Bakht Munir vs Secty. Health NWFP

2014 P L C (C.S.) 226

[Peshawar High Court]

Before Mian Fasih-ul-Mulk Khan and Muhammad Daud Khan, JJ

BAKHT MUNIR

Versus

SECRETARY HEALTH, GOVERNMENT OF N.W.-F.P., PESHAWAR and 4 others

Writ Petition No.1947 of 2009, decided on 22nd October, 2013.

(a)Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Qualification of "Dental Technology"---Interpretation and scope---Petitioner having certificate of dental assistant applied for the post of Junior Clinical Technician Dental---Department appointed a candidate having diploma of "Dental Hygienist"---Contention of the petitioner was that candidate having certificate of "Dental Assistant" was eligible for appointment against the post in question--- Validity---Word "Dental Technology" had been used in the advertisement of post in question--- "Dental Technology" would cover all paramedic's qualifications on dental side---Diploma of "Dental Hygienist" and certificate of "Dental Assistant" had no difference and included in the term of "Dental Technology" for the purpose of appointment of "Junior Clinical Technician Dental"---Appointee had diploma of "Dental Hygienist", which was higher qualification than the petitioner who had certificate of "Dental Assistant"---Constitutional petition was dismissed.

(b)Constitution of Pakistan---

----Art. 199---Constitutional petition---Civil service---Appointment---Administrative domain of government---Judicial review by superior courts---Scope---Appointment to a particular post was a matter falling exclusively within the administrative domain of the government, therefore the same was not open to judicial review---Candidate having higher qualification than the required one could not be made him ineligible for a post---Constitutional petition was dismissed.

Sayyed Badshah for Petitioner.

Muhammad Javed, A.A.-G. for Respondents.

Syed Abdul Haq for Respondent No.5.

Date of hearing: 22nd October, 2013.

JUDGMENT

MUHAMMAD DAUD KHAN, J.--- Petitioner is aggrieved of the appointment order of respondent No.5 dated 23-4-2009 on the post of Junior Clinical Technician Dental mainly on the ground that respondent No.5, having the qualification of Dental Hygienist could not have been given preference over the petitioner, who is having the Certificate of Dental Assistant. Petitioner, therefore, has prayed through instant writ petition that the appointment order of respondent No.5 may be cancelled and instead petitioner be appointed on the said post.

2.Respondents Nos.3 and 4 as well as respondent No.5 have offered their para-wise comments to the writ petition. According to them, proper Departmental Selection Committee was constituted for the purpose, which conducted test/interview strictly in accordance with law and the Rules; that respondent No.5 having obtained higher marks along with Fazal Sattar and Muhammad Naeem (Not made parties to the writ petition) were placed at Serial Nos.1 to 3, whereas petitioner according to merit position was placed at Serial No. 4 of the merit list, therefore, no illegality has been made by respondents while selecting respondent No.5, being No.1, on the merit list.

3.Arguments of learned counsel for the parties were heard and the available record perused with their valuable assistance.

4.A look at the advertisement at Page No.13 of the file would reveal that minimum qualification for the post in question was Matric (Science) and a Certificate from the Government Institution in Dental Technology. It is further evident that petitioner and respondent No.5 both are having F.A. qualification. Besides, petitioner is a Certificate holder from Khyber Pakhtunkhwa Medical Faculty, Peshawar and registered as such with it as Dental Assistant. Respondent No.5 is a Diploma-holder from the College of Medical Technology, Pakistan Institute of Medical Sciences, Islamabad and he too is a registered diploma holder with the Medical Faculty, Peshawar as Dental Hygienist. There is no cavil to the fact that the qualification of respondent No.5 in Medical Technology is higher than the qualification of petitioner.

5.In the advertisement, the word "Dental Technology" is used, which cannot be given a narrow interpretation that only a Certificate holder of Dental Assistant would be eligible for the

post. In our view the word "Dental Technology" covers all paramedic's qualification on Dental side and thus there is no difference in both the qualifications which are admittedly of Dental Technology, rather the qualification of respondent No.5 is higher than the petitioner in the relevant field.

6.The minimum academic qualification as per advertisement was Matric with Science. As stated above, both the candidates are having academic qualification upto F.A. The merit list attached with the writ petition would indicate that both the petitioner and respondent No.5 were given marks for Matric and F.A. According to the marks criteria respondent No.5 was given 50- marks of Matric as he had passed the same in 1st Division, whereas petitioner was granted 38- marks having passed Matric examination in 2nd Division. Both of them were given 6/6 marks for F.A. and 20/20 marks for their Dental qualifications, whereas respondent No.5 was awarded 7- marks of interview as against 5-marks obtained by petitioner and thus respondent No.5 having secured higher marks was placed at Serial No.1 of the merit list. We have thus noted no illegality or mala fide on part of the Selection Committee in this regard. Similarly, it cannot be said that candidates having higher qualification than Matric were not eligible to compete for the post, as minimum qualification for the post was Matric, meaning thereby that there was no restriction on qualification higher than Matric.

It is well-settled principle, as per pronouncement of the higher Courts that appointment to a particular post is a matter falling exclusively within the administrative domain of the Government; hence the same is not open to judicial review. This Court in the cases of "Muhammad Azim and others v. Government" (W.P. No.652 of 1998, decided on 2-5-2000) and "Jan Muhammad and others v. Secretary Education and others" W.P. No. 1472 of 2003, decided on 31-3-2004) have held that a candidate having higher qualification than the required one cannot be made ineligible to apply for a post. The judgment of this Court relied upon by the learned counsel for petitioner in W.P. No.651 of 2006, with utmost respect, cannot be applied to the facts and circumstances of the instant case and therefore petitioner has failed to make-out a case for issuing the requisite writ against the respondents.

For reasons stated above, this writ petition being meritless is dismissed as such.

JJK/640/P Petition dismissed.