NASIR-UL-MULK, J.---In September, 1993 the N.-W.F.P. Public Service Commission advertised two posts of Senior Registrar in Dermatology in the Health Department of Government of N.-W.F.P. , The requisite qualifications for the post were as follows:
(a) M.B.,B.S. or equivalent qualification recognised by the Council, and
(b) F.C.P.S./M.S./M.D. in the respective subject or equivalent qualification in the specialty recognized by the Council.
Dr. Izharullah Khan Baber and Dr. M. Haris Shah were selected and on the recommendations of the N.-W.F.P. Public Service Commission appointed to the posts by the Government of N.-W.F.P. by Notification of 14-3-1995. Their appointments have been challenged in this Constitutional petition by Dr. Samiullah Khan, another candidate who, though qualified, was not recommended as he stood third on merits.
2. The petitioner has thrown challenge to the appointments of Dr. Izharullah Khan, respondent No, 3 and Dr. M. Haris Shah, respondent No, 4 on the ground that they were not qualified for appointment in terms of the advertisement. Both the respondents were placed ex parte and have not appeared in Court, nor represented since the filing of the writ petition in the year 1995. During the hearing of the petition we were informed by the learned Additional Advocate-General that soon after assuming charge of the posts both the doctors left the country on leave and that after expiration of their leave the Government has issued show-cause notices to them as to why their services should not be terminated. Thus, it was only the N.-W.F.P. Public Service Commission which filed its comments to the writ petition. The Commission has taken the stand that neither the petitioner nor respondents Nos. 3 and 4 were qualified for appointment in terms of the advertisement but that they were considered for selection on the basis of two letters of Pakistan Medical and Dental Council dated 28-10-1993 and 18-12-1994 and of the Health Department of Government of N.-W.F.P. dated 4-10-1994..
3. Before examining the implication of the three documents pressed into service by the Public Service Commission it will be appropriate to state the qualifications of the three doctors. The petitioner passed his M.B.,B.S. in the year 1983. Did his D.S. (U.K.) in 1986 and passed his M. Phil. (UK) in dermatology in the year 1992, a course of 3 years duration. Respondent No,3 did his M.B.,B.S. in 1981 and thereafter, M.R.C.P. in General Medicine in the United Kingdom. Respondent No,4 passed his M.B.,B.S. in 1988, D.D.S. (U.K.) in 1993 and M.Sc. (UK) in Dermatology in 1993. It is alleged in the petition and not denied by the Public Service Commission in the comments that the duration of the course of respondent No, 4 was of one year. It can be seen that none of the 3 candidates have either F.C.P.S., M.S. or M.D. degrees, which is one of the requisite qualification for the post per clause (b) of the advertisement. Clause (b). however, provides for an alternative equivalent qualification in the speciality by the P.M.D.C.
4. The P.M.D.C. in its letter of 28-10-1993 addressed to the Secretaries, Health Department of all the four Provinces and the Director-General Health of the Government of Pakistan has laid down that M.Sc. (dermatology of U.K.) may be considered eligible for appointment to the post of Senior Registrar and Assistant Professor only if persons with higher qualification like F'.C.P.S./M.D. are not available. It was clarified that the concession was only given in the subject Dermatology due to the non-availability of persons with higher qualification in the speciality. The second letter of P.M.D.C. relied upon by the Commission of 18-12-1994 was addressed to the Commission in response to a letter of the Commission seeking clarification regarding appointment to the post of Assistant Professor in Dermatology. Apart from repeating the gist of the contents of letter dated 28-10-1993 the P.M.D.C. added that the qualification of M.Sc. (Dermatology) of U.K. which is of two years duration is equivalent to M. Phil. in status for the purpose of appointment. The learned counsel for the petitioner, Mr. Jehanzeb Rahim, .Barrister contended that although respondent No,4 had done his M.Sc. in dermatology but since that was a course of one year he was not eligible in view of this explanation of the P.M.D.C. The third document relied upon by the Commission is the letter dated 4- 10-1994 of the Health Department of Government of N.-W.F.P. to the Secretary of the Commission stating that in case candidates with requisite qualifications in a subject of speciality is not available preference may be given to those candidates with Post-Graduation in General Surgery and .General Medicine but possess minimum of one year experience in the respective speciality.
The learned counsel for the petitioner had argued that these instructions do not have the force of law and cannot be acted upon.
5. Since respondent No,3 possessed no Post-Graduate qualification in the speciality of Dermatology he could not have been considered for the post on the basis of the two letters of the P.M.D.C. relied upon by the Public Service Commission. For his appointment the learned Additional Advocate-General pressed into service the letter dated 4.-10-1994 of the Health Department. These are merely instructions of the Provincial Government and cannot be conferred the status of rules. In fact the letter itself in paragraph No,2 states that "amendment in the service rules are being considered in consultation with the agencies concerned in due, course of time". Until such amendments are brought about in the Service kules, doctors possessing Post-Graduate Degrees in General Surgery and General Medicine cannot be considered for posts reserved for Sub-Speciality, notwithstanding the experience gained by such doctors in the concerned Speciality. In the absence of a certificate by the P.M.D.C. respondent No,3 was not eligible for appointment to the post of Senior Registrar Dermatology. He could not have been appointed on the post and his appointment is, therefore, declared to be illegal.
6. As for respondent No,4 is concerned he undoubtedly has done his M.Sc. (UK) Dermatology and therefore could be considered for appointment in accordance with the letter of P.M.D.C. of 28-10- 1994. The objection to his appointment is based on the letter of P.M.D.C. of 18-12-1994 wherein it has been stated, "the qualification of M.Sc. Dermatology (U.K.) which is of two years duration is equivalent to M. Phil in status for the purpose of appointment". This letter was written in response to some quarries made by the Public Service Commission in a letter of 25-9-1994, the contents of which are not known. The P.M.D.C. seems to have been explaining as to the kind of M.Sc.
Dermatology (U.K.) that was equivalent to M. Phil. It did not clearly state that M.Sc. (U.K.) with less than two years duration could not be considered for appointment. From the tenor of the letter of the P.M.D.C. it appears that the Commission was making some kind of inquiries regarding appointment to the post of Assistant Professor in Dermatology. In the absence of the contents of the letter of the Commission and clear cut declaration by the P.M.D.C., we cannot conclude that the P.M.D.C. does not recognize M.Sc. Dermatology (U.K.) of less than two years duration eligible for appointment to the post of senior Registrar. Thus, on the available record the appointment of respondent No,4 cannot be set aside.
7. Since the stand of the respondent is that even the petitioner was not eligible, his qualifications are also, therefore, to be examined. Though in the letter of 28-10-1994 and 18-12-1994 holders of M.Sc. Dermatology (U.K.) have been made eligible in the absence of candidate with higher qualification the petitioner has done his M. Phil. from U.K. However, by letter dated 4-4-1994, addressed to the petitioner, the P.M.D.C. has declared that the petitioners qualification of M. Phil.
Dermatology, which is of two years duration, made him eligible for appointment to the post of Assistant Professor in Dermatology in case persons with higher Post-Graduate qualification in the subject were not available. In view of the letter of P.M.D.C. which has not been denied by the respondent, the petitioner was eligible for appointment as persons with higher qualification had not applied for the post.
8. The result of the foregoing discussion is that we would allow the writ petition in the terms that the Notification dated 14-3-1995 is set aside to the extent of appointment of Dr. Izharullah Khan Baber and since on account of his illegal appointment the petitioner was not recommended for appointment we would direct respondents Nos. 1 and 2 to process the case of the petitioner for appointment to the post of Senior Registrar, Dermatology in the Health Department of N.-W.F.P.