' WAQAR AHMAD SETH, J.---Through this single order we intend to dispose of the instant writ petition as well as connected writ petition bearing No, 3000-P of 2012, as both the writ petitions are the outcome of office order/notification No, 33758-63/PA/LRH dated 26.09.2012 ' Petitioners have invoked the writ jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 with the following prayer:- "On acceptance of this writ petition an appropriate writ may please be issued. i) Declaring the office order No, 33758-63/PA/LRH dated 26.09.2012, whereby the respondent No,4 has been promoted as Associate Professor of Cardiology (BPS-19) is illegal, unlawful without lawful authority and of no legal effect, the respondent No,4 was not fit and eligible for the post of Associate Professor of cardiology was wrongly considered and recommended for promotion. Ii)
The Regulation No,19 of the Regulation for the Appointment of Faculty Professor, Staff/Examiners/Principals/Deans/ Administrative Staff is undergraduate and post-graduate Medical and Dental Institution of Pakistan, 2011 (hereinafter to be referred as PMDC Regulations, 2011) is violative of the law, against the criteria for appointment and the judgments of the superior courts is therefore, liable to be struck down. Iii) To consider the petitioner for promotion to the post of Associate Professor of cardiology BPS-19 w.e.f, 26.06.2012 with all arrears and benefits.
2. Briefly stated the facts of the case are that, on the recommendation of Public Service Commission, petitioner was appointed as Medical Officer BPS-17, vide order dated 27.12.1993, thereafter petitioner has improved his qualification by obtaining FCPS (Cardiology) in the year 2004. On 02.01.2006, petitioner was posted as Senior Registrar Cardiology and subsequently was promoted to the post of Assistant Professor BPS-18; that respondent No,4 was placed at serial No, 1, Mr. Hikmatullah Jan, petitioner in connected writ petition was placed at serial No,2 and petitioner was placed at serial No,3 of seniority list of cardiology department. It is averred in the petition that respondent No,4 got qualification of FCPS in the subject of "Medicine", managed and manipulated his promotion against the post of Assistant Professor of Cardiology BPS-18 in the year 2008 for which he was ineligible. That next step for promotion in the channel is the post of Associate Professor BPS-19, which requires the prescribed qualification "MBBS or equivalent qualification recognized by the council and FCPS/MS/MD in the respective subject or equivalent qualification in the specialty recognized by the council with three (3) research papers on research work of which at least 2 shall be as principal author in the capacity of Assistant Professor in the relevant specialty published in a standard Medical Journal". It is further averred that upon promotion of one Dr. Zahid Aslam Awan to the post of Professor Cardiology BPS-20, a post of Associate Professor Cardiology BPS-19 became vacant, and respondents initiated process for promotion to the said post and after completion of working papers, three names of Assistant Professors, BPS-18, including the petitioner. Was forwarded to the Selection Committee for consideration, Selection and, Promotion, but the selection committee despite lacking of qualification of FCPS Cardiology, respondent No,4 was given the benefit of seniority and was recommended for promotion and accordingly promoted to the post of Associate Professor Cardiology (BPS-19) on 26.09.2012.
3. The petitioners feeling aggrieved from the actions of respondents and having no other efficacious, adequate and alternate remedy, have invoked the constitutional jurisdiction of this court through petition in hand.
4. Comments were called from respondents which they accordingly furnished, wherein, they stated that it is correct that respondent No,4 did his FCPS in General Medicine, however, he gained rich experience in the field of Cardiology, met the criteria for promotion and after observing all legal and codal formalities, was rightly promoted as Associate Professor BPS-19 in terms of regulation No, 19 of the PMDC Regulations.
5. We have heard learned counsel for the parties and have gone through the available record.
6. Respondent No,4, was considered and promoted, on regular basis against the vacant post of Associate Professor of Cardiology, BPS-19, in postgraduate Medical Institute (PGMI) Peshawar, on the recommendations of the Selection and Promotion Committee, by the management council of Lady Reading Hospital, Peshawar, vide impugned office order dated 26.09.2012 and the petitioners in both the writ petitions have called in question the said impugned promotion/appointment on the basis of appointment rules/criteria made by Pakistan Medical and Dental Council, on the very touchstone that petitioners are the holder of postgraduate qualification of FCPS in the relevant subject i.e, Cardiology, whereas, respondent No,4, has done his FCPS in General Medicine and that promotion is not only on the basis of seniority but fitness also, which includes eligibility.
7. The Selection and Promotion Committee so constituted discussed the issue and while relying on explanation to regulation 19 of the Regulations for the appointment of Faculty Professional Staff etc of 2011, held respondent No,4 eligible, competent and fit for the post of Associate Professor Cardiology. The relevant portion of the minutes of the meeting are as below. Item No,3 'Associate Professor Cardiology:- A post of Associate Professor Cardiology is lying vacant since promotion of Dr. Zahid Awan to the post of Professor.
' According to the prevailing Service rules, the post of Associate Professor Cardiology is to be filled by way of promotion form amongst the eligible Assistant Professors Cardiology on seniority CUM fitness basis possessing the required qualifications and experience.
'As per the approved and duly circulated seniority list vide Ref No, 9623/Esstt:/PGMI dated 02.08.2011 the seniority of the 3 Assistant Professors including in the panel is as follows:-- 'Dr. Farhat Abbas Assistant Professor Cardiology. Dr. Hikmatullah Jan Assistant Professor Cardiology.
'Dr. Mehmood ul Hassan Assistant Professor Cardiology.
'Since Dr. Farhat Abbas being the senior most and eligible in all respects including qualifications, experience, research papers and CEI and was recommended for promotion to the post of Associate Professor Cardiology. Issue of FCPS and General Medicine with experience in Cardiology as possessed by Dr. Farhat Abbas and FCPS cardiology, by two other candidates on the panel, was raised and thoroughly discussed. According to Para-19 of the (Regulations for the appointment of Faculty professional staff/examiners/ principals/deans/administrative staff in undergraduate and Postgraduate Medical and Dental Institutions of Pakistan, 2011) of PMDC. Notified on 22nd December 2011 (in vogue now) states "that once a holder of qualifications like FCPS, MD, MS in general Medicine or General Surgery etc attains the post of Assistant Professor in a sub-speciality than there shall be no preference given to specific sub-speciality degree holder for subsequent posts" is abundantly clear.
'Hence in view of the above Dr. Farhat Abbas was recommended for the post of Associate, Professor Cardiology. He will be on probation for one year.
8. In order to appreciate the issue involved in the case, it would be appropriate to refer to the Law/Regulations for the appointment of Teachers in Postgraduate Medical and Dental Institutions of Pakistan, 2011, notified by the Pakistan Medical and Dental Council, in exercise of powers conferred under section 36 (2) of the Pakistan Medical and Dental Council Ordinance, 1962.
Relevant for the instant case would be appointment in other clinical subject i.e, Cardiology. For the appointment of Associate Professor in Cardiology, the said rules/ regulations provides basic qualification, required postgraduate additional qualification, required experience and required research publication, which reads as under:-- 'Associate Professor.
'Required basic qualification.
' MBBS or equivalent medical qualification recognized/registered by the PM&DC.
'Required postgraduate (additional) qualification.
' PM&DC level III qualification in respective subject or general FCPS/M.S/M.D OR other equivalent level III qualification in the speciality approved by SRC and recognized/registered by the PM&DC.
'Required experience.
' Five years teaching experience as an Assistant Professor in the relevant subject.
'Required Research publication.
' A total or at least three research publications are required. Only an original article published in a medical journal approved by the PM&DC shall be acceptable. Dissertation/Thesis shall not be counted'.
9. In the Regulations 2003, the previous one, there was no mention of General FCPS in the case of required postgraduate qualification and nor the same was the requirement for the post of Assistant Professor, but how respondent No,4 was selected/promoted as Assistant Professor Cardiology, in the year 2008, is a mystery.
10. Admittedly, petitioner has done his fellowship/post graduate qualification in Cardiology, whereas, respondent No,4/promotee has done his fellowship in "Medicine" and the rules quoted above clearly shows in "respective subject" FCPS and the experience also provides five years teaching as Assistant Professor in the relevant subject. These recruitment/appointment/promotion rules are very much clear to the extent of relevant subject for the purpose of Assistant/Associate Professors Cardiology, creating an express bar on promotion of respondent No,4, in the presence of petitioners. The selection committee extended the benefit of explanatory rule which reads as under:-- Rule-19 ' Eligibility for appointment in the sub-specialities like cardiology, Psychiatry, Cardiac Surgery, Orthopedic Surgery etc shall be as per a level III qualification in the sub-specialities. However, a candidate who possess postgraduate qualifications like FCPS, MD, MS in General Medicine or General Surgery etc is also eligible for appointment as Assistant Professor in the sub-specialities if he has at least three years teaching experience in a recognized institute in the relevant sub- speciality and then shall be promoted in the same sub-specialities as Associate Professor and Professor with the requisite teaching experience as prescribed in these Regulations under the respective speciality. However for appointment as senior registrar in the sub-speciality, there shall be no prerequisite of experience in that subspecialty only if the candidate already holds and qualifies for a position of senior registrar in General Medicine or General Surgery as the case may be. Once a holder of qualifications like FCPS, MD, MS in General Medicine or General Surgery etc; attains the post of Assistant Professor in a sub-speciality than there shall be no preference given to specific sub-speciality degree holder for subsequent posts.
11. In view of the above cited conditions for appointment as Associate Professor Cardiology two questions cropped up, firstly, as to whether the basic qualification for appointment in the relevant subject can be waived of and secondly, as to whether the explanatory regulations i.e, regulation 19 has the overriding effect on the basic/requisite qualification for appointment. We have given our anxious consideration to the facts on record and have found that in the rules/regulations for appointment of the teachers etc, notified in the year 2003, the additional postgraduate qualification for the purpose of Associate Professor cardiology was FCPS/MS/MD in the respective speciality, whereas, in the amended rules/regulations, 2011, the wordings are "PM&DC level-III qualification in respective subject or General FCPS/MS/MD". In this respect the level III is given in section II of the Regulations 2011 as four years after level-I and for the purpose of level-I five/six years has been mentioned. Record is further suggestive that FCPS "Cardiology" is five years structured training program, whereas, FCPS, Medicine is three years training in the field of General Medicine. Moreover, nowhere, General Medicine has been defined in order to cater the speciality of Cardiology. The very insertion of word General FCPS, seems to be mala fide and against the scheme and theme of PMDC Rules. The General FCPS holder has been treated as all-rounder and can be adjusted in all other clinical subjects along with cardiology i.e, Neurology, Urology, Psychiatry, Dermatology, Paediatrics, TB and Chest, Anaesthesiology and all other speciality as mentioned in MBBS Regulations. If the possessor of General FCPS remains posted in any of the above referred speciality, he could be appointed as Assistant, Associate and Professor in that speciality, thus, the holder of FCPS in relevant speciality would have secondary status/footings.
12. 2003 and 2011, Regulations are very much clear for the purpose of postgraduate qualification, which are mandatory for the appointment/ promotion of Associate Professor in a particular subject/speciality, with the words respective subject/speciality mentioned in both the regulations.
The basic requirement of postgraduate qualification in the field of Cardiology is fellowship/FCPS in Cardiology and in the presence of suitable candidate with the postgraduate qualification in the relevant speciality could not be ignored merely on the basis of experience in that field. The experience, no doubt is requirement for the appointment of Associate Professor but it cannot be equated with that of basic qualification and for that matter postgraduate qualification, which also amounts to basic requirement. Likewise postgraduate/FCPS holder in General Medicine cannot be equated with a postgraduate/FCPS in Cardiology for the purpose of appointment/promotion to the post of Associate Professor Cardiology, merely on the explanatory regulations-19, in the presence of basic appointment rules/regulations determining the eligibility with basic qualifications/requirement for appointment/ promotion.
13. In a similar situation, the apex Court while dismissing the appeal . From the judgment of the Service. Tribunal, Peshawar, while upholding the findings in the case of Dr. Shah Wall Khan and others v. Government of NWFP and 3 others reported in 1997 SCM R 1574 (b) has held that:-- ---S. 9---Constitution of Pakistan (1973), Art. 212(3)--Promotion---Respondents' earlier promotion in preference to petitioner---Service Tribunal had found respondents' promotion to be in accordance with law and rules---Validity--Respondent being senior to petitioner and having requisite qualification in speciality of FCPS (Orthopaedics) was qualified for promotion as Assistant Professor against petitioner who, although had been working for sometime as senior Registrar (Orthopaedics) yet was otherwise, holding qualification of MCPs (General Surgery)---Qualification required was of Orthopaedics Surgery and qualification in General Surgery, though would be alike and similar to Orthopaedics Surgery could not be as such utilized as experience in Orthopaedics Surgery---Judgment of Service Tribunal on such basis being correct would warrant no interference--Leave was refused in circumstances.
14. The qualification of General Medicine/FCPS Medicine cannot be equated under any circumstances with the relevant speciality and for that matter appointment/promotion, against the post of Associate Professor Card and since, respondent No,4 is having no qualification in the field of cardiology he is not entitled, suitable and fit for appointment/promotion against the said post of Associate Professor Cardiology, and specially in the circumstances when he is not registered as Cardiologist with Pakistan Medical and Dental Council. Moreover, the respondent's No,4 appointment as Senior Registrar and subsequent promotion as Assistant Professor Cardiology have been called in question by the petitioners and as such while equating the basic qualification/ requirement for appointment and the explanatory note regarding the experience, it is held that respondent No,4 experience in the cardiology department cannot be given overriding effect over the basic qualification and requirement, in this respect.
15. In view of above, both the writ petitions to the extent of notification/office order dated 26.09.2012 are allowed, the impugned promotion order of respondent No,4 as Associate Professor of Cardiology BPS-19 is set aside and the official respondents are directed to consider the case of both the petitioners and any other candidate having the basic qualification and experience in the relevant speciality i.e, Cardiology for the post of Associate Professor BPS-19 within one month, positively. No order as to cost.