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Writ Petition No. 4100/S of 1981, decided on 22nd December, 1982.
‑‑ O. VI, r. 17‑Provisional Constitution Order (1 of 1981), Art. 9‑ Pleadings, principle governing amendments‑Any change in facts or law that supervene institution of legal proceedings shall be taken into consideration by Courts who may also mould relief to be granted keeping in view all said changes‑Principle, held, is intended to avoid multiplicity of proceedings and to shorten litigation‑Amend ments sought calculated to implement principles which are well‑warranted in law and time factor in attendant circumstances of case, held further, cannot also stand in way of allowing amendment Amendments allowed.
Popat Ram and another v. Khushi Ram and others A I R 1937 Lah. 295 ; Rati Ram and others v. Tirkha and others A I R 1927 Lah. 723 ; Purna Chandra Sutradhar and another v. Mst. Saburi Bewa and others A I R 1932 Cal. 87 ; Gordhandas and another v. Firm of Gokal Khalaoo and another A I R 1926 Sind 264 and Muhammad Suleman and another v. Javed Iqbal and others P L D 1982 S C (A J & K) 64 ref.
Muhammad Ayyub and another v. Muhammad Yaqoob and another P L D 1975 Lah. 445 Lachmeshwar Prasad Shukul and others v. Keshwar Lal Chaudhri and others A I R 1941 F C 5 ; Sultan Ahmad and another v. Sahu and others 1969 S C M R 277 and Keramat All and another v. Muhammad Yunus Haji and others P L D 1963 S C 191 rel.
‑‑Art. 9 Rule of law‑Every functionary and body whether adminis trative or judicial or quasi‑administrative or quasi judicial, held, required to deal with all applicants before it fairly, justly and equitably and an applicant has a legal right to demand that such functionary or body should determine matter in accordance with law governing subject.
Sohrab Butt v. Government of Punjab P L D 1982 Lah. 42 ; Dr. Habibur Rahman v. The W. P. Public Service Commission, Lahore and 4 others P L D 1973 S C 144 ; lqan Ahmad Khurram v . Government of Pakistan and others P L D 1980 S C 153 ; Muhammad Zaman Khan v. Government of the Punjab etc. 1981 P L C (C. S.) 434 ; Dr. Umar All v. North‑West Frontier Province and two others N L R 1980 (S) Pesh. 111 ; Mian Fazal Din v. Lahore Improvement Trust P L D 1969 S C 223 and Messrs S. M. Ilyas and Sons Ltd. v. Monopoly Control Authority, Islamabad and mother )' L D 1976 halt. 834 ref.
‑‑Art. 9‑‑Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981‑‑Punjab Public Service Commission Ordi nance (1I of 1978), S. 7‑Writ jurisdiction‑Locus standi to invoke petitioner having substantial interest in matter and will stand to gain if impugned order struck down especially when he claims to be fully qualified for appointment to post for which Punjab Public Service Commission recommended another candidate and Government issued appointment order on basis thereof‑Petitioner, held, aggrieved person within meaning of Art. 9, Provisional Constitution Order, 1981‑Writ petition of such person, held, maintainable.‑[Civil services].
‑‑ Art. 9‑Constitutional jurisdiction‑Discharge of law and Rules by any functionary or body‑Actions of such functionary or body, held, would be open to question in constitutional jurisdiction.
‑‑ Health Departmant (General Specialists and Miscellaneous Posts) Service Rules, 1981, Item 14, cls. (a) & (b), Sched.‑Both clauses deal with subjects respectively of qualification' and experience' which shows that subject‑wise clauses are mutually exclusive‑When pro vision is made on a subject it is to be treated as exclusive of subject dealt with‑Clauses (a), (b), held, not overlapping and it would be wrong to import considerations flowing from cl. (b) when cons truing cl. (a) or vice versa‑Question whether person is possessed of requisite qualifications, cl. (a) to be looked at uninfluenced by anything containing in cls. (b).
(f) Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981‑
‑‑ Sched., Item No. 14, cls. (a) & (b)‑Qualification for post of Physiotherapists‑Basic educational qualification for appointment to post, held, graduation in Physiotherapy from Karachi or equivalent qualification as determined by appropriate authority and not diploma m Physiotherapy‑Use of word "and" at end of educational qualifi cations for post makes holding of experience as prescribed to co‑exist with basic educational qualification. ‑ [Interpretation of statutes].
Fazal Elahi Ejaz and 22 others v. Government of the Punjab and 13 others P L D 1977 Lah. 549 ref.
‑‑‑ S. 7‑Punjab Health Department (General, Specialists and Miscel laneous Posts) Rules. 1981‑Punjab Civil Servants (Terms and Condi tions of Service) Rules, 1974‑Provisional Constitution Order (1 of 1981). Art. 9‑‑Jurisdiction of Public Service Commission is to conduct tests, examinations or interviews for selection of such persons who fall in with requirement‑Respondent not holding required basic qualification‑Conduct of examination or interview for his selection, held, beyond domain of Public Service Commission and consequently its recommendation stands vitiated.
(h) Punjab Health Department (General Specialists and Miscellaneous Posts) Rules, 1981‑
‑‑ Sched., Item 14, cls, (a) & (b)‑Punjab Public Service Commission Ordinance (11 of 1978), S. 7‑Provisional Constitution Order (1 of 1981), Art. 9‑Selection to post of Physiotherapist‑Government offer ing post to respondent on vitiated recommendation of Punjab Public Service Commission‑‑Act of Government, held, also falling alongwith recommendation of Commission‑Government admitting that respon dent not possessing required basic educational qualification‑Change in view in pursuance to meeting misconceived and based on erroneous interpretation ‑Impugned recommendation of Commission and offer of post by Government made to respondent in pursuance thereto being in disregard of relevant Rules, held, without lawful authority.
Rana Muhammad Sarwar for Petitioner.
Tanvir Ahmad Khan, Asstt. A.‑G. for Respondents Nos. I and 2.
M. Arif and Sh. Abdul Aziz for Respondent No. 3.
Dates of hearing: 2nd, 3rd, 4th, 5th, 18th, 25th, May, 1982 and Rehearing on 14th November, 1982.
This petition under Article 9 of the Provisional Constitution Order. 1981 read with Article 199 of the Constitution of the Islamic Republic of Pakistan, as initially instituted, seeks a declaration to the effect that the interview and recommendation of respondent No. 3 made by respondent No. .2 is without lawful authority and jurisdiction and does not affect the rights of the petitioner.
2. The facts necessary for the purposes of this petition, briefly stated, are that respondent No. 2, the Punjab Public Service Commission, Lahore, invited applications for appointment to the post of one temporary (likely to be made permanent) Physiotherapist in the Punjab Health Department in National Pay Scale 18, through the daily "The Pakistan Times dated 5th May, 1981. In the advertisement the qualifications required for the post aforementioned were given as under
(a) B. Sc. (Physiotherapy) Karachi or equivalent qualification ; and
(b) Five years' experience in the speciality after B. Sc. (Physiotherapy) or 10 years' practical experience in the speciality after Diploma m Physiotherapy.
(c) Age‑Twenty‑six to forty‑five years plus one year as one time con cession in pursuance of Government Notification No. SOR‑11I‑9 1/79, dated 2nd July, 1979 on 25th May, 1981.
(d) Eligibility‑Both men and women domiciled in Punjab.
The qualifications as detailed above and advertised for the post in question are in accordance with the Punjab Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981 enforced on 24th January, 1981 vide notification No. SOR‑111‑1‑10/80. These appear against the post in question at item No. 14 of the Schedule. The petitioner respon dent No. 3 and some others applied t9 the Public Service Commission for the said post,
3. The petitioner possesses the following qualifications
(i) B. Sc. (Physiotherapy), University of Karachi having passed the examination in April, 1965 in First position ;
(ii) is a Member of the Chartered Society of Physiotherapy, London, having been admitted to the register of members of the said society on 1st December, 1969 ;
(iii) worked as a Physiotherapist in Victoria Hospital, Bahawalpur for about nine months ;
(iv) served as Specialist Physiotherapist in Central Hospital, Jeddah for about five years w, e. f. 13th January, 1967 ; and
(v) till the institution of this petition has been working as a Physio therapist in N. P. S. 18, in Nishtar Medical College, Multan, first on ad hoe basis and thereafter on contract basis.
4. The qualifications of respondent No. 3 as stated at the bar by his learned counsel are as under
(i) Diploma in Physiotherapy from Karachi ;
(ii) worked as Assistant Physotherapist for three years ;
(iii) Member of the Canadian Physiotherapy Association ;
(iv) more than ten years' experience after Diploma in Physiotherapy.
It is, however, the conceded position that respondent No. 3 is not a B. Sc. (Physiotherapy) Karachi, and that his qualifications have not been recognized by Karachi University as equivalent to B. Sc. (Physiotherapy) Karachi.
5. The Public Service Commission issued invitations for interview to the candidates who had applied for the post in question. The interview was held on 9th August, 1981. The Public Service Commission nominated Mr. Lajbar Khan Salim, Chief Physiotherapist, Civil Hospital, Karachi, N. P. S. 19, as Technical Adviser to the Commission.
6. Before commencement of the interviews the candidates objected to the participation of Mr. Lajbar Khan Salim as Technical Adviser to the Commission on the ground that he was himself not a B. Sc. (Physiotherapy) "and had no independent mind to take a just and proper decision".
7. This objection was taken into consideration according to the report of the Public Service Commission but was disallowed.
8. Another aspect of the matter which is asserted in the petition and conceded in the para‑wise comments submitted by respondent No. 1 is that the Secretary Health, Government of the Punjab was asked by letters dated 5th August, 1981 to attend the Commission on 9th August, 1981 to represent the Department and in case the Secretary was unable to attend, to depute Senior Officer of the Department for the purpose, but this invitation to the Secretary Health was received in the Health Department on 11th August, 1981 i.e. two days after the interviews for the post had been held. The Department, therefore, was not represented at the time of the interview.
9. On 20th August, 1981 the Commission displayed on his office board a notice declaring respondent No. 3 as the recommended for the post in question. The petitioner thereupon instituted the present writ petition on 24th August, 19P1 before the Multan Bench of the Lahore High Court. It was registered as W, P. No, 872/S‑81/Multan,
10. By order dated 26th August, 1981 report and para‑wise comments were called for from respondents Nos. 1 and 2 and notice was also issued in the interim relief claimed. Later. however, by order of the learned Acting Chief Justice it was directed that the writ petition should be heard at the principal seat at Lahore.
11. The Health Department, respondent No 1, submitted its report and para‑wise comments on 16th September, .981 and admitted therein that respondents No. 3 did not hold the basic qualification of B. Sc. (Physio therapy) as prescribed in the Punjab Health Department (General Specia lists and Miscellaneous Posts) Service Rules, 1981. It was also stated in the report that recognition of qualification of this candidate as equivalent to B. Sc. (Physiotherapy) can only be given by equivalent Committee of Karachi University. (Refer para. 6 of the para‑wise comments).
12. On 30th December, 1981, on the application made by the peti tioner (C, M, No 12125/1981) status quo was directed to be maintained.
13. As the petitioner had by then learnt that respondent No. 3 had been issued a letter dated 28th December, 1.981 to give his acceptance of the post in question offered to him after his selection (a copy of this letter has been annexed by respondent No. 3 with his application, C. M. No. 124/ 1982 for vacation of the status quo order), he on 6th March, 1982 made an application (C. M. No. 648/1982) for seeking amendments in the writ petition. The amendments sought for are
(i) to add ground No. 6 (h) after ground No. 6 (g) to challenge the action of respondent No: 1 in accepting the recommendation of the Public Service Commission for appointment of respondent No. 3 to the post in question.
It is also urged in this ground that having concededly the report and para‑wise comments earlier that respondent No. 3 did not possess the basic qualifications required for the post the action in offering the post to the said respondent is clearly mala fide and motivated by outside influence
(ii) to add in prayer clause the following .
"It is further prayed that the acceptance of Public Service Commission by respondent No. 1 and consequent action of offering the post to respondent No. 3 by means of letter dated 28th December, 1981 already placed on record by the respondent may be declared to have been taken without lawful authority.
14. Notice in this application was issued to the respondents and reply thereto has been filed by respondent No, 3 alone who has objected to the allowing of the amendments.
15. The learned Assistant Advocate‑General who represented other respondents, however, did not oppose the application.
16. It was agreed by the parties that‑the arguments on the application and the writ petition may be heard together as the questions involved therein are inter‑connected. I, therefore, heard the arguments of the parties on the application made by the petitioner for permission to amend the writ petition and the writ petition conjointly,
17". The learned counsel for the petitioner as regards the application for amendments submitted that the writ was filed on 24th August, 1981 and the acts of the Public Service Commission right from the entertainment of application of respondent No. 3 to the stage of recommending him for appointment against the post in question were challenged therein and the relief claimed was also what could be claimed at that point of time.
18. It was added by him that subsequent to the institution of the writ petition, respondent No. 1 clandestinely made offer of the post in question to respondent No. ,3, vide letter dated 28th December, 1981 although the matter of stay and hearing of the writ petition were being adjourned from time to time at the request of respondents themselves. He also urged that the said subsequent developments thus called for amendment of the writ petition so as to have effectual and complete adjudication of the total controversy.
19. The learned ‑ counsel in support of his contention that in the circumstances of the case amendments should be allowed relied on Popat Ram and another v. Khushi Ram and others A I R 1937 Lah. 295, Rati Ram and others v. Tirkha and others A I R 1927 Lah. 723 and Purna Chandra Sutradhar and another v. Mt. Saburi Bewa and others A I R 1932 Cal. 87.
20: On the‑ contrary, the learned counsel for respondent No. 3 con tended that the order of the Government which is sought to be challenged through an amendment in the writ petition gives new cause to the petitioner distinct from the previous and as such no amendment could be allowed. He cited Gordhandas and another v. Firm of Gokal Khataoo and another A I R 1926 Sind 264 and Muhammad Suleman and another v. Javed Iqbal and others P L D 1982 S C (A J & K) 64.
The learned counsel for respondent No. 3 also contended that the application of the petitioner for amendment has been belatedly made and he has therefore, disentitled himself from seeking any relief.
21. ‑ Having given my anxious consideration to the above contentions I am of the view that the amendments sought for merit to be allowed.
22. The principle governing the subject of amendments in pleadings is well settled that any change in facts or law that supervene the institution of legal proceedings shall be taken into consideration by the Courts who may also mould the relief to be granted keeping in view all the said changes. This salutary principle is intended to avoid multiplicity of pro ceedings and to shorten litigation. In this connection reference may usefully be made to Muhammad Ayub and another v. Muhammad Yaqoob and another P L D 1975 Lah. 445 Lachmeshwar Prasad Shukui and others v. Keshwar Lal Chaudhuri and others A I R 1941 F C 5: Sultan Ahmad and another v. Sdhu and others1969 S C M R 277. Considering that the amendments in question are calculated to implement the above principle, these are well warranted in law and the time factor in the attendant circumstances of the case can also not stand in the way of allowing them. Keramat Ali and another v. Muhammad Yunus Haji and others P L D‑ 1963 S. C 191.
23. It may also be pertinently observed that an alteration in the relief claimed, as a general rule, would not change the character of the proceedings, especially when the relief sought for has flown from an event that has crept in during the pendency of a proceeding.
24. It may also be pointed out that the authorities cited on behalf of the respondent are not helpful to his case. In fact the principles enunciated therein go to support the allowing of amendments.
25. In the result, the application for amendments is allowed and the amendment and addition sought for in the relief clause of the main petition shall be read as part thereof.
26. Coming, now, to the writ petition, the learned counsel for the contesting respondent No. 3 raised the following preliminary objections
(i) That the petitioner has no Court standi to impugn the proceedings taken by the Public Service Commission as also the consequent recommendations made by it regarding the post in question ;
(ii) that the petitioner is not an aggrieved person within the meaning of Article 9 of the Provisional Constitution Order or Article 199 of the Constitution of the Islamic Republic of Pakistan in so far as recommendation of respondent No. 3 is concerned as no person has a vested right in asking to flow a particular procedure ; and
(iii) that the writ petition as originally presented is not competent inasmuch as the recommendation of the Public Service Commission (respondent No. 2) is only advisory.
Reliance in support of the above preliminary objections was placed by the learned counsel for respondent No. 3 on Sohrab Butt v. Government of Punjab P L D 1982 Lah. 42, Dr. Habibur Rehman v. The W. P. Public Service Commis sion, Lahore and 4 others P L D 1973 S C 144 and Idan Ahmad Khurram v. Government of Pakistan and others P L D 1980 S C 153 (with two other connected petitions).
26. The learned counsel for the petitioner met the preliminary objec tions as under
(i) Rule 16 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, .1974 framed by the Governor of the Punjab in exercise of the powers conferred on hint by section 23 of the Punjab Civil Servants Act, 1974 provides that the recommendation of the Commission is statutory and it is obligatory on the recruiting Department that an initial appointment to the posts in Grade 16 and above shall be made on the basis of examination or test con ducted by the Commission. Now, the Punjab Public Service Commission functions under the Punjab Public Service Commission Ordinance, 1978, and section 7 of this Ordinance gives the functions of the Commission, which inter alia, are to conduct tests, examinations or interviews for selection of suitable persons for appointment to Civil Service of the Punjab and posts connected with the affairs of the Province in Grade 16 and above and the. word "appointment" has been explained therein as initial appoint ment. The recommendation of the Commission, therefore, it was urged, is statutory and would be open to review by this Court in exercise of its powers under Article 9 of the Provisional Constitu tion Order, 1981 read with Article 199 of the Constitution of the Islamic Republic of Pakistan. It was added by him that the petitioner being a candidate for the post in dispute for which a recommendation has been made by the Public Service Commission in violation of the statutory rules governing the subject has, there fore, a positive locus stand to impugn the actions of the Public Service Commission culminating in the recommendation of respon dent No. 3. In support of the contention that the recommenda tions of the Public Service Commission are open to challenge before this Court in its constitutional jurisdiction, the learned counsel placed reliance on Muhammad Zaman Khan v. Government of the Punjab etc. 1981. P L C (C. S.) 434 and Dr. Umar All v. North‑West Frontier Province and two others N L R 1980 S Pesh. 111.
(ii) the petitioner being not only a candidate contesting for the post in question but also being in service as a Physiotherapist in Grade 18 initially on ad hoc basis and thereafter on contract basis had a tangible interest in the matter of interviews by the Public Service Commission,, the recommendations made by it and the consequent appointment in pursuance of the recommendations of the Public Service Commission, and, thus, is a person "aggrieved" within the meaning of Article 9 of the Provisional Constitution Order, 1981.
In support of his above contention the learned counsel relied on Mian Fazal Din v. Lahore Improvement Trust P L D 1969 S C 223 , Messrs S. M. Ilyas and Sons Ltd. v. Monopoly Control Authority Islamabad another P L D 1976 Lab. 834 Dr. Habibur Rehman v. W. P. Public Service Commission, Lahore and four others P L D 1973 S C 144 and 1qan Ahmad Khurram v. Government of Pakistan and others P L D 1980 S C 153.
(iii) As regards preliminary objection (ii) raised on behalf of respondent No. 3 the learned counsel for the petitioner submitted that the impugned recommendation of the Public Service Commission is statutory, and thus open to question in the constitutional juris diction of this Court if it be violative of .law. He submitted that the recommendation in fact, is of a binding character and no appointment could be made to any post in Grade 16 and above in the Province unless the Public Service Commission had been consulted and its recommendation obtained. He referred to the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 in support of the above contention and also pressed into service Rule 20 of the Punjab Government Rules of Business, 1974, which provides that the advice of the Public Service Com mission shall ordinarily be accepted by the Department in all matters where it is obligatory to consult the Commission under any law or rules or regulations for the time being in force. He further argued that if the Public Service Commission while making its recommendation ignores the very basis of its jurisdiction to invite applications and takes into consideration applications of such persons who are not even eligible to apply, its action of entertaining such applications would obviously be without jurisdiction and being statutory body functioning m connection with the affairs of the Province would render its actions of above nature open to question before this Court. The learned counsel also argued that the Public Service Commission in the case in hand not only enter tained the application of respondent No. 3 but also made recom mendation of his appointment in complete disregard of the rules prescribing the qualifications for the post in question.
27. Since preliminary objections (i) and (ii) are inter‑connected, I propose to deal with them conjointly.
28. The basic consideration for determining the question of locus standi is whether the petitioner stands to gain an advantage in case the impugned order is quashed or whether he will suffer a detriment in case the order is upheld: Admittedly the petitioner is a candidate for the post in question and held the necessary qualifications as prescribed by the Punjab Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981 framed under section 23 of the Punjab Civil Servants Act, 1974 in that he is admittedly B. Sc. (Physiotherapy) Karachi, the educational qualification prescribed for the posts and also is possessed of the experience required under the Rules aforementioned. The petitioner, it is also con ceded, has been working as Physiotherapist initially on ad hoc basis and thereafter on contract basis in . the same Grade viz. 18 for the last about 10 years.
29. It is required of every functionary and body whether administrative or judicial or quasi‑administrative or quasi judicial to deal with all applicants before it fairly, justly and equitably and an applicant has a leg right to demand that such functionary or body should determine the matte in accordance with law governing the subject.
30. The Supreme Court of Pakistan in Fazal Din's case P L D 1960 S C 223 held as under, at page 231
"It is clear from the above that the right considered sufficient for main taining a proceeding of this nature is not necessarily a right in the strict juristic sense but it is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed or performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or the curtailment of a privilege or liberty or franchise.
"31. Again in Messrs S. M. Ilyas and Sons Ltd. v. Monopoly Control Authority, Islamabad and another P L D 1976 Lab. 834 it was observed as under, at page 840
"It is thus clear that if the impugned general order is struck down, the petitioners stand to gain. So they have a substantial interest in the matter and it is by now a fairly settled law that such a person is an aggrieved party within the meaning of Article 199 of the Constitution and as such has a locus standi to file and pursue a petition under the said Article."
32. Applying the above principles to the case in hand and in the context of the proceedings before the Public Service Commission and the order for appointment of respondent No. 3, it cannot be denied that the petitioner has a substantial interest in the matter and will stand to gain if the impugned order is struck down, especially when he claims to be fully qualified for appointment. This suffices to make him an aggrieved person within the meaning of Article 9 of the Provisional Constitution Order, 1981 and to equip him with locus standi to maintain the present petition.
33. I would now take up the preliminary objection as to the competency of this petition: 'there ought not to be any cavil also with the pro‑position that if there is disregard of law and rules by any functionary or body the actions of such functionary or body would be open to question in the constitutional jurisdiction of this Court.
34. In Dr. Habibur Ranman v. The W. P. Public Service Commission, Lahore and 4 others PLD.1973SC144 in which the recommendations of the Public Service Commission were challenged though the appeal was dismissed, it was nevertheless held that such recommendations which are in flagrant disregard of law and rules by statutory bodies and functionaries may be challenged before the superior Courts in their constitutional jurisdiction. The observations of the Supreme Court in the cited judgment appearing at page 159 are reproduced here under for facility of reference ‑.
"Yet it is clear that all statutory bodies arid functionaries are under an obligation to act in accordance with the law and relevant rules, arid a deliberate or flagrant disregard thereof would render their acts without lawful authority so as to attract the power of judicial review vesting in the superior Courts. In such cases it tray be possible to take the view that an illegality in procedure would vitiate the advice tendered by the Public Service Commission to the Govern ment in. matters of recruitment and discipline, etc. and accordingly an appropriate writ might lie directing the Public Service Commission, to act according to law and the relevant rules in formulating its recommendations and advice, or directing the Government not to act on advice which stands vitiated by the adoption of illegal pro cedures or deviations from the prescribed rules."
35. In the earlier paragraph of the cited judgment it has also been observed as ,under
"Yet another aspect of the matter may also be noticed, viz. that the recommendations of the Public Service Commission being only advisory tat nature acid it being open to the appointing authority under Article 188 of the Constitution not to accept its advice, it is difficult to see how a petition of this nature can be maintained. The grievance of the candidate would arise only when the Government has made an appointment in contravention of the rules."
36. In the case in hand, even if it be assumed that the writ petition may not have been maintainable only as against the recommendations of the Public Service Commission, it has in any case on the basis of the authority mentioned above which was cited by the learned counsel for respondent No. 3 himself, become maintainable in view of the fact that the recommen dation of the Public Service Commission which has been challenged as illegal on the premises that it is in disregard of Rules has materialized into an appointment on the basis of the said recommendation. '
37. The upshot of the above discussion is that all the preliminary objections raised on behalf of respondent No. 3 .have no force and are, thus, overruled.
38. On the merits of the case, the learned counsel for the petitioner contended.
First that the basic educational qualification prescribed for the post in question by the rules is B. Sc. (Physiotherapy). University of
Karachi, or equivalent qualification and the other qualifications as to experience etc. have to follow which would mean that unless a candi date possesses the basic educational qualification, his application for the post could not be even entertained.
secondly, that the use of the word "and" at the end of the prescribed educational qualifications and thereafter giving the detail of the experience required clearly shows that the educational qualifications and the experience as prescribed have to co‑exist in a candidate before he could be considered eligible for the post or for that matter it is a pre‑requisite for application and for entertainment of applications for the post in question ,''
thirdly, that the Public Service Commission having beers given the mandate to select a candidate for the post in question had to act within the sphere of its jurisdiction, i. e. in accord with the rules prescribed for the selection of candidates as regards their qualifica tions of education, experience, etc. and that if the Public Service Commission acts beyond the scope of the rules its action could be interfered with by this Court in exercise of its constitutional jurisdic tion ; and
lastly, that the Government having itself first reported to this court that respondent No. 3 did not possess the requisite qualifications for the post in question acted mala fide and with ulterior motives in accepting the recommendations of the Public Service Commission and in offering the post in question to respondent No. 3 who is not possessed of the requisite qualifications and that the action of the Government being also contrary to the rules is open to question before this Court.
39. On the other hand, the learned counsel for respondent No. 3 submitted that the only question which requires determination is the interpretation of the rule laying down the qualifications for the post in question. He submitted that the word "and" used at the end of the educational qualifications has to be read as "or" far the purposes of diploma holders. He wanted to read the rule so far as a diploma‑holder is concerned in isolation from the first part of the rule. The learned counsel' relying on Fazul Elnhi Ejnz and 22 others v. Government of Punjab and 13 others P L D 1977 Lah. 549 submitted that the interpretation of the rules has to be made in a manner of generality so as to be a capable of application to a large number of persons and not to limit the scope of the applicants. In next submitted that the rule should be read so as to make it applicable to the following three categories of candidates :"
(l) B. Sc. (Physiotherapy) Karachi with 5 years experience.
(ii) educational qualifications equivalent to B. Sc. (Physiotherapy) Karachi with 5 years' experience, and
(iii) diploma in Physiotherapy with 10 years experience.
40. The learned Assistant Advocate‑General as regards the merits of the case submitted that no doubt the Government had in its para‑wise com ments submitted that respondent No. 3 did not possess the requisite basic qualifications and that the equivalence of B. Sc. (Physiotherapy) Karachi could only be determined by the said University, the Government now is of the view that the respondent is qualified for the post in question. He also submitted that in that fact the Government would be bound by the interpretation that may ultimately be placed on the rule by this Court.
41. In reply the learned counsel for the petitioner contended that there is no justification for reading the word "and" as "or" for the pur poses of the rule in question and that the Government's change of stand shows its ulterior motives and mala fides, and, further that the change in the stand of the Government being based on letter No. WP‑ 115/81/LE dated 12th December, 1981 issued in pursuance of a meeting attended by the Secretary, Punjab Public Service Commission, Additional Secretary (Regn.) SGA&I Department, and Deputy Secretary (Administration) Health Department by itself shows the hollowness of the stand of the Government inasmuch as the contents of the aforementioned letter (para. 7) also shows that the interpretation by which respondent No. 3 is being held eligible is a distortion and that the correct interpretation of the rule is what the peti tioner has submitted in this regard.
42. The only point falling for determination in this case, as has also been urged by all the concerned parties, is the interpretation of the rule which lays down the qualifications for the post in question. The rule has been reproduced in para 2 above and need not be reproduced again. From the plain language employed in clauses (a) and (b) of item No. 14 under the head "Health Miscellaneous" of the Schedule attached to' the Punjab Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981, which relates to the post of a Physiotherapist in Grade 18, it clearly emerges that the said clauses deal with the subjects respectively of "qualifications" and "experience'". That is to say, subject‑wise, the clauses are mutually exclusive. Generally speaking, when a provision is made on a subject it is to be treated as exhaustive of the subject dealt with. F Thus, there is no reason to supposes that clause (a) and (b) ibid are over lapping. That being so, it would be wrong to import considerations flowing from clause (6) when construing clause (a) or vice versa. Therefore, when the question is whether a person is possessed of the requisite qualifica tions in a given case, clause (n) above is to be looked at uninfluenced by anything contained in clause (b). Applying that criterion to the instant case the conclusion is irresistible that respondent No. 3 is not possessed of the requisite qualifications and nothing contained in clause (b) can operate to detract from the validity of the said conclusion.
43. It may also be observed that it has been rightly pointed out by the learned counsel for the petitioner that even the letter on the basis of which the Government has changed its earlier stand categorically taken in the para‑wise comments that respondent No. 3 does not possess the basic educa tional qualifications by now urging through the learned Assistant Advocate General that he is possessed of the qualifications for the post in question itself indicates that the rule has been distortedly interpreted and the words However, in the prevailing circumstance‑‑ ‑still the deficiency of the latter has been made up with experience‑‑‑" occurring in para. 7 shows the motive behind the changes of Government stand.
44. Yet another aspect of the matter which is conceded at all ends is that respondent No. 3 does not possess the basic educational qualification of B. Se. (Physiotherapy), Karachi, and that he is also not held by the appropriate authority as holder of equivalent qualifications. Now, in the light of the interpretation placed by me on the relevant rule it has become manifest that to be eligible for the post in question one has to have either of the following qualifications
(i) B. Se. (Physiotherapy) Karachi with 5 years' experience ;
(i) qualification equivalent to that of B. Se. (Physiotherapy) Karachi as determined by the appropriate authority with 5 years' experience and
(iii) B. Sc. (Physiotherapy) Karachi or holder of equivalent qualification, with 10 years' experience after diploma.
45. The question that may now arise for determination is as to the necessity of including candidates of category (iii). To me it appears that it was intended to give chance to such persons who had 10 years' experience after diploma but had attained the qualification of B. Sc. (Physiotherapy) Karachi or an equivalent qualification subsequently and were not posses of experience of five years after attaining the graduation or equivalent qualification.
46. My view that the basic educational qualification for the post question has got to be graduation in Physiotherapy from Karachi o equivalent qualification as determined by the appropriate authority find further support from the fact that even for a post of a lower grade under the same rules, i.e of Assistant Physiotherapist, Grade 16 which appears a item No. 44 of the Schedule aforementioned, it is necessary that he should either a B. Sc. (Physiotherapy) or a holder of equivalent qualification from recognized institute. It cannot therefore, lie envisaged with reasonability that though for a lower post the educational qualification is B. Sc. (Physio therapy) for a higher post it could be a diploma.
47. Having held that the rule prescribes the holding of the basic ,educational qualification of B. Sc. (Physiotherapy) Karachi or a qualification competently held to be equivalent of B. Sc. (Physiotherapy) Karachi and that the use of the' word "and" at the end of the educational qualification makes the holding of experience as prescribed to co‑exist with the basic educational qualification, what is left to be seen is whether the Public Service Commission acted in accord with its charter in considering respondent No. 3 as eligible for the post.
48. The Punjab Health Department (General, Specialists and Miscel laneous Posts) Service Rules, 1981 have to be read in conjunction with the requirements of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. Rule 3 of the above later rules requires that appoint ments to posts shall be made by promotion, transfer or initial requirement as may be prescribed by the Government in relation to the posts m a grade from time to time and from amongst such persons possessing such qualifi cations and such other conditions as may be prescribed by the Government from time to time. Now rules 16 and 18 of the Rules which govern the initial appointment as is the case in hand, lay down that initial appointment to the posts in Grade 16 and above shall be made on the basis of examina tion or test conducted by the Commission and that a candidate for initial appointment to a post must possess the prescribed educational qualifi cations and experience and age limit as laid down for the post except as provided in the rules framed for the purpose of relaxation of age limit. The obvious inference that flows from the above is that a person if he ill, applying for a post must possess the basic educational qualifications.
49. Section 7 of the Punjab Public service Commission Ordinance, 1978 gives the functions of the Commission, which inter alia, are to conduct tests, examinations or interviews for selection of suitable persons for appointment to civil services of the Punjab and posts connected with the affairs of the province in Grade16 and above or equivalent posts or such other posts as may be prescribed. The words suitable , according to chambers Dictionary, 1973 Edition, means to fall in with requirement . That being so the jurisdiction of the Public services Commission is to conducted tests, examination or interviews for selection of such persons who fall on with requirement and the requirement according to the rules mentioned above viz. Punjab Health Department (General, Specialists and Miscellaneous posts) services Rules is the possessing of educational of B.SC (Physiotherapy) Karachi or equivalent thereof as determined by the competent authority. The conduct of examination or interview for selection of respondent No3 itself was therefore, beyond the domain of respondent No2 and consequently its recommendation also stands vitiated.
50. Adverting now, to the act of the Govern men3, respondent No. 1, suffice it to say, being based on a vitiated recommendation also has to fail alongwith The additional factor which vitiates the action of the Govern ment in issuing the impugned letter of offer of appointment to respondent No. 3 against the post in question is that the Government itself has cats‑, gnomically stated that the said respondent No. 3 does not possess the required J basic educational qualification. The change of view in pursuance of ,a meeting referred to above in this judgment is obviously misconceived and Is based on an erroneous interpretation arrived at in disregard of the settled and well‑known principles governing interpretation of law and the rules.
51. In view of the foregoing discussion, accepting this writ petition, I declare that the impugned recommendations of the Public Service Com mission and the offer of appointment pursuant thereto made to respondent No. 3 by means of letter dated 28th December. 1981 being in clear disregard of the relevant rules are without lawful authority and of no legal effect.
There will, however, be no order as to costs.
K. M. A. Petition accepted.
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