2003 PLP (C (PLC(CS))

Sheikh Mehmood Ahmad. Advocate Supreme Court and Anwar H. Mir, Advocate‑on‑Record (absent) for Petitioner. Nemo for Respondents. Date of hearing: 3rd October, 2002. JAVED IQBAL J.‑‑This petition for leave to appeal is directed against the judgment dated 25‑1‑2001 passed by learned Division Bench of Peshawar High Court (Abbottabad Bench) whereby the writ petition preferred on behalf of petitioner has been dismissed and order dated 28‑6‑1999 passed by respondent (Principal, Ayub Medical College, Abbottabad) and Chairman, Bored of Governors, Ayub Medical College, Abbottabad, declining the appointment of petitioner as Professor has been kept intact.

2. Precisely stated the facts of the case are that petitioner was serving as Associate Professor in the Ayub Medical College, Abbottabad, which is governed by the rules framed by Pakistan Medical and Dental Council (hereinafter referred to as PMDC) concerning appointment of teaching staff which are subject to amendment from time to time. The petitioner was initially selected as Assistant Professor being M.Sc. and Ph. D in Bio- Chemistry on 13‑12‑1983 and subsequently promoted as Associate Professor in 1994. Pursuant to advertisement for the post of Professor of Bio‑Chemistry an application was moved by the petitioner which was rejected vide order dated 28‑6‑1999 as he did not fulfil the prescribed qualifications. Being aggrieved Constitutional jurisdiction of the High Court was invoked but in vain and writ petition preferred on behalf of petitioner has been rejected vide judgment impugned.

3. It is mainly contended by Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that the amended rules of PMDC are not binding in case of petitioner which is to be decided in the light of PMDC Rules which were in existence at the time to his initial appointment as Assistant Professor. It is 'urged with vehemence that no subsequent amendment addition, deletion or insertion in the above rules can he made with retrospective effects. It is also contended that the learned High Court has ignored the academic qualifications and experience of the petitioner who is capable enough to perform as Professor being M.Sc. and Ph. D in Bio‑Chemistry. It is further contended that one Dr. Shaukat has been appointed against the post of Professor without having the requisite qualifications and on the same analogy the petitioner' could not have been refused for appointment as Professor.

4. We have carefully examined the contentions as agitated on behalf of petitioner in the light of relevant regulations and rules of PMDC concerning the appointment of Assistant Professor. Associate Professor and Professor in Ayub Medical College, Abbottabad. The judgment impugned has also been perused carefully. We are not persuaded to agree with the prime contention of Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that no amendment could be made in the relevant regulations/rules by the competent Authority adversely affecting the rights of the petitioner for the reason that there is no cavil to the proposition that Government is competent to enhance, alter or amend the prescribed qualification for a particular post which cannot be objected as qualification for a particular post cannot be kept unchanged for decades to safeguard the interest of a particular incumbent and clay to day changes in every walk of life, scientific developments and increasing technical know‑how cannot be ignored. An identical proposition was examined by this Court in case Government of N.W.F.P. v. Muzaffar Iqbal (1990 SCMR 1321), operative portion whereof reproduced hereinbelow for ready reference:‑‑ "The question of availability of a post of Professor in 1980 or its non‑availability is irrelevant because even if the post' existed, the person appointed cannot claim any right in the appointment from a date earlier to his taking over as such. The appellant denied the availability of such a vacancy and it being a factual controversy remaining unresolved so far, cannot be resolved at this stage. The remarks column categorically shows that the holders of basic qualification or minor diploma‑holders equivalent to M.C.P.S. are neat eligible for promotion as professors. After this ineligibility in the rules, unless relaxation takes place, there is no question of a person having this qualification, being considered for appointment irrespective of the fact whether persons with higher qualifications are available or not. No one can claim a vested right in promotion or in the terms and conditions for the promotion to a higher post. The Government has the right to enhance the qualifications and the standards for recruitment and promotion in order to, maintain efficiency in service. Except fur the post which the civil servant happens to hold, he cannot claim vested right in other higher tiers in the hierarchy." (Emphasis provided).

5. In another ease titled Muhammad Insha Ullah v. Chief Conservator of Forests (P & E), Punjab (PLD 1988 SC 155) it was held that "in the absence of impairment of vested right. it would be within the exclusive competence of the Governor to determine the terms and conditions of the service. It cannot be said that a rule which grants weightage to academic qualifications against experience is unreasonable and harsh. With the increasing emphasis on specialization and improved techniques and knowledge the academic qualifications may be granted greater, weightage than the actual experience on the job without such qualifications. There was, therefore, nothing unreasonable or manifestly oppressive". The said verdict also finds support from the following authorities:‑‑ Government of West Pakistan v. Fida Muhammad (PLD 1960 SC 45): Central Board of Revenue, Government of Pakistan v. Mr. Asad Ahmad Khan (PLD 1960 SC 81); Province of West Pakistan v. Muhammad Akhtar (PLD 1962 SC 428); Manzur Ahmad v. Muhammad Ishaq (PLD 1964 SC 17); Muhammad Umar Malik v. Federal Service Tribunal and others (PLD 1987 SC 172); Muhammad Ahmad v. Government of West Pakistan (PLD 1971 SC 846); Muhammad Alsam Chishti v. Chariman, WAPDA (1984 PLC (C.S.) 21) and Government of Pakistan v. Fatehullah Khan (PLD 1960 SC 105). It is worth‑mentioning that petitioner has no vested right whatsoever for appointment for. Professor on the ground that there was no other competitor or on the basis of his satisfactory service record because it is for the competent Authority to determine the suitability of a person for promotion after assessment of all relevant considerations i.e. seniority competence rectitude and qualifications. It is well‑entrenched legal proposition that rules applicable; and the conditions required to be satisfied on the date of appointment are to be taken into consideration and not what were the requirements at an earlier date‑‑‑Civil servant can neither have any vested right in respect of the terms and conditions of a post which was higher than the one which he was holding nor a change in the recruitment rules of the higher post can be said to operate against him retrospectively". In this regard we are ‑fortified by the dictum laid down in the following authorities:‑‑ Province of the Punjab v. S. Muhammad Zafar Bukhari (PLD 1997 SC 351); Government of N.‑W.F.P. v. Dr. Sh. Muzaffar Iqbal and others (1990 SCMR 1321) and Habib Bank Ltd. and others v. National Industrial Relations Commission and others (PLD 1988 SC 362). It is within the competence of competent Authority to prescribe the requisite qualifications for a particular post as may be conducive to the maintenance of proper discipline and efficiency. If any authority is needed reference can be made to Banarsidas v. State of Uttar Pradesh (PLD 1956 SC (India) 323).

6. There is neither any logic nor rationale behind the; submission made on behalf of petitioner that no amendment could be made in the regulation concerned which should be kept intact as it was at the time of the appointment of petitioner for the simple reason that he was initially appointed as Assistant Professor on 27‑5‑1984 and he has no vested right to be appointed as Professor when he has absolutely no experience in the medicines and on the basis of qualification which is no more in existence since 15‑1‑1984 and M.B.B.S. or equivalent qualification in medicines is now a prerequisite for the post of Professor. The petitioner should be thankful to his stars that he was appointed as Associate Professor without having the requisite qualifications of medicines. Insofar as promotion of one Dr. Shaukat to the post of Professor without having requisite qualification is concerned that should have challenged in the year 1991. It is however, to be noted that plausible justification has come on record that promotion of Dr. Shaukat was made in the urgency, exigency of the service, in the interest of college and non‑availability of qualified persons at relevant time. There is no denying the fact that the amendment regarding qualifications was made in the year 1984 which was got incorporated in the concerned regulation with effect from 7‑1‑1997 but it hardly renders any assistance to the case of petitioner who admittedly is not M.B.B.S. and has no experience in medicines and the said amendment was made prior to his joining service and hence the question of infringement of any vested right which otherwise is not available to the petitioner does not arise. The degree of M. Sc. can by no stretch of imagination be equated with M.B.B.S. or equivalent thereto irrespective of the fact when the petitioner was appointed or regulation amended. A non qualified person cannot be appointed as professor as it would not be in the interest of students and institution. The appointment or promotion to a particular post cannot be made in violation of the prevalent rules and regulations. The previous appointment if any made in violation of regulation cannot be made a ground to continue such illegal practice. We cannot endorse toe unique idea and novel concept as put forth by Sheikh Mehmood Ahmad, learned Advocate Supreme Court on behalf of petitioner that since no other applicant is available the petitioner may be appointed as Professor for the simple reason that he does not possess the requisite qualifications. In the light of what has been stated hereinabove the petitioner has absolutely no vested right and the competent Authority is fully competent to make amendment in the prescribed qualifications and by doing so no illegality whatsoever has been done. We are, therefore, not inclined to accept this petition which is dismissed being merit-less. M.B.A./M‑712/S Petition dismissed.