Dr. Shamoona & others VS FOP & others

Form No: HCJD/C-121

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

(JUDICIAL DEPARTMENT)

W.P. No.523/2022

Dr Shamoona Naqvi & 4 others

Versus

Federation of Pakistan through Secretary, Ministry of National Health Services, Regulations & Coordination & 3 others

Petitioners by : Mr Abid Mehmood, Advocate.

Respondents by : Mr Khalid Mehmood Dhoon, Asstt. Attorney General.

Mr Naseem Hassan Shah, Advocate.

Ms Amna Ali, Advocate.

Mr Shabbir Ahmed, Suptd. (Legal), M/o

NHSR&C.

Date of Hearing : 07.04.2023

Arbab Muhammad Tahir, J.- The instant petition is in the nature of quo-warranto. The petitioners, through the instant petition have questioned the appointment of respondent No.4 (Dr Asman Shaheen) as Surgeon (Obstetrics & Gyneacology) in the Federal Government Polyclinic, Islamabad.

2.Succinctly, the facts are that, respondent No.4 was serving as Medical Superintendent (BS-19) in the Pakistan Railways Hospital, Karachi. She was allowed deputation under the wed-lock policy against the vacant post of Surgeon (Obstetrics & Gyneacology) in the Federal Government Polyclinic, Islamabad by the Ministry of National Health Services, Regulation & Coordination vide notification, dated 04.02.2022, initially for a period of three years. The petitioners

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have assailed the appointment on the ground that it was in violation of S.R.O. 1134(I)(2018), dated 10.09.2018 (the “SRO”) as respondent No.4 does not possess the requisite qualification and experience.

3.The learned counsel for the petitioners has argued that; the appointment is in violation of the SRO; respondent No.4 never served as Associate Surgeon; respondent No.4 lacks the requisite qualification and experience to hold the post of Surgeon (Obstetrics & Gyneacology); the appointment is in violation of rules governing deputation; the department is trying to facilitate respondent No.4 and this fact is evident from filing of three different comments on behalf of respondents No.1 and 2, which is not admissible under the law; the appointment ought to have been made on temporary basis till the joining of a regular incumbent and not for a fixed term; the husband of respondent No.4 is not a government servant, therefore, she cannot take benefit of the wed-lock policy; the appointment is illegal and without lawful authority; respondent No.4 was not eligible to be appointed; reliance has been placed on the cases titled “Contempt Proceedings against Chief Secretary, ?Sindh and others” [2013 SCMR 1752], “The Chairman Board of Governors, Medical Teaching Institute (MTI) Lady Reading Hospital (LRH), Peshawar and others v. Syed Roidar Shah, Clinical Technician (Pharmacy), Medical Teaching Institute (MTI) Lady Reading Hospital (LRH), Peshawar and others” [2021 SCMR 867], unreported judgment, dated 09.03.2022 of this Court in ICA No.179/2021, “Muhammad Mansoor ul Haq v. Federation of Pakistan through Secretary, M/o Overseas Pakistan and HRD Islamabad and others” [2017 PLC (CS) 1365] and “Ejaz Hussan v. Abdul Qayyum” [1996 PLC (CS) 622].

4.On the other hand, the learned Assistant Attorney General assisted by the learned counsels for the respondents has argued that; respondent No.4 was allowed deputation on the basis of wed-lock

W.P. No.523/2022

policy; her appointment was made against the quota reserved for direct quota; no prejudice is caused to the promotion prospects of the petitioners as they will be considered for promotion against the quota reserved for promotion; the ratio of promotion to the post of Surgeon (Obstetrics & Gyneacology) is 80:20; respondent No.4 possesses the requisite qualification and experience; the committee constituted by the Ministry of National Health Services, Regulations & Coordination (the “Ministry”) has resolved the question of eligibility of respondent No.4 to hold the said post; the petition is not maintainable; the arrangement of appointment on the basis of deputation is between two departments; the deputation is subject to the orders of the competent authority; the para-wise comments were filed inadvertently, therefore, pursuant to the orders of this Court an inquiry was conducted; the earlier comments were filed after vetting from the Ministry of Law and Justice; the third comments filed on behalf of respondents No.1 and 2 may be considered; the post does not fall within the definition of “public office”, therefore, the petition is not maintainable.

5.Heard. Record perused.

6.Since the instant petition is in the nature of quo-warranto, therefore, the petitioners have questioned the appointment of respondent No.4 on the ground that she does not possess the requisite qualification and experience. They have, therefore, relied on the “Conditions for Appointment” provided under the SRO notified in the official gazette by the Ministry of National Health Services, Regulations and Coordination pursuant to the powers conferred by sub-rule (2) of Rule 3 of the Civil Servants (Appointment, Promotion & Transfer) Rules, 1973 and Section 1(1)(b)(i) & (ii) of FPSC Ordinance, 1977. The post held by respondent No.4 is Surgeon (Obstetrics & Gyneacology). The relevant portion of the SRO is reproduced below.-

W.P. No.523/2022

CONDITIONS FOR PROMOTION

S.No. Designation Person(s) eligible Conditions of eligibility and BS of the Post(s)

20 Surgeon Associate Surgeon (i) 12 years service (Obstetrics & (Obstetrics & in BS-17 and Gyneacology) Gyneacology) above

(BS-19) (BS-18) OR

07 years service in BS-18 in case of initial appointment in

BS-18

(ii)PM&DC level III qualification in respective subject like FCPS/MD/MS or other equivalent level III qualifications in the specialty recognized/ registered by the

PM&DC.

7.Keeping in view the controversy involved, the Ministry constituted a three member committee under the convenership of Dr Nadeem Akhtar, Professor of Pediatric Surgery, PIMS to assess the qualification/experience of respondent No.4 for her posting as Surgeon (Obstetrics & Gyneacology), which concluded that she possesses post FCPS (Obstetrics & Gyneacology) more than 8 years clinical experience, which meets the requirements for the post of Surgeon (Obstetrics & Gyneacology).

8.Perusal of the record shows that respondent No.4 is a civil servant and an employee of the Federal Government under the Ministry of Railways. She was serving as Medical Superintendent (BS-

19)in the Railways Hospital. Perusal of the SRO shows that the terms and conditions of a person appointed against the post of Surgeon (Obstetrics & Gyneacology) (BS-19) are governed under the Civil

W.P. No.523/2022

Servants Act, 1973 and the rules made thereunder. Admittedly, respondent No.4 has not been absorbed and her posting on the basis of deputation is a temporary arrangement between the borrowing and lending departments. The ratio of promotion and direct recruitment against the post of Surgeon (Obstetrics & Gyneacology) is 80:20 respectively. The department in its written comments has categorically stated that respondent No.4 has been posted against the existing vacancy meant for direct recruitment. The petitioners are serving as Associate Surgeons (Obstetrics & Gyneacology) (BS-18) in the respondent department and the posting of respondent No.4 on deputation does not prejudice their promotion prospects. Although the petitioner has been posted on deputation, but she is required to possess the required eligibility criteria in terms of qualification and experience. In order to assess whether respondent No.4 possess the requisite qualification and experience to hold the post of Surgeons (Obstetrics & Gyneacology), the Ministry had constituted a committee. The said committee concluded that the qualification and experience is sufficient and makes her eligible to be posted as Surgeons (Obstetrics & Gyneacology).

9.The learned counsel has placed reliance on the judgments rendered by the august Supreme Court in the cases titled “Contempt Proceedings against Chief Secretary, Sindh and others” [2013 SCMR 1752] and “Ali Azhar Khan Baloch and others v. Province of Sindh and others” [2015 SCMR 456]. Keeping in view the facts and circumstances of the case in hand, the judgments referred to by the learned counsel are distinguishable on five counts, i.e. (i) respondent No.4 has not been permanently absorbed, (ii) she is posted in the same pay scale, (iii) she is a civil servant and the post against which she has been posted on deputation is also subject to Civil Servants Act, 1973 and the rules made thereunder, (iv) the committee constituted by the Ministry has concluded that she possess the requisite qualification and experience, (v) she has been posted on

W.P. No.523/2022

deputation against the quota reserved for direct recruitment and has not caused any prejudice to the promotion prospects of other employees.

10.The petitioners have questioned the posting of the petitioners on the basis of wed-lock policy. They have not challenged the wed-lock policy. Even otherwise the question of deputation is a temporary arrangement between the borrowing and lending departments and the petitioners have failed to show that they are vested with any right to insist repatriation of respondent No.4. Furthermore, the petitioners are also not vested with any right to insist that the department should forthwith initiate the process of direct recruitment against the quota reserved for direct recruitment. This Court is not inclined to unnecessarily interfere with the internal administrative matters of the respondent department.

11.For what has been discussed above, the instant petition is without merit and is, therefore, accordingly dismissed.

(ARBAB MUHAMMAD TAHIR)

JUDGE

Announced in the open Court on ____________

JUDGE

Luqman Khan/*