2015 P L C (C.S.) 819
[Balochistan High Court]
Before Qazi Faez Isa, C.J. and Muhammad Kamran Khan Mullakhail, J
Mst. SHUGAFTA
versus
CHAIRMAN FEDERAL PUBLIC SERVICE COMMISSION, ISLAMABAD and 2 others
Constitutional Petition No.922 of 2013, decided on 3rd April, 2014.
Constitution of Pakistan ---
----Art. 199---Constitutional petition ---Civil service ---Advertisement for the post's of Assistant
Head Mistress and Vice Principal ---Prescribed qualification being second class or grade -C
Master' s degree or equivalent and B.Ed ---Petitioner having only a Master's degree ---Candidature
of petitioner was rejected due to deficiency in the requisite qualification ---Validity ---Prescribed
qualification was Master's degree in any discipline and B.Ed---Peti tioner possessed a degree in
Master of Arts (Education) which was two years post -graduation degree ---Petitioner did not
possess B.Ed. Degree (one year duration) ---Degree of B.Ed. was also required for both the
positions in addition to Master's degree in an y discipline ---Petitioner possessed only one
qualification and was not qualified as she did not have two degrees and could not be allowed to
appear in interview/viva voce ---Decision of Public Service Commission was according to its
mandate---Government had prerogative to prescribe the requisite qualification for a particular
post---Eligibility of a candidate was to be determined in accordance with the advertisement for
the post keeping in view the stipulated requirements and not otherwise ---Non -qualified pe rson
could not be appointed to a particular post ---Eligibility could not be created and thereby foisted
in violation of the requisite qualification ---Petitioner could not establish that she had the
stipulated qualification ---Petitioner had failed the preliminary test of an "aggrieved person" ---
Constitutional petition was dismissed in limine.
Dr. Muhammad Hussain's case PLD 2003 SC 143 and Government of Punjab through
Secretary (S&GAD) Lahore v. Zafar Maqbool Khan and another 2012 SCMR 686 rel.
Manzoor Ahmed Rehmani for Petitioner.
Ch. Mumtaz Yousuf, Standing Counsel along with Amjad Khan, Assistant Director
Federal Public Service Commission for Respondents.
Date of hearing: 12th March, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULLAKHAIL, J. --- The facts leading to the
filing of the instant petition are that the Federal Public Service Commission ("FPSC") announced
certain posts of various cadres in the Directorate of Federal Government Educational Institutions
(Cantts/Garrisons), the Ministry of Defence Islamabad. The petitioner applied for the posts of
Assistant Head Mistress and Vice Principal respectively. In response whereof, Roll Number slips
for both positions were issued. Thereafter, she appeared in written test conducted by the FPSC.
Subs equently, she received two letters dated 2lst October, 2013 and 25th November 2013,
wherein her candidature was rejected due to deficiency in the requisite qualification. The
petitioner has impugned the rejection of her candidature and sought directions to be issued to the
respondent/FPSC to allow her to appear in the interview/viva voce.
2. The learned counsel for the petitioner contended that after determination of her eligibility
two separate roll number slips for the applied positions were issued on t he basis whereof, she
participated in written test. He stated that on the eve of announcement of results her candidature
was rejected on erroneous ground that she did not submit hard copies of her applications after
submitting online applications. In addit ion her candidature for the post of Assistant Headmistress
was rejected due to deficiency in the requisite qualification and misconceived reasons were
assigned that she did not possess B -Ed Degree (Bachelor of Education). He submitted that the
petitioner p ossesses a Post -graduate degree in education, i.e. M.A. Education, awarded by the
Sardar Bahadur Khan Women University, Quetta ("the University"), therefore, she meets the
requisite eligibility, and in support of his contention he referred to letter No.8 -
61/HEC/A&A/2009/5116 dated 26th November, 2009 (appended with the memo. of petition)
issued by the Assistant Director, Higher Education Commission ("HEC"), wherein the Master of
Arts in Education (M.A Education) has been recognized as equivalent to M.Ed. (M aster of
Education). He contended that HEC is the sole authority in the country to determine the
equivalence of degrees awarded by universities, therefore, in view of recognition- cum-
equivalence by the HEC no occasion was available to the FPSC to have turned down the
candidature of the petitioner. He urged that since, after determination of her eligibility, she was
allowed to take written test, on basis whereof, she acquired a legal vested right to participate in
the interviews/viva voce, therefore, the impugned letters pertaining to the rejection of petitioner's
candidature may be declared to have been issued without any lawful authority and justification
with further directions to the respondents/FPSC to allow the petitioner to participate in the
interview s/viva voce.
3. The pre -admission notice, vide this court order dated 23- 12-2013, was issued to the
respondents/FPSC. The representative of FPSC appeared on subsequent date and filed comments
along with the relevant Rules and minutes of the meeting dated 16-2-2002 held in FPSC. Ch.
Mumtaz Yousuf learned Standing Counsel contended that the petitioner did not submit the hard
copy of her application within the prescribed time, therefore, the FPSC was unable to determine
her eligibility before the written tes t but to avoid any injustice she was allowed to appear in
written examination. Subsequently, on scrutiny she was found ineligible for the post. The learned
standing counsel further pointed out that for the post of Vice Principal the petitioner had not
subm itted a hard copy of her application with term of reference (TOR) and the supporting
documents, while for the post of Assistant Headmistress, though, she had submitted hard copy of
her application, but that too was delayed by one day. He next stated that f or the post of Assistant
Headmistress the petitioner did not have the requisite qualification. He further referred to the
minutes of meeting of the FPSC dated 16- 2-2002, whereby a Master's Degree or equivalent
qualification and B.Ed. Degree were prescribed for both the said posts. He finally urged that
since the petitioner does not meet the prescribed criteria, therefore, petition is liable to be
dismissed.
4. We have heard both the learned counsel and have gone through the record with their
valuable assi stance. A careful consideration of the respective contentions from both sides and
perusal of the documents appended with the petition and parawise comments, manifests that in
this case the controversy revolves around the question, that, whether the petitioner possessed the
requisite qualifications for the subject posts. However, we shall first attend to the contention that
the petitioner acquired a legal vested right after taking the written test. In this regard Rule 15(b)
contained in the general instructi ons of the application form is relevant, which stipulates, that:
"Eligibility of the candidates in terms of recruitment rules and the advertised conditions
shall be determined after the conduct of screening/professional test/examination. On detailed
scrutiny of the application if they are found ineligible, the candidature will be cancelled
irrespective of the fact; whether they have appeared in the examination/test or even qualifies
therein. On rejection of applicant's candidature on the basis of their i neligibility, the applicant
would be informed by the commission defining the reason of their ineligibility. The rejected
candidates on submission of their representation shall be heard by the commission's committee.
The candidates should, therefore, make s ure before appearing in the examination/test, that they
are eligible in all respects for the post they have applied for."
In view of the above Rule the contention that once the petitioner was allowed to take the
written tests, she acquired a legal vested right to also appear in the viva voce is not correct,
because the referred to Rule of the FPSC stipulates, "that appearing in written examination does
not create a right to appear in interview/viva voce". Needless to add here that the referred to rules
of the FPSC are part of General Instructions contained in application form, which was duly
signed by the intended candidates, therefore, presumed to have been read, understood and
accepted.
5. The stipulated qualifications for both the applied posts were the same, and are reproduced
here under: ---
"MINIMUM QUALIFICATION. --- (i) Second class or grade- C Master's Degree or
equivalent qualification. (ii) B.Ed.."
The prescribed qualification was a Master's degree in any discipline and B.Ed. degree.
The de cision of FPSC, while rejecting the candidature of the petitioner is according to its
mandate, whereby the FPSC, when considering the eligibility of the candidate who possesses
M.Ed. degree, had decided that where the prescribed qualification is second cla ss master's degree
with B.Ed. or M.Ed., then, the candidates holding Master's degree in any discipline and with
B.Ed. or M.Ed. degree will be considered eligible, in the instant case the petitioner possesses a
degree in Master of Arts (Education), which is two years post -graduation degree and she does
not possess B.Ed. degree (one year duration). That in addition to Master's degree in any
discipline, a degree of B.Ed. was also required to qualify for both the positions, however, the
petitioner only has one qualification.
The letter dated 26th November, 2009 issued by the HEC is also not helpful to the
petitioner since the referred to letter was issued in response to the letter of the Registrar of the
University, whereby the equivalence of Master of Arts i n Education was solicited. The reply of
the HEC was referred to as certificate of equivalence but on perusal it reveals that the same is
general in nature and does not mention a particular university, rather it mentions in clear terms
that equivalence is t o be determined on individual merit and while seeking any sort of
equivalence, the documents are to be submitted on the prescribed equivalence pro forma and all
the original documents are needed to be shown. Needless to add here that the reply of the HEC
shall not be applicable ipso facto and all solicited equivalences are required to be dealt on
individual basis.
Admittedly, the petitioner possesses only a Master's Degree and does not have a B.Ed.
Degree. She was, therefore, not qualified, as the stipul ated requirement was to have two degrees,
which she does not have, resultantly she cannot be allowed to appear in interview/viva voce.
6. The Hon'ble apex Court in the cases of Dr. Muhammad Hussain's case (PLD 2003 SC
143) and Government of Punjab throug h Secretary (S&GAD) Lahore v. Zafar Maqbool Khan
and another (2012 SCMR 686), when dealing with the identical nature of proposition, has held
that it is the prerogative of the Government to prescribe the requisite qualification for a particular
post and pr escribing the stipulated qualification a scientific development and increasing technical
know -how cannot be ignored. Therefore, the eligibility of a candidate is to be determined in
accordance with the advertisement for the post keeping in view, the stipul ated requirements and
not otherwise.
The upshot of above discussion is that a non- qualified person cannot be appointed to a
particular post, the same would also not be in the interest of students and the institution.
Eligibility cannot be created and thereby foisted in violation of the requisite qualification. Since
the petitioner could not establish that she has the stipulated qualifications she fails the
preliminary test of an aggrieved person, therefore, the petition is accordingly dismissed in limine.
AG/34/Bal. Petition dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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