Dr. Hafsa Karam Elahi VS Federation of Pakistan etc

JUDGMENT SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P.No.546/2017 Dr. Hafsa Karam Elahi Versus Federation of Pakistan through Secretary, Ministry of National Health Services, Regulations and Coordination and others Date of Hearing: 20.11.2018 Petitioner by: Mr. G.M. Chaudhary, Advocate.

Respondents by: Mr. Shumayl Aziz, learned Assistant Attorney-General.

Mir Afzal Malik, Advocate for respondent No.4/N.T.S.

MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition, the petitioner, Dr. Hafsa Karam Elahi, has prayed for the grant of several reliefs, including a declaration to the effect that the decision taken by the Policy Board of the Drug Regulatory Authority of Pakistan (“D.R.A.P.”), in its 15th meeting dated 07.03.2016, not to select the petitioner for appointment as Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division, as without lawful authority and of no legal effect. Furthermore, the petitioner seeks a direction to respondent No.2 to appoint the petitioner against the said post.

2.Learned counsel for the petitioner submitted that the petitioner is working as a Deputy Director, Pharmacy Services in D.R.A.P. since 16.05.2005; that on 24.04.2015, an advertisement was published by D.R.A.P. inviting applications for appointment against various posts, including the post of Director, Pharmaceutical Evaluation/Drugs Licensing/ Quality Assurance Division; that the applicants were required to have experience in the field of pharmaceuticals for a period of ten years; that the petitioner was one of the candidates who applied for appointment against the said post; that written tests were to be conducted by the National Testing Service (“N.T.S.”); that those candidates who passed the written tests were to be interviewed by the Departmental Selection Committee (“D.S.C.”) of D.R.A.P.,

which was to send its recommendations to the Policy Board of D.R.A.P.; that the petitioner participated in the written test conducted by the N.T.S.; that out of the five candidates who were called for interview by the D.S.C., only the petitioner had the necessary qualifications and experience so as to make her eligible for appointment against the said post; that the four other candidates who were interviewed by the D.S.C. admittedly did not have the required experience as stipulated in the advertisement dated 24.04.2015; that the minutes of the 15th meeting dated 07.03.2016 of the Policy Board of D.R.A.P. shows that the only reason why the petitioner was not recommended for appointment against the said post was because she was “lowest in the merit”; that the petitioner had obtained 53 marks in the written test conducted by N.T.S., and 57.57 marks in the interview; that since 70% weightage was to be given for the written test and 30% for the interview, the petitioner was stated to have secured 37.10 marks in the written test and 17.27 in the interview; that the aggregate marks obtained by the petitioner was stated to be 54.37; that since the petitioner was the only candidate with the requisite experience, she developed a legitimate expectation for appointment against the said post; that the fact that the other candidates may have secured more marks than the petitioner was totally irrelevant, because they did not have the prescribed length of experience to make them eligible for appointment against the said post; and that the N.T.S. should not have permitted the other candidates to participate in the written test, because they did not have the required length of experience so as to enable them to participate in the competitive process. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.

3.On the other hand, learned Assistant Attorney-General submitted that the Policy Board of D.R.A.P. in its 14th meeting had revised the threshold criteria by reducing it from 50% to 40% marks in each section of the written test; that although the petitioner had not secured 50% or above, letter dated 20.07.2016

from the Ministry of National Health Services, Regulations and Coordination shows that the petitioner had qualified for the interview; that the reason why the petitioner qualified for interview is because the threshold for the written test had been brought down to 40%; that a decision has been taken to re-advertise the post of Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division; that since the Prime Minister was the appointing authority, a summary for the appointment against the advertised posts of Directors was submitted to the Prime Minister; that vide letter dated 28.07.2016, the Prime Minister approved only one appointment against the post of Director (Budget and Accounts); that it was directed that all other posts, including the one for which the petitioner had competed for should be re-advertised; that the petitioner is at liberty to participate in the competitive process in response to the re-advertisement. Learned Assistant Attorney-General prayed for the writ petition to be dismissed.

4.I have heard the contentions of the learned counsel for the petitioner as well as the learned Assistant Attorney-General and have perused the record with their able assistance.

5.The petitioner has been working as a Deputy Director, Pharmacy Services in D.R.A.P. since 16.05.2005. On 24.04.2015, an advertisement was published by D.R.A.P. inviting applications for appointment against various posts, including the post of Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division. For the said post, the applicants with Ph.D. degrees were required to have experience in the field of pharmaceuticals for a period of ten years. The petitioner was one of the candidates who applied for appointment against the said post.

6.Admittedly, the petitioner participated in the written test conducted by the N.T.S. On 22.10.2015, the petitioner was interviewed by the D.S.C. The minutes of the 15th meeting dated 07.03.2016 of the Policy Board of D.R.A.P. shows that out of the five candidates who were interviewed by the D.S.C., only the

petitioner had the required experience of ten years with Ph.D. The other candidates, all of whom had scored better than the petitioner in the written test as well as in the interview did not have the required experience. It would be safe to hold that out of the five candidates who were called for interview by the D.S.C., only the petitioner had the necessary qualifications and experience so as to make her eligible for appointment against the said post. Therefore, the N.T.S. should not have permitted the candidates who did not have the prescribed length of experience to have participated in the written test. Even otherwise, the D.S.C. should not have interviewed such candidates as they did not fulfill the eligibility criteria (i.e., ten years of relevant experience with Ph.D.) prescribed in the advertisement dated 24.04.2015.

7.It is an admitted position that the Policy Board of D.R.A.P., in its 14th meeting, had revised the passing threshold from 50% to 40% in each section of the written test. The above mentioned minutes of D.R.A.P.’s Policy Board’s 15th meeting shows that the petitioner had gained more than 50 marks in each section of the written test. The petitioner had obtained 53 marks in the written test conducted by N.T.S., and 57.57 marks in the interview. Since 70% weightage was required to be given for the written test and 30% for the interview, the petitioner was stated to have secured 37.10 marks in the written test and 17.27 in the interview. The aggregate marks obtained by the petitioner were 54.37. Being the sole candidate with the requisite experience who had satisfied the required threshold in the written test as well as the interview, she developed an expectation to be appointed against the said post.

8.The next question that needs to be determined is whether the petitioner, on account of being the lone eligible candidate, obligated respondents No.1 and 2 to appoint her as Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division. The minutes of the 15th meeting dated 07.03.2016 of the Policy Board of D.R.A.P. shows that the only reason why the

petitioner was not recommended for appointment against the said post was because she was “lowest in the merit”. She may have been the lowest on merit but the other candidates who had scored better than the petitioner did not even have the required length of experience were, therefore, not even eligible to be considered for appointment against the said post.

9.Now a summary had been sent to the Prime Minister to appoint a number of Directors who had qualified the written test as well as the interview. The petitioner’s name was obviously not included in the said summary, because she had not been recommended by the Policy Board to be appointed as a Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division. The Prime Minister, being the appointing authority, had only approved the appointment of Director (Budget and Accounts), D.R.A.P. The rest of the posts, including the one for which the petitioner had applied for, were directed to be re-advertised.

10.Even though the petitioner was the sole qualified and eligible candidate having passed the written test and the interview, this Court, in exercise of jurisdiction under Article 199 of the Constitution, cannot direct respondents No.1 and 2 to appoint the petitioner as Director, Pharmaceutical Evaluation/Drugs Licensing/Quality Assurance Division. This Court cannot ignore the view formed by the Policy Board of D.R.A.P. that the petitioner’s marks were the lowest. Even if the other candidates who had scored better than the petitioner did not have the required length of experience and were, therefore not eligible for appointment against the said post, the fact remains that although the petitioner’s marks were above the passing threshold, they were nonetheless very low. In this scenario, respondents No.1 and 2 cannot be compelled to appoint the petitioner against the said post.

11.This is not a case where an ineligible candidate or a candidate with lesser marks than the petitioner has been appointed against the post that the petitioner had competed for.

The post for which the petitioner had participated in a competitive process has been directed to be re-advertised. There is nothing preventing the petitioner to participate in the competitive process in response to the new advertisement. It is the prerogative of an employer to re-advertise a post in order to foster wider competition.

12.In view of the above, I do not find any merit in this petition which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

ANNOUNCED IN AN OPEN COURT ON ________/2018.

(JUDGE)

Qamar Khan*

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