2024 P L C (C.S.) 1190
[Balochistan High Court]
Before Abdullah Baloch and Muhammad Aamir Nawaz Rana, JJ
Dr. MUSADIQ AZIZ and 6 others
Versus
GOVERNMENT OF BALOCHISTAN through Secretary Health Department Civil
Secretariat, Quetta and another
Constitution Petition No.1208 of 2023, decided on 11th September, 2023.
(a) Civil service---
----Advertised posts ---Eligibility ---Pre-requisite educational qualification (degree) not
attained / finalized by the aspirants till cutoff date for submissions of applications ---Question
was, whether or not, a candidate who did not possess the requisite qualification at the relevant time could apply for the post ---Petitioners who were awaiting result of their Master's
Degree (in Public Health) from Medical University had applied for the said advertised posts despite the fact that result of their 4th (final) Semester had not been announced---Petitioners appeared in the test and according to them they had passed the written test ---Balochistan
Public Service Commission ('the Commission'), on verification, disqualified the petitioners
from appearing in the interview on the sole ground that at the time of submissions of application and cutoff date provided in said regard by the Commission, the petitioners had not passed the exam of their 4th Semester ---Petitioners filed constitutional petition
contenting that though the result was announced subsequently (after about a month of cut -off
date) they had obtained the Degree of Master in Public Health, therefore they were eligible to appear in viva voce---Validity ---Admittedly, on the last date for submissions of applications
provided by the Commission the petitioners had not obtained the relevant degree rather they passed their semester subsequently--- Petitioners for all intents and purposes were not
qualified to apply for the posts -in-question on or before the cut -off date as they lacked the
basic qualifications for the said posts as they obtained their degree subsequently---A candidate, who does not possess the requisite qualification at the relevant time , cannot apply for the post on the basis of practice of issuing "hope certificate" by the relevant university as it is not understandable as how a university, in such a certificate, can make a categorical statement that the aspirant "would pass his final examination"---The very concept of "hope certificate" is beyond comprehension---If for a particular job / position, certain educational qualification are required, these have to be met before the candidate applies for the same ---
Constitutional petition was dismissed, in circumstances.
Nasir Mehmood v. Director Education (Colleges), Balochistan, Quetta and others
2013 PLC (C.S.) 1143 ref.
(b) Civil service---
----Advertised posts ---Eligibility ---Pre-requisite educational qualification (degree) not
attained / finalized by the aspirants till cutoff date for submissions of applications ---Vested
right to appointment--- Scope ---Question was, whether or not, a candidate who did not
possess the requisite qualification at the relevant time could apply for the post ---Argument of
the petitioners was that since the petitioners had passed the written test, therefore, a vested
right had been created in their favor ---Held, that said argument was misconceived as the
petitioners were not qualified even to submit application for the advertised post having not obtained the relevant degree at the given time ---Since the petitioners themselves committed
misrepresentation by posing themselves eligible for the said post, therefore, at subsequent stage petitioners could nto ask for any premium on account of their own fault ---
Constitutional petition was dismissed, in circumstances.
Dr. Shamim Tariq v. Internationl Islamic University Islamabad 2020 SCMR 568; Asif
Hassan and others v. Sabir Hussain and others 2019 SCMR 1720; Wasim Shahzad v.
Government of Khyber Pakhtunkhwa through Chief Secretary, Civil Secretariat, Peshawar
and others 2018 PLC (C.S.) Note 168; Muhammad Muneer Malik and others v. Allama Iqbla Open University and others 2016 PLC (C.S.) 896 and Shazia Munawwar v. Pubjab Public Service Commission through Secretary, Lahore PLD 2010 Lah. 160 ref.
(c) Civil service---
----Advertised posts ---Eligibility ---Pre-requisite educational qualification (degree) not
attained / finalized by the aspirants till cutoff date for submissions of applications ---Question
was, whether or not , a candidate who did not possess the requisite qualification at the relevant time could apply for the post ---Held, that eligibility criteria expressly mentioned in
the advertisement could not be ignored, altered or deviated from during the selection process, particularly when the cut -off date for the submission of applications had expired---
Constitutional petition was dismissed, in circumstances.
Ashok Kumar Sharma and others v. Chander Shekhar and another 1997 (4) SCC 18
ref.
Ameer Muhammad Tareen for Petitioners.
Nusrat Baloch, A.A.G. along with Javed Manan Secretary Public Service Commission
Balochistan Dilawar Khan Kaji Deputy Director and Muhammad Awais Asstt. Director Legal Public Service Commission Balochistan for Respondent.
Date of hearing: 4th September, 2023.
JUDGMENT
MUHAMMAD AAMIR NAWAZ RANA, J. ----The Balochistan Public Service
Commission (hereinafter referred "the Commission") had advertised certain vacant posts of Health Department including 25 posts of Health Management Cadre (B -17) through
publication dated 30th November, 2022. The cutoff date for submissions of applications by the aspirants was provided as 30th December, 2022. The eligibility criteria for the posts of Health Management Cadre is reproduced herein below:
Qualification:
i. MBBS/BDS OR an equivalent qualification from a recognized University/Institute; AND
ii. Master's Degree in Public Health OR Higher qualification in Public Health OR Health/Hospital Administration OR DMCH (Pb)/DHA(Pb)/M.Sc (Community Eye Health) from a University recognized by HEC OR PMC
2. The petitioners who were awaiting result of their Master's Degree in Public Health
from Jinnah Sindh Medical University had applied for the said advertised posts despite the fact that result of their 4th Semester had not been announced. The petitioners appeared in the test and according to them they have passed the written test but subsequently on verification by the Commission they were disqualified to appear in interview on the sole ground that at the time of submissions of application and cutoff date provided in this regard by the Commission i.e. 30th December, 2022 the petitioners had not passed the exam of their 4th Semester of Master Program in Public Health. According to petitioners the result were announced subsequently on 4th February 2023.
3. Learned counsel for the petitioner mainly contended that the petitioners had obtained
the Degree of Master in Public Health, therefore they were eligible to appear in viva voce. Learned counsel further submitted that in another case of Nurses the Government of Balochistan had relaxed the period of submitting the required certificates, therefore the petitioners also deserve the same treatment. While concluding his arguments learned counsel submitted that since the Health Department is badly suffering from scarcity of human
resources and doctors having Master Degree in Public Health are required to improve the performance of Health Department, therefore the petitioners deserve to be considered for appointments and solicited permission for petitioners to appear in interview for the said
posts.
4. The learned AAG opposed these submissions contended that since petitioners did not
fulfill the qualification provided for the post of Health Management Cadre B -17 at the
relevant time, therefore their candidatures were rightly rejected by the Commission and in
case any relaxation is provided in this regard it will open Pandora's box for all those who despite not fulfilling the eligibility criteria would apply for the posts on the basis of hope certificates.
Arguments heard. Record perused.
5. The admitted feature of the case is that the last date for submissions of applications
provided by the Commission was 30th December, 2022. It is also not denied by the
petitioners that on said date they had not obtained the Degree of Master in Public Health
rather subsequently they passed their Semester on 4th February, 2023. The petitioners for all
intents and purposes were not qualified to apply for the posts of Management Cadre on or before 30th December, 2022 as they lacked the basic qualifications for the said posts i.e. Master in Public Health which Degree they obtained subsequently but the question remains
whether a candidate who does not possess the requisite qualification at the relevant time can
apply for the post, this aspect of the matter was considered by this Court in the case of Nasir
Mehmood v. Director Education (Colleges), Balochistan, Quetta and others, the relevant excerpt is reproduced:
8. Just before parting we want to consider the practice of issuing "hope certificate" In this case the said hope certificate issued by the University of Balochistan stated, that: -
-
"This is to certify that Mr. Adnan Riaz son of Riaz Ahmed is a regular student of
M.A. English Literature class final. He appeared in the M.A. Previous examination
under Roll No.8524 in the year 2010 by securing 235 marks out of 450 marks and place in second division.
It is further stated that he would pass his final examination with good marks. He bears good moral character and social behaviour."
It is not understandable how the University could make a categorical statement that Mr. Riaz "would pass his final examination." Moreover, the concept of 'hope certificate' is beyond our comprehension. If for a particular job or position certain educational qualifications are required these have to be met before the candidate applies for the same. It is his or her qualification as existing, and not those that he/she may acquire in the future. We strongly deprecate acceptance of 'hope certificate' by any government or any local or statutory body. To ensure that this unlawful practice does not continue, respondent No.2 is directed to send a copy of paragraph 8 of this judgment to all the Universities of Balochistan and the Balochistan Public Service Commission. He is further directed to ensure that the Government of Balochistan does not acceptor place reliance on such type of 'hope certificate.'
(Emphasis provided)
6. The argument of petitioners' counsel that since the petitioners have passed the written
test, therefore a vested right has been created in their favor, is considered, but we have found no substance in this argument as petitioners were not qualified even to submit application for the post of Management Cadre having not obtained the relevant Degree at the given time. Since the petitioners themselves committed misrepresentation by posing themselves eligible for the said post, therefore at subsequent stage petitioners cannot ask any premium on account of their own fault. The Hon'ble Supreme Court in somewhat identical matter in the case of Dr. Shamim Tariq v. International Islamic University Islamabad has observed as follows:
"The candidates were required to meet the above criteria on the date of submission of their applications i.e. 30th June, 2011; the respondent did not possess the requisite qualification on the said date and as such was not qualified to be considered for the job, a position at a seat of learning, maintained by the exchequer. Respondent's acclaimed academic brilliance as well as extensive teaching experience
notwithstanding, nonetheless, digression from the prescribed criteria cannot be
countenanced without setting an ominous precedent, casting its fall out on other disciplines as well. Adherence to the statutory rules and procedures for selection of public jobs is the only surest method to objectively select the best out of the best from a competing lot; it is rooted into the fundamentals of equal opportunity, equal
treatment and equal protections; any deviation therefrom would rock the bottom of
the Republic, resting upon equiponderance. State authority in every sphere of life is a
sacred trust to be exercised fairly and justly by the functionaries to accomplish the purposes assigned to them by law; it is their bounden duty to do right to the all manner of people, without any distinction. It is most important that right people are selected for official positions to serve the Republic as it is imperative to survive and sustain into today's competitive World; deviation would be treacherously seditious. Constitutionally recognized principle of equal opportunity is strengthened by divine affirmation, upheld and followed by every modern constitution of the day.
As the respondent did not possess requisite qualification, the Selection Board had no occasion to consider her in preference to those who possessed the qualifications as
advertised by the University itself; argument that the impugned appointment is based
upon considerations other than noble does not appear to be beside the mark.
Similarly, contention that the respondent acquired the requisite qualification soon after her selection and during the subsequent years, irretrievably gone by, mentored excellence and, thus, her expulsion from the service so late in the day would be an
option, most inexpedient in circumstances, fails to impress us; none other than herself
has to debit the blame, Selection Board being accomplice next to her. Stream of
justice must run pure and clean. Consequently, respondent's appointment as Assistant Professor (Urdu) in BPS -19 is declared to have been made without lawful authority
and accordingly set aside. The Selection Board shall convene at the earliest to appoint
a suitable candidate from amongst the already short listed candidates, excluding both
the petitioner as well as the respondent; exercise be completed within a period of
three months with a dispatch of compliance report.
Petitioner's prayer for appointment as Assistant Professor (Urdu) in BPS -19 against
the same post in her quest through quo warranto cannot be granted inasmuch as the Court can certainly issue a direction for an incumbent's departure from the office for lack of credentials, nonetheless, conclusion of such an exercise would not, by itself, pave way to fill the vacancy merely on the ground that the competitor had no justification to hold the same and that she was better placed in circumstances. Civil Petition is disposed of in the above terms.
Similar view was expressed by the Hon'ble Supreme Court of Pakistan in the case of
"Asif Hassan and others v. Sabir Hussain and others"
3. Reference can also be made to cases
titled "Wasim Shahzad v. Government of Khyber Pakhtunkhwa through Chief Secretary,
Civil Secretariat, Peshawar and others"4, "Muhammad Muneer Malik and others v. Allama
Iqbla Open University and others"5 and "Shazia Munawwar v. Pubjab Public Service
Commission through Secretary, Lahore6".
7. The eligibility criteria expressly mentioned in the advertisement cannot be ignored,
altered or deviated from during the selection process, particularly after the cutoff date for the submission of applications has expired. In this regard we are fortified from the judgment laid down by the Indian Supreme Court in the case of "Ashok Kumar Sharma and others v.
Chander Shekhar and another
7", wherein, it is held as under:
"the proposition that where applications are called for prescribing a particular date as
a last date for filing an application, the eligibility of the candidate shall have to be judged with reference to that date and that date alone, is a well -established one. A
person who acquires the prescribed qualification subsequent to such date cannot be considered at all. An advertisement or notification issued/ published calling for applications constitutes a representation to the public and the authority issuing i t is
bound by such representation. It cannot act contrary to it. One reason behind this proposition is that if it were known to that persons, who obtained the qualification after the prescribed date but before the date of interview, would be allowed to appear for the interview, other similar placed persons could also have applied. Just because, some of the persons had applied notwithstanding that they had not acquired the prescribed qualifications by the prescribed date, they could not have been treated on
Page 8 of 8 a preferential basis. Their applications ought to have been rejected at the
inception itself. This proposition is undisputable and infact was not doubted or disputed in the majority judgments".
In the wake of above deliberation the petition being without any merit is dismissed,
however the respondents are directed to advertise the vacant posts of Management Cadre without further delay and appointments be made on the posts of Management Cadre strictly in accordance with law.
MQ/21/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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