Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Dr. INAYAT-UR-REHMAN VS Respondent: CHIEF EXECUTIVE, KHYBER TEACHING HOSPITAL, PESHAWARHonorable Justice SHAH JEHAN KHANAbdul Maabood Khattak,Mir Rahman
2004 P L C (C
2004 P L C (C.S.) 278
[Peshawar High Court]
Before Shah Jehan Khan and Ijaz-ul-Hussan Khan, JJ
Dr. INAYAT-UR-REHMAN
Versus
CHIEF EXECUTIVE, KHYBER TEACHING HOSPITAL, PESHAWAR and 3 others
Writ Petition No. 1070 of 2002, decided on 28th October, 2003.
Constitution of Pakistan (1973)---
----Art.199--- Constitutional petition---Appointment---Petitioner had questioned appointment of respondent as Assistant Professor Paediatric Surgery being not qualified for said post for want of required experience and prescribed qualification as advertised---Respondent though lacked prescribed qualification, but Selection Committee after holding interview, placed the petitioner subsequent to the respondent on merit list and after accepting recommendation, respondent was issued appointment order and was placed at Serial No.1 on the merit list---Respondent allegedly qualified F.R.C.S., a Post-Graduate qualification in General Surgery whereas petitioner had qualified F.C.P.S. in Paediatric Surgery earlier to respondent---Respondent though had not worked as Senior Registrar, but he was awarded five marks- which could be awarded only to those candidates who had worked as Senior Registrar---Petitioner was serving as Acting Senior Registrar in Paediatric Surgery Department and despite being entitled to said five marks, was not granted the same-- Respondent was also illegally granted five marks for publication in the concerned specialty as principal author although he had no publication as principal author---Respondent was also illegally allotted 10 marks in interview which could be awarded to a candidate having qualified F.C.P.S. in the respective specialty with three years' experience, whereas he did not possess said experience in respective field-- Irregularities committed by Selection Committee in appointing the respondent, ignoring petitioner who was more qualified and experienced than the respondent were also pointed out by Head of Paediatric Surgery Department who was also member of. Selection Committee---Petitioner had qualified his M.B.,B.S. and had got Post-Graduate qualification of F.C.P.S. prior to respondent and petitioner was more experienced in the relevant respective field than the respondent---Petitioner, in circumstances, was more qualified in concerned specialty in the terms of advertisement while Post-Graduate qualification of respondent was not in respect of the subject of Paedriatric Surgery, but was in General Surgery---Respondent had failed to supply required certificates within prescribed period and even at the time of interview---Certificates of experience subsequently produced by respondent were also not acceptable as the same were not issued by the Heads of the Departments concerned---High Court accepting Constitutional petition directed Authority concerned to rescind appointment order of respondent and appoint the petitioner against advertised post of Assistant Professor who was fully qualified and eligible for the said post.
Abdul Maabood Khattak for Petitioner.
Mir Rahman for Respondent No. 1.
S. Shaukat Hayat for Respondent No.2.
Astaghfirullah for Respondent No.3.
Date of hearing: 29th July, 2003.
JUDGMENT
SHAH JEHAN KHAN, J.---The petitioner has questioned the appointment of respondent No.3 as Assistant Professor Paediatric Surgery being not qualified for want of the required experience and A prescribed qualification published through advertisement in the Press dated 23-5-2002.
2. In brief, case of the petitioner is that he is serving as Acting Senior Registrar in the Department of Paediatric Surgery, Khyber Teaching Hospital, Peshawar. He qualified his M.B.B.S. in the year 1987 and F.C.P.S. in Paed Surgery in the year 1997. He entered in service. as M.O. in the year 1989. After qualifying F.C.P.S. in Paed. Surgery in 1997, he was transferred to Paediatric Surgery Department in January, 1998 and is still serving in the said Department.
3. The Chief Executive, Khyber Teaching Hostal, Peshawar; respondent No. 1, invited applications for various posts including one post of Assistant Professor in "PAEDIATRIC SURGERY" through advertisement issued in Daily "Dawn" on 23rd May, 2002. Qualifications for the said post was as under:.-
(a) M.B.B.S. or equivalent medical qualifications recognized by the Council;
(b) F.C.P.S./MS/MD in the respective subject or equivalent qualification in the specialty recognized by the Medical and Dental Council. Preference was said to be gig en to the candidates having at least one research paper as principal author in the relevant specialty to be published in the standard medical journal. The candidates must have three years teaching experience as 'Senior Registrar in the respective subject in a Teaching Hospital or equivalent experience recognized by the Medical and Dental Council.
4. The terms and conditions includes that applications shall be accompanied with complete bio data/academic documents which must reach to office of respondent No. 1 on or before 10th June, 2002: The qualifications and experience advertised were in accordance with notification dated 11-1-1999 issued by Health Department, Government of N.-W.F.P.
5. The petitioner along with respondents 3,4 and others applied for the post of Assistant Professor in Paediatric Surgery. Though the respondents 3 and 4 were lacking the prescribed qualifications but the Selection Committee after holding interview placed the petitioner subsequent to the respondents 3 and 4 in the merit list. Accepting the recommendations, respondent No. 1 issued appointment order of respondent No.3 who was placed at serial number one of the merit list.
6. Respondent No.3 is alleged to be a qualified F.R.C.S. a post- I Graduate qualification in General Surgery while the petitioner has qualified F.C.P.S. in Paediatric Surgery. Though respondent No.3 has not worked as Senior Registrar but he was awarded five marks which could be awarded only to those candidates who had worked as Senior Registrar and the petitioner is serving as Acting Senior Registrar in the Paediatric Surgery Department and entitled for the said marks. , Respondent No.3 was also illegally granted five marks for publication in' the concerned speciality in question as principal author and 0.5 marks upto 5 marks as maximum could be awarded to a candidate being a co author in a publication in the concerned speciality. Respondent No.3 had no publication as principal author but he was awarded 5. s marks. Respondent No.3 was illegally allotted 10 marks in interview which could be awarded to a candidate having F.C.P.S. Degree in they respective speciality with three years experience after post-Graduation and being principal author of a paper in the concerned specialty published in the Medical Journal. Respondent No. 4 was also wrongly placed at serial No.2 of the merit list being not qualified for want of requisite qualifications published in the advertisement. He qualified his F.C.P.S. in Paediatric Surgery in October, 1999 whereafter he has served for one and a half year as medical officer in general surgery department in the Federal Government Hospital, Islamabad and his total post-fellowship experience was three years. The three years post fellowship experience must be in the concerned speciality and in the recognized teaching institutions while the Federal Government, Hospital, Islamabad has no Paediatric Surgery Unit. His publication was, a :'case report and could not be considered for the grant of 5 marks as principal author of a paper in the concerned speciality published in the Medical Journal. He was also wrongly granted one mark as co-author because he was lacking the merits of a principal author. Not being principal author, respondent No.4 was wrongly allotted 10 marks in interview. He was also wrongly allotted 3 marks for additional experience because no such document was placed on record.
7. The irregularities committed by the Selection Committee were also pointed out by Head of the Paediatric Surgery Department who was also member of the Selection Committee in his letter dated 20-9-2002 to the Appointing Authority.
8. Comments were called from respondents but they failed to furnish the same despite repeated notices and ultimately on: 28-11-2002 the writ petition was admitted to full hearing. Subsequently, respondent No.1, Appointing Authority, expressed his desire to file written statement who was allowed to file the same. In his written statement, respondent No. l has agitated that the service of the petitioner as Medical Officer does not relate Paediatric service. However, his posting in the Department of Paediatric Surgery in January 1998 was admitted. Respondent No.3 was contended to have his F.R.C.S. in the year, 1993 while the petitioner qualified the same in 1997. Respondent No.3 was found to have more experience than the petitioner and also had more research work as compared to the petitioner. Respondents 3 and 4 were stated to have better performance in the interview than the petitioner'. Respondents 3 and 4 were found to have the requisite qualifications in the terms of the advertisement. He denied the petitioner's assertion that Federal Government Hospital, Islamabad has no Paediatric Surgery. Unit. However, respondent No.1 has not commented upon the letter dated 20-9-2002 issued by the Head of the Department of Paediatric Surgery who was also a member of the Selection Committee.
9. The petitioner has filed rejoinder to the written statement and has also placed on record certain additional documents in support of his contention.
10. We have heard the learned counsel for the parties and have also gone through the documents placed on record and the written arguments submitted by the learned counsel for the parties.
11. The petitioner who had qualified his M.B.B:S. in 1987 and F.C.P.S. in 1997 have submitted his experience certificate issued by Medical Superintendent K.T.H, Peshawar in the following terms:--
(a) As Medical Officer in Paediatric Surgery Unit with effect from 13-1-1998 to 5-I1-2000 (2 years 9 months 22 days).
(b) As Medical Officer in Paediatric Surgery Unit with effect from 5-I1-2001 to 30-12-2001 (one month 25 days).
(c) As Acting Senior Registrar in Paediatric Surgery Unit with effect from 31-12-2001 to 11-6-2002 (6 months 11 days).
12. Respondent No.3 in his curriculum vitae intimated that he qualified his M.B.B.S: in the year 1986 and his F.R.C.S. in 1993. As regards his experience, he allegedly worked as Senior House Officer Paediatric Plastic Surgery - from January, 1990 to December, 1990 (one year) again as Senior House Officer Paediatric Surgery from September, 1992 to July, 1993 (about 11 months) and as Registrar in Paediatric Surgery from November, 1995 to June, 2000 (about 5 years and 2 months) and only for the last year, he has stated to have served in the capacity as Senior Registrar. It is pertinent to mention here that requisite experience was 3 years as Senior Registrar in the Paediatric Surgery and respondent No.3 as per his curriculum vitae, has served in the capacity of Senior Registrar for only one year in the concerned Speciality. However, the requisite documents were not attached with the application and even 'on the date of interview dated 5-8-2002.
13. Respondent No.4 has not furnished the detail of his qualifying M.B.B.S. However, he has shown to have qualified his F.C.P.S. in 1998. His ' fellowship . experience was three years wherein for one and a half year, he has served as Medical Officer in General Surgery in Federal Government Hospital, Islamabad, the recognition- of which as Teaching Hospital is also disputed and the availability of Paediatric Surgery Unit is also questioned by petitioner.
14. As regards the publication, P.M.D.C. Islamabad in its letter No. PF.11-F-2002 (Journals) 782 dated 26-9-2002 approved the following criteria:--
Credit for publication of research papers:--- . Credit may be given equal to 1st three authors which will be nominated by the principal author and will be notified to the Editor before publication.
10/10 (Full credit).
2. Letter to Editor. No credit
3: Case Report. No credit
It was also decided that a new name be given to Case Report i.e. "Evidence Based Clinical or Therapeutic Series" which will be consisted of minimum 10 pages and will be given credit to each paper. '
15. Respondent No.3 has produced three publications as Case. Report jointly with others wherein he is shown at No.2 among the authors. The publication is also disputed by the petitioners being not research paper and that respondent No 2 is not the principal author, thus could not be granted preference in terms of advertisement.
16. After holding the interview on 5-8-2002, petitioner and respondents 3 and 4 were granted 50 marks each for their academic qualifications. (It is pertinent to mention here that petitioner and respondent No.4 have got post-Graduate qualification F.C.P.S. 'in Paediatric Surgery while respondent No.3 has qualified his post-Graduate Degree for F.R.C.S. in General Surgery; All the three were granted 5 marks each for publication as principal author but the respondent No.3 was granted 0.50 marks and respondent No.4 one mark for additional paper as principal co-author. All of them were granted 5 marks each for 3 years experience after post-Graduation and only respondent No.3 was granted 5 marks for 3 years experience as Senior Registrar. All of them were allotted 3 marks each for additional experience and 10 marks to each of them in interview for maximum criteria of F.C.P.S. or equivalent three years experience after post-Graduation and one paper as principal author. The petitioner, respondent No.3 and respondent No.4 were allotted 4.86,5.75 and 4.75 marks to verbal interview -respectively. The total marks obtained by the petitioner, respondent No.3 ,and resnondent.No.4 are 77.86. 84.25 and 78.75 respectively.
17. So far the case of respondent No.4 is concerned, undisputedly he qualified his F.C.P S. in the year 1999 and he had not yet completes three years service after post-graduation on the date specified for submission of application in the advertisement. Thus he was not eligible at all in the terms of advertisement.
18. The prescribed qualification for the post in question to the terms of advertisement- was M.B.B.S. or equivalent medical qualification recognized by the Council and F.C.P.S./MS/MD in the respective subject or equivalent qualification in the specialty recognized by the Council. Undisputedly, respondent No.3. was possessing the qualification of M.BB.S. and F.R.C.S. in the General Surgery which has got- the alleged equivalence with the F.C.P.S. being recognized by the 'P.M D.C. The basic qualification for the post was F.C.P.S. in the respective subject and a candidate having a post graduate qualification of. F.R.C.S. could only be considered if a qualified candidate having F.C.P.S./MS/MD is found not available but in the presence oft F.C.P.S./MS/MD candidates in the respective speciality of Paediatric Surgery, then there would be no justification for considering the candidates qualified F.R.C.S. in the General Surgery. Respondent No.3 has qualified his M.B.B.S. in the year 1983 and have qualified his F.R.C.S., a post graduate qualification, in the General Surgery in the year 1993.
As compared to respondent No.3, the petitioner has qualified his M.B.B.S. in the 1987 and has got post-Graduate qualification of F.C.P.S. in the year 1997. In this view of the matter, the petitioner was qualified in the concerned speciality in the terms of advertisement while the post-Graduate qualification of respondent No.3 was not in the respective subject of Paediatric Surgery.
19. In -the terms of advertisement, preference was stated to be given to the candidates having at least research paper as principal author in the relevant speciality published in the standard Medical Journal. The respondent No.3 is stated to have authored publications titled.
1. Congenital segmental dilation of the duodenum -differental.
2. Intra-thoracic liver (ectopic)-a diagnostic dilemma (Paediatric Surgery International July, 2001).
3. Crystic pre-sacral Teratoma (type iv) a rare cause of neotmtion bowel and bladder outlet obstruction case report.
20. As per P.M.D.C. Rules, rule 2 (c) (d) (e), the publications must be published in the Standard Medical Journal and under the guideline 7 (3), the case report must consist of ten cases and the candidates should be granted credit of one paper. The credit could be given only to a principal author or a principal co-author. The said publications were not proved to have been published in the Standard Medical Journal in terms of P.M.D.C. Rules and the said publications were not containing ten cases as required under the guidelines circulated by P.M.D.C. Respondent No.3 is neither principal author not the said publications are regarding research work but only a case-law report and he is not even a principal author of any publication. In these circumstances, respondent No.3 could not get the benefit of publications relied upon by him before the Public Service Commission.
21. In addition to the qualifications, it was also intimated in the advertisement that candidates must possess three years experience as Senior Registrar in the respective subject in a Teaching Hospital or equivalent experience recognized by the Council. As per Curriculum Vitae of respondent No.3, he was appointed as Registrar in Paediatric Surgery in the capacity of Senior Registrar from July, 2000 and was still working as such when he applied for the advertised post. The said period comes to two years and that to as Registrar allegedly in the capacity of Senior Registrar. Prior to that he was allegedly appointed as Registrar in Paediatric Surgery in November, 1995 and continued as such till June, 2000 wherein for the last year he has allegedly served in the Senior Registrar capacity. This period comes to five years and two months in the Royal Alexandra Hosptal for Sick Childern Brighton. In his Curriculum Vitae, he has served in the Our Lady's Hospital for sick children, Crumlin, Dublin as Senor House Officer in Paediatric Surgery from September, 199 to July, 1993. This service cannot be considered as required experience published through advertisement. He has also shown to have worked as Senior House Officer in Paediatric Accident/ Emergency, Orthopaedics and Paediatric Plastic Surgery in the aforesaid hospital of Crumlin, Dublin from July, 1990 to December, 1990 but this experience is also not worth-consideration in the terms of advertisement. Admittedly, respondent No.3 has not' furnished the requisite certificates alongwith his application which were required to reach the office of respondent No.1 before 10-6-2002. Even the experience certificates were not available with respondent No.3 on the date of interview i.e. 5-8-2002. The impugned appointment order was issued on 11-9-2002. The required experience certificates were sent by Southampton University Hospital NSH Trust through Fax on 11-9-2002. The validity of those certificates were questioned being not issued by Competent Authority and these. were issued by Consultant Paediaric and Neonatal Surgeon. There is also apparent conflict in the Curriculum Vitae furnished by respondent No. 3 and the certificates which were sent through Fax belatedly in the sense that as regards his service in the Southampton Hospital U.K. from July, 2000 to December, 2002, he has shown himself to be appointed as Registrar and has worked in the capacity of Senior Registrar while the certificate reveals that he has served in the said Hospital as Senior Registrar from July, 2000 to August 2002. Likewise his information through Curriculum Vitae regarding his service in the Royal Alexandra Hospital, Brighton, England from November, 1995 to June, 2000 and in the last year he had worked as Senior Registrar Paediatric Surgery but the certificates issued by Brighton and Sussex University Hospitals NHS Trust, he has served as Registrar from November, 1995 to June, 2000 and for the last two-years, he had worked in the capacity of Senior Registrar. These conflicts in the Curriculum Vitae furnished by respondent No.3 and the certificates issued by Head of the concerned hospital also make the alleged experience of respondent No.3 as Registrar/Senior Registrar in Paediatric Surgery doubtful. This is also not clear from the certificates that those Hospitals were Teaching Hospitals.
22. The petitioner has properly appended with his application for the post in question within due time the requisite academic certificates and experience certificates. The said documents reveal that petitioner was possessing the requisite qualifications of M.B.B.S. and F.C.P.S. in the concerned Speciality and he has worked for three years in Teaching Hospital in Paediatric Surgery Unit after getting his post-Graduate qualification of F.C.P.S. in 1997. After his induction in the Paediatric Unit as Specialist on the subject, he remained Incharge of the Unit and was serving as Senior Registrar. It is pertinent to mention here that at present he is performing his duty as consultant and overall incharge of the Paediatric Surgery Unit. As regards his research publications, he ha; produced his Article "Alvarado Scoring System in the disgnosis of acute Appendicts in children" by the petitioner as principal author which was published in journal of Medical Sciences. He has also supplied his thesis on the "Hypospadias", a research paper, and he was issued a certificate by the Head of Department of Paediatric Surgery in the children Hospital PIMG certifying that the petitioner, a post-Graduate student, has completed his dissertation as partial requirement in FGPP-II in the said hospital.
23. After holding the interview of four candidates one Muhammad Ayub Khan was placed in the bottom of merit list and he is not party to the present litigation, respondent No.3 was allotted 84.25 marks in total which includes 50 marks for qualification plus 5 marks as principal author plus.50 marks for additional paper as principal/co-author plus 5 marks for three years experience as post-Graduate plus 5 marks for three years experience as Senior Registrar plus 3 marks as additional experience plus 10 marks as minimum criteria for FCPS or equivalent plus three years experience as post-Graduate and one paper as principal author and 5.75 for verbal interview. The petitioner was allotted 77.68 marks which includes 50 marks for prescribed qualification plus 5 marks for one paper as principal author plus 5 marks for his three years post Graduate experience plus 3 marks for his additional experience, plus 10 marks as minimum criteria of F.C.P.S., plus three years experience after post-Graduation arid one paper as principal author plus 4.86 of verbal interview. The comparison of the marks sheets of the petitioner and respondent No.3 would show that respondent No.3 was granted 0.50 marks for additional paper as principal/co-author, 5 marks for his alleged 3 years experience as Senior Registrar but the petitioner was not given any marks in. these headings and respondent No.3 was also granted .89 marks more than the petitioner in verbal interview. As noted earlier, the interview was held on 5-8-2002 and on the said date, no certificate of experience as Senior Registrar was available with the Selection Committee. Thus the experience 5 marks for three years post Graduate service and 5 marks for three years service as Senior Registrar were wrongly allotted to him. Likewise, 3 marks for additional experience was is also wrongly granted to him for want- of documentary proof. Over and above the marks, referred to above, respondent No.3 was also considered equal to the petitioner in granting marks for qualification because the petitioner was possessing post-Graduate qualification in the concerned subject/speciality while respondent No.3 was possessing equivalent post-Graduate degree. On the availability of candidates in the particular subject/speciality, the equivalent of other subjects/specialties become redundant or at least preference should be given to the candidates having qualification in the concerned subject over those who are possessing speciality in general subjects and not in the particular subject. The marking shown in the merit list is not reasonable and not in accordance with law and justice. Respondent No.3 and also respondent No.4 were wrongly allotted more marks than the petitioner.
24. Dr. Fazal Rehman, Head of Paediatric Surgery Department in K.T.H., Peshawar addressed a letter to respondent No. 1 on 20-9-2002 wherein the following defects in the impugned order were pointed out:--
"(1) Interview was held at 6.00 p.m. and due to shortage of time it was decided that as subject specialist I will ask only one question from each candidate and nobody else in the Committee will ask any question. As…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.