SYED ARSHAD ALI, J.- Through the instant Writ Petition, Dr. Muhammad Munib the petitioner has invoked the Constitutional jurisdiction of this Court with the following prayer:- "It is therefore, humbly prayed that on acceptance of this writ petition to declare that the rejection of the petitioner to the post mention above by the respondent No. I is based on malafide without any reason is illegal without lawful authority and to direct respondent No. 1 to appoint petitioner against post of Assis tant Professor according to the given criteria without any discrimination and set aside notification of respondent No. 1 any other efficacious and equitable relief(s) as this Honorable Court may deem fit and proper under the circumstances of this writ petition.
2. It is averred in the petition by the petitioner that he is a Doctor by profession and performing his duty as Assistant Professor at Community Medicine Department Saidu Medical College, Swat in his own pay and scale. The respondent No. 1 i.e. the Khyber Pakhtunkhwa Public Service Commission through an advertisement bearing No. 02/2017 dated 22.03.2017 had advertised certain posts including the post of Assistant Professor Community Medicine at Saidu Medical College, Swat. The petitioner as well as the respondent No. 6 and other candidates had applied for the post of Assistant Professor which was lying vacant in Community Medicine at Saidu Medical College, Swat. The respondent No. 1 had conducted test for the said post which was passed by the present petitioner as well as the respondent No. 6. However, as per service rules the respondent No. 6 was not included in the merit list as he allegedly did not possess the required three years teaching experience. Against that the said respondent No. 6 had filed a Writ Petition bearing No. 808-M of 2017 before this Court for redressal of his grievance which was allowed with direction to the respondent No. 1 to issue call letter to the said respondent and include him in the process of appointment for the subject post. In compliance of this Court direction, the respondent No. 6 was included in the merit list and was called for interview along with the present petitioner.
However, when the respondent No. 6 was included in the merit list, then the present petitioner had filed an application before the respondent No. 1 for inquiry against the said respondent in respect of false, mis-representation and concealment of information. The said application filed by the petitioner was rejected and the respondent No. 6 being top on the merit list was recommended against the subject post.
3. Respondents No. 1 & 3 were put to notice who filed their para-wise comments and contested the writ petition. The respondent No. 1 in his comments has stated that the respondent No. 6 Dr. Naeemullah was initially rejected on the ground that he did not possess the required three years experience as per service rules but later he filed a Writ Petition bearing No. 808-M of 2017 before this Court which was allowed and as per direction given therein, the respondent No, 6 was called for interview and thereafter, he was recommended against the impugned post. Whereas, the respondent No. 3 in his comments has stated that the respondent No. 6 Dr. Naeemullah was the only candidate holding M.Phil. degree in the Community Medicines which was the basic qualification required for the impugned post and he has also been awarded gold medal, therefore he was recommended against the post of Assistant Professor Community Medicine in Saidu Medical College, Swat.
4. Arguments of learned counsel for the parties were heard and record of the case was perused with their able assistance.
5. For the post of Assistant Professor Community Medicine Saidu Medical College, Swat, the present petitioner as well as the respondent No. 6 were the only candidates. According to the advertisement, the qualifications for the impugned post are as follow:- i. MBBS (duration of 5 or 6 years) or equivalent medical qualification recognized by the PM & DC; ii. FCPS/Ph.D (duration of 4 years or qualification with other nomenclatures, in respective basic science subject of equivalent qualification recognized by the PM&DC; iii. M. Phil (duration of 2 years) or qualification with other nomenclature, in respective basic science subject or equivalent qualification in the respective specially recognized by PM&DC and three years teaching experience as Lecturer/Demonstrator in respective basic science subject duly certified by PM&DC in case of experience gained in private sector medical college.
6. Admittedly on merit the respondent No. 6 is higher than the present petitioner , however the petitioner has challenged the candidature of the respondent No. 6 on the following grounds:- i. That Dr. Bushra who was the member of the interview panel was closely related to the respondent No. 6, therefore under para 32 (2) of the Public Service Commission Khyber Pakhtunkhwa Regulations, 2003 she was not entitled to interview the respondent No. 6. The said para is reproduced as under: - "32(2): When a near relative of the Chairman or a Member , is being interviewed he shall not be present during the interview of such candidates."
He has also claimed that the said Dr. Bushra was the supervisor of the respondent No. 6 in his MPhil program. ii. That the respondent No. 6 had acquired his MPhil degree from KMU in the year 2015 while serving as Demonstrator at Saidu Medical College from 2013 to 2015 without obtaining any extra ordinary leave and received full pay & allowances during the above period of service which is against the section 7 (2) of the Khyber Pakhtunkhwa (Appointment, Deputation, Posting and Transfer of Teachers, Lecturers, Instructors And Doctors) Regulatory Act, 2011 (`The Act). iii. That the respondent No. 6 has obtained MPH degree in the same year from Abdul Wall Khan University Mardan in which he had obtained MPhil degree from KMU, therefore he could not obtained two degrees in one year as per policy/Notification of HEC bearing No. dual degree/ad- 1/qa/hec20151674.
7. Thus, we would address the aforesaid objections keeping in view the record and law on the subject. i. Although the petitioner has leveled the allegation that the said Dr. Bushra who was the member of the interview panel is the close relative of the respondent No. 6, however he did not file any evidence regarding the same. Even the said Dr. Bushra has not been made as party to this petition. This allegation was denied by the respondent No. 1 in his comments, however has frankly stated that the KPK Public Service Commission was not aware that Dr. Bushra was the course supervisor of the respondent No. 6 while he was pursuing his M.Phil program. In this regard, the petitioner had filed an application before the Chairman Khyber Pakhtunkhwa Public Service Commission on 19.01.2018 after the interview which was conducted on 10.01.2018. Since, there is nothing on record regarding the relation of Dr. Bushra with the respondent No. 6, hence this bald allegation is without any substance. As far as the fact that Dr. Bushra was the course supervisor of the respondent No. 6 in his MPhil program, it will not raise a presumption that she would have favored the respondent No. 6. Even otherwise, the Constitutional Court has no jurisdiction to determine the Factual controversy between the parties which otherwise required elaborated inquiry including recording of evidence. In this regard, reliance can be placed on 2000 SCMR 998 titled "Syed Asif Majeed & 5 others vs ADC. (C)/SC (L), Lahore & 15 others", wherein it has been held by the august Supreme Court of Pakistan that: "In addition thereto, it was rightly observed by the learned Judge of the Lahore High Court that the entire controversy revolved around questions of fact and needed an elaborate inquiry including recording of evidence, which exercise could not be undertaken in exercise of the Constitutional jurisdiction." ii. In support of the 2 objection, the petitioner has placed reliance on sections 7 & 8 of Act. For ready reference, the said sections are reproduced as under:-
7. Postgraduate Medical Education.--
(1) The Health Department, on the basis of objective need assessment and analysis, shall determine the intake number of Trainee Medical Officers (TMOs) in Postgraduate Medical Institute (PGMI) and Junior Registrars in Tertiary Care Hospitals every year . This stipulated number shall not exceed in any case.
(2) Any doctor selected or permitted for postgraduate medical training shall be treated on leave without pay and may be entitled only for stipend fixed by Government from time to time for such training.
(3) A doctor selected or permitted for postgraduate medical training shall provide surety bond prescribed by Government ensuring that upon completion of his studies for which he was initially selected, shall compulsorily serve for three years in the district of his domicile and in case of non- availability of a post in the district of domicile, he shall serve for three years in the rural area.
(4) For the purpose of sub-section (3), the doctor shall also provide guarantee of two government officers.
(5) In case of violation of sub-section (3), Government shall serve one month notice upon the doctor for resumption of duty , failing which the amount shall be recovered from him or from the guarantor , as the case may be.
8. Provisions relating to doctors apply to lecturers and instructors.--- The provisions relating to doctors in section 7 of this Act shall mutatis mutandis apply to lecturers and instructors.
Perusal of section 7 of the Act would show that the same procedure applies to admission in Postgraduate Medical Institute for undergoing the training of FCPS, whereas, in the present case, the respondent No. 6 was pursuing his studies for his M.Phil program. Hence, this objection is also misconceived. i i i . In regard to 3 objection, the petitioner has placed on record the relevant policy barring the candidate to obtain certain degrees simultaneously . The relevant para of the said policy is reproduced as under:- S.No. Degree I Degree II Policy Decision 2Bachelor/Master degree obtained in regular mode in the morning session in oneBachelor/Master degree obtained in regular mode in theDegrees with time clash are not allowed. nd rd University morning session in different University 3Bachelor/Master degree obtained in regular mode in the morning session in one UniversityBachelor/Master degree obtained in regular mode in the evening session in the same UniversityThis combination of degrees is allowed provided that: a) Admission requirements are met. b)Written permission is obtained from university before joining programs.
8. The close perusal of the said policy would slim\ that the same is not applicable to the case of respondent No. 6 because in KMU, he was pursuing his M.Phil program, whereas in Abdul Wali Khan University, he was pursuing his Master program. Hence, the above said restriction, if any is applicable only for simultaneously obtaining two Bachelor or Master Degrees. Even otherwise, the said policy is effective from fall semester 2015, whereas the respondent No. 6 had completed the course in the year 2015, therefore the said policy has not retrospective effect.
9. Be that as it may, the said degree awarded to the respondent No. 6 still holds the field, therefore has been validly considered for the impugned post as essentially the Khyber Pakhtunkhwa Public Service Commission had no mandate to annul any degree obtained by a candidate.
10. In this view of the matter, the objections raised by the present petitioner are misconceived and accordingly this petition having no merit is hereby dismissed.