1. ' JAWAD HASSAN, J.--- Through the instant constitutional petition filed under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioners has made the following prayers: "Under the circumstances, it is respectfully prayed that Respondents Nos.1 to 3 be restrained from employing the Respondent No,4 against the vacant post of Physiotherapist (BPS-17) advertised in the newspaper and keeping in view the educational qualification and 9 years experience of the Petitioner, they be further ordered to appoint and post the Petitioner in this vacant post of Physiotherapist in (BPS-17). Moreover, the advertisement dated 05.09.2016 be cancelled and the Respondents Nos. 1 and 2 be ordered to get publish the same after removing the tag of Musculo skeletal Disorder Patients from the basic qualification of a Physiotherapist."
2. The facts revealed from the petition are that in pursuance of advertisement in the year 2007, the Petitioner applied and was appointed on 26.10.2007 as Physiotherapists (BPS-17) but later on the nomenclature of Physiotherapists was changed into Nursing Sister and she was considered to be appointed as Nursing Sister. The Petitioner moved different applications before the Respondents for the change of her designation from Nursing Sister to Physiotherapist against a vacant post but in vain. The Petitioner applied for the post of Physiotherapists (Specialized in Musculoskeletal Disorder Patients) which was advertised on 05.09.2016 in the newspaper but she has been deprived of the same. The Petitioner in this regard has also submitted an application dated 15.09.2016 to the Respondent No,1 which is still pending. Hence, the instant petition.
2. 3.Report and parawise comments have been filed on behalf of the Respondents vehemently denying the allegations levelled in the petition and praying for dismissal of the same.
3. 4.Learned counsel for the Petitioner contended that the Petitioner was fully qualified for the post advertised but she has been deliberately deprived of the same as to accommodate the Respondent No,4, as such mala fide on the part. of the Respondents is explicit; that the advertisement has been published in violation of the Punjab Employees Social Security Institution (Revised Service) Regulations, 2008 (the "Regulations") as the required qualification for the said post is provided as B. Sc. (Physiotherapy) or equivalent field duly recognized by the HEC with a minimum of 3 years service in the relevant field; that in the past the vacant posts with the Respondent No,1 are filled through the Punjab Public Service Commission, Lahore but the instant advertisement to the extent of one post for the period of five years is being filled by the Respondent No,1 itself just to accommodate the Respondent No,4, as such the impugned advertisement is liable to be cancelled.
4. 5.Learned Law Officer vehemently contested the arguments advanced by the learned counsel for the Petitioner and prayed for dismissal of the instant petition on the grounds that the Petitioner has not come to this Court with clean hands as on the one side she challenged the advertisement against the said post but at the same time she has also applied for the same post; that the appointment on the post of Physiotherapist will be made after adopting due process; that the instant petition has been filed on the basis of misrepresentation of facts and misinterpretation of law, as such liable to be dismissed. Learned Law Officer has placed reliance on the case titled Muhammad Gul v. Government of Balochistan through Secretary Technical and Higher Education, Quetta and 2 others (2016 PLC (C.S.) 34), Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Muhammad Javed and others (2015 SCMR 269), Saima v. Government of Balochistan through Secretary Education Department and another (2014 PLC (C. S.) 579) and Government of Punjab through Secretary S& GAD, Lahore and others v. Zafar Maqbool Khan and others (2012 SCMR 686).
5. 6.Arguments heard and record perused.
6. 7.The prayer of the Petitioner is three fold, firstly that the Respondents Nos.1 to 3 be restrained from appointing the Respondent No,4 against the vacant post of Physiotherapist (BPS-17), secondly that keeping in view the educational qualification and 9 years experience of the Petitioner, she be appointed on the said post and thirdly that the advertisement dated 05.09.2016 be cancelled and the post may be advertised after removing the tag of Musculoskeletal Disorder Patients from the basic qualification of a Physiotherapist. While adverting to the first clause of the prayer, it is noticed that parawise comments filed on behalf of the Respondents clearly depicts that Governing Body, the Punjab Employees Social Security Institution (the "PESSI") is a competent forum to make regulations and decide affairs for the smooth sailing of the Institution and creation of post was made after adopting all legal process i,e, the Institution in anticipation of approval of Governing A Body sought the concurrence of Ministry for Labour/ Chairman' Governing Body for recruitment of the said post through the PESSI Selection Board duly approved by the Government. The comments further reveals that the appointment against the post in question was made purely on merit in a transparent manner on the recommendations of the Selection Board and the Petitioner cannot have the vested right to be appointed on the seat against which she does not fulfill the basic qualification. Reliance in this regard is placed on the case titled Muhammad Gul v. Government of Balochistan through Secretary Technical and Higher Education, Quetta and 2 others (2016 PLC (C.
7. S.) 34) wherein it was held as under: "'When suitable candidates were not available within the organization/department then Government/Employer after amending the rules could advertise the post. The Government/ Employer was empowered to stipulate the qualification for any vacant post keeping in view the urgency and exigency of the matter with suitable reason for choosing the best among the contestants through fresh recruitment."
8. 8.In view of above, the Respondents cannot be directed to refrain from appointing the Respondent No,4, if on merit and as per the requirements.
9. 9.While dealing with the second clause of the prayer it is observed that the advertisement clearly depicts the nomenclature of the post is "Physiotherapist (Specialized in Musculoskeletal Disorder Patients) and basic qualification for the post is "B. Sc. (Physiotherapy) With T-DPT (Transitional Doctor of Physiotherapy)/DPT. Preference will be given to M. Phil (Musculoskeletal Physical Therapy) or equivalent qualification duly recognized by the HEC, Minimum of 03-years service/ professional experience in relevant field after graduation". The comments reveals that as the Respondent No,4 was having qualification of M. Phil in the relevant field/required qualification, therefore, was given preference as per advertisement whereas the Petitioner who was claiming more qualification qua the Respondent No,4 was found to be lack of any additional requisite qualification. Admittedly, the Petitioner applied for the said post and called for interview but could not be appointed being less qualified after the recommendations of the Selection Board. So far as the third clause of the prayer is concerned, in this regard it is observed that the Petitioner on the one hand has applied for the vacant post on the basis of said advertisement but on the other hand has challenged the validity of the same advertisement. She cannot be allowed to blow hot and cold at the same time. Reliance can be placed on the case titled Government of Khyber Pakhtunkhawa through Chief Secretary and others v. Muhammad Javed and others (2015 SCMR 269) wherein the Hon'ble. Supreme Court of Pakistan has held as follows: "That where talent, skill and capability is rewarded it provides opportunity to ambitious employees and if those amongst them who are better qualified receive a differential focus it benefits the department and the people of Pakistan, as all civil servants are there to serve the people. Similarly, if the bar to aspire to higher positions is raised it encourages and motivates employees to take ownership of their careers and personal development. Moreover, when higher educational qualification and talent is appreciated it makes for a more transparent system of advancement and may also help to retain talented individuals in an organization."
10. ' In the judgment supra, the Hon'ble Supreme Court of Pakistan has further held as under: 'That neither promotion nor the criteria set out to aspire for promotion can be categorized as a 'right' that could be justice able. In this regard reference may be made to Zafar lqbal v. Director, Secondary Education (2006 SCMR 1427), wherein we had held, that:-- "The Government is always empowered to change the promotion policy and the domain of the Government to prescribe the qualification for a particular post through amendment in the relevant rules, is not challenge able. This is also a settled law that notwithstanding fulfillment of the requirement qualification and other conditions contained in the rules, the promotion cannot be claimed as a vested right."
11. 10.Furthermore, the offer letter dated 26.10.2007 issued to the Petitioner explicitly reveals that she was offered appointed on the post of Nursing Sister Physiotherapy which she accepted and duly assumed the charge of the said post. Moreover, the application dated 28.04.2011 of the Petitioner was pertaining to change of her designation as Physiotherapist which was duly considered and dismissed by the competent authority being not covered under the Rules. From the above it is clear that the Petitioner on 15.09.2016 filed an application to the Respondent No,1 for the post of Physiotherapist along with application form. On 21.09.2016 the Petitioner received the letter for an interview on 23.09.2016 from the Respondent No,2 which she never disclosed to this Court. On 22.09.2016, when the entire recruitment process was stayed by this Court, her application is still pending and has not been decided due to the stay order of this Court, hence this petition is premature.
12. 11.In view of what has been discussed above and the judgments of the Hon'ble Supreme Court of Pakistan in Government of KPK and Muhammad Gul supra, the instant petition, being bereft of any force, is hereby dismissed.