Dr. Mirza Faisal Ahmed Rafiq Vs Govt of KPK

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

WP No. 273-A/2016

JUDGMENT

Date of hearing 27.06.2018.

Petitioner (Dr. Mirza Faisal Ahmed Rafiq) by M/S Shad Muhammad Khan and Malik Shujaat Ali, Advocates.

Respondent(s) (Govt. of KPK and others) (Respondents No.1 7 2)byMr. YasirZahoorAbbasi, Assistant Advocate General.

(Respondents No.3to 5, 7 & 8) by Mr. Faheem Khan, Advocate.

(Respondent No.9) by Fawad Saleh, Advocate.

(Respondent No.10) by Muhammad Asif Qazi, Advocate.

SYED ARSHAD ALI, J:-Dr. Mirza Faisal Ahmed Rafiq, through the present constitutional petition has challenged the appointment orders of respondents No.9 and 10 as Assistant Professor Neurosurgery in Ayub Medical Institution, Abbottabad and also seeks writ of mandamus to respondents to appoint the petitioner against the post of Assistant Professor Neurosurgery.

2.The respondents were put to notice, who file their para-wise comments.

3.Learned counsel appearing on behalf of the petitioner while reiterating the contents/grounds as narrated in the petition has attacked on the appointment of respondents No.9 and 10 on the following grounds:-

(i)That according to merit list, which was initially displayed before interview, the petitioner was high on merit as compared to respondents No.9 and 10.

(ii)That respondent No.9 was simultaneously erving as Lecturer in Pathology Department of Ayub Medical College and was getting salary and at the same time he was undergoing his postgraduate neurosurgical training in the department of Neurosurgery of Ayub Teaching Hospital, Abbottabad, therefore, under the guidelines issued by the PM&DC, trainees, who were undergoing FCPS are not allowed to work in other department for financial benefits.

(iii)That the selection committee was illegally constituted as respondent No.8 was holding the post of Director Administration as additional charge and in fact he was Deputy Director Administration, therefore, his inclusion in the selection committee was not in accordance with rules.

(iv)That in the advertisement one post of Assistant Professor Neurosurgery department was published against which two incumbent i.e.

respondents No.9 and 10 were appointed.

4.Learned counsel appearing behalf of respondents have reiterated their stance as narrated in their comments.

5.Arguments heard and record perused.

6.The close perusal of the record would unfold that respondents’ institution through an advertisement sought applications against the vacancies which include one post of BPS-18 Assistant Professor Neurosurgery. According to the advertisement the qualification for the post was:-

(i)MBBS or equivalent medical qualification recognized/ registered by PM&DC.

(ii)PM&DC recognized Level- III qualification in respective subject like FCPS/MS/MD or other experience of Level-III qualification in the specialty approved and registered by

PM&DC.

(iii)No Level-II diploma holder be eligible for appointment/ promotion.

(iv)Required experience. Three years teaching experience in the respective subject as a Senior Registrar in a registered institute if qualification is general. No

experience is required in case of sub-specialty qualifications.

7.Petitioner alongwith respondents No.9 and 10 and another were imprint for the said position. All the applicants were interviewed and the merit position, which was placed before Board of Governor of Ayub Medical College, Abbottabad was as following:-

S.No. Name Pre Interview Interview Total Remarks Marks Marks.

1.Dr. Shahbaz Ali Khan 32 15 47 Selected

2.Dr. Baynazir Khan 30 17 47 Selected

3.Dr. Mirza Faisal A Rafique 33 12.80 45.80

4.Dr. NaeemulHaq 27 11.20 38.20

It was also recommended before Board of

Governors in the aforesaid minutes of the meeting that candidates recommended to the post of Assistant Professor Neurosurgery due to equal marks Dr. Shahbaz Ali Khan was recommended on the available vacancy of Assistant Professor Neurosurgery whereas Dr. Baynazir Khan was recommended against the vacant post of Assistant Professor Endocrinology, which post was transferred to Neurosurgery department.

However, one member of selection committee Professor Dr.

Aftab Rabbani did not sign the minutes of meeting. The Board

approved the said minutes of meeting, wherein non-signing the recommendation of Professor Dr. Aftab Rabbani was held as his dissent.

8.Regarding his first objection that the petitioner was higher on merit, the perusal of recommendation of selection committee shows that the petitioner had obtained higher marks at pre interview marks stage, however, in total calculation when the his interview marks were added his merit position was lower than the respondents No.9 and 10. The assertions that selection committee had awarded more marks to respondents No.9 and 10 as members of the selection committee were the immediate office of respondents No.9 and 10 have no force. Indeed, the constitutional court has no jurisdiction to interfere in discretion of a selection committee on bald allegation of unsuccessful candidate.

9.Moving on the objection that one of the respondents wassimultaneously working in Ayub Medical College in department of Pathology and was also undergoing postgraduate studies, which is contrary to the PM&DC regulations. In comments respondents have stated that said regulation is not binding upon the respondents’ institution. We do not agree with the submission of the official respondents

that the guidelines issued by the PM&DC are not binding upon them for two reasons that PM&DC regulation being issued under the Federal Statute has binding effect and secondly even under section 7 of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors and Doctors) Regulatory Act, 2011 any doctor selected or promoted for postgraduate medical training shall be treated on leave without pay and may be entitled only for stipend fixed by the Government from time to time for such training. However, violation of the said guidelines will not render a degree of FCPS/MCPS obtained by the said respondents as the same has not been provided in clear terms by Act and Regulations mentioned above. Therefore, respondent No.9 had simultaneously undergone the postgraduate program and had also worked for gaining in the sister institution high degree obtained by him will not be nullified.

10.Regarding constitution of selection committee that the petitioner could not cite any Rules, wherein it bars the inclusion of Deputy Director Administration in the said committee. More particularly at the time when post of Director Administration was vacant due to his retirement.

11.Moving to the final objection of the petitioner that in the advertisement only one post of Assistant Professor Neurosurgery was advertised against which two persons have been appointed. In this regard, the minutes of meeting of the selection committee, which was duly approved by the Board of Governors can be referred, wherein it has been recommended that Dr. Baynazir Khan respondent No.10 was recommended against the vacant post of Assistant Professor Endocrinology and the Board of Governor had approved the transfer of one post of Assistant Professor Endocrinology to the department of Neurosurgery, which appears to be against the law as it is prerogative of the respondents to transfer any post from one department to another department keeping in view requirement of the department.

12.In view of the above, we do not find ourselves inclined to interfere in the impugned appointments, therefore, this petition being devoid of any merit, is hereby dismissed.

Announced.

27.06.2018. JUDGE

JUDGE

Aftab P.S/* Hon’ble Justices Syed Muhammad Attique Shahand Syed Arshad Ali.