' This judgment shall dispose of two writ petitions viz. W.P. No,61 of 1985, titled Dr.Syed Muhammad Zafar Bukhari v. The Government of Punjab and W.P. No,62 of 1985 titled Dr.Mrs.Sardar Begum Bhatti v. The Government of Punjab.
2. Both the ahovementioned writ petitions assail the amendment made in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, made vide notification No,SOR-HI-1-6/81, dated the 17th October, 1981, so far as it has prescribed the qualification for the appointment to the post of Professor in the Educational Cadre of the Medical Colleges, prescribing the date of appointment as before 25-11-1977. The Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, originally prescribed the following qualifications for promotion to the post of Associate Professor from Assistant Professor:- #TBS (i) #TBE Initial qualification of MOBS plus M.D/Ph.D. With three years teaching experience as Assistant Professor.
(ii) If no suitable candidate was available then MBBS with Diploma in Medical Jurisprudence and 5 years ' ' ' 'teaching experience as Assistant Professor.
(iii) In case of a person possessing only basic qualification, 7 years teaching experience as Assistant Professor.
' For appointment for the post of Professor the original rules prescribed the following qualification:- ' Assistant Professor/Associate Professor with M.D/Ph.D. With 8 years teaching experience supra.
3. The rules were amended in 1981 perhaps in view of the fact that suitable candidates with prescribed qualification were not available for appointment to the post of Associate Professor or Professor. Through the amendment, it was prescribed that in case a suitable candidate was not available the post of Professor could be filled from the cadre of Assistant Professor/Associate Professor with Post Graduate Diploma appointed on regular basis before 25-11-1977 with 5 years teaching experience. The relevant amendment is reproduced below in extensor:- "(a) Against the posts of Professors in Specialties of Forensic Medicine & Toxicology, ENT, Ophthalmology, Pediatrics, Anesthesiology, Psychiatry, Community Medicine and Radiology (Diagnostic and Therapeutic) the semi-colon appearing after the word 'such' and before the proviso shall be substituted by a comma and thereafter the following shall be added:- "Or if no person with the said requisite qualifications was available, then from amongst Associate.
Professors with post-graduate Diploma appointed on regular basis before 25-11-1977 as Assistant/Associate Professor and possessing 5 years teaching experienee."
(b) for the existing proviso against all the posts of Professors, the following shall he substituted:- "Provided that in the case of an Associate Professor who had originally been appointed as Assistant Professor in the line on regular basis before 25-11-1977 the experience as Assistant Professor shall be worked out by taking into account the service rendered as Assistant Professor and Associate Professor in the line in a recognized Medical Educational Institution in Pakistan and if no person with actual service as hereinbefore explained, is available then the actual service rendered as Assistant Professor/Associate Professor in a recognized Medical Educational Institution abroad with the prior approval of Government, shall be taken into account while working out the requisite experience."
4. Dr.Syed Muhammad Zafar Bukhary, petitioner in writ petition No,61 of 1985 graduated in Medicine
(MBBS) from King Edward Medical College, Lahore, Punjab University in 1971. He was appointed as Medical Officer in Lahore General Hospital, Lahore in May, 1973. In May, 1977, he was appointed as Demonstrator in Forensic Medicine in King Edward Medical College, Lahore. In May, 1978, he obtained Diploma in Medical Jurisprudence from Post Graduate Institution of Medicine, Lahore and thus beeame qualified to be appointed in the teaching cadre of Medical Colleges in the Punjab. On 21st June, 1978, he was appointed as Assistant Professor in basic pay scale No,18 in Quaide-Azam Medical College, Bahawalpur in his own pay and scale. During such appointment he had also performed duties of the Head of Department. In March, 1981, he was interviewed by the Punjab Public Service Commission and on 31-10-1981, he was appointed Assistant Professor on regular basis in the specialty of Forensic Medicine and Toxicology in Quaid-e-Azam Medical College, Bahawalpur. On 20-11-1981, he was transferred in the same capacity to Allama Iqbal Medical College, Lahore. Currently he is on deputation with the college of Community Medicine, Lahore for doing M.Phil.
5. Dr. Mrs.Sardar Begum Bhatti, petitioner in writ petition No,62 of 1985, graduated in Medicine
(MBBS) in 1955 from Fatima Jinnah Medical College, Lahore. In 1958, she was appointed as Woman Medical Officer, In charge Jublee Maternity Hospital, Bahawalpur, after having been selected by the Public Serviee Commission. In 1968, she qualified D.G.O. (Punjab), from King Edward Medical College, Lahore. In August, 1975, she was appointed as Assistant Professor, Forensic Medicine, Quaid-e-Azam Medical College, Bahawalpur. She did Diploma in Medical Jurisprudence in 1977.
She was appointed as Assistant Professor Forensic Medicine, Allama Iqbal Medical College, Lahore, on 1-1-1978. This appointment was regularised by the Public Service Commission on 10-3-1981. On 16-12-1981, the petitioner was appointed as Associate Professor. This appointment of Associate Professor was also regularized on 7-4-1982.
6. Both these petitioners having been appointed as Assistant Professors/Associate Professors in the Speciality of Forensic Medicine and Toxicology, after 25-11-1977, are aggrieved of the amendment so far it has made the appointees before 25-11-1977, qualified to be appointed as Professor possessing the teaching experience of 5 years. Thus the present writ petitions.
7. It has been urged on behalf of the petitioners that the amendment whereby appointment prior to 25-11-1977, has been made a condition precedent is ultra vires of section 23 of the Punjab Civil Servants Act, 1974 as it offends against the principle of consistency and it is mala fide calculated to extend benefit to certain vested interests instead of dealing with the cases of hardships of all concerned. It has also been contended that the notification in question so far experience abroad has been equated with experience in Pakistan is inconsistent with the regulations for the appointment of Assistant Professors/Associate Professors and Examiners made by the Medical and Dental Council of Pakistan in exercise of its powers conferred by Section 33(2) of Medical and Dental Council Ordinance, 1962. The said Ordinance being a central statute, the regulations made thereunder have an ascendency over the rules made by the Punjab Government under the Punjab Civil Servants Act, 1974 and thus to the extent of inconsistency, the Provincial Rules cannot be given effect. It has also been averred that the specialty of the petitioners viz. Subject of Forensic Medicine are Toxicology was not covered by the date of 25-11-1977 and this fact has been recognized by the Pakistan Medical and Dental Council in its meeting held at Lahore in its 63rd session wherein the following minutes were recorded:- "The Council considered the question of eligibility of Diploma-holders for appointment as Professors. It was decided that keeping in view the legal complications, if terms and conditions of Diploma-holders who were appointed before 1977 were such that they were eligible for promotion up to the rank of Professor, they may be made eligible for promotion and no change shall be made in the shape of qualification which would disentitle them to promotion."
7-A. The respondent contested both the writ petitions and inter alia pleaded that in view of the questions raised in the writ petitions, which primarily pertain to the terms and conditions of services of civil servants, the Service Tribunal has the exclusive jurisdiction to adjudicate upon the same and, therefore, such questions cannot be agitated before this Court even by invoking its writ jurisdiction. It has also been argued that Syed Muhammad Zafar Bukhary, when joined service, the amended rules were already in the field. The tier of Associate Professor had also been provided and, therefore, he cannot be considered for appointment as Professor. It has, however, been urged that the impugned amendment was made through notification dated 17-10-1981 while the petitioner was appointed regularly with effect from 31-10-1981 and, therefore, he is bound by the service rules and conditions already in force prior to his appointment and hence he has no locus- standi to challenge the same as he accepted the service subject to the existing rules.
8. It is noteworthy that this petitioner urged to avail of the benefits provided under Martial Law Instructions 21, re: the period of service rendered as ad-hoc appointee and in that behalf the respondent maintained that benefit under Martial Law Instruction was not available to the petitioner because he had come into service after the target date mentioned in the said Martial Law Instruction.
9. In the light of the controversial pleas raised on behalf of both the parties by and large the following points arises for determination:- #TBS (i) #TBE If this Court is possessed of jurisdiction to decide the issues raised in these writ petitions or the Service Tribunal has the exclusive jurisdiction in the matter.
(ii) Whether the petitioner in W.P.No,61 of 1985 in view of the date of his regular appointment in service has ' the locus standi to challenge the validity of the notification dated 17-10-1981 which was enforced prior to his entry into service.
(iii) Whether the petitioners in view of their submissions can be declared eligible for consideration for promotion as Professors.
10. Both the petitioners in the under consideration writ petitions are admittedly civil servants within the meaning of the Punjab Civil Servants Act. (No,VIII) of 1974. Generally Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 pertain to terms and conditions of service of this category of civil servants and thus ordinarily vires or otherwise of such rules can be challenged before the Service Tribunal but it is important to note that through the present writ petitions, the petitioners have sought to be considered for their promotion as Professors as they claim to be eligible for such consideration. Section 3(2) of the Punjab (Service) Tribunal Act (IX) of 1974, provides that a Tribunal shall have exclusive jurisdiction in respect of matter relating to the terms and conditions of service of civil servants including disciplinary matters. Section 4 ibid provides that any civil servant aggrieved by any final order, whether original or appellate, made by a departmental authority in respect of any of the terms and conditions of said servant may, within 30 days of the communication of such order to him, prefer an appeal to the Tribunal. However, proviso (b) of Section 4 ibid is to the effect "no appeal shall lie to a Tribunal against an order or decision of a departmental authority determining the fitness or otherwise of a person to be appointed to or hold a particular post or to be promoted to a higher grade."
11. Fitness for promotion to a higher grade is taken out of the purview of the Service Tribunal and it has been left as the sole prerogative of the competent authority. Article 212 of the Constitution of Pakistan, 1973, ousts jurisdiction of all the Courts in respect of matters to which the jurisdiction of a Service Tribunal extends. As already observed, in the present cases, the petitioners have claimed themselves to be considered for promotion as Professors. In spite of rules of 1979, as amended in 1981, promotion is not within the exclusive purview of the Tribunal. It has been argued on behalf of the respondent that even it be assumed that promotion being not within the exclusive purview of the Tribunal, the jurisdiction of this Court is not barred under article 212 of the Constitution of Pakistan, it needs to be considered that to consider the fitness of a particular incumbent for higher responsibilities is within the exclusive prerogative of a competent authority and the High Court should not ordinarily interfere with the exercise of such powers by a competent authority. In this regard the learned counsel for the petitioners has claimed that the petitioners have not actually come to this Court for being appointed as Professors. The have come to urge that they have a right to be considered for promotion as Professors and, therefore, according to him the writ petitions are maintainable before this Court.
12. In Muttaqi Hussain Rizvi v. Province of Sind and another PLD 1978 Karachi 703, it has been observed; when in cases were the basis of promotion is seniority-cum-fitness, the fitness can appropriately be determined only by administrative authority. However, the right to be considered for promotion, where a person is eligible for promotion, is a vested right and if the eligible person is not considered for promotion, or a person not otherwise qualified under the rules is promoted illegally or against the rules, in such cases the aggrieved person can enforce his right to be considered for promotion or object to the person not qualified for promotion being promoted, through a civil suit or by invoking the constitutional jurisdiction of the superior Courts, since this matter is not within the purview of the Services Tribunal. Similar view has been expressed in the case of Sahibzada Farid-ud-Din Ahmad v. The Province of Punjab and another PLD 1976 Lahore 1310. Precisely in this case, it was held: "It is true that promotion to a higher rank cannot be demanded by way of right, but it cannot be denied that demand for a decision in relation thereto is a vested right."
In the light of the foregoing discussion, it is concluded that ordinarily to determine the validity or otherwise of service rules falls within the purview of the Tribunal but in the peculiar circumstances of these cases, the validity of amendment made in the service rules touching the question of promotion has been challenged. Promotion does not fall within the purview of the Services ribunal.
To be considered for promotion is a legal vested right of a civil servant which can be enforced through a writ petition. The present writ petitions are, therefore, maintainable in this Court.
13. Regarding the question of locus stand, it may be observed that the petitioner Syed Muhammad Zafar Bukhary was appointed as Assistant Professor in his own pay and scale in Quaid-e-Azam Medical College, Bahawalpur on 21-6-1978. It was not specifically provided that this appointment was made on ad-hoc basis. Subsequently, he was interviewed by the Punjab Public Service Commission for regularization of his appointment on 3-3-1981. The Commission declared the result of his having been approved for regular appointment on 10-3-1981. A letter to that effete was sent by the Commission to the Government on the same day. The Government, however, issued letter regarding the regular appointment of the petitioner on 31-10-1981, although in case of two other appointees viz. Dr. Zahoor Ahmad and Dr. Muhammad Ashraf in regard to different specialties, who were interviewed along with the petitioners on 3-3-1981, the letters of regular appointment were issued by the Government on 18-3-1981 and 2-4-1981. In these circumstances, it would be too harsh for the petitioner to say that he joined service after the impugned amendment of 17-10-1981.
Factually, he was in the service of the respondent as Assistant Professor in his own pay and scale on 21-6-1978. The Public Service Commission approved him for regular appointment on 10-3-1981.
Only the issuance of letter of regular appointment was delayed to 31-10-1981 by the respondent- Government and delay on behalf of the respondent-Government cannot be utilized against the petitioner. The petitioner cannot, of course, avail of the provisions of Martial Law Instruction 21.
Martial Law Instruction which was issued on 8th August, 1977 directed the regularization of ad hoc appointments in the manner provided in this Instruction and it was directed that completion report would be forwarded to the Headquarters, M.L.A. Zone 'A', by 5th September, 1977. Syed Muhammad Zafar Bukhary, petitioner joined service as Assistant Professor even in his own pay and scale on 21- 6-1978 i,e, long after 5th September, 1977, therefore, his case is not covered by Martial Law Instruction 21. In any case, he has a locus standi qua the present writ petition so far his plea that he has a right to be considered for promotion is concerned.
14. Regarding merits, it has been noticed that Section 23 of the Punjab Civil Servants Act, 1974 confers powers on the Governor to make such rules as appears to him to be necessary or expedient for carrying out the purposes of this Act i,e, The Punjab Civil. Servants Act, 1974.
Appointment to a civil service of the Province or to a civil post in connection with the affairs of the Province is within the power of the Provincial Government and is thus one of the purposes of the Civil Servants Act. Hence the Punjab health Department (Medical and Dental Teaching Posts)
Service Rules, 1979 are generally intra vires of section 23 of the Punjab. Civil Servants Act, 1974.
Needless to add that authority which is competent to make rules is also competent to amend such rules.
15. It has, however, been urged on behalf of the petitioners that by prescribing 25-11-1977 the date of appointment as condition precedent for being promoted as Professor, the rule making authority has taken into consideration, the benefit of certain vested interests. In this regard, no positive material has been brought on the record. It cannot therefore, be said that the impugned amendment being discriminatory in nature violates the principle of consistency and, therefore, deserves to be struck down.
16. It has, however, been noticed that under the Pakistan Medical Council Ordinance, 1962, the Pakistan Medical and Dental Council stands constituted. This Council is thus a statutory autonomous organization of the Federal Government. The primary object of this Council is to establish a uniform minimum standard of basic and higher education in the Medicine and Dentistry. The Council to achieve this object also lays down the necessary qualifications and experience for the appointment of the various categories of teachers in the Medical and Dental Colleges in Pakistan. Section 33(2) of the Pakistan Medical Council Ordinance, 1962, authorises the Council to make regulations about the necessary qualifications and experience for the appointment of various categories of teachers in the Medical/Dental Colleges in Pakistan. The Medical and Dental Council of Pakistan has framed regulations in exercise of powers conferred under Pakistan Medical and Dental Council Ordinance, 1962. Appendix 3 thereof provides in regard to subject of Forensic Medicine and Toxicology, that for the post of Professor the basic qualification would he MBBS or equivalent medical qualification recognized by the Council. Post-graduate degree, may be Diploma in Medical Jurisprudence, and the experience should be 5 years teaching, as Assistant Professor in the respective subject. Similar qualification has been provided in the regulations published by the Medical and Dental Council of Pakistan vide No,PF-11-F-79/1611-1615, dated 8th September, 1979. It thus appears that no target date of 25-11-1977 is provided in the relevant regulations of the Pakistan Medical and Dental Council. Similarly the regulations for the appointment of Assistant Professors, Professors and Examiners of the Medical and Dental Council of Pakistan, particularly Regulations Nos.16 and 17, provide that the experience of a full time Professor in Medical Colleges of Pakistan shall be given preference over those who gained teaching experience abroad in the capacity referred to above under Regulation 16, if other things are equal. On the other hand, in the impugned notification experience abroad has been equated with the experience in Pakistan. It thus transpires that impugned notification is inconsistent with the regulations made by the Pakistan Medical and Dental Council in exercise of its powers under section 33(2) of the Pakistan Medical Council Ordinanee, 1962, a central statute. Article 143 of the Constitution of Pakistan provides; If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of Parliament which Parliament is competent to enact, or to any provision of any existing law with respect to any of the matter enumerated in the concurrent lagislative list, then the Act of Parliament, whether passed before or after the Aet 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 he void." Needless to add that curricular syllabus, planning, policy centers of excellence and standard of education as also legal, medical and other professions fall within the concurrent legislative list and, therefore, the provisions of Article 143 (supra) govern these subjects.
' It is, therefore, concluded that the regulations made by the Pakistan Medical and Dental Council under section 33(2) of the Pakistan Medical Council Ordinance, 1962, have ascendency over the rules of 1979 made by the Provincial Government in purported exercise of its powers under section 23 of the Punjab Civil Servants Act, 1974 and thus the regulations made by the Pakistan Medical and Dental Council shall prevail and the Provincial Rules to the extent of repugnancy shall be deemed to be void.
17. In this view of the matter in case of both the petitioners the target date of 25-11-1977, as prescribed in the Provincial Government Rules does not stand as a bar for their being considered for promotion as a Professor Similarly the period of experience of 5 years shall be counted in accordance with the provisions of the regulations by preferring the experience in Pakistan as against the experience abroad. This period shall include 'the period spent as service as Assistant Professor in own pay and scale.
18. In the light of the foregoing, conclusions, the writ petitions are partly allowed and it is declared that the petitioners are eligible to be considered for promotion as Professors in accordance with the regulations of the Pakistan Medical and Dental Council regulations which have ascendency over the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979. There shall, however; be no order as to costs.