2003 PLP (C (PLC(CS))

Qazi Atiqur Rehman, Advocate Supreme Court for Petitioner (in both Cases). Hafiz S.A. Rehmaan, Senior Advocate Supreme Court and M.S. Khattak, Advocate‑on‑Record for Respondent No. 1 (in both Cases). Mussarat Bilali, Addl. A.‑G., N.‑W.F.P. for Respondents Nos.2 to (in both Cases). Date of hearing: 12th June, 2002. MUHAMMAD NAWAZ ABBASI, J.‑‑‑The Secretary Health, Government of N.‑W.F.P. invited applications for appointment of Professors, Associate Professors and Assistant Professors in Saidu Medical College, Swat and Gomal Medical College, D.I. Khan, an contract basis and the candidates fulfilling the qualifications prescribed in the Health Division's Notification dated 7‑10‑1984, as amended, were eligible for appointment. The petitioners applied for the post of Assistant Professor of Pathology and Orthopaedics and were selected by the Departmental Selection Committee and posted in Saidu Medical College, Swat, vide notification dated 24‑5‑2001. Dr. Muhammad Iqbal and Dr. Anwar Ali respondents in C.P. 184‑P/02 and C.P. 185‑P/02 respectively, challenged the appointments of the petitioners by way of filing appeals before the N.‑W.F.P. Service Tribunal mainly on the ground that their selection was in violation of the rules governing the such appointments. The maintainability of the appeals was questioned on the ground that the same were preferred without exhausting the remedy of departmental appeal. The. Tribunal having turned down the objection, decided the appeals on merits and allowed the same with the following observations:‑‑ "The upshot of the above discussion is that as per Rules, the Teaching Experience was the mandatory condition for appointment against the posts, both the respondents are not possessing such experience and they were selected on the basis of pick and choose in clear violation of the Rules, on the contrary the appellants were qualified and fulfilled the requisite requirements of PM&DC Rules, therefore, the Tribunal is left with no other alternative, but to accept the instant appeal as well as connected Appeal No.641 of 2001, Dr. Muhammad Iqbal v. Chief Secretary; N.‑W.F.P. etc. and direct the respondent department to consider the appellants immediately for the grant of relief sought for in the appeal. No order as to costs. File be consigned to the record." The present petitioners challenged the judgment of Tribunal before this Court through Civil Petitions Nos.430‑P of 2001 and 431‑P of 2001 and this Court while converting the same into appeal set aside the judgment of the Tribunal and remanded the cases back to the Tribunal for decision afresh in accordance with law. The relevant para. containing the parameters for the remand is read as under:‑‑ "

4. The learned counsel for the parties were heard at some length. During the course of arguments we drew the attention of the learned counsel for the parties towards two facts of the causes. First, that the Tribunal had not appropriately resolved the controversy between the parties in relation to the import of the PMDC Rules concealing qualifications, service PGMI, Teaching experience and publication of original article in International Journal. Secondly, the Tribunal had granted relief beyond the confines of its jurisdiction." The Tribunal in the, post term and proceedings having considered the matter in detail, allowed the appeals of the respondents for the second time vide judgment dated 1‑4‑2002. The petitioners, through these petitions, under Article 212 (3) of the Constitution of Islamic Republic of Pakistan, 1973, have sought leave to appeal against the judgment of Service Tribunal inter alia on the ground that the Tribunal while travelling beyond the scope ref PMDC Rules, evaluated the candidature of the petitioners and respondents for appointment in departure to the mandate of law and the scope of remand order. The controversy in the present cases would relate to assessment of the qualification and experience of a candidate to judge his suitability for the post. Therefore, the essential question for determination would be whether the Tribunal could competently reverse the selection made by the Departmental Selection Committee and substitute the opinion regarding the suitability of the candidates by evaluating their qualification and experience or while doing so acted in excess of its jurisdiction. The leave is accordingly granted in Civil Petitions Nos. 184‑P and 185‑P of 2002. Q.M.H./I‑55/S Leave granted.