Discriminatory Treatment in appointment as Professor

PLJ 2013 Lahore 127
[Rawalpindi Bench Rawalpindi]

Present: Ali Baqar Najafi, J.

DR. MOBINA EHSAN--Petitioner

versus

CHAIRMAN, PPSC and 4 others--Respondents

W.P. No. 3195 of 2012, decided on 13.12.2012.

Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974--

----Rr. 3(1), 3(3), 19(1), 20 & 22--Constitution of Pakistan, 1973--Art. 199--Constitutional petition--Application for recruitment to post of professor of pathology--Employee on basis of domicile of Islamabad, refusal to entertain application--Principle of estoppel--Discriminatory treatment--Policy was not applicable to employees already in service prior to year 2000--Condition of domicile--Question of--Whether a person possessing a domicile of place than Punjab may apply to prescribed lost--Validity--An appointment to post was made either by promotion, transfer or initial recruitment as may be prescribed, among such persons possessing required qualification and fulfilling conditions prescribed by Govt. from time to time--Candidate must possess prescribed educational qualification and experience for initial appointment--Only disqualification for appointment is that a person must be a citizen of Pakistan--To retain a domicile is right of individual and so is its change depending on priorities--Although, only a person not having citizenship is disqualified to apply for an appointment on regular basis but it is mandatory for him to prescribe any criteria permissible under law--If Govt. wants to consider its domicile holders for regular vacancies, no constitutional right of inhabitants of Federal Territory is infringed.   [P. 131] A, B & C

Mr. Arif Karim, Advocate for Petitioner.

Mr. Saif-ur-Rehman, AAG for Respondents.

Date of hearing: 13.12.2012.

Order

Through this single order I intend to dispose of the instant petition (Writ Petition No. 3195 of 2012) and Writ Petition No. 3109 of 2012, as both involve common question of law and facts.

2.  The brief facts giving rise to filing of this writ petition are that the petitioner has challenged order dated 20.11.2012 rejecting her application for recruitment to the post of Professor of Pathology in the Punjab Health Department and order dated 01.12.2012 on the ground that on her representation regretting to accede her request in the light of the relevant regulation/policy decision as the Punjab Public Service Commission has not considered the domicile of District Islamabad being Federal Territory after 2000. She prays direction to Punjab Public Service Commission to allow her to appear in forthcoming examination for the post stated above.

3.  In Writ Petition No. 3109 of 2012, the petitioner prays to declare the policy of the respondents to fill the post of Professor of Pathologist on adhoc basis as illegal and fill the same on regular basis through Punjab Public Service Commission by promotion amongst the regular employees besides prayer that she be promoted for the post being eligible.

4.  Learned counsel for the petitioner submits that the petitioner served the health department of Government of Punjab for more than 21 years as regular employee on the basis of domicile of Islamabad without any objection; even after 2000 she was not asked either to retain or change it for her future prospects and their refusal to entertain the application for the post of Professor of Pathology now is hit by principle of estoppel and as such the order has been passed without lawful authority; that the candidate of other Provinces are working in Islamabad and to restrict the candidates having Islamabad domicile for employment in the other Provinces the Punjab) is discriminatory treatment which is not warranted under Article 25 of the Constitution of Islamic Republic of Pakistan; that the condition of "District Islamabad as Federal Territory in 2000" may be applied to those residents of Islamabad who got the domicile after the promulgation of above condition; that the said policy is not applicable to the employees already in service prior to the year of 2000 rather it may be enforced for the new candidates applying for the post; that after granting permission to the petitioner to appear in the examination of the Punjab Public Service Commission earlier, the Chairman of the Punjab Public Service Commission has no authority to reject the candidature of the petitioner; that prior to the commencement of dissolution of West Pakistan Order, 1970, the Islamabad was part of the Province of Punjab and its residents were eligible to apply for Federal Services as well as services in the Province of Punjab, therefore, the impugned orders are not sustainable in the eyes of law; that the policy of the respondents to fill the post on adhoc basis is illegal. Lastly, he prays for acceptance of the writ petition.

5.  Learned Assistant Advocate General has opposed the grant of petition on the ground that the petitioner is not eligible to apply for the post of Professor of Pathology having domicile of Islamabad as it was specifically debarred. He further, by relying on Rule 20 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974, submits that vacancies in various posts shall be filled from the persons domiciled in the Province of Punjab in accordance with merit as these are reserved for persons domiciled in such area; that under Rule 22 of the Rules ibid the respondents are within its competence to make appointment on adhoc basis and that the petitioner being domiciled of Islamabad and is ineligible to apply for the said post; that the petitioner is not entitled to object the policy meant for candidates of Punjab Domiciled especially in the writ jurisdiction. He prays for dismissal of the writ petition.

6.  I have heard the learned counsel for the parties and perused the record minutely.

7.  Admittedly, the petitioner is a regular employee and already appointed as Woman Medical Officer in 1991 and then regular Assistant Professor in 1999, then promoted as Associate Professor in 2006 and is working in Rawalpindi Medical College as reflected in the Experience Certificate dated 04.10.2012 (No.PF/6803/RMC). Respondent No. 3 has also been sent a "No Objection Certificate" dated 04.10.2012 (No. PF/6802/RMC) by the Principal of the said college, where-after no specific order was passed by him. The advertisement dated 23.09.2012 prescribes the condition of domicile of Punjab under the head of Qualification for recruitment against three regular posts and admittedly the petitioner has a domicile of Islamabad. The Government servants are neither included nor excluded in the said advertisement, meaning thereby that they can apply. The sole question before this Court is as to whether a person possessing a domicile of a place other thanPunjab may apply to the prescribed post notwithstanding fulfilling other qualifications.

8.  To answer this it is important to peruse Rules 19, 20 and 22 of the Punjab Civil Servants (Appointment & Conditions of Service) Rules, 1974. Rules 3(1) and 3(3), Rule 19(1), Rule 20 and Rule 22 read as under:--

"3. (1) Appointment to posts shall be made by promotion, transfer or initial recruitment, as may be prescribed by the Government in relation to the posts in a grade from time to time:

(Provided that where as a result of retrenchment in, or reorganization of a Government Department/office or an Autonomous or Semi-Autonomous Organization set up by the Government, certain posts or cadres are abolished and Government decides, by a special order, to absorb persons rendered surplus in consequence thereof, such person may be absorbed against such posts in such manner and on such terms and conditions as may be determined by the Government:

            Provided that absorption of such persons shall be made on recommendations of the Punjab Public Service Commission in case of posts carrying BS-16 and above and in case of other posts on the recommendation of the Committee constituted by the Chief Minister or any officer authorized by him in that behalf:

            Provided further that for purposes of seniority, persons absorbed as above shall be treated as having been appointed by initial recruitment with effect from the date they take over charge in the absorbing functional unit/cadre)

(2)  -----------------------------------

(3) The appointment shall be made from among such persons possessing such qualifications and fulfilling such other conditions as may be prescribed by the Government from time to time.

19.  (1) No person shall be appointed to a post unless he is a citizen of Pakistan, provided that this restriction may be relaxed by the Government in suitable cases.

(2)  -----------------------------------

20.  Vacancies in various posts shall be filled from persons domiciled in the Province of the Punjab in accordance with merit; provided that for a period not exceeding (20 years) from the commencing day of Constitution of the Islamic Republic of Pakistan, such posts may be reserved for persons domiciled in such areas as may be specified.

22. (1) When a post is required to be filled, the appointing authority shall forward a requisition to the selection authority immediately after decision is taken to fill the post.

(2) After forwarding a requisition to the Selection Authority, the appointing authority may, if it considers necessary in the public interest, fill the post on ad hoc basis for a period not exceeding (one year) pending nomination of a candidate by the selection authority:

            Provided: (1) The vacancy is advertised properly in the newspapers;

(2)  the appointment is made of a person duly qualified in accordance with the provisions of the rules and orders applicable to the post;

(3)  the selection is made on the basis of merit determined by objective criteria;

(4)  the appointment order certifies that a requisition has been sent to the selection authority; and

(5)  the appointment is made subject to revocation at any time by the competent authority:

            Provided further that ad hoc appointment shall not confer any right on the persons so appointed in the matter of regular appointment to the same post nor the service will count towards seniority in the grade."

A perusal of the above provisions reveals that an appointment to the post is made either by promotion, transfer or initial recruitment as may be prescribed, among such persons possessing required qualification and fulfilling conditions prescribed by the Government from time to time. But the candidate must possess the prescribed educational qualification and experience for initial appointment. However, the vacancies in various posts are filled from persons domiciled in the Province of Punjab in accordance with merit. The only disqualification for appointment is that a person must be a citizen of Pakistan. However, ad hoc appointments may be made under strict compulsions.

9.  The argument of the learned counsel for the petitioner that by virtue of being in service of Government in Punjab, the condition of domicile of Punjab is required to be dispensed with, is to be first answered by the Government/Respondent No. 5 as the advertisement dated 23.9.2012 does not prescribe any such concession or embargo to the Government servant such as the petitioner. To retain a domicile is the right of the individual and so is its change depending on the priorities. Although, only a person not having citizenship of Pakistan is disqualified to apply for an appointment on regular basis but it is mandatory for him to have a domicile of Punjab. The Government is within its right to prescribe any criteria permissible under the law. If the Government wants to consider its domicile holders (inhabitants) for regular vacancies, no constitutional right of the inhabitants of Federal territory is infringed. Since the Letter No. PF/6802/RMC dated 04.10.2012 addressed by Respondent No. 5 to Respondent No. 3 has not been considered/decided determining the eligibility of the petitioner, therefore, it is observed that he may decide this letter strictly in accordance with law and the policy. It is further observed that all the requirements of Ad hoc Appointment as per rules must be strictly complied with.

In this view of the matter, these writ petitions are disposed of.

(R.A.)  Petitions disposed of