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Petitioner: SHAIKH ZAYED HOSPITAL AND POST GRADUATE MEDICAL INSTITUTES VS Respondent: Dr. MUHAMMAD SAEEDHonorable Justice Syed Mansoor Ali ShahImran Aziz Khan,Aamir Rehman
2010 P L C (C
2010 P L C (C.S.) 967
[Lahore High Court]
Before Syed Mansoor Ali Shah and Muhammad Yawar Ali, JJ
SHAIKH ZAYED HOSPITAL AND POST GRADUATE MEDICAL INSTITUTES through Chairman and Dean and another
Versus
Dr. MUHAMMAD SAEED and another
I.-C.A. No.32 of 2010, decided on 6th May, 2010.
(a) Civil Servants Act (LXX of 1973)---
----S.(9)(3)---Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, R.6---Rules of Business (1973), Rr. 11, 15(2) & 18---Constitution of Pakistan (1973), Art. 199---Constitutional petition--Chairman and Dean of Postgraduate Medical Institute (selection post of BS-22), appointment of---Appointment of respondent on such post through fresh extension of three years for third tenure by Prime Minister without recommendations of Selection Board---Validity---Such institute was established and given autonomous character by Ministry of Health through its Resolution dated 20-5-1986---According to Para 4 of said Resolution, institute had to perform functions through Board, Executive Committee and Chairman---"Board" under such Resolution would mean Board of Governors of the institute---Such post was being filled since year 1997 by Prime Minister on basis of a summary put by Cabinet Division--Institute was being run as a Government department under administrative control of Cabinet Division---According to S.9(3) of Civil Servants Act, 1973 and R.6 of Civil Servants (Appointment, Promotion and Transfer) Rules, 1973, appointment to post of BS-22 could be made by Prime Minister without recommendations of Selection Board---Process of appointment to such post would entail search and selection of a panel of prospective candidates by Board of Governors of institute, summary prepared by Cabinet Division, consultation with Establishment Division and final summary put up before Prime Minister (hereinafter referred to as "summary preparation process")---Summary preparation process being an intrinsic and integral part of final discretion exercised by Prime Minister as quality of his discretion would fundamentally depend on quality of summary put up before him---Decision of Prime Minister could not be judicially reviewed without "summary preparation process"---Failure of discretion at any stage of "summary preparation process" would result in collapse of entire discretionary edifice including final order---According to Para 8 of the Resolution, Chairman of institute must be an eminent person of scientific and medical repute---Such post was not a promotion post or cadre post restricted to existing employees of institution, rather appointment thereto was open to all fulfilling required qualification thereof---Previous appointment process and process of impugned appointment did not- show uniformity, transparency, certainty or structure about process---In absence of Rules and Regulations of institute or Rules under Civil Servants Act, 1973, process employed was unguided, unplanned, unsystematic, arbitrary, aimless, perfunctory, mechanical, haphazard, discrete and unreasonable---Process had never been geared to search and select best man for such post---Such an unguided and unstructured process of appointment for being facially discriminatory would block merit, cripple opportunities and impair access of talented doctors to such post---Office Memorandum No.6-4-96-R-3, dated 10-5-1997 issued by Cabinet Division still in force laid down procedure for appointment of Chief Executive/Head of autonomous/semi autonomous organizations under Federal Government by Prime Minister on basis of recommendations made by Selection Board after considering from a panel of three names for each vacancy---Procedure provided in such office memorandum was followed in year 2003, but was abandoned subsequently for unknown reasons---Rules 11, 15(2) & 18 of Rules of Business (1973) and the office memorandum had not been adhered to in the present case---Selection procedure provided in such office memorandum was not in conflict with Rules of Business (1973)---While selecting most eminent person of scientific and medical repute for such post, requirement of objective criteria for exercise of discretion would become fundamental--Exercise of authority for selection of a Chairman and Dean of a medical institute was a sacred trust to be discharged diligently and responsibly---Impugned order did not show as to why respondent had been allowed to embark upon his 3rd tenure---Medical science being a growing and developing field would require a person with demonstrable skill set and pioneering approach towards medical science and technology---Respondent holding post for last six years had been given extension for other three years---Respondent could be most competent mind in country for such post, but in absence of proper search for most eminent person of scientific and medical repute, his extension became suspect---Treatment given to three options placed before Prime Minister in summary put up by Cabinet Division was not satisfactory and showing structured discretion---High Court set aside impugned order and directed the Authority to initiate selection process for such post by following its guidelines.?
Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351; Imam Bakhsh and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365; Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280; Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612; Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hameed and others 2010 SCMR 511; Abid Hassan and others v. P.I.A.C. and others 2005 SCMR 25; Abdul Bashir and 9 others v. Government of Balochistan through Chief Secretary Civil Secretariat, Quetta and 3 others 2001 PLC (C.S.) 771 and Abdul Qayyum Khan v. District Officer, Passenger and Freight Transit Terminal, Lahore General Bus Stand, Badami Bagh, Lahore 2003 MLD 670 ref.
Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612; Aman Ullah Khan and others v. The Federal Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others PLD 1990 SC 1092; Sharp v. Wakefield 1891 AC 173, R. v. Askew, [(1768)4 Burr 2186; Judicial Review of Administrative Action, by De Smith (1995); Union of India v. Kuldeep Singh [(2004)2 SCC 590; Chairman, Regional Transport Authority, Rawalpindi v. Pakistan Mutual Insurance Company Limited, Rawalpindi PLD 1991 SC 14; Director Food, N.-W.F.P. and another v. Messrs Madina Flour and General Mills (Pvt.) Ltd. and 18 others PLD 2001 SC 1; Chief Secretary Punjab and others v. Abdul Raoof Dasti 2006 SCMR 1876; Abdul Wahab and another v. Secretary, Government of Balochistan and another 2009 SCMR 1354 and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 and Tariq Aziz-ud-Din's case HRC 8340/G/2009 ref.
(b) Civil service---
----Appointment or selection without any guideline or criteria---Effect.
Appointment or selection without any guideline or criteria for selection is recipe for disaster. Recruitment process that is unguided and unstructured can be easily hijacked by the influential and strong of the society, thereby depriving the right person the opportunity to hold the spot. Such a loose structure of selection process allows corruption, nepotism and jobbery to make its way into the system thereby crippling the foundation of the institutions.?
Father of the Nation Quaid-e-Azam Muhammad Ali Jinnah said in his Presidential Address to the Constituent Assembly of Pakistan at Karachi on 11th August 1947, "The next thing that strikes me is this: here again it is a legacy which has been passed on to us. Along with many other things, good and bad, has arrived this great evil-the-evil of nepotism and jobbery. This evil must be crushed relentlessly. I want to make it quite clear that I shall never tolerate any kind of jobbery, nepotism or any influence directly or indirectly brought to bear upon me. Wherever, I will find that such a practice is in vogue or is continuing anywhere, low or high, I shall certainly not countenance it."?
Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.
(c) Discretion---
----Exercise of discretion by public functionaries---Guidelines stated.
Public institutions cannot flourish and good governance cannot take root in this country unless public functionaries upheld the rule of law at all times and act strictly in accordance with law. To ensure that public functionaries act in accordance with law, fundamental function that needs to be meticulously regulated is their "exercise of discretion". Discretion of the public functionaries must strictly be within the framework of the law. In the absence of legislation, it must stand the test of fairness, procedural propriety, reasonableness, logic, transparency and good governance.?
Structuring the exercise of discretion means that decision arrived at by the public functionary and the competent authority is based on the objective criteria.?
Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.
(d) Civil service---
----Selection post, appointment on---Objective criteria stated.
Structuring the exercise of discretion means that the decision arrived at by the public functionary and the competent authority is based on objective criteria.?
The objective criteria now-a-days is based on objectively quantifiable evaluation basis, which is publicly known and is rules based. Such an objective criteria has no margin for personal preferences, likes or dislikes and can easily guard against the curse of nepotism and jobbery. The final order of the appointing authority must speak for itself clearly giving out the reasons why one candidate has been preferred over the others. Selection cannot be done behind closed doors based on discrete subjectivety and without comparative assessment of the candidates available in the talent pool.
Law of Writs by V.G. Ramachandran's case and Delhi Transport Corporation v. D.T.C. Mazdoor Congress and others AIR 1991 SC 101 rel.
Imran Aziz Khan for Appellants.
Aamir Rehman, Deputy Attorney General and Mian Bilal Bashir for Respondents.
Dates of hearing: 8th, 9th, 10th, 11th, March; 6th, 7th, 12th, 13th, 14th 15th April, 2010.
JUDGMENT
SYED MANSOOR ALI SHAH, J.---In the writ petition, respondent No.1 challenged the appointment of appellant No.2 as Chairman and Dean of Sheikh Zayed Postgraduate Medical Institute ("Institute") on the ground that it was against the "policy and law." It was further prayed by respondent No.1 that senior most person should be appointed as Chairman and Dean of the Institute. The said writ petition was allowed vide order dated 26-1-2010 passed by the learned Single Judge in Chambers, declaring the appointment of appellant No.2 to be illegal and directed that proper procedure be adopted in appointing the Chairman and respondent No.1 be considered while doing so. Appellants through this Intra-court appeal have challenged the order passed by the learned Single Judge in Chambers.
2. At the outset, Imran Aziz, Advocate, counsel for the appellants argued that the writ petition was not maintainable as it was hit by the bar contained Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It was argued that respondent No.1 was aggrieved of the appointment of appellant No.2 which fell within the terms and conditions of service and was covered under section 4 of the Service Tribunal Act, 1973. Counsel relied on Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351, Imam Baldish and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 in support of his contention. Perusal of section 4(b) of the Service Tribunal Act, 1973 reveals that in matters of "fitness" no appeal lies. The present post admittedly is a selection post to be filled on the basis of merit criteria provided in para 8 of the Resolution dated 29-5-1986. The impugned order dated 20-7-2009 of the Competent Authority followed by impugned notification dated 21-7-2009 issued by the Cabinet Division appointing appellant No.2 to the post of Chairman and Dean of the Institute determines "fitness" of appellant No.2 to the post and is, therefore, a subjective assessment. As there are no Rules or Regulations under the Resolution or Civil Servants Act, 1973 for the appointment of Chairman and Dean, therefore, the question of eligibility to the said post does not arise. The impugned order squarely falls outside the domain of section 4(b) of the Service Tribunal's Act, 1973. The preliminary objection of the appellant is, therefore, overruled.
3. Counsel for the appellants argued that post of Chairman is a selection post which is to be filled by the Federal Government on the basis of the criteria given therein. It was further submitted that the Resolution is not a statutory document, therefore, the appointment to the post of Chairman (BS-22) is not regulated by any statutory rules.
4. He further submitted that writ of quo warranto does not lie where the petitioner has a personal interest in the post in question and referred to the prayer of the writ petition as well as grounds `z' and `za' of the writ petition to support his contention and placed reliance on Imam Bakhsh and 4 others v. Deputy Commissioner, Lahhay and 16 others 1992 SCMR 365. He contended that it has been the consistent practice that the Chairman and Dean of the Institute has been appointed on the basis of a summary put up before the Prime Minister and relied on the earlier summaries since, 1997 put up for the appointment to the post of Chairman and Dean before the Prime Minister through the Cabinet and Establishment Division of the Federal Government.
5. Ch. Aamer Rehman, learned Deputy Attorney General tracing the history of the Institute submitted that Zulfiqar Ali Bhutto Trust was constituted vide Deed of Trust dated 6-11-1973 with the purpose to establish, maintain and run a hospital/medical college in Larkana and to promote medical, educational, religious, economic, social and cultural well-being of the people of Pakistan and for such purpose(s) to undertake or establish a project or projects in any part of Pakistan. The signatories to the Deed of Trust were Madam Nusrat Bhutto and others. Thereafter, under MLO No.22 dated 15-10-1977, the Board of Trustees of Zulfiqar Ali Bhutto Trust and the Board of Directors of every institution connected therewith were suspended and the powers of the Board of Trustees were directed to vest in and be exercised and performed by Chief Martial Law Administrator (CMLA) or by such other person or body or persons as may be appointed by him in this behalf.
6. He submitted that thereafter vide President's Order No.4 of 1978 dated 26-3-1978, Zulfiqar Ali Bhutto Trust was renamed as Sheikh Zayed Bin Sultan Alnahyan Trust and the Deed of Trust dated 6-11-1973 stood amended accordingly and the Board of Trustees of the aforesaid Trust and the Board of Directors of every institution connected therewith were to vest in the Board of Trustees composed of such persons as the President would from time to time appoint.
7. Vide S.R.O. No.580(1) of 1978 issued under Article 3(2) of the P.O. No.4 of 1978, the President appointed the following persons to constitute the Board of Trustees of Sheikh Zayed Bin Sultan Alnahyan Trust:--
1.
Secretary General-in-Chief
Chairman
2.
Attorney-General for Pakistan
Member
3.
Auditor-General of Pakistan
Member
4.
Secretary, Ministry of Health and Population (Health Division)
Member
5.
Secretary, Ministry of Housing and Works
Member
8. Thereafter, vide S.R.O. No.870(1) of 1984 dated 7-10-1984, S.R.O. No. 279(1) of 1989 dated 30-3-1989 and S.R.O. (sic) dated 2-4-1991, the Board of Trustees of Sheikh Zayed Bin Sultan Alnahyan Trust was reconstituted.
9. The learned D.A.-G. submitted that aside from the above-mentioned Trust, vide Resolution dated 29-5-1986 issued by the Ministry of Health, Special Education and Social Welfare (Health Division),. Sheikh Zayed Postgraduate Medical Institute was constituted with the objective to manage the administration and development of the Institute, Federal Postgraduate Medical Institute and the National Clinical Research Complex. The Institute is to inform its function under the Resolution through Board, Executive Committee and Chairman. Para 8 of the said Resolution provides for the appointment of a Chairman.
10. That vide notification dated 13-2-1994, the administrative control of the Institute along with its staff and equipment was transferred from the Ministry of Health to the Cabinet Division with immediate effect.
11. He submitted that the post of Chairman and Dean in grade-22 is a selection post and not a promotion post. He referred to section 9(3) of the Civil Servants Act, 1973 and rule 6 of the Civil Servants (Appointment, Promotion and Transfer) Rules, 1973 to show that there is no provision that provides for the process of appointment to the post of grade-22. He further submitted that the post of Chairman is not a promotion post because it is not possible that an officer once promoted is reverted to its original post after three years.
12. Mian Bilal Bashir, Advocate submitted that the Institute is an attached department of the Federal Government as held by the august Supreme Court of Pakistan in Mrs. M.N. Arshad and others v. Miss Naeema Khan and others PLD 1990 SC 612 and the post of grade-22 is a civil post while the officers are civil servants. He referred to Office Memorandums dated 30-11-2005 and 6-9-2000 to submit that Civil Servants (Appointment Promotion and Transfer) Rules, 1973 are applicable to the Institute and in cases of promotion to grade 20 and above, the Prime Minister is the competent Appointing Authority on the recommendations of the Central Selection Board.
13. The counsel submitted that the writ petition filed by respondent No.1 was in the nature of certiorari and his grievance is against the notification promoting the appellant to the post of Chairman and Dean. He further submitted that under paragraph 3 of the Resolution, the Federal Government may, from time to time, issue directives and instructions to the Institute and submitted that such a direction was the Office Memorandum dated 30-11-2005 wherein it is stated that promotion to BS-20 and above shall be on the basis of the recommendations of the Central Selection Board.
14. Mian Bashir Ahmed, Advocate submitted that the entire procedure has been violated in the appointment of appellant No.2 and relied on Secretary Ministry of Health, Government of Pakistan, Islamabad and another v. Dr. Rehana Hamed and others 2010 SCMR 511. He relied on Abid Hassan and others v. P.I.A.C. and others 2005 SCMR 25 to submit that the discretionary powers ought to be exercised transparently however in the present they were not. He relied on Abdul Bashir and 9 others v. Government of Balochistan through Chief Secretary Civil Secretariat, Quetta and 3 others 2001 PLC (C.S.) 771 to submit that the rules have been violated in the present case. He also referred to Abdul Qayyum Khan v. District Officer, Passenger and Freight Transit Terminal, Lahore General Bus Stand, Badami Bagh, Lahore 2003 MLD 670 to submit that the Cabinet Division has responsibility to act fairly and justly which hays not been done in the present case and finally submitted that Articles 2-A, 4 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, have been violated.
15. Arguments heard.
16. Admitted facts are that vide Resolution dated 29-5-1986 issued by the Ministry of Health, Special Education and Social Welfare (Health Division), Shaikh Zayed Postgraduate Medical Institute ("Institute") was established and given autonomous character in the following terms:
"Whereas it is expedient to establish the Shaikh Zayed Postgraduate Medical Institute and to give autonomous character to facilitate its unhindered and efficient functioning."
17. Para 4 of the Resolution provides that the Management of the Institute will perform its functions through the:--
(a) Board
(b) Executive Committee
(c) Chairman
18. Para 8 provides for the post of Chairman as follows:
8(1) Chairman.--(1) The Chairman who shall be an eminent person of scientific and medical repute, shall be the Chief Executive of the Institute and shall be appointed by the Federal Government for a term of three years extendable for a further period not exceeding three years at a time on such terms and conditions as may be determined by the Federal Government:
Provided that the Federal Government may, at any time, terminate the appointment of the Chairman without assigning any reasons.
??????????? (2) ---------?
(3) ---------
?19. The "Board" under the Resolution means the Board of Governors of the Institute. "Institute" means the Federal Postgraduate Medical Institute, Lahore and includes the Shaikh Zayed Hospital, Lahore and the National Clinical Research Complex of the Pakistan Medical Research Council.
20. On 13-2-1994, the administrative control of the Institute was transferred from the Ministry of Health to the Cabinet Division and vide Resolution of Cabinet Division dated 4-4-1998, the post of Chairman was renamed as "Chairman and Dean." Therefore, the post of Chairman is referred to as "Chairman and Dean" throughout this judgment.
21. The post of Chairman and Dean according to PC-1 prepared by the Ministry of Health, Special Education and Social Welfare and attached to the Ministry's letter dated 1-8-1967 is a grade-22 Post (the said post has been described as that of a "Dean" in PC-1). The said post is being filled since the year, 1997 by the Prime Minister on the basis of a summary put up by the Cabinet Division, which is the mode and manner employed to fill a grade-22 post.
22. After the decision of the august Supreme Court of Pakistan in Mrs. M.N. Arshad v. Miss Naeema Khan PLD 1990 SC 612 all the autonomous bodies established through Resolutions of the Federal Government were declared to be departments of the Federal Government and the officers holding posts in the said bodies to be Civil Servants. Subsequent to the said judgment, Office Memorandum ("O.M") dated 6-9-2000 was issued by the Establishment Division of the Federal Government which is reproduced hereunder:
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT (ESTABLISHMENT DIVISION)
No.4/1/91-R 7/R.3?????????????????????????????????????????? Islamabad the 6th September, 2000
OFFICE MEMORANDUM
SUBJECT:--??? GOVERNMENT POLICY IN REGARD TO AUTONOMOUS BODIES ESTABLISHED THROUGH RESOLUTIONS
The undersigned is directed to state that a number of autonomous bodies were established by the Federal Government from time to time through Resolutions under which some measure of functional autonomy was allowed to the Board of Governors/Board of Directors for the purpose of effective discharge of their allocated responsibilities. The legal status of such organizations came up for consideration before the Supreme Court in Civil Appeal No.154 of 1988, and it was held by the Court that organizations established through Resolutions were not bodies corporate but Government departments, and their employees were held to be civil servants.
2. In the light of the aforesaid decision of the Supreme Court the question whether the organizations established through Resolution should be made bodies corporate after fulfilling the required legal formality, or be run as a department of Government has remained under consideration of the Government for some time. The Chief Executive has now been pleased to approve the following general policy guidelines:
(i) All the Ministries/Divisions Incharge of organizations established through Resolution should determine in consultation with the Management Services Wing of Cabinet Division whether those organizations should be run as Government Department (i.e. Attached Department or Subordinate Office) or as autonomous body.
(ii) Where it is considered necessary in the public interest to run an organization as an autonomous body for the effective discharge of its functions, the Ministry/Division concerned should either get it registered as a Society or a Company under the relevant law or draft a separate legislation in consultation with Law and Cabinet Divisions for changing legal status of the organization to that of a body corporate.
3. All Ministries/Divisions are requested to take necessary action accordingly.
(AMIR-UL-HAQ) DEPUTY SECRETARY
23. The above O.M. was followed by another O.M. dated 30-11-2005 which is reproduced hereunder:
GOVERNMENT OF PAKISTAN CABINET SECRETARIAT…
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