MAULVI ANWARUL HAQ, J.--- Pursuant to an advertisement issued by respondent No. 2 in National Press on 6.9.1998 inviting applications, inter a/ia, for the appointment of 4 Assistant Professors of Surgery in the Punjab Health Department. The petitioners filed application. They were, however, refused to be interviewed on the ground that because of low percentage of marks in MBBS they cannot be interviewed. According to the petitioners this constitutes violation of the Regulations framed by the Pakistan Medical and Dental Council (PMDC). According to which if a candidate is qualified has requisite experience than the merit is to be inter-judged with reference to preference of priority laid down by the said PMDC.
2. In their parawise comments respondent No. 2 has admitted that the petitioners Nos. 1 and 2 are eligible while the petitioner No. 3 has not the requisite experience being less then two years on the closing date for receipt of applications. It was then stated that the respondent-Commission has made recommendation strictly in accordance with Rules and Regulations as provided by Health Department and PMDC Regulations as amended upto 7.1.1997. At another place it has been mentioned that Commission has to follow Rules and Regulations provided by Health Department Provincial Government has taken the position that according to the existing Service Rules, there is no provision regarding preference of teaching or practical experience. It has further been asserted that the service rules have been framed in accordance with minimum qualification prescribed by PMDC Regulations.
2.(a) Mr. Muhammad Bashir Kiani, learned counsel for the petitioners contends that although the Service Rules as amended on 10.4.1995 do give an impression that the said preference clause in the matter of experience has been done away with, however, in the Regulations framed by the PMDC the said preference clause is very much there. The precise contention is that Regulations having been framed in exercise of powers vesting in the said Council under PMDC Ordinance, 1962, being in apparent conflict with the said Provincial amendment as being construed by the respondents, said Federal Legislation would prevail and since the petitioners have not been judged in accordance with said Regulations, the act of the respondent-Commission in not interviewing the petitioners and evaluating them in accordance with said preference clause would be void. He relies on the case of Dr. Abrar Hussain Ahmed Khan and others v. Government of Punjab through Secretary and others (1995 CLC 1409).
3. Learned Assistant Advocate General, on the other hand, contends that by virtue of amendment made on 10.4.1995 by the Governor of Punjab in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, the provisions of Schedule-II relating to the post of Senior Registrar and Assistant Professor stands substituted as a whole and consequently all the candidates were evaluated on the basis of qualifications so prescribed by way of the said amendment vide a notification dated 10.4.1995 and such an evaluation cannot be interfered with being in accordance with the existing Rules
4. I have given same thought to the respective contentions of the learned counsel and learned Law Officer. Now I find that as per Regulations for Appointment of Teachers and Examiners in Undergraduate and Postgraduate Medical and Dental Institutions of Pakistan as framed by PMDC and amended upto 7.1.1997. Following is provided in terms of basic and additional qualifications and experience:- {{TABLE}} #TBS Post Basic Additional Experience Qualification (Postgraduate)
Qualifications. #TBE #TBS Assistant Professor MBBS or equivalent medical qualifications recognised/ registered by the PM&DC F.C.P.S./M.S./ M.D. In respective subject Or other equilent qualifications in the reconni -^-registered by the PM&DC. #TBE Three years teaching /practical experience in the respective subject in the recognised institution in order of following 1c'" -:7,_PREFERENCE Teaching experience.
L V e REFERENCE Practical evidence after Postgraduation.
3RD PREFERENCE Practical expedience before Postgraduation. {{MISARRANGED DATA}} Now I find that vide notification published in the Punjab Gazette on 3.7.1988 Schedule II of Punjab Health Department (Medical & Dental Teaching Post) Service Rules, 1979, with reference to the posts of Senior Registrar and Assistant Professor was brought in accord with the said Regulations as reproduced by me above.
5 Now amendment, being relied upon by the leaned A.A.-G., was-made in the said Rules, 1979 vide notification dated 10.4.1995 and reads as follows:- "In Schedule-II for the -qualification for appointment by initial recruitment/promotion against the post of Senior Registrar/Assistant Professor in all the specialties, the following shall be substituted:-
(i) MBBS or equivalent medical qualifications recognized by the PMDC and the post graduate qualifications of FCPS/MS/FRCS/MRCP/Diplomate of American Board in the respective speciality or equivalent medical qualifications in the respective speciality recognized by the PMDC.
OR
(ii) MBBS or equivalent medical qualification recognized by the PMDC with FCPS/MS/FRCE/MRCP/Diplomate of American Board (General Surgery/Medicine or any other equivalent medical qualification recognized by the PMDC with 3 years practical experience in the respective speciality in a recognized institution after post-graduation.
Now learned A.A.G. Insists that the said Schedule-II which was in accord with the provisions of the said Regulations framed by PMDC stands wholly substituted and said preference clause no longer exists.
6. Now to my mind, a reading of the said amendment made by the said notification dated 10.4.1995 in juxta position to the Schedule-II as amended vide notification published in Punjab Gazette on 3.7.1988 clearly gives impression that only qualifications have been substituted and preference clause remains inacted.
7. Now assuming that the contentions of the learned A.A.G. Is correct. Now the said case of "Dr. Abrar Hussain Ahmad Khan and others" being relied upon by the learned counsel for the petitioner does go to hold that the Regulations framed by PMDC in exercise of powers under the Federal Statute i.e. PMDC Ordinance, 1962, if in conflict with the provisions of the said Provincial Statute i.e. Said Service Rules, 1979, Article 143 of the Constitution would come into play and said Provincial Statute will have to give way to the said Federal Statute. I may note here that his lordship was dealing with the same Regulations and same Rules in another context. Now the fact that the said Regulations have a statutory validity find support from the observations in the cases of Miss Hina Javed and others v. Government of NWFP end others (1 998 SCMR 1469) and Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421).
8. Mr. Muhammad Bashir Kiani, learned counsel for the petitioner, also draws my attention to the judgment in the case of Dr. Riaz Ahmad v. Govt. Of Punjab and 6 others (1999 PLC (CS) 359).
Incidently in this particular case this very Regulations came-up for consideration with reference to said amendment dated 10.4.1995. Petitioner before his lordship contended that the said qualifications at (i) and (ii) above would constitute two classes and such candidates with qualification at (i) will have to be preferred over the candidates with qualification (ii). His lordship reproduced the said Regulations and while erecting the contention of the petitioner before him observed that where preference has to be given, specific provisions have been made and this observation of his lordship has reference to 1st, 2nd and 3rd preferences in the matter of Assistant Professor.
9. Now I will fora moment revert back to the position taken by both the respondents and particularly respondent-Commission in the comments. I have already stated above that the respondent-Commission has insisted that it has conducted proceedings strictly in accordance with the Regulations as amended upto 7.1.1997. I have already reproduced above the relevant Regulations framed by the PMDC which by all means is a legislation under a Federal Statute in exercise of powers vesting in the said PMDC under Section 33 of the PMDC Ordinance, 1962. Now Regulations clearly lay down the preference and manner in which the preference is to be given. It will thus be seen that where equally qualified candidates holding the requisite qualification are before the omission, then it has to go by orders of preference stated in the said Regulations made by the PMDC and this has admittedly not been done.
10. For all that has been discussed above, this writ petition is allowed. The result would be that the respondent-Commission shall evaluate the petitioners vis-a-vis the other candidates strictly in accordance with said Regulations made by the PMDC and observing the order of preference prescribed therein, No order as to costs. .