2000 PLC (C (PLP)

4. Dr. Muhammad Azhar Khan's application was rejected initially by the Commission on 10‑1‑1998 and his appeal was rejected on 102‑1998. He `filed a Constitutional petition at Bahawalpur Bench (W.P. 749 of 1998/BWP) which was disposed of as withdrawn to allow the petitioner to seek remedy from the Punjab Public Service Commission. His representation to the Chairman, Punjab Service Commission, was also rejected as a result of which he was not found eligible for interview. He, therefore, filed the petition as noted above, to question the rejection of his application and also to question the holding of interviews of 12‑3‑1998 and consequential proceedings to fill the post. It may also be noted that initially application of Dr. Tanvir Ali Khan was also rejected as in the opinion of the Commission, he was not holding the M. Phil. Degree or its equivalent. He, however, succeeded in appeal on the strength of a letter, dated 2‑3‑1998, issued by the PMDC, on his application and addressed to him. It may also be noted that one time, the Commission referred this letter to the Punjab Government for ascertaining its value but, as asserted, without waiting for the reply from the Government, the Commission finalised its recommendation in favour of Dr. Tanvir ‑Ali Khan, respondent No.3. It is in these circumstances that Dr. Zafar Ali Chaudhry instituted his Constitutional petition praying that selection of Dr. Tanvir Ali Khan, respondent No.3, be declared as without lawful authority.

5. In its parawise comments filed by respondent No.2, it has taken no definite position on the issues involved. In fact the impression is unavoidable that respondent No.2, by design has avoided to take a clear stand. It has mostly rested itself by saying that the relevant paras relate to either respondent No.l or respondent No.5. Respondent No.3 of course, in his detailed written statement has justified his selection on the basis of facts showing his merit and on the basis of letter, dated 2‑3‑1998 written by PMDC under the signatures of Hafeezullah Khan, Assistant Secretary to the effect "that the qualification of Master of Science M.Sc. (Physiology) from Virginia (Commonwealth University School of Graduate Studies (USA) is equivalent to M. Phil. (Pak.) in status."

6. Respondent No.4 has projected his case to show that he is the best e qualified person on merits. He has also attached photocopies of the various Articles and Research Papers written by him to substantiate his case. He has attached copy of the revised degree issued by Islamia University, dated 8‑5‑1998 to show that he has been admitted by the Syndicate to the Degree of Doctor of Physiology. There is, however; no denial that Equivalence Committee constituted by the Punjab Government through Dean Post‑Graduate Medical Institute, has not equated his foreign degree to M. Phil. Physiology (Pakistan).

7. It is strenuously contended by Mr. Ghulam Hussain, Advocate, for Dr. Zafar Ali Chaudhry, that there is no authority in the Commission to equate the foreign degree/attainment of Dr. Tanvir Ali Khan to that of M. Phil. (Pakistan). He has further contended that even the‑PMDC constituted under Ordinance XXXII of 1962, has no such power. According to him PMDC can only register an additional qualification and leave to assessment of worth of so registered qualification with the Selecting Authority. For this purpose he has relied on Pakistan Medical and Dental Council v. Dr. Zeb un‑Nisa (1991 SCMR 536). He has also contended that the Commission proceeded in ill host in recommending the name of Dr. Tanvir Ali Khan without waiting any reply from the Government on the question of certificate issued by PMDC which is itself sought. He has pointed out that under No. SORIII 2‑56/89, dated 16‑8‑1989, appearing at pages 57 and 58 of Punjab ESTACODE, it is Administrative Department of the Government of Punjab which can specify qualifications which are equivalent to the original qualifications so that the Punjab Public Service Commission is not misled.

8. In reply Mr. N.A. Butt, Advocate, appearing for Dr. Tanvir Ali Khan, and M. Nawaz Kesuri, Advocate, appearing for Dr. Muhammad Azhar Khan; have refuted the above submissions and have reiterated their respective cases. Mr. Butt pointed out that earlier June 1986 this very qualification of Dr. Tanvir Ali Khan was equated by PMDC and the present exercise of equivalence is a mete repetition. He submits that if earlier equivalence remained unchallenged, there is no good reason why the same should now be permitted to be disregarded/challenged. Mr. Nawaz Kasuri, Advocate, has highlighted the qualifications of his client to show that he is most appropriate person to be picked up for the post. He has emphasized the inconsistency of the Commission, in that for the purposes of equation the Commission sent Dr. Muhammad Azhar Khan to the Health Department of Government of Punjab, while they asked Dr. Tanvir Ali Khan to approach PMDC for equation. He has also made the grievance that conduct of the Commission in the exercise has not been above board, Learned Assistant Advocate‑General has maintained that the selection has been made by the Commission in consultation with the Health. Department and the same is legal.

9. The question as to the power of PMDC in matters of equation of various degree/diplomas/course came to be examined by the Supreme Court in the case of Pakistan Medical and Dental, Council v. Dr. Zeb‑un‑Nisa 1991 SCMR

536. The ratio of the case is that PMDC is entitled to register additional qualification and cannot itself adjudge the comparative merit or worth of the so registered additional qualification. In the case Dr. Zeb‑un Nisa succeeded in the High Court in. obtaining a writ petition directing PMDC to register her foreign academic qualifications as "Medium". On the appeal of PMDC, the Supreme Court held that there was no such provision by which her qualifications could be categorised as. "Medium" as the Medium category did not exist either in law or in the Regulations. The Court held that, in these circumstances, the High Court was not correct in ‑issuing the writ petition. In this context the Court concluded in para. 10 of the judgment and directed that:‑‑ "The comparative value of her additional qualification is to be adjudged by the selecting authority for the purposes of appointment or promotion."

10. It is clear that letter, dated 2‑3‑1998 issued by PMDC in favour of Dr. Tanvir Ali Khan traveles beyond the parameters laid down by the Supreme Court in the above judgment. All that the PMDC could do was that such a qualification acquired by Dr. Tanvir Ali Khan has been registered as per its records. Instead it has gone further to categorically state that "M.Sc. (Physiology) from Virginia Commonwealth University, School 6f Graduate Studies (USA) is equivalent to M. Phil (Pak.) in status". It is clear that above exercise is patently without jurisdiction. Initially respondent‑Commission acted prudently in seeking advice from the Provincial Government on the value of this letter. It is not clear nor this Court has been explained during hearing as to what motivated the Commission, to proceed to finalise its recommendation without waiting for reply from the Provincial Government attached with the reply of respondent No.4 (at page 31 of the reply) is another letter from PMDC, dated 6‑4‑1998 written to one Dr. Syed Tanvir Hussain, Zaib Hospital Road, 1‑A, Block W, Satellite Town, Bahawalpur 63100, under the signatures of P.S. to Secretary, which is to the following effect:‑‑ "I am directed to refer to your fax message, dated 6th April, 1998 on the subject cited above and to inform you that M.Sc. is not equivalent to M. Phil. It is considered as minor qualification. However, holder of such qualifications are eligible for appointment as Assistant Professor in this subject, if persons with higher qualifications are not available. The contradiction in this letter and the one issued to respondent No.3 is glaring and so obvious. No attempt whatsoever has been made by any of the learned counsel appearing for respondents to explain muchless justify the contradiction. P.4 dated 3rd August, 1993 and P.5 attached with rejoinder, are two letters of PMDC wherein the Council has been taking the position D that comparative value of the qualification is to be adjudged by the appointing/selecting authority. This position is in accord with the Judgment of the Supreme Court in the case of Dr. Zeb‑un‑Nisa (supra). Strangely enough, in the case of respondent No.3 the Council did not deem fit to remain within the limits of the Supreme Court's judgment and as noted, went ahead to categorically equate the qualification of M.Sc. (Physiology) to M. Phil.

11. An argument has been raised that the expression "selecting authority" used by the Supreme Court is causing confusion and this expression permits the Punjab Service Commission to adjudge the comparative value of the additional qualification. It has been argued that the Commission is only a recommendatory authority, while appointing/selecting authority is the Government. Mr. Ghulam Hussain, Advocate, submits that thus, the Commission stands excluded from the expression and, therefore, cannot be a judge of the comparative qualification.

12. The precise question need not be determined in this case. For the purpose of this case, it is sufficient that the PMDC is certainly not the selecting authority and if it stands excluded, respondent No.3 will have to show the validity and legality of the certificate in terms of the judgment of the Supreme Court. In this case the dispute between the Commission and the Government is not arising. It may, however, be observed that both are involved in the exercise of selection. While the Commission advises and recommends, the Government appoints. It has been argued that the Commission or the Punjab Province is not bound by the provisions of ESTACODE referred to above. The provisions do give the power of equating and assessing the comparative worth of the additional qualification to the Administrative Department of the Government and not to the Commission and certainly not to PMDC. I will not further comment on this aspect because there is no controversy between the Commission and the Government in this case. It will be decided in an appropriate case, as and when it arises.

13. Another document attached with the rejoinder of Dr. Zafar Ali Chaudhry, is photo copy of the letter, dated 13‑2‑1992 from PMDC to. Secretary, Government of Punjab, Health Department, a copy of which was endorsed to Principal, Quaid‑e‑Azam Medical College and others. Since it is relevant to the controversy, it is advantageous to reproduce it:‑‑ "Subject: REGISTRATION OF POST GRADUATE QUALIFICATIONS It has been decided by the Council that in future the post graduate qualifications shall be registered only as additional medical qualification according to the provision of Pakistan Medical and Dental Council Ordinance, 1962. The equivalence of post graduate medical qualification will not be indicated on the Registration Certificate in accordance with the Ruling of Supreme Court of Pakistan. Those doctors who are interested to get the relevant equivalence for the purpose of appointment under the Regulations of the Council, may do so through the respective appointing/selecting authority if so required by them." The judgment of the Supreme Court in the case of Dr. Zeb‑un‑Nisa (supra) was delivered on 14‑11‑1990 and this letter was issued on 13‑2‑1992, perfectly in accord with the above judgment. Why the PMDC has changed its position in the case of respondent No.3 when it issued letter, dated 2‑3‑1998, is know only to PMDC and its counsel in this case has made to attempt whatsoever, to explain the inconsistency.

14. It, therefore, has to be concluded that the exercise of equivalence done by PMDC and issue of letter, dated 2‑3‑1998 in favour of respondent No.3 was without lawful authority. Equally the Commissioner, respondent No.l in acting upon the said letter without waiting for the reply of the Provincial Government also acted illegally and without lawful authority. Its recommendation in favour of respondent No.3 has also to be declared illegal and without lawful authority and also the notification, dated 26‑1‑1998 appointing respondent No.3 to the post of Professor of Physiology and his consequential posting as such in Quaid‑e‑Azam Medical College. As a consequence, the post shall be deemed to be still available and, as in the case of Dr. Muhammad Azhar Khan, the Government of Punjab, respondent No.2, will refer the case of respondent No.3 for equivalence to' the Equivalence Committee and after receipt of its report, the Commission will proceed to make its final recommendation for appointment to the post of Professor of Physiology. This exercise will be completed by respondents Nos. l and 2 within two months.

15. Dr. Muhammad Azhar Khan having been denied equivalence by the Committee constituted by Administrative Department, his Writ Petition No. 1203 of 1998/BWP stands dismissed. Dr. Zafar Ali's Writ Petition No.4764 of 1998 is allowed in terms of Para. 14 of this judgment Parties are left to bear their own costs. H. B. T./Z‑6/L Order accordingly.