1. ' RAJA AFRASIAB KHAN, J.---In the month of September 1993, Public Service Commission, N.-W.F.P.
2. (hereinafter called the Commission) gave advertisement in the press for appointment against two posts of Senior Registrar Dermatology in the Health Department of Government of N.-W.F.P. The requisite qualifications for the said posts were:- "(a) M.B.B.S. Or equivalent qualification recognised by the Council, and
(a) F.C.P.S/M.S./M.D. In the respective subject or equivalent qualification in the specialty recognised by the Council."
3. ' Dr. Izharullah Khan Baber and Dr. Haris Shah, the respondents Nos.2 and 3 and Dr. Samiullah Khan, the respondent No,1 writ petitioner appeared before the Commission in response to the above said advertisement. The respondents Nos.2 and 3 were declared successful by the Commission. In consequence, they were selected and appointed against the above said posts by the Government of N.-W.F.P. Vide notification dated 14-3-1995. These appointments were challenged through Constitution Petition No,259 of 1995 by Dr. Samiullah Khan, the respondent No,l. The said respondent also qualified the examination of the Commission but nonetheless, he was not recommended, in that, he stood third on merits. The ground taken by the said respondent in the writ petition was that respondents Nos.2 and 3 could not be appointed for the reason that they had not qualified themselves for the appointment in terms of the aforesaid advertisement. In the High Court, the respondents Nos.2 and 3 were proceeded against ex parte as they did not appear to contest the case. It was disclosed by the learned Additional Advocate-General before the High Court that soon after assuming the charge of their posts, they proceeded on ex-Pakistan leave. After the expiry of the leave period, the Government issued notices to them to show cause as to why their services should not be terminated on the ground of their absence, The case before the High Court was, therefore, contested only by the Commission. The plea of the Commission was that neither the respondents Nos.2 and 3 nor respondent No,1 were qualified for appointment in terms of the advertisement but 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, The High Court after hearing the petitioners and respondent No,1 vide impugned judgment dated 26-11-1998 accepted the writ petition and in consequence, set aside the notification dated 14-3-1995 to the extent of Dr. Lzharullah Khan, the respondent No,2 because he was illegally appointed against the said post. The Commission has assailed the said judgment through this petition for leave to appeal.
2. The learned Law Officer argued that there was no justification to interfere with the matter of appointment of the respondent. He also submitted that the aforesaid appointments were made in relaxation of the relevant rules.
3. Learned counsel for the contesting respondent has argued that on 9-12-1998, in an identical controversy a Full Bench of this Court to which two of us, Mr. Justice Irshad Hasan Khan and Mr. Justice Wajihuddin Ahmad were the members, has clinched the controversy in Dr. Emran Ghaffar v.
4. Dr. Syed Javid Hussain and others (C.P. Nos.187 and 214-P/98).
4. After hearing the learned counsel for the parties and perusing the record, we hold that the petitioners cannot be permitted to state that the relevant rules have wrongly been relaxed to accommodate the respondent No,1 for the reason that it is the petitioner who has accepted the recommendations of the P.M.D.C. And in consequence thereof, has relaxed the rules. This act on the part of the petitioners shall amount to approbation and reprobation. They are, therefore, not justified to take this plea before us that the rules have unfairly and wrongly been relaxed to accommodate the respondent. The argument of the learned Law Officer is, therefore, repelled. The jurisdiction of the High Court was also brought under challenge stating that it was not competent to interfere in view of bar of Article 212 of the Constitution. In the referred case of Dr. Emran, (supra), it was held:-- "We are afraid, the argument in our considered view is plainly unsound that cannot be entertained for the reason that the appointment against the post in question was to be made by selection of the candidates by Public Service Commission through direct recruitment and it was not a case of appointment of a civil servant against the higher post through promotion from the lower grade.
5. The appointment against a post through direct recruitment, therefore, does not involve the question of terms and conditions of service of a civil servant as the candidates seeking appointment are not civil servants qua the post as the status of civil servant is acquired only after a person is duly inducted in a post in the service of Pakistan in accordance with law. The High Court has rightly repelled the arguments on this score and also on the ground that writ in the nature of quo warranto against a person who was holding a post without fulfilling the necessary qualifications prescribed by law to hold such post to which no exception can be taken.
6. ' Learned counsel for the petitioner submitted that a decision was taken by the Government which was expressed through letter dated 25-10-1989 that (sic) case of non-availability of any person fulfilling the prescribed qualifications for appointment against a post, the person holding the following qualifications and experience may be preferred'
7. "F.C.P.S. (General Medicine) + MCPS (Dermatology) equivalent to F.C.P.S. (Dermatology) Major Degree. Experience: two and a half years experience in Dermatology (one year after post graduation and one and a half year before)"
8. ' Therefore, according to him, this amounted to relaxation of rules within the contemplation of section 23 of the N.-W.F.P. Civil Servants Act, 1973. Section 23 of the said Act is reproduced below in extenso in order to appreciate the argument in its true perspective: "23. Nothing in this Act or in any rule shall be construed to limit or a bridge the power of the Governor to deal with the case of any civil servant in such manner as may appear to him to be just and equitable.
9. "Provided that, where this Act or any rule is applicable to the case of a civil servant, the case shall not be dealt with in any manner less favourable to him than that provided by this Act or such rule."
10. A bare reading of this provision of law clearly indicates that it could be invoked in respect of a civil servant whereas in this case qua the post in question where the appointment was made through direct recruitment, the petitioners who were candidates seeking such appointment could not be held to bear that status, therefore, the decision as conveyed through the said letter cannot be justified under section 23 of the Act. It was rightly held by the High Court in the impugned judgment that it was a case of amendment of the rules as to prescribed qualifications which could be made only through the amendment in the relevant rules by the competent Authorities and the decision as contained in the said letter did not amount to amendment of the rules.
11. ' Faced with this situation. Mr. Muhammad Sardar Khan, learned counsel for the petitioner in C.P.L.A.
12. No,187-P of 1998 submitted that since on the recommendation of the Public Service Commission, the Governor of the N.-W.F.P. Has issued notification for appointment of the petitioner, therefore, it may be presumed that the relevant rules have been amended qua the appointment of the petitioner.
13. This argument too has no force, for, the rules could be amended for general application and not in relation to a particular individual. The notification for the appointment of the petitioner issued by the Governor on which reliance has been made, has been scrutinized and it does not indicate conscious application of mind for the amendment of the rules whereas the same appears to have been issued in routine according to the recommendations of the Public Service Commission. None of the two candidates was fulfilling the basic qualifications prescribed in the publication according to Public Service Commission.
14. ' Coming to the connected civil petition for leave to appeal filed by Syed Javed Hussain, the writ petitioner, it may be mentioned that the High Court held that the qualifications prescribed for the post as notified were F.C.P.S./M.S./M.D/ in addition to M.B.,B.S. And the High Court has also held that the petitioner failed to satisfy the concerned authorities at the relevant time that the diploma and other educational qualifications possessed by him were certified to be equivalent to the qualifications prescribed. He, too, had no case for issuance of direction for his appointment. He may, if so advised, satisfy the authorities if the applications are invited afresh that the other educational qualifications possessed by him have been declared to be equivalent to the prescribed qualifications the decision about which shall be made by the concerned authorities in accordance with law.
15. ' For the foregoing reasons, both the petitions have no merits which are accordingly dismissed and leave to appeal refused."
16. The view taken by this Court in the case of Dr. Emran, (supra) holds the field and as such, no relief can be given to the petitioners in these proceedings. The High Court has given a well-reasoned judgment. It is appropriate to quote the operative part of the judgment of the High Court which reads:-- "Since respondent No,3 possessed no Post-Graduate qualification in the specialty 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 'amendments 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 Rules, doctors possessing Post-Graduate Degrees in General Surgery and General Medicine cannot be considered for posts reserved for Sub-Specialty, notwithstanding the experience gained by such doctors in the concerned specialty. 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.
17. ' As far 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 (UK) 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 queries 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.
18. Dermatology (UK) 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 inquires 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 (UK) 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.
19. ' 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.
20. Dermatology (UK) have been made eligible in the absence of candidate with higher qualification the petitioner has done his M.Phil from UK. However, by letter dated 4-4-1994, addressed to the petitioner, the P.M.D.C. Has declared that the petitioner's 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 of this letter of P.M.D.C. Which has not been denied by the respondent, the petitioner was eligible for appointment as person with higher qualification had not applied for the post.
21. ' 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."
22. ' The impugned judgment appears to be just, fair and proper. It has been rendered in accordance with law. No question of law of public importance has been raised before us. No case, therefore, has been made out warranting our interference. This petition is, accordingly, dismissed and leave declined. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.