications from the suitable candidates for the 4 posts of Lecturers in 'BPS-17' [i.e. two for 'Pathology', one for 'Pharmacology' and one for 'Physiotherapy'] at Jinnah Postgraduate Medical Centre [In short JPMC], Karachi, Ministry of Health were invited by FPSC under Case No.F-4-174/2008 in the consolidated advertisement Nos.14/2008 and 16/2008 respectively.
4. The petitioner as being a fit and qualified person, per assertion, also applied for the post of lecturer 'Pharmacology' at JPMC. The petitioner, in response received a letter, however, after a period of almost 5 months for appearing in a 'written test' stated to be held on 24.1.09 at F.G. Boys Inter College Karachi Cantt. In compliance thereof, the petitioner did appear in the 'written test' and later on also called through letter dated 24-8-2009 for 'interview' held by FPSC on 3.09.2009, at FPSC Branch Office Karachi.
5. The petitioner as a candidate for the post of 'Pharmacology' and some other candidates for 'Pathology' and 'Physiotherapy', did appear for interview on 03.09.2009 in the FPSC's office at Karachi. Though the petitioner's interview was gone excellent but the petitioner, nonetheless, was not selected as informed by the FPSC. Instead, on the post of 'Pharmacology' some other candidate was selected. Per petitioner's version, she was at Sr. No.2 of the 'waiting list'. The petitioner accepted the result as being an obedient and faithful candidate. Later on through the source of 'Internet' and vide Ministry of Health's letter dated 14.11.2009, the Petitioner came to know that four candidates were actually selected on the advertised posts. The selected candidates were Dr. Urooj Aqeel [for 'Pharmacology' on merit], Dr. Ali Hussain [for 'Pathology' on Punjab domicile], Dr. Samina Ghulam [Lecturer 'Physiotherapy' on Sindh [U] and Dr. Ayesha Iftikhar [for 'Pathology' on Punjab domicile]. Per information, out of the four selected candidates, Dr. Urooj Aqeel [for 'Pharmacology' on merit] and Dr. Ali Hussain [for 'Pathology' on Punjab domicile], did not join their duty[ies] nor otherwise, had sent any intimation.
6. Later on, the petitioner also came to know that Dr. Ali Hussain's selection for the post of 'Pathology' was cancelled due to his failure to join on 02.04.2009, by Ministry of Health [in short MoH]. As far as Dr. Urooj Aqeel, who was selected for the post of 'Pharmacology' is concerned, she was given 15 more days from 1-4-2010 for joining [i.e. in all 4 and 1/2 months after 1st offer] through letter dated 1-4-2010 of MoH. However, without any plausible explanation and/or reason therefor, even after such extension, Dr. Urooj Aqeel did not join the 'Pharmacology' post of lecturer. In the case of Dr. Ali Hussain an alternate candidate viz. Ayesha Khalid from the 'waiting list' was given posting offer by MOH on 6-7-2010 i.e. pursuant to letter of Commission dated 1-6-2010.
7. The petitioner, thus sensing 'clear discrimination' and 'wrong doing' on the part of MOH, took up the matter through writing letters to MOH on 22-7-2010 as well as to FPSC as being the controlling authority of recruiting process about the discriminative behavior of MoH. Despite the above, the concerned officials of FPCS's nonetheless, shown totally indifferent attitude in the case of Petitioner and also regarding it's 2 years efforts. On the contrary, OFFER OF APPOINTMENT of Dr. Urooj Aqeel was cancelled due to her non-joining and thereafter a letter to FPSC for alternate candidate was also sent by MoH. The FPSC's concerned officials, however, in the case of petitioner and obviously in their own wisdom refused and/or avoided to issue nomination letter to the petitioner as an alternate/waiting candidate, mainly on the plea that with effect from offer letter dated 14-11-2009, the 6 months' time for providing alternate candidate from waiting list has expired 13-5-2010. Further, the petitioner also came to know through FPSC that the available seat of 'Pharmacology' now will be re-advertised and the entire process shall thus be repeated afresh. Per petitioner's stand, such act of respondents Nos.1 and 3 is not only 'discriminately' but also against the prevailing practice as having been adopted in the case of Dr. Ali Hussain [for 'Pathology' on Punjab domicile] as well as in the case of Dr. Ayesha Khalid who was appointed on the post of Pathology in the place of Dr. Ali Hussain from the waiting list.
8. Further, the case of the petitioner is that FPSC, did not take any step for reminding the MoH for doing necessary action regarding the 'alternate'/'waiting list' of the candidates. Ministry of Health [MoH], though had later on asked for the alternate candidate of 'Pathology' but the post of 'Pharmacology' lecturer gone un-noticed by the Ministry of Health as well as by FPSC till the end of expiry date of 'waiting list' [i.e. 13-5-2010]. As per Petitioner's version, due to such 'discriminative inaction' of MoH and of FPSC and also on account of their negligence, different and lethargic attitude, the Petitioner has thus compelled to approach this Court by way of the instant petition for redressal of her grievances.
9. On 02.12.2010, when above Petition came-up before the Court, then this honourable Court, while, issuing notice to the respondents passed the following order:---
"1. FOR ORDERS ON OFFICE OBJECTION NO.4
2. FOR ORDERS ON MISC. NO.12369/10 (Exemption)
3. FOR KATCHA PESHI
4. FOR ORDERS ON MISC. NO.12370/10 (stay)
02.12.2010
Petitioner present in person.
1. Petitioner is directed to comply office objections within two weeks.
2. Granted subject to all just exceptions.
3. The petitioner submits that she, in response to an advertisement for the post of Lecturer in J.P.M.C. applied to the Federal Public Service Commission. Four doctors were selected. Petitioner was not amongst those four but she was in place No.1 in the waiting list of her specific discipline i.e. pherma cology. Two of four selected persons joined and other two did not. Therefore, she had a right to be called and appointed. Let pre-admission notice be issued to the Respondents as well as Deputy Attorney General,
4. Notice for 21-12-2010."
10. Upon service, on behalf of respondents Nos.3 and 4, common comments' have been filed wherein, inter alia, it was asserted as follows:-
Paras 7 and 8. Admitted that Dr. Urooj Aqeel selected [for the post of Lecturer 'Pharmacology' BS-17] and Dr. Ali Hussain [for the post of Lecturer 'Pathology' BS-17]. Both failed to join their duties within the specified period as mentioned in their offer letter No.F.1-6/99/Pr-11 (Vol-III) dated 14.11.2009 [Annex-A]. Dr. Urooj Aqeel, failed to report for duty within the specified period as mentioned in her offer letter. Accordingly, she was asked to report for duty within 15 days with the clear understanding that failing which, her offer letter shall stand cancelled, without further notice vide Ministry of Health letter No.F.1-25/95/Per-II dated 1st April, 2010 [Annex-B].
Para-9. Admitted that in the case of Dr. Ali Hussain no extension time in joining time was given and it was an act of inadvertently overlook on the part of respondents 3 and 4.
GROUNDS:
F. Not admitted. The referred letter of Ministry of Health to FPSC regarding nomination of an alternate candidate due to failing in joining report of the principal candidate i.e. [Dr. Urooj Aqeel] was of dated 14.11.2009 and not 14.09.2010. However, the reminder letter was dated 01.04.2010.
11. Respondent No.1 has also filed Reply/Submissions along with several supporting documents vide Statement of Deputy Attorney General dated 15th April, 2014. In answer thereto, the petitioner has also filed her detailed reply wherein the averments/assertions made in the 'reply' of respondent No.1 have been denied i.e. para by para.
12. On 02.03.2012, when the above matter came-up before another Division Bench of this Court, then Mr. M. M.Aqil Awan Advocate and Dr. Muhammad Farogh Naseem Advocate, were appointed as 'Amicus Curiae' for assistance of the Court. For convenience and ready reference Order of 2nd March, 2012 is reproduced as under:-
02.03.2012
Petitioner in person
Mr. Ashique Raza learned DAG
*****
The brief facts of the case are that the Petitioner participated in the selection process for the post of the Lecturer for 'Pharmacology'. Along with the above post, several other posts were also advertised, one being Lecturer for 'Pathology'. The Petitioner, however, stood at No.2 and, therefore, was not selected. In the case of 'Pathology', the candidate, who succeeded, did not join within the prescribed time and, therefore, the department sent a request to the Public Service Commission for nomination of another successful candidate. Such was done. However, in the case of the Petitioner though the successful candidate did not join within the prescribed time, however, no request was made by the department for nomination to the Public Service Commission or the next successful candidate for joining. Underlining is ours].
The petitioner now submits that she has been discriminated and now the same post is being re-advertised. In order to pass appropriate orders, we would appoint Mr. M.M. Aqil Awan, advocate and Dr. Muhammad Farough Naseem, advocate as Amicus Curiae to assist this Court.
To come up on 5-4-2012 at 11.00 a.m.
13. Finally, on 28.10.2014, when the above petition came-up before us, we heard Dr. Sumera Tabassum in person, Mr. M. M. Aqil Awan, learned 'Amicus Curiae' and Mr. Abdul Sadiq Tanoli, learned Standing Counsel and with their valuable assistance also gone minutely through the available record. Dr. Muhammad Farogh Naseem, learned 'Amicus Curiae', however, could not appear perhaps on account of his 'pre-occupation' in some important cases at Islamabad.
14. The petitioner while, arguing her case in person, vehemently contended that she besides being discriminated, has also been deprived of her vested right by respondents Nos.1 and 3, ex facie in a calculated manner. It goes without saying from selecting her on the post of 'Pharmacology' [BPS-17] in JPMC, on which Dr. Urooj Aqeel, was originally selected. The Petitioner also contended that in the case of Dr. Urooj Aqeel, who was initially selected on the post of 'Pharmacology' on merits, was given 15 days' more time from 1st April, 2010 through MoH's letter of 1st April, 2010. The total time so given/consumed w.e.f. lst offer is 4-1/2 months. In contra, per Petitioner's stand, the same concession was not allowed in the case of Dr. Ali Hussain. According to petitioner, even in the extended time period Dr. Urooj Aqeel failed and/or avoided to join the post as such the Petitioner being on the top of the 'waiting list' under circumstances ought to have been given the offer letter as was done in the case of Dr. Ali Hussain who was initially selected on the post of 'Pathology' and on his non-joining the 'alternate candidate' on the 'waiting list viz Ayesha Khalid was given posting offer on the said post by MoH on the recommendation of FPSC. In this regard, the Petitioner made reference to the letters of Commission and MoH dated 1st April, 2010 and 6th July, 2010 respectively. Per petitioner, the behavior of both the MoH and FPSC is not only discriminatory but also against the law and procedure in vogue.
15. The petitioner in support of her contentions and with reference to the alleged discriminatory attitude of both MoH and FPSC, focused our attention towards' her two letters of 20th July, 2010 and 22nd July, 2010 and argued in vehemence that despite such letters FPSC did not respond positively, however, MoH, indeed had much earlier got cancelled the offer of appointment of Dr. Urooj Aqeel obviously due to her non-joining of the post of 'Pharmacology' and had also sent letter dated 3rd August, 2010 to FPSC for providing the name of the 'alternate candidate' if, available for filling-up of the post of Lecturer of Pharmacology [BPS-17] in JPMC, Karachi which remained vacant on account of non-joining of Dr. Urooj Aqeel.
16. The petitioner in view of the aforesaid scenario though was also expecting offer letter for the post of 'Pharmacology' so remained vacant but surprisingly the FPSC's officials perhaps in their 'own wisdom' refused to issue offer letter for appointment on the post of 'Pharmacology' mainly on the plea that with effect from issuing the offer letter of 14th November, 2009, the requisite time of 6 months for providing 'alternate candidate' had already expired on 13th May, 2010. The time limit of 6 months, if any, and expiry thereof, without making any request by MoH to FPSC for forwarding/nominating the name of the Petitioner as 'alternate candidate' for the post of 'Pharmacology' [PBS-17] in JPMC, Karachi according to the Petitioner is the absolute fault of MoH and FPSC and as such for the same reason much-less, the Petitioner could not be penalized/deprived of her appointment on the post of 'Pharmacology' [PBS-17] got advertised in the month of July, 2008.
17. The petitioner also argued that re-advertising/advertising of the posts 'Pharmacology' at JPMC, Karachi by the FPSC as now intended by FPSC is nothing but an absolute act of discrimination in respect of the petitioner's case. Lastly, the petitioner prayed for allowing the petition as prayed otherwise, the petitioner shall be seriously prejudiced if, she is not selected on the post of lecturer of Pharmacology lying vacant in JMPC, Karachi.
18. Mr. M.M. Aqil Awan, learned 'Amicus Curiae' appointed vide order dated 02.03.2012 was kind enough to appear and assist the Court. The submissions made by learned 'Amicus Curiae' in brief run as follows:---
a. The admitted position of the fact is that the Petitioner applied for the post of lecturer 'Pharmacology' [BS-17], in JPMC in the year, 2008 as reflected by a letter dated 7-11-2009. Seemingly the Petitioner could not qualify on 'merit' and instead one Dr. Urooj Aqeel was qualified and recommended for appointment on the post of Lecturer 'Pharmacology' [PBS-17].
b. Pursuant to the same consolidated Advertisement[s], it appears, that on the post of Lecturer for 'Pathology' one Dr. Ali Hussain was recommended for appointment but as demonstrated vide Memorandum dated 29.04.2010 his recommendation was later on cancelled due to his non-joining. The Memorandum dated 01.04.2010, shows that Dr. Urooj Aqeel s recommendation for appointment as Lecturer 'Pharmacology' was also cancelled.
c. Upon such cancellation and obviously on the request of MoH against the vacancy of Dr. Ali Hussain, Dr. Ayesha Ali was recommended by the FPSC for appointment as lecturer on the post of 'Pathology', as is evident from the letter of 01.06.2010.
d. A similar request was also made to the FPSC by the Ministry of Health [MoH] vide letter dated 3-4-2010 that Dr. Urooj Aqeel has neither reported for duty nor otherwise, has made any request for extension in joining time/period, therefore, an 'alternate candidate' be nominated, if available, to fill-up the post of 'Pharmacology' [PBS-17].
E. There are two letters of the petitioner on record, one to the Ministry of Health [MoH] and the other to the FPSC wherein inter alia an issue has been raised to the effect that since, Dr. Ayesha Ali has been appointed at the place of Dr. Ali Hussain, then why the petitioner is being discriminated and not substituted against the post of Dr. Urooj Aqeel [selected on Urban quota].
19. Learned 'Amicus Curiae', keeping in view the situation in hand, submitted that the moot question before this honourable Court is, whether, the petitioner was got discriminated and if yes, then whether, the petitioner deserves to be meted out the same treatment as was given in the case of Dr. Ayesha Ali.
20. Mr. M. M. Aqil Awan, learned 'Amicus Curiae' on the points raised and issue involved made reference to a latest judgment of June, 2011, passed in the case of Raffaqat Ali v. Executive District Officer [Health] and others [2011 PLC (C.S.) 1615]. The relevant facts of the said case referred to by the learned 'Amicus Curiae' in brief read as follows:---
"Executive District Officer (EDO), Health, Narowal advertised, inter alia, 56 seats for initial recruitment to the post of School Health and Nutrition Supervisor in BS-17. The appellant applied for the said post and went through the recruitment process as prescribed under the Recruitment Policy, 2004 dated 17-9-2004. Thereafter, merit list of 56 candidates was prepared on 26-1-2010 and furthermore, a Waiting List of 14 candidates from amongst the successful candidates was also prepared by the District Recruitment Committee, The appellant was placed at Sr. No.10 of the Waiting List on the basis of seniority. Later on, only 47 out of 56 candidates joined and, therefore, nine seats fell vacant which were filled out of the Waiting List. As a result, the appellant moved up to Sr. No.1 of the Waiting List and waited for the next vacancy. Subsequently, a post fell vacant due to termination of the officer holding the said post but the appellant was not considered for the said post on the ground that the Waiting List was valid for 90 days from the date of appointment i.e., from 26-1-2010 till 26-4-2010. This time frame was fixed by the District Recruitment Committee, Health Department, Narowal on 7-1-2010. As the vacancy had occurred on 17-6-2010, the Waiting List had since lapsed."
21. The Hon'ble Division Bench of Lahore High Court in the aforesaid case of Raffaqat Ali v. Executive District Officer [Health] and others [2011 PLC (C.S.) 1615] upon appreciating the facts and circumstance of the case, while, setting aside the Judgment under Appeal, observed/held as follows:--
9. Waiting List is also advantageous because the recruitment process may not be initiated for a few posts that fall vacant and as a contingency, the candidates shortlisted in the waiting list can fill these posts. Waiting List, is actually a list of selected eligible candidates, who have successfully filtered through the…
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