Amirullah Shah & others Vs Govt: of KPK and others

JUDGMENT SHEET

(Judicial Department)

W.P.No.928-812016.

Amir Ullah Shah and others

Versus

Govt. of K.P.K and others

JUDGMENT

Date of hearing: 20.5.2025.

For petitioners: Mr. Anwar-u1-Haq, Advocate, through video link from Principal Seat at Peshawar.

For respondents: Muhammad Asghar Khan, Addl: A.G. for respondents No.1 to 5.

Dr. Faqir Abid Ullah, Litigation Officer, on behalf of respondent No.6.

4 MUHAMMAD TARIO AFRIDI. J.- The petitioners filed the instant writ petition under Article lgg of the Constitution of the Islamic Republic of Pakistan, 1973, chatlenging the advertisement dated 19.07.2016 and the recruitment criteria prescribed therein for the post of PHC Technicians (Multi-Purpose), on the ground that they possess the Expanded Progralnme on Immunizatton (EPI) training certificate, which, according to them, was previously considered sufficient for such appointments.

They prayed for the declaration of the advertisement as void and unconstitutional and further sought directions for amendment in the recruitment rules to include the EPI certificate as a required qualification.

2.The contention of the learned counsel for the petitioners that earlier a one-year diploma was the requisite qualification for appointment as EPI Technicians is factually correct; however, it is evident from the record that the relevant recruitment rules were subsequently amended by the Govemment of Khyber Pakhtunkhwa, Health Department, vide Notification dated 10.05.2016. As per the amended rules, at least second division S.S.C with science with a two-year diploma in PHC Technician (Multi- Purpose) from recognized institutions registered with the Khyber Pakfrtunkhwa Medical Faculty is now required as the minimum qualification for the said posts. The impugned advertisement correctly reflects this updated qualification /0 criterion.

3.It is well-settled that it lies within the exclusive domain and competence of the appointing authority to prescribe or enhance qualifications for public employment, keeping in view the evolving needs and technical requirements of the service. No fundamental right of the petitioners appears to have been infringed by such enhancement, and the petitioners do not hold the required two-year diploma under the amended rules. Therefore, the contention raised by the learned counsel for the petitioners regarding the necessity to amend the rules in favour of their quatification is not tenable. The Honourable Supreme Court has categorically held in Federal Public Service

Commission through Chairman, fshmabad and another v. Hiraz Manzoor and others 12024 P L C (C.5.) /81 that:

"The formulation and creation of a recruitment policy falls within the exclusive domain of the competent authority and it cannot be subjected to judicial scrutiny unless it infringes vested rights or is in violation of the law. Every recruitment and selection process formulated by the competent authority is presumed to be regular and aimed at choosing the most suitable person for a given position. The recruitment and selection policy formulated by the competent authority cannot be substituted by a court or tribunal, nor questioned, unless its implementation infringes vested rights or is in violation of the law."

4.The learned counsel for the petitioners also raised an argument during the course of hearing that the Expanded Programme on Immunization (EPD was established in 1978 n and falls under Entry No. 32 of the Federal Legislative List, and as such, the provincial authority had no jurisdiction to alter or prescribe terms and conditions for EPl-related appointments without prior approval of the Federal Government.

5.This argument, however, is misplaced for two reasons; firstly, the petitioners did not raise this ground in their pleadings, neither in the titled writ petition nor in the prayer clauses. Hence, they cannot be allowed to raise new constitutional questions during arguments without proper factual and legal foundation on record. It is a settled principle of law that a party cannot travel beyond its pleadings. In Sardar Muhammad Naseem Khan v.

v Returning Officer, PP-12 and others 12015 SCMR 1696), the Honourable Supreme Court observed:

"A party cannot tavel beyond the scope of its pleadings. It may be pertinent to mention here, that even if some evidence has been led by a pffiy, which is beyond the scope of its pleadings, the Court shall exclude and ignore such evidence from consideration."

Secondly, the EPI, though federally initiated, is not expressly listed as a separate entry in the Federal Legislative List. Moreover, after the Constitution (Eighteen Amendment) Act, 2010, the subject of health has been devolved to the provinces. Consequently, the provincial governments are fully competent to regulate recruitment, /a service structure, and related matters concerning health services within their respective j urisdictions.

6.Additionally, it may be noted that this Court has already dismissed a similar writ petition bearing W.P. No.

606-B12016 vide judgment, dated 11.07.2017, wherein identical questions of fact and law were raised. Similarly, the Hon'ble Peshawar High Court, Mingora Bench, has also dismissed writ petitions bearing W.P. Nos. 476'M, 491'M, 504-M, and 53l-M of 2016 vide judgment, dated 10.04.2017, wherein the same issues were addressed and the validity of the amended qualification criteria was upheld. The principle of consistency in judicial decisions, especially in similar matters, is vital for maintaining public confidence and institutional integrity.

'v 7, In view of the above, the petitioners have failed to make out a case for interference under Article 199 of the Constitution. The writ petition, being devoid of merit, is accordingly dismissed.

Announced.

Dt:20.5.2025.

Imran/* TUDGE

TUDGE

(D.B)

Hon'ble Mr. Justice MuhammadTari4 Afridi Hon'ble Mr. Justice Abdul Fayaz

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