Dr. MIR ALAM JAN vs Dr. MUHAMMAD SHAHZAD and others

ORDER

' FAQIR MUHAMMAD KHOKHAR, J.--- In order to fill the vacant post of Senior Registrar (Urology), Lady Reading Hospital, Peshawar, an advertisement in the press was made on 4-2-2005 and laid down the qualification of M.B.,B.S. Coupled with F.C.P.S. In Urology The preliminary selection was made by a Committee on 1-3-2005 after conducting an interview of the appellant and four other, candidates and the Committee recommended the name of the appellant. Later on the Selection and Recruitment Committee, through its minutes, dated 4-6-2005, also recommended his name for appointment. Consequently, he was appointed as such, by Notification dated 11-6-2005, for a period of three years. His selection was finally approved by the Institutional Management Committee on 18-7-2005.

2. The respondent No,1 being next in merit filed Writ Petition No,1604 of 2005, which was allowed by the Peshawar High Court, Peshawar vide impugned judgment, dated 8-2-2007 thereby setting aside the appointment of the appellant. The respondent No,1 was appointed as Senior Registrar (Urology) in his place vide letter, dated 22-2-2007 issued by the Chief Executive, Lady Reading Hospital, Peshawar. Soon thereafter, respondent No,1 was selected and appointed as Senior Registrar in Urology in the Centre for Kidney diseases of Hayatabad Medical Complex vide Notification, dated 1-6-2007. The respondent No,1 is stated to have left the country and is doing a job in Saudi Arabia.

3. The learned counsel for the appellant argued that the appellant having passed his professional M.B.,B.S. Examination had also acquired the requisite qualification of F.C.P.S. (Urology). In addition, he had also qualified F.C.P.S. (Surgery). He had gained the experience in Urology from 1-1-2000 to 30-6-2003 prior to his post-graduation. He had also the experience of Senior Medical Officer (Urology) from 11-9-2003 to 16-10-2004 after his post-graduate qualification. Therefore, he was duly qualified on merit for appointment as Senior Registrar (Urology). It was further submitted that the High Court fell in error by taking the Service Rules of 1999 into consideration, which were superseded by Notification dated 27-11-2002 laying down altogether a fresh criteria for appointment, which was inconsonance with the Regulations made by the Pakistan Medical and Dental Council under the provisions of the medical and Dental Council Ordinance, 1962. The Selection Committee had justifiably determined the comparative merit of all the candidates.

4. On the other hand, learned counsel for the respondent No,1 frankly conceded that the respondent No,1 was no longer interested in the matter, as he had already left the post of Senior Registrar (Urology) in the Lady Reading Hospital, Peshawar after his appointment in the Hayatabad Medical Complex. The learned counsel for the respondents Nos.2 to 5 vehemently contended that the appellant in his written statement before the High Court had taken an evasive position, which was not in conformity with the provisions of Order VIII, C.P.C.

5. We have heard the learned counsel for the parties at length and have also perused the available record.

6. Admittedly, the Notification, dated 13-4-1999 was no longer holding the field, as the same was superseded by Notification, dated 27-11-2002, which laid down the qualification of M.B.,B.S. And F.C.P.S. In the relevant specialty for the post of Senior Registrar. Not only that the appellant fulfilled the minimum threshold of the criteria for the post, he had also to his credit pre/post-graduation practical experience of more than four years. Therefore, no exception could be taken to his appointment of Senior Registrar (Urology). All the Selection Committees had correctly determined the merit of the candidates for the said post. In our view, the impugned judgment of the High Court is not sustainable. Needless to observe that in exercise of constitutional jurisdiction, the High Court was not expected to perform the functions of A a Selection Authority in service matters so as to substitute its opinion for that of a competent authority.

7. For the foregoing reasons, this appeal is allowed. The impugned judgment, dated 8-2-2007 passed by the Peshawar High Court, is set aside. Resultantly, the Writ Petition No,1604 of 2005 of respondent No,1 shall stand dismissed. However, the parties are left to bear their own costs.