MOHAMMAD SAYEED AKHTAR, J.--- A common question of law and fact is involved in W.P. Na.
20684/2002 and W.,P. 2884/2003, I propose to dispose of these two by a common judgment.
2. The facts giving rise to these petitions are that the respondent No. 4 was initially employed at Data Darbar Hospital, a Non-Governmental Institution after obtaining a degree in Dental Surgery.
He was appointed as Medical Superintendent in the same hospital. He also obtained Masters Degree in the Dental Surgery. Later on he was appointed as Medical Superintendent in the Punjab Dental Hospital on the recommendation f the Punjab Public Service Commission .Vide notification dated 11.3.1996. Thereafter, he was transferred and posted as Chief Dental Surgeon, Services Hospital, Lahore vide Notification July 4, 1997. On 2.8.1999 he was transferred and posted at Allama Iqbal Medical College/Jinnah Hospital, Lahore against the post of Professor of Dental Surgery. On 7.3.2002 the respondent was again transferred and ousted as Medical Superintendent in Punjab Dental Surgery Hospital, Lahore. In the said notification dated 7th March, 2000 the respondent was described as Professor of Dentistry. It is pertinent to mention here that the respondent never joined the teaching cadre nor taught in any of the Institutions. The petitioner who was a Professor of Dentistry and the acting Principal of De, Montmorency College of Dental Sciences, Lahore objected to the title of Professor arrogated by the respondent. The mistake was rectified by the Punjab Government vide notification dated February 27, 2001 whereby the 'word Professor' was omitted from his name. The respondent represented against the notification dated 27.2.2001 omitting the word Professor of Dentistry from his name but the same was rejected by the Government vide notification dated 10.7.2001. Vide notification dated 13th September, 2002 the Governor of Punjab re-designated the post of Medical Superintendent as Project Director/Dean Institute of Dental Sciences, Lahore and appointed the respondent as Projector Director/Dean, Institute of Dental Sciences, Lahore with immediate effect and also re-employed him w.e.f. 10.1.2003.
The petitioner again objected to the same vide letter dated 27.9.2002 on the ground that the respondent not being of teaching cadre could not assume the title of Dean of the Institute. Another notification dated 21st December, 2002 was issued re-employing the respondent as Project Director/Dean, Institute of Dental Sciences, Lahore w.e.f. 10.1.2003. The afore-mentioned notification reads as under:- "No. SOE-11/7-29/97. -- The Governor of the Punjab has been pleased to redesignate the post of Medical Superintendent (BS-20) as Project Director/Dean, Institute of Dental Sciences, Lahore.
2. Dr. Muhammad Rafique Chatha, Medical Superintendent (BS-20), Punjab Dental Hospital, Lahore is hereby appointed as Project Director/Dean, Institute of Dental Sciences, Lahore with immediate effect."
The respondent retired on 10.1.2003 after reaching the age of superannuation, however he has been reemployed as Project Director/Dean, Institute of Dental Sciences, Lahore w.e.f. 10.1.2003.
3. The learned counsel for the petitioner contended that the respondent never joined to the teaching cadre of the Medical Colleges as such could not be appointed as Dean, Institute of Dental Sciences, Lahore under the garb of Project Director. His argument was that only a Professor can be appointed as a Dean. The petitioner admittedly did not teach even for a single day. He referred to para 1(viii) and para 2 to the 1st Schedule to the Statutes of the University of the Punjab Act, 1973. He also cited para 3 of the Schedule to the University of Health. Sciences Ordinance, 2002 maintaining the same. He further argued that Medical Council constituted under Medical, Council Ordinance XXXII of 1962 is empowered under Section 33(2)(d) of the said Ordinance to make Regulations with the previous sanction of the Central Government "prescribing minimum qualifications and experience required of teachers for appointment in Medical and Dental Institutions". To be appointed a Professor three years teaching experience as Associate Professor in the respective subject, provided that total experience as Assistant and Associate Professor is not less than eight years, is required. Learned counsel urged that under the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 the prescribed qualification is similar. Learned counsel further urged that the re-employment of Government Servants after superannuation cannot be made unless such re-employment is necessary in the public interest and the substitute of the retired officer cannot be found.
Conversely the learned A.A.G. And the learned counsel for the respondent submitted that the Council of the College of Physicians and Surgeons in recognition of the meritorious academic contributions conferred FCPS degree and the fellowship of the College of. Physicians and Surgeons on the respondent under Section 9(2)(g) of Pakistan College of Physicians and Surgeons Ordinance, 1962.
The respondent having the administrative experience has been appointed as Project Director and Dean of the Institution. The respondent has been re-employed as per reemployment policy of the Government. He has neither been promoted nor appointed as Professor. They also raised a preliminary objecting that the instant petition was not maintainable in view of the bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973.
4. I have considered the arguments of the learned counsel for the parties and gone through the relevant provisions of the Statutes and the Regulations framed thereunder. Admittedly the respondent No. 4 does not belong to the teaching cadre of the Medical Sciences. Since the title of Professor has been withdrawn by the Government of Punjab vide notification dated 27th of February, 2001 and the representation of the respondent against the said notification was turned down by the Health Department, Government of Punjab vide letter dated 10th July, 2001, there is no need to dwell on this point. The relevant portion of the letter is reproduced as under:- "The Health Department does not see any reason or justification to agree to the contents of the representation where he himself assumed the title of Prof. Of Dentistry. He was simply adjusted against the post of Professor of Dentistry at Allama Iqbal Medical College/Jinnah Hospital, Lahore, from where he was brought to the Punjab Dental Hospital, Lahore as Medical Superintendent."
Before the promulgation of the University of Health Sciences, Lahore Ordinance LVIII of 2002 the Medical Institutions were governed by the University of the Punjab Act, 1973 and its Statutes Para 1(viii) of the Schedule of (1st Statute of the University of Punjab) under Section 49 of the Punjab University Act, 1973 shows the Faculty of Medicine and Dentistry as one of the Faculties of the University of Punjab comprising the subjects in the Colleges of Medicine and Dentistry affiliated to the University. Para 2 of the said Schedule relating to the Dean reads as under:-- "2. (1) There shall be a Dean of each Faculty, who shall be the Chairman and convener of the Board of the Faculty.
(2) The Dean of each Faculty shall be appointed by the Chancellor from amongst the three senior most Professors in the Faculty for a period of three years and shall be eligible for re-appointment.
(3) The Dean shall present candidates for admission to degrees except Honorary Degrees, in the course falling within the purview of the Faculty.
(4) The Dean shall exercise such administrative and academic powers as may be delegated to - him."
The respondent was appointed as Project Director/Dean, Institute of Dental Sciences vide notification dated 13th September, -2002 and was re-employed and appointed against the same position for a period of two years w.e.f. 10.1.2003 vide the same notification and again re-employed vide notification dated December 21, 2002. After coming into force of the University of Health Sciences, Lahore Ordinance, 2002 on 28th September, 2002 the Dean of each Faculty is to be appointed under para 3 of the Schedule (1st Statute of the University of Health Sciences) which is as under:- , Dean. -- (1) There shall be a Dean of each Faculty, who shall be the Chairman and Convener of the Board of Faculty.
(2) The Dean of each Faculty shall be appointed by the Chancellor from amongst the three senior most Professors in the Faculty for a period of three years and shall be eligible for re-appointment: Provided that if no Professor is available in a Faculty a Professor from some other Faculty may act as Dean till a Professor of the Faculty itself is appointed.
(3) The Dean shall present candidates for admission to degree except Honorary Degrees, in the course falling within the purview of the Faculty.
(4) The Dean shall exercise such administrative and academic powers as may be delegated to him."
The qualification of a Professor as prescribed by the Regulations issued by the Punjab Medical and Dental Council for appointment of Teachers and Examiners in Dental Colleges/Institutions is as follows:-- Professors do D.Sc./Ph.D M.D.S(Pak)/M.PhilThree At least 2.At least 2 ResearchNo person with minor or equivalent postgraduate recognized by the PM&DC.years teaching experience as an Associate Professor in the respective subject provided that total Experience as an Associate Professor is not less than eight years OR Nine year teaching exprince as an assistant profeesor in the respective subject. papers to be published in standard dental/medical- journal as approved by PM&DC before promotion as Professor.post graduation qualification will be eligible for appointment as Professor .
Similarly the qualification prescribed by Punjab Health Department Medical and Dental (Teaching Posts) Rules 1979 for appointment of Professor is as follows:-- Professor (i)Qualification, as prescribed in clause for initial appointment to the post of Assistant Professor of the speciality; and
(ii) Eight years teaching experience in the subject in a recognized institution, as Assistant Professor or an equivalent position recognized by the Council.
Para 2 of the 1st Statutes of the University of the Punjab clearly reveals that Dean of each Faculty is to be appointed by the Chancellor from amongst the three senior most Professors in the Faculty for a period of three years and shall be eligible for re-appointment. If no Professor is available in a Faculty, a Professor from some other Faculty may act as Dean till a Professor of a Faculty itself is appointed. Para 3 of the same Statutes reads as under:- "3. (1) There shall be a Teaching Department/Institute for each subject or a group of subjects, as may be prescribed by Regulations and each Teaching Department/Institute shall be headed by a Chairman/Director.
(2) The Chairman of Teaching Department and the Director of an Institute shall be appointed by the Syndicate on the recommendation 'of the Vice-Chancellor from amongst the three senior most Professors of the Department for a period of three years and shall be eligible for reappointment: Provided that in a Department where there are less than three Professors the appointment shall be made from amongst the three senior most Professors and Associate Professors of the Department: Provided further that in a Department in which there is no Professor or Associate Professor, no such appointment shall be made and the Department shall be looked after by the Dean of the Faculty with the assistance of the senior most teacher of the Department.
(3) The Chairman of the Department/Director of the Institute shall plan, organize and supervise the work of the Department/Institute and shall be responsible to the Dean for the work of is his Department/Institute."
There has to be a Teaching Department/Institute for each subject or a group of subjects which shall be headed by Chairman/Director who shall be appointed by the Syndicate on the recommendation of the Vice-Chancellor from amongst three senior most Professors of the Department. The Dean of Fadulty can be appointed by the Chancellor from amongst three senior most Professors. The respondent was first appointed as Project Director/Dean of the Institute of Dental. Sciences vide notification dated 13th September, 2002 when the University of the Punjab Act, 1973 was in force. He was re-employed vide another notification dated 21st December, 2002 when the University of Health Sciences Ordinance, 2002 stood promulgated on September 28, 2002. The Regulations framed by the Pakistan Medical and Dental Council as well as Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 prescribe the afore- mentioned qualifications for a Professor. Admittedly, the respondent does not possess the said qualifications. He has never been in the teaching cadre much less a Professor. A Dean of a Faculty can be appointed by the Chancellor from amongst the three senior most Professors in the Faculty.
No doubt the Governor is the Chancellor but the appointment of the respondent as Dean under the garb of Project Director impinges upon the above statutory provisions and the rules mentioned above. The respondent in no way qualifies to be appointed as Dean. The summary prepared for appointment of the respondent in the teaching cadre states as under- "The Health Department is of the view that since the fellowship of the College ,of Physician and Surgeons has been conferred upon Doctor Chatha, it would be appropriate to re-designate the post of Project Director/Dean of Institute, thus enabling him to undertake the teaching assignment too."
It appears that whole exercise has been done in order to absorb' the respondent in the teaching cadre. The appointment of the respondent being clearly in violation of the Statutes and the Rules is unsustainable in law.
5. I also tend to agree with the learned counsel for the petitioner that the Civil Servant beyond the age of sixty years, could not be re-employed in very exceptional circumstances and in the public interest. The Notification No. SORI(S&GAD)10-1/71(II), dated 2nd February, 1982 reads as under:- "2. As regards re-employment of such civil servants in Corporations, Autonomous and Semi- Autonomous Bodies etc. Each case may be considered by such organizations on merits, only if no other suitable person is available and it would be in the interest of the Organization concerned to employ him. This would, however, be subject to the instructions conveyed in this Department's letter No. SORI(S&GAD)10-1/71, dated 1st September, 1979 (copy enclosed) and observance of the procedure prescribed in the Federal Government Memo. No. 2/2/78-CV, dated 24th December, 1979 circulated with this Department's endst. No. SORI(S&GAD)10- 1/71, dated 8th February, 1979 (copy enclosed)."
It is not the case of the respondent that a suitable person to be appointed as Dean of the Institute is not available. It also does not show that it is in the interest of the organization. The respondent has tried to achieve something which he could not during his service as Civil Servant. In my view the re-employment of the respondent is not in the public interest, in fact it will deprive a Civil Servant of his right to be appointed to the said post. The re-employment of civil servant after reaching superannuation is discretionary with the Governor. It is one thing to confer a benefit on a civil servant but it is another to defeat the law/rule to bolster an individual's case so as to destroy another's right.
Reverting to the objection of the learned A.A.G. That the jurisdiction of this Court is barred under Article 212 of the Constitution of Islamic Republic of Pakistan, 1973, suffice to say that the matter does not pertain to the terms and conditions of the petitioner. No appeal lies to the Service Tribunal against an order or decision of departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post. See I.A. Sharwani and others Vs. Government of Pakistan through Secretary, Finance Division, Islamabad and others (1991 SCM R 1041).
6. The upshot of the above discussion is that the impugned notifications dated September 13, 2002 and 21st December, 2002 are declared to be without lawful authority and of no legal effect and are hereby quashed. Parties to bear their own costs.