Overqualified person not always suitable for job for less qualified person.

Service case of overqualified person

in the following case the petitioners applied for the post of Line Superintendent Grade-I (BPS-

15) (“LS”) at LESCO in pursuance of an advertisement in 2015.

The post is a Diploma in Associate Engineering (Electrical) (“DAE”) with “B”

Grade from any Government Poly Technical Institution.

The job was advertised for diploma holder and matric qualification.

But petitioner was overqualified but had not diploma that was required , and also the qualification was different type and also the petitioner had not three years experience which was required for the job.

Petitioner was not selected for job by lesco .

He filled writ petition before High court

Against lesco and single judge accepted his writ petition and order his favour.

Lesco challenge the order before division bench and division bench order against the petitioner.

Division bench order was challenged in Supreme court and the Supreme court decision was against the defendant and in favour of Lesco.

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SUPREME COURT OF PAKISTAN

(Appellate Jurisdiction)

Bench-V:

Mr. Justice Syed Mansoor Ali Shah

Mr. Justice Muhammad Ali Mazhar

Mr. Justice Shahid Waheed

Civil Petition No.4806 of 2019

(Against the judgement of the Lahore High Court, dated 21.11.2019,

Passed in I.C.A No.1412 of 2016)

Waqas Aslam & others

...…. Petitioners

Versus

Lahore Electric Supply Company Limited, etc.

……. Respondents

For the petitioners:

Mr. Afnan Karim Kundi, ASC.

Ch. Akhtar Ali, AOR.

For the respondents:

Mr. Munawar-us-Salam, ASC.

Mr. M. Sohaib Rashid, ASC.

Assisted by:

Mr. Muhammad Hassan Ali, Law Clerk.

Date of hearing:

07.12.2022

JUDGMENT

Syed Mansoor Ali Shah, J.- Brief facts of the case are that

the petitioners applied for the post of Line Superintendent Grade-I (BPS-

15) (“LS”) at LESCO in pursuance of an advertisement in 2015. The

petitioners were not considered for the said post on the ground that they

did not meet the eligibility criteria/selection requirement as per the

advertisement. The refusal on behalf of the respondent company was

challenged by the petitioners through a constitutional petition, which

was allowed by the learned Single Judge and the respondent company

was directed to appoint the petitioners to the said post. The respondents

challenged the same before the Division Bench of the High Court through

an Intra Court Appeal, which was allowed through the impugned

judgment dated 21.11.2019 by holding that the petitioners did not meet

the requirement of the advertisement and secondly that the petitioners

being overqualified for the post were not suitable for the said position.

Petitioners have assailed the said judgment through this petition.

The learned counsel for the petitioners submits that the

petitioners hold a BS in Electrical Engineering (“BS degree”) and are

overqualified for the post advertised as the required qualification for the

C.P. No. 4806 of 2019 etc.

post is a Diploma in Associate Engineering (Electrical) (“DAE”) with “B”

Grade from any Government Poly Technical Institute. He submits that

being overqualified does not debar them from applying for the said post

and the policy of the respondent company as well as the impugned

judgment are, therefore, not sustainable.

The learned counsel for the respondent company on the

other hand submits that respondent company clearly specified the

eligibility criteria and qualification for the post of LS. The requirement

being Matric with 3-years DAE with “B” Grade from any Government Poly

Technical Institute plus 3-years’ experience of trade in any supervisory

post in any electric concern. As far as the qualification is concerned, he

submits that it is not within the domain of the Court to compare the BS

degree with the DAE and further that the petitioners do not have the

three years’ experience of trade of any supervisory post in any electric

concern. Therefore, having failed to meet the criteria advertised, the

petitioners are not entitled to be appointed to the post of LS. He submits

that it is not within the purview of the Court to judge equivalence of a

higher degree and carry out comparison with the qualification advertised

for the post. He further submits that the said posts are for people with

less qualification and, therefore, the respondent company does not

encourage persons who are overqualified to apply for the said job. He

further submits that it is an internal policy matter of the respondent

company to attract and target a specific set of people for the post of LS

and anyone having qualification over and above that what is advertised

for the post is considered not suitable by the company. The learned

counsel for the respondents relied on Sakhawat Ali1, P.M Latha2, Yogesh

Kumar3, Anita4 and Zahoor Ahmad Rather5 in support of his contentions.

Learned counsel for the respondent company, however,

submits that the petitioners have an unblemished service record of six

years with the respondent company, therefore, he does not now oppose

their appointments at this stage, but supports the impugned judgment in

principle and prays that the impugned judgment be maintained by this

Court for future appointments.

We have heard the learned counsel for the parties and have

examined the record and the case law submitted by the learned counsel.

1 Sakhawat Ali v. Deputy Commissioner/Chairman Recruitment Committee, Narowal,

1998 PLC (CS) 19.

2 P.M. Latha v. State of Kerala, (2003) 3 SCC 541.

3 Yogesh Kumar v. Govt. of NCT, Delhi, (2003) 3 SCC 548.

4 State of Punjab v. Anita, (2015) 2 SCC 170.

5 Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404

C.P. No. 4806 of 2019 etc.

We have noticed that the respondent company, publically advertised

various posts, including 89 posts of LS, clearly specifying the eligibility

criteria/qualification requirement for the said posts. The eligibility

criteria settled by the respondent company and duly advertised in the

public advertisement represents a policy decision of the respondent

company. While prescribing qualifications for a post and determining

eligibility criteria, the employing institution is best suited to assess its

needs based on the function and nature of the post; the aptitude or

suitability to fulfill such requirements and the qualification required for

the post. One of the policy decisions of the respondent company is that a

LS must be a DAE holder and anyone overqualified will not be inducted.

This being an internal policy decision of the respondent company,

judicial review must tread warily and must not be extended to expand

the ambit of the prescribed eligibility criteria, as has been rightly held in

the impugned judgment6.

It is also important to note that in the absence of any such

stipulation in the advertisement or the recruitment policy of the

respondent company, it is not possible for the Court to draw an inference

that a higher qualification presupposes the acquisition of a lower

qualification or that a candidate having a higher qualification is better

suited for the post as opposed to a candidate possessing the requisite

qualification that has been expressly prescribed in the advertisement

according to the nature of the post and the requirement of the employer7.

As stated above, it is not for the Court to examine the qualification and

eligibility in a recruitment process. The Court, at best, can look into the

legality of the recruitment process but cannot delve deeper into the

design and need of the employing institution or second guess their

selection criteria and job requirement. It is also not open to the Courts to

embark upon comparing various degrees held by the applicants with the

advertised qualifications and carry out the function of an employer by

carrying out the comparison of the said qualifications. The power of

judicial review by the Courts cannot be extended to determine

equivalence or comparison of academic qualifications for a post or

assume the role of a human resource department of an employing

institution. It is a specific expert area and can be best resolved by the

institution itself according to the suitability and requirements of a

certain post as designed and desired by the employer. It is an area for

6 Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404; Asaf Fasihuddin v. Govt.

of Pakistan, 2014 SCMR 676; Abdul Hameed v. WAPDA, 2021 SCMR 1230.

7 Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404.

C.P. No. 4806 of 2019 etc.

which the Courts are not best suited8. Therefore, there is no force in the

contention that since the petitioners possess a higher qualification than

what has been advertised, they are to be necessarily considered eligible

for the post.

Furthermore, inducting candidates possessing a higher

qualification than the advertised criteria for LS would also have a social

impact as it would deprive people with lesser education of employment

opportunities and encourage people with higher qualification9. It will

cause injustice to those applicants who possess a DAE, the prescribed

qualification in the advertisement, because applicants with a higher

qualification

would seek automatic

preference based on their

qualification even when such qualification is not prescribed in the

advertisement. It will also disrupt the working of the institution by

having overqualified people as LS and affect their hierarchy in the

organization.

The Court

must take

into account

socio-economic

perspectives in order to ensure that employment opportunities are

created for at all tiers of the society10. The Division Bench of the High

Court has, therefore, rightly repelled the contention of discrimination by

placing reliance on judgments of this Court11. The eligibility criteria,

advertised in accordance with the recruitment policy of the respondent

company, creates a distinct class of persons who are DAE holders and

are eligible to apply for the post of LS. Whereas, the petitioners who do

not hold such qualification do not belong to the said class of candidates.

As such, there is no discrimination if the employing institution decides to

only consider candidates who hold the prescribed qualification of DAE

instead of the petitioners who do not possess the same and are over or

differently qualified. Consequently, it cannot be held that the respondent

company’s policy of not inducting applicants with a higher qualification

to the post of LS is discriminatory or arbitrary. Infact such an internal

policy provides social justice by opening up employment at different tiers.

Recruitments, therefore,

are to be made strictly in

accordance with the criteria in the advertisement and the recruitment

policy of the respondent company, and any deviation therefrom, would

allow entry to ineligible persons and deprive many eligible candidates.

8 P.M. Latha v. State of Kerala, (2003) 3 SCC 541.

9 Sakhawat Ali v. Deputy Commissioner/Chairman Recruitment Committee, Narowal,

1998 PLC (CS) 19.

10 Zahoor Ahmad Rather v. Imtiyaz Ahmad (2019) 2 SCC 404.

11 Asdullah Mangi v. PIAC, 2005 SCMR 445; F.B. Ali v. The State, PLD 1975 SC 506;

C.P. No. 4806 of 2019 etc.

The employing institution could have prescribed a BS degree as the

qualifying criteria, however, the fact that it did not, indicates that the

candidates with the prescribed qualification criteria i.e. DAE were

required and would be deemed as eligible to apply12. The prescribed

qualification in the advertisement being a DAE is an essential

requirement which cannot be dispensed with. Applicants not possessing

such qualification, albeit possessing some other higher qualification, are

ineligible unless the employing institution’s recruitment policy catered

for applicants that possessed a higher qualification.

In this view of the matter, we hold that the autonomy,

agency and free choice of the employing institution must be respected

and be allowed to recruit according to the criteria advertised and anyone

overqualified for the said post, if not entertained by the employing

institution, the same being an institutional policy, the Court must refrain

from interfering in the internal governance of institutions.

10.

In the present case, the petitioners also do not have three

years working experience and on this score alone do not meet the

advertised criteria. However, the learned counsel for the respondent

company have been gracious enough and have stated that the petitioners

having worked for the institution for the last six years with an

unblemished service record, they do not oppose their appointment at this

stage of their career. Learned counsel for the respondents, however, pray

that this is to be considered as a one-time concession and is not to be

considered as a precedent in future as long as the impugned judgment is

maintained.

11.

In the above background, this petition is disposed of with the

observation that the impugned judgment for the reasons given in this

judgment, is upheld. However, this shall not affect the appointment of

the petitioners who shall continue to work as per the terms and

conditions of their appointment as agreed by the respondent company.

Disposed of in the above terms.

Islamabad,

07th December 2022.

Approved for reporting

Sadaqat

Judge

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