1998 PLP (C (PLC(CS))

NASIR-UL-MULK, J.

In response to an advertisement published in the Daily "Frontier Post" of 15-1-1996 on behalf of N.-W.F.P. Public Service Commission, the petitioner Ghulam Jilani Khan, Senior Registrar, Physiology Department, Khyber Medical College, Peshawar, applied for the post of Assistant Professor Physiology in Khyber Medical College, Peshawar. Dr. Salina Aslam Kundi, also applied for the same post. She was selected by the Public Service Commission and eventually appointed on 1-10-1996. Dr. Ghulam Jilani Khan has now instituted the present writ petition challenging the appointment of Dr. Salina Aslam Kundi on the said post, on the ground that she was not eligible for appointment as she had obtained M.Sc. Degree from a foreign country which was not the requisite qualification for appointment to the post. The petitioner has placed reliance upon letter dated 10-6-1996 written by the Assistant Secretary, Pakistan Medical and Dental Council (P.M.D.C.), addressed to the petitioner in response to his querry. In the letter it was stated that P.M.D.C. had decided in the year, 1992 that holders of M.Sc. (U.K.) in basic subjects only are eligible for appointment/promotion as Assistant Professor provided the Doctors with higher qualification are not available. The Chairman, N. W.F.P., Public Service Commission, Peshawar in his comments pressed into service letter dated 29-5-1996 addressed to Dr. Salma Aslam Kundi, wherein it was certified by P.M.D.C. that M.Sc. (U.K.) in basic science subject was equivalent to M. Phil. Pakistan for the purpose of appointment in basic science like Physiology etc. Since the letter dated 10-6-1996 created some confusion about the stand of P.M.D.C., the Council was asked to file its comments. In its comments, the Council explained that the candidates having M. Phil. or M.Sc. (U.K.) were legible for appointment as Assistant Professor but that the candidates with M. Phil. qualification would have preference over the candidates having M.Sc.

2. After filing rejoinder to the comments of the respondents, ~ the learned counsel for the petitioner was heard in motion.

3. According to the advertisement for the filling up the post of Assistant Professor Physiology, the qualification prescribed was, inter alia, D.S.C./Ph.D./FCPS/MS/M.D./M.S. in the related clinical subjects or equivalent qualifications recognised/registered by the Council. The Council here meant the Pakistan Medical and Dental Council. The P.M.D.C. is the only body which can determine the level of any foreign qualification for appointment or promotion to a post in Medicine. It has very clearly, in its letter dated 29-5-1996, certified that the qualification of M.Sc. (U.K.) held by respondent No. 5, Dr. Salma Aslam Kundi, was equivalent to M. Phil. (Pakistan). The certificate, thus, qualified respondent No. 5 for appointment to the post in question. It appears that after respondent No. 5 was selected by the Public Service Commission, but before she was formally appointed by the Government, the petitioner approached the P.M.D.C. questioning the eligibility of respondent No. 5 for the post. Though the application of the petitioner to the P.M.D.C. has not been placed on the file but the letter dated 10-6-1996 of the P.M.D.C., on which reliance has been placed by the petitioner, shows that it was written in response to the petitioner's application. This letter of the P.M.D.C. states that doctors with M.Sc. (U.K.) are eligible for appointment/promotion as Assistant Professors and can be promoted up to the level of Professor provided the doctors with high qualifications are not available. The P.M.D.C. placed reliance upon the decision of the Council in its sessions held on 26th and 27th January, 1992. This decision. has also been appended with the writ petition.

4. The P.M.D.C. has given three opinions regarding the status of M.Sc. (U.K.) vis-a-vis. M. Phil. (Pakistan). Firstly, in the letter dated 29-5-1996 written by the Council to respondent No. 5 in which it unqualifiedly equated the former degree with the latte;. The second opinion was expressed in the letter dated 10-6-1996 stating that candidates with M.Sc. (U.K.) would only be eligible for appointment if doctors with higher qualification were not available and last of all in its comments the P.M.D.C. has tried to reconcile the two earlier opinions by stating that though possessors of M.Sc. (U.K.) were eligible for appointment as Assistant Professors but that M. Phil. (Pakistan) would have preference. The inference that can be drawn from the three opinions is that the doctors with M.Sc. (U.K.) in basic Sciences are eligible for appointment. The P.M.D.C. is not to concern itself with determining preferences as it only has to state as to whether a candidate with a particular qualification is eligible for appointment or promotion to a specified post. The P.M.D.C. having nowhere stated that M.Sc. (U.K.) was not the requisite qualification for appointment to the post of Assistant Professor, rather in all the three opinions it has declared it to be otherwise, its comments that M. Phil. is to have preference over M.Sc. is of no relevance.

5. Even the opinion given in the letter dated 10-6-1996 is not based on the correct interpretation of the decision of the Council in its 26th and 27th sessions of January, 1992. The relevant part of the decision, for facility, is reproduced as under:-- "It was also decided that Medical Graduates possessing M.Sc. (U.K.) in basic subjects like Anatomy, Physiology, Biochemistry be eligible for appointment as Assistant Professor and may be eligible for promotion up to the level of Professors provided the persons with higher qualifications are not available." A careful reading of the decision of the Council would show that for the purpose of appointment to the post of Assistant Professor, Graduates with M.Sc. (U.K.) in basic subjects have been unconditionally made eligible. It is only for promotion up to the level of Professor that such Graduates would be eligible if there were no other person with higher qualification. The Assistant Secretary, who wrote the letter dated 10-6-1996 incorrectly applied the condition imposed of eligibility for promotion for graduates with M.Sc. (U.K.) to eligibility for appointment. That is why in the said letter it was stated

"holders of M.Sc. (U.K.) in basic subject only from U.K. are eligible for appointment/promotion as Assistant Professor

. The Assistant Secretary by amalgamating "eligibility for appointment/promotion" clearly deviated from the decision of the P.M.D.C. which though has dealt with two subjects in the same sentence but treated them differently. Thus, from the decision of the P.M.D.C. one can gather that M.Sc. (U.K.) in basic Sciences, for the purpose of appointment has been unconditionally made eligible for the post of Assistant Professor. Even if the interpretation placed by the Assistant Secretary on the decision of the P.M.D.C. is assumed to be correct, the petitioner could only benefit out of it, had M. Phil. been declared to be a qualification higher than M.Sc. (U.K.). But nowhere has such declaration been made. Rather the two qualifications have been equated with each other. On that plane too, the petitioner cannot claim to have higher qualification than respondent No. 5.

6. The writ petition is without merits for another reason too. The petitioner has impugned selection of respondent No. 5 by the Public Service Commission as well as her subsequent appointment by the Provincial Government. At the time of interview, admittedly, the Public Service Commission had only before it the letter of the P.M.D.C. dated 29-5-1996 which rendered respondent No. 5 eligible for appointment. It had no choice but to accept the declaration made in that letter. The Public Service Commission had, therefore, committed no error in selecting respondent No. 5, who otherwise had higher merits than the petitioner. The petitioner had made representation to the Provincial Government before the impugned notification. But the Government could not consider the representation as the selection, in which the question of eligibility of candidates is determined, was the exclusive domain of the Public Service Commission. The Provincial Government, thus, also rightly rejected the petitioner's representation.

7. Looking at the case of the petitioner from any angle we are constrained to hold that it has no merits. Resultantly, the writ petition is dismissed in limine. H.B.T./8/P Petition dismissed.