LAHORE:The Lahore High Court has ruled that the government or chief minister does not enjoy absolute power under the law to appoint a person of their choice as administrator of Punjab Human Organs Transplant Authority (PHOTA) by ignoring the candidates on the top of the merit list prepared by relevant authorities after a detailed selection process, without giving cogent reasons which would be subject to judicial review.
This ruling was given by Mr Justice Sajid Mehmood Sethi of Lahore High Court while allowing a petition by Prof Dr Mehmood Ayaz challenging the appointment of Dr Asad Aslam as administrator of PHOTA by the former chief minister Punjab Sardar Usman Buzdar, and declaring the Punjab government notification in this regard null and void. Justice Sajid Mehmood Sethi, in his detailed judgement on the petition by the petitioner Dr Mehmood Ayaz through his counsel Ahsan Bhoon Advocate, set aside the notification of the appointment of Dr Asad Aslam for being illegal, unlawful and without lawful authority. The judge referred the matter to the chief minister with the direction to appoint the candidate highest on merit and in case, there are justifiable reasons for not appointing the candidate, proceed to appoint any other candidate in the order of priority as per the recommendations already made by the Monitoring Authority/Committee, preferably within a period of 15 days from the receipt of certified copy of this order.
Petitioner’s counsel told the court that a monitoring authority, headed by the health minister, interviewed the candidates and consequently, placed the petitioner at the top of the merit list while the respondents Prof Dr Asad Aslam and Prof Dr Farid Ahmad Khan at Serial No 2 & 3 respectively. But the chief minister approved the name of Dr Asad Aslam and a notification of his appointment was issued on December 20, 2021.
The petitioner’s counsel pleaded that the notification of this appointment was illegal, void ab initio and in violation of law laid down by the superior courts. He contended that chief minister’s discretion had been exercised in an arbitrary manner, against the norms of justice as the petitioner being at top of the merit list was required to be treated in accordance with law in view of Article 4 of the Constitution.
Opposing the petition, an additional advocate general, submitted that the petitioner was not eligible to be considered for appointment against the post in question since he lacked requisite 10-year management experience as he had only three years’ experience as Principal of SIMS and only teaching experience. He said the respondent (Dr Asad Aslam) had been appointed as being eligible and better qualified since he had management/administrative experience of 21-year, project handling experience of 17-year, financial handling experience of 18-year and teaching experience of 36 years.
He submitted that even otherwise, the court had no jurisdiction to intervene in the domain of the executive and matter in hand was a technical and policy matter. He argued that this court was not expected to perform functions of a selection authority in service matters so as to substitute its opinion for that of competent authority.
Justice Sethi in his judgement observed that the Monitoring Committee interviewed 13 candidates and placed petitioner at Sr No 1 in the merit list and the respondents were at 2 & 3 respectively. The judge cited Section 8(3) of the Transplantation of Human Organs and Tissues Act, 2010, and held that the Monitoring Authority is bestowed with the function to appoint an Administrator with consultation with the Government (who is Chief Minister as per the Punjab Government Rules of Business, 2011); therefore, the recommendations of the Monitoring Authority are to be given due weight and the Government/Chief Minister, if differs with the same, has to provide cogent reasons. The judge said the only reason that respondent Dr Asad Aslam had better management experience than the petitioner cannot be made basis to supersede a candidate securing top position after going through a detailed process of interview conducted by the Monitoring Authority. The judge ruled that under the provisions of the Act of 2010, absolute power of appointment of Administrator PHOTA has not been given to the Government i.e. Chief Minister to appoint any person of his choice but the Monitoring Authority consisting of eminent professionals was constituted for recommending three names as per order of merit after detailed scrutiny of the credentials and lengthy interview process. The judgment said the appointment of Administrator PHOTA has been structured to preclude the arbitrary and capricious exercise of discretion at the cost of appointments on merit.
The judge remarked that superior courts have time and again held that the appointments have to be made on the principle of merit unless cogent reasons for not appointing the person at the highest in merit are given, which would be subject to judicial review. Justice Sethi said the chief minister should have given cogent reasons if he was persuaded to make a different opinion than that of Monitoring Authority.
The judge set aside the appointment notification for being illegal, unlawful and without lawful authority, and referred the matter to the chief minister, Punjab, with the direction to appoint the candidate highest on merit and in case, there are justifiable reasons for not appointing the candidate, proceed to appoint any other candidate in the order of priority as per the recommendations already made, preferably within a period of 15 days from the date of receipt of certified copy of this order.
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