Writ Petition by Civil Medical Officer

PLJ 2012 AJ&K 1 Present: M. Tabassum Aftab Alvi , J. DOCTOR SYED AQEEL GILLANI, CIVIL MEDICAL OFFICER, SHEIKH ZAID HOSPITAL/C.M.H., MUZAFFARABAD--Petitioner versus SECRETARY HEALTH, AZAD GOVERNMENT OF THE STATE OF JAMMU & KASHMIR, MUZAFFARABAD and 14 others--Respondents W.P. No. 550 of 2011, decided on 2.5.2011. AJ&K Interim Constitution Act, 1974 (VIII of 1974)-- ----S. 44--Constitutional petition--Writ petition was not maintainable due to non- joinder of necessary party--Order passed by D.H.S. (admin) was challenged--Petitioner was appointed as Civil Medical Officer--Applied for deputation for admission in pulmonology --Obtained N.O.C.--Application was rejected--Assailed--Question of vires of order qua rejection of application could not be challenged through writ petition--Validity--No order was challenged in the writ petitions by the petitioners--Doctors mentioned in writ petitions were already qualified FCPs Part I and admitted Part II FCPs before their appointments--Question of jurisdiction was not raised in the writ petitions--Petition was dismissed. [Pp. 4 & 5] A & C Constitutional Petition-- ----Non- joinder of necessary party--Maintainability--It is settled principle of law by now that in absentia of necessary party writ cannot be issued. [P. 4] B M/s. Syed Nazir Hussain Shah Kazmi & Sardar K.D. Khan, Advocates for Petitioner. Mr. Abdullah Shah Masoodi , Advocate for Respondents. Nemo for Proforma -Respondents. Date of hearing: 2.5.2011. Order The supra titled writ petition has been addressed under Section 44 of the Azad Jammu & Kashmir Interim Constitution Act, 1974, through which following relief is claimed:-- "(a) That the order dated 22.03.2011 passed by the authority wherein the respondents have refused to relieve the petitioner from the service for specialization in Ayyub Medical College Abbottabad as well as Minutes dated 08.12.2008 may kindly be declared as illegal, void, without backing of any law, rules, discriminatory, based on mala fide, nepotism, capricious, violative of the fundamental rights of life, equality before law, protection of profession and civil services and the same may kindly be struck down; (b) The respondents may kindly be directed to relieve the petitioner from Sheikh Zaid Hospital/CMH Muzaffarabad in accordance with the Notification dated 12.10.1987 being eligible candidate for post graduation. Moreover the respondents may kindly be restrained to terminate the service of the petitioner in garb of letter dated 22.03.2011; (c) Any other relief which this Hon'ble Court deems proper may also be granted to the petitioner." Precise facts giving rise to the instant writ petition are that petitioner was appointed as Civil Medical Officer on recommendation of Public Service Commission vide notification dated 23.1.2008. The Government of Azad Jammu & Kashmir framed a policy for specialization/training of Doctors vide notification dated 12.10.1987. On the basis of above-mentioned policy a selection committee was constituted under the Chairmanship of Dr. Bashir-ur-Rehman Kanth , Director General Surgery on 08.12.2009. It is stated that some relaxations have been given by the above committee to particular Doctors against which 03 writ petitions are pending before this Court. It is further stated that respondents deputed private respondents for specialization vide order dated 11.03.2011. In the year 2010, inter-alia, 02 Doctors of Chest Department/ Pulmonology were deputed for training. It is also stated that in Pakistan only 5 seats with regard to Pulmonology including T.B. training are available out of which one is in Ayyub Medical College Abbottabad . The petitioner applied for deputation in Ayyub Medical College/Teaching Hospital Abbottabad for admission in Pulmonology /Chest Specialization from where he also obtained no objection certificate on 05.03.2011. However, the respondents vide impugned order dated 22.03.2011 rejected the application of the petitioner against which the instant writ petition has been filed on 04.04.2011. Pre-admission notice was served upon the respondents who filed parawise comments on 16.04.2011. It is stated in the comments that in 11 disciplines applications for specialization were solicited through advertisement, however, the petitioner never applied on the basis of above advertisement. It is also stated that functional unit of Pulmonology has not been established on regular basis in C.M.H. Muzaffarabad . The petitioner without obtaining N.O.C. from the department applied in Ayyub Teaching Hospital, Ayyub Medical Complex Abbottabad , which act of the petitioner is contrary to disciplinary rules. A perusal of minutes of selection committee-respondent appended as Annexure PA/2 with the writ petition also display that on the basis of Govt. notification only 20 posts for specialization have been created, however, 75 Doctors are receiving training. The minutes also show that 55 Doctors are obtaining salaries against different health centers whereas all these centers have been deprived of from the services of the Doctors. The learned counsel for the petitioner reiterated the grounds agitated in the petition and stated that on identical point one writ petition titled Dr. Ishtiaq Ahmed Vrs . Azad Govt. & others has already been admitted for regular hearing by this Court vide order dated 18.01.2010, therefore, instant writ petition may also be admitted. The learned counsel further stated that two other writ petitions titled Dr. Aftab Ahmed Vrs . Health Department & others and Dr. Zahid Hussain Vrs . Secretary Health Department & others have also been admitted, therefore, by admitting the instant writ petition, the respondents be directed to relieve the petitioner to seek admission in Ayub Medical Complex Abbottabad . They further stated that during pendency of instant writ petition, the petitioner has been admitted/allowed by the above College to work as trainee for M.C.P.S. in pulmonology department on 8th April, 2011 . On query of the Court, the learned counsel for the petitioner also submitted/placed written proof that the discipline of Pulmonology is functional in C.M.H. Muzaffarabad . After hearing the learned counsel for the petitioner at length, I have perused the writ petition alongwith appended documents with utmost care. A contemplate perusal of the same reveals that the petitioner has challenged order dated 22.03.2011 passed by Director Health Services (Admin Muzaffarabad ) who has not been impleaded as party in the line of respondents, hence writ petition is not maintainable due to non- joinder of necessary party. It is settled principle of law by now that in absentia of necessary party writ cannot be issued. Even otherwise admittedly, the petitioner is a civil servant, therefore, the viries of order dated 22.03.2011 cannot be challenged through writ petition. The body of impugned order reveals that it has been issued in shape of letter, however the same is affecting the terms and Conditions of the petitioner which could be challenged only before the Service Tribunal. The identical point was arisen before their Lordships of Supreme Court of Pakistan in case titled Muhammad Arshad Saeed Vrs . The Govt. of Pakistan & others 1994 SCMR 1033 and it was observed at page 1038 of the report as under:-- "8 . In the second appeal (Civil Appeal No. 141/1992), the tribunal was in error in holding that the policy letter of 10.2.1980 did not amount to an order or a departmental order or a finals order. An order for the purposes of Service Tribunals Act can have many forms. It may be a general order. It may be a particular order directed against an individual. It may be a policy decision. It may be a decision of a particular grievance or an order refusing to redress a grievance. All such orders, if they affect the terms and conditions of the service of the employee would qualify as departmental orders ex-facie issued by the authority within the department empowered to do so. Hence, such orders would be amenable to appellate jurisdiction of the Service Tribunal." Similarly in case titled Muhammad Arshad Khan Vrs . Azad Govt. & other; (PLJ 2000 SC (AJ&K) 88) at page 102, the honourable Supreme Court declared that letter affecting terms and conditions of a civil servant can be challenged before Service Tribunal. The ratio- decidendi of the above precedent case is reproduced as follow:-- "In the light of what has been stated above, we accept the appeals, set aside the impugned orders in both the appeals and declare that the letter/order dated 8.12.1994 written by the Secretary Board of Revenue and the Government notification dated 25.03.1992 and 16.11.1994, which give retrospective effect to the officiating/acting charge appointments of the respondents, would not adversely affect the seniority of the appellants, herein, in any manner. In the circumstances of the case, we make no order as to the costs." Likewise in case reported as Accountant General & others Vrs . Zaman Hussain Khan (1993 SCR 259) it was held as below:-- "Orders without jurisdiction can be challenged before the Service Tribunal. The High Court had no jurisdiction to entertain writs relating to service matters. Jurisdiction of High Court stands ousted." According to proviso of Section 4(c) of the Azad Jammu and Kashmir Service Tribunals Act, 1975 any order malafide and coram non judice can be challenged before the Tribunal. The relevant provision is also reproduced as under:-- "Provided further that question relating to eligibility, malafide and coram non judice may be decided by the Tribunal." The contention of the learned counsel for the petitioner that on identical point another writ petition titled Dr. Ishtiaq Ahmed Vrs . Azad Govt. & others has been admitted for regular hearing by this Court vide order dated 18.01.2010 and later on two other writ petitions titled Dr. Aftab Ahmed Vrs . Health Department & others and Dr. Zahid Hussain Vrs . Secretary Health Department & others have also been admitted, therefore, the instant writ petition be admitted is not correct. I have examined thrice the above titled writ petitions and found that no order has been challenged in the said writ petitions by the concerned petitioners. Those cases are different from the case in hand. The Doctors in the aforesaid writ petitions were already qualified FCPS part I and also admitted in part II. FCPS before their appointments. Even otherwise the question of jurisdiction has not been raised in the above mentioned writ petitions. In view of above, finding no force in this writ petition, it is hereby dismissed in limine . (R.A.) Petition dismissed