' IRSHAD HASAN KHAN, J.---This judgment shall dispose of IntraCourt Appeals Nos.142 of 1993 and 143 of 1993 which have arisen from the judgment, dated 21-3-1993 passed in Writ Petition No,600 of 1993.
2. The facts in brief are that the Government of the Punjab, Health Department, sent a requisition to the Punjab Public Service Commission, hereafter called P.P.S.C., for recruitment of four posts of Assistant Professors (Cardiology) in the Health Department. The qualifications advertised for the posts were as under:---
(a) (i) M.B.,B.S. Or equivalent medical qualifications recognized by the P.M.D.C. And the following Post-Graduate qualifications in the subject:---
(1) F.C.P.S. (Cardiology) or (2) M.D. (Cardiology) or equivalent qualifications in the speciality recognized by P.M.D.C. OR
(ii) F.C.P.S (Medicine)/MD (Medicine) or equivalent qualifications recognized by the P.M.D.C. With Minor Diploma in Cardiology recognized by the P.M.D.C.
(b)(i) 3 years' teaching or practical experience in the subject in a recognized institution before or after Post-graduation:--- ' 1st Preference:---Teaching experience.
' 2nd Preference:---Practical experience after Post-graduation.
' 3rd Preference:---Practical experience before Post-graduation.
(ii) If no such candidate is available with the aforesaid qualifications THEN:---M.B.,B.S. Or equivalent medical qualification recognized by the P.M.D.C. With F.C.P.S. (Medicine) or M.D. (Medicine) or equivalent qualification recognized by the P.M.D.C. And three years' practical experience in Cardiology in a recognized institution after Post-graduation:--- ' Ist Preference:---Teaching experience.
' 2nd Preference:---Practical experience after Post-graduation.
3. The Health Department also worked out zonal allocation in the following order:--- All Punjab basis one seat Zone-I one seat Zone-II two seats
4. Dr. Hasanul Banna Ghazi respondent and others were applicants for these posts. The P.P.S.C., after interviewing the candidates, prepared the merit list on the basis of marks obtained by them in relation to the two categories. The first category related to Post-Graduate degree-holders in the subject or Post-Graduate Degree in general medicines plus M.D. In Cardiology with required experience and, second category was in respect of Post-Graduate and Minor Diploma in Cardiology with three years' experience after Post-graduation.
5. Dr. Raja Zafar Ahmad was recommended at No,1 in the merit list whereas one Dr. Muhammad Ashraf was at No,6 and the petitioner appeared at No,2 of the merit list. Dr. Hasanul Banna Ghazi, the contesting respondent was provisionally interviewed by the P.P.S.C. Subject to production of the Pakistan Medical and Dental Council's (hereinafter called P.M.D.C.), recognition of his M.Sc.
(Cardiology) (Leeds) U.K., by 19-5-1990. The time was further extended to 31-5-1990. On failure to produce the aforesaid document, the P.P.S.C. Rejected his application being incomplete and the interview conducted by it as well as the merit list was treated as cancelled. This happened on 4/5- 6-1990. The decision of the P.P.S.C. Was conveyed to the respondent on the said date as per record of the P.P.S.C. Produced before us.
6. The contesting respondent lodged a complaint with the learned Wafaqi Mohtasib against the P.M.D.C. On their failure to grant the equivalence certificate of M.Sc. (Leeds). The learned Wafaqi Mohtasib accepted the complaint and vide his opinion dated 27-8-1991 made the following recommendations:--- "(i) As long as P.M.D.C. Continue to recognise research-oriented degrees as medical/clinical degrees, they would have to give due recognition to M.Sc. (Cardiovascular Studies) (Leeds). Dr. Hasanul Banna Ghazi's attainment must therefore be equated with the MEDIUM Postgraduate qualification., by virtue of the fact that he obtained an M.Sc. Degree in Cardiovascular Studies from Leeds, and also underwent a second year's training in Cardiology in the U.K.
(ii) P.M.D.C. Should re-examine their criteria in order to ensure consistency in their arguments.
(iii) P.M.D.C. Should accept the arguments advanced by Dr. Muhammad Zubair and Iftikhar Malik, that research degrees should not be recognised by P.M.D.C. In Future and that only Medical Degrees should be considered for equivalence by P.M.D.C. This would be entirely consistent with the practice in UK, which P.M.D.C. Themselves have wished to rely upon."
7. On review by the P.M.D.C., the learned Wafaqi Mohtasib reexamined the case and opined vide his order dated 24-6-1992 as follows:--- "The case has been examined. The Agency had recognised the M.Sc. (Cardiovascular Studies)
(Leeds-U.K.) Degree of the complainant as a 'minor' qualification which the complainant wanted to be treated as "Medium" qualification. However, in the light of the Supreme Court's order in Civil Appeal No,1246 of 1990, the P.M.D.C. Rules have been modified and the category of 'Medium' qualification has been done away with. In future, Post-Graduate qualifications shall either be refused or granted as an "additional qualification". The complainant's Post-Graduate Degree falls in this category and the Agency would be well advised to recognise it as an additional qualification.
As for adjudging the comparative value of additional qualifications, this has to be done with the greatest possible care by the selecting authority for the purposes of appointment or promotion."
' Consequent upon the recommendation made by the learned Wafaqi Mohtasib, the Punjab Government in the Health Department vide letter dated 17-9-1992, B addressed to the P.P.S.C., inter alia observed that the interview of the contesting respondent was not liable to be cancelled, in that, the P.P.S.C. As selecting authority was under a legal obligation to determine the comparative value of the additional qualifications acquired by the contesting respondent with a view to determining whether or not he was eligible for the post in dispute. It would be advantageous to reproduce the following observations of the Health Department in this letter:--- ' if it is determined that this was a Post-Graduate Degree equivalent to F.C.P.S. (Cardiology) or M.D.
(Cardiology) he would have to be deemed as eligible for the post of Assistant Professor at the relevant time of his application. He had already been interviewed and his result was held up due to recognition of the Post-Graduate Qualifications by the P.M.D.C. His interview could not therefore be legally cancelled before arriving at a positive decision as indicated above. This being his grievance, the case has to be placed before the Chief Minister, Punjab as Chief Executive of the Province for his decision on the basis of hardship involved in this case. It is therefore necessary that the Punjab Public Service Commission should determine the status of his additional qualifications and intimate what was the result of the interview. No arbitrary decision about rejection or his interview by the Commission could foreclose the rights accruing to the candidate if his case had been processed strictly in accordance with the law.
' The post of Assistant Professor of Cardiology is still available as vacant for non-availability of a suitable incumbent and if Dr. Hassanul-Banna Ghazi has otherwise even found fit for the post by the Commission as a result of interview. His appointment would go a long way to remove the difficulty in imparting necessary teaching to the students."
' The P.P.S.C., however, vide its decision dated 10-12-1992 came to the conclusion that the qualification of M.Sc. Obtained by the contesting respondent in Cardiovascular Studies was not at the level of F.C.P.S. Or M.D. With the result that he was not qualified for the post of Assistant Professor in Cardiology.
8. Being aggrieved with the aforesaid decision, the contesting respondent approached this Court by means of a Constitutional petition contending that he was duly qualified for the post of Assistant Professor in Cardiology and the impugned action is based on erroneous assumption of facts. In support of his contention, reliance was placed on a certificate issued by the Minister of State for Foreign and Commonwealth Affairs wherein it was stated that the contesting respondent had completed a course of instructions in Cardiology from September 1987 to October, 1989 provided by the British Government as part of its Co-operation Programme. A copy of the aforesaid certificate was appended to the writ petition. The contesting respondent also placed reliance on a certificate appended with his application submitted to the P.P.S.C. that he had undertaken two years' training from September, 1987 to October 1989 which period is inclusive of one year's training after obtaining Degree of M.Sc. He further pleaded that discriminatory treatment was meted out to the contesting respondent, in that, one Dr. Muhammad Ishfaq who had obtained Cardiology Degree from U.K. Was appointed as Assistant Professor in Cardiology in King Edward Medical College, Lahore, as well as one Dr. Muhammad Amin, Assistant Professor of Pathology, who obtained M.Sc. Degree from U.K. Was selected by the P.P.S.C. And was appointed as Assistant Professor. On behalf of the appellants, it was argued before the learned Single Judge that the contesting respondent failed to produce the equivalence certificate from the P.M.D.C. And the Regulation issued by the P.M.D.C. Having succeeded the announcement of the result of the interview for appointment of others as Assistant Professors, his application was rightly rejected.
9. The learned Additional Advocate-General and Ch. Muhammad Ishaq, the learned counsel for the P.M.D.C., submitted that the impugned order is based upon -a- news report appearing in the P.M.D.C. Gazetteer that the qualifications of the contesting respondent were equal to F.C.P.S. On the assumption of amendment having been made in the Regulations of the P.M.D.C. It was argued that such an amendment in the Regulations was not made in the Regulations and, therefore, the judgment is liable to be set aside. It was further argued that even if the report appearing in the P.M.D.C. Gazetteer relied upon by the learned counsel for the contesting respondent could be treated as an amendment in the Regulation, the contesting respondent's qualification having not been declared equivalent to F.C.P.S., he was not qualified for the post of Assistant Professor.
10. Ch. Muhammad Ishaq, learned counsel for the P.M.D.C., was also of the view that the learned Judge in Chamber was not quite right in holding that the contesting respondent had undertaken a course of two years' duration as an integral part of the educational qualifications leading to the Degree of M.Sc. (Cardiology). He has referred to the averments made by the contesting respondent in the application submitted by him before the P.P.S.C., in support of his plea that this was in fact the case of the contesting respondent himself. He further argued that prescribing minimum qualification and experience required of teachers for appointment in Medical and Dental Institutions falls within the authority of the P.M.D.C. By making appropriate Regulations by virtue of section 33 of the Pakistan Medical and Dental Council Ordinance, 1962, hereinafter called the Ordinance and it is the power of the Council alone to allow relaxation in any given case in terms of section 15 thereof. Learned counsel for the appellants, have also controverted the assertion made by the learned counsel for the contesting respondent that he was discriminated against by the P.M.D.C.
11. We have considered the submissions made by the learned counsel for the parties at some length and perused the documents available on our record as well as the departmental record.
12. It is an admitted fact that the contesting respondent was ink viewed provisionally and he failed to produce the P.M.D.C. Recognition of his M.Sc. (Cardiology) from U.K. The P.M.D.C. Not only did not issue the requisite equivalence certificate but their such failure also furnished the solitary ground for the rejection of the result of the interview by the P.P.S.C. We have looked in vain for any effort made by the P.P.S.C. To effect a comparison/assessment of the qualifications obtained by the contesting respondent from abroad in the matter of the comparative study according to its Regulations. As held in Pakistan Medical and Dental Council v. Dr. Zebun-Nisa 1991 SCM R 536 the decision of this question falls within the domain of authority/jurisdiction of P.M.D.C. There is substance in the contention being raised on behalf of the appellants that in the absence of the recognition of the Degree of M.Sc. (Cardiology) from U.K. By P.M.D.C. As equivalent qualification for the disputed post, the contesting respondent was not entitled to the relief granted to him in the Constitutional petition. The learned counsel for the contesting respondent was not in a position to point out any lacuna in the decision reached at by the P.P.S.C. When they rejected his application and declined to declare his result of the interview for the reason that the promised equivalence certificate could not be produced by him from the P.M.D.C.
13. The learned Judge in Chamber came to the conclusion that the contesting respondent was qualified as per Regulations of the P.M.D.C. To hold post of Assistant Professor, in that, he was holder of M.Sc. Degree in Cardiology from Foreign University, acquired practical training extending over two years and the P.M.D.C. Itself issued Regulations that Post-graduation qualification which had two years' full time training can be considered as medium Post-Graduate qualification equivalent for studies of M. Phil where persons with higher Post-Graduate qualification like F.C.P.S. Were not available. It may be pointed out with respect that the learned Judge overlooked the fact that the Regulations relied upon by him was of subsequent origin to the decision of the P.P.S.C. And had no retrospective operation. The matter, however, does not end here. As already observed above, the P.P.S.C. Had failed to perform its duty to make a comparative study of the qualifications of the contesting respondent vis-a-vis those qualifications for which the equivalence certificate was called for from it. Moreover, it is the case of the Government of Punjab itself that adjustment of Dr. Hassanul Banna Ghazi, respondent, against an existing vacancy falling to the quota of Zone-II, can be made subject to the decision of the Chief Minister, Punjab, being the competent authority. This course was not pursued further and the matter had been snapped at the initial stage. The learned counsel appearing for the appellants in ,these causes were not able to contend that any such effort was made by the P.M.D.C. To obviate the hardship caused to the contesting respondent.
14. Ordinarily we would have remitted the case to the P.P.S.C. For decision afresh after making comparative assessm ent of the qualifications of all the candidates including the contesting respondent, but as neither the successful candidates had been impleaded as a party to these proceedings nor their appointment was formally challenged in the writ petition, therefore, no order can be passed to their detriment.
15. Be that as it may, as one post of Assistant Professor is still lying vacant and suitable candidate is not forthcoming, justice and fairplay demands that the case of the contesting respondent be considered afresh by the appellants at their respective ends. We, therefore, direct that the appropriate decision be taken by the appellant P.M.D.C. Within ninety days from today without making any recommendation for any other person during the interregnum. In the meanwhile, the Government of the Punjab in the Health Department shall also lay the case before the competent authority with a view to obtaining appropriate order in the matter of relaxation of qualifications under section 15 of the Ordinance. The Commission shall formally make the recommendation as a step succeeding to the job respectively done by the P.M.D.0 and the Government within a month of the receipt of the appropriate reference-communications from the P.M.D.C. And the Government of the Punjab in the Health Department.
' In view of the above, the Intra-Court appeals are accepted by modifying the impugned judgment dated 21-3-1993 passed by the learned Single Judge to the extent indicated in para. 15 above.
There shall be no order as to costs.