' Dr.S.S. Naeem-ul-Hamid petitioner, who is Professor of Medicine (Neurology) in Rawalpindi Medical College, by this constitutional petition, assails his removal from the membership of Pakistan Medical and Dental Council (P.M.D.C.), respondent No,1 herein, and from that of its Executive Committee and his replacement by Dr. Jamil Akhtar (respondent No,2) in both the offices w,e,f, 4th March, 1989.
2. The averments in the writ petition are that Dr. Abdul Latif was the Principal of Rawalpindi Medical College (R.M.C) till his retirement on 13-4-1987 and till this date he had been an elected member of P.M.D.C. (respondent No,1) but on his retirement he resigned from its membership as well. On the aforesaid date he was succeeded by Professor Muhammad Nawaz as Acting Principal of R.M.C.
Who was also elected as member of P.M.D.C. Subsequently on 19-5-1987 when the petitioner was appointed as Acting Principal of R.M.C. He was also elected as member of P.M.D.C. By the Governing Body of the College because Dr. Muhammad Nawaz, on the vacation of the office of Acting Principal of R.M.C. Had also resigned his membership of P.M.D.C. The petitioner, in view of the provisions of section 3(f) read with section 7(4) and section 7(5) of the Pakistan Medical and Dental Council Ordinance, 1962, was elected as a member of P.M.D.C. And of its Executive Committee for a period of 5 years but on the appointment of respondent No,2 as Principal of R.M.C.
He (petitioner) was removed from the membership of P.M.D.C. And its Executive Committee illegally because--
(i) section 7 of the said Ordinance envisages the creation of vacancy in the membership of P.M.D.C.
Only on the death, resignation, insanity or conviction for an offence involving moral turpitude and he (petitioner) never suffered any such legal disability;
(ii) he could hold office for a period of five years w,e,f, 19-5-1987;
(iii) he was condemned unheard which was against the principle of natural justice; and
(iv) the respondents acted mala fide.
3. The petition was resisted by respondents No,1 and 2 because respondent No,3 signified lack of interest in this controversy by saying that it had only a formal role to play. In their respective written statements they took up the position that representation of R.M.0 on the P.M.D.0 and its Executive Committee went with the office of Principal of the College and so long as the petitioner remained its Principal, he continued to be the member of P.M.D.C. As he represented its interest and when he, like his predecessors-in-office, ceased to be the Principal of the College, he ceased to be the member of the Council. So the question of his removal from membership of the Council did not arise nor any cause of action to file this writ petition accrued to him on that account.
' Respondent No,2 asserted that on his appointment as Principal of R.M.C. He was, like his predecessors-in-office, elected as member of P.M.D.0 and his membership as such was unquestionable. By way of preliminary objections he pleaded laches and also pressed into service the provision of section 4(2) which enjoins a reference to the Federal Government for decision and its finality if a dispute arises regarding any election to the Council.
4. It may be mentioned here that Kh. M.Zia Nayyar, Advocate practising at Rawalpindi, represented respondent No,2 and he neither appeared on 21-1-1990 nor on 4-2-1990, the dates fixed for final hearing of the writ petition, on the ground that his client was seriously ailing and he could not .Get instructions from him. For each date of hearing he, instead of appearing in the Court and making a request for adjournment, sent a written request for adjournment on that account. His request for adjournment on 21-1-1990 was acceded to and the case was adjourned to 4-2-1990 with a caution that he must appear on the next date of hearing as Mr. SAlmas Ali Advocate, the learned counsel for the petitioner, was coming from Lahore and going back unheard but he did not heed that caution and on 4-2-1990 again sent an application for adjournment on account of the illness of his client. His request was not acceded to and the writ petition was heard in his absence. Only the learned counsel for respondent No,1 addressed argument in reply to those of the petitioner's counsel. So I am not recording any finding on the preliminary objections raised in the written statement of respondent No,2 because the learned counsel appearing on behalf of respondent No,1 did not agitate them before me and he confined his discussion only on merits.
5. It is argued on behalf of the petitioner that after his appointment as Acting Principal of Rawalpindi Medical College (R.M.C.) he was elected as member of P.M.D.C. By the teaching staff of the College and continued to be not only its member but also member of its Executive Committee for considerable period. According to the learned counsel, the petitioner was to retain membership of the council for a period of five years, as contemplated by section 7(2) of the said Ordinance, but to his utter surprise he was secretly removed from its membership by the machination of respondent No,2 without having been afforded the opportunities of being heard. He contended that the membership of P.M.D.C. As representative of Rawalpindi Medical College (R.M.C.) did not go with the office of Principal because Professor Muhammad Nawaz despite having been its Acting Principal was not formally notified as a member of P.M.D.C. And these two offices could not be linked with each other. He urged that respondent No,2 was not a duly elected member of P.M.D.C.
Because the persons who allegedly elected him included the Medical Superintendent of certain attached hospitals who were not legally competent to participate in that election and some eligibles were left out.
6. On the other hand, it was argued on behalf of respondent No,1 that ordinarily the principal of a medical college is also elected member of P.M.D.C. And he retains its membership so long as he remains principal of the college and in accordance with this practice the membership of P.M.D.C., so far as this College is concerned, also remained linked up with its principal ship. He argued that when the petitioner ceased to be the Acting Principal of Rawalpindi Medical College, he automatically lost the membership of P.M.D.C. And for that reason he was not to participate in 75th Session of the Council held at Karachi as meanwhile he was succeeded by respondent No,2 who was elected as member of the Council. According to the learned counsel, his client was, however, not aware of the procedure adopted by the Principals of Rawalpindi Medical College for their election as member of P.M.D.C. During their respective tenures because whatever was intimated to it, it accepted without any further enquiry.
7. P.M.D.C. Is constituted under section 3 of the said Ordinance. It consists of elected and nominated member Shine of those members, as envisaged by clause (f) subsection (i) of section 3 thereof, are elected by the teaching staff of each medical institution and dental institution in Pakistan from amongst the professors on its staff. After having been so elected, each member is to retain membership of the Council for a period of five years from the date of his election or until his successor is duly elected, whichever is longer, unless he resigns earlier or is otherwise removed on account of insolvency, insanity or conviction for an offence involving moral turpitude or for unprofessional conduct. All this is done under section 7(2) of the Ordinance, which is reproduced hereunder for the convenience of reference:-- "(2) Subject to the provisions of subsections (4) and (6), a member shall hold office lot a term of five years from the date of his nomination or election or until his successor has been duly nominated or elected, whichever is longer: ' Provided that if such a member fails to attend three consecutive meetings of the Council, or remains out of Pakistan for a continuous period exceeding one year, or, in the case of an elected member, ceases to represent the particular interest which he was elected to represent, his seat shall be deemed to have been vacated and a person shall thereupon be nominated or, as the case may be, elected to fill the vacancy:"
8. From the letter, dated 14-6-1987, addressed by the petitioner to the Secretary of respondent No,1, it appears that on 13-6-1987, while acting as Principal of Rawalpindi Medical College, he convened meeting of the teaching staff which unanimously elected him as representative of the College on the Council. The letter, dated 15-2-1989, addressed by respondent No,2 as Principal of Rawalpindi Medical College to the Secretary of respondent No,1 indicates that the Academic Council of Rawalpindi Medical College in its extraordinary meeting held on 15-2-1989 unanimously elected him as a member of P.M.D.C, to represent that College in place of the petitioner who had ceased to be its principal. Respondent No,1 had, pursuant to the first intimation, notified the petitioner as member of the Council representing Rawalpindi Medical College, and then acting on the second intimation, vide notification dated 4-3-1989, appointed respondent No,2 as member of the Council in place of the petitioner.
9. From the paragraph No,4 of the written statement of respondent No,2 it appears that the Academic Council of the College consisted of all the whole-time Professors of the College and that Academic Council had elected him as a member of P.M.D.C. This election did not satisfy the requirements of section 3(1)(f) of the said Ordinance because it envisaged the election by the members of the "teaching staff' of each medical institution which obviously meant not only the whole-time Professors of the College but also the Associate Professors and Assistant Professors thereof. The petitioner, as already mentioned, in his letter, dated 14-6-1987, had claimed himself to have been elected as member of P.M.D.C. By the Teaching Staff of the College in its meeting held on 13-6-1987. Therefore, his election was more in consonance with provisions of section 3(1)(f) of the Ordinance than the election of respondent No,2.
10. It may be noted here that under section 3(1)(f) of the Ordinance any professor on the teaching staff of any medical institution or dental institution in Pakistan can contest election for the membership of P.M.D.C. Representing that institution thereon and as such it was not necessary that only the Principal of Rawalpindi Medical College could become member of the Council. Therefore, the petitioner as Professor of Medicine (Neorology), Rawalpindi Medical College was eligible to contest election for the membership of the Council and irrespective of the fact whether he subsequently remained the Principal or not, he can retain the membership of the Council until he ceases to represent the College due to his death or retirement, resignation, dismissal or removal from service or transfer to some other institution, or he vacates his seat for any reason mentioned in the third proviso to section 7(2), or the normal term of his membership otherwise expires, subject to a rider thereinafter mentioned.
11. It may be mentioned that during the course of arguments, attention of this Court was invited to the Regulation 3 of the Regulations framed by P.M.D.C. Under section 33 of the said Ordinance for the election of its members from amongst the Registered Medical Practitioners and others, including Medical/Dental Institutions. It inter alia lays down that the election under section 3(1)(f) of the Ordinance shall be conducted by the University or Medical or Dental Institution in such manner as they may deem fit. This is an uncertain provision of law as it leaves everything to be done by the College Authorities themselves in any manner they like. Similarly, the phrase 'teaching staff' figuring in section 3(1)(f) ibid itself is a vague term which needs to be defined in order to avoid confusion and conflict in the institutions. It is necessary that definite guideline should be given or procedure should be devised for the holding of I election of the members, representing the institution on the P.M.D.C. By a legislative process.
12. There is also some force in the contention of the learned counsel for the petitioner that he was removed from the membership of P.M.D.C. Without having been afforded the opportunity of being heard. Since the petitioner appeared to be duly elected member of the Council representing Rawalpindi Medical College, he could retain the membership of the Council despite having ceased to be the Principal of the College. Therefore, his removal from the membership of the Council by substituting him with respondent No,2 was also against the rules of natural justice as he was not afforded the opportunity of being heard.
13. For various reasons stated above, the writ petition is accepted, and the impugned order, dated 4-3-1989, passed by respondent No,3 at the behest of respondent No,1 is declared against law and without lawful authority, subject to the condition that Federal Government, in exercise of its powers under section 3(2) of the Ordinance, shall hold a probe by associating therewith the petitioner and respondent No,2: whether the petitioner was elected as member of P.M.D.C. By the Governing Body of R.M.C. As alleged by him in para.5 of the writ petition, or by the Teaching Staff of R.M.C, as claimed by him in his letter, dated 14-6-1987, addressed to respondent No,1, and take a decision in accordance with law. If the Government comes to the conclusion that he was not elected by the Teaching Staff then it may order fresh election.