1. ' ABDUL MAJID KHANZADA (CHAIRMAN).---The facts of this appeal as stated by the appellant, in his memo. Of appeal, are:--
(i) That the appellant was offered the post of Assistant Professor Cardiology (B-18) on ad hoc basis vide order, dated 13-6-1990 by the respondent No,1, on the terms and conditions mentioned therein, which he accepted.
(ii) On the recommendations of the Sindh Public Service Commission and with the approval of the prescribed Authority his services were regularized vide orders, dated 10-12-1990, in the said appointment.
(iii) His ad hoc as well as regular appointment was on the basis of Equivalance Certificate issued by the Pakistan Medical & Dental Counsel respondent No,2 bearing No,PF-1-G-89(928-5)/146-85, dated 9th May, 1990, which reads as under:- "Certified that the qualification of M. Phil (Cardiology) London, (UK) 1990, in respect of Dr. Feroze Memon Registration No,928, is registerable qualification with Pakistan Medical and Dental Council on individual merit. It is equivelent to M. Phil (Pak) i,e, medium post-graduate qualification in status as in case of basic/para. Clinical subjects. As such is eligible qualification for the post of Assistant Professor of Cardiology."
(iv) According to P.M.D.C. Rules, as approved by it on 15-1-1984, which are still in vogue, not superseded or amended, the prescribed job qualifications for the post of Associate Professor (B-19) are:-- Basic Qualifications:-- ' M.B.B.S or Equivalent medical qualification recognizably P.M.D.C.
2. Required Postgraduate Qualifications:-- F.C.P.S./MS/MD in the respective speciality OR other equivalent qualifications in the speciality recognized by the P.M.D.C.
3. ' Experience Five years teaching experience as Assistant Professor in the relevant speciality.
4. ' Research At least three research papers in the standard medical journal.
(v) According to the above said P.M.D.C. Rules of 1984 the prescribed academic qualifications. Of the Senior Registrar, Assistant Professor, Associate Professor and Professor are the same. Thus, by virtue of his equivalence eligibility certificate issued by P.D.M.C. Regarding his eligibility for the post of the Assistant Professor, he is also eligible for promotion to the post of Associate Professor, in his own specialty subject to fulfilling the other prescribed requisites.
(vi) The respondent No,2, vide letter, dated 15th January, 1997 informed the respondent No,1, as follows: "It was decided in P.M.D.C. Meeting in November, 1990 'that the qualification of M.Sc., M. Phil in clinical subjects will not be eligible for appointment as Assistant Professor onwards. It is, however, clarified that this decision was not to operated retrospectively."
(vii) It was alleged that respondent No,2 caused unnecessary confusion/complicated' the matter of appellants promotion by unnecessary reference to the decision of the Supreme Court of Pakistan in Civil. Appeal No,46-P of 1986 by misreading of facts and law as it was not applicable to appellant being on different footing.
5. (viii)It was stated in the concluding para. Of letter, dated 15-2-1997 by P.M.D.C. Addressed to Health Department: "You are requested to determine the eligibility of Dr. Feroze Memon for the post of Associate Professor of cardiology under the provision of Regulation of the Council for the appointment of Lecturers/Senior Registrars/Assistant Professors/Associate Professor which only enforces on the date of his appointment/promotion as an Assistant Professor and the judgment of the Supreme Court of Pakistan."
(ix) Taking undue advantage of the above, respondent No,1 has not put up the matter/case of the appellant for promotion to the post of Associate Professor for consideration and necessary orders of Provincial Selection Board (II) - viz the Competent Forum. His request for such consideration, dated 4-3-1997 was not replied and after waiting for statutory period appellant has filed this service appeal. The main arguments of the counsel for the appellant are:--
(i) Pakistan Medical and Dental Council which is a statutory body created under Ordinance No,XXXII of 1992 is the competent legal forum to determine the prescribed qualifications and experience etc. For medical jobs in the country. Such Rules were lastly framed in 1984.
(ii) The P.M.D.C. Rules/regulations framed in 1984 have neither been changed nor amended so far.
(iii) The job qualifications prescribed under the P.M.D.C. Rules of 1984 for the post of Assistant Professor, Associate Professor and Professor are the same.
(iv) Once appellant's qualification viz M. Phil was equated with that prescribed for the job of Assistant Professor, and he was regularly appointed as such through Sindh Public Service Commission on 10-12-1990, he becomes eligible for further promotion to the post of Associate Professor/Professor subject to acquiring prescribed length of sevice/submission of research papers.
(v) It is an established principle of law that all legal decisions are to be applied prospectively and not retrospectively.
(vi) While taking the decision late in 1990 to discontinue further Equivalence of such qualifications viz M. Phil, P.M.D.C., itself made it clear in the body of that decision that it would not be applied retrospectively.
(vii) The counsel for the appellant read extensively from 1962 Ordinance regarding charter of P.M.D.C. Its duties and functions such as section 11 relating to Recognization of Medical Qualifications, granted by medical institutions in Pakistan (not applicable in the case of appellant who is M.Phil from London), section 12, dealing with non-Pakistani Qualifications as recognized in Second Schedule (again not applicable to the case of the appellant for the same reason) and section 15 which empowers the Council to certify certain persons to be possessed of sufficient medical qualification. Section 15 was read verbatim for its better understanding and is reproduced below:-- "(15)If the Council is satisfied that a person is, by reason of qualifications granted by a medical institution outside Pakistan, not included in the Second Schedule, and of experience gained in any part of Pakistan, possessed of qualifications which entile him to be recognised as possessed of sufficient medical qualification, for the proposes of this Ordinance, it may, with the approval of the Central Government, certify that the person was possessed of such qualifications; and, on such certification by the Council, the person shall be deemed to be possessed of qualifications which are recognized medical qualifications for the purposes of this Ordinance for such period and upon such conditions as may be specified by the Council in this behalf."
6. (viii)According to him the case of Dr. Muzaffar (46-P/1986) decided by the Supreme Court of Pakistan falls under the provision of section 33(2)(d) which reads as under:-- "(2) Notwithstanding anything contained in subsection (1) the Council shall made Regulations which may provide for--
(d) prescribing minimum qualifications and experience required for teachers for appointment in Medical and Dental Institutions;."
7. ' He argued that since P.M.D.C. Rules of 1984, have not been formally amended through a proper notification this ruling of Supreme Court does not come in way of the appellant.
8. ' In support of his arguments he placed reliance on the following citations.
(i) 1997 MLD page 1925.
(ii) 1988 CLC page 327.
(iii) 1991 PLC (C.S.) page 728.
(iv) 1991 PLC (C.S.) page 129, relevant pages 131, 135(c) and 137(f).
(v) 1987 SCMR 502, 512(c).
(vi) 1992 SCMR 1652.
(vii) 1997 CLC 497. (viii)1997 PLC (C.S.) 391.
9. ' Mr. S.M. Sayedain Zaidi, A.A.-G., Sindh argued briefly. According to him appellant was appointed as Assistant Professor on ad hoc basis on 30-6-1990 and was regularized as such on 10-12-1990. It was clearly stated in the impugned letter of P.M.D.C., dated 15-1-1997 enclosing a copy of letter, dated 7- 1-1991 that the Council in its meeting held on 10th and 11th November, 1990 had decided that since the qualification of M.Sc., M. Phil and Ph. D. In clinical subjects are not available in the Regulations of the Council for the appointment of Lecturers/Registrars, Assistant Professors, Associate Professors, Professors and Examiners, therefore, the holders of M.Sc., M. Phil and Ph.D. In clinical subject will not be eligible for appointment as Assistant Professor and onward'. The Chairman pointed out that it was also recorded therein that this decision will not have retrospective effect according to the principle of natural justice. A.A.-G. Conceded the point. Chairman further inquired if this decision was communicated to the Sindh Health Department on 15-1-1997, how could it be applied to the appellant who became eligible for promotion as Associate Professor in 1995'.
10. ' Mr Shoaib Ali Khan, Advocate for respondent No,2 viz., P.M.D.C. While agreeing that this decision of P.M.D.C. Could not be applied to the case of the appellant with retrospective effect, as clarified by P.M.D.C. Itself, however, argued that the case of the appellant was hit by the ruling of the Hon.
11. Supreme Court in C.A. No,46-P of 1986.
12. ' Mr. Javed Khan, Advocate for the appellant exercising his right to reply said that P.M.D.C. Decision, dated 10/11 November, 1990, shall remain a decision on paper only and shall not become mandatory and binding until and unless it is properly notified, published and brought to the notice of the concerned persons. According to general scheme of law, a decision becomes binding only from the date of its proper service to the party concerned.
13. ' We have gone through the arguments of the Advocates carefully.
14. ' It is our considered view that promotion is one of the terms and conditions of the service of a civil servant. However, there are several misgivings all rounds, on the point. We accordingly deem it fit and proper to reproduce section 9 of the Sindh Civil Servants Act, 1973, which reads as under:-- "Promotion -9 (1) A civil servant possessing such minimum qualifications as may be prescribed shall be eligible for promotion to a post for the time being reserved under the rules for departmental promotion in the higher grade or the service or cadre to which he belongs.
(2) A post referred to in subsection (1) may either be a selection post or a non-selection post to which promotion shall be made as may be prescribed---
(a) In the case of a selection post, on the basis of selection on merit and
(b) in the case of non-selection post, on the basis of seniority-cum-fitness."
15. ' Thereafter, Sindh Civil Servant (Appointment Promotion and Transfer) Rules, 1974 were framed under the said Act wherein specific mechanism of promotion through Provincial Selection Board/Departmental Promotion Committee etc., are provided.
16. ' Thus, promotion, in the prescribed manner, through prescribed forum and under the orders of the competent Authority is one of the vested rights of the civil servant, subject to criteria laid down under relevant laws.
17. ' These rules were further strengthened/consolidated by introduction of Promotion Policy introduced by the Federal Government and adopted by all the Provincial Governments (during the days of General Zia) which provide for prescribed quantification of A.C.Rs, and whereunder it has been made compulsory that promotions are to be made strictly on seniority-cumfitness. Unless a senior is properly superceded, he cannot be ignored for promotion. (If he is on deputation, or his A.C.Rs, for the relevant period are not available which are the basis for quantification, his case could only be deferred temporarily).
18. ' The settled legal position as has emerged through 25 years of litigations before Federal and Provincial Service Tribunal/decisions of the Hon'ble Supreme Court that if a civil servant despite being eligible is not considered for promotion, malafidely Service Tribunals can direct the concerned authority to consider his case for promotion. Once he is considered and rejected by the competent forum, for whatever reasons, the jurisdiction of Service Tribunal is ousted under the provisions of section 4, Proviso (b) of the Sindh Service Tribunal Act, 1973. Notwithstanding the above, the Superior Courts all over the country have repeatedly held that even where the jurisdiction is barred through a provision of the statue, the action of a departmental authority can be questioned by Courts if gross mala fides of a departmental authority are alleged/proved because every authority must exercise his powers, judiciously and bonafidely not non-judiciously or malafidely.
19. ' We have gone through the departmental record produced alongwith the personal file of the appellant produced before us. It is crystal clear from extract of the minutes of the Provincial Selection Board No,II, held on 28-3-1996 that the case of the appellant was deferred on two counts viz being on deputation abroad (Sauidi Arabia)_ and that he had not allegedly published the required number of research paper as per P.M.D.C. Rules of 1984.
20. ' There is no mention whatsoever, in the minuets of PSB(II) that appellant did not possess the prescribed qualifications for the promotion the post of Associate Professor. Consequently the appellant returned from Saudi Arabia deposited his pension graduity contributions and also supplied the list of his publications available at page 250/C of his personal file as mentioned below:--
(1) Feroze Memon, S.Memon N.A. Memon, CCU, Syndrome P.J.C. Volume 4 No,2, April and June, 1993.
(2) Feroze Memon, Anwar Ali, CHF Treatment Revisited Saudi Heart Journal Vol. 5, No,1, May, 1994.
(3) Feroze Memon, G.H. Baloch, A.-G. Memon, N.A. Meman, LMCH Streptokinase Experience, PJC Vol.5 No,1, January, March, 1994.
(4) Feroze Memon, J. Metcalfe, E.D. Jewitt Acute Haemodynamic effect of ICI 153, 110 Pakistan Heart Journal, Vol.27 No,1-2 January, June 1994.
(5) Feroze Memon Moh'd Moinuddin, Hassan Raffa Phospho Diesterase inhibitors in congestive heart failure. Under Publication (Pakistan Heart Journal).
(6) Moh'd Moinuddin, Feroze Memon, Hassan Raffa TMR in patient with ICMP (under publication).
(7) Feroze Memon, Moh'd Moinuddin, Hassan Raffa "TMR for Geriatric Population" under Publication.
(8) Hassan Raffa, Feroze Memon, Hussain Jabbad, Moh'd Moinuddin, Dilip Kumar, Hani Makaram.
21. Transmyocardial Leser Revascularization "The Saudi experience". Asian Cardiovasc thorac Ann 1996, Vol. 4, No,2.
(9) Feroze Memon, Moh'd Moinuddin, Dilip Kumar, Hassan Raffa et al. Long Term Experience with Transmyocardial Revascularization (Journal of Saudi Heart Association).
(10) MT Kayali, MW Fetieh, M.A. Abdul Salam, Feroze Memon, Moh'd Moin Hassan Raffa Thrombotic Obstruction of Bileaflet mechanical prosthetic heart valves: Early Diagnosis and management (under publication).
(11) MT. Kayali, WM Feteih, Feroze Memon, Dilip Kumar, Moh'd Moinuddin, Hassan Raffa clinical review of 250 patients with the Carbomedics prosthetic heart valves. (under publication).
22. ' In addition he contributed alongwith other 9 papers, attended 8 Seminars and Conference, attended 3 workshops upto 1996 etc. Having these objections cleared, his case for promotion to the post of Associate Professor (Cardiology) should have been put up to the Provincial Selection Board II again, which had deferred it, but it was not done. Instead, it was referred to P.M.D.C., which vide its Letter No,PF-11-F-96(928-S) informed the Secretary Health "Dr. Feroz Memon is possessing the M.
23. Phil cardiology, therefore, he is not eligible for the teaching appointment in any medical college of Pakistan. The Circular Letter No,PF-11-91/7242-47, dated 3rd, January, 1991, is enclosed for your guidance and the question for his promotion as Professor of Cardiology does not arise".
24. Respondent No,2 and consequently respondent No,1 dealt the case of appellant, incorrectly, as if it was a case of (fresh) appointment whereas it was a case of, in service, Assistant Professor, for promotion to the post of Associate Professor having acquired the prescribed experience. It is obvious from the use of the word 'Professor' instead of Associate Professor that P.M.D.C. Reply was based on incorrect reading of the case.
25. ' It is established principle of law that all new rules, regulation have to be implemented prospectively and not retrospectively. Certificate of Equivalence issued to the appellant prior to the change in P.M.D.C. Policy, can neither be cancelled nor withdrawn at this belated stage i,e, after 8 long years, under the well-known doctrine of locus poenitentiae i,e, vested rights once created and enjoyed cannot be taken back---that certificate/equivalance being fate accomplice. P.M.D.C.
26. Under its charter has no power to cancel or withdraw it unless it is proved that it was obtained by fraud and no such allegation exist against the appellant.
27. ' Our view is also strengthened by the wording of the judgment of the Honourable Supreme Court of Pakistan in 1998 PLC (CS) 100 (Raja Attaullah v. Shabbir Ahmad Chughtai), wherein it was held in para.9 as follows:-- "In this regard we may point out that it is domine of the Government concerned to decide whether a particular academic qualification of a civil servant/employee is sufficient for promotion from one grade to another higher grade and whereas it is the domine of Pakistan Engineering Council to decide as to whether a particular academic qualification can be equated with another academic qualification, it has no power to away that a civil servant/employee holding particular academic qualification cannot be promoted from a particular grade to a higher grade. The main object of the act as pointed out by one of us (Mr. Ajmal Mian, J.) an Saeed-uz-Zaman Siddiqui (C.J. As he was) in the above High Court judgment is to regulate the working of Professional and Consultant Engineer and not to regulate the qualification or the work of engineering in the Government or Semi- Government Department."
28. ' On the analogy of that decision and considering the fact that the statutory charter of duties of P.M.D.C. And P.E.C. Are more or less the same, within their respective jurisdiction of Doctors and Engineers in Pakistan, we are of the considered view that after grant of the equivalent certificates to the appellant, P.M.D.C. After 8 long years could not put a bar on his further promotion, such a decision being against the principle of natural justice and fair play. Moreover, such power to P.M.D.C. Are not provided in its Act.
29. ' We, therefore, allow this appeal and order the Respondent No,1, viz. Secretary Health to put up the promotion case of the appellant for the post of Associate Professor before PSB-II. The PSB-II, shall also consider the promotion case of the appellant for the post of Associate Professor, in accordance with the law, rules and regulation on the subject specially the Promotion Policy in vogue i,e, seniority-cum-fitness, required quantification, length of service etc. Post of Associate Professor being a 'Promotion Post', according to the Recruitment Rules. There are no orders as to the cost.
30. ' Given under our hands and the seal of this Tribunal this 4th day of June, 1998 at Karachi.