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Petitioner: GHULAM MOHAYYUDDIN CHAUDHRY VS Respondent: GOVERNMENT OF PUNJAB
1995 P L C (C
1995 P L C (C.S.) 188
[Lahore High Court]
Before Muhammad Nawaz Abbasi, J
Dr. GHULAM MOHAYYUDDIN CHAUDHRY
versus
GOVERNMENT OF PUNJAB through Secretary, Services General Administration and Information Department, Lahore and 2 others
Writ Petition No. 1394 of 1993, decided on 14th July, 1994.
(a) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S. 22‑‑‑Medical Council Ordinance (XXXII of 1962), S. 33‑‑‑Constitution of Pakistan (1973), Art 143‑‑‑Vires of notification issued under S. 22, Punjab Civil Servants Act, 1974 (a Provincial Statute) prescribing qualification, for the post of Associate Professor of Medicine on the touchstone of Regulations issued under Medical Council Ordinance, 1962 (Central Statute), prescribing allegedly different qualifications for the same post‑‑‑Notification issued under S. 22, Punjab Civil Servants Act, 1974, prescribing qualifications for the said post was not ultra vires in terms of Art. 143 of the Constitution for the reason that petitioner being a civil servant, his appointment was to be governed by Punjab Civil Servants Act, 1974 and not through the Regulation issued under S. 33, Medical Council Ordinance, 1962.
(b) Punjab Civil Servants Act (VIII of 1974)‑‑‑
‑‑‑‑S. 22‑‑‑Notification issued by Public Service Commission for the post of Associate Professor prescribing specified qualifications‑‑‑Petitioner submitting Application Form for said post within prescribed date‑‑‑Application Form submitted after the closing date of applications but before the date of interview‑‑‑Petitioner's application form was rejected by Public Service Commission‑‑‑Validity‑‑‑Candidates were required to submit along-with Application Form three research papers in a Standard Medical Journal of which petitioner submitted two such papers and informed the Commission that his third research paper was in the process of being published which due to late publication of the Journal was published after closing date of publication but before the date of interview and same was duly submitted to Public Service Commission‑‑‑Petitioner had submitted his third research paper before closing date of submission of Application Forms, which was published due to late publication of the Journal‑‑‑Any person possessing requisite qualifications on the date of selection could not be excluded from the list of validly qualified candidates for want of non‑supply of any document in proof of qualification on the closing date‑‑‑Technical deficiency in qualification for want of supply of documents on the closing date could not materially affect eligibility of any candidate‑‑‑Rejection of petitioner's Application Form was thus, illegal and without lawful authority‑‑‑Petitioner was declared to be validly qualified candidate to compete for the specified post.
Habib‑ur‑Rehman v. Government of Pakistan and‑ others 1979 SCMR 121; Seubia Hadi v. The Principal, King Edward Medical College, Lahore PLD 1993 Lah. 677; Manager, Jammu and Kashmir, State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678; Ghulam Murtaza v. Chairman, Selection Board, Principal, King Edward Medical College, Lahore and 2 others 1981 CLC 274 and Dr. Zia Suleman Farooqi v. Punjab Public Service Commission and others PLD 1994 Lah. 55 ref.
(c) Administrative decision‑‑‑
‑‑‑‑ Public functionaries are not supposed to fix a different standard and criteria for different persons in similar situation without change of circumstances.
(d) Administration of Justice‑‑‑
‑‑‑‑ Jurisprudence of conception‑‑‑Legal precepts were devised with a view to impart certainty, consistency and uniformity t administration of justice and to secure it against arbitrariness, errors of individual judgment and mala fides‑‑?Over a period of time development of codes and rules led to the evaluation of "Jurisprudence of Conception" a system of logical deduction from fixed premises.
Mian M: Zafar Yasin for Petitioner.
Syed Tassadaq Hussain Gillani, Senior Addl. A.G. for Respondents.
Muhammad Khalid Alvi, Standing Counsel for Respondent.
Dates of hearing: 4th, March, 1993, 20th April and 12th July, 1994.
JUDGMENT
Dr. Ghulam Mohayyuddin Chaudhary, Assistant Professor of Medicine, Nishtar Medical College, Multan, aggrieved of the rejection of his application/candidature by Punjab Public Service Commission, Lahore to be qualified for the post of Associate Professor of Medicines has filed this Constitutional petition seeking declaration that the petitioner having fulfilled the required qualification has been illegally and arbitrarily excluded from the list of validly qualified candidates on the basis of notification dated 3rd July, 1988 of the Government of Punjab prescribing the additional condition of publications of three research papers as Assistant Professor of Medicine derogation to the qualification prescribed by the Pakistan Medical and Dental Council Ordinance, 1962, the special statute governing the subject and in consequence thereof is ultra vires to the Constitution.
2. The Punjab Public Service Commission by means of advertisement No.19/1992 issued in November, 1992, Case No. 41/1992, Serial No. 169, ‑invited applications for six posts of Associate Professors of Medicine from the candidates with the following qualifications:
(i) Post‑graduate with five years' experience as Assistant Professor in Medicines.
(ii) Publication of at least three research papers in a standard medical journal as Assistant Professor in Medicines.
The petitioner's case is that he fulfils the requisite qualifications, as much as he is a post‑graduate with five years service and experience as Assistant Professor in Medicines. He with his application furnishing copies of two research papers published in the medical journal as Assistant Professor informed the Punjab Public Service Commission that his third research paper as Assistant Professor is under publication. He, however, having failed to supply three published research papers in a medical journal was declared not to be a qualified candidate for the post of Associate Professor and in consequence his candidature was rejected by the Punjab Public Service Commission.
3. The petitioner whose application was initially rejected by the Punjab Public Service Commission having questioned the rejection of his candidature before this Court through this petition, was directed to be interviewed by the said Commission, however, his selection was subject to .the result of writ petition.
4. The sole question to be determined is as to whether the petitioner was qualified for the post of Associate Professor in medicines and the rejection of his candidature was illegal and unlawful to be sustained.
The petitioner having been served as Assistant Professor in Nishtar Medical College, Multan for a period of more than five years possessed the requisite Post‑Graduate qualification. He was required to also submit three research papers duly published in a medical journal but he attached only two research papers with his application.
5. The qualification prescribed through the Notification dated 3rd July, 1988 issued by the Government of Punjab under Punjab Civil Servants Act, 1974 read with Pakistan Medical and Dental Council Ordinance, 1962, is as under:
"For initial recruitment to the post of Associate Professor of the subject and five years teaching experience as Assistant Professor in the subject in recognized institution and at least three research papers published in Standard Medical Journal while working as Assistant Professor."
Section 33 of Pakistan Medical and Dental Council (constituted under Medical Council Ordinance, 1962 (Ordinance XXXII of 1962) prescribes the following qualification for the post of Associate Professor: "Five years' teaching experience as Assistant Professor in the relevant subject with at least three research papers published in a Standard Medical Journal:'
The only difference made was that according to the notification of Government of Punjab the three research papers must be published as Assistant Professor.
6. Mr. Zafar Yasin, Advocate learned counsel for the petitioner has contended that Pakistan Medical and Dental Council Ordinance, 1962 is a special statute on the subject and the notification dated 3rd July, 1988 of the Government of Punjab issued under Punjab Civil Servants Act, 1974 creates no distinction except the requirement of the publication of three research papers in medical journal as Assistant Professor, whereas no such. restriction is found in the Pakistan Medical and Dental Council Ordinance, 1962. He next argued that undisputedly the two research papers were got published by the petitioner as Assistant Professor and the 3rd research paper was under publication at the time of submission of the application but later the same having been supplied on its publication before the final selection by the Punjab Public Service Commission, the petitioner could not be declared not eligible, and qualified for the post. He with reference to the case of Dr. Tanveer Ahmed, contended that Punjab Public Service Commission in an identical situation determining 'his eligibility declared him to be qualified to compete the post of Associate Professor Orthopaedic. According to him, in the case of Dr. Tanveer Ahmed, the last date for submission of applications was 24‑9‑1992. The application accompanying only one research paper published in medical journal was rejected through an intimation dated 30‑1‑1993, whereas the date of interview was fixed as 18‑2‑1993. Dr. Tanveer Ahmed Khan filed one more research paper published in medical journal during the period from August, 1992 to January, 1993 i.e. after closing date but before the date of interview. Learned counsel while making a comparison of the case of Dr. Tanveer Ahmed Khan to that of the petitioner who has annexed two research papers with his application submitted on 26‑11‑1992 which was rejected on 8-2‑1993 for deficiency of one research paper submitted, that third research paper having been supplied to the Punjab Public Service Commission after having published in the third quarterly medical journal (October to December, 1992) much before the date of interview, the petitioner being on a better footing has been dealt with discriminatory. His next contention was that the qualification to the post of Associate Professor in Medicines having been prescribed by Special Statute under Pakistan Medical and Dental Ordinance, 1962, the Notification in question issued under Punjab Civil Servants Act, 1974, a Provincial Statute having no overriding effect, the qualification of the petitioner for the purpose of appointment against the post of Associate Professor shall ,be governed by the Pakistan Medical and Dental Council Ordinance, 1962.
7. The learned Addl. Advocate‑General argued that by virtue of Article 24(1 of the Constitution of Islamic Republic of Pakistan, 1973, read with t e provisions of the Punjab Civil Servants Act; 1974. the Notification imposing the condition of publication of three research papers as Assistant Professor is a valid piece of legislation to be given full effect and that the Pakistan Medical and Dental Council being a recommendary body, its regulations are not mandatory in nature to be enforced as a special law. He relying on an unreported judgment in civil appeal decided by the Honourable Supreme Court of Pakistan, argued that the regulation made by the Pakistan Medical and Dental Council has no overriding, effect on the notification issued by the Government of Punjab on the subject. He distinguishing the case of Dr. Tanveer Ahmed submitted that the target date in that case being 24th September, 1992, the papers in circulation were published during the period from February to August, 1992 and the publication of the issue having delayed till November, ‑1993, the research papers of Dr. Tanveer Ahmed were accepted.
It is stated that the petitioner submitted nine papers along-with his application much before the target date. However, his application was rejected on the ground that he was short of one research paper on the closing date, through communication dated 8‑2‑1993.
The detail of research papers submitted and after evaluation by the Punjab Public Service Commission, rejected is as under:
(i) Research paper Annexure `A' with the petition published in Pakistan Heart Journal was 'ejected on the ground that it was published when the petitioner was working as Registrar and not Assistant Professor.
(ii) Research paper Annexure `B' with the writ petition being treated as letter to the Editor and was also rejected on the ground that it published when petitioner was not Assistant Professor.
(iii) Two research papers Annexures "(1) and 2(iii) with the writ petition were not accepted on the ground of not having the status of research papers but were the letters to Editor.
(iv) One research paper Annexure 2(ii) with rejoinder to the writ petition published in JHMA was rejected on ground that it was a case report, and not the research paper.
(v) Two research papers Annexure A/6 with the writ petition and 2(iv) with rejoinder were not accepted for the reason that they were still under publication.
(vi) Two research papers Annexures A/3 and A/4 with this petition were declared valid research papers and accepted.
7‑A. The petitioner after receiving the communication dated 8‑2‑1993 submitted another published research paper Annexure A/5 with the writ petition to be considered to determine his' eligibility and qualification t compete for the post of Associate Professor. This paper was also published during the period when the petitioner was working as Assistant Professor but Punjab Public Service Commission through an intimation dated 16‑3‑1993 did not accept it on the ground that although it was published in Standard Medical Journal in its part from October to December, 1993 but the publication being after the closing date of the application i.e. 26‑11‑1992 was not acceptable.
8. It is stated that it was made clear to the Punjab Public Service Commission by the petitioner through a notice that the papers in question was published in J.C.P.S.P. Medical Journal in its part from October to December, 1992.
According to the publisher the said Journal has three Publications in a calendar year i.e. (i) January to March, (ii) April to June and (iii) October to December, It was also brought to the notice of Punjab Public Service Commission that in case of Dr. Tanveer Ahmad a candidate for the post of Associate Professor, (Orthopaedic Surgery) his third research paper was published after closing date of the application and published research paper was supplied to the Public Service Commission much after rejection of the application but before the date of interview and Dr. Tanveer Ahmed was considered eligible whereas in the identical situation and circumstances the petitioner is being treated differently to be declared a valid candidate.
9. The petitioner having fulfilled the requirement of publication of three research papers supplied the same to the Punjab Public Service Commission before the date of final selection two research papers published before the last date. of submission of application and third paper was published during the period from October to December, 1992 i.e. in any case before the date of interview.
The petitioner has questioned the rejection of his application and candidature being discriminatory and in violation of Articles 24 and 25 of the Constitution. It has been contended by the learned counsel for the petitioner that a public functionary is not supposed to apply‑ different standard to the different people in similar circumstances and they must be treated equally the identical situation.
10. The next contention raised by the learned counsel is that Notification dated 21‑5‑1988 Annexure `C' with this petition imposing the condition of publication of at least three research papers in the Standard Medical Journal while working as Assistant Professor is also discriminatory to the post of Associate Professor on the ground that for the post of other specialists of Clinic Science i.e. Surgery Obstructive Gynecology and E.N.T. the requirement of research papers published while working as Assistant Professor is not the condition imposed to qualify for the said posts, therefore, this special condition imposed only in case of selection of Associate Professor in Medicines having no distinguishable features to that of similar posts of Associate Professor in Clinic Science i.e. Obstructive Gynecology and E.N.T. and Surgery etc. is in violation of Articles 24 and 25 of the Constitution.
The vires of the Notification was also questioned on the ground that it being in conflict with the qualification given in Pakistan Medical and Dental Council Ordinance, 1962, a Special Statute on the subject according to which, the publication of research papers as Assistant Professor is not the requirement to qualify for the appointment as Associate Professor is ultra vires to the Constitution. The argument was that the Pakistan Medical and Dental Council Ordinance being a Federal Statute. shall prevail on the notification issued under the Provincial Statute and same by virtue of section 22 of Punjab .Civil Servants Act, 1974, being less favourable and inconsistent to the law of the subject is not applicable.
11. The only question involved in the present petition for the determination is of the eligibility of the petitioner to the post of Associate Professor. The Notification issued by Government of Punjab Health and Social Department containing the condition causing grievance to the petitioner is reproduced as under:‑
"Publication of three research papers while? working as Assistant Professor."
12. The contention that the Notification prescribes the qualification for the post of Associate Professor being in conflict to the Pakistan Medical and Dental Council Ordinance, 1962 is ultra vires to the Constitution is repelled for the reason that the petitioner being a civil servant, his appointment is to be governed by Punjab Civil Servants Act, 1974 and not through the Regulation of Pakistan Medical and Dental Council. Tire Notification in question with qualification was not issued in a particular case but it was made applicable to all candidates for the selection of post of Associate Professor in Medicines equally with no distinction. The Notification in question determining the qualification for purpose of initial entry in service not regulating the terms and conditions of service cannot be put to the test of inconsistency with the provisions of law, rules and instruction relating to the terms and conditions of a civil servant applicable to him before the enforcement of such law, so framed. The Notification having been issued under the Civil Servants Act, 1974, regulating the appointment of civil servant cannot be questioned to be ultra vires of the Constitution of Islamic Republic of Pakistan, 1973, on the ground that according to Pakistan Medical and Dental Council Ordinance, 1962, only submission of three research papers is the requirement whether got published as Assistant Professor or not.
13. The pivotal question shall be as to whether the requirement of publication of three research papers was fulfilled by the petitioner by supplying the third research paper before the date of interview and that whether the subsequent supply of the paper can be treated as part of the application or the deficient supply the papers for want of non‑availability or some other reason before the closing date was enough to declare the petitioner not qualified for the post.
14. While examining the Notification in question, the intention appears that the publication of three papers as Assistant Professor in the Standard Medical Journal was the only requirement with no limitation of time, but it must be published before the date of final selection.
The instructions of Public Service Commission annexed with the application form on the subject are as under:‑
ELIGIBILITY:
"Applicants Who are citizens of Pakistan and are domiciled in the respective 'Zone of Punjab and possess the requisite academic qualification (and experience, if applicable) are within the prescribed age limit and fulfil other conditions as advertised in the Press‑note by the closing date of application are eligible."
Apparently the target date for the purpose of determination of eligibility to be considered is the closing date given by the Public Service Commission, which in the present case was 26th November, 1992 and the candidates were interviewed on 6/7‑4‑1993. A deep study of the matter would I show that for the purpose of regulating the process of selection, a date is fixed for submission of application, after which no application is entertained but the candidate who has submitted his application within that date, in case of any' deficiency in his application, can make up the same at any time before the final selection. A ' candidate because of late announcement of result of an examination cannot be declared not qualified on the closing date or debarred to compete for the post.
The last date for submission of application is not, therefore, a criteria to determine the eligibility of a candidate. However, a person possessing the required qualification on the date of selection cannot be excluded from the list of validly qualified candidates for want of non‑supply of a document in proof of qualification of the closing date, particularly when the application of such candidate contain necessary information and declaration regarding the qualification being possessed by the such candidate on the said date. The eligibility of a candidate is not determined only on the basis of document made available on a particular date but at qualification really he possesses. Undisputedly the third paper of the petitioner was published in third quarter of the Medical Journal which could be at any time during the period from October to December, hence in absence of any proof to the contrary, the publication of third paper in Medical Journal shall be presumed to have published before closing date i.e. 26‑11‑1992, hence it can safely be held that the petitioner was possessing the requisite qualification even on closing date but for non‑available of published copy of paper with him he applied it later. This position remained unchallenged by the Punjab Public Service Commission. hence the technical deficiency in qualification for want of supply of the documents on the closing date cannot take material affect to determine the eligibility of a candidate.
The respondent earlier, while declaring Dr. Tanveer Ahmed qualified to compete for the post of Associate Professor in Orthopaedic Surgery in similar circumstances, has conceded the case of the petitioner. The case of the petitioner being at par to that of Dr. Tanveer Ahmed, he cannot be treated differently but different laws can be validly made with reasonable classification in special circumstances, hence the notification by which condition was imposed for the selection of post of Associate Medicines being a valid piece of legislation is not changeable, case of indiscrimination in law itself but in the application commission in the different cases in similar circumstances and situation, no legal and moral. compulsion is discriminatory. The public functionaries are not supposed to fix a different standard and criteria for different persons, similar situation without change of circumstances.
The petitioner having informed the respondents about the publication of research paper in question in third quarter of Medical Journal i.e from October to December, 1992 through the reply to the letter dated 8th March, 1993, has supplied the deficiency if any in the application much before the date of interview rather before the issue of call for interview which was held on 6/7‑4‑1993. He admittedly was qualified on 8‑3‑1993 and also having completed the formal requirement of supply of copy of one research paper could not be excluded from the list of validly qualified candidates. Thus the proposition involved in the case as to whether the eligibility of the petitioner was to be determined on the closing date or on the date of interview is answered in favour of the petitioner, following the principle laid down by the Honourable Supreme Court of Pakistan Habib-ur‑Rehman v. Government of Pakistan and others (1979 SCMR 121)
In the said case the Government of. N.W.F.P. reserved six seats for male students from Orakzai Agency for admission in different medical colleges of the country. Habib‑ur‑Rehman and .5 others claiming themselves to be domiciled in the Orakzai Agency applied for admission in the medical colleges against the reserved quota. Habib‑ur‑Rehman was not called for interview on the ground that the domicile certificate produced by him was issued by the Deputy Commissioner, Kohat…
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