' Government of Punjab in the Health Department wanted to recruit an Assistant Professor (Plastic Surgery). Since such a post could only be filled on the recommendation of Punjab Public Service Commission (respondent No,3 herein), the Commission advertised the post in the Daily Naw-i- Waqt, Lahore, dated 11-9-1993. Petitioner claims to have sent application in response thereto. The interview calls for 25-10-1993 were issued to all the candidates except the petitioner. It is the case of the petitioner that on an enquiry he was informed that no interview call has been issued to the petitioner because the petitioner could only be appointed if candidates of the (1) and (2) categories as laid down in the Punjab Health Department (Medical and Dental Teaching Posts)
Service Rules, 1979, as amended by virtue of notification dated 21-5-1988, published in the Punjab Gazette on July 3, 1988, were not available. Aggrieved from the refusal of respondent No,3 to call the petitioner for interview on the strength of the above referred amended rules, the petitioner lodged this Constitutional petition on 19-10-1994 with the prayer that the rule in question as well as the refusal of respondent No,3 be declared as illegal.
2. Report and parawise comments were called for from respondents Nos.1 to 4. The same have been filed. Respondent No,5, apparently a rival candidate, was impleaded on his own application vide order dated 8-2-1995.
3. It is claimed by the petitioner and which claim has not been denied in the comments/written statement that the petitioner obtained M.B.,B.S. Degree frojn the University of Punjab as a student of Nishtar Medical College, Multan, in 1975 and he was also awarded Gold Medals. Thereafter, the, petitioner proceeded abroad for higher education in the subject of Surgery. The petitioner was awarded fellowship by the Royal College of Surgeons of Edinburgh in the year 1986, at his first time.
Thereafter, the petitioner studied and successfully completed three years "Certification Training Scheme" organized by the British Association of Plastic Surgeons from 1987 to 1990. The petitioner also worked in the speciality of surgery from r-9-1985 to 31-8-1986 as Senior House Officer, Victoria Hospital, Blackpool." From 1-9-1986 to 31-5-1987, the petitioner worked as Senior House Officer, Burns, Plastic and Reconstructive Surgery in the Northern General Hospital, Sheffield. From 1-6-1987 to 31-5-1988 the petitioner worked as Senior House Officer, Burns and Plastic at Royal Preston Hospital, Lancs. From 1-6-1988 to 31-14989, the petitioner worked as Registrar in Plastic and Reconstructive Surgery in Sent Geroge Hospital and Westminister Hospital, London. After words, the petitioner worked as Registrar, Burns and Plastic Surgery in the Queen Marrys University Hospital, Roe Hampton, London, from 1-2-1989 to 31-5-1990. This postgraduate practical experience of the petitioner in the speciality of Plastic Surgery from November, 1986 to 30th May, 1990, in University of Kingdom has been duly certified by respondent No,4, vide Annexure IV. It is further claimed that presently the petitioner has been working on contract basis as Assistant Professor (Plastic Surgery)
Nishtar Medical College, Multan since October, 1990. The petitioner is also Honorary Consultant of Combined Military Hospital, Multan, since May, 1992. The petitioner is a member of Faculity of Plastic Surgery and Physicians of Pakistan and also an Examiner of Fellowship in Plastic Surgery (F.C.P.S.)
Part-II College of Physicians and Surgeons Pakistan. Since the petitioner has been working as Assistant Professor in Speciality of Plastic Surgery in Nishtar Medical College, Multan, on contract basis since October, 1990, the petitioner claims to have earned teaching experience of more than four years till the date of filing of the petition.
4. The qualifications for the post of Assistant Professor (Plastic Surgery) as given in the Punjab Health (Medical and Dental Teaching Posts) Service Rules, 1979, framed under section 23 of the Punjab Civil Servants Act, 1974, are as follows:--
(a) (1) M.B.,B.S. Or equivalent Medical qualification recognized by the PMDC with the following postgraduate qualification:
(i) FCPS (Plastic Surgery) or
(ii) M.S. (Plastic Surgery) or equivalent qualification in the speciality recognized by PMDC or
(2) FCPS (Surgery) M.S. (Surgery), or equivalent qualification recognized - by PMDC with minor diploma in Plastic Surgery recognized by PMDC. 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 postgraduation.
3RD Preference:-- Practical experience before postgraduation.
(b) If no such candidate is available with the aforesaid qualification then: ' M.B.,B.S. Or equivalent medical qualifications recognized by PMDS with FCPS (Surgery) or M.S. (Surgery) or equivalent qualification recognized by the PMDC with three years practical experience in Plastic Surgery in a recognized institution after postgraduation.
1ST Preference:-- Teaching experience.
2ND Preference:-- Practical experience after post graduation.
' It will be seen that the candidates qualifying under para. (b) above will only be appointed if candidates with qualifications mentioned in paras. 1 (i) and (2) are not available. The petitioner's grievance in nut shell is that the expression If no such candidate is available with the aforesaid qualification then" is illegal and contrary to the intention of law as well as it is destructive to merit and good qualification. According to the petitioner instead of the above expression the rule should read "or" like the word "or appearing in sub-para (1) and sub-para (2). It is claimed to be illegal because according to the petitioner's qualifications/experience above noted having been certified by respondent No,4, the petitioner ranks equal to the persons holding qualifications mentioned in paras. (1) and (2). It is asserted that respondent No,4 is the only authority competent to issue equivalence certificate and since respondent No,4 acts under a Federal Statute, therefore, its actions/certificates are to be followed by the Provincial Authorities in terms of Article 143 of the Constitution of the Islamic Republic of Pakistan. In other words, the petitioner's contention is that the amended rules which make the persons placed in category three (b) eligible only in the absence of availability of persons placed in category a (1) and above, is void to the extent of inconsistency with the Regulations dated 15-1-1984 framed by the Pakistan Medical and Dental Council under the Pakistan Medical Council Ordinance, 1962 (Ordinance XXXII of 1962).
5. In the written statement filed by respondent No, 4 the claim of the petitioner is admitted in paras.
2, 6, 12 13 and 14. It is repeatedly stated that the petitioner is eligible for the post of Assistant Professor of Plastic Surgery as far as qualifications and experience is concerned. It is also claimed that under subsection (2) of section 33 of the Ordinance of 1962, the Council is competent to prescribe the qualification and experience of teaching posts like Lecturers, Senior Registrars, Assistant Professors, Associate Professors, Professors and Examiners. It is further claimed that these Regulations having been framed under the Federal Statute, this will prevail over the Provincial legislation if there is any point of contradiction at any stage. Reliance is also placed on a Judgment of the Supreme Court for the proposition that since the Council consists of very senior and respected members of the medical professions including the Principals of the Medical Colleges, the High Court, in the exercise of its Constitutional jurisdiction does hot sit as a Court of Appeal.
6. The case of the petitioners is hotly contested by both the Government of Punjab (respondent No,1) and the Punjab Public Service Commission (respondent No,3). The case of the Government of Punjab is that Rules/Regulations framed by the Pakistan Medical and Dental Council are only advisory and recommendatory and that the Government is entitled to follow or refuse to follow the same in its discretion. It is asserted that the relevant rule in question is absolutely legal and no objection to the same can be taken either on the legal plain or on the plain of expediency or discouraging the merit. Almost same is the position of respondent No,3 which has defended its failure to call the petitioner for interview on the ground that since candidates of the preferred category were available, it was of no use asking the petitioner to appear for interview. As regards the binding nature of the Regulations framed by respondent No A, respondent No,3 has taken the stand that these can only be followed if they are incorporated in the relevant rules of Punjab Government.
7. The principal arguments in support of the petition as advanced by the learned counsel for the petitioner have by and large been noted above. During the course of oral submissions the learned counsel has attacked the vires of the relevant rules on the following grounds:-
(1) Petitioner having been held to be eligible for appointment as Assistant Professor (Plastic Surgery) by respondent No,4 onr the basis of his training and experience abroad, the said finding is binding on the other respondents viz, respondents Nos.1 and 3 and the expression in the rules "If no such candidate is available", is illegal inasmuch as it does not conform to the Regulations framed under a Federal Statute.
(2) Support for the above point is gathered from the minutes of the meeting of the Service Rules Committee held on 28-6-1993 under the Chairmanship of Additional Secretary. Copy of the minutes is annexed as Annex XI. Item No,1 dealt with the question of amendment to the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, Sechedule)-II. It is asserted by learned counsel that this Committee noted the anomaly in the relevant rules and recommended its change, but so far no action has been taken.
(3) That the rule as at present is not conducive to merit, efficiency and experience, inasmuch as it places the foreign trained and experienced persons in a lessor category.
8. As against the above submissions both the learned Additional Advocate-General and the learned counsel appearing for added respondent No,5, has maintained the validity as well as the appropriateness of the rule. It is asserted that if the rule is changed then nobody in the country will go for postgraduation studies and qualifications. It is urged that the persons holding postgraduation academic degree/diploma must rank better to the foreign trained and experienced persons. Learned counsel for respondent No,5 has further refuted' the claim that all other Provinces are following the point of view of respondent No,4 and it is only the Punjab Province which is not agreeing to the interpretation of respondent No,4.
9. The Pakistan Medical and Dental Council was constituted under Ordinance XXXII of 1962 with a view to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualifications in medicines and dentistry. The provisions relevant to the case in hand are contained in sections 15 and 33 of the Ordinance. Under section 15 the Council, with the approval of the Federal Government, is empowered to certify a person holding qualifications guaranteed by a medical institution outside Pakistan, not included in the 2nd Schedule and experience gained in any part of Pakistan to be possessed of qualifications which entitle him to be recognised as possessed of sufficient medical qualifications for the purposes of the Ordinance. The effect of such certification is that the persons so certified shall be deemed to be possessed of qualifications which are recognized medical qualifications for the purposes of the Ordinance.
Under section 33 subsection (2) clause (d), the Council is obliged to make regulations providing for minimum qualifications and experience required of teachers for appointment in medical and dental institutions. Admittedly vide letter dated 1-1-1992 (Annex-IV) the Council granted recognition to the training and experience of the petitioner and also issued the experience certificate which is at page 18 of the record. Vide Annex. 'X' at page 36 of the record, the Council by a letter addressed to the Secretary Health Department, Government of the Punjab, Lahore, opined that "all the above three categories of candidates applying for appointment as Assistant Professors in various sub- specialities are eligible for appointment as Assistant Professor in the Medical Colleges. However, the selection is to be made by the competent Authority of a candidate considered better for a particular post". What has been done by the Council vide Annexs. 'IV' and .'X' is clearly backed by the provision contained in sections 15 and 33 noted above. There is considerable weight in the arguments that having been so placed at par the rules framed by the respondent/Government could not place the petitioner in an inferior category by providing that if no candidate of the first two categories is available, then the candidate falling in the third category shall be eligible.
Apparent the intention seems to be clear that once the qualification has been recognised by the Council and an opinion as to eligibility has been rendered, it will not be open to the respondent/Government to act otherwise. It will be noted that even in the written statement, the case of the Council is that the petitioner is eligible for appointment as Assistant Professor on the basis of petitioner's training and experience abroad.
10. Even if the advice/opinion/certification of the Council be not held as binding on the other authorities/functionaries in the Country and such advice etc. Is considered only advisory, which is the case of respondent/Government, the respondent/Government must show very strong and cogent reasons as to why the advice/opinion/certification of the council is being disregarded. No such reason is discernible from the written statement/parawise comments filed by the Government nor such a reason has been disclosed much less convassed at the Bar. The learned Additional Advocate-General and the Departments representative of the respondent/Government present during the course of hearing, have been totally unable to give any reason at all as to why the Government was not giving effect to the recommendations of the Service Rules Committee contained in Annex. XI at page 38 of the record. A reading of the minutes clearly supports the view point canvassed by the petitioner in this case. The following extracts from the minutes are highly pertinent:- "2. The implications of the provision at para 1 (iv) viz 'no such candidate is available with aforesaid qualification; then 'is that the doctors having qualification like FRCS, MRCP have been rendered ineligible because if a candidate with M.S/N.D. (Punjab) in the speciality such as Plastic Surgery, Orthopaedic, Urology, Paediatrics, ' Nephrology, Neurosurgery and Cardiology is available then the doctors who have qualified from abroad will not be considered even if they have 3 years or more post fellowship experience in that particular speciality.
3. This issue was considered in a meeting held on 21-2-1993 convened by Secretary Health with Senior Professors of different specialities. After examining various aspects of the matter and Pakistan Medical and Dental Council's letter dated 8-12-1992, the participants were of the view that to attract foreign qualified candidates for service in the teaching posts of Medical Colleges, the abovementioned anomally in the service rules needs to be rectified. It was also felt that clause of the existing service rules should also be removed as the duration of different diploma courses is not sufficient enough to make the candidates, with the qualification of FCPS (Surgery)/M.S. (Surgery) or equivalent qualification recognized by the Pakistan Medical and Dental Council, eligible for the post of Assistant Professor in that sub-speciality. It was agreed that the equitable position of FRCS/MRCP, being a par with M.S./M.D. Be reaffirmed."
' In paras. 4 and 5, the Service Rules Committee recommended necessary change to be made in the relevant rules. It will be seen from the above that the minutes of the Committee is a Judgment against the Government by its own forum. Instead of following the same, the Government had adopted a stand in this case which is totally opposed to the above view of the Committee.
11. Article 143 of the Constitution lays down that in the event of the provision of a Provincial Statute being repugnant to the Federal Statute, it is the provisions contained in the latter which shall prevail and the Provincial provisions to the extent of repugnancy shall be void. The argument is that the relevant rule in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, by which a person duly recognized by the Council functioning under the Federal Statute as having qualifications equivalent or at par or otherwise elegible is placed inferior to persons holding qualifications declared equivalent, is repugnant to the Federal Provisions and such should be declared so. A Judgment of the Supreme Court reported as Government of N.-W.F.P., Health and Social Welfare Department v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCM R 1524) is cited to rebut this argument. It has been laid down in the reported Judgment that the terms and conditions of the civil servant are not governed by the regulations made by Pakistan Medical and Dental Council but by the N.-W.F.P. Civil Servants Act and the Rules of 1975 made thereunder. It is further held that it is by incorporation of the qualifications in the rules that the civil servants like the respondent and others could claim to be governed by it and not independently of any such incorporation. The above dictum of the Supreme Court does lay down that Regulations of the Council cannot govern the terms and conditions of the civil servants unless the incorporation has taken place. But the Judgment does not decide the precise question, in any case, not in very clear terms as to the effect of repugnancy in what is prescribed and done under a Federal Statute and what is prescribed and done in a provincial statutory provisions. Since this writ petition can be decided without adverting to the question of repugnancy, as such I decline to further examine this question.
12. To my quary as to what purpose the respondent/Government wanted to achieve by placing a foreign trained and experienced person such as the petitioner in an inferior category, the learned Additional Advocate-General argued that the Government wanted to encourage the postgraduation studies within the Country. If this be the purpose, it can still be achieved by placing the persons such as the petitioner, at par with the other two categories. It cannot be denied that keeping current studies in view, experience gained abroad and studies conducted in a speciality is much more helpful than the one gained within the Country. It would be conducive to encourage talent and merit if persons, like the petitioner, are not discourged and are awarded equal opportunity to competition. This is not to say that foreign trained or qualified must be preferred but the converse will be equally untrue. Foreign trained/experienced persons must not be discouraged as well. Keeping them at par will only tend to create healthy competition and make available the service of the best talent to the country and the people. It will be for the Selecting Authority in this case, respondent No,3, to pick up the best from amongst all the three categories. To knock out one category or to make its availability dependent upon the non-existence of the other two categories, in my judgment is unjust and unfair and not at all conducive to merit.
13. For the above reasons, I hold the respondent/Government to be at least ,bound by the recommendation of its Service Rules Committee and to implement the same expeditiously. It is about two years now that the recommendations have come into the field and no action is being taken. Apart from proverbial delays which mar the Government action something else may be acting as a restraining factor in implementing the recommendation.
14. For the above reasons, I would allow this writ petition and hold the relevant rule to be unconscionable, unjust and unfair and as such of no legal effect. I would grant declaration that the petitioner is eligible and at par with the candidates belonging to the other categories for the purpose of selection as Assistant Professor. I would also direct the respondent/Government to implement the recommendation of the Service Rules Committee and to amend the relevant rule, as recommended. There shall 6e no order as to costs.