2006 PLP (C (PLC(CS))

SABIHUDDIN AHMED, CJ.

The petitioner a professor in the faculty of Pharmacy, University of Sindh has called in question appointment of Respondent No.4 as Dean of the aforesaid faculty for a period of three years vide order dated 13th June, 2005. The material facts appears to be that the Respondents No.4 who possessed a basic degree in Chemistry was appointed on the faculty of the Institute of Pharmacy in the University upon the establishment. However, he is not a registered pharmacist in terms of the Pharmacy Act 1967 and his appointment as Dean of the faculty has been primarily assailed on the aforesaid ground.

2. It may be pertinent to mention that the Respondent No.4 joined the Respondent No.2. University as a lecturer in the Department of Chemistry in 1974. Having specialized in the area of pharmaceutical chemistry. However, he was transferred from the Institute of Chemistry to the Pharmacy Department of the University vide order dated 8-2-1975. He was promoted as Assistant Professor on 14-5-1984 and 28-5-1985 he was re-transferred to the Institute of Chemistry. Nevertheless, upon a position of Associate Professor in the Department of Pharmacy he was transferred back as such on 2-12-1986 and confirmed as such on 3-12-1988. On 19-12-1991 upon recommendation of the Selection Board duly approved by the Syndicate he was promoted as Professor of Pharmacy. In 1999, the status of department was raised to the level of the Institute of Pharmacy and the Respondent No.4 was appointed its first Director.

3. The Petitioner on the other hand who is a much younger person but possesses all qualifications in Pharmacy joined the University as a lecturer in 1989, became an Assistant Professor in 1997 was promoted as an Associate Professor in 2003 and was finally promoted as Professor in 2005. In the meeting of the Syndicate dated 14-12-2004, it was resolved to establish a faculty of Pharmacy independent from the faculty of Natural Sciences. In the 142nd meeting of the Syndicate, it was resolved that the Regulations framed by the Pharmacy Council of Pakistan duly approved by the Federal Government be implemented in the University and that heads of department, schools, colleges and Dean of the Faculty must have a first degree in the Pharmacy. In the 144th meeting held in 7-5-2005, the question of appointment of Chairman of the four departments in the faculty was taken up. It was resolved inter alia that the petitioner be appointed Chairman in the Department of Pharmaceutics and that there being no professor or Assistant Professor of a basic qualification in Pharmacy being available the Respondent No.4 be appointed Chairman in the Department of Pharmaceutical Chemistry till the availability of proper faculty in the Department.

4. For the appointment of Dean of the Faculty who was to be appointed by the Respondent No. l on the recommendation of the Respondent No. 1 on the recommendation of the Respondent No.3 from amongst the three senior most professors in the faculty. In this context, the Respondent No.3 vide his summary dated 30-5-2005 mentioned the names of the Respondent No.4 and the petitioner respectively stating that the former was not eligible because the Rules required that the Dean must possess a first degree in Pharmacy which the aforesaid Respondent did not possess, as such the name of the petitioner was recommended. Nevertheless, the aforesaid recommendation was overruled and the Respondent No.1 appointed the Respondent No.4 as Dean of the Faculty for a period of three years. At the out set a preliminary objection to the maintainability of this petition was raised to the effect that the petition was barred by Article 212 of the Constitution as the matter related to terms and conditions of service justiciable by Service Tribunal. We do not find much force in the aforesaid petition as we have not been called upon to adjudicate rival claims pertaining to terms and conditions of service, but only to see whether a public office i.e. Dean of a public sector University is being lawful held. Article 212 of the Constitution in our view does not bar the maintainability of a petition in the nature of quo warranto. Section 17 of the Pharmacy Act 1967 confers upon Central Council established under the Act several factions primarily relating to education and pharmacy. Such Regulations were framed by the Council and upon approval of the Federal Government published in the Gazette on 8th May, 2004 Regulation 19 of the such Regulations lays down the minimum facilities required for a pharmacy institution and clause (1) thereof contemplates that the senior most pharmacist should be the Dean or Chairman of the Pharmacy Faculty or the Department. The precise contention of the petition is that the Respondent, No.4 is not a pharmacist registered under the Pharmacy Act and therefore, not capable of being appointed as Dean. Section 25 of the Pharmacy Act contemplates registration of Pharmacist. Section 23 laws down the minimum qualifications for being registered and may be reproduced in extenso:-- "

25. Qualifications for registration as a pharmacist or as an apprentice in pharmacy. (1) The following persons shall, subject to the provision of subsection(3) be qualified for registration as pharmacists under this Act, namely: (a) Persons who hold a degree in pharmacy conferred by a University or an institution affiliated thereto, where the degree is recognized by the Central Council. (b) Persons who hold a diploma in pharmacy granted by any institution recognized by the Central Council; and (c) Persons who pass the examination in pharmacy held by a Provincial Council: Provided that, during the period of five years from the commencement of this Act, the following persons shall also be deemed to be qualified for registration, namely:-- (i) graduates in pharmacy from a University or an institution affiliated thereto; (ii) graduates in science from a University or an institution affiliated thereto, with chemistry or pharmaceutical chemistry or pharmacology or micro-biology as the principal subject, who are engaged in the manufacture of test and analysis of drugs and medicines in any drug manufacturing concern licensed under the Drugs Act, 1940 (XXIII of 1940) or in any Government institution or laboratory; (iii) Inspector of Drugs appointed under the Drugs Act, 1940 (XXIII of 1940) and Government Analysts so appointed; (iv) teachers in any subject related to pharmacy in an institution conducting courses of study in pharmacy; (v) persons who hold a diploma in pharmacy granted by any institution; (vi) persons other than those specified in clauses (i) to (v) who are "qualified persons" within the meaning of rule 65 of West Pakistan Drugs Rules, 1958, or rule 24 of the Bengal Drugs Rules, 1946; (vii) persons engaged in compounding or dispensing medicine in a Government Hospital; and (viii) persons certified as qualified compounders and dispensers of medicine by a Government Hospital; (2) A person shall, subject to the provisions of subsection (3), be qualified to be registered as an apprentice in pharmacy if he has been taken as student or apprentice in pharmacy by and produces a certificate to that effect from a pharmacist registered under this Act and approved for the purposes, by notification in the official Gazette, by the Provincial Council."

5. Admittedly the Respondent No.4 did not have a Bachelor's degree in Pharmacy nor was he able to show that any of the degrees obtained by him were recognized by the Central Council as contemplated D by clause (a), Indeed under the proviso to clause (c) a graduate in Science with Chemistry as a principal subject could also be registered subject to certain conditions within five years of the commencement of the Act, but this facility expired on 9th June, 1972 and it is not the Respondent's case that he was eligible for registration under the aforesaid proviso.

6. For the foregoing reasons, we have no option but to hold that the Respondent No.4 was not a pharmacist and was therefore, not E eligible for appointment particularly when another professor who was a duly registered pharmacist was eligible for appointment.

7. We may add that it was not the case of the Respondent No.3 University that the eligibility for appointment of Dean had to be considered from the stand point of the Rules applicable to appointments in the University and on the contrary the Resolutions of the Syndicate explicitly state that the requirements of the Pharmacy Act and the Rules and Regulations made there under will be strictly adhered to. In the circumstances, we had no option but to allow this petition to the extent of declaring the appointment of the Respondents No.4 to be without F lawful authority. These are the reasons for the short order announced on 21-9-2005. H.B.T./M-61/K Petition allowed.