2003 PLP (C (PLC(CS))

MIAN HAMID FAROOQ, J.

Through the filing of the present Constitutional petition, the petitioners have challenged the regulations (Annex. A to the writ petition) passed by the Medical, and Dental Council as having been framed without jurisdiction and in excess of powers with the prayer that the same may be declared as illegal, without lawful authority and is of no legal effect.

2. Pakistan Medical and Dental Council (hereinafter called Council), a statutory body, established under section 3 of the Medical and Dental Council Ordinance (XXXII of 1962) (hereinafter referred to as an Ordinance), in exercise of its powers conferred upon it under section 33 of the Ordinance, which relates to the making of Regulations by the Council, framed Regulations, on 15-1-1984, for the appointment of Lecturers/Senior Registrars, Professors, Associate Professors, Professors and Examiners (hereinafter referred to as Regulations), whereunder, it has been incorporated that the qualifications for the appointment of certain posts mentioned in these Regulations are in order of priority. According to the petitioners, respondents Nos. 1 and 2 made a publication in 'the newspaper thereby inviting applications for different posts, whereunder the said respondents as per the regulations gave preference to F.C.P.S. over M. Phil (Pak.) In the above context, reportedly aggrieved from the framing of the Regulations and publication of advertisement in the newspaper for different posts, the petitioners have instituted the present Constitutional petition with the prayer that the Regulations, providing the order of priority regarding Post Graduate Qualification, may be declared as illegal, without jurisdiction and is of no legal effect.

3. Learned counsel for the petitioners, while relying upon Pakistan Medical and Dental Council v. Dr. Zab-un-Nisa (1991 SCMR 536), has contended that although the Council is empowered to make Regulations and as per section 33(2)(d) of the Ordinance is competent to prescribe the basic and minimum qualificati6n for a particular post, yet the Council cannot act to provide/frame the order of priority while registering qualifications. In the above perspective, it has been argued that as in the regulations, the Council has directed the order of priority in the qualification, therefore, the Regulations to the said extent made by the Council are beyond its jurisdiction and in excess of powers. Conversely the learned counsel for the Council (respondent No.4), while relying upon section 33(2)(d) of the Ordinance has categorically asserted that the said provision of law duly empowers the Council not only to make Regulations but also to fix priority while regulating the qualifications.

4. At this stage, we deem appropriate to note here that pursuant to the directions of this Court, Government of Punjab furnished the parawise comments to this petition wherein it has been narrated as under;-- "M. Phil (Pak) and FCPS these both post-graduate qualifications are at par in accordance with the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979)."

5. Both the learned counsel in support of their respective contentions have relied upon section 33(2)(d) of the Ordinance, which provision of law would be advantageous to be reproduced below:-- ...... (d) "prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions; " Relevant extract from the Regulations, called in question through the present writ petition is also reproduced below:-- "The qualifications mentioned in these Regulations are in order of priority. " Post Basic Qualifications Postgraduate Qualifications 4 5 6 Lecturer M. B. B.S. or equivalent medical qualifications registered by P.M. & D.C. -- Assistant Professor -do- D.Sc. Ph.D. F.C.P.S. M.S., M.D., M.Phil. (Pak.) (in respective basic subjects)

6. From the bare reading of section 33 (2)(d) of the Ordinance 9 (ibid), it is evident that the Council is only empowered to prescribed minimum qualifications and experience required for teachers for appointment in Medical and Dental Institutions. It nowhere provides that the Council, while prescribing minimum qualifications, can fix a priority amongst the minimum qualifications. Admittedly the Council, while framing Regulations derive its powers from section 33 and the only source of exercise of these powers by the Council is the said provisions of law and none else. Upon the examination of the Regulations, we do find that before providing the qualifications, it has been specifically mentioned that "the qualifications mentioned in these Regulations are in order of priority." After giving considerable thought to the said provision of law, we are of the view that although under the afore-noted provision of law, the Council can prescribe the minimum qualifications, but it cannot provide the order of priority, which would be left to the discretion of the Appointing Authority. We do find that the Regulations were also examined by the Hon'ble Supreme Court of Pakistan, with reference to section 33(2)(d) of the Ordinance in a case reported as Pakistan Medical and Dental Council v. Dr. Zeb-un-Nisa (1991 SCMR 536), wherein it has, inter alia, been laid down as under:-- "The power of framing Regulations contained in section 33 of the Ordinance does not confer any such power of classification on the Council for the purposes of registration of these additional medical qualifications. The Ordinance in clause (d) of subsection (2) of section 33 confers on the Council a power of "prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions." It is in exercise of this power that the Council has framed Regulations for the appointment of Lecturers/Senior Registrar, Assistant Professors, Associate Professors, Professors and Examiners. " From the above, it is abundantly clear that the Hon'ble Supreme Court has inter alia, held that while framing Regulations, the Council has no power of classification. The dictum laid own by the Hon'ble Supreme Court in the afore-noted case is completely applicable to the case in hand and apt to the facts and circumstances of the case and we respectfully follow the said dictum.

7. In view of the above, respectfully following the law declared by Apex Court of the Country, we are constrained to hold that the Council has no powers of classification or to fix the priority while prescribing minimum qualifications for different posts under the Regulations, as such we are inclined to exercise Constitutional jurisdiction in the matter.

8. We deem it proper to emphasise here that the candidates for the said posts are ultimately to be adjudged by the selecting authorities for the purposes of appointment or promotion and as laid down by the Supreme Court the said case of Pakistan Medical and Dental Council v. Dr. Zeb -un-Nisa the comparative value of the basic of additional qualifications are to be adjudged by the said authority for the said purposes. With these observations, we allow this writ petition to the extent that the Regulations classifying the order of priority/preference amongst different qualifications, otherwise, recognized, are declared to be illegal and without lawful authority and the respondent-Council is directed not to frame any such Regulations classifying the priority of the said qualifications. No order as to costs. H.B.T./K-209/L Petition allowed.