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Petitioner: Dr. MUHAMMAD AZHAR VS Respondent: Dr. TARIQ MAHMOOD MALIK and 2 others
Court Name: Lahore High Court Judge(s): Jawwad S. Khawaja, Nasim Sikandar, Chaudhry Ijaz Ahmed Title: Dr. MUHAMMAD AZHAR vs Dr. TARIQ MAHMOOD MALIK and 2 others Case No.:Writ Petitions Nos.23702, 9745 of 1996, 1700 of 1997 and Civil Miscellaneous
JUDGMENT
Reported As: 2002 PLC (C.S.) 57 Result: Order accordingly Judgment JUDGMENT ' CH. IJAZ AHMAD, J.---We intend to decide following writ petitions by one consolidated judgment having similar facts and law:-- ' Writ Petition No,23702 of 1996; Writ Petition No,9745 of 1996; Writ Petition No,11700 of 1997. ' The brief facts giving rise to. Writ Petition No,23702 of 1996 and Writ Petition No,9745 of 1996 are that Dr. Tariq Mehmood Malik respondent was appointed on contract basis as Professor of Cardiology in Medical College, Rawalpindi on 25-8-1994. Sutsequently, Dr. Tariq Mehmood Malik was absorbed permanently as Professor of Cardiology in the Health Department Government of the Punjab on regular basis in relaxation of Rules vide notification dated 7-3-1996. Dr. Muhammad Azhar and Syed Ali Raza being aggrieved filed aforesaid writ petitions with the prayer that Dr. Tariq Mehmood Malik be asked to show how he is entitled to hold office of Professor Cardiology at K.E.M.C., Lahore and his appointment be declared illegal, unlawful and of no consequence. Dr. Tariq Mehmood Malik filed Writ Petition No,11700 of 1997 against Muhammad Azhar, with the prayer that he be asked to show as to under what authority of law he has acted as Associate Professor when he did not have required experience even to be considered for direct recruitment to the post in question. ' Dr. Syed Ali Raza filed writ petition through Syed Talib H. Rizvi, Advocate and Mr. Taffazul H. Rizvi, Advocate who did not enter appearance despite repeated calls. Instead of dismissing the same for non-prosecution we intend to decide the same on merits as the controversy involved in this case is exactly similar as in Writ Petition No,23702 of 1996.
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' The question involved in the first two writ petitions is legality of absorption of Dr. Tariq Mehmood Malik as Professor of Cardiology. The impugned notification dated 7-3-1996 was issued by the Government of Punjab Service, General Administration and Information Department which reveals that Dr. Tariq Mehmood Malik was appointed in relaxation of Rules. ' Mr. Abid Hassan Minto, learned counsel for the petitioner submits that post of Professor of Cardiology was vacant on account of retirement of Dr. Muhammad Zubair on 22-1.2-1994 and summary was prepared to fill the said post which was sent to the Chief Minister to adopt any of the following options. "(7.1) Since no Professor of Cardiology is available for posting nor is there an Associate Professor of Cardiology in line mature for posting as Professor Dr. Muhammad Zubair may be appointed on contract for a period of one year as Professor of Cardiology, K.E.M.C., Lahore, in relaxation of Government Policy to grant no re-employment/contract to retiring Government servants. Simultaneously, Government may approach all three Provincial Governments as well as the Federal Government, to propose a doctor having the required educational qualifications/professional experience for posting as Professor of Cardiology K.E.M.C., Lahore on deputation. ' OR (2) The Chief Minister may like to select one of the three Professors of Medicine mentioned at para. 4 ante for posting as Professor of Cardiology, King Edward Medical College, .Lahore in relaxation of Punjab Health' Department (Medical and Dental Teaching Posts) Service Rules, 1979 ' OR (3) Dr. Muhammad Azhar, Associate Professor, Cardiology, King Edward Medical College, Lahore may, in addition to his duties, be allowed to perform duties as Head of Department of Cardiology, King Edward Medical College, Lahore, till further orders." ' The second summary was prepared and was sent to Governor for approval through Chief Minister in the following terms:-- "9. In view of the above position, SGA&I Department proposes that:-- (1) Health Department may be allowed to convert one post of Professor of Cardiology from the promotion quota to that of initial recruitment quota. (2) Dr. Tariq Mehmood Malik, presently serving as Professor of Cardiology on contract basis, Rawalpindi Medical College, ' Rawalpindi may be absorbed as Professor of Cardiology in Health Department on regular basis in relaxation of Service Rules and Procedure. Health Department has now confirmed that Dr. Tariq Mehmood Malik has more than 10 years' experience in the speciality of Cardiology (Annex. V). (3) Upon absorption as Professor of Cardiology, Dr. Tariq Mehmood Malik may be transferred from Rawalpindi Medical College, Rawalpindi and posted as Professor of Cardiology, King Edward Medical College, Lahore Vice-Professor Dr. Ashfaq Ahmad Khan (whose shifting proposal has also been submitted separately)." ' The learned counsel for the petitioner further submits that recruitment to the post of Professor can be made only on the recommendation of Public Service Commission and after due advertisement in the newspaper. He further submits that appointment of Dr. Tariq Mehmood Malik was in violation of section 4 of the Punjab Civil Servants Act, 1974; and in violation of Rule 3 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974; that appointment/absorption of respondent is in violation of the mandatory provisions of Punjab Health Department (Medical and Dental Teaching Post) Service Rules, 1979; that appointment of respondents is in violation of mandatory provisions of Pakistan Medical and Dental Council Ordinance, 1962 and Regulation framed thereunder. He heavily relied upon Regulation 14 that experience gained in one speciality cannot be counted for appointment/promotion in other speciality in clinical subjects. Similarly he
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relied upon Punjab Health Department (Medical and Dental Teaching Posts) Services Rules, 1979. He further submits that on the basis of the aforesaid Rules and Regulations the appointment of the private respondent was in violation of mandatory provisions of law; that Worthy Governor had no jurisdiction whatsoever in the given circumstances to appoint respondent No,2 under section 22 of the Punjab Civil Servants Act, 1974; that it is the duty of Punjab Governor to give reasons to exercise powers under section 22 of the Punjab Civil Servants Act. The respondents failed to place on record any order passed by the Governor, therefore, appointment of respondent is not valid in the eyes of law; that according to the prescribed method of recruitment the posts of Professor of Cardiology are to be filled by 10% through direct recruitment and 90% from the amongst the associated professors in the line of promotion for the purpose of direct recruitment or permanent absorption. The post was vacant in the quota of promotion. He summed up his arguments that respondent is not a civil servant, therefore, Governor had no authority to relax the Rules to appoint private respondent under section 22 of the Punjab Civil Servants Act, 1974 as the tespondent was appointed on contract basis by virtue of section 2 of the Civil Servants Act. ' Mr. Mushtaq Ahmed Mohal, Legal Advisor for Public Service Commission submits that Public Service Commission disapproved practice to appoint teachers and doctors without recommendations of Public Service Commission or in relaxation of Rules in the annual reports in the years 1998-99. ' Dr. A. Basit, learned counsel for respondents submits that writ of quo warranto is not maintainable as the respondent was appointed as Professor vide impugned notification dated 7-12-1996; that respondent became civil servant due to the aforesaid notification; the petitioner has challenged the vires of impugned notification in this writ petition, therefore, writ petition is not maintainable by virtue of Article 212 of the Constitution read with section 4 of the Punjab Service Tribunals Act, 1974; that petitioner and respondent are civil servants and the jurisdiction of this Court is barred by virtue of Article 212 of the Constitution. In support of his contention he relied upon Province of Punjab v. Dr. S. Muhammad Zafar Bokhari (PLD 1997 SC 351); that respondent has become civil servant due to impugned notification issued by the competent authority for his appointment. The Governor had ample powers to appoint respondent No,2 in relaxation of Rules, regulations and law as is envisaged by section 2 of the Punjab Civil Servants Act. The Governor had exercised power under section 22 of the Punjab Civil Servants Act, 1974 keeping in view the principle of justice and equity; that respondent was qualified under the rules and regulations to be appointed as Professor on account of his experience in the specified field. The private respondents had experience qua the specific field as is evident from the documents attached with the writ petition and parawise comments he had secured good experience in Washington in a well-known and a reputed hospital. The respondent had sacrified his career there in the interest of nation and country and had left America and joined the services in Medical College, Rawalpindi at the request of Governor. The degree of the Medical College, Rawalpindi was not recognized outside the country keeping in view this fact the Governor at that time had requested the respondent to leave America and to join the services in Pakistan. He further submits that documents attached with the writ petition specially two summaries of the Government show that a competent Doctor in the field of cardiology was not available at that time; that summaries depicted that efforts were made to find qualified Doctors from the other Provinces; that writ petition is liable to be dismissed as the petitioner's counsel failed to point out that the Governor had no jurisdiction to relax the rules; that petitioner is interested person, therefore, writ of quo warranto is not maintainable; that private respondent has been performing duties as Professor since 1996' that it is not fair and proper to terminate the services of respondents; that petitioner Dr. Muhammad Azhar was not qualified to be appointed as Assistant Professor as he did not have the requisite experience; the appointment of petitioner Dr. Muhammad Azhar is also in violation of Rules and Regulations. He urged that writ petition is liable
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to be dismissed as Dr. Muhammad Azhar has filed the writ petition with malice. He summs up his arguments that this Court tacks jurisdiction to examine the question under Article 212 of the Constitution. He has also contended that writ of quo warranto cannot be issued at the behest of an interested person. He also submitted that appointment of respondent is legal and cannot be objected. In this case has stated before us the qualifications and achievements of the respondent who was absorbed. He argues that relaxation of rules has taken place keeping in view the qualifications and service of respondent. He also urged that even if there is some lapses on the part of the department, the respondent cannot be permitted to suffer. ' In rebuttal, the learned counsel for the petitioner submits that no order has been passed against the petitioner, therefore, petitioner has no alternate remedy to file appeal before the Service Tribunal by virtue of section 4 of the Punjab Service Tribunals Act, 1974; that petitioner has challenged the vires of initial appointment of private respondent, therefore, writ petition is maintainable; that case relied upon by the learned counsel for respondent Province of Punjab v. Dr. S. Muhammad Zafar Bokhari (PLD 1997 SC 351) is distinguished on facts and law. It is argued that the law does not contemplate wholesale suspension of the rules. The power is confined to suspend any of the Rules in which reasons are to be recorded and if necessary Punjab Public Service Commission is to be consulted. It is urged that impugned notification is silent as to why the respondent is being absorbed. ' We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves. We would like to decide the preliminary objection first qua the maintainability of the writ petition. It is admitted fact that Article 212(2) of the Constitution ousts the jurisdiction of the High Court in a matter which pertains to the terms and conditions of a civil servant and which can be competently dealt with by the Service Tribunal on appeal. It is also settled proposition of law that even on the ground of jurisdiction and mala fide the proceedings will be taken before the Service Tribunal and not before this Court under Constitutional jurisdiction. In these cases the question is not of the terms and the conditions of either the petitioners or the respondent. The question is whether the very induction into the service of the private respondent is valid or not. Such a question does not fall within the purview of Article 212(2) of the Constitution. Needless to explain that once a person has been validly inducted into service and has become member of the same the question thereafter arising in concerning the terms and conditions will be examined by the Service Tribunal and not by the High Court. ' The preliminary objection qua the maintainability of the writ petition raised by the respondent's counsel has no force in view of the law laid down by the superior Courts in the following judgments:-- ' Dr. Ahmed Suleman's case (PLD 1997 SC 382); Muhammad Afzal etc.'s case 1995 PLC (C.S.) 567; Ali Hussain Bokhari and 39 others' case (1992 PLC (C.S.) 289); Muhammad Latif Khan's case (1995 PLC (C.S.) 297); Stateman (P.) Ltd. v. H.R. Deb (AIR 1968 SC 1495). ' Similarly the other objection raised by the learned counsel for the respondents that petitioners are interested persons, therefore, writ of quo warranto is not maintainable, has also no force. It is better and appropriate to reproduce the prayer of writ petition to resolve the controversy between the parties:-- "that respondent No,1 may be asked to show cause how he is entitled to hold office of Professor of Cardiology of KEMC, Lahore. His appointment as such be declared illegal and unlawful and of no consequence." ' It is pertinent to mentior here that primary relief claimed by the petitioners is the declaration of invalidity of the relevant notification and if this is granted, the other relief in the nature of quo warranto prayed for has become irrelevant. It is prcper to mention here that under Article 199 of the Constitution that a writ of quo warranto can be maintained by any person as is envisaged by the
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contents of Article 199 of the Constitution which does not impose the condition that such a person should be interested or aggrieved person. This question of law has been settled by this Court after considering all the case-law on the subject in Muhammad Zia-ul-Haq's case (1996 PLC (C.S.) 134) and laid down the principle that a civil servant can file a writ of quo warranto. ' The scheme of our Constitution is based on trichotomy as is held by the Hon'ble Supreme Court in Zia-ur-Rehman's case (PLD 1973 SC 49). This judgment was approved by the Full Bench of Hon'ble Supreme Court in Mian Nawaz Sharif's case (PLD 1993 SC 473). In the system of trichotomy, the judiciary has the right to interpret and the Legislator has only right to legislate and the Executive to implement. The trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants power to each organ to decide the matters in its allotted sphere. The subject of appointment to services of Province is specially mentioned in Part XII of the Constitution and Article 240(b) which is relevant and reproduced hereunder:-- "240. Appointment to service of Pakistan and conditions of service.--Subject to the Constitution, the appointments to and the conditions of service of persons in the service of Pakistan shall be determined-- (a)................................. (b) In the case of the service of the Province and posts in connection with her affairs of a Province, by or under Act of the Provincial Assembly." 6. The competent body under the Constitution has framed the Punjab Civil Servants Act, 1974 and the relevant sections are reproduced hereunder:-- "Section 2, (d)(g)(i) and (j) and section 4: (d) "initial recruitment" means appointment made otherwise than by promotion or transfer; (g) "prescribed" means prescribed by rules; (h) "rules" means the rules made or deemed to have made under this Act; "selection authority" means the Punjab Public Service Commission, Departmental Selection Board, Departmental Selection Committee or other authority or body on the recommendation of, or in consultation with which any appointment or promotion, as may be prescribed, is made. ' Section 4.-: Appointments.--Appointments to a civil service of the Province or to a civil post in connection with the affairs of the Province shall be made in the prescribed manner by the Governor or by a person authorised by him in that behalf." ' The Supreme Court of Pakistan has taken serious note of such type of appointments in re: Human Rights' Case No,104 of 1992 (1996 SCMR 1349). The relevant observation is reproduced hereunder:-- "While inquiring into various complaints of violations of Fundamental/Human Rights, it has been found that the Federal Government, Provincial Governments, Statutory Bodies and the Public Authorities have been making initial recruitments, both ad hoc and regular to posts and offices without publicly and properly advertising the vacancies and at times by converting ad hoc appointments into regular appointments. This practice is prima facie violative of Fundamental Rights (Article 18 of the Constitution) guaranteeing to every citizen freedom of profession." ' Subject to notice to all concerned, and subject to final orders after full hearing in the Tatter, it is ordered as an interim measure that the violation of this Fundamental/Human Right shall be discontinued forthwith. ' Steps shall immediately be taken to rectify, so as to bring the practice in accord with the Constitutional requirement." ' This view was further approved and confirmed by the Hon'ble Supreme Court in Munawar Khan's case (1993 SCMR 1287). The relevant observation at page 1294 is reproduced hereunder:-- ' Writ Petition No, 23702 of 1996 "What we have noticed in all these cases which are under consideration before us is that appointments of both the parties contesting the appointments were made without such all
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advertisement, piblicity or information in the locality from which the recruitments were to be made. In view of the Constitutional requirement and the interim order already passed in Human Rights Case 104 of 1992 it is expected that in future all appointments shall be made after due publicity in the area from which the recruitment had to take place...This will, however, not apply to short term leave vacancies or to contingent employment." ' Indian Supreme Court also considered aspects of appointments in Channabasavih's case (AIR 1965 SC 1293) and relevant observation at page 1296 is reproduced hereinder:-- "It is very unfortunate that these persons should be uprooted after they had been appointed but if equality and equal protection before the law have any meaning and if our public institutions are to inspire that confidence which is expected of them we would be failing in our duty if we did not, even at the cost of considerable' inconvenience to Government and the selected candidates do the right thing." ' It is pertinent to mention here that appointments which were made in violation of prescribed Rules and procedures were challenged before the superior Courts. The superior Courts have laid down the principles and set aside the appointments which are as follows:-- ' Section 22 of the Punjab Civil Servants Act and Rule 23 of the Punjab Civil Servants Act (Appointments and Conditions of Service) Rules, 1974 were interpreted by the Hon'ble Supreme Court in Muhammad Iqbal Khokhar's case (PLD 1991 SC 35) and laid down the following principle:-- "The power of relaxation of rules vested in the Governor/Chief Ministers basically intended to correct serious cases to remove injustice. This power is exercised only in genuine cases to remove injustice and in equity which may stand in the way of civil servant or individual." ' The aforesaid view was upheld by the Hon'ble Supreme Court in Abdul Qayyum's case (PLD 1992 SC 184). Similar view was taken qua the administrative body in Akram Bus Services' case (PLD 1963 SC 564) and laid down the following view:-- "Even an administrative body is under legal obligation to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that the administrative body should determine the matter with whose decision it is charged in accordance with law." It is also settled principle of law that discretion is to be exercised on sound judicial principles and not arbitrarily, capriciously or in violation of the Rules in force on the subject-matter as the principle laid down in Aman Ullah Khan's case (PLD 1990 SC 1092). ' It is better and appropriate to reproduce section 22 of the Punjab Civil Servants Act and Rule 23 of the Punjab Civil Servants (Appointments and Conditions of Service) Rules, 1974 to resolve the controversy between the parties: "22. Saving.--- Nothing in this Act or in any rule shall be construed to limit or abridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable: ' Provided that where this Act or any rule is applicable to the case of a civil servant the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule. ' Rule 23. The Chief Minister may, for special reasons to be recorded in writing, relax anyone of the rules in any individual case of hardship, to the extent prescribed by him." 'The aforesaid section 22 of the Act and Rule 23 do not permit the Chief Minister/Governor to relax the Rules and Regulations through omnibus order. It is a condition precedent for the Governor to pass Order under section 22 to keep in view that it is just and equitable. According to the Black's Law Dictionary the words 'just' and 'equitable' mean as under" :-- "Just. Conforming to or consonant with what is legal or lawful; legally right; lawful. 'Equitable. Just; conformable to the principles of justice and right. Existing in equity, available or sustainable by action in equity, or upon the rules and principles of equity."
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' The word 'just' means according to the law as per principle laid down by the Hon'ble Supreme Court in the following judgments:-- ' PLD 1987 SC 447 (Utility Stores Corporation Pakistan Ltd.'s case and (1993 SCMR 1370) Shai Brothers Pvt. Ltd.'s case. ' The word 'equity' has been defined by Snellas as "something equivalent to natural justice or morality". The word 'equity' has been interpreted in Muhammad Hussain's case "equity in any given situation means what would be fair in that situation." ' Rule 23 was considered by the Division Bench of this Court in Writ Petition No,6387 of 1990, decided on 31-5-2001 and laid down the following principle:-- "It may be added that there is no power of relaxation of the rules 'in their entirety'. We declare that law maker has conferred no such authority on the Government. The absorption of all these respondents vide the impugned notifications is, therefore, declared to have been made without lawful authority and consequently of no legal effect. We are fortified in the above conclusions by a D.B. Judgment of Balochistan High Court reported as Muhammad Afzal etc. v. Government of Balochistan etc. (1995 PLC (C.S.) 567) cited by Ch. Khurshid Ahmad, Advocate ' The Chief Minister or for that matter any other competent authority has to give reasons which could show the application of mind. We would like to add that Pakistan is a democratic society where there is no room for a king. Even the elected Chief Minister has to abide by law and remain subservient to the same. Discretion to bypass the law as a whole may be vesting in the kings but not in democratically elected Chief Minister nor any other authority in a demoncratic society." ' The word 'equality' was also interpreted by this Court by our learned brother Ihsan-ul-Haq Chaudhry, J. In Dr. Shaheen Nusrat's case (1997 CLC 1308) and the relevant observation is as follows:-- "12. The concept of equality amongst the mankind was introduced for the first time by Islam. The Holy Prophet (peace be upon him) preached and practised equality throughout the life and sermon delivered on the occasion of last Haj performed by the Holy Prophet (peace be upon him) is the first landmark in…
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