SHAHID JAMIL KHAN, J.--- The petitioner has challenged letter dated 03.03.2014, issued by 'respondent No.2, regretting to entertain the application of the petitioner for appointment as Associate Professor Ophthalmology. Reason for the regrets, as noted, is; "Not eligible due to teaching experience required for the post is not in accordance with Government of the Punjab service rules". The reason was based on letter dated 14.01.2013, which is also impugned.
2. Learned counsel submits that the petitioner's qualification is regulated by Pakistan Medical and Dental Council's ("PM&DC") Rules. It is contended; the petitioner was promoted as Associate Professor under the criteria fixed by PM&DC: His service as Senior Registrar was counted, on equivalence basis, for the purpose of teaching experience of five years. As per advertisement dated 10.10.2013, the required qualification for the post of Associate Professor of Ophthalmology was "Five years teaching experience as an Assistant Professor in the relevant subject". Respondent No.3 (PM&DC) issued a certificate of experience dated 26.07.2013; it was certified that the petitioner possessed 5-years and 19-days teaching experience in the subject of Ophthalmology. However, the actual teaching experience was of 3-years, 6-months and 23-days whereas, because of his experience: as Senior Registrar of Ophthalmology, the same was treated as experience equivalent to the teaching experience for 1-years, 5-months and 27-days.
' Learned counsel argues; the letter dated 14.01.2013, relied upon by Respondent No.3, was for a specific period only, as noted in caption of the letter, therefore, it could not have been employed while interpreting the above quoted required qualification published in the advertisement. He submits; if the interpretation advanced by the respondents is accepted, petitioner, for having been promoted as Associate Professor, would never be able to make up the deficiency of teaching experience as Assistant Professor.
' He urged without conceding; if the condition under letter dated 14.01.2013 is accepted to have force of Service Rules framed by Government of Punjab then to resolve the apparent conflict, under the provisions of Article 143 of the Constitution of the Islamic Republic of Pakistan, 1973, the PM&DC Rules framed under the Federal Legislation shall prevail. He has relied on Dr. Abrar Hussain Ahmed Khan and others v. Government of Punjab through Secretary and others (1995 CLC 1409), Dr. Abrar Maqbool and 2 others v. Government of Punjab through Secretary, Health Department and another (2004 PLC (C.S.) 373) and Zulfiqar Ahmed v. The Punjab Public Service Commission through Secretary and 2 others (1997 MLD 1925).
Discrimination is also pleaded by referring to appointment of one Dr. Sufia Khan, alleging that she too did not possess the teaching experience of five years as Assistant Professor in literal sense.
3. In reply, learned AAG has relied on the Punjab Civil Servants (Appointment and Conditions of Service) Rules, 1974. He submits that under its Rule 22, the respondents were required to meet five conditions for adhoc appointments, which were adhered to. He explains that adhoc appointment is a stopgap arrangement, which does not confer any right to an adhoc appointee. Requisition for permanent appointment on the post through Punjab Public Service Commission has already been sent under the Rule 22. He concludes that condition of five years teaching experience as Assistant Professor, under the advertisement, is required to be construed in strict sense; therefore, the eligibility criteria on equivalence basis under PM&DC Rules cannot substitute the unequivocal condition of actual teaching experience. He urges; the petitioner should have challenged the letter dated 14.01.2013, before applying for the post.
' On a specific question whether any concession was given to Dr. Sufia Khan for the post of Associate Professor (Pathology) in absence of actual teaching experience of five years as Assistant Professor. Dr. Yousaf Aziz, APMO (on behalf of respondent No.3) has categorically stated that she had the required five years experience.
' Learned AAG has also urged that this petition is not maintainable on the ground that the person who has been selected for appointment has not been arrayed as party.
4. Heard learned counsel for the parties. Record perused.
5. Since the petitioner was denied consideration for the post on the basis of the letter dated 14.01.2013, alleged to have been issued on the basis of some Punjab Service Rules, therefore, the letter is reproduced:-- "No. SO(AMI)21-265/2012.
GOVERNMENT OF THE PUNJAB HEALTH DEPARTMENT Dated Lahore, the 14th January. 2013 To The Principal, Rawalpindi Medical College/Allied Hospitals, Rawalpindi.
Subject: RECRUITEMENT OF GAZATTED STAFF ON ADHOC BASIS AT RMC/ALLIED HOSPITALS, RAWALPINDI (RECRUITMENT NOVEMBER AND DECEMBER, 2012).
Reference your letter No.E-14/8687/RMC, dated 19.12.2012 on the subject cited above.
2. You are requested to examine the cases in accordance with rules and policy: Teaching experience must be in accordance with Service Rules not as per PMDC criteria. The major difference between two is that in case of Service Rules, actual experience at that post is counted while in case of PMDC criteria equivalence of a post is also counted. ii. Only research papers of first 3 authors during the time period of Assistant Professor tenure will be counted (not others). iii It is the responsibility of Special Selection Board to examine and propose that who is their selectees.
' SECTION OFFICER (AMI)"
[emphasis supplied]
6. Learned AAG (appearing for respondent No.1) could not point out any specific Rules under which the condition No.(i) was referred in this letter. He could not deny that the letter, ibid, itself was not a Service Rule, required to be framed on the strength of a statute. The argument of learned counsel for the petitioner is convincing that caption of letter specifies the dates i.e., "(Recruitment November and December, 2012)". It is, therefore, held that the letter dated 14.01.2013 is not a service Rule in stricto sensu, having force not more than an instruction.
7. However, the controversy remains; 'whether the instructions by Respondent No.1 (Govt. Of Punjab) would be superior to the recommendations for equivalence by Respondent No.3 (PM&DC)'? In backdrop of the contentions of the parties following precise controversy can be formulated; "whether qualification/experience required for appointment against a post shall be determined by the Service Rules made under Provincial Legislation or it is a sole prerogative/privilege of PM&DC, so empowered under a federal legislation i.e. PM&DC Ordinance, 1962."
' To resolve the controversy formulated above, examination of the cases relied upon by learned counsel for the petitioner is necessary. In a judgment by this Court, Dr. Abrar Maqbool and 2 others v. Government of Punjab through Secretary, Health Department and another (2004 PLC (C.S.) 373), a similar issue came under consideration. The petitioners in that case were refused to be interviewed against a post of Assistant Professor of Surgery for the reason of having low percentage of marks in MBBS. This action of Punjab Health Department was pleaded to be in violation of regulations framed by PM&DC. The petition was allowed by this Court with the direction that the petitioners shall be evaluated strictly in accordance with the regulations made by PM&DC.
A number of judgments by superior courts were discussed, including a judgment in the case of Dr. Abrar Hussain Ahmed Khan and others v. Government of Punjab through Secretary and others (1995 CLC 1409 Lahore). The ratio derived can be found from the following paragraph:- ' Now assuming that the contentions of the learned A.A.-G. Is correct. Now the said case of "Dr. Abrar Hussain Ahmed Khan and others" being relied upon by the learned counsel for the petitioner does go to hold that the Regulations framed by PMDC in exercise of powers under the Federal Statute i.e. PMDC Ordinance, 1962, if In conflict with the provisions of the said Provincial Statute i.e. Said Service Rules, 1979, Article 143 of the Constitution would come into play and said Provincial Statute will have to give way to the said Federal Statute. I may note here that his lordship was dealing with the same Regulations and same Rules in another context. Now the fact that the said Regulations have a statutory validity find support from the observations in the cases of Miss Hina Javed and others v. Government of N.-W.F.P. And others (1998 SCMR 1469) and Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421)."
8. In another judgment of this Court, Zulfiqar Ahmed v. The Punjab Public Service Commission through Secretary and 2 others (1997 MLD 1925 Lahore), the applications of the petitioners were refused by the Punjab Public Service Commission on the ground that they did, not possess the requisite qualification. It was contended that the qualification of the petitioners viz. BSc. (Hons.) in Agriculture Forestry Range Management and Wildlife was higher than B.Sc. (Forestry) 2nd Division.
As per University Grant Commission, the degree of B.Sc. (Hons.) was equivalent to M.Sc. In Forestry.
The petitions were allowed and the Commission was directed to consider the petitioners for the post. The relevant part of the judgment is reproduced:- "7. It is not disputed by the respondents that the qualification possessed by the petitioner is higher or at least equivalent to the prescribed qualification. Their case, however, is that the eligibility of a candidate depends upon possession of prescribed degree and not its equivalent. The rationale behind this insistence is not understandable and to say the least, smacks of arbitrariness. The only reason given in the memorandum dated 16-8-1989 for issuing such instructions is that it becomes difficult to determine the equivalence. It is unfortunate that while so opining the respondents failed to appreciate that in law the grant of equivalence is primarily a function of the University Grant Commission which is a statutory body established by the University Grant Commission Act, 1974.
Once a qualification had been declared to be equivalent to another qualification by such a body, rejection of the application of the petitioners by the respondents would clearly be arbitrary and capricious. The question of difficulty in determining equivalence does not arise in these cases."
9. The Article 143 of the Constitution of Islamic Republic of Pakistan, 1973 relied by learned counsel for the petitioner is substituted by Constitution (Eighteenth Amendment) Act, X of 2010. The substituted Article 143 is reproduced hereunder: "143. Inconsistency between Federal and Provincial Laws.--- If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of [Majlis-e-Shoora (Parliament)] which [Majlis- e-Shoora (Parliament)] is competent to enact, or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of [Majlis-e- Shoora (Parliament)], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
The substituting/existing Article 143 of the Constitution is also reproduced: "143. Inconsistency between Federal and Provincial law.--- If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Majlis-e-Shoora (Parliament) which Majlis-e- Shoora (Parliament) is competent to enact, then the Act of Majlis-e-Shoora (Parliament), whether passed before or after the Act of the Provincial Assembly, shall prevail and the Act of the Provincial Assembly shall, to the extent of the repugnancy, be void."
' Perusal of both the substituting and substituted Article 143 in juxtaposition reveals; though there is a change in the language yet the intent of both the Articles is same. Since the Concurrent Legislative List is abolished by the Eighteenth Amendment and under Article 142 of the Constitution, the powers to make law of Majlis-e-Shoora (Parliament) and Provincial Assembly are redefined by substituting clauses (b), (c) and (d) under this Article, therefore, the change in language of the Article 143 of the Constitution was imperative. The existing Article 143 postulates; if any conflict arises between the two enactments, competently passed by the Majlis-e-Shoora (Parliament) and the Provincial Assembly, then to the extent of repugnancy, the provisions of an Act of Majlis-e- Shoora (Parliament) shall prevail and enactment of the Provincial Assembly shall be void.
10. It is undisputed legal position that Respondent No.3 (PM&DC) is creation of Pakistan Medical and Dental Council Ordinance, 1962. In exercise of powers under Section 33(2) of this Act, 'Regulations for the Appointment of Faculty Professorial Staff/Examiners/Principals/ Deans/ Administrative Staff in Undergraduate and Postgraduate Medical & Dental institutions of Pakistan, 2001, were framed.
Under these regulations, the petitioner could not have been appointed as Associate Professor unless he had five years teaching experience as Assistant Professor in relevant subject. This is an admitted position that the petitioner is an Associate Professor recognized by the PM&DC. Under regulation No.22 of said regulations, PM&DC is empowered to give the equivalence as certified in experience letter/certificate dated 26.07.2013.
' In present case, the eligibility/experience of the petitioner was determined by PM&DC under a statutory authority (Federal Legislation) and the respondents are ignoring the same by enforcing the purported Rules made under the authority of Provincial Legislation. No scholarly discussion is required to hold that the authority given by the Provincial Legislation is void under Article 143 in presence of an authority for determining the eligibility given by the Federal Legislation i.e. PM&DC Ordinance, 1962.
11. In my considered view the act of the respondents of substituting the eligibility/experience determined by the PM&DC shall lead to uncertainty and may give way to discrimination and arbitrary exercise of administrative powers. The PM&DC is statutorily recognized institution to determine the qualification in the field of medicine. Even otherwise, it has superior authority, being specialized and technically equipped, to opine on the eligibility/experience in a particular discipline.
' It is observed that the uncertainty is already prevalent; Health Department of respondent No.1, in some other advertisement, while describing the eligibility criteria has stipulated that "Qualification/ experience required as prescribed by PM&DC". Meaning thereby; the Health Department is itself not following a uniform and consistent policy. Such inconsistent advertisements by the Health department are, without doubt, in violation of Articles 25 and 27 of the Constitution of Islamic Republic of Pakistan, 1973.
12. Ii may also be observed that the condition of eligibility criteria ("Five years teaching experience as an Assistant Professor in the relevant subject") given in the advertisement is itself ambiguous and germane for two interpretations i.e. 'actual experience' or 'experience as determined by the PM&DC'. It is also a principle of interpretation; if two interpretations are possible, one favouring the subject should be followed.
13. So far the objection of learned AAG regarding not arraying the candidate likely to be effected, as party is concerned, the same has no force because admittedly, the other candidate is only selected for the post but admittedly no appointment letter is issued. In other word the process of appointment is not yet completed, therefore, no right against the post is created so far.
14. In view of the discussion and for the reasons given above, this petition is allowed. The letter dated 03.03.2014 excluding the application of the petitioner from consideration for the post of Associate Professor is held illegal. The-respondents are directed to consider the petitioner for the post of Associate Professor alone with the other candidates.