2011 PLC (C (PLP)

EJAZ AFZAL KHAN, C.J.

Petitioner through the instant petition has asked 'for the issuance of an appropriate writ directing the respondents to act in accordance with the N.-W.F.P. Medical and Health Institutions and Regulation of Health Care Services Ordinance, 2002 and N.-W.F.P. Medical Institution Rules, 2001.

2. The main theme and thrust of the arguments of the learned counsel for the petitioner was that when the petitioner possesses higher qualification as compared to respondents No.5, she is, by all means, eligible to compete with him and that no interpretation of the law and the rules, mentioned above, can obstruct her in this process. The learned counsel next contended that when a joint seniority list is maintained within the terms of Rule 10(6) of the Rules, it is the Management Council constituted in terms of section 6 of the Ordinance and Rule 9 of the above mentioned Rules, which can deal with direct recruitment, promotion, move-over and grant of selection grade, therefore, the provincial government cannot figure anywhere to assume or arrogate to itself a power, which hasn't been conferred on it by any law.

3. As against that the learned counsel appearing on behalf of the other respondents as well as respondent No.5 do not dispute in principles, the proposition, canvassed at the bar by the learned counsel for the petitioner. In any case, we would like to discuss the arguments addressed at the bar to have a clear vision of the matter under consideration. A look at Section 6 of the Ordinance, mentioned above, would, thus, be inevitable, which runs as under:

Section 6. Management Council.

(1) There shall be a Management Council to administer and manage the affairs of a medical institution, which shall consist of-- (i) the Chief Executive of the medical institution, Chairman (ii) the Dean/Principal of the medical institution; Member (iii) the Medical Superintendent of the hospital Member (iv) administered by the medical institution. (v) The Director Finance and Departmental Grants Member (vi) Committee or the Officer-in-Charge of the said Committee of the medical institution by whatever designation known; (vii) not less than three and not more than five non- Members (viii) official persons to be nominated by Government, (ix) a member of the offices and staff members Member (x) performing institutional private practice; and (xi) Any other co-opted member. Member Another relevant provision, contained in Rule 9 of the Rule, also merits a reference and, thus, runs as under:-- Rule

9. Method of appointment.

(1) The Management Committee may constitute a "Selection/Promotion Committee", members of which shall be notified by designation for the purpose of selection and recommendation to the competent authority for direct recruitment, promotion, move-over and grant of Selection Grade, etc. after fulfilling the prescribed procedure as laid down hereunder:-- (a) all the vacancies shall be advertised in at least three leading National newspapers (one English and two Urdu) specifying therein the prescribed qualification, experience and other academic/technical requirements, age limit, etc., as provided in the relevant recruitment rules; (b) the selection for direct recruitment shall be made on merit-cum- zonal allocation basis in accordance with the criteria evolved by Government from time to time for recruitment of civil servants; (c) for the purpose of recommendations regarding promotion/ selection grade and move over, the Secretary of the Selection Committee shall prepare a working paper according to the prescribed rules and model working paper of the Government duly circulated by the services and General Administration Department, duly authenticated by the Chairman of the Promotion/Selection Committee; (d) the Selection Committee shall consider the working papers placed before it according to prescribe procedure and shall make recommendations as to the suitability or otherwise of the employee for the proposed promotion, selection grade or the move over, as the case may be, and for that matter, the criteria prescribed by Government from time to time shall mutatis mutandis apply; (2) The following shall be the authorities competent to make initial appointment or promotion or grant move over and Selection Grade in relation to the posts specified against each: (i) for posts in BPS-1 to 10 Medical Superintendent/ Principal/Dean (ii) for posts in BPS-11 to 16 Chief Executive (iii) for posts in BPS-17 to 22 Management Committee Provided that appointment to BS-21 and BS- 22 shall require prior approval of Government. Rule 10(6) is yet another provision, which also merits a reference and, thus, reads as under:-- Section 10(6) A joint seniority list of all civil servants serving in the institution who do not opt for absorption and the employees of the institution shall be maintained in the respective cadres with reference to their respective dates of regular appointment to the service or post for the purpose of their future promotion in the institution.

4. A perusal of the above quoted provision would reveal that it is the Management Council constituted in terms of section 6 of the Ordinance, which is to deal with recruitment, promotion, move-over and grant of selection grade. Though, according to Rule 9, mentioned above, it has been mentioned to be the Management Committee but this being in conflict with the parent statute would be read as Management Council because the Management Committee has a different composition and different functions. The former deals with the management and administration of the institution while the latter deals with the administration and management of the Public Health Institutions. Therefore, the expression `Management Committee' be read as `Management Council', notwithstanding, it is mentioned as Management Committee in the Rules.

5. Now the question emerges whether an employee of the institution can compete with a civil servant for a post to be filled by promotion or vice versa? The answer to the question is not too far to seek, when seen in the light of Rule 10(6), quoted above, which clearly provides that a joint seniority list of civil servants, who have not opted for absorption and the employees of the institution shall be maintained in the respective cadres with reference to the respective dates of the regular appointments to the service of posts for the purpose of further promotion in the institution. This clearly shows that a vacancy occurring in higher grade is to be filled out of the joint seniority list. Any other interpretation of the rule, therefore, besides being far fetched would tend to defeat the very purpose of maintaining the joint seniority list.

6. Next comes a question as to what are prerequisites for appointment of a Professor by promotion? To find the answer, a fleeting reference to the relevant rules, tabulated in this behalf, would be imperative, which are reproduced as under:

Professor MBBS or equiva- lent medical qualifica- tions recogni- Zed register- ed by the PM&DC DSc/Ph.D./FC PS/MS/MD/ M.Phil. (Pak) in respective as basic subjects ** FCPS/ MD/ MS (related clinical subject) Equivalent qualification recognized/ registered by the PM&DC Three years teaching experience as an Associate Professor in the respective subjects of provided that the total experience as Assistant professor and Associate Professor shall not be less than eight years or Nine years teaching experience as an Assistant Professor in the respective subject At least two research papers three years to be published in standard medical journal approved by the PM&DC before promotion as Professor **FCPS/ MD/MS in related clinical subjects may be eligible for as appointment as Assistant Professor in Basic subjects, as last priority in exigency 3 Professor Anatomy, Physiology, Biochemistry, Pharmachology, Community, Medicine, Toxicology, Pathology, Microbiology, Chemical Ph. Prescribed Hematology, . Histopathology, Forensic Medicine. Qualification. (a) MBBS or equivalent medical qualification recognized by the council; and (b) DSC/ Ph.D:/FCPS/ MS/MD/M.Phil (Pak.) in the respective basic subject or FCPS/MD/MS in the related clinical subjects equivalent qualification recognized/ registered by the council with at least two papers on research work of original nature published in a Standard Medical Journal within three years before appointment. Experience. (a) Three years teaching experience as an Associate Professor in the respective subject and a total teaching experience of eight years as Assistant Professor and Associate Professor; OR 40 to 45 years By promotion from amongst Associate Professor; provided that where suitable candidates with prescribed qualification nand experience is not available the post shall be filled by initial recruitment FCPS, MD or MS in related clinical subject shall have last preference for the purpose of initial appointment in the basic subject (b) Nine years teaching experience as Assistant Professor and Associate Professor in the respective subject. Note For the purpose of counting experience prescribed above. (a) The experience gained as lecturer/ Demonstrator by person who obtained postgraduate qualification in basic science subjects at a later stage shall be added in the ratio of 4:1 to the experience as Assistant Professor, i.e. four years experience as Lecturer/ Demonstrator shall be equivalent to one year experience as Assistant Professor; (b) Experience gained as lecturer/ Demonstrator, in basis science subjects with the requisite Postgraduate .qualification like M.Phil/ Ph.D. etc. shall be added in the ratio of 2:1 to the experience as Assistant Professor i.e. two years teaching experience as lecturer/ Demonstrator with the requisite Postgraduate qualification shall be equivalent to one year teaching experience as Assistant Professor.

7. The table drawn above shows what are the requisite qualifications for the appointment of Professors by promotion and how their merit is to be assessed. In this background, since the petitioner as well as respondent No.5 possess the required qualification, they have to be considered for being promoted as Professors. We, thus, direct that the working paper of the petitioner as well as respondent No.5 be sent to the Management Council for decision in accordance with rules and criteria laid down in this behalf. As this matter has been subject matter of litigation, it be decided within one month. This petition is, thus, disposed of. S.A.K./306/P Order accordingly.