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Petitioner: Dr. ABRAR MAQBOOL VS Respondent: GOVERNMENT OF PUNJABHonorable Justice Maulvi Anwarul HaqMuhammad Bashir Kiani,Tanvir Iqbal
2004 P L C (C
2004 P L C (C.S.) 373
[Lahore High Court]
Before Maulvi Anwarul Haq, J
Dr. ABRAR MAQBOOL and 2 others
versus
GOVERNMENT OF PUNJAB through Secretary, Health Department and another
Writ Petition No. 2410 of 1998, heard on 22nd October, 2003.
Pakistan Medical and Dental Council Ordinance (XXXII of 1962)‑‑‑
‑‑‑‑S.33‑‑‑Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, Sched. II‑‑‑Constitution of Pakistan (1973), Arts. 143 & 199‑‑‑Constitutional petition‑‑‑Appointment‑‑‑Eligibility of candidate‑‑‑Petitioners/candidates pursuant to an advertisement issued by Public Service Commission, for appointment of Assistant Professors of Surgery, filed applications for such appointment‑‑‑Petitioners, however. were refused to be interviewed on the ground that because of their tow percentage of marks in M.B.,B.S., they could not be interviewed‑‑ Pakistan 'Medical and Dental Council Regulations, 1985 framed under S.33 of Pakistan Medical and Dental Council Ordinance, 1962, had provided that if a candidate was qualified and had requisite experience, then the merit was to be inter‑judged with reference to preferences of priority and first preference was Teaching experience, second preference was practical experience after Post‑Graduation and third preference was practical experience before Post‑Graduation‑‑‑Provincial Government had taken the plea that according to Punjab Health Department (Medical and Dental Teaching Posts) Rules, 1979, no provision existed with regard to preference of teaching or practical experience ‑‑‑Validity‑‑ Pakistan Medical and Dental Council Regulations, 1985 framed by Pakistan Medical and Dental Council, in exercise of powers under Pakistan Medical and Dental Council Ordinance, 1962, which was a Federal Statute was in conflict with provisions of Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 which was a Provincial Statute‑‑‑Provincial Statute would have to give way to Federal. Statute in view of provisions of Art. 143 of the Constitution‑‑‑High Court, accepting Constitutional petition, directed that Public Service Commission would evaluate petitioners/candidates strictly in accordance with Pakistan Medical and Dental Council Regulations, 1985 by observing order of preference prescribed therein.
Dr. Abrar Hussain Ahmad Khan and others v. Government of Punjab through Secretary and others 1995 CLC 1409; Miss Hina Javed and others v. Government of N.‑W.F.P. and others 1998 SCMR 1469; Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others 1995 SCMR 421 and Dr. Riaz Ahmad v. Government of Punjab and 6 others 1999 PLC (C.S.) 359 ref.
Muhammad Bashir Kiani for Petitioners.
Tanvir Iqbal, A.A.‑G. for Respondents.
Date of hearing: 22nd October, 2003.
JUDGMENT
Pursuant to an advertisement issued by respondent No.2 in National Press on 6‑9‑1998 inviting applications, inter alia, for the appointment of 4 Assistant Professors of Surgery in the Punjab Health Department, the petitioners filed application. They were, however, refused to be interviewed on the ground that because of low percentage of marks in MBBS they cannot be interviewed. According to the petitioners this constitutes violation of the Regulations framed by the Pakistan Medical and Dental Council (P.M.D.CJ: According to which if a candidate is qualified has requisite experience then the merit is to be inter‑judged with reference to preferences of priority laid down by the said P.M.D.C.
2. In their parawise comments respondent No.2 has admitted that the petitioners No.l and 2 are eligible while the petitioner No.3 has not the requisite experience being less than two years on the closing date for receipt of applications. It was then stated that the respondent Commission has made recommendation strictly in accordance with Rules and Regulations as provided by Health Department and P.M.D.C.' Regulations as amended up to 7‑1‑1997. At another place it has been mentioned that Commission has to follow Rules and Regulations provided by Health Department. Provincial Government has taken the position that according to the existing Service Rules, there is no provision regarding preference of teaching or practical experience. It has further been asserted that the Service Rules have been framed in accordance with minimum qualification prescribed by P.M.D.C. Regulations.
2‑A. Mr. Muhammad Bashir Kiani, learned counsel for the petitioners contends that although the Service Rules as amended on 10‑4‑1995 do give an impression that the said preference clause in the matter of experience has been done away with, however, in the Regulations framed the P.M.D.C. the said preference clause is very much there. The precise contention is that Regulations having been framed in exercise of powers vesting in the said Council under P.M.D.C. Ordinance, 1962 being in apparent conflict with the said Provincial amendment as being construed by the respondents, said Federal Legislation would prevail and since the petitioners have not been judged in accordance with said Regulations, the act of the respondent‑Commission in not interviewing the petitioner and evaluating them in accordance with‑ said preference clause would be void. He relies on the case of Dr. Abrar Hussain Ahmad Khan and others v. Government of Punjab through Secretary and others (1995 CLC 1409).
3. Learned Assistant Advocate‑General, on the other hand, contends that by virtue of amendment made on 10‑4‑1995 by the Governor of Punjab in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, the provisions of Schedule‑II relating to the post of Senior Registrar and ‑Assistant Professor stands substituted as a whole and consequently all the candidates were evaluated on the basis of qualifications so prescribed by way of the said amendment vide a notification dated 10‑4‑1995 and such an evaluation cannot be interfered with being in accordance with the existing Rules.
4. I have given some thought to the respective contentions of the learned counsel and learned Law Officer. Now I find that as per Regulations for Appointment of Teachers and Examiners in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan as framed by, P. M. D. C. and amended upto 7‑1‑1997, following is provided in terms of basic and additional qualifications and experience:‑‑
Post
Basic Qualification
Additional (Postgraduate) Qualifications
Experience
Assistant Professor
MBBS or equivalent medical qualifica- tions recognised/ PM&DC
F.C.P.S./M.S./M.D. in respective subject. OR other equivalent ! registered by the Speciality recognised/ registered by the PM&DC
Three years teachings/practical experience in the qualifications in the respective subject in the recognized institution in order of following preference: 1st preference Teaching experience. 2nd Preference Practical experience after , Postgraduation. 3rd Preference Practical experience, before Postgraduation.
Now I find that vide notification published in the Punjab 'Gazette on 3:7‑1988 Schedule‑II of Punjab Health Department (Medical & Dental Teaching Post) Service Rules, 1979, with reference to the posts of Senior I Registrar and Assistant Professor was brought in accord with the said Regulations as reproduced by me above.
5. Now amendment, being relied upon by the learned A.A.‑G. was made in the said Rules 1979 vide notification dated 10‑4‑1995 and reads as follows:‑‑
"In Schedule‑II for the qualification for appointment by initial recruitment/promotion against the post of Senior Registrar/ Assistant Professors in all the specialities, the following shall be substituted:‑‑ '
(i) MBBS or equivalent medical qualifications recognized by 'the PMDC and the post graduate qualifications of FCPS/MS /FRCS/ MRCP/ Diplomate of American Board in the respective speciality or equivalent medical qualifications in the respective speciality recognized by the P.M.D.C.
OR
(ii) MBBS or equivalent medical qualification recognized by the PMDC with. FCPS/MS/FRCE/MRCP/Diplomate of American Board (General Surgery/Medicine or any other equivalent medical qualification recognized by the PMDC with 3 years practical experience in the respective speciality in a recognized institution after post‑graduation".
Now learned A.A.‑G insists that the said Schedule‑II which was in accord with the provisions of the said Regulations framed by PMDC. stands wholly substituted and said preference clause no longer exists.
6. Now to my mind, a reading of the said amendment made by the said notification dated 10‑4‑1995 in juxta position to the Schedule‑II as amended vide notification published in Punjab Gazette on 3‑7‑1988 clearly gives impression that only qualifications have been substituted and preference clause remains inacted.
7. Now assuming that the contentions of the learned A.A.‑G. is correct. Now the said case of "Dr. Abrar Hussain Ahmad Khan and others" being relied upon by the learned counsel for the petitioner does go to hold that the Regulations framed by PMDC in exercise of powers under the Federal Statute i.e. PMDC Ordinance, 1962, if in conflict with the provisions of the said Provincial Statute i.e. said Service Rules 1979, Article 143 of the Constitution would‑come into play and said Provincial Statute will have to give way to the said Federal Statute. I may note here that his lordship was dealing with the same Regulations and same Rules in another context. Now the fact that the said Regulations have a statutory validity find support from the observations in the cases of Miss Hina Javed and others v. Government of N.‑W.F.P. and others (1998 SCMR 1469) and Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421).
8. Mr. Muhammad Bashir Kiani, learned counsel for the petitioner, also draws my attention to the judgment in the case of Dr. Riaz Ahmad. v. Government .of Punjab and 6 others (1999 PLC (C.S.) 359). Incidentally in this particular case this very Regulations came up for consideration with reference to said amendment dated 10‑4‑1995. Petitioner before his lordship contended that the said qualifications at '(i) and (ii) above would constitute two classes and such candidates with qualification at (i) will have to be preferred over the candidates with qualification (ii). His lordship reproduced the said Regulations and while rejecting the contentions of the petitioner before him observed that where preference has to be given, specific provisions have been made and this observation of his lordship has reference to 1st, 2nd and 3rd preferences in the matter of Assistant Professor.
9. Now I will for a moment revert back to the position taken by both the respondents and particularly respondent‑Commission in the comments. I have already stated above that the respondent‑Commission has insisted that it has conducted proceedings strictly in accordance with the Regulations as amended upto 7‑1‑1997. I have already reproduced above the relevant Regulations framed by the PMDC which by all means is a legislation under a Federal Statute in exercise of powers vesting in the said PMDC under section 33 of the PMDC Ordinance, 1962. Now Regulations clearly lay down the preference and manner in which the preference is ' to be given. It will thus be seen that where equally qualified candidates holding the requisite qualification are before the Commission, then it has to go by orders of preference stated in the said Regulations made by the PMDC and this has admittedly not been done.
10. For all that has been discussed above, this writ petition is allowed, the result would be that the respondent‑Commission shall evaluate the petitioners vis‑a‑vis the other candidates strictly in accordance with said Regulations made by the PMDC and observing the order of preference prescribed therein. No order as to costs.
H.B.T./A‑1027/L Petition allowed.