IQBAL HAMEED-UR-RAHMAN, CJ. --- Through the instant Constitutional petition, the petitioners seek declaration to the effect that:---
(i) The impugned decision conveyed vide letter dated 30.07.2010 is without lawful authority, ultra vires, illegal, discriminatory, misconceived male fide in law and void ab initio;
(ii) Petitioner No. 1, Shalamar. Hospital, is a medical institution duly accredited by CPSP since 01.12.1994;
(iii) Petitioners Nos. 2 to 10 are entitled, in accordance with the applicable law, to have their full postgraduate teaching experience at Shalamar Hospital recognized and counted by PM&DC for the purpose of appointment to undergraduate teaching posts.
(iv) CPSP and Shalamar Hospital were/are under no legal obligation to inform PM&DC about the accreditation given by CPSP to Shalamar Hospital on 01.12.1994.
It is further prayed that the impugned decision conveyed through letter dated 30.7.2010 may be set aside and respondent No. 1/Pakistan Medical and Dental Council (herein referred to as PM&DC) be directed to grant recognition to and count the full postgraduate teaching experience of petitioners Nos. 2 to 10 as teaching. Experience w.e.f. 01.12.1994, the date of accreditation of Shalamar Hospital by the College of Physicians and Surgeons of Pakistan (hereinafter referred to as CPSP), for the purpose of appointment to undergraduate teaching posts.
2. Brief facts of the case are that petitioner No. 1 i.e. Shalamar Hospital is a private Hospital which was established in the year 1982. The Shalamar Hospital has on its strength a number of Consultants in the different specialties in which it offers services to the general public. Petitioners Nos. 2 to 10 and others (who are not presently petitioners) are full time Consultants working in different specialties at Shalamar Hospital. They are registered with respondent No. 1 and their additional medical qualifications are also registered with PM&DC, which is Federal registering body for all medical and dental practitioners/doctors in Pakistan.
PM&DC approved Shalamar Hospital for house job training in Medicines, Surgery, Obstetrics and Gynecology on 25.11.1984. Vide letter dated 16.3.1995, issued by the Registrar of the College of Physicians and Surgeons (CPSP), petitioner No. 1 was accredited for FCPS-Il training (2 candidates per year) in Anesthesiology, Medicine, Ophthalmology, Pediatrics, Surgery and Gynecology with effect from 01.12.1994, therefore, petitioner No. 1 stands accredited as a medical institution and training site by CPSP for imparting postgraduate training leading to FCPS and MCPS and falls within the definition of medical institution given in Section 2(d) of the PM&DC Ordinance, 1962. Petitioners.
Nos. 2 to 10 working at Shalamar Hospital, are teachers at Shalamar Hospital, training/teaching students for the examinations for FCPS and MCPS conducted by CPSP. On completion, CPSP enrolls the successful postgraduates as Fellows. Further, on having five years post-fellowship experience , the Fellows also become entitled to become Supervisors/Teachers. Petitioner No. 8 applied to PM&DC for the recognition of his as well as the entire clinical faculty's postgraduate teaching experience at Shalamar Hospital as teaching experience for the purpose of their appointment as Associate Professor/Professors at the proposed undergraduate Shalamar Medical and Dental College, but he did not receive any response from the concerned quarters. However, orally the officials of PM&DC refused to recognize the teaching experience of the Consultants of Shalamar Hospital.
3. It is further maintained that petitioner No 1 is an approved Medical Institution/training site of CPSP, which itself is a statutory medical institution created by the CPSP Ordinance, 1962 and is an additional medical qualification awarding body, whose postgraduate diploma have statutory cover under the Ordinance of 1982. The CPSP is also listed the. Third Schedule of the PM&DC Ordinance, 1962 and petitioner Nos. 2 to 10 are also accredited/recognized Supervisors teachers of CPSP. On one hand the applicable law recognizes the legal status of petitioners Nos. 1 to 10 and respondent Nos. 3, on the other hand PM&DC refuses to acknowledge/recognize the postgraduate teaching experience of the petitioners Nos. 2 to 10, which is unlawful, contradictory, inconsistent, unreasonable and discriminatory. The PM&DC has framed Regulations under Section 33 of the PM&DC Ordinance, 1962 and is applying the same to the public and private sector. The petitioners have become aware of as many as 4 instances where the PM&DC has recognized the experience of postgraduate teaching by Consultants as teaching experience for undergraduate teaching in a ratio of 2:1, i.e. 50% of the total teaching experience of four other Hospitals/Institutions. The impugned decision vide letter dated 30.7.2010 is liable to be declared without lawful authority, discriminatory, against statutory provision, hence the instant Constitutional petition.
4. Respondents Nos. 1 and 2 vehemently opposed the petition by filing para-wise comments.
Respondent No. 3 also contested the petition by filing separate para-wise comments.
5. Learned counsel for the petitioners contends that Shalamar Hospital was established in the year 1982 and the same was recognized for house job training by PM&DC in November, 1984. CPSP also accredited Shalamar Hospital for FCPS-II training in Anesthesiology, Medicine, Ophthalmology, Pediatrics, Surgery and Gynecology w.e.f. 01.12.1994. The exams are being conducted by CPSP. The Doctors are registered by PM&DC and additional qualification by CPSP, which is recognized by PM&DC. The PM&DC and CPSP were established by two Federal Ordinances. Section 11 of PM&DC relates to recognition of medical qualifications granted by medical institutions in Pakistan; whereas Section 16 envisages Additional Medical Qualifications; that the doctors who are granted these additional medical qualifications approached PM&DC and this additional qualification of CPSP are duly recognized and registered by PM&DC and there is no dispute about it. That the dispute is that PM&DC says that they recognize those qualification which is from recognized institution which has training site of CPSP as a recognized medical institution and further they have refused to recognize the teaching experience of the consultants imparting training. The contention of PM&DC was that they only recognize the institution and teaching if CPSP requests them or applies to them to inspect these training site; whereas according to CPSP under the law they are neither required nor bound to ask for inspection to PM&DC as they are statutory body having a complete regulatory frame work; that in two identical cases PM&DC has granted recognition to 50% of the post graduate teaching experience; that Shalamar. Medical College, Lahore and Shahpur Hospital are two different entities; that the stand taken by CPSP was correct. The learned counsel for the petitioners then read ground (0) of comments submitted by respondents Nos. 1 and 2, wherein it is stated that respondent No. 1 has decided to grant 50% teaching experience to only those consultants who are working in the institutions included in the Third Schedule of the PM&DC Ordinance, 1962.
6. The learned counsel for the petitioners heavily relied upon Section 16 of PM&DC Ordinance. He then read Notification dated 12.2.2011 according to which certain Postgraduate Medical Qualifications granted by College of Physicians & Surgeons Pakistan, Karachi were deemed to be recognized as additional medical qualification by amending the Third Schedule of PM&DC Ordinance, 1962; that PM&DC is not only acting unreasonably and irrationally matter of the recognition and counting of the date teaching experience of petitioners Nos. 2 to 10 but also acting against the statutory law; that CPSP is a duly constituted medical institution under the provisions of the CPSP ordinance, which is duly recognized by the PM&DC and the additional medical qualifications granted by it are 'w 4 a duly listed in, Para-A of the Third Schedule to the PM&DC Ordinance, .1962 and the additional medical qualifications granted by it are also recognized qualifications under the provisions of 1982 Ordinance. Shalamar Hospital being a duly accredited Medical Institution, neither CPSP nor Shalamar Hospital were under any legal obligation to inform PM&DC about this lawful accreditation; that having been accredited by CPSP, Shalamar Hospital is a medical institution since 01.12.1994 and the full time consultants/Supervisors are working there, which includes the petitioners Nos. 2 to 10 who are entitled in law to have their post-graduate teaching experience recognized and counted by PM&DC for the purpose of appointment of undergraduate teaching posts; that no factual controversy is involved in this Constitutional petition and only an authoritative interpretation of the applicable law is required from this Court. By the dint of above submissions, it is prayed that instant Constitutional petition may be accepted.
7. Conversely, learned counsel for respondents Nos. 1 and 2 contends that petitioner No. 1 is a Hospital; whereas respondents Nos. 2 to 10 are doctors/consultants. Petitioner No. 1 is mixing medical qualification and medical institution. Petitioner No. 1 is trying to get a recognition of Shalamar Hospital by getting a declaration of recognition of medical qualification of these doctors, which has not directly been given to them. Shalimar Hospital is not a recognized medical institution or training site. Until or unless Shalamar Hospital is recognized or accredited by PM&DC, only then the question of recognition of medical qualification would arise. Further states that Section 16 of PM&DC Ordinance, 1962 provides the procedure under which the institution gets itself recognized to train or grant postgraduate qualification. For inclusion of the Shalamar Hospital as postgraduate institution, the CPSP is to send application to PM&DC under Section 16 of the Ordinance. As and when CPSP would apply for inspection of Shalamar Hospital to PM&DC, the PM&DC shall carry out the process as per its Regulations; that an alternate remedy is available to the petitioners. It is further argued that departments of Shalamar Hospital, Lahore or the hospital itself are not recognized under the PM&DC Ordinance for Postgraduate training, so the teachers are not entitled for teaching experience. Shalamar Hospital is not a recognized medical institution in the first category for postgraduation or falls in any of the categories , described in the PM&DC Ordinance; that Shalamar Hospital has to apply for inspection and recognition to the PM&DC as a postgraduate training site through CPSP as its DAI under Section 16 of the PM&DC.
8. Learned counsel for respondent No. 3 on his turn contended that petition neither discloses cause of action against respondent No. 3 nor any relief has been sought against respondent No. 3 and respondent No. 3 has been added as respondent with mala fide intention; that respondent No. 3 was neither under obligation nor it is practice of CPSP to inform the PM&DC about accreditation of any institution.
9. I have given my anxious consideration to the arguments of parties and duly examined the law, rules and procedure enforced with regard to the subject-matter of the writ petition alongwith the documents made available by the parties.
10. It is pertinent to mention here that the matter raised in the writ petition is of two-folds, namely,
(i) whether petitioner No. 1 Shalamar Hospital is a medical institution duly accredited by CPSP since 01.02.1994 and whether petitioners Nos. 2 to 10 are entitled to have recognition and counted the full postgraduate teaching experience w.e.f. 01.121994 i.e. The date of accreditation of Shalamar Hospital by respondent No. 3/the College of Physicians and Surgeons.
11. It is an admitted position that Shalamar Medical College, Lahore was notified as recognized by the Ministry of Health on 7th January, 2010 as is evident from the impugned letter dated 30th July, 2010 issued by the PM&DC. It was also mentioned that after the said date the teaching staff shall get full benefit of teaching experience. The dispute arose when petitioner No. 8 applied to PM&DC for the recognition of his as well as the entire clinical Faculty's of postgraduate teaching experience for the purpose of their appointment as Associate Professors, which, was ultimately refused by the PM&DC vide the impugned letter dated 30.07.2010 mainly on the ground that Shalamar Hospital, Lahore was not recognized for any postgraduate training programme by the PM&DC.
12. In this regard Sections 11 and 16 of the Medical and Dental Council Ordinance, 1962 are very important. Sections 11 ibid provides that:--- "11. (1) The medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognized medical qualifications for the purposes of this Ordinance.
(2) Any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the [Federal Government] to have such qualification recognized, and the [Federal Government] after consulting the Council may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein,
(3) Such notification may also direct that an entry shall be made in the last column of the First Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date."
Section 16 of the Medical and Dental Council Ordinance, 1962 is also important which runs as under:--- "16. The post-graduate medical qualifications granted by medical institution in outside Pakistan which are included in the Third Schedule shall be recognized additional medical qualifications for the purposes of this Ordinance.
(2) On the recommendation of the Council, the [Federal Government] may, by notification in the official. Gazette, amend the Third Schedule so as to include therein any additional medical qualification in respect of which the Council is satisfied that it is of sufficient standing to warrant its being included therein.
(3) Such notification may also direct that an entry shall be made in the last column of the Third Schedule against such additional medical qualification declaring that it shall be recognised additional medical qualification subject to any specified conditions and only when granted before or after a specified date."
13. From the perusal of record, it appears that after accreditation , neither respondent No. 3 nor petitioner No. 1 applied to PM&DC for recognition of Shalamar Hospital, Lahore, as Postgraduate Teaching Hospital which was necessary under the law. Before recognition of Shalamar Hospital by the PM&DC for the disputed period, the teaching experience of petitioners Nos. 2 to 10 cannot be counted. From the certain copies of letters appended with this writ petition, it appears that petitioner No. 8 has admitted in clear words that after accreditation, CPSP must had formally informed PM&DC. In letter dated 8th June, 2010 written by petitioner No. 8 to Dr. Asim Hussain, President; Pakistan Medical & Dental Council, Islamabad has mentioned as under:- "Sir, I totally agree with the decision of the Council that CPSP must formally inform PMDC as soon as it give accreditation to any institution but apparently the college believes that it is below their dignity to inform the PMDC. Shalamar Hospital was given accreditation by the CPSP on 1st December, 1994 for the first time but unfortunately the college never informed the PMDC about that fact and therefore we did not have a formal inspection by PMDC at that time,"
It manifests that respondent No. 3 has not formally informed PM&DC regarding accreditation of Shalamar Hospital; Lahore as postgraduate teaching institute and due to this negligence the petitioners are suffering. Learned counsel for respondents Nos. 1 and 2 during the course of arguments' has contended that if the request for recognition of college is forwarded and recommended by the College of Physicians and Surgeons of Pakistan after completing all the formalities in this regard the recognition can be granted.
14. In the above perspective, it is apparent that respondent No. 3/The College of Physicians and Surgeons of Pakistan after accreditation of Shalamar College for FCPS and MCPS training w.e.f.
01.12.1994 did not inform respondent No. 1/PM&DC and on account of which an al lomaly has arisen; whereby the teaching experience of faculty members i.e. Petitioners Nos. 2 to 10 is being denied recognition since 01.12.1994. Although, the College of Physicians and Surgeons of Pakistan is regularly allowing after accreditation of the Shalamar College for FCPS and MCPS courses to be conducted and is also conducting examinations of the students who are being imparted education therein and thereafter is awarding degrees to the students being imparted education therein inspite of this factum a lacuna exists in the recognition of the said medical institution by the PM&DC. As such, a serious repercussion has arisen not only for the petitioners but also for the students and doctors who have appeared in the examinations conducted during this period i.e. Prior to 07.01.2010.
15. In the circumstances in order to remove this anomaly on account of complications being arisen for the oversight or negligence on the part of respondent No. 3, it would be in the interest of justice to direct petitioner No. 1 to apply for the recognition of Shalamar Hospital as a training site for the postgraduate teaching hospital since 01.12.1994.
The same shall be processed through respondent No. 3/The College of Physicians and Surgeons of Pakistan, which shall recommend and forwarded it to the PM&DC immediately after fulfilling formalities. Thereafter, respondents Nos. 1 and 2 shall process and decide the same expeditiously within a period of one month from the receipt of the same in accordance with law and rules with retrospective effect for granting recognition to Shalamar Hospital as postgraduate training hospital, keeping in view that said hospital already stands recognized w.e.f. 07.01.2010. It is further directed that PM&DC shall also decide the issue of affording recognition to the teaching, experience of petitioners Nos. 2 to 10 in the same spirit since 01.12.1994. The above directions have been issued on account that in absence of the same, the students would suffer and they, will be deprived of their qualifications and valuable years of their lives would be rendered useless. In the light of above directions, the instant writ petition stands disposed of
16. Before parting with this judgment, it is observed with great concern that the above lapses have .
Occurred due to negligence on the part of respondent No. 3 because accreditation was granted to Shalamar Hospital and its faculty members for conducting training courses in FCPS and MCPS w.e.f.
01.12.1994 without probing into the factum whether said institution has got prior recognition from PM&DC or not. The process of seeking recognition of. Shalamar Hospital, Lahore/petitioner No. 1 is being directed in order to prevent complications regarding the degrees of FCPS and MCPS granted to the doctors by the College of Physicians and Surgeons of Pakistan w.e.f. 01.12.1994 upto 07.01.2010. .