' UMAR ATA BANDIAL C.J.--- The petitioner is Associate Professor of Radiology at the King Edward Medical University, Lahore ("KEMU"). He was appointed to this post on contract basis on 17-10-2007 on the recommendation of the Special Selection Board of KEMU. The petitioner's contract of service was initially for three years. It was extended for another two years with effect from 17-10-2010. On 24-3-2011 the Provincial Government extended the benefit of its Regularization Policy to Professors and Associate Professors ("Regularization Policy") in the medical teaching cadre of the Provincial Government. That extended benefit was filed in Court in the proceedings of Writ Petition No,22424 of 2009 titled Dr.Afsar Ali Bhatti v. Government of Punjab and others. Paragraph (f) of the Regularization Policy provides as under:-- " Associate Professors working on contract basis selected through Special Selection Board against initial recruitment quota will be regularized after assessing their eligibility through PPSC. Seniority of these Associate Professors will be fixed as per recommendations of PPSC."
2. Notwithstanding the petitioner's appointment as Associate Professor of Radiology at KEMU, the respondent No,1, Provincial Government has declined to regularize his service vide order dated 12-1- 2013 ("impugned order"). It is objected that the petitioner is not eligible to be regularized in his post on the ground that he does not possess the qualification required in the Government of Punjab notification dated 10-4-1995. The said notification makes amendment in Schedule-II of the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 ("Service Rules") to the following effect:--- "In Schedule-II for the qualification for appointment by initial recruitment/promotion against the post of Senior Registrar/ Assistant Professors in all the specialties, the following shall be substituted:
(i) MBBS or equivalent medical qualifications recognized by the PMDC and the postgraduate 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 PMDC.
OR
(ii) MBBS or equivalent medical qualifications recognized by the PMDC with FCPS/ MS/ FRCS/ 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."
3. According to the amended rules, appointment to the post of Assistant Professor and to higher posts in the teaching cadre requires in addition to MBBS, a postgraduate qualification of FCPS/MS/FRCS/ MRCP/Diplomate of American Board (General Surgery/Medicine) or any other equivalent medical qualification recognized by the PMDC. In the present case, the petitioner does not possess FCPS or equivalent qualification and instead holds a Diploma in Medical Radiology Diagnostics ("DMRD"). In the absence of an eligible postgraduate qualification, in the terms required by the Service Rules, the petitioner is claimed by the respondents to be disqualified from being considered for regularization as senior faculty in the medical teaching cadre of the Provincial Government.
4. A second objection to the petitioner's claim for regularization of service is that the Regularization Policy of the Provincial Government does not apply to teaching faculty at the KEMU. This is because the KEMU is an autonomous institution to which the Rules and Regulations of Service of the Provincial Government do not apply. However, it is conceded by the respondents that the non- applicability of the Regularization Policy of the Provincial Government to the teaching cadre service in KEMU is still under review by the Provincial Selection Board ("PSB"). There is no need to judicially pre-empt a decision by that forum which is competently seized of the matter. Therefore, presently it is the first issue that requires determination, namely, the petitioner's eligibility to hold a teaching cadre post in the Provincial Government.
5. In answer to the first objection, learned counsel for the petitioner defends the eligibility of the petitioner on several grounds. Firstly, that Pakistan Medical and Dental Council ("PMDC") constituted by the PM&DC Ordinance, 1962 ("PMDC Ordinance") is the apex statutory regulatory body of the medical profession in the country. PMDC, inter-alia, lays down minimum qualification for appointment to teaching posts in different medical institutions in order to ensure a uniform standard of medical education and practice throughout Pakistan. On 15-5-2003 the PMDC enforced its presently relevant Regulations for the Appointment of Teachers and Examiners under the Medical and Dental Institutions of Pakistan ("PMDC Regulations"). On the subject of Radiology (Radio-Diagnostic and Radio-Therapeutics) appearing at page 5 of the PMDC Regulations, the qualifications for eligibility as an Associate Professor of Radiology have been spelled out as follows:--- . "FCPS/M.D D. S. (Pak) OR ' Other equivalent qualifications in the specialty recognized/ registered by the PM&DC ' OR ' D .M .R.D . /D.M.R.T. /M. C. P. S. (Radiology). "
' In column No,6 against the said entry of Associate Professor the said PMDC Regulations contain the following remarks:-- "The holders of DMRD/DMRT/MCPS(Radiology) should be considered only when person with postgraduate qualification like FCPS/MD/MS with required experience in these regulations are not available."
6. It is accordingly contended that the highest professional body at the Federal level having statutory authority has specified the minimum requisite qualification for appointment as Associate Professor. Although the Service Rules as amended on 10-4-1995 do not specify DMRD, yet the PMDC specified qualifications have repeatedly been applied and followed by the Provincial Government.
To substantiate the contention reference has been made to the case of Dr.Shahnawaz, who has a DMRD qualification but was selected by the PPSC to a post in the teaching cadre on 15-5-1996. He is presently serving as Professor of Radiology. Dr.Safdar Ali Malik, with the same qualification was promoted as Associate Professor Radiology on 23-12-2002; Dr.Qamar Sardar, with the same qualification was appointed as Assistant Professor Radiology on 3-2-2001. According to both the Service Rules and the PMDC Regulations, the requisite professional qualification for appointment as Assistant Professor or as Associate Professor of Radiology is the same. Based on the said record of appointments it is contended that departmental practice about the Service Rules has interpreted and applied the eligibility qualifications purposively and consistently with the PMDC Regulations.
Thus when a FCPS qualified and otherwise suitable Radiologist was not available for appointment as Assistant Professor to a higher post the Provincial Government has appointed a DMRD qualified radiologist to such post on merit.
7. To reinforce . validity of the departmental practice learned counsel for the petitioner has referred to the judgment dated 17-9-2008 passed by learned Division Bench of this Court in I.C.A. No,221 of 2008 titled Dr.Mahjabeen Masood v. Dr. Syed Anjum Mahandi and others. The judgment pronounces as valid the appointment in 2007 of a DMRD qualified doctor as Assistant Professor Radiology. In that case a FCPS qualified radiologist appointed on merit as Assistant Professor Radiology had challenged the selection and appointment of a DMRD qualified radiologist to the same post in the same batch. It was held that when a suitable FCPS qualified radiologist is not available then the appointment of the DMRD qualified candidate as Assistant Professor is lawful.
The reason given is that both qualifications fulfill the prescribed criteria of appointment to the said posts. The said judgment by learned Division Bench was affirmed by the Hon'ble Supreme Court on 14-5-2009 in C.P. No,1833-L of 2008 titled Dr. Syed Anjum Mehdi v. Vice-Chancellor, KEMU Lahore and others.
8. As exemplified by the said authority, the upshot of the petitioner's case is that both post graduate qualifications, FCPS and DMRD, fulfil the prescribed criteria of eligibility for the post of Assistant Professor of Radiology. Accordingly, whenever a duly qualified and suitable FCPS candidate is not available, then the appointing authority can lawfully select a DMRD qualified candidate who is otherwise suitable for appointment to the post of Assistant Professor Radiology.
The same professional qualification is relevant for promotion to or appointment as Associate Professor Radiology.
9. Learned Addl. A.-G. assisted by the law officers of respondent KEMU and Health Department submits that there are only two cases, one of Professor Shah Nawaz and the Other of Dr.Qamar Sardar, Assistant Professor in which appointments to the teaching cadre in Radiology have been made of persons not possessing the postgraduate qualification prescribed in Service Rules as amended on 10-4-1995. In all other cases regular appointees on teaching posts in radiology have satisfied the prescribed qualification laid down in the Service Rules. In so far as the said two cases are concerned in which prescribed qualifications for appointment have been ignored, the Provincial Government intends to take steps to rectify the violation. It is added that regularizing the petitioner in the post of Associate Professor would amount to the commission of a second wrong.
And two wrongs cannot make a right. Relies on Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another (1998 SCMR 882) and Government of Punjab, through Chief Secretary and 3 others v. Sardar Zafar Iqbal Dogar (2011 SCMR 1239).
10. Learned counsel for the parties have been heard and the record been perused.
11. The record produced by the respondents relating to appointments to teaching posts in radiology shows that in the year 2007 four Assistant Professors and three Associate Professors in radiology were appointed by the Provincial Government on contract basis. Three of these Assistant Professors had FCPS qualification whilst the fourth Assistant Professor of Radiology had a DMRD qualification. More importantly all three newly appointed Associate Professors of Radiology had a DMRD qualification. The first point to be noted is that in the year 2007 there were not enough FCPS qualified radiologists available to fill the vacant seats. As a result, Provincial Government followed the principle laid down in the PMDC Regulations and appointed to the teaching cadre three available FCPS qualified radiologists on contract basis and filled the remaining four seats with DMRD qualified radiologists.
12. It may also be pointed out that under the Punjab Medical and Health Institutions Act, 2003 ("Act") appointments by the Provincial Government to senior medical teaching cadre posts can only be made on contract basis. The said Act which is still in force, does not visualize regular appointments to senior medical teaching posts. This rule was recently .relaxed through the Regularization Policy of the Provincial Government, 2009. In the context of the present case, that Policy was extended for the regularization of Associate Professors and Professors on 24-3-2011. It is an admitted and established fact that the eligible qualification, for both regular appointment or contract appointment in the Provincial Government to the post of Assistant Professor of Radiology or higher posts in that specialty, is the same. Therefore the facts of the 2007 recruitment to senior teaching posts in radiology at Government Medical Colleges shows that the DMRD qualification was treated as an alternate qualification fulfilling the minimum prescribed criteria for appointment to such teaching posts.
13. Another question raised during arguments is whether Associate Professors working on contract basis in the Provincial Government should be offered regularization in service if they satisfy the prescribed qualification applicable on the date of their contract appointment or must they fulfill the qualification prescribed on the date when their services are considered for regularization. To simplify, this question translates to whether regularization amounts to initial recruitment or confirmation of an existing employment. This Court has in the case of Aftab Ahmad and others v.
Government of Punjab and others (2012 PLC (C.S.) 602) concluded that the prescribed qualification for the purpose of regularization of service of a contract appointee should be that which B was prevalent at the time of his appointment. This view has the support of reason in that regularization in service is not an initial recruitment but IC the confirmation of an existing employment.
14. Learned Addl.A.-G. has forcefully urged that the error made by the Provincial Government in the past ought not prevent the government from doing a right thing now. That statement is based on a pedantic reading of the amendment dated 10-4-1995 in the Service Rules. It ignores the effect of the PMDC Regulations to sustain and explain the several instances, as recently as 2007, when recruitment of DMRD qualified doctors in the posts of Assistant Professor of Radiology or Associate Professor of Radiology, has been made by the Provincial Government. The stand of the Provincial Government is therefore contrary to settled departmental practice that has backing of law. Their present stand does not refute that teaching faculty with DMRD qualification is performing its duties without complaint about skill or knowledge. Yet for regularization of service such faculty members should be judged on a higher benchmark.
15. It is not disclosed that on 8-5-2011 the Provincial Government and on 22-12-2011 the PMDC have further amended the eligibility qualifications. Appointment of senior faculty in radiology has been specifically confined to FCPS or equivalent post-graduate qualifiers. This change of law must apply prospectively. It cannot be used to discredit existing appointments. Presently the Provincial Government teaching cadre comprises four Professors of Radiology. These are: Dr.Nasir Raza Zaidi, Dr.Safdar Ali Malik, Dr.Shah Nawaz and Dr. Mehdi Raza Rizvi, who are at the pinnacle of the teaching hierarchy. All of them hold a DMRD qualification in radiology. Indeed their appointments cannot be disowned by the Provincial Government nor their performance be denigrated. Clearly, research and experience have equipped the said Professors of Radiology with sufficient merit and skill so as to discharge their duties without complaint from their students, colleagues or patients. The practice of the medical profession relies heavily on the shared fruits of research and progress made in the respective medical fields throughout the world. It involves a continuous process of learning and research by medical practitioners. In order to maintain medical proficiency and skill at the standard and levels that are acceptable to the PMDC and in any event across the various medical institutions in the country, all medical faculty have to engage continuously in learning and professional development. That requirement in a highly technical and scientific speciality like radiology becomes a guarantee for professional proficiency. Therefore, academic qualifications alone are not an indicator of the appropriate level of skill, knowledge, training and proficiency in a profession. Nor are these matters for a court of law to determine. The only question that this Court is competent to consider is the initial eligibility of a candidate to be considered by the PSB. It is for the PSB to assess a candidate's medical and scientific proficiency for regularization in service. It is nobody's case on either side that the PSB lacks the ability to test medical knowledge and skill.
16. Therefore reverting to the point in issue before the Court, which is initial eligibility of the petitioner to be considered for regularization of his service, it is noted that the petitioner was part of the teaching faculty as Associate Professor of the KEMU and was also working at its attached medical facility, Mayo Hospital, Lahore. The respondents have not complained of a single instance of his alleged incompetence, default or negligence. Insofar as his service record is concerned, the performance of his duties is unblemished and all his ACRs rank him as a sound professional.
17. Given that background, the Court is left to determine whether a DMRD qualification satisfies the initial eligibility requirement for consideration by the PSB for regularization of the petitioner as Associate Professor of Radiology at the KEMU. Considering the regulations of the PMDC that have already been referred above, the following facts weigh in favour of the petitioner. That the petitioner was appointed on contract basis on 17-10-2007 through selection on merit by the PSB; the currently senior most teaching faculty in radiology at the Provincial Government Medical Colleges hold the DMRD qualification; the consistent departmental practice of the Provincial Government to read the Service Rules as amended on 10-4-1995 in the light of the PMDC Regulations; the relevant benchmark for eligibility for regularization being the applicable qualification enforced at the time of initial appointment; in-service professional development of teaching faculty in radiology to which the petitioner belongs being a professional imperative, and unblemished service record of the petitioner. From the points enumerated H above the Court draws the conclusion that the petitioner is eligible for consideration by the PSB for regularization in the post of Associate Professor of Radiology.
18. What level of skill ought to be possessed by a regular appointee in the said post is a technical subject which has to be decided by the PSB. However, insofar as eligibility for competing for regularization is concerned, the higher qualifications prescribed for appointment as Associate Professor, inter alia, by the PMDC on 22-12-2011 and by Provincial Government on 8-5-2011 are enforceable prospectively according to the terms of such amendments. These criteria of eligibility 1, cannot apply retrospectively for regularization of appointments made, in I the present case six years ago.
19. Be that as it may, it is for the PSB to assess the professional merit of the petitioner and if the need arises, to provide a timeframe during which he may accomplish a higher qualification, if deemed necessary. To disqualify the petitioner from competing for the post merely on account of his professional qualification that has time and again sufficed for the Provincial Government and on the basis of which the petitioner was appointed in the first place, would amount to gross unfairness.
20. Accordingly, this petition is allowed. The impugned order dated 12-1-2013 has erred in holding the petitioner to lack the requisite qualification prescribed in Service Rules for regularization as Associate Professor of Radiology. Consequently, the same is declared to be illegal and without lawful authority.