2004 PLP (C (PLC(CS))

tions recognised/ PM&DC F.C.P.S./M.S./M.D. in respective subject. OR other equivalent ! registered by the Speciality recognised/ registered by the PM&DC Three years teachings/practical experience in the qualifications in the respective subject in the recognized institution in order of following preference: 1st preference Teaching experience. 2nd Preference Practical experience after , Postgraduation. 3rd Preference Practical experience, before Postgraduation. 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 I 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 learned 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 Professors in all the specialities, 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 P.M.D.C. 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 N.‑W.F.P. and others (1998 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. Government .of Punjab and 6 others (1999 PLC (C.S.) 359). Incidentally 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 rejecting the contentions 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 for a 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 Commission, 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. H.B.T./A‑1027/L Petition allowed.