1. ' I intend to decide Writ Petition No,16362 of 1995 and Writ Petition No,15244 of 1995 by one consolidated judgment having similar facts and law.
2. The brief facts giving rise to the aforesaid writ petitions are that respondent No,1 advertised the, post of Assistant Director Homeo with the following qualification:{{URDUTEXT}} ' In obedience of advertisement petitioners and respondents Nos.3 to 5 submitted applications. The application of Dr. Muhammad Akhtar Sohail was rejected by respondent No,1 on the following grounds:---
(a) You do not satisfy the prescribed conditions of;
(iii) Experience. Your experience in the specialty should be certified by the Council of Homeo Government of Pakistan."
2. ' Whereas petitioner Dr. Ghufrala Tausif, appeared in interview and test; finally respondent No,1 selected respondent No,5 and both the petitioners were not selected in the said post. The petitioners being aggrieved by the selection of respondent No,5 filed, present writ petition.
2. Mr. Faiz Muhammad Bhatti, Advocate for petitioner in W.P. No,16362 of 1995 contended that experience as per advertisement is eight years; whereas the experience of respondent No,5 is seven years, seven months and 28 days on the date of submitting application on 9-2-1995, therefore, respondent No,5 is not eligible to be appointed as Assistant Director Homeo; that respondents Nos.3 and 4 are not eligible to sit as subject specialist as respondents Nos.3 and 4 lack the requisite qualifications as prescribed in the Act, 1965; that application of the petitioner was rejected on similar ground whereas the application of respondent No,5 was accepted, therefore, action of respondent No,1 is hit by Article 25 of the Constitution. He further stated that in case of Dr. Asghar Sohail, respondent No,1 raised aforesaid objection; whereas the experience of respondent No,5 was counted illegally as lecturer in Homeo College, Multan from 21-10-1986 to 29-8-1990, therefore, appointment of respondent No,5 is not in accordance with the Rules and Regulation of respondent No,1. It is the duty of respondent No,1 to select the candidate in a manner which is very fair and transparent, but respondent No,1 did not exercise statutory power in accordance with aforesaid principle, there, the same is not sustainable as the law laid down in Musa Wazir's case 1993 SCMR 1124.
3. Hafiz Tariq Nasim, Advocate for petitioner in connected W. P. No,15244 of 1995, adopted the arguments of the learned counsel for petitioner in W.P. No,16362 of 1995. He pointed out that respondent No,3/5 got registration from the National Council of Homoeopathy on 11-6-1998, therefore, his practical experience is not eight years from the date of submission of application i,e, 9-2-1995. This fact is duly supported by the parawise comments filed by respondent No,1 and in reply of para. 2, which reveals that: "The Commission advertised one post of A.D. Homoeo with the closing date 9-2-1995. In response to their advertisement they received 59 applications, out of these 49 applications were rejected for not fulfilling the advertised conditions of qualifications/experience and 10 candidates were summoned for interview."
3. ' He further urged that National Council for Homoeopathy issued direction on 6-1-1991 in the following terms: "that as per existing rules, no one is allowed to start practice in homoeopathy until and unless a Registration Certificate is issued to him/her by this Council, no matter on which date he/she has qualified the final examination of D.H.M.S. ' In view of the above, date of experience may be counted/ considered from the date of registration and Not repeat not from the date of passing the final examination of D.H.M.S."
4. ' This fact is also admitted by respondent No, 1's parawise comments in reply of para.4 on the following terms: "She did not inform the Commission at the time of interview that respondent No,3 did not fulfil the condition of qualification/ experience."
5. ' The petitioner's counsel further stated that it is the duty and obligation of the public functionary to look into the contents of applications himself whether the applicants are qualified or eligible to appear in the said examination. The question does not arise that the petitioners must have raised the objection before the Commission because the petitioner having no information at that time whether respondent No,3/5 is eligible to appear or not? He summed up his arguments that petitioner's name was registered on 21-10-1986 and respondent No,3/5 was registered on 11-6-1987 but the Punjab Public Service Commission did not consider this aspect of the case at all, therefore, practical experience of the respondent No,3/5 is not eight years on the date of submission of his application, therefore, his appointment is without lawful authority and in violation of the law laid by the superior Courts. He relied upon 1998 PLC 341; 1999 PLC (C.S.) 345 and 1999 PLC (C.S.) 1493. That experience must be counted from the date of registration as the principle laid down in PLD 1997 SC 382.
4. Learned counsel for respondents contended that clauses of advertisement i,e, clauses (2) and
(3) should be read independent from each other. He further stated that clause (3) does not reveal that the experience must be counted from the date of registration by virtue of section 2(h) of the Act; that registration is nothing to do with the experience i,e, both the two clauses were mentioned in the advertisement independently. The petitioner joined the hospital and the competent Authority has considered his service as experience. This Court has no jurisdiction to substitute its own decision in place of the decision of P.P.S.C./Government. It is the prerogative of Government as well as P.P.S.C. To consider the experience of respondent No,3/5---of the service of hospital or not? That National Council of Homoeopathy has prescribed conditions for registration in which it is clearly mentioned in condition No,4 that for the purpose of registration the candidate has to file certificate of six months' experience; that the petitioners failed to point out any rule which has been violated by the P.P.S.C., therefore, the writ petitions are not maintainable; that on the basis of Punjab ESTACODE length of experience of recruitment of post laid down the following principle for guidance of Government as well as for P.P.S.C.:--- "It has been advised by the and P.A. Department that in cases where no condition has been prescribed in the rules about the nature of requisite experience the experience gained before as well as after acquisition of qualification shall be counted as the requisite experience."
6. ' On the strength of this instruction of ESTACODE the learned counsel for respondents stated that respondents have rightly counted the experience of respondent No,3/5 of his service in the college/hospital. He also relied upon reply of grounds A and B of paradise comments of respondent No,1:--- "Applications were scrutinized according to advertisement condition/experience ten candidates including petitioner-respondent No,3 fulfilled of eight years and experience of Homoeo Dr."
7. ' He relied upon the comparison submitted by respondent No,1, that petitioners are not more qualified as compared to the respondent No,3/5, therefore, respondent No,1 has rightly selected respondents Nos.3/5.
8. ' In rebuttal the petitioners" counsel stated that respondents Nos.3 and 4 are not qualified to sit as subject specialists, therefore as their experience is less than seven years as prescribed in the Act, therefore, appointment of respondents Nos.3/5 is without lawful authority. He relied upon unreported judgment in W.P. No,260 of 1998 decided on 28-9-1999 and 1996 SCMR 650.
5. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record myself. It is better and appropriate to reproduce relevant provisions of Ayurveda and Homoeopathic Practitioners Act H of 1965 and amendment made thereunder; vide Ordinance 22 of 1978 to resolve the present controversy as follows:--- ' Unamended preamble: "Whereas it is expedient to regulate the qualifications and to provide for the registration of practitioners of Unani, Ayurvedic and Homoeopathic Systems of Medicine."
9. ' Amended preamble: ' Whereas it is expedient to promote and popularize the Ugarit, Ayurveda and Homoeopathic system of medicine to regulate education and research in and to provide for the registration of practitioners of those systems of medicine."
10. ' Unlamented section 2(g). Register means a register of practitioners of the Unani or Ayurvedic or Homoeopathic system of medicine maintained under this Act.
(h) Registered practitioner means a practitioner whose name is for the time being entered in a register.
11. ' Unlamented section 14. Functions of the Board: ' The following shall be the functions of the Board, namely--
(a) to consider applications for recognition under this Act made by institutions imparting or desiring to impart instruction in the system of medicine with which the Board is concerned; ' to secure the maintenance of an adequate standard of efficiency in re_ ognised institutions; ' to make arrangements for the registration of duly qualified persons in accordance with the provisions of this Act; ' to provide for research in the system of medicine with which the Board is concerned; and ' to do such other acts and things as it may be empowered or required to do by this Act or the rules."
12. ' Unamended section 24. Registration of Unani and Ayurvedic practitioners.--(1) Every person who passes the qualifying examination in the Unani or Ayurvedic of medicine from a recognized institution may apply under section 23 for registration in Category A of the respective register.
13. ' Amended section 24(1):
(i) a Unani or Ayurvedic practitioner who holds qualifications from any approved institution of the Unani or, as the case may be Ayurvedic system of medicine; and
(ii) any person who, within a period of one year from the date on which the Board is established under section 3, proves to the satisfaction of Board that he has not less than seven years' practice to his credit as a whole time Tabib or Vaid and has the requisite knowledge and skill for efficient practice as such, may apply under section 23 for registration in Category A of the respective register.
(iii) The Board may determine whether a person does or does not possess the requisite knowledge and skill by holding a test or examination or by such other means as it deems fit.
14. ' Amended section 24(A)(B): 1(A) Every person who. Passes the qualifying examination in the Unani or Ayurvedic system of medicine from a recognised institution may apply for under section 23 for registration in Category A of the respective register.
15. 2(B). Every person who is registered medical practitioner within the meaning of the Medical Council Ordinance, 1962 (XXXII of 1962) and has taken to the practice of Homoeopathy may apply for registration as Homoeopath."
16. It is settled proposition of law that preamble to an Act does not control the provisions of the Act but it is key to understand intention of the legislator. Mere reading of the aforesaid sections show that the Board is vested with the functions to regulate education and research in, and to provide for the registration of practitioners those systems of medicines and not persons who are employed in the Government or Semi Government or the Organization of Pakistan. The instructions issued by the National Council Homoeopathy under the provisions of the aforesaid Act on 6-1-1991 that is only for the purpose of registration the name as registered practitioner i,e, Doctors, National Council for Homoeopathy issued instructions for registration. Instruction No,4 (Annexure R/C) reveals six months clinical experience must be attached with the application form, therefore, contention of learned counsel for the petitioners that experience as is mentioned in advertisement it must be from the date of registration has no force. Similarly provisions are mentioned in Pakistan Engineering Council Act which were interpreted by the Hon'ble Supreme Court in NLR 1995 SCJ Judgments 701 and observed as follows:--- "The main object of the Act as pointed out by one of us (Ajmal Mian, J.) and Saiduzzaman Siddiqui, C.J. (as he then was) in the above High Court judgment is to regulate the working of professional engineers and consulting engineers and not to regulate the qualifications or the working of the engineers in the Government or semi-Government departments."
17. ' The Hon'ble Supreme Court subsequently approved the aforesaid judgment in the following judgments:-- ' Muhammad Sadiq's case PLD 1996 SC 182; ' Abid Mehmood's case 1997 SCMR 1154.
18. ' The advertisement published in the newspaper in accordance with the Rules of respondent No,1 and the relevant clauses of advertisement to resolve the controversy are reproduced hereunder:-- -{{URDU TEXT}} ' Mere reading of both the clauses which reveal that both are independent and not dependent upon each other. In case the intention of respondent that experience was eight years be taken from the date of registration then it must be mentioned in clause (3) (supra). It is admitted fact that respondent No,5/3 has passed D.H.M.S. Examination in 1986 and worked as Lecturer/Medical Officer in Multan Medical College from 1-10-1986 to 29-8-1990 as is evident from Annexure 'A' with parawise comments filed by respondent No,l. As Homoeo Doctor in Tehsil Headquarter Hospital, Burewala from 28-8-1990 to 21-1-1996 issued by M.S. Tehsil Headquarter Hospital, Burewala.
19. (Annexure 'B') of parawise comments filed by respondent No,1, therefore, petitioner has experience of more than eight years as mentioned above, the practical experience be taken from the date of appointment as a teacher/medical officer in the Multan Homoeo Medical College and Hospital and not from the date of registration. The certificate itself reveals that Homoeopathic Doctor/qualified has satisfied the Council about his eligibility for registration as Homoeo Medical Practitioner; coupled with the facts that respondent No,1 submitted report and parawise comments in both the writ petitions and qualification of respondent No,3/5 is much better as compared to the petitioners.
20. The same are reproduced for the purpose of comparison:-
(i) Dr. Muhammad Asghar Sohail 1st Prof. 1st attempt 1977 II Div. 2nd Prof. 1st attempt 1978 II Div. 3rd Prof. 1st attempt 1979 II Div. 4th Prof. 1st attempt 1980 H Div.
(ii) Dr. Ghufrala Tauseef 1st Prof. 1st attempt 1972 II Div.
21. 2nd Prof. 1st attempt 1973 II Div. 3rd Prof. 1st attempt 1974 II Div. 4th Prof. 1st attempt 1975 II Div.
(iii) Dr. Jamil Akhtar Ghauri ' Ist Prot. 1st attempt 1983 I Div, 2nd Prof. 1st attempt 1984 I Div. 3rd Prof. 1st attempt 1985 I Div. 4th Prof. 1st attempt 1986 II Div.
22. ' The aforesaid data of qualification reveals that respondent No,3/5 passed the Examination in 1st Division whereas the petitioner passed in 2nd Division, therefore, respondent No,1/P.P.S.C. Has rightly recommended the name of respondent No,3/5. The objection regarding sitting of respondents Nos.3 and 4 as special subjects has also no force as the principle laid down in Muhammad Arshad's case NLR 1991 Service 50. The learned counsel for the petitioners failed to point out any violation of rules made by the respondents, therefore, writ petitions are not maintainable as the principle laid down by the Hon'ble Supreme Court in Akhtar Mir's case 1984 SCMR 433. It is settled proposition of law that this Court has no jurisdiction whatsoever to substitute its own decision in place of the decision of the Public Service Commission as the principle laid down by this Court in Mussadiq's case PLD 1973 Lah. 600 and Habib Ullah's case PLD 1973 SC 144. The case cited by the learned counsel for the petitioners are distinguished on facts and law as in the cited cases, the respondent/PPSC failed to act in accordance with Rules; whereas in the present case as mentioned above, the petitioner's counsel failed to point out any violation of Rules committed by respondent No,1 to recommend the name of respondent 5/3.
23. ' In view of the aforesaid discussion, the writ petitions have no force and the same are dismissed with no order as to costs.