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Petitioner: Hafiz MUHAMMAD TAHIR JAMIL VS Respondent: EXECUTIVE DISTRICT OFFICER (HEALTH), SAHIWAL and 2 othersHonorable Justice Nazir Ahmad SiddiquiMuhammad Khalid Ayyaz,M.R. Khalid Malik, Addl. A.-G. with Dr. Saad Bin Saeed
2007 P L C (C
2007 P L C (C.S.) 37
[Lahore High Court]
Before Nazir Ahmad Siddiqui, J
Hafiz MUHAMMAD TAHIR JAMIL
Versus
EXECUTIVE DISTRICT OFFICER (HEALTH), SAHIWAL and 2 others
Writ Petition No.5430 of 2003, heard on 3rd May, 2006.
Punjab Health Department Paramedical Establishment Service Rules, 2003---
----Unani, Ayurvedic and Homeopathic Practitioners Act (II of 1965), S.21---Constitution of Pakistan (1973), Art.199---Constitutional petition---Appointment against post of Homeo Doctor---Application of petitioner for appointment against post of Homoe Doctor in BS-15 was not entertained on ground that he was not F.Sc. (Pre-Medical), despite being possessed with all other qualifications---Qualifications for post in question were F.Sc. Pre-Medical; Diploma of D. H. M. S. ; registration as a Homeopathic practitioner and at least five years experience in relevant technical field---Petitioner, after having passed Matriculation Examination, had also qualified four years Diploma Course (D.H.M.S.)---Petitioner had fulfilled all said conditions, except that he was not F.Sc. (Pre-Medical) though he had qualified three years course in Mechanical Technology, which was equivalent to F.Sc., non-medical and he had also passed Annual Examination for the degree of Bachelor of Arts, but despite that he was not found eligible to be considered for such post---Constitutional petition was allowed by declaring that condition of F.Sc., introduced in Punjab Health Department Paramedical Establishment Service Rules, 2003, was not applicable to the petitioner--Vacancies advertised lying vacant, same would be re-advertised and petitioner being eligible could apply for the same and recruitment would be made strictly on merits.
Muhammad Khalid Ayyaz for Petitioner.
M.R. Khalid Malik, Addl. A.-G. with Dr. Saad Bin Saeed, Representative of EDO(H).
Date of hearing: 3rd April, 2006.
JUDGMENT
NAZIR AHMAD SIDDIQUI, J.--- Executive District Officer (Health), Sahiwal/respondent No.1 invited applications for appointment against five posts of Homeo Doctors in BS-15 on the basis of contract for a period of three years vide advertisement published on 26-11-2003 in daily Jang, Lahore. The requisite qualifications for the said post were shown to be as under:
(i) F.Sc. Pre-Medical from a recognized Board and;
(ii) Diploma (of D.H.M.S.) from recognized Homeopathic Medical College and;
(iii) Registration as a Homeopathic Practitioner and
(iv) At least five years experience in the relevant technical field to be verified by the Homeopathic Medical Association recognized by the Government.
2. Petitioner (claiming to be a disable person) also applied for one of the said posts but his application was not entertained as he was not F.Sc. (Pre-Medical), despite being possessed with all other qualifications.
3. This constitutional petition has been filed with reference to the above grievance, seeking a direction, "to respondent No.1 to make recruitment on the basis of Matric Science and four years Diploma according to amendment in Act, 1965 (UAH) through Ordinance No.LXI of 2002 (Annexure "C") and also grant age relaxation to the petitioner from the disabled quota".
4. Argument heard. Record perused.
5. It is not denied that the qualifications for admission to a course of D.H.M.S. have been prescribed in Unani, Ayurvedic and Homeopathic Practitioners Act, 1965. it was stated in section 21 of the same, "the minimum qualifications required for admission to a recognized institution shall be matriculation or equivalent examination of any University or Education Board in Pakistan established by or under any law". However, vide Ordinance No.LXI of 2002 dated 4-10-2002, this section was divided into two subsections as under:--
In section 21 in subsection (1).
Qualifications for admission to institutions.--- (1) The minimum qualifications required for admission to a recognized institution of Unani or Ayurvedic System of medicine shall be Matriculation with Science or equivalent examination of any University or Education Board in Pakistan established by or under any law preference being given to those having higher qualification with Science and in the case of admission to an institution of Unani System of medicine to a candidate having one or more of the following additional qualifications namely:--
(a) Adeeb
(b) Adeeb Alim
(c) Adeeb Fazil
(d) Munshi
(e) Munshi Alim
(f) Munshi Fazil
(g) Molvi
(h) Molvi Alim
(i) Molvi Fazil
(2) The minimum qualification required for admission to a recognized institution of Homeopathy shall be Matriculation with science or equivalent examination of any University or Education Board in Pakistan established by or under any law but those with intermediate or higher qualifications with science shall be preferred."
Petitioner after having passed Matriculation Examination had also qualified four years Diploma course (D.H.M.S.) as is evident from the certificate issued by National Council for Homeopathy on 25-7-1998. This being so, his claim is that his application for the said post could not have been turned down simply on the sole ground that he was not F.Sc. (Pre-Medical). I have put this question to the learned Additional Advocate-General and the representative of the respondents as to how far the condition of F.Sc. (Pre-Medical) could be made a basis for not entertaining the application of the petitioner for the said post. It is replied that amendment has taken place vide Notification No.SOR-III-1-12-2003, dated 6-10-2003 in the Punjab Health Department Paramedical Establishment Service Rules, 2003 which prescribes the qualification for such a post as under:
(i) F.Sc. Premedical from a recognized Board.
(ii) Diploma of D.H.M.S. from a recognized Homeopathic Medical College.
(iiii) Registration as Homeopathic Practitioner.
(iv) At least five years experience in the relevant technical field to be verified by the Homeopathic Medical Association recognized by the Government.
6. Undeniably, the petitioner does fulfil all the conditions mentioned above, except that he was not F.Sc. (Premedical) though he had qualified three years course in Mechanical Technology from the Punjab Board of Technical Education, Lahore in the year 1989 (equivalent to F.Sc., non-medical) and he had also passed IInd Annual Examination for the degree of Bachelor of Arts of the academic session 1996 yet, he because of this impediment (not being F.Sc. Pre-Medical) was not found eligible to be considered for such a post. On my repeated questions, as to whether a person who had already obtained Diploma in Homeopathy Science duly recognized by the Government long prior to the said amendment made in the Punjab Health Department Para-medical Establishment Service Rules, 2003, could be knocked out on the ground that he was not F.Sc., which was not a prerequisite for admission to such a course with reference to the Federal enactment (Unani, Ayurvedic and Homeopathic Practitioners Act, 1965), no convincing answer was given.
7. By virtue of the amendment made in the Punjab Health Department Paramedical Establishment Service Rules, 2003 on 6-10-2003, obtaining D.H.M.S. on the basis of Matric was no longer helpful to such Diploma-holders in getting the appointment with reference to the post of Homeo Doctor in the Provincial Hospitals and this has not been taken into consideration at all that till today there is no amendment in the Federal enactment (Unani, Ayurvedic and Homeopathic Practitioners Act, 1965) for getting admission to the course of D.H.M.S. on the basis of Matric. This being so, I am of the view that this condition of F.Sc. (Pre-medical) in the Punjab Health Department Establishment Service Rules, 2003 introduced vide Notification No.SOR III-1-12/2003, dated 6-10-2003 cannot be made applicable at least to those who had already obtained Diploma (D.H.M.S.) even on the basis of Matric. It is the responsibility of the respective Government (Provincial and Federal) to look into the matter and to bring into conformity/harmony the relevant laws so that there should not be possibility of any conflict among them resulting in complications etc. Here it shall not be out of place to observe that as per Article 143 of the Constitution, if there is any inconsistency between the Federal and Provincial laws, former shall prevail.
8. For what has been stated above, this petition is allowed by declaring that the condition of F.Sc. introduced in Punjab Health Department Para-medical Establishment Service Rules, 2003 is not applicable at least to the petitioner and those who had already obtained the requisite Diploma even on the basis of Matric. At this stage, I have been told that still the vacancies already advertised are lying vacant. This being so, the same shall be re-advertised and the petitioner being eligible may apply for the same and the recruitment shall be made strictly on merits.
H.B.T./M-621/L Petition allowed.