Law:

Section:

Sindh Institute of Ophthalmology and Visual Sciences Administrative Structure, Powers and Duties of Institute Officers Rules, 2021---

----Rr. 4(7)(i) & 4(7)(iv)---Sindh Institute of Ophthalmology and Visual Sciences Employees (Terms and Conditions of Service) Rules, 2021, R. 6---Sindh Institute of Ophthalmology and Visual Sciences Act (XXVI of 2013), S. 11---Executive Director ("ED") of the Sindh Institute of Ophthalmology and Visual Sciences

("Institute")---Appointment and re-appointment---Process and eligibility--Maximum age of candidate, dispute over---Whether an applicant for the post of ED can be up to 65 years of age, or cannot be older than 60 years?---Held, that proper resort to clause (iv) of sub-rule (7) of rule 4 of the Sindh Institute of Ophthalmology and Visual Sciences Administrative Structure, Powers and Duties of Institute Officers Rules, 2021 (herein after "clause (iv)") must be regarded as a two-stage process---In the first stage, the Board must, if it is so minded, consider whether the outgoing ED is at all suitable for reappointment under clause (iv)---If it concludes that reappointment is not warranted or legally permissible the matter ends, and the Board must then move to appointing a new ED in terms of clause (i) of sub-rule (7) of rule 4 of the Sindh Institute of Ophthalmology and Visual Sciences Administrative Structure, Powers and Duties of Institute Officers Rules, 2021 (herein after "clause (i)") and other applicable provisions---If however, the Board is of the view that a reappointment is both legally permissible and desirable for the purposes, and in the best interests of the Institute the matter would move to the second stage---Board must then move to seeking applications for appointment of other persons as ED under clause (i) and other applicable provisions---Any advertisement or other circular etc issued in this regard must clearly state that the outgoing ED is also under consideration for reappointment under clause (iv)---Once the fresh applications have been received and shortlisted and interviews held etc (which must be done independently of, and separately from, any consideration of the outgoing ED) the Board must then consider why the (best of the) applicants under clause (i) should not be appointed as the new ED and the outgoing ED be reappointed under clause (iv)---Here, the Board must also keep in mind the possibility of a "chilling effect" on actual or potential applicants of the fact that the outgoing ED is also under consideration for reappointment---If a decision is reached in favor of reappointment, then detailed reasons for the same must be given in writing by the Board and made public (by, inter alia, posting the same on the website of the Institute)---It is only by applying this two-stage process that there will be a proper, legally valid and harmonized application of clause (iv), as would allow for a reappointment of the outgoing ED that is sustainable in law---In the present case the retirement age was set by the Board itself, in exercise of section 24 of the Sindh Institute of Ophthalmology and Visual Sciences Act, 2013 whereby the power of reappointment was reserved---In the impugned judgment the High Court failed to keep in mind that the only manner in which clause (iv) could be actuated, for purposes of reappointment, was by recognizing that the age limit would get enhanced beyond the sixty years set by the Sindh Institute of Ophthalmology and Visual Sciences Employees (Terms and Conditions of Service) Rules, 2021 ("TCS Rules"), which was for appointment---At the same time, one cannot lose sight of the fact that the procedure actually adopted by the Board was also legally defective--There was no application at all of the two-stage process by which alone a lawful resort could be had to clause (iv)---In setting a uniform age of 65 years in its decision and the consequent advertisement, the Board failed to keep in mind that it was dealing with two distinct exercises, one of appointment and the other of reappointment---Leave petition was converted into an appeal and was disposed of with the directions that the Board shall, if it is so minded, consider the case of petitioner for reappointment in terms of clause (iv); that if it is of the view that petitioner cannot or ought not to be considered for reappointment his case will come to an end, and the Board shall then proceed to consider the shortlisted candidates for appointment in terms of clause (i); that if however the Board is of the view that petitioner can be considered for reappointment, it shall then proceed to consider the shortlisted candidates for appointment in terms of clause (i) and thereafter and thereupon make a decision for appointment or reappointment, as the case may be; that the detailed reasons in writing required (twice) from the Board must be made public by inter alia posting the same on the website of the Institute and, in particular, provided to the respondent-candidate.