Law: Civil Servants Act, 1973

Section: 3,9

Law: Rules of Business, 1973

Section: 11

Law: Constitution of Pakistan, 1973

Section: 199

Law: Civil Servants (Appointment, Promotion and Transfer) Rules, 1973

Section: 6

JUDGMENT SYED MANSOOR ALI SHAH, J.---In the writ petition, respondent No.1 challenged the appointment of appellant No.2 as Chairman and Dean of Sheikh Zayed Postgraduate Medical Institute (Institute) on the ground that it was against the policy and law. It was further prayed by respondent No.1 that senior most person should be appointed as Chairman and Dean of the Institute. The said writ petition was allowed vide order dated 26-1-2010 passed by the learned Single Judge in Chambers, declaring the appointment of appellant No.2 to be illegal and directed that proper procedure be adopted in appointing the Chairman and respondent No.1 be considered while doing so. Appellants through this Intra-court appeal have challenged the order passed by the learned Single Judge in Chambers. 2. At the outset, Imran Aziz, Advocate, counsel for the appellants argued that the writ petition was not maintainable as it was hit by the bar contained Article 212 of the Constitution of the Islamic Republic of Pakistan, 1973. It was argued that respondent No.1 was aggrieved of the appointment of appellant No.2 which fell within the terms and conditions of service and was covered under section 4 of the Service Tribunal Act, 1973. Counsel relied on Province of the Punjab through Secretary, Health Department v. Dr. S. Muhammad Zafar Bukhari PLD 1997 SC 351, Imam Baldish and 4 others v. Deputy Commissioner, Layyah and 16 others 1992 SCMR 365 and Khalid Mahmood Wattoo v. Government of Punjab and others 1998 SCMR 2280 in support of his contention. Perusal of section 4(b) of the Service Tribunal Act, 1973 reveals that in matters of fitness no appeal lies. The present post admittedly is a selection post to be filled on the basis of merit criteria provided in para 8 of the Resolution dated 29-5-1986. The impugned order dated 20-7-2009 of the Competent Authority followed by impugned notification dated 21-7-2009 issued by the Cabinet Division appointing appellant No.2 to the post of Chairman and Dean of the Institute determines fitness of appellant No.2 to the post and is, therefore, a subjective assessment. As there are no Rules or Regulations under the Resolution or Civil Servants Act, 1973 for…

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