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