JUSTICE (RTD) ABDUL GHANI SHAIKH, CHAIRMAN - Appellant S. Khursheed Hassan Hashmi on the basis of degree in M.Sc. Microbiology was appointed as Demonstrator in Pathology Department vide order dated 01.07.1975 on. Ad hoc basis under the old P.M.D.C. Regulations of 1979, which prescribed qualification for the said post as M.B.B.S. And/or M.Sc. His said appointment on the recommendation of the Sindh Public Service Commission was subsequently regularized in the year 1976, while serving as Demonstrator, appellant was taken up as an Assistant Professor in Pathology on ad hoc basis in the year 1985. His such appointment was also regularized on the recommendation of the Sindh Public Service Commission vide order dated 10.9.1989 w.e.f.
'22.05.1989 under P.M.D.C. Regulations of 1984. He at that time was M.Sc. Microbiology and M.Phil in Microbiology. On 07.01.1997 P.M.D.C. Regulations of 1997 came into force, whereby the non-medical personnel were not made eligible for the post of Associate Professor (Pathology). However, vide Notification dated 27.08.1999 a large number of Associate Professors were promoted to the post of Professors which includes three non-Medical Associate Professors and prior to that also number of non-Medical Asstt. Professors were promoted to the post of Associate Professors even after introduction of P.M.D.C. Regulations of 1997. Since appellant was not considered, he filed C.P. No. D- 221/2001 before the Honourable High Court of Sindh, Karachi which by order dated 29:03.2001 was dismissed in limine being not maintainable for want of jurisdiction. Immediately, thereafter 16 Assistant Professors were promoted to the post of Associate Professors vide Notification dated 19.05.2001 issued by the SGAD wherein four of appellant's, junior colleagues (Sr. Nos. 3 to 6) were also promoted but appellant was ignored. Feeling aggrieved, appellant preferred departmental appeal but it was rejected as per U.O. Letter dated 13.05.2002 on the ground that he does not possess the requisite qualification and that promotion cannot be claimed as matter of right which he assailed in the instant appeal.
2. In support of appeal, learned counsel for the appellant argued that initially under the old P.M.D.C.
Regulations of 1975, which prescribed qualification of M.B.B.S. And/or M.Sc. Appellant was appointed as Demonstrator in Pathology as at that time he was M.Sc. Microbiology. Appellant was then taken up as an Assistant Professor in Pathology on ad hoc basis in the year 1985. At that time appellant's qualification was M. Se. And M.Phil in Microbiology. In response to advertisement dated 10.05.1985 of Sindh Public Service Commission when appellant applied for the post of Assistant Professor Pathology (B-18) on regular basis, his application was rejected on the ground that he did not possess the basic medical qualification of M.B.B.S. As required for the said post as laid down in the P.M.D.C. Regulations, 1984. Appellant and one another challenged the said decision before Honourable High Court of Sindh, Karachi in C.P. Nos. D-255 and D-753/1998, which by consolidated judgment dated 26.07.1989 were allowed and appellant was declared qualified and eligible for the post of Assistant Professor (Pathology) under the Regulations of 1984; whereupon appellant's service as Assistant Professor of Pathology (B- 18) was regularized vide Notification dated 10.09.1989 w.e.f. 22.05.1989. Learned counsel further contended that despite being senior, fit and eligible for promotion to the post of Associate Professor (B-19) appellant was ignored and denied promotion on the pretext that in view of P.M.D.C. Regulations of 1997 appellant did not possess the requisite qualification were promoted along with many others vide Notification dated 19.05.2001.
Learned counsel added that since appellant's appointment as Assistant Professor was made under P.M.D.C. Regulations of 1984, therefore, for all practical purposes and intents his future career/promotion to be dealt with under the said Regulations of 1984, even otherwise P.M.D.C.
Regulations of 1997 have prospective effect, which clearly provides that; appointments already made .According to previous Regulations shall not be adversely affected by this Regulation and it further provides that; the holder of M.Phil (Microbiology) and M.Phil (Chemical Pathology) may be eligible for appointment as Assistant Professor, Associate Professor and Professor in Pathology with requisite experience. In these circumstances, learned counsel submitted that departmental authorities may be directed to consider appellant's name for promotion to the post of Associate Professor (B-19) in Pathology from the date of .Denial of such promotion. Learned counsel also filed written arguments annexing therewith certain documents in support of his contentions.
3. In rebuttal, learned Asstt. A-G. While referring the written statement and the provisions of the P.M.D.C. Regulations of 1997 argued that under new Regulations the prescribed qualification for Associate Professor in Pathology is M.B.B.S. And since the appellant did not possess the requisite qualification, therefore, he was rightly not considered for promotion to higher grade. She further submitted that holder of M.Phil (Microbiology) arid M.Phil (Chemical Pathology) may be eligible for appointment as Associate Professor but it is in addition of basic qualification of M.B.B.S. And not otherwise.
3. We have considered the above submissions and with the assistance of learned counsel for the parties have gone through the material placed on the record. In brief the case of appellant is that he was appointed initially on adhoc basis as Assistant Professor in the year 1985 and after being cleared by the Sindh Public Service Commission he was regularized as such vide Notification dated 10.05.1989. His such appointment and regularization was made under the P.M.D.C. Regulations of 1984, which prescribed basis qualification as M.B.B.S. Or equivalent medical qualifications recognized by P.M.D.C. And its explanatory note 21 provided that the holders of M.Phil (Microbiology) and M.Phil (Chemical Pathology) would also be eligible for. Such posts. Appellant at that time was M.Sc. And M.Phil in Microbiology and as per judgment in his C.P. No. D-753/1998 parsed by Hon'ble High Court of Sindh, Karachi dated 02.02.1989 he was declared qualified and eligible for the post of Assistant Professor (Pathology) under the P.M.D.C. Regulations of 1984 and was subsequently selected and regularized as such under the said Regulations of 1984. As regards appointment/promotion to the post of Associate Professor the basic qualification under the P.M.D.C. Regulations of 1984 was M.B.B.S. Or equivalent medical qualification recognized by the Pakistan Medical & Dental Council or M.Sc. In the respective subjects with at least 3 years teaching experience as an Assistant Professor in the relevant subject. While serving in such capacity, the P.M.D.C. Promulgated new Regulation on 07.01.1997 whereby the non-medical personnel were no longer eligible for the post of Associate Professor (Pathology) and for that reason appellant was not considered by the Department for promotion to the post of Associate Professor in Pathology. In this regard, it has been contended that since Regulations of 1997 have prospective effect, the incumbents appointed before promulgation of said Rules shall be governed by the Regulations of 1984. As against that the stance taken by the , respondents is that P.M.D.C. Has changed the Regulations in January, 1997, whereby the non-medical, personnel are no longer eligible for appointment and promotion to the post of Associate Professor (Pathology) and that although appellant acquired M.Phil in Microbiology so also Ph.D. In Microbiology, but since he lacked the requisite basic qualification of M.B.B.S. He is not eligible to be promoted to the post of Associate Professor under new Regulations of 1997.
4. We are afraid, the stance so taken by respondents has no force. There is no denial of the fact the Regulations of 1997 have retrospective effect from 7th January, 1997. Besides, in para. 11 of the explanatory ] notes/Rules to the said Regulations, it has clearly stated:- "Appointments already made according to the previous Regulations shall not adversely effected by these Regulations."
Likewise para-21 of the Explanatory Rules says that:- "The holder of M.Phil (Microbiology) and M.Phil (Chemical Pathology) may be eligible for appointment as Assistant Professor, 'Associate Professor and Professor? In Pathology with requisite teaching experience.'
It is also an admitted position that appellant possess teaching experience of nearly 17 years as an Assistant Professor, which is more than the requisite experience of 3 years as provided under Regulations of 1997. It is pertinent to mention here that much after the promulgation of Regulations of 1997, three non-Medical Associate Professors were promoted to the post of Professor (B-20) vide Notification dated 27.08.1999, but for unknown reason appellant despite being eligible was not considered for promotion.
5. The P.M.D C. In exercise of the powers under the P.M.D C. Ordinance, 1962 have powers to frame Regulations and also change, amend and alter the same from time to time. However, there is no cavil to the preposition that such change, amendment or alteration in the Regulations shall have no retrospective effect. Rules, orders and. Directions cannot be have retrospective effect to impair the existing rights of an incumbent. Admittedly, appellant's appointment was made under the P.M.D.G. Regulations of 1984, therefore, his future career is to be governed according to the Regulations which were prevalent on the day of his recruitment/appointment. It is elementary law that if a law is repealed the rights accrued and liabilities incurred under the repealed law continue in force as if the law had not been repealed and this is the principle applicable to the case in hand.
If an authority is heeded for this purpose we may refer to S. Abdul Ghaffar Wasti v. The Collector of Central Excise and Land. Customs and others (1982 SCMR 888) and Zulfiqar Ali Toor and others v.
Additional Chief Secretary to Government of Punjab and others (1984) PLC (C.S.) 1242). Both these cases were relied upon in a case of Rehmatullah Zia V. Aziz-ud-Din Qureshi and others (1999 PLC (C.S.) 132), wherein the Honourable Supreme Court (AJ&K) has observed that: it is well-settled that the rights and liabilities in respect of the seniority have to be determined in the light of law which was applicable when the appointments were made and not in light of the Rules which were framed many years later.
7. Appellant had acquired a vested right to be considered for promotion to, the post of Associate Professor under the Regulations of 1984 which could not have been taken away by applying the provisions of Regulations of 1997. In a case of Pakistan Steel Mills Corporation. v. Muhammad Azam Katper and others (2002 PLC (C.S) 1050), the Honourable Supreme Court referred a plethora of case-law on the point of vested rights, which includes the case of Kumir Mondal and others v.
Paramatha Nath Chandhary and others (PLD 1963 Dacca 886), wherein it was held by learned Judge that:- "Retrospectivity not to be inferred unless clearly arising from the Act and it would not impair existing rights as also vested rights cannot be effected by amending Act. - Maxwell in his Interpretation of Statutes, 9th Edition, at page 223 has made the following observation:- "Every statute, it has been said, which takes away or impairs vested rights acquired under existing law, or creates a new obligation creates a new duty, or attached a new disability in respect of transactions or considerations already past, must be presumed, out of respect to the Legislature to be intended not to have a retrospective operation. Where vested rights are affected prima facie it is not a question of procedure."
One could not overlook that there was always legitimate expectancy on the part of a senior civil servant to be promoted to a higher position which could only be denied for good and proper reasons. Under Regulations of 1997, no scope left for the promotion of Assistant Professors to the post of Associate Professors, which must not be the intention of P.M.D.C. While framing Regulations of 1997. It is one again reiterated that after framing of P.M.D.C. Regulations of 1997, the Government of Sindh, S&GAD vide its Notification dated 27.08.1999 promoted a large number of Asstt. Professors to the post of Associate Professor which included three non-Medical Associate Professors. Learned counsel for the appellant in his brief written arguments annexed a copy of U.O. Letter dated 30.07.2002 of Regulation Wing, S&GAD addressed to the Secretary, Health Department, the authenticity of which has not been challenged by the respondents. Relevant para-2 of the said U.O letter is reproduced-hereunder:-
2. Matter regarding Dr. Zafar Ali Pirzado's promotion on regular basis to the post of Professor of Bio- Chemistry (BPS-20) has been examined in detail in Regulation Wing, S&GAD and it is of the view, that the instant case is covered by the Pakistan Medical & Dental Council Regulations, 1997 and the incumbent is eligible for promotion to the post of Professor f on regular basis on the following grounds:-
(a) The decision/view taken by the Provincial Selection Board No. 1 in its meeting held on 07.02.2002 in respect of deferment of Dr. Pirzado's promotion to the post of Professor (B-20) does not appear to be in accordance with the P.M.D.C. Regulations which were in force at the time of appointment of Dr. Pirzado in 1987 and which do not restrict the. Appointment of non-Medical Graduates as Assistant Professor/'Associate Professor and Professor of Bio-Chemistry and thus the same became the basia for the initial appointment/induction in Government service of Dr. Pirzado as Assistant Professor or Biochemistry (BPS-18).
(b) The principles of natural justice and equity call for review of the decision of the P.S.B. No. 1 taken in its meeting held on 07.02.2002 as the Board in its earlier meeting on 25.3.1999 has already allowed promotion to the post of Professor of Bio-Chemistry (BPS-20) in respect of the colleagues of Dr. Pirzado who were not medicat graduates."
Besides learned counsel in his brief written arguments also annexed a photostat copy of letter dated 13.01.1991 of Secretary, P.M.D.C. Addressed to the Principal, Ayub Medical College, Abbottabad, which reads as under:- "Please refer to your letter No. Estt/91-AMC/413,' dated the 12th January, 1991 on the subject cited .
Above. This is to inform you that the current Regulations of the Council for the appointment of Lecturer/Senior Registrar, Assistant Professors, Associate Professors, Professors and Examiners shall be effective from 15th January, 1984 and shall not have retrospective effect. The persons appointed before 15th January, 1984 shall be governed by the Regulation on, the subject for appointments/promotions applicable at the time of their appointment to teaching cadre. You are, therefore, requested to please decides the case Dr. Shaukat Ali Orakzai accordingly."
6. For the aforesaid reasons, we are of the considered view that appellant, in the circumstances, had the right to be considered for promotion according to qualifications laid down in the Regulations of 1984 existing at the relevant time of appellant's appointment. Accordingly, the appeal is allowed and respondents are directed to consider appellant's name for the promotion to the post of Associate Professor in the light of the Regulations of 1984, which were in existence at the time of his appointment. There shall be no order as to costs.
7. Announced in open Court.
Given under our hands and seal of the Tribunal, this 11th day of July, 2006.