' ABDUL SHAKURUL SALAM, J.-On the request of the Provincial Government respondent No. 2, the Public Service Commission, Lahore respondent No. 3 invited applications for appointment to the post of one temporary (likely to be made permanent), Physiotherapist in the Punjab Health Department in N. P. S. No. 18 with the following qualifications : "(a) B. Sc. (Physiotherapy) Karacki or equivalent qualification ; and
(b) 5 years' experience in the Speciality after B. Sc. (Physiotherapy) or 10 years' practical experience in the Speciality after diploma in Physiotherapy,"
' These were in accordance with Punjab Health Department (General, Specialists and Miscellaneous Posts) Service Rules, 1981. These appear at item No. 14 of the Schedule with the Rules. The appellant, respondent No. 1 and two others applied for the post. The Public Service Commission selected the appellant and sent his name and displayed the same on the Notice Board as its recommendee, on 20th October 1981. Respondent No. 1 instituted a Constitutional Petition W. P. No. 4100-S/1981 on 24- 8-1981 challenging the action of the Commission vide order, dated 26-8-1981, report and parawise comments were called for. The Provincial Government submitted its report and parawise comments on 16-9-1981 saying that the appellant "does not hold the basic qualification of B. Sc.
Physiotherapy as prescribed in the Service Rules, 1981. The recognition of qualification of this candidate as equivalent to B. Sc. Physiotherapy can only be given by the Equivalence Committee of Karachi University which is the only University in Pakistan which confers this Degree." However, it appears that the Provincial Government changed its view and issued a letter on 28-12-1981 offering the post to the appellant which, of course, he accepted. The respondent No. 1 coming to know of this, filed an. Application (C. M. No. 648/82) seeking amendment in the writ petition challenging the action of the Provincial Government to offer the post to the appellant. The application was contested by the appellant but the Assistant Advocate-General did not oppose. When the application alongwith the main Constitutional petition came up for hearing before the learned Single Judge, after bearing the learned counsel for the parties and refering to various precedents, the learred Single Judge came to the conclusion that in view of the supervening circumstance of the offer of the post, the amendment application deserved acceptance. Coming to the merits of the case after disposing of the preliminary objections raised on behalf of the appellant that the respondent No. 1, the writ petitioner had no locus stand', was not an 'aggrieved person' and that the writ petition originally presented was not competent because the recommendations of the Public Service Commission were only advisory, the learned Single Judge came to the conclusion that the interpretation of the relevant rule prescribing the qualifications afore-quoted required that a candidate must possess B. Sc. (Physiotherapy) Karachi or equivalent qualification and since the appellant did not possess such a degree or qualification, be could neither have been recommended by the Punjab Service Commission nor appointed by the Provincial Government.
Therefore, the writ petition was allowed vide order, dated 22-12-1982. Hence, this Intra-Court Appeal.
2. Learned counsel for the appellant contended that the respondent No. 1 had no locus standi to maintain the Constitutional petition for the reason that he had not been selected by the Public Service Commission and, therefore, he was not in competition with the appellant before the appointing authority. Nor, had he any right to the post to be an 'aggrieved person' to maintain the Constitutional petition. It is secondly contended that the Constitutional petition initially presented questioned the recommendation of the Public. Service Commission and such a petition was not, competent. The amendment by which the action of the Provincial Government in appointing the appellant was allowed, was not permissible because the amendment had brought about a new cause of action and such amendments are, of course, not allowed. Thirdly and more importantly that the reading of the rule prescribing the qualification is not in accordance with law, the entire field of jurisdiction of the authorities should have been taken into account before striking down their action punctuations are not considered as aid to construction, and the word 'and' in between
(a) and (b) should have been read as 'or'. He referred to various treaties and decisions like Maxwell, 10th Edition page 238, Crawford Statutory Construction Edition 1940, pages 322, 324, 332, 342, and 344, Bindras Statutory Construction. Second Edition 1957 pages 35, 37, 50, 56, Halsbury's Laws of England, Third Edition Vol. 36 pages 396, 398 and Rafiq Akhtar Chaudhary v. Azad Jammu & Kashmir (I) 1981 PLC 219 PLD 1966 SC 725 at 730 ; PL D 1971 SC 811 ; Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (2) ; PLD 1982 Lahore 42 and 1974 SCMR 510.
3. Learned counsel appearing for the respondent No. 1 submitted. Firstly, that the respondent had the locus standi to maintain the Constitutional petition and he relied upon Mian Fazal Din v. Lahore Improvement Trust, Lahore and another (3), PLD 1982 SC 308 and PLD 1968 SC 564. Learned counsel, then submitted that the basic educational qualification provided for is B. Sc.
(Physiotherapy) or equivalent qualification and undeniably the appellant does not possess B. Sc.
Degree, nor, does he possess any equivalent qualification as conceded to before the learned Single Judge. Further, the University of Karachi which grants B. Sc. Degree has rendered its opinion that the degree is by no means equivalent to the diploma course and obviously iris not so. Then, he referred to rule 18 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 wherein it is provided that "A candidate for initial appointment to a post must possess the prescribed educational qualifications and experience ", and pointed out that educational qualification and experience are two different kinds of requirement. He also referred to a decision of the Government of Punjab Health Department, dated 30.3-1974 whereby one post of Physiotherapist was created in B.V. Hospital, Babawalpur and another post of Assistant Physiotherapist in General Hospital, Lahore in Junior Class I scale, as different from the existing Class II post of Assistant Physiotherapist. The qualifications prescribed for Junior Class II post were "(I) B. Sc. (Physiotherapy) from recognised Institute and (II) three years' experience in the subject after graduation". Learned counsel for the respondent submitted that since 1974 the post in question was Class I and now forms part of Grade
18. Consequently, a degree of B. Sc. Is prerequisite for the appointment. From this the learned counsel contends that for initial appointment a candidate must possess both educational qualification as well as experience and in the present case prescribed educational qualification is B. Sc. Or equivalent qualification, none of which is possessed by the appellant.
4. At the fegend of the hearing C. M. 2407/33 was filed by one Iftikhar Ahmad Qureshi saying that he may be impleaded as a party to the Constitutional petition as well as the 1ntra-Court Appeal because he too was a candidate and had not been recommended by the Public Service Commission, nor, appointed by the Provincial Government and appointment of the appellant was illegal' which he had challenged through a civil suit.
(1) PLD 1982 SC (A J K) 124 (2) PLD 1773 S 1014
(3) PLD 1969 SC 223 Notice in this application was given to the parties. Learned counsel appearing for the appellant opposed the application by saying that since it transpired during the hearing that the respondent No. 1 was not even number two and therefore, had no locus standi to question the selection and appointment of the appellant, the respondent No. 1 has brought forward the applicant and this is a crude attempt and mala fide effort to thwart the appeal. The application merits dismissal for the reasons that it is palpably manoeuvred and the applicant knowing full well of the action taken by both the authorities did not choose to come to this Court to challenge the same in time. It is ordered accordingly.
5. Coming to the case of the contesting parties from the beginning, it ma be noticed that the respondent No. 1 was a competing candidate with the appellant but had not been recommended nor appointed notwithstanding that he held a degree which, according to him is the basic qualification forte appointment whereas the appellant had only a diploma. Therefore, it can not be said that he was not an 'aggrieved person' or had no locus stand' to maintain a Constitutional petition and in view of the law declared by the Supreme Court in Fazal Din's case I agree with respect with the learned Single Judge that the respondent No. 1 was an aggrieved person and had the requisite locus standi to maintain the Constitutional petition. As regards the competency of the Constitutional petition initially instituted, it is to be seen that it was directed against the recommendation of the Public Service Commission. Now it is true that the recommendations of the Public Service Commission are advisory in nature and should hardly furnish a ground for filing a Constitutional petition except in the eventualities as enunciated in Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others. However, in the case in hand, during the pendency of the petition the recommendations had been accepted by the Provincial Government and the appointment made. The respondent No. 1 applied for amendment of the Constitutional petition to challenge the later action. The amendment was allowed by the learned Single Judge for good reasons, if I may say so with respect, because it was essential that the controversy from the beginning to the end be considered and disposed of once for all. Therefore, no exception can be taken to the competency of the petition.
6. Coming to the crux of the controversy, the learned counsel for the appellant is quite right that the entire field of jurisdiction of the authorities has to be taken into account while judging the validity of their actions and further that punctuations like colons, comas, etc. May be of no help in construing legislative instruments, or, that word like 'and' or 'or' may inter-changed and that at all events it is the duty of the Court to find out and enforce the intention of the law-maker as expressed in the Statute or rules. So proceeding let us examine whether the appellant possessed the prescribed qualifications. For facility of reference, these. May be recapitulated as under :- "(a) B.Sc. (Physiotherapy) Karachi or equivalent qualification; and (b) 5 years' experience in the Speciality after B.Sc. (Physiotherapy) or 10 years' practical experience in the Speciality after diploma in Physiotherapy."
There were two points made by the learned counsel for the appellant; firstly, that under clause (a) it is the B. Sc. (Physiotherapy) Karachi of equivalent qualification either of which may be held by a candidate for the post. There is no doubt about that. It is, however, admitted that the appellant is not a B.Sc. (Physiotherapy) Karachi. The next question is as to whether he possesses equivalent qualification. Learned counsel for the appellant submitted that he did. The appellant obtained diploma in Physiotherapy from the Government School of Physiotherapy iinnah Post-Graduate Medical Centre, Karachi in ,1962, qualified in the Canadian Membership of Registration Examination, (M. C. P. A.) through the University of Alberta (Canada) in 1970, qualified for the State of New-Jersey (U. S. A.) R. P. T. In 1975 and has long experience of working as a Physiotherapist. Learned counsel for the respondent No. 1 has submitted, firstly, that the equivalent qualification is determined by the Equivalency Committee of the Karachi University and it had, on the asking of the Provincial Government during the pendency of the Constitutional petition, vide, its forwarding memo., dated 10-12-1931, enclosed a decision of Physiotherapy Jinnah Post-Graduate Medical Centre, Karachi dated 29.11-1981 "that Diploma in Physiotherapy from School of Physiotherapy, Karachi was a two years course after Matric. As such it cannot be considered to be equivalent to B.Sc." Secondly, the aforesaid qualifications were not taken into account by the Public Service Commission as equivalent to B.Sc. (Physiotherapy Karachi and the appellant was considered eligible on its own interpretation o the requisite qualification as would appear from its parawise comments under the heading Grounds that B. Sc. (Physiotherapy) plus 5 years' experienc after B. Sc. Or ten years' practical experience after diploma in Physiotherapy. Therefore, it was submitted by the learned counsel for the respondent No. 1 that no new case can now be built up by the learned counsel for the appellant to say that the appellant possessed equivalent qualification to the B. Sc. In view of the fact that the Karachi University which granted B. Sc. (Physiotherapy) has opined that its earlier diploma course was not equivalent to the present degree course and the Public Service Commission having not taken the appellant to possess equivalent qualification to the B. Sc. Degree as it would appear from its comment in para. 6 (iii), nor being this the case of the appellant before the learned Single Judge, it cannot be now set up that the appellant possessed the equivalent qualification to the B. Sc. (Physiotherapy) Karachi. Apparently he does not, because none of his qualifications carries the status of a degree granted by a University. The second point which the learned counsel for the appellant made and on which the case has revolved round is that since the appellant possesses ten years' practical experience in the Speciality after diploma in Physiotherapy, he is as qualified as a B. Sc. With five years' experience. For better appreciation of the arguments, the requisite qualifications may be repeated. These are as under :- "(a) B. Sc. (Physiotherapy) Karachi or equivalent qualification ; and (b) 5 years' experience in the Speciality after B. Sc. (Physiotherapy) or 10 years' practical experience in the Speciality after diploma in Physiotherapy."
' The learned counsel submitted that the rule be read as "(a) B. Sc., and (b) 5 years' experience...After B. Sc." Or 10 years' practical experience after diploma. In other words, he says : read 'a' and `11' together and when 'or' comes read it as an alternate of 'a' and 'b' put together. If that is done, it will come to that a candidate may have a B. Sc. Degree and five years' experience or, ten years' practical experience after diploma. This is specious but the], difficulty is that the qualifications are prescribed by clause-wise. Clause are provides for educational qualification like B. Sc. (Physiotherapy) or its equivalent qualification, and clause (b) provides for experience of either 5 years after B. Sc. Or 10 years after diploma. This is in accordance with rule 18 of the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974 which lays down that "A candidate for initial appointment to a post must possess the prescribed educational qualifications and experience..." Secondly, since 1974 the posts of Physiotherapist and Assistant Physiotherapist formed part in Junior Class I and qualification provided for was B.Sc. (Physiotherapy) from a recognised institution and three years' experience after graduation. It is 7 years' later that the appointment in question was being made. It cannot be presumed that for the present post which is in N. P. S. 18 comparable to previous Class I, the qualification would be reduced from a degree to a diploma. The learned Single Judge is quite right, if I may say so with respect, that clauses (a) and
(b) provide two different categories of qualifications. First in clause (a) is an academic qualification and the second in clause (b) is practical experience. The learned Single Judge also took into account that the post in question is in N. P. S. 18 and under the rules for a lower post! Of N.
P. S. 16 the minimum qualification prescribed is "B. Sc. (Physiotherapy) or the equivalent from a recognised Institute" and if for a junior post a degree is required so as it would be for a higher post.
The argument is, if I may say so with respect, unanswerable. On the filing of the petition when the report was called for, the Provincial Government in the. First instance stated in its report that the appellant "does not hold the basic qualification of B. Sc. (Physiotherapy) as prescribed in the service Rules, 1981. However, it changed its view and offered the post to the appellant. At the time of the hearing of the petition before the learned Single Judge, the learned Assistant Advocate- General submitted that the Government will abide by the interpretation of the rule relating to qualification put by the Court. Same is the position taken by him before this Bench. The learned Assistant Advocate-General could not advance any argument controverting the observations and findings of the learned Single Judge.
In view of what has been stated above, I am of the view that the learned Single judge was quite right and I say so with profound respect, in interpreting the relevant rule prescribing the qualifications-both academic as well as practical because that is the plain, grammatical and logical meaning which can be given to it in the context of the entirety of the Rules. Consequently, the appeal fails and is accordingly dismissed but as it in ivolved intricate interpretation of the rules, the parties are left to bear their own costs.
' MUHAMMAD ASLAM MIAN, J.--During the hearing of this appeal and even thereafter I was of the view that the learned counsel for the appellant was on a sound footing as to the interpretation of the provision in issue till I went through the judgment proposed to be delivered by my learned brother. The view in favour of the appellant was so strong in my mind that it took me repeatedly to go through the Judgment proposed to be delivered as well as the judgment of the learned Judge in the Chamber in order to appreciate the construction put on the relevant provision and still to contemplate for a considerable time.
2. Now at this distance of time I feel that the interpretation made by my learned brother in keeping with that of the learned Judge in the Chamber is in accord with the provision, therefore, I agree with the judgment.