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Petitioner: MUHAMMAD JAMSHAID VS Respondent: GOMAL UNIVERSITY, D.I. KHAN through Vice-ChancellorHonorable Justice Attaullah KhanGohar Zaman Khan Kundi,Saleemullah Khan Ranazai
2010 P L C (C
2010 P L C (C.S.) 524
[Peshawar High Court]
Before Attaullah Khan and Muhammad Safdar Khan Sikandri, JJ
MUHAMMAD JAMSHAID
Versus
GOMAL UNIVERSITY, D.I. KHAN through Vice-Chancellor and 6 others
Writ Petition No.8 of 2009, decided on 19th January, 2010.
Constitution of Pakistan (1973)---
----Art. 199---Constitutional petition---Civil service---Appointment---Petitioner had challenged appointment of respondents as Lecturers by Syndicate of the University---Syndicate appointed respondents as Lecturers by approving the recommendation of Selection Board---Petitioner had alleged that in the relevant advertisement, no screening test was mentioned in which petitioner participated and he qualified in the said test---Validity---Provision of screening test though was not mentioned in the advertisement appeared in the newspaper for the vacancies, non-mentioning of screening test in the advertisement was not fatal because all details were not required to be given in the advertisement---Non-mentioning of screening test in advertisement was not necessary, especially when provision of screening test had been approved by Syndicate in its meeting---Petitioner no doubt was gold medallist, but holding a gold medallist position or obtaining first division was not a sole guarantee for appointment, because had it been so, there would have been no test and such person would have been taken in employment without any formalities---Gold medallist or a higher qualified person could not claim title for appointment alone on that basis; he had to face certain formalities like test and interview---Petitioner, in a constitutional petition was required to prove illegality, violation of fundamental rights or defect in jurisdiction---In the present case, a duly constituted Committee conducted the proceedings of selection, and after due consideration, a merit list was made and recommendation was formed which was approved by the Syndicate in the meeting and in pursuance of approval of the Syndicate respondents were appointed as Lecturers---No illegality having been committed by the authorities concerned, petition being devoid of merits, was dismissed.?
Gohar Zaman Khan Kundi for Petitioner.
Saleemullah Khan Ranazai for Respondents.
Anwarul Haq for Respondents Nos.6 and 7.
Date of hearing: 19th January, 2010.
JUDGMENT
ATTAULLAH KHAN, J.--- Muhammad Jamshed has challenged the decision of Syndicate dated 4-12-2008 taken in the 77th meeting of the Syndicate and the office order, dated 5-12-2008 vide which respondents Nos.6 and 7 were appointed as Lecturers (BPS-18) in the Department concerned, as illegal, without jurisdiction and constitutional and prayed for its cancellation.
2. The facts are that in pursuance to advertisement regarding the vacancies of Lecturers in BPS-18 in the Department of Sports Sciences and Physical Education, Gomal University, D.I. Khan, application was submitted by the petitioner. It is alleged in the petition that in advertisement, no screening test was mentioned in which petitioner participated and he qualified in the said test. He also attended the interview before Selection Board. Thereafter in its 77th meeting the Syndicate took up the matter of appointment of Lecturers and decided to appoint respondents Nos.6 and 7 as Lecturers by approving the recommendations of Selection Board and accordingly they were appointed through an office order dated 5-12-2008, which, according to the petitioner is unconstitutional and illegal.
3. Learned counsel for both the parties heard and record on file perused, in the light of which our discussion is as under:---
4. The following arguments were addressed by learned counsel for the petitioner.
(a) The screening test is illegal because no provision is existed and similarly the counting of marks in respect of screening test is unlawful.
(b) The composition of Selection Committee is also not in accordance with law because the two members co-opted, are not on the approved list and therefore, their consultation is not meaningful.
(c) That the vacancies advertised in the newspaper were not approved by Finance and Planning Committee and its approval was subsequently made after screening test which was unwarranted.
(d) The petitioner is gold medallist and first division holder throughout.
5. On the other hand, counsel for the respondents contended that the screening test is duly approved by "Syndicate" and therefore, it is fully provided in the Rules. Regarding composition, the plea of learned counsel for the respondents is that co-opted Members, namely, Dr. Salahuddin Khan and Prof. Dr. Muhammad Shah are fully qualified to participate in the proceedings of Selection Committee as Subject Specialist. He pointed out that their names are available in the list attached with the comments. Regarding non-approval of vacancies by Finance and Planning Committee, it is submitted that it is administrative matter and the petitioner has got no cause of action to raise objection in this regard.
6. We have gone through the available record and also considered the arguments of learned counsel of both parties.
7. We would first discuss the objection regarding screening test. It is true that provision of screening test is not mentioned in the advertisement appeared in the newspaper for the vacancies. In our opinion non-mentioning of screening test in advertisement is not fatal because all details are not required to be given in the advertisement. Only basic requirements are mentioned which include qualification etc. for the candidates. The screening test is not noval. Almost all the Public Service Commissions in the Pakistan including F. P. S. C. conduct screening test for the purpose of short listing the candidates. These tests are not mentioned by Public Service Commission or other bodies in advertisements. There mentioning is not necessary. Moreover the provision of screening test has been approved by Syndicate in its 73rd meeting held on 28-7-2007. The relevant findings of the meeting is reproduced below:---
"Item No.5 procedure of screening test of teaching as well as administrative staff in BPS-17 and weightage of marks awarded by Subject Experts for appointment of Lecturer/Assistant Professor.
(a) In connection to this item, the House decided that the marks of the screening test will be included and summed up with the remaining marks specified in the evaluation pro forma sans the marks for interview. However, the top five scorers will be called for interview/appearance in the Selection Board for each post. The members of the Syndicate hoped that the Vice-Chancellor shall ensure a visible transparency in the process of selection."
From the above it is crystal clear that screening test is provided by the University Authorities.
8. Now the crucial point is as to whether the marks obtained in the screening test by candidates can be counted. The pro forma attached with the comments show that the respondents, have given the marks obtained in the screening test by the candidates in Column No.4. The marks obtained by candidates are given against their names. This pro forma also provides for marks for academic record, distinction, additional higher qualification, experience, negative marks and interview. The decision of the Syndicate dated 28-7-2007 referred to above also provides that the marks obtained by a candidate will be included in the proforma. Therefore, no objection can be raised with regards to the marks obtained by candidate in screening test. The petitioner has failed to prove discrimination in this regard. So the objection is of no avail.
9. As far as the academic qualification is concerned it is nowhere denied by respondents. The petitioner is gold medallist as per record of this petition. But holding a gold medallist position or a first division is not a sole guarantee for appointment because had it been so there would have been no test and such person would have been taken in employment without any formalities. A gold medallist or a higher qualified person cannot claim title for appointment alone on this basis. He has to face certain formalities like test and interview. If we look into this aspect of the case i.e. higher qualification again we would refer to proforma (Annexure "R") wherein marking system for selection of University Teacher BPS-18 is mentioned. This proforma is attached with the comments. This shows that the petitioner Muhammad Jamshed at S.No.1 has been given 29 marks for academic record which is highest amongst other candidates meaning thereby that he has not been discriminated in this regard. His higher qualification has been taken into consideration by giving him maximum marks. He has been given 5 marks in distinction column and 10.8 marks in interview. So there seems no mala fide on the part of University Authorities to deprive the petitioner from his legal rights. So in the case of the petitioner his higher qualification has duly been considered and appreciated.
10. Coming to the arguments regarding illegality of the composition of Selection Board it is to be mentioned that the two persons namely Dr. Salahuddin Khan and Prof. Dr. Muhammad Shah were associated with the selection initially some other persons were nominated and after their inability to attend the meeting they were substituted by the above-mentioned Experts. In this regard section 13(3) empowers the Vice-Chancellor to take such action which may be necessary in emergency which requires immediate action. The refusal of Expert summoned for the purpose forced University Authorities to exercise their power under section 13(3) of the Gomal University Act, so the inclusion of the Subject Experts are fully covered by the law and exception can be taken.
11. In writ jurisdiction a petitioner is required to prove illegality, violation of fundamental rights or defect in jurisdiction. In our opinion as stated above a duly constituted Committee conducted the proceedings of selection and after due consideration a merit list was made and formed their recommendation which were approved by the Syndicate in its meeting dated 4-12-2008. In pursuance of approval of the Syndicate on 5-12-2008, respondents Nos.6 and 7 were appointed as Lecturers. No illegality has been committed by respondents concerned, therefore the petition being devoid of merits, is hereby dismissed.
H.B.T./588/P?????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.
2010 P L C (C.S.) 528
[Lahore High Court]
Before Ijaz Ahmad Chaudhry, J
MUHAMMAD UMAR DARAZ
Versus
GOVERNMENT OF THE PUNJAB through Secretary Health and 2 others
Writ Petition No.2877 of 2010, decided on 25th February, 2010.
Constitution of Pakistan (1973)---
----Arts. 4, 25 & 199---Constitutional petition---Civil service---Discrimination---Effect---Petitioner challenged the impugned order restraining to perform his duties, as laboratory technician on contract basis---Petitioner asserted that he along with other employees had appeared against the one of the officials in inquiry which had been conducted regarding his malpractices---Petitioner further asserted that authorities had shown the petitioner as contract employee and on account of that reason his name did not appear in the notification in which all the employees who were similarly placed as the petitioner were regularized---Validity---Held, ill-will existed between the petitioner and the authorities as the petitioner had appeared as a witness when an inquiry was conducted against an official for commission of malpractices---Petitioner being a contract employee was entitled to be regularized as per notification but in violation of the said notification his services were not regularized---Petitioner could not be discriminated, as like all other employees similarly placed, was to be dealt with as provided under Arts.4 and 25 of the Constitution---High Court allowed the constitutional petition and directed the authorities to regularize services of the petitioner. ? Syed Faiz-ul-Hassan for Petitioner.
Syed Mukhtar Abbas for Respondent No.3.
Waqar Qadeer Dar, A.A.-G. along with Dr. Nasir Ali, D.O.(H), Chiniot.
ORDER
IJAZ AHMAD CHAUDHRY, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has challenged the order dated 8th February, 2010 passed by the Senior Medical Officer, Rural Health Centre, Lalian, through which the petitioner has been restrained from continuing his duty as Lab Technician at Rural Health Centre, Lalian.
2. The brief facts of the case are that the petitioner was appointed as Laboratory Technician on contract basis for a period of one year in the Health Department on 23.1.2009 and was posted at Rural Health Centre, Lalian. Dr. Ijaz Haider, respondent No.3 is Senior Medical Officer, at Rural Health Centre, Lalian District Chiniot and employees of Rural Health Centre, Lalian have made certain complaints against him that he was misusing his authority and inquiry was conducted by the Executive District Officer, in which allegations were found correct and the matter was reported to the Secretary Health. Then a complaint was filed by the DPO against the said doctor on which an inquiry was conducted by the DCO, Jhang and he also recommended for departmental action against respondent No.3 as the allegations against him regarding misuse of powers stood proved. It is claimed by the petitioner that as the petitioner had also moved an application against respondent No.3 and made statement against him, so he became annoyed and salary of the petitioner was stopped. The petitioner was constrained to file Writ Petition No.14590 of 2009 in this Court which was disposed of on 6th November, 2009 after perusal of the impugned order dated 14-7-2009 and while considering the documentary evidence produced by the petitioner, the EDO Health, Jhang was directed to pay the salaries to the petitioner and moreover, Secretary Health was directed for taking action against Dr. Ijaz Haider against whom in the two inquires conducted by two different forums, the allegations were proved.
3. The learned counsel for the petitioner contends that due to this grievance impugned order dated 8th February, 2010 in the present case has been passed through which the petitioner has been restrained from performing his duty by Dr. Ijaz Haider, Senior Medical Officer, Rural Health Centre, Lalian. The learned counsel for the petitioner contends that respondent No.3 has passed this order with mala fide intention and ulterior motives as the petitioner along with other employees had appeared against respondent No.3 in both the inquiries which had been conducted regarding the malpractices. It is further contended by the learned counsel for the petitioner that services of all the contract employees have been regularized by the Chief Minister Punjab in relaxation of rules and respondents had no authority to relieve the petitioner and they were bound to regularize the services of the petitioner but the respondents due to the background which has been discussed above have regularized the services of all the employees except the petitioner, who was restrained to perform his duties. Learned counsel for the petitioner further contends that the order is illegal and respondent No.3 is responsible to send the name of the petitioner as well showing him as contract employee but he had failed to perform his duty and due to this reason his name did not surface in the Notification dated 31st December, 2009 in which all the employees who were similarly placed with the petitioner were regularized. It is next contended that respondent No.3 had no authority to block the name of the petitioner as the petitioner had provided documents to him thrice, i.e. in December, 2009, 2nd January, 2010 and 31st January, 2010 and lame excuse has been made that the petitioner had not supplied documents for regularization of his services.
4. The learned A.A.-G. on the other hand opposes this writ petition on the ground that as the petitioner had failed to provide documents to the respondent, his services could not be regularized.
5. I have heard the learned counsel for the parties and also gone through the documents attached therewith. The petitioner admittedly was appointed by the Board constituted for appointment of employees on contract basis and the petitioner was qualified to be appointed as such. The petitioner joined Rural Health Centre, Lalian where respondent No.3 is Senior Medical Officer and certain complaints had been filed against him with certain allegations that he was misusing his authority, who was indulged in malpractices as well. The matter was enquired into by Executive District Officer (H), Chiniot who recommended for taking action against respondent No.3 and sent the matter to Secretary Health Punjab, which is still pending before him. In the meanwhile, another application was moved by the DPO whereupon inquiry was conducted by the DCO and he also found that respondent No.3, Senior Medical Officer, Lalian was involved in the said allegations. The statements have been given by the lower staff including the petitioner in support of the allegations and respondent No.3 being annoyed stopped the salaries of the petitioner whereupon the petitioner was constrained to file Writ Petition No.14590 of 2009, which was disposed of on 6-11-2009 after hearing learned counsel for both the parties with the following observations:--
"It is not denied that petitioner has been appointed as Laboratory Technician for three years and he joined Rural Health Centre Lalian; it is also admitted that the petitioner moved written complaint against respondent No.2 and levelled serious allegations that he is charging excess fee from the patients at the time of operation and tests etc. and inquiry was conducted on 3-6-2009 and inquiry report shows that serious allegations levelled against respondent No.2 has been proved. Learned counsel for the petitioner has pointed out that vide letter dated 24-6-2009 DCO Jhang had sent recommendations to the Secretary Health, Government of. Punjab for suspension of respondent No.2 but no action so far has been taken against him and in retaliation the petitioner has been transferred from Rural Health Centre Lalian to R.H.C. Ahmad Nagar. In the said circumstances this petition is accepted and order dated 14-7-2009 passed by respondent No.1 is set aside as it has been passed by incompetent officer and also on some extraneous grounds because the allegations levelled by the petitioner against respondent No.2 have been proved as-per report submitted by DCO Jhang. Even otherwise, there is no vacant post at Rural Health Centre Ahmad Nagar as petitioner has been directed to receive the salary from R.H.C. Lalian. Executive District Officer Health Jhang is directed to take action against respondent No.2 while considering the recommendations of DC (Health) Jhang vide its letter dated 24-6-2009 and dispose of the said matter immediately."
6. The Government of the Punjab through Notification dated 14th October, 2009 has regularized the services of the employees in BS-1 to BS-15, recruited on contract basis under the provisions of the Contract Appointment Policy issued by the S&GAD in 2004 against the posts presently held by them in various Government Department of the Punjab, with immediate effect. The petitioner being a contract employee was also entitled to be regularized as per said Notification but in violation of the said Notification his services were not regularized, vide Notification dated 31-12-2009, but through the impugned order dated 8th February, 2010 respondent No.3 has restrained the petitioner to perform his duties.
7. The only condition for regularization of the contract employees was subject to verification of attested antecedents (Degrees, Qualifications, Diplomas, I.D. Card, Domicile and other allied documents.). On the other hand, stand of the petitioner is that he had produced his documents before respondent No.3 thrice but he neither placed the same on the record nor recommended the name of the petitioner for regularization of his services and showed him as contract employee. It is also significant to point out here that there was ill will between the petitioner and respondent No.3 as the petitioner had appeared as a witness when the inquiry was conducted against respondent No.3 for commission of mal practices. In the earlier Writ Petition No.14590 of 2009 respondent No.3 had also been found responsible for stoppage of the salaries of the petitioner and the said writ petition was accepted by this Court and salaries were directed to be paid to the petitioner. Today, Criminal Original No.175-W of 2010 is also fixed wherein it has been claimed that the salaries have not been paid to the petitioner. However, DO(H) has made statement that papers for payment of the salaries to the petitioner have already been submitted to the Account Officer, who has undertaken to make payment to the petitioner and the said criminal original has been disposed of accordingly.
8. The petitioner is being continuously harassed through interference in the performance of his duties as per allegations by respondent No.3. There is some substance in the allegations as now respondent No.3 has again deprived the petitioner from having been regularized with mala fide intention and ulterior motives, who could not be discriminated as all the employees similarly placed were to be dealt with alike as provided under Articles 25 and 4 of the Constitution of Islamic Republic of Pakistan, 1973.???????????
9. For what has been discussed above, this Court in exercise of its jurisdiction accept this writ petition and set aside the order dated 8th February, 2010 by issuing direction to the respondents to regularize the services of-the petitioner and he shall be allowed to perform his duties.
10. Before parting from this order, I am constrained to observe that the case of respondent No.3 has already been referred by the D.O.(H) and DCO for taking action against him which is pending before the Secretary Health Punjab, who is directed to dispose of the same in accordance with law at the earliest. The learned Law Officer shall ensure compliance of the said order.
H.B.T./M-115/L????????????????????????????????????????????????????????????????????????????????? Petition accepted.