1992 PLP 1621 (SCMR)

SAAD SAOOD JAN, J.‑‑‑This is an appeal by special leave from the judgment and order dated 10‑12‑1989 of the Peshawar High Court whereby the Constitution petition of the respondent to seek recognition of a qualification as additional medical qualification by the appellant was allowed

2. The respondent is an Assistant Professor in Dermatology in the Khyber Medical College, Peshawar. He passed his M.B.,B.S. examination from the Punjab in 1966. He spent some time in Vienna and in 1973 he obtained a diploma in Dermatology and Venereology. In 1974, he was given the fellowship of the American Medical Society based in Austria. On his return to Pakistan he applied to the appellant which is a statutory body constituted under the Medical Council Ordinance, 1962, for recognition of the diploma and fellowship that he had obtained as additional medical qualifications. His application was considered by the appellant in its meeting of 5‑3‑1978. It decided to accept the. diploma as equivalent to M.C.P.S. (Dermatology). It, however declined to recognized the fellowship as an additional medical qualification.

3. The post of a professor is Dermatology fell vacant. In response to an advertisement issued by the provincial Public Service Commission the respondent and one Dr. Durri Kamil offered themselves as candidate. The Public Service Commission selected the respondent on the ground that he possessed the additional qualification of the American Medical Society. Dr. Durri Kamil challenged the decision of the Public Service Commission in the Constitutional jurisdiction of the High Court, but, later withdrew his petition. Subsequently, he filed another Constitution petition in the nature of a quo warranto. It was dismissed with the following observations; "We should. also like to place on record that F.A.M.S. is the qualification which is possessed by respondent No.1 and this according to commission and the Respondents, is an equivalent qualification, within the contemplation of the Advertisement and as such he was eligible." The above judgment was challenged by Dr. Durri Kamil through a petition for special leave to appeal in this Court but it was dismissed.

4. Subsequently, the respondent once again moved the appellant for the recognition of the fellowship as an additional medical qualification. On this occasion his application was supported by the Principal of his College. The appellant once again rejected the application of the respondent. Being dissatisfied with the decision of the Council, the respondent filed a Constitution petition in the High Court. A Division Bench took the view that the fellowship in question was awarded only after a candidate had completed a full time course extending over nearly two years, had written a thesis and had passed an examination. It was therefore not merely a membership of the Society but represented a certain professional excellence. In this view of the matter it accepted the Constitution petition and granted a declaration to the effect that the fellowship was the highest qualification awarded by the American Society of Vienna in Dermatology after exhaustive study and training and that it was equivalent to M.R.C.P. in England and M.D. in Pakistan. From the judgment of the High Court the appellant has come in appeal to this Court.

5. As would be noticed the respondent was seeking registration of the fellowship of the American Medical Society as an additional medical qualification, The relevant provision of law regulating the registration of additional medical qualifications is contained in section 16 of the Medical Council Ordinance, 1962. It reads as follows: "

16. Additional medical qualifications.‑‑The post‑graduate medical qualifications granted by medical institutions in or outside Pakistan which are included in the Third Schedule shall be recognized additional medical qualifications for the purposes of this Ordinance. (2) On the recommendation of the Council, the Central Government may, by notification in the Official Gazette, amend the Third Schedule so as to include therein any additional medical qualification in respect of which the Council is satisfied that it is of sufficient standing to warrant its being included therein. (3) Such notification may also direct that an entry shall be made in the last column of the Third Schedule against such additional medical qualification declaring that it shall be recognized additional medical qualification subject to any specified conditions and only when granted before or after a specified date." It will be noticed that the relevant authority to direct registration of additional medical qualifications is the Federal Government and that the appellant is merely a recommending body. The respondent did not implead the Federal Government as a party to his Constitution petition. In the absence of .the Federal Government the High Court ought not have issued the declaration which it has done in this case.

6. Apart from that, in the exercise of its Constitutional jurisdiction the High Court does not sit as a Court of appeal over the decisions of statutory bodies. 1n this case the appellant Council consists of some very senior and respected members of the medical profession including the Principals of Medical Colleges. Quite a few of them have a first‑hand knowledge of the quality of excellence provided by the various medical institutions, both inside and outside the country. It is difficult to believe that while refusing to recommend recognition of the fellowship of American Medical Society as an additional medical qualification the members of the appellant Council were not aware of the academic and clinical attainments of those who were admitted thereto. The declaration granted by the, High Court has the effect of over riding the considered opinion of persons who are the most qualified in the field to assess the professional excellence on the basis of which the fellowship is awarded. The observation of the High Court in the earlier petitions preferred by Dr. Durri Kamil have no relevance to the litigation between the appellant and the respondent for the reason that the appellant was not a party to those proceedings and as such its views were not before the Court. Accordingly, we accept this appeal and withdraw the writ issued by the High Court. There will be no older as to costs. A.A./P‑186/S Appear accepted