' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---This petition for special leave to appeal arises from the order of a learned Division Bench of the Peshawar High Court, Abbottabad Seat, dated 21-9-1994, whereby the writ petition filed by the petitioner to have the promotion of respondent No,4 first as Associate Professor and then as Professor in Pathology in Ayub Medical College, Abbottabad, declared as without lawful authority and of no legal effect and seeking further direction to respondents Nos.1 to 3 to promote the petitioner to the post of Professor in Pathology instead of respondent No,4 was dismissed.
2. The case of the petitioner is that he joined on 25-7-1984 as Assistant Professor in the Department of Pathology in Ayub Medical College, Abbottabad, with the qualification of M.B.,B.S. And M. Phil whereas respondent No,4 joined provisionally on 31-12-1981 in the said college as Associate Professor in the same Department with the qualification of M.B.,B.S. And D.C.P. ( Diploma in Clinical Pathology), a post graduate minor diploma. Respondent No,4 was, however, absorbed in Grade-18 on permanent basis with effect from 1-6-1984. The cases of the petitioner and respondent No,4 were considered twice by the Selection Board for promotion to the post of Associate Professor and, in consequence, the petitioner was promoted in preference to respondent No,4 and was appointed as Associate Professor in Pathology with effect from 21-7-1987 which was duly approved by the Board of Governors on 23-7-1987. Subsequently, respondent No,4 was promoted to the post of Associate Professor in Pathology with effect from 16-8-1988. In the seniority list circulated by the Medical College on 15-8-1989 respondent No,4 was placed at Serial No,10 while the petitioner's name figured at Serial No,12 and thus the petitioner was made junior to respondent No,4. Feeling aggrieved, the petitioner filed written objections against the seniority list but his grievance was not redressed. The petitioner challenged it in Writ Petition No,45/1991 in the Peshawar High Court, Peshawar. The College Authorities, in reply, took the stand that the abovesaid seniority list was not final and that the final list would be circulated by the competent authority after inviting the objections. The High Court, therefore, dismissed the writ petition in limine as premature vide its order dated 10-9-1991 with a direction to the College Authorities to finalize the seniority list as early as possible preferably in the following meeting. Nonetheless, no seniority list was issued or circulated even after the aforesaid direction of the High Court. Above all, acting on the same provisional seniority list, respondent No,4 was promoted as Professor in Pathology vide office order dated 22-12-1991 in preference to the petitioner. Feeling dissatisfied, the petitioner challenged the aforesaid promotion order of respondent No,4 in Writ Petition No,1/1992 in the Peshawar High Court Bench, Abbottabad. A learned Division Bench of the Court dismissed the writ petition vide its judgment dated 21-9-1994.
3. It was contended on behalf of the petitioner before the learned Division Bench that the experience of respondent No,4 as Lecturer should not have been counted towards Assistant Professor for promotion to the post of Associate Professor as well as Professor because it was violative of the provisions the Health Department N.-W.F.P. (Khyber Medical College Teaching Cadre) (Appointment to Posts Rules, 1979 and that respondent No,4 was possessed of minor diploma of D.C.P. And, therefore, he was required to have earned teaching experience of seven years in order to qualify for promotion/appointment as Associate Professor. The reasoning which found favour with the learned Division Bench of the High Court is as follows:- "A meticulous perusal of the record reveals that the case of the petitioner and respondent No,4 is governed by the Pakistan Medical and Dental Council (hereinafter called as Council) Rules. The teaching experience of the petitioner has been calculated on the basis of the formula prescribed in the said Rules, according to which, his total teaching experience comes to 3 years 11 months and 13 days. The teaching experience of Dr. Syed Humayun Shah respondent No,4 has also been calculated on the same formula which comes to 6 years, 10 months and 4 days. The Regulations of the Council were amended and were given effect from 15th of January, 1984 whereunder the rules were amended to the extent that the required length of experience for the post of Associate Professor with minor diploma was enhanced from 5 years to 7 years while it was enhanced from 3 years to 5 years with major diploma. The petitioner has based his stand on the new rules. But, the council (P.M.D.C.) has clarified the position through letter dated the 13th January, 1991 addressed to the Principal, Ayub Medical College that the new rules shall be applicable in the following terms:- ' The person appointed before 15th January, 1984 shall be governed by the Regulations on the subject for appointment/promotions applicable at the time of their appointment to teaching cadre'. In view of this clarification we are convinced that respondent No,4 was governed by the old rules, meaning thereby that he was required to have 5 years length of experience with minor diploma of D.C.P. For the post of Associate Professor. Similarly, the promotion of the respondent was approved by the competent authority and was duly notified by the Principal Ayub Medical College, Abbottabad. We also find that publication of the research papers was not a condition precedent for promotion as Associate Professor as per old rules of the Council."
4. The learned counsel for the petitioner contends that the view taken by the learned High Court in para.9 (supra) was not only erroneous but is in direct conflict with that taken by this Court in the precedent case of Government of N.-W.F.P., Health and Social Welfare Department through its Secretary v. Dr. Sheikh Muzaffar Iqbal and others (1990 SCM R 1321). In the cited authority while relying on the case of Dr. Habibur Rahman v. The West Pakistan Public Service Commission, Lahore and 4 others (PLD 1973 SC 144) it was held that the law has since then been well established that the rules applicable and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date. This Court also settled the proposition that respondent No,1 therein being a civil servant, the terms and conditions of his service were not governed by the Regulations made by the Pakistan Medical and Dental Council but by the N.-W.F.P. Civil Servants Act and the N.-W.F.P. Civil Servants (Appointment, Promotion and Transfer) Rules, 1975 and further that it is by incorporation of the qualifications in the rules that the civil servants like the respondent No,1 and others therein could claim to be governed by it and not independently of any such incorporation.
5. In this background, leave to appeal is granted to examine the following questions of law of public importance arising in the instant case:--
(a) Whether the Regulations framed by the P.M.D.C. Or the Ayub Medical College (Terms and Conditions of Service) Regulations, 1980 would govern the cases of the employees of Ayub Medical College?
(b) Whether the finding of the learned Division Bench that notwithstanding the amendment in the Regulations of the P.M.D.C., the old Regulations would govern the case of respondent No,4 and not the new Regulations which held the field on the date when the impugned orders of promotion of respondent No,4 were made, is in accord with the law declared by this Court?