No Reappointment

SHC rules that the procedure used to reappoint a professor as Executive Director of SIOVS Hyderabad after his retirement was illegal

Karachi: The Sindh High Court (SHC) ruled that the procedure adopted for the reappointment of a professor at the Sindh Institute of Ophthalmology and Visual Sciences (SIOVS) in Hyderabad as its Executive Director following his retirement was illegal. The efforts for reappointment came after the same court ruled that Dr. Khalid Talpur’s reappointment as Executive Director in 2021 was illegal and ordered the authorities to de-notify him.

Dr. Arshad Lodhi of Liquat University of Medical and Health Science (LUMHS), who brought the first challenge to Dr. Khalid’s reappointment after his retirement on November 3, 2020, also challenged the second attempt for his reappointment in the petition by issuing a person-specific advertisement for the position of Executive Director of SIOVS on May 10, 2022.

Sarmad Hani Muslim, the petitioner’s counsel, contended that the May 10 advertisement was person-specific and issued in violation of the Sindh Institute of Ophthalmology and Visual Science Act, 2013, and the Rules enacted thereunder, solely to accommodate Dr. Khalid. The Act of 2013 and the Rules promulgated thereunder required the Executive Director to be a full-time serving professor and not a retired professor of the Ophthalmology Institute, whereas Dr. Khalid had reached the age of superannuation and stood retired from the said post, allowing him to participate in the recruitment process after retirement, and any subsequent indirect, unilateral, and arbitrary recommendation by the competent authority is illegal and unconstitutional.

He asserted that the re-appointment of Dr. Khalid, through a notification dated November 26, 2020, after his superannuation, was assailed by the petitioner through a constitutional petition, which was allowed via judgement of December 24, 2021, and his reappointment was declared nullity in the eyes of law, with direction to the competent authority to de-notify his reappointment as Executive Director of SIOVS, with further direction to make an appointment against the said post after advertising and observing all the codal formalities as provided under the law. Dr. Khalid, on the other hand, was set free to compete in the new process at his own risk and expense, subject to the law.

During the second petition’s hearing, a provincial government law officer stated, citing a statement from the provincial health department, that the recommendation had been finalised and Dr Khalid had been shortlisted for the position of Executive Director of SIOVS Hyderabad in accordance with the court’s December 24, 2021 order.

The SHC bench, after hearing the counsel for the petitioner and the respondents, held the post of executive director, who is the head of the Institute of SIOVS. In accordance with Section 11 of the Act 2013, the person holding the office of Professor of Ophthalmology at Liaquat University of Medical and Health Sciences Jamshoro prior to the commencement of the Act shall be the first Director of the Institute, and he shall be appointed by the Board subject to his qualifications and experience in the field of Ophthalmology and Visual Sciences for at least 10 years.

The bench noted that, while Rule 7(4) provided for reappointment, the rules were drafted after Dr. Khalid’s retirement. The court also stated that the advertisement was person-specific, as evidenced by his selection by the health department on the recommendation of the SIOVS board.

The bench pointed out that the criteria outlined in the advertisement for the appointment of the Executive Director of SIOVS is that the candidate must be a Professor in Ophthalmology with experience; however, another rider is made that the candidate shall be up to 65 years of age on the last date for application submission.

The bench further held, “Both of these conditions are contradictory to each other because the Executive Director is required to be appointed amongst serving professors in terms of Section 11 of the Act, 2013, and Rule 7(1) of the SIOVS Officers Rules 2021, which means he must be 60 or less than 60 years old; as such, raising the age limit from 60 to 65 years in the advertisement was unwarranted and appears to be person specific, contradictory, and ultra vires Rule 7(1).”

In principle, the bench held that a retired civil or public servant shall not ordinarily be reemployed under the provincial or federal government unless such reemployment is necessary and in the public interest and is required to be made solely through the exercise of discretionary powers. Such discretion, however, must be exercised in a structured, reasonable, and public-interest manner.

In the present case, the bench determined that there is no public interest, as portrayed by the respondents.

“It is well settled that simply granting a candidate the liberty to participate in any process of recruitment for appointment on a substantive basis pursuant to any advertisement does not mean automatic appointment,” the bench posited, holding that the official respondents had lost sight of this fact and misconstrued the judgement passed in the earlier round of litigation.

The court ruled that the upper age limit of 65 years set in the advertisement for the position of Executive Director was illegal and that the advertisement should be read to the extent that the candidate must be within the age limit of 60 years and not beyond that.

This petition was dismissed with a directive to the competent authority to announce the results of the shortlisted candidates for the position of Executive Director of SIOVS as soon as possible, in accordance with Section 11 of the Act of 2013, read with Rule 7(1) of the SIOVS Officers Rules for 2021.