WIQAR AHMAD, J. Petitioner has contended in his writ petition that he had been appointed as Assistant Professor Oral Pathology on adhoc basis in Saidu College of Dentistry Saidu Sharif Swat vide appointment order dated 10.06.2021. On 24.03.2021, the Khyber Pakhtunkhwa Public Service Commission (hereinafter referred to as "KPPSC" ) had advertised certain posts including the post of Assistant Professor Oral Pathology (BPS-18) vide Advertisement No. 03/2021. Petitioner having the requisite qualification had applied for the subject post by following all the formalities. He has also contended that Pakistan Medical and Dental Council (hereinafter referred to as "PMDC" ) was the relevant authority for recognizing basic qualification of candidates but after its abolition, Pakistan Medical Commission (hereinafter referred to as "PMC" ) had been constituted. In second meeting of the PMC, it was decided that PMC would recognize clinical qualification of a candidate while academic qualifications would be recognized by Higher Education Commission (hereinafter referred to as "HEC" ). He further contended in his writ petition that he was declared ineligible by the respondents despite having requisite qualification. For redressal of his grievance, petitioner approached the respondents several times but to no avail. He thereafter filed the instant constitutional petition with the following prayer; "It is therefore, respectfully prayed that on acceptance of the instant writ petition, the respondents may be directed to remove all sort of anomalies from their relevant rules before the interview of the posts of Assistant Professor Oral Pathology , set out on serial number 34 of the advertisement.
Any other relief which this Honorable Court deems fit may also be granted."
2. Comments were called from the respondents, which were accordingly submitted. It was contended in comments of respondent No. 2 that PMC does not issue any experience certificates for faculty promotions and experience. It was also contended therein that in second meeting of PMC held on 16.10.2020, it had been decided that only clinical qualifications would be endorsed on a practitioners' license. In comments of respondents No. 1, 3 & 5, it was contended that as per service rules, experience of petitioner was less than the prescribed 07 years after acquiring BDS degree. It was also contended therein that degree of M.Phil Oral Pathology of the petitioner had not been recognized by the PMDC.
3. Arguments heard and record perused.
4. Perusal of record reveals that petitioner had applied for appointment on the post of Assistant Professor Oral Pathology in BPS-18 in Saidu College of Dentistry Said Sharif, Swat. Applications for the post had been invited vide a proclamation published online on 24.03.2021, wherein the following qualifications had been required for the post; "Qualification: a) MDS(Pak)/M.Phil or equivalent Postgraduate qualification recognized by the Council in the respective basic subjects or MDS(Pak)/M.Phil (in allied clinical subjects); or b) Postgraduate Minor Diploma in the respective subject recognized by the Council with three years teaching experience as Lecturer/De monstrator in the Dental Teaching Institution before or after Postgraduate qualifications; or c) BDS(Pak) or equivalent qualification with seven years teaching experience in the relevant basic dental subjects or ten years teaching experience as such in clinical and dental subjects."
Petitioner was having qualification of M.Phil in Oral Pathology beside having a Bachelor Degree in Dental Sciences. The core dispute in instant petition relates to verification of degree of M.Phil from PMDC. After PMDC was abolished and PMC was constituted, a decision was taken in second meeting of PMC that it would recognize clinical qualifications of a candidate and that academic qualifications would be recognized by the HEC. Relevant excerpt of the decision taken in second meeting of PMC are reproduced hereunder for ready reference; "As per law and the policy , only clinic al qualifications of licensed practitioners are to be endorsed on a practitioner's license in the future. For any academic qualification to be verified, the same should be verified from HEC or the granting authority as the case may be."
5. M.Phil degree of the petitioner was not being accepted by KPPSC for only reason that it had not been recognized by PMDC or PMC. Comments of PMC have also been called, wherein the above-reproduced decision of PMC has been mentioned as well as reproduced in para-4 thereof. KPPSC has stated in para-3 of their comments that petitioner had not been eligible for the post as his qualification i.e. M.Phil in Oral Pathology had not been recognized by PMDC. Learned Asst:A.G while appearing on behalf of the respondents also reiterated same stance that as service rules of the respective department had not been amended, therefore they were bound by said rules and could not entertain any plea in derogation of said rules. When PMDC stands dissolved, then requirement of its recognition in the rules cannot be given effect. Here decision of KPPSC in disqualifying the petitioner has really been illogical and unreasonable. In the case of Associated Provincial Picture Houses Ltd. v.
Wednesbury Corporation [(1948) 1 KB 223], the principle of irrationality or inherent unreasonableness had first been enunciated in British jurisdiction. It was observed in the judgment that it might be possible to say that although the local authority had acted within four corners of law yet, they had nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it, in which case Court could interfere in the administrative decision.
6. In the case of S.S. Marinda Ltd. Vs. The Chief Commissioners Karachi and another reported as PLD 1959 Supreme Court (Pak.) 134, the august Supreme Court of Pakistan had quoted with approval judgment in Wednesbury case, while observing that an authority having a discretion could not be allowed to act unreasonably or absurdly . Relevant parts of observations of the august Court are reproduced hereunder for ready reference; "This, however , does not mean that the exercise of discretion by the Collector or Commissioner can be arbitrary and fanciful and that if it be so Courts cannot interfere. The following observations of Lord Green, M. R. in Associated Provincial Picture Houses Ltd., v. Wednesbury Corporatio n ((1948) 1 K B 223 at pp. 228, 229 and 233.) with which I with respect agree are instructive as to the scope of interferenc e by Courts with the exercise by the executive of the discretion vested in them by the legislature: When an executive discretion is entrus ted by Parliament to a body such as the local authority in this case, what appears to be an exercise of that discretion can only be challenged in the Courts in a strictly limited class of case. As I have said, it must always be remembered that the Court is not a Court of appeal. When discretion of this kind is granted the law recognizes certain principles upon which that discretion must be exercised, but within the four corners of those principles the discretion, in my opinion, is an absolute one and cannot be questioned in any Court of law. What then are those principles, they are well understood.
They are principles which the Court looks to in considering any question of discretion of this kind. The exercise of such a discretion must be a real exercise of the discretion. If, in the statute conferring the discretion, there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters.
Conversely , if the nature of the subject-matter and the general interpretation of the Act make it clear that certain matters would not be germane to the matter in question, the authority must disregard those irrelevant collateral matters.
It is true the discretion must be exercised reasonably . Now what does that mean? Lawyers familiar with the phraseology commonly used in relation to exercise of statutory discretion often use the word 'unreasonable' in a rather comprehensive sense. It has frequently been used and is frequently used as a general description of the things that must not be done. For instance, a person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attent ion to the matters which he is bound to consider . He must exclude from his consideration matters which are irrelevant to what lit has to consider . If he does not obey those rules, he may truly be said, and often is said, to be acting 'unreasonably'. Similarly , there may be something so absurd that no sensible person could ever dream that it lay within the powers of the authorit y. Warrington, L. J. in Short v. Poole Corporation ({1926) Ch. 66, 90, 91), gave the example of the red-haired teacher , dismissed because she had red hair. That is unreasonable in one sense. In another sense it is taking into consideration extraneous matters. It is so unreasonable that it might almost be described as being done in bad faith; and, in fact, all these things run into one another .
The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely , have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority , it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider , they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the Court can interfere. The power of the Court to interfere in each case, is not as an appellate authority to override a decision of the local authority , but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them."
In the case of The Montgomery Flour And General Mills Ltd., Montgomery vs. the Director , Food Purchases, West Pakistan and another reported as PLD 1957 (W .P.) Lahore 914 , Hon'ble Lahore High Court had observed; "It should be remembered that no discretion vested in an executive officer is an absolute and arbitrary discretion. The discretion is vested in him for a public purpose and must be exercised for the attainment of that purpose. Even though there be no express words in the relevant legal provision to that effect, the discretion is always circumscribed by the scope and object of the law that creates it and has at the same time to be exercised justly , fairly , and reasonably . Every officer who passes an order in a matter of discretion should ask himself the question: What is the order I should pass if I were acting justly , fairly and reasonably? If the order that he passes is not in accordance with the answe r which lie would himself give to this question, he exceeds his jurisdiction and abuses his powers. The answer to the question must be his own for the discretion is his and not that of the Court but his action must correspond to his own answer to the question.
Were we of the opinion that the Sugar and Sugar Products Control Order does grant an absolute and arbitrary discretion to the officer empowered to grant or withhold sugar as be pleases we would pronounce it void on account of its inconsistency with Article 11 of the Constitution of Pakistan, which confers on all citizens the right to acquire property and to dispose of property subject only to reason able restrictions in the public interest. An arbitrary discretion to withhold quota is not a reasonable restriction. But there is no reason why we should thus interpret this provision."
7. Here in the case in hand also, we find that decision of the KPPSC requiring a recognition from PMDC has totally been illogical and unreasonable. PMC has also refused to recognize academic qualification and have limited its purview to recognition of the clinical qualifications only. It is not denied that qualification of the petitioner of M.Phil in Oral Pathology had been recognized from HEC. As such, petitioner has made out a case for interference of this Court in exercise of its constitutional jurisdiction.
8. Accordingly , the instant writ petition is allowed to the effect that petitioner shall be treated to be having a valid qualification of M.Phil in Oral Pathology , which qualification shall be treated as duly recognized by the governing body and valid for all intents and purpo ses. The act of KPPSC declaring the petitioner disqualified due to non recognition of the degree in Oral Pathology , is declared to have been made without lawful authority and in unlawful manner . Rest of the matters relating to experience and other eligibilities shall be determined by KPPSC itself.
9. The writ petition in hand is allowed in above terms.