HIGH COURT OF SINDH, BENCH AT SUKKUR

 

Before                            Mr. Justice Syed HasanAzhar Rizvi

                                                Mr. Justice Muhammad Humayon Khan

 

 

C.P. No. D- 2090 of 2015

 

PETITIONER

:

Dr. Muhammad Rafique through Mr. GhulamShabbeerShar, Advocate

 

RESPONDENTSNOS.1AND 2

:

ShaheedMohtarma Benazir Bhutto Medical University and another through Mr. Asif HussainChandio, Legal Advisor

 

RESPONDENTSNOS.3  AND 4

 

:

 

Principal, GhulamMahar Medical College and another through Mr. ShahryarImdadAwan, AAG

 

RESPONDENTNO.5

 

:

 

Dr. GhulamHyder Rind through Mr. Mukesh Kumar G. Karara Advocate.

 

 

C.P. No. D- 2136 of 2015

 

PETITIONER

:

Dr. Inayatullah through Mr. GhulamShabbeerShar, Advocate

RESPONDENTSNOS.1 AND 2

:

ShaheedMohtarma Benazir Bhutto Medical University and another through  Mr. Asif HussainChandio, Legal Advisor

 

RESPONDENTSNOS.3  TO6

 

:

 

Principal, GhulamMahar Medical College and others through

Mr. ShahryarImdadAwan, AAG

 

C.P. No. D- 2181 of 2015

 

PETITIONER

:

Dr. Azhar Ali Shah through

Mr. GhulamShabbeerShar, Advocate

RESPONDENTSNOS.1 AND 2

:

ShaheedMohtarma Benazir Bhutto Medical University and another through  Mr. Asif HussainChandio, Legal Advisor

 

RESPONDENTSNOS.3  TO 5

 

:

 

Principal, GhulamMahar Medical College and others through Mr. ShahryarImdadAwan, AAG

RESPONDENT NO.6

 

 

:

 

Dr. ShahidHussainMirani through Mr. Zulfiqar Ali Channa Advocate.

 

 

 

 

 

 

 

C.P. No. D- 2182 of 2015

 

PETITIONER

:

Dr. Imamuddin through Mr. Zulfiqar Ali Sangi, Advocate

 

RESPONDENTSNOS.1 AND 2

:

ShaheedMohtarma Benazir Bhutto Medical University and another through  Mr. Asif HussainChandio, Legal Advisor

 

RESPONDENTSNOS.3  TO 5

 

:

 

Principal, GhulamMahar Medical College and others through Mr. ShahryarImdadAwan, AAG

 

RESPONDENT NO.6

 

 

 

:

 

Dr. ShahidHussainMirani through Mr. Zulfiqar Ali Channa Advocate.

 

C.P. No. D- 3114 of 2015

 

PETITIONER

:

Dr. RajaSeelrothrough Mr. T. David Lawrence, Advocate

 

RESPONDENTSNOS.1 TO4

:

ShaheedMohtarma Benazir Bhutto Medical University and others through  Mr.Asif HussainChandio, Legal Advisor

 

RESPONDENT NO. 5

 

:

 

Principal, GhulamMahar Medical College through Mr. ShahryarImdadAwan, AAG

 

RESPONDENT NO.6

 

:

 

Dr.ParkashLal through Mr. Zulfiqar Ali Channa Advocate.

 

 

C.P. No. D- 3200 of 2015

 

PETITIONER

:

Dr. AijazHussain through Mr. GhulamShabbeerShar, Advocate

 

RESPONDENTSNOS.1 AND 2 AND 4 TO 6

:

ShaheedMohtarma Benazir Bhutto Medical University and others through  Mr. Asif HussainChandio, Legal Advisor

 

RESPONDENT NO.3 

 

:

 

Principal, GhulamMahar Medical College through Mr. ShahryarImdadAwan, AAG

RESPONDENT NO.5

 

:

 

Dr. GhulamHyder Rind through Mr. Mukesh Kumar G. Karara Advocate

 

DATES OF HEARING

:

23.01.2017, 31.01.2017 and 07.02.2017

DATE OF JUDGMENT

:

22.03.2017

 

 

JUDGMENT

 

Muhammad Humayon Khan, J: Through this common Judgment, we intend to decide six Constitution Petitions bearing Constitution Petitions Nos. D-2090 of 2015, D-2136 of 2015, D-2181 of 2015, D-2182 of 2015, D-3114 of 2015 and D-3200 of 2015, as the facts are identical and the questions of law for determination are common. However, we would like to state relevant facts of each petition as under:-

C.P. No. D- 2090 of 2015

 

2)      The relevant facts of the petition are that the petitioner is a Professor of Surgery and working at Ghulam Muhammad Mahar Medical College (GMMMC) Sukkur. The petitioner passed the examination of Selection Board of ShaheedMohtarma Benazir Bhutto Medical University (SMBBMU) Larkana for the post of Assistant Professor of Surgery in the year 2010, while respondent No.5 failed in the same examination. Again petitioner had passed examination of Selection Board of same University in the year 2011 for the post of Associate Professor Surgery, while the respondent No.5 passed the same examination in the year 2012 and therefore the petitioner was senior to respondent No.5.  The petitioner was allowed by respondents Nos.1 and 2 to work as Professor of Surgery at Department of Surgery GMMMC Sukkur and SMBBU Larkana, vide Office Order dated 13.09.2014 which was extended by Order dated 10.03.2015. Again Notification dated 24.02.2015 was issued by the respondents, whereby Surgical Unit-II and Medical Unit-II were created with the approval of competent authority, where the petitioner was appointed as Incharge of Surgical Unit-II at GMMMC Sukkur. The petitioner is an approved supervisor for post-graduation training of FCPS in Surgery at GMMMC Sukkur and Examiner of College of Physicians and Surgeons Pakistan, while the respondent No.5 neither has same qualification nor experience. The petitioner has given 24 research publications which are the main criteria for the promotion of regular post of Professor for which the criteria of marks has been earmarked 17%, accordingly in all if the petitioner has obtained 2 marks on each publication the total 48 marks have been earned by the petitioner, the above criteria have been settled by Higher Education Commission, which is the highest number, comparatively of respondent No.5, who has only 14 publications. The respondent No.1 through publication invited the applications from qualified and eligible candidates for the posts of basic and clinical medical subjects on regular basis for the posts of Professors, Associate Professor and Assistant Professors. The petitionerapplied for the regular post of Professor of Surgery at GMMMC Sukkur, which was accepted and the petitioner was called for interview on 31.05.2015, when he appeared before the Selection Board and submitted 24 research papers while the respondent No.5 submitted 14 research papers. The petitioner was informed by the respondent No.2 that the respondent No.1 has appointed Professor K. Das, Chairman of Surgery, as a member of Selection Board, who remained biased with petitioner, therefore, the petitioner moved an application to the Director Human Resources SMBBMU Larkana for restraining K. Das but the respondent No.1 did not paid any heed to the application made by the petitioner and resultantly the petitioner was dropped from seniority list and respondent No.5 was promoted, who was most junior than the petitioner. The petitioner pointed out during his interview before the Selection Board that judicial member of Selection Board is not present and therefore the Selection Board is incomplete, illegal, unlawful, unconstitutional and contrary to law. This highly rigging of Selection Board has been noticed by newspapers particularly and daily Kawish, it has been pointed out that there are gross irregularities committed by Selection Board while awarding seniorities and promotions. In these circumstances, great injustice has been done with the petitioner who being a senior and qualified was dropped from seniority list. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that the result dated 04.06.2015 issued by respondent No.2 is null and void, result of dishonest finding of Selection Board from whom the judicial member Mr. Justice Ahmed Ali Shaikh is not in attendance and attendance of judicial member is mandatory provision of code of conduct SMBBMU, who have selected the junior cadre Doctors as regular Professors, Associate Professors and Assistant Professors is illegal, unlawful, unconstitutional and contrary to law, in furtherance the one of the member of Selection Board Dr. K. Das for whom the petitioner have pointed before Selection Board that he is biased with him and shall damage his career is also plus point to set aside the impugned result dated 04.06.2015.

b)   To suspend the operation of result dated 04.06.2015 till final decision of petition in hand, as the meeting of Selection Board has been held in absence of judicial member Mr. Justice Ahmed Ali Shaikh who has not attended the said meeting of Selection Board and the criteria laid down by the Selection Board is un-constitutional, illegal and contrary to law even a biased person had been allowed to sit as member of Selection Board. 

 

3)      The respondents Nos. 1 to 3 filed parawise comments, wherein, it is stated that the present selection was for direct recruitment through selection by competition in which outsiders even could compete and were to succeed on basis of their performance in interview/examination, irrespective of seniority and this process was not for promotion purpose and therefore the point of petitioner being senior to respondent No.5 is immaterial. It is further stated that the petitioner is an approved supervisor for training of FCPS in Surgery at GMMMC Sukkur but till today no student is admitted under training of FCPS and he has trained none. It is further stated that such position is not the requirement for being candidate for appointment to the post of Professor of Surgery. It is further stated that for the post of Professor the requirement inter-alia was 05 Research Publications and petitioner as well as respondent No.5 had 24 and 14 Publications respectively and in this context both met the minimum requirement/criteria. It is further stated that as per Section 6 (1) (v) of First Statutess of SMBBMU Larkana, the Chairman of Teaching Department concerned is automatically the member of Selection Board and in present case the post related to Surgery, thus, Prof. K. Das who is Chairman of Surgery Department (Teaching) became/is member of Selection Board and therefore the question of his appointment by respondent No.1 does not arise. It is further stated that Prof. K. Das did not drop the petitioner from seniority list and promoted respondent No.5. It is further stated that selection process was carried according to Section 6 (3) (a) of First Statutes of University. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that no complaint orally or in writing was made by the petitioner against Prof. K. Das. It is further stated that in C.P. No. D-3702 of 2013 this Court passed Order dated 04.03.2015 with direction to fill-up all vacant position at GMMMC Sukkur within a period of two months and the present process of appointments was to comply with the Order of this Court and to meet the demand of public and to complete the Faculty at GMMMC Sukkur.  It is further stated that PM&DC as routine visits the Medical Colleges all over the country and their visit to GMMMC Sukkur on 15.06.2015 had no nexus with the present process of selection.  It is further stated that the interviews were held on 30.05.2015 and 31.05.2015 and the result was announced on 04.06.2015 and there appears to be no haste at all. In the end, the respondents Nos. 1 to 3 prayed for dismissal of this petition.

4)      The respondent No.4 filed parawise comments, wherein, it is stated that as per regulations, for the appointment of faculty professional staff/examiners/principals/deans/administrative staff in under graduate and post graduate Medical and Dental Institutions of Pakistan, 2011, requirement of Professor of Surgery is MBBS or equivalent medical qualifications recognized/registered by PM&DC. It is further stated that PM & DC level-III qualification in respective subject like FCPS/MS/MD or other equivalent SRC and recognized/registered by the PM&DC. It is further stated that three years teaching as an Associate Professor in the respective subject is essential provided that total experience as Assistant Professor and Associate Professor is not less than eight years or nine years teaching experience as an Assistant Professor in the respective subject is essential. It is further stated that total of at least five research publication are required. It is further stated that only original article published in a Medical Journal approved by PM&DC shall be acceptable and Dissertation/Thesis shall not be counted and at least five research publications are required.   

5)      The respondent No.5 filed his Counter Affidavit, wherein, he raised legal objections that this petition is hit by the principle of laches and not maintainable under Article 199 of the Constitution of Islamic Republic of Pakistan and further the instant petition is hit by Section 41 of the SMBBMUL Act 2008. On merits, he stated that the petitioner did not qualify the requirements of the advertisement before the competent authority (Selection Board) duly constituted for the selection of Professors, Associate Professors and Assistant Professors and Senior Registrars and the petitioner remained unsuccessful in the examination. It is further stated that the Selection Board recommended the respondent No.5 as Professor of Surgery (Regular) BS-21 vide Letter/Result dated 04.06.2015. It is further stated that the respondent No.5 did fellowship (FCPS in General Surgery) from College of Physicians and Surgeons in March 1998 while the petitioner did the same in the year 2003 and therefore the petitioner is junior for almost six years from the respondent No.5. It is further stated that when the petitioner was under training as a post graduate student at JPMC Karachi, the respondent No.5 was working as Senior Registrar Surgery at Chandka Medical College Larkana. It is further stated that the petitioner joined Civil Hospital Sukkur in the year 2004 as a Medical Officer BPS-17 and remained sub-ordinate of the respondent No.5, who was Head of the Department in Surgical Ward. It is further stated that after establishment of GMMMC Sukkur, the respondent No.5 joined as an Assistant Professor Surgery on honorary basis alongwith the petitioner vide Notification dated 28.02.2005 and subsequently the same was made permanent vide Notification dated 15.06.2007, which reflect that the respondent No.5 as a Senior Medical Officer in BPS-18 and the petitioner as Medical Officer in BPS-17. It is further stated that the respondent No.5 completed his research papers and got experience certificate from PMDC for eligibility of Associate Professor of Surgery,  vide Notification dated 12.05.2010 and at that time the petitioner was still a Medical Officer BPS-17 and he became Associate Professor Surgery in the year 2012. It is further stated that the respondent No.5 remained senior having more teaching experience than the petitioner and therefore the respondent No.5 was qualified to become the Professor of Surgery. It is further stated that when the quorum of the Selection Board was complete, it was not mandatory requirement that the judicial member should be present but it was optional. It is further stated that the petitioner has not filed any representation before the competent authority (Syndicate), who is the Supreme Body of the University but filed the instant petition directly, which is not maintainable. In the end, the respondent No.5 prayed for the dismissal of the instant petition.       

 

C.P. No. D- 2136 of 2015

 

6)      The relevant facts of the petition are that the petitioner is Assistant Professor and working at Ghulam Muhammad Mahar Medical College (GMMMC) Sukkur. The petitioner was appointed as Assistant Professor in Psychiatry Department in the year 2014. The respondent No. 1 through publication invited applications from qualified and eligible candidates for the posts of basic and clinical medical subjects on regular basis for the posts of Professors, Associate Professors, Assistant Professors and Senior Registrars. The petitioner applied for the regular post of Senior Registrar at GMMMC Sukkur, which was accepted and the petitioner was called for interview on 31-05-2015, when he appeared before the Selection Board, the petitioner raised objection that there was no external Subject Specialist of Psychiatry in the Selection Board which is mandatory requirement of SMBBMU Act, which has been violated but nobody paid any heed. The petitioner also  pointed out during his interview before the Selection Board that judicial member of Selection Board is not present and therefore the Selection Board is incompetent, illegal, unlawful, unconstitutional and contrary to law. It was clearly mentioned and specified in the application form that preference will be given to locals and eligible candidates who have already been working in the institute, as the petitioner has already been working as an Assistant Professor (Psychiatry) on the basis of allowed to work in the College and has been involved in all academic activities of the College and its affiliated with Teaching at GMMMC including delivering lectures for final year MBBS students, ward rounds, teaching to undergraduate students during their clinic posting, running OPDs and organizing symposiums and workshops but at the time of selection for the post of Senior Registrar which is technically inferior to post of Assistant Professor, preference was given to an outsider (respondent No.6) who has never been served for GMMMC Sukkur and unaware of the requirement of College. In the absence of an external subject specialist and judicial member of the Selection Board, remaining members of the Selection Board exhibited favoritism by selecting a candidate who possesses only a single postgraduate qualification, whereas, petitioner possesses two postgraduate qualifications with more postgraduate experience. At the time of interview, petitioner had two research papers duly published in journals but the biased Selection Committee ignored this altogether and gave preference to the respondent No.6, who had no published research papers on his credit. This highly rigging of Selection Board has been noticed by newspapers particularly and daily Kawish, it has been pointed out that there are gross irregularities committed by Selection Board while awarding seniorities and promotions. The respondents Nos. 1 and 2 in violation of SMBBMU Act issued the Office Order dated 08.06.2015 appointing the respondent No.6 as Senior Registrar of Psychiatry without the approval of Senate and Syndicate, which is illegal, unlawful, unconstitutional and contrary to law. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that the result dated 04.06.2015 and Office Order dated 08.06.2015 issued by respondents Nos.1 and 2 are illegal, unlawful, unconstitutional, without approval of competent authority (Senate and Syndicate), null and void, dishonest finding of Selection Board from whom the judicial member and Subject Specialist have not attended the meeting of Selection Board which have conducted the interviews and have violated the mandatory provision of code of conduct SMBBMU, who have selected the junior cadre Doctors as regular Professors, Associate Professors, Assistant Professors and Senior Registrars.

b)   To suspend the operation of result dated 04.06.2015 and Office Order dated 08.06.2015 till final decision of petition in hand, as the meeting of Selection Board has been held in absence of judicial member and Subject Specialist, who have not attended the said meeting of Selection Board and the criteria laid down by the Selection Board is un-constitutional, illegal and contrary to law.

c)   To direct the respondent No.1 to constitute a Selection Board comprising of independent and honest members and do not held its meeting without participation/attendance of judicial member and Subject Specialist.  

 

7)      The respondents Nos. 1 to 4 filed parawise comments, wherein, it is stated that basically petitioner is psychiatrist in BPS-18 and was allowed to work as Assistant Professor but he was not appointed so in the year 2014. It is further stated that petitioner did not raise objection that there was no external Subject Specialist of Psychiatry in Selection Board. It is further stated that Subject Specialist Dr. BadaruddinJunejo, who is Associate Professor of Psychiatry at SMBBMU was nominated as Expert for the purpose and he was present at the time of interview for relevant post. It is further stated that selection process was carried according to Section 6 (3) (a) of First Statutes of University. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that in C.P. No. D-3702 of 2013 this Court passed Order dated 04.03.2015 with direction to fill-up all vacant position at GMMMC Sukkur within a period of two months and the present process of appointments was to comply with the Order of this Court and to meet the demand of public and to complete the Faculty at GMMMC Sukkur. It is further stated that the appointment was to be made through competition from within University and outside candidate and in case a more competent candidate by his performance at examination proves to be more suitable then he is to be preferred and selected keeping in view the merit he achieved. It is further stated that the respondent No. 6 is proved more suitable therefore he was selected. It is further stated that there was no bar against the outsiders, they could apply as per the advertisement. It is further stated that the minimum requirement was single postgraduate qualification and not the two and respondent No.6 has required qualification and in competition he performed better than the petitioner and therefore he was selected. It is further stated that for the post of Senior Registrar, no Research Publications are required as per PM&DC criteria. It is further stated that PM&DC as routine visits the Medical Colleges all over the country and their visit to GMMMC Sukkur on 15.06.2015 had no nexus with the present process of selection.  It is further stated that the interviews were held on 30.05.2015 and 31.05.2015 and the result was announced on 04.06.2015 and there appears to be no haste at all. In the end, the respondents Nos. 1 to 4 prayed for dismissal of this petition.

8)      The respondent No.5 filed parawise comments, wherein, it is stated that as per regulations, for the appointment of faculty professional staff/examiners/principals/deans/administrative staff in under graduate and post graduate Medical and Dental Institutions of Pakistan, 2011, requirement of Professor of Surgery is MBBS or equivalent medical qualifications recognized/registered by PM&DC.

9)      The respondent No.6 did not file his Counter Affidavit to deny the facts stated in the instant petition. However, the respondent No.1 by Statement dated 09.02.2016 filed Resignation Letter dated 14.10.2015 of the respondent No.6 and acceptance by Office Order dated 23.11.2015 issued by the respondent No.1. 

 

C.P. No. D- 2181 of 2015

 

10)    The relevant facts of the petition are that the petitioner is a Senior Registrar allowed to work as Assistant Professor of Surgery, affiliated with Nobel Profession and working at Ghulam Muhammad Mahar Medical College (GMMMC) Sukkur. The petitioner was appointed as Demonstrator on the request of respondent No.3 vide Order dated 02.04.2007, as the petitioner was possessing experience of Surgery and Anatomy. Thereafter, the petitioner was appointed as an Assistant Professor of Anatomy BPS-18 (OPS) on 15.06.2007 and he joined the duty on 26.06.2007 and then he was allowed to work in the department of Surgery vide Order dated 04.06.2008. Thereafter, the petitioner was appointed as a Senior Registrar on regular basis vide Notification dated 22.10.2009, who joined duty on 23.10.2009 and also he was allowed to work as Assistant Professor in SMBBMU Larkana vide Order dated 31.10.2009 and till today he is working there. The respondent No. 1 through publication invited applications from qualified and eligible candidates for the posts of basic and clinical medical subjects on regular basis and contract basis for the posts of Professors, Associate Professors, Assistant Professors and Senior Registrars. The petitioner applied for the regular post of Associate Professor of Surgery (Regular & Contract) and Assistant Professor of Surgery (Regular), which was accepted and the petitioner was called for interview on 31-05-2015, when he appeared before the Selection Board, the petitioner pointed out during his interview before the Selection Board that judicial member of Selection Board is not present and therefore the Selection Board is incompetent, illegal, unlawful, unconstitutional and contrary to law. The respondents Nos. 1 to 3 have called applications for those posts, where is no single vacancy, they have call the applications for the post of Associate Professor, whereas 3 Associate Professors are already working there and there is no vacancy of Associate Professor in Surgery Department and if the list of pure vacancy position is to be perused in Anatomy Department, there is only one vacancy of Professor, one vacancy of Associate Professor and one vacancy of Assistant Professor and no vacancy of Senior Registrar. The respondents have deposed upon hypothesis and have played with the candidates who are affiliated with noble profession and entire publication is confused, unspeaking and shows malafide intention and ulterior motive of respondents Nos. 1 and 2. There is a gross violation of condition laid down for those employees, who have been restricted that they cannot take admission in PHD classes at Shah Abdul Latif University Khairpur, prior to permission from University, was declared as mandatory through letter dated 23.07.2014 and strict directions were given that PHD student should not hold administrator post during his/her post, but few of the teachers of GMMMC Sukkur, who were found doing PHD and holding administrator post. The respondent No.6 continued to remain student of PHD classes and was also holding the post of the Deputy Registrar.  At the time of interview, petitioner had fifteen research papers duly published in journals and petitioner had more than seven years experience in Department of Surgery and more than eight years teaching experience at GMMMC Sukkur but the biased Selection Committee ignored this altogether and gave preference to the respondent No.6, who had less published research papers on his credit. The respondents Nos. 1 and 2 hastily announced result on 04.06.2015 because the PMDC team was scheduled to visit college on 15.06.2015. The respondents Nos. 1 and 2 hastily and bulldozing the requirement of SMBBMU Act issued the Office Order dated 08.06.2015 appointing the respondent No.6 as Associate Professor without the approval of Senate and Syndicate, which is illegal, unlawful, unconstitutional and contrary to law. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that the result dated 04.06.2015 and Office Order dated 08.06.2015 issued by respondents Nos.1 and 2 are illegal, unlawful, unconstitutional, without approval of competent authority (Senate and Syndicate), null and voidab-initio, dishonest finding of Selection Board from whom the judicial member has not attended the meeting of Selection Board which have conducted the interviews and have violated the mandatory provision of code of conduct SMBBMU Act, who have selected the junior cadre Doctors as regular Professors, Associate Professors, Assistant Professors and Senior Registrars.

b)   To suspend the operation of result dated 04.06.2015 and Office Order dated 08.06.2015 till final decision of petition in hand, as the meeting of Selection Board has been held in absence of judicial member, who has not attended the said meeting of Selection Board and the criteria laid down by the Selection Board is un-constitutional, illegal and contrary to law.

c)   To direct the respondent No.1 to constitute a Selection Board comprising of independent and honest members and do not held its meeting without participation/attendance of judicial member.  

 

11)    The respondents Nos. 1 to 4 filed parawise comments, wherein, it is stated that petitioner was not appointed as Demonstrator at GMMMC Sukkur but he was then serving as Medical Officer at Taluka Hospital Rohri and his Medical Superintendent was requested to allow him to take demonstration only on Tuesday and Friday. It is further stated that selection process was carried according to Section 6 (3) (a) of First Statutes of University. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that in C.P. No. D-3702 of 2013 this Court passed Order dated 04.03.2015 with direction to fill-up all vacant position at GMMMC Sukkur within a period of two months and the present process of appointments was to comply with the Order of this Court and to meet the demand of public and to complete the Faculty at GMMMC Sukkur. It is further stated that the appointment was to be made through competition from within University and outside candidate and in case a more competent candidate by his performance at examination proves to be more suitable then he is to be preferred and selected keeping in view the merit he achieved. It is further stated that the respondent No. 6 is proved more suitable therefore he was selected. It is further stated that PM&DC as routine visits the Medical Colleges all over the country and their visit to GMMMC Sukkur on 15.06.2015 had no nexus with the present process of selection.  It is further stated that the interviews were held on 30.05.2015 and 31.05.2015 and the result was announced on 04.06.2015 and there appears to be no haste at all. In the end, the respondents Nos. 1 to 4 prayed for dismissal of this petition.

12)    The respondent No.5 filed parawise comments, wherein, it is stated that as per regulations, for the appointment of faculty professional staff/examiners/principals/deans/administrative staff in under graduate and post graduate Medical and Dental Institutions of Pakistan, 2011, requirement of Associate Professor of Surgery is MBBS or equivalent medical qualifications recognized/registered by PM&DC.

13)    The respondent No.6 filed his Counter Affidavit, wherein, he stated that after issuance of letter dated 23.07.2014, he avoided to attend the classes though he had got admission in PHD classes in the year 2013. It is further stated that by Order dated 20.04.2015 his additional charge of Deputy Registrar of SMBBMU at GMMMC College Sukkur was recalled/withdrawn. It is further stated that the respondent No.6 is senior to the petitioner in MBBS graduation in the year 1996, MCPS, FCPS, Post-Graduation in the year 2003 as well as admission in PHD in the year 2013. It is further stated that the respondent No.6 has administrative experience to run a college since the month of July 2014, when college was in crisis. It is further stated that the respondent No.6 is now selected as a Supervisor by College of Physicians and Surgeons Pakistan to give training to Post Graduates (FCPS) in GMMMC Sukkur. It is further stated that the petitioner is junior to the respondent No.6 and he could not satisfy the members of Selection Board to achieve the vacant post of Associate Professor on merits. It is further stated that when the then Vice Principal had resigned and the post was lying vacant, no one came forward to hold the said post of Vice Principal and ultimately the respondent No.6 was offered to hold the post of Vice Principal of the college. In the end, the respondent No.6 prayed for the dismissal of this petition.

 

C.P. No. D- 2182 of 2015

 

14)    The relevant facts of the petition are that the petitioner is an Assistant Professor of Surgery (Regular) affiliated with Nobel Profession and working at Ghulam Muhammad Mahar Medical College (GMMMC) Sukkur. The petitioner was appointed as Demonstrator (BPS-17) in Department of Anatomy at Chandka Medical College Larkana on 23.11.2004. Thereafter, he was transferred as Assistant Professor (BPS-18) in same institution vide Order dated 19.01.2006. Then, the petitioner was posted to work in the Department of Surgical Unit-I at Chandka Medical College Larkana and nowadays he is working as Assistant Professor of Surgery (Regular) at GMMMC Sukkur since 24.01.2011 till today. The respondent No.1 through publication invited applications from qualified and eligible candidates for the posts of basic and clinical medical subjects on regular basis and contract basis for the posts of Professors, Associate Professors, Assistant Professors and Senior Registrars. The petitioner applied for the post of Associate Professor (Regular) at GMMMC Sukkur inspite of that he is qualified and eligible for the regular post of Professor, which was accepted and the petitioner was called for interview on 31-05-2015, when he appeared before the Selection Board, the petitioner pointed out during his interview before the Selection Board that judicial member of Selection Board is not present and therefore the Selection Board is incompetent, illegal, unlawful, unconstitutional and contrary to law. The respondents Nos.1 to 3 have called applications for those posts, where is no single vacancy, they have call the applications for the post of Associate Professor, whereas 3 Associate Professors are already working there and there is no vacancy of Associate Professor in Surgery Department and if the list of pure vacancy position is to be perused in Anatomy Department, there is only one vacancy of Professor, one vacancy of Associate Professor and one vacancy of Assistant Professor and no vacancy of Senior Registrar. The respondents have deposed upon hypothesis and have played with the candidates who are affiliated with noble profession and entire publication is confused, unspeaking and shows malafide intention and ulterior motive of respondents Nos.1 and 2. There is a gross violation of condition laid down for those employees, who have been restricted that they cannot take admission in PHD classes at Shah Abdul Latif University Khairpur, prior to permission from University, was declared as mandatory through letter dated 23.07.2014 and strict directions were given that PHD student should not hold administrator post during his/her post, but few of the teachers of GMMMC Sukkur, who were found doing PHD and holding administrator post. The respondent No.6 continued to remain student of PHD classes and was also holding the post of the Deputy Registrar.  The respondents Nos. 1 and 2 hastily announced result on 04.06.2015 because the PMDC team was scheduled to visit college on 15.06.2015. The respondents Nos.1 and 2 hastily and bulldozing the requirement of SMBBMU Act issued the Office Order dated 08.06.2015 appointing the respondent No.6 as Associate Professor without the approval of Senate and Syndicate, which is illegal, unlawful, unconstitutional and contrary to law. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that the result dated 04.06.2015 and Office Order dated 08.06.2015 issued by respondents Nos.1 and 2 are illegal, unlawful, unconstitutional, without approval of competent authority (Senate and Syndicate), null and voidab-initio, dishonest finding of Selection Board from whom the judicial member has not attended the meeting of Selection Board which have conducted the interviews and have violated the mandatory provision of code of conduct SMBBMU Act, who have selected the junior cadre Doctors as regular Professors, Associate Professors, Assistant Professors and Senior Registrars.

b)   To suspend the operation of result dated 04.06.2015 and Office Order dated 08.06.2015 till final decision of petition in hand, as the meeting of Selection Board has been held in absence of judicial member, who has not attended the said meeting of Selection Board and the criteria laid down by the Selection Board is un-constitutional, illegal and contrary to law.

c)   To direct the respondent No.1 to constitute a Selection Board comprising of independent and honest members and do not held its meeting without participation/attendance of judicial member.  

 

15)    The respondents Nos.1 to 4 filed parawise comments, wherein, it is stated that selection process was carried according to Section 6 (3) (a) of First Statutes of University. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that in C.P. No. D-3702 of 2013 this Court passed Order dated 04.03.2015 with direction to fill-up all vacant position at GMMMC Sukkur within a period of two months and the present process of appointments was to comply with the Order of this Court and to meet the demand of public and to complete the Faculty at GMMMC Sukkur. It is further stated that the appointment was to be made through competition from within University and outside candidate and in case a more competent candidate by his performance at examination proves to be more suitable then he is to be preferred and selected keeping in view the merit he achieved. It is further stated that the respondent No. 6 is proved more suitable therefore he was selected. It is further stated that PM&DC as routine visits the Medical Colleges all over the country and their visit to GMMMC Sukkur on 15.06.2015 had no nexus with the present process of selection.  It is further stated that the interviews were held on 30.05.2015 and 31.05.2015 and the result was announced on 04.06.2015 and there appears to be no haste at all. In the end, the respondents Nos. 1 to 4 prayed for dismissal of this petition.

16)    The respondent No.5 filed parawise comments, wherein, it is stated that as per regulations, for the appointment of faculty professional staff/examiners/principals/deans/administrative staff in under graduate and post graduate Medical and Dental Institutions of Pakistan, 2011, requirement of Associate Professor of Surgery is MBBS or equivalent medical qualifications recognized/registered by PM&DC.

17)    The respondent No.6 filed his Counter Affidavit, wherein, he stated that after issuance of letter dated 23.07.2014, he avoided to attend the classes though he had got admission in PHD classes in the year 2013. It was further stated that by Order dated 20.04.2015 his additional charge of Deputy Registrar of SMBBMU at GMMMC College Sukkur was recalled/withdrawn. It is further stated that the respondent No.6 has been selected on merits on first number whereas the petitioner has been selected on second number on merits. It is further stated that the respondent No.6 has administrative experience to run a college since the month of July 2014, when college was in crisis. It is further stated that the respondent No.6 is now selected as a Supervisor by College of Physicians and Surgeons Pakistan to give training to Post Graduates (FCPS) in GMMMC Sukkur. It is further stated that when the then Vice Principal had resigned and the post was lying vacant, no one came forward to hold the said post of Vice Principal and ultimately the respondent No.6 was offered to hold the post of Vice Principal of the college. In the end, the respondent No.6 prayed for the dismissal of this petition.

 

C.P. No. D-3114 of 2015

 

18)    The relevant facts of the petition are that the petitioner is working as Senior Medical Officer and Consultant Surgeon and presently posted at Chandka Medical College Teaching Hospital Larkana in BPS-18. The Data of Professional Qualification, Clinical Experience and Research Paper Work of the petitioner has been specifically stated in the memo of petition. The respondent No.1 through publication invited applications from qualified and eligible candidates for the different advertised posts available in the difference departments GMMMC Sukkur. The petitioner applied for the post of Senior Registrar Surgery (Regular Basis) at GMMMC Sukkur, which was accepted and the petitioner was called for interview on 31-05-2015, when he appeared before the Selection Board, but the petitioner was not selected for the said post and respondent No.6 being a fresh candidate without any experience and qualification was selected by the Selection Board for the said post of Senior Registrar (Regular). The judicial member of Selection Board was not present and therefore the Selection Board was incompetent, illegal, unlawful, unconstitutional and contrary to law. There is another glaring illegality committed by the Selection Board and the Syndicate in collusion with each other is the violation of Section 7 (1) of the said First Statutes, whereby the Selection Board was to recommend the names of suitable candidates for appointment to teaching and other posts and thereafter the Syndicate was to appoint suitable candidates out of the recommended names of the suitable candidates but this procedure was not followed by the Selection Board and impugned appointment orders were issued. On the basis of the said impugned appointments orders including of the respondent No.6 all of them resumed their respective assigned duties at the GMMMC, Sukkur. The entire management of the MSBBMU Larakana including the Vice Chancellor, Syndicate and the Selection Board in collusion with each other have defeated the relevant provisions of the First Statutes and obtained post facto sanction from the Syndicate of the illegal and unlawful conduct of the said Selection Board, Vice Chancellor and Registrar, all of them have committed violation of the said Section 7 (1) of the First Statutes by issuing ab-initio void impugned appointment orders although there is no provision in the said First Statutes about post facto sanction with the Syndicate.. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that composition the University Selection Board as highlighted in Para-9 of the petition that conducted the Interview on the 30th and 31st of May 2015 for selecting the qualified/eligible candidates on the basis of their application on the prescribed forms in response to the Advertisement (Annexure A-8) including that of the petitioner and respondent No.6 has not been constituted legally and properly in terms of S.6 (1) (i) to (vi), (2), (3) (4) and 5 of First Statutes of SMBBMU Larkana, and had all the pointed illegalities in is constitution as highlighted Para No.9 of the petition by the petitioner.

b)   To declare that entire exercise of conduction of Interviews on the 30th and 31st of May 2015 by the Selection Board for selecting the qualified /eligible candidates on the basis of their application on the prescribed forms in response to the Advertisement (Annexure A-8) and entire adopted camouflaged procedure in a cursory and slip shod manner without considering the merits viz., qualification, under Graduate Qualification, Post Graduate Qualification, Advance Qualification, Research Publications based on Research papers of the petitioner and that of the respondent No.6 for the post applied, without maintaining evaluation record for placing it before the Syndicate in terms of S. 7 (1) of the First Statue of SMBBMU Larkana, and such a bad selection of the Selection Board without any selection criteria before it, is illegal unlawful, carries on legal sanctity in the eye of law, and is liable to set aside by this Hon’ble Court.

c)   To declare all the impugned appointment orders including that of the respondent No.6 issued by the Registrar SMBBMU Larkana on self assuming roll & powers of the Syndicate as laid down in S. 7 (1) of the First Statutes of SMBBMU Larkana; on the illegal and unlawful permission of the Vice Chancellor and issued impugned order bearing No. SMBBMU/REG./1308 dated 17.06.2015 (Annexure A-14) and office order bearing No. SMBBMU/REG./1313 dated 18.06.2015 (Annexure ‘A-15), in violations of the procedure laid down in S.7 (1) of the First Statutes of SMBBMU Larkana.

d)   To declare that the post facto sanction of the impugned orders (Annexure ‘A-14’ and ‘A-15’) and the recommendations of Selection Board obtained by the concerned management of MSBBMU Larkanaviz, the Vice Chancellor, the Syndicate Members, the Selection Board and the Registrar in collusion with each other in the 26th convened Syndicate Meeting held on 13th July 2015 in the Vice Chancellor’s Secretariat SMBBMU Larkana in Resolution # Syn.26.1 of the Minutes of the held 26th Meeting (Annexure ‘A-21, ‘A-22’ and ‘A-23’) is illegal and unlawful signal and ab-initio  void, as there exists no provision (s) in said First Statue of SMBBMU Larkana for obtaining and under going for post fact sanction/approval of the committed wrong in violation of S. 7(1) of the said First Statutes  by the Registrar and Vice Chancellor in issuing the impugned appointment orders, and such an illegal exercise taken in the 26th Syndicate Meeting by Syndicate is illegal, unlawful and void ab-initio, and liable to be struck down by this Hon’ble Court as contrary to law and laid down procedure.

e)   To declare that the very composition of the University Syndicate that accorded approval of impugned appointment orders in its 26th  Meeting convened on 13th July 2015 being Chief Executive body was in complete and deficient in its formation and composition as a Syndicate in terms of S.19 and 20 of the MSBBMU Larkana Act 2008, and three (3) Professors from different department who are not members of the Senate, to be elected by University Teachers in accordance with the procedure to be prescribed by the Senate, and fixed at S. No. 12, 13 and 14 of the Minutes appended as annexure ‘A/23’ of the petition were not constituted and their position remained vacant and the Syndicate remained incomplete, and thus the accorded approval in its Resolution # Syn. 26.1 of the fate of the impugned Orders is also illegal, unlawful and void ab-initio.

f)    To direct the respondent No.1 to constitute a University Selection Board strictly in accordance with law as laid down in First Statutes, and thereafter on proper laid down procedure and selection criteria conduct the interviews afresh, and accordingly; issue appointment orders on the laid down procedure in the said First Statutes of SMBBMU Larkana.   

 

19)    The respondents Nos.1 to 5 filed parawise comments, wherein, it is stated that no teaching experience and publication is required for the post of Senior Registrar. It is further stated that the petitioner and respondent No.6 both met minimum requirement of experience and research publication rather work above the same and thus were called to compete for the post in question, which was to be filled in by direct selection through competition depending upon their performance before the Selection Board. It is further stated that Syndicate in its first meeting held on 18.11.2009 unanimously approved name of Principal CMC /Principal GMMMC/Director GIMS  as Syndicate Member as per Section 6 (1) (vi) of the First Statutes. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that in C.P. No. D-3702 of 2013 this Court passed Order dated 04.03.2015 with direction to fill-up all vacant position at GMMMC Sukkur within a period of two months and the present process of appointments was to comply with the Order of this Court and to meet the demand of public and to complete the Faculty at GMMMC Sukkur. It is further stated that the Orders issued by Registrar clearly mentioned that appointment would be subject to approval of Syndicate. It is further stated that the Registrar issued Notification after completing all the legal formalities. In the end, the respondents Nos. 1 to 5 prayed for dismissal of this petition.

20)    The respondent No.6 filed his Counter Affidavit, wherein, he stated that that the petitioner has applied only for the post of Senior Registrar Surgery on regular bases (BPS-19) at GMMMC Sukkur but he did not apply for contract bases because he was already working on regular bases as a Senior Medical Officer and Consultant Surgeon (BPS-18) Chandka Medical College and Teaching Hospital Larkana. It was further stated that the respondent No.6 has applied for the said post separately on regular as well as on contract bases and he has been selected by the Selection Board as Senior Registrar Surgery on contract bases and not on regular bases. In the end, the respondent No.6 prayed for the dismissal of this petition.

 

C.P. No. D-3200 of 2015

 

21)    The relevant facts of the petition are that the petitioner is highly qualified person and was appointed as Medical Officer (B-17) Commissioned-1995 through SPSC & posted at GMMMC Sukkur as Demonstrator (B-17) in the Department of Community Medicine in June 2007 and he was allowed to work as Assistant Professor (OPS) in the same institute in June 2008. Since July 2014, the petitioner is working as Associate Professor of Community Medicine on current charge basis (CCB) at GMMMC Sukkur after fulfilling the requirement of that post by PMDC. The respondent No.4 through publication invited applications from suitable and eligible candidates for the appointments (regular and contract basis) of Professors, Associate Professors, Assistant Professors and Senior Registrars in various teaching posts at various departments of GMMMC Sukkur. There was one seat of Associate Professor in the Department of Community Medicine still lying vacant.  The meeting of biased Selection Board was held on 30.05.2015 but in violation of Sections 5 and 6 of First Statutes of SMBBMU, the petitioner was not selected and the seat remained vacant in the Department of Community Medicine even though the petitioner is working as Associate Professor of Community Medicine on current charge basis since July 2014. The seniority, experience and research publications were totally neglected and there were no selection criteria and no marks were awarded. Selection criteria and marks distributions were not defined in interview as described by LUMHS Code (First Medical University of the Country). The respondents completely ignored the merits and selection criteria to support their dear ones and ignored the petitioner. As there was only one seat of Associate Professor in the Department of Community Medicine and there was no other candidate except the petitioner, who is made eligible as Associate Professor by PMDC. In 2009, more than 20 candidates appeared in SPSC on the post of Assistant Professor of Community Medicine but only two were selected alongwith petitioner, which shows his experience and merit. Result of biased Selection Board was declared on 04.06.2015 but the petitioner was not selected on personal grudges and the seat remained vacant. Approval of appointment and posting was made in violation of statutory requirement of Section 7 of the First Statutes. After filing of certain petitions, the respondent No.2 has arranged a special/urgent meeting of Syndicate on 09.07.2015 through Office Letter dated 02.07.2015, exactly on second day of hearing of 01.07.2015 when this Court required to produce Syndicate record whether approval was taken or not. The entire process between 02.07.2017 to 13.07.2017 was in gross violation of law and establish malafide intention of the respondents. The Syndicate being the executive body of the university was incomplete and holding of the meetings of such and incomplete executive body for seeking the sanction of the appointments is severe wrong committed by the Vice Chancellor and the Registrar as no sanctity in law and decisions including the approval of the appointments is redundant and void ab-initio. In fact, SMBBMU has no Code Book yet since its creation in 2008, which reflects their malafide intention and hence they are playing with the future of the candidates by malafide acts without rules and regulations. In the end, the petitioner prayed for the following reliefs:-

a)   To declare that composition of the University Selection Board  that conducted the interviews for selecting the candidates on the basis of their applications on the prescribed forms in response to the advertisement in which already filled posts were announced to select their near and dear ones, has not been constituted illegally and properly in terms of the Sections Nos. 6 & 7 of the First Statutes  of SMBBMU Larkana and had all the pointed illegalities in its constitution as highlighted in petition by the petitioner.

b)   To declare that entire exercise of conduction of Interviews by the Selection Board on already filled posts and entire adopted camouflaged procedure in a cursory & slip shod manner without considering the merits viz., Qualification, Research publications and Experience of the petitioner for the post applied for, as laid down in LUMHS code (first medical university of the country), without maintaining evaluation record for placing its before the Syndicate in terms of S.7 (1) of the First Statutes of SMBBMU Larkana, & such a bad selection of the Selection Board without any selection criteria before it, is illegal, unlawful and is liable to set aside by this Honourable Court.

c)   To suspend the operation on result dated 04.06.2015 based on the decisions of biased selection board who conducted the interviews, without judicial member & illegal unlawful composition of the selection board which conducted the biased selection without considering the experience, research publications and merit of the candidates alongwith petitioner.

d)   To declare that the very composition of the university Syndicate that accorded the approval of impugned appointments orders in its 27th meeting being chief executive body was incomplete and deficient in its formation and composition as a syndicate in terms of S. 19 and 20 of the SMBBMU Act of 2008, and three (3) professors from different departments who are not members of the Senate, to be elected by university teachers in accordance with the procedure to be prescribed by the Senate, and fixed at S. No. 12, 13 and 14 of the minutes of the 26th Syndicate meeting, were not constituted and their position remained vacant and the syndicate remained incomplete and thus the accorded approval by this incomplete & unconstitutional body of Syndicate is also illegal, unlawful & void ab-initio.

e)   To direct the respondent No.1 to constitute a University Selection Board and code strictly in accordance with law as laid down in First Statutes, and thereafter on proper laid down procedure and selection criteria like experience, research publications & merit conduct the interviews afresh.

 

22)    The respondents Nos.1 to 6 filed parawise comments, wherein, it is stated that the question regarding Assistant Professor by selection through SPSC is not full and final requirement towards the selection as Associate Professor by Selection Board of SMBBMU Larkana. It is further stated that even after non-selection of the petitioner by the Selection Board for the post of Associate Professor, University has not removed him from holding charge of Associate Professor of current charge basis, which is no sufficient ground for selection on regular sanctioned post of University.  It is further stated that it is not mandatory for Selection Board to select unsuitable candidate even if no other candidate had appeared and interview for the said post. It is further stated that Syndicate in its first meeting held on 18.11.2009 unanimously approved name of Principal CMC /Principal GMMMC/Director GIMS as Syndicate Member as per Section 6 (1) (vi) of the First Statutes. It is further stated that Judicial Member of Selection Board Mr. Justice Ahmed Ali Shaikh was requested/informed through letters dated 22.05.2015 but he did not attend/participate in the meeting of Selection Board but the requirement of Quorum was not only complete but the members more than Quorum were present at the time of interview. It is further stated that the post was to be filled in by direct selection through competition dependent upon their performance before Selection Board. It is further stated that SMBBMU is not bound to follow the selection criteria of LUMHS. It is further stated that the petitioner failed to achieve minimum passing marks for recommendation by Selection Board and therefore he was not recommended by the Selection Board. It is further stated that all legal formalities were fulfilled and Syndicate approval was not partial but it was by majority of votes, which is normal legal procedure as rules of business of conduct of Syndicate meeting of University. It is further stated that SMBBMU is being run with rules and regulations as incorporated in its Charter and First Statutes. In the end, the respondents Nos. 1 to 6 prayed for dismissal of this petition.

 

23)    We have heard the learned counsel for the parties and perused the material available on the record. Apart from the oral arguments, M/s. GhulamShabbirShar, Zulfiqar Ali Sangi and T-David Lawrence, Advocates for the petitioners submitted written arguments. On the other hand, Mr. Mukesh Kumar G. Karara Advocate for the respondent No.5 in C.P. No. 2090 of 2015 also submitted written arguments, while Mr. Asif HussainChandio  and learned AAG adopted the arguments of Mr. Mukesh Kumar G. Karara Advocate.

 

24)    After going through the entire material available on the record and also considering the arguments oral as well as written submitted by all the learned counsel for the parties, we came to the conclusion that the only point for consideration in all these petitions is that:-

Whether the Selection Board was constituted according to Section 6 of the First Statutes? If not, whether the decisions taken by the Selection Board, not properly constituted, are legal and valid?

 

25)    To resolve this controversy, it is essential to reproduce Section 6 of the First Statutes, which provides that:-

“6-     (1) The Selection Board shall consist of:

(i)           The Vice Chancellor (Chairman).

(ii)         The nominee of Chief Justice of Sindh High Court.

(iii)        The Registrar (Convener).

(iv)        The Dean of the Faculty concerned.

(v)         The Chairman of the Teaching Department concerned (a).

(vi)       One member of the Syndicate and two other men of eminence, to be appointed by the Syndicate, provided that neither of the three are employees of the University.

 

(2)     The members mentioned in sub-clause (v) of clause (1) shall hold office for two years.

(3)     (a) Five members shall form the quorum for the selection of a Professor or an Associate Professor and four members for the selection of other Teachers.

(b)In case of officers other than teachers, the Selection board shall consist only of members at sub-clauses (i), (ii) and (v) of clause (1).

(4)     No member who is a candidate for the post to which appointment is to be made shall take part in the proceedings of the Board.

(5)     In selecting Candidates for the teaching posts, the Selection Board shall co-opt two experts in the subject concerned, to be nominated by the Vice Chancellor from a standing list of experts for each subject approved by the Syndicate on the recommendation of the Selection Board and revised from time to time.”

 

26)    Admittedly, the nominee of Chief Justice of Sindh High Court (Judicial Member) was not present in the meeting of the Selection Board which is the requirement of Section 6 (1) (ii) of the First Statutes. Apart from this, the Principal GMMMC Sukkur was kept as Member of Selection Board, which is in violation of Section 6 (5) of the First Statutes as he is the employee of the University. To prove that the Principal GMMMC Sukkur is an employee of the University, it is necessary to reproduce relevant Sections of the ShaheedMohtarma Benazir Bhutto Medical University Larkana, Act, 2008 (Sindh Act No. VI of 2008) as under:-

“S-2-(vii):-   “Constituent College”- means a college maintained and administered by the University;

          S.2-(xiv)     “Principal”- means the head of a College;

S.3- (6)       All properties, rights and interests of whatever kind, used, enjoyed, possessed, owned or vested in, or held in trust by the Chandka Medical College, Larkana, Chandka Dental CollegeLarkana, Ghulam Muhammad Mahar Medical College Sukkur, Gambat Institute of Medical Sciences, Gambat and liabilities legally subsisting against them shall stand transferred to the University.

S.3 (7)        All persons serving in in Chandka Medical College,Larkana,Chandka Dental College, Larkana, GhulamMuhammad Mahar Medical College Sukkur, Gambat Institute of Medical Sciences, Gambat in any capacity immediately after commencement of this Act shall, notwithstanding any law or terms and conditions of their service, shall be transferred to the University on the terms and conditions as may be prescribed:

Provided that such terms and conditions shall not be less favorable than the terms and conditions admissible to them immediately before their transfer.”

         

Accordingly, it is ex-facie apparent that the entire process of selection and subsequent approval by the Syndicate was in utter violation of the prescribed law and hence illegal, unlawful, null and void having no legal effect whatsoever. 

227)    Selection process for making appointments to the important posts is aimed at evaluation of merits of candidates on objective basis. This is most important role of the Selection Committee of the highest Educational Institution of the country and therefore the function of the Selection Committee is to select the most eligible and suitable candidates from among the available candidates on the basis of merits adjudged by adopting fairly laid down criteria. The object of selection, therefore, can be achieved or would fail if the Selection Committee succeeds or fails to discharge this task. This is why constitution of Selection Committee is important and it has to be properly constituted as provided in the law and if the Selection Committee itself is not properly constituted as provided in the law then entire proceedings of the Selection Committee and subsequent approval in illegal manner by the Syndicate will become illegal, unlawful, null and void having no legal effect whatsoever.

28)    It is well established principle of law that where a particular procedure is prescribed for doing something, that thing must be done according to that procedure, otherwise, the entire proceedings would be illegal, irregular and nullity in law. In view of this established principle of law, the Selection Board was not constituted according to Section 6 of the First Statutes and hence all the decisions taken by the Selection Board and subsequent approval by the Syndicate are illegal, unlawful, null and void having no legal effect whatsoever.

 

29)    It is also well established principle of law that if initial action, order or decision is without jurisdiction being contrary to law then on the basis of such illegal action, order or decision, all subsequent actions, orders and decisions together with the superstructure of rights and obligations built upon them fall to the ground because such actions, orders and decisions have as little foundation as the void order on which they are founded. Reliance can be placedupon the case of Yousaf Ali Vs. Muhammad Aslam Zia and 2 others (PLD 1958 Supreme Court (Pak.) 104).

 

30)    There is another important factor for consideration that the Selection Board without assigning any cogent reason merely mentioned simple words“recommended” and “not recommended”, which is in violation of Section 24 (A) (2) of the General Clauses Act, which provides that:-

“(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or as the case may be, for issuing the direction and shall provide a copy of the order or, as the case may be, the direction to the person affected prejudicially.”

 

In view of this provision of law, the decisions taken by the SelectionBoard by merely using simple words “recommended” and “notrecommended” are neither in accordance with law nor can be termed as reasoned decisions. It is by now established principle of law that apart from Court of law, any authority entrusted with quasi-judicial powers must pass decisions supported by valid, sound and cogent reasons, which prima facie shows that the authority has reached to a conclusion which is just, legal and sound and is not in any manner arbitrarily or based upon the whim, caprice or fancy of the authority. A candidate is entitled to know the grounds on which the Selection Board has not recommended him and recommended another candidate. Excessive use of lawful power by the Selection Board became unlawful, null and void and hence amenable to constitutional jurisdiction of this Court as the executive and administrative actions and decisions tainted with arbitrariness and lacking fair play and transparency could be subjected to judicial review in constitution petition.

 

31)    It is settled law that administrative discretion has to be structured, reasoned, rational, logical and objective. One of the ways to arrive at such a structured exercise of discretion is to fashion it on a well-thought out, carefully deliberated objective standard. This helps test various faculties of the interviewee especially those, which the institution concerned requires. The standard can, therefore, cover experience, alertness, initiative, general, aptitude, behavior, knowledge and dependability, which form a uniform yardstick; gauge, scale or criteria for the exercise of discretion. Discretion without a uniform yardstick or a formula is a loose jumble of haphazard human subjectivity, which is inescapably susceptible to error and indubitably arbitrary, ex-facie discriminatory, highly irrational and painfully illogical. The administrative compulsion and wisdom to structure discretion is to remove human subjectivity from exercise of discretion.

 

32)    Good governance and institutional building requires that the requirements, demands and needs of the institution are tailored into the objective criteria/test so that the best suited human resource is selected for the posts. The proposed criteria can sub-divide total marks into areas like; experience, skill aptitude, educational background, intellect, extra-curricular, personality, ethics, etc. So the interviewers have a prefixed format to apply their mind on disallow unchecked subjectivity from clogging them the minds.

33)    On an institutional level, structuring the discretion is to protect the institution and the public from the vice of arbitrariness. It is to filter whims, vagaries, caprice, surmises and volatility attached to human behavior, translated into human discretion. These vices are a breeding ground for corruption, nepotism and favoritism. These vices are like termites and if permitted to exist, weaken the foundations of democratic public institutions.Accordingly, appointments in public institutions have to be made strictly in accordance with applicable law, without any discrimination and in a transparent manner and all such appointments must be based on a process that was palpably and tangibly fair, honest and within the parameters of statutory law, rules and regulations of the University.

34)    The basic object of establishment of Courts in a Society was not only to administer law but was in fact to dispense justice. The ultimate goal of Courts has to do complete justice and ensure the rights of parties without any hurdles. Apart from this, it is well settled principle for the administration of justice that justice should not only be done but to be manifestly seen to be done. Accordingly, the Selection Board was bound to disclose cogent and sound reasons for“recommended” and “not recommended”the candidates, which has not been done in all these petitions and hence the decisions of the Selection Board by merely using simple words “recommended” and “not recommended”are ab-initio null and void having no legal effect whatsoever.

35)    After considering all the aspects of the instant matters, we came to the conclusion that the Vice Chancellor of the University being the Chairman of the Selection Board is solely responsible for all the illegal acts done in the instant matters.

36)    In view of the above discussion, we allow all the instant petitions with costs and set-aside all the decisions with effect from 30.05.2015, interviews and results dated 04.06.2015 and all subsequent orders, notifications and appointments being illegal, unlawful, null and void having no legal effect whatsoever with the following directions that:-

i)             the Vice Chancellor of the University being the Chairman of the Selection Board shall constitute Selection Board strictly in accordance with Section 6 of the First Statutes within 30 days from the date of Judgment;

ii)            fresh advertisements for the posts shall be published in the news papers as it was published earlier specially in the same news papers;

iii)          all the candidates new as well as old including the parties in these petitions can apply for the required posts;

iv)          all the members of Selection Board after considering cases of candidates should assign cogent, sound and valid reasons for “recommendation” and “non-recommendation”of each candidate and then submit the matter to the Syndicate in terms of Section 7 of the First Statutes;

v)           the entire process shall be concluded by the Selection Board as well as Syndicate within the period of three months from the date of Judgment;

vi)          University shall not claim refund of all back benefits from the private respondents and all other persons who were selected by the Selection Board of the University.

 

J U D G E

 

 

J U D G E