P L C (C (PLP)

IMAM ALI G. KAZI, J.‑‑By this judgment we propose to decide both the Constitutional petitions bearing No. D‑255 of 1988 (Ghulam Murtaza Rajpur v. The Secretary Pakistan Medical and Dental Council and others) and D‑753 of 1988 (Syed Khurshid Hassan Hashmi v. The Secretary Pakistan Medical and Dental Council and others) as these involve common questions of facts and law.

2. Ghulam Murta7a Rajpur the petitioner in Constitutional Petition No.D‑255 of 1988 was appointed on 29‑5‑1975 as a Demonstrator in the Department of Pathology in Basic Pay Scale‑17 on ad hoc basis for a period of six months subsequently, his such appointment was regularised by the Sindh Public Service Commission and he continued in post till 1979 when he was sent on deputation for higher studies to complete M. Phil course and training in Microbiology. He obtained his degrees and returned to join his original post. He worked there till April, 1985 when on 28‑4‑1985 he was appointed as an Assistant Professor Pathology in Pay Scale‑18 and posted at Nawabshah Medical College on ad hoc basis for the usual period of six months.

3. Sayed Khurshid Hassan Hashmi, the petitioner in Constitutional Petition No. D‑753 of 1988 was appointed in the year 1975 as a Demonstrator in Pathology in Chandka Medical College, Larkana in Pay Scale‑

17. His such post was regularised two years later by the Sindh Public Seivice Commission. He was then sent on deputation to complete the course of M. Phil. Microbiology which he completed in 1984 and returned to join his original post. He was then appointed as Assistant Professor of Pathology on 7‑4‑1984 on ad hoc basis and continued in that post.

4. In response to the advertisement No. 10/RB‑1/85, dated 10‑5‑1985 issued by the Sindh Public Service Commission the petitioners in both the, petitions applied for the post of Assistant Professor Pathology (BPS‑18). Their applications were not considered mainly on the ground that they did not possess the basic qualification required for such post as laid down in the Regulations for the appointment of Assistant Professors, Associate Professors, Professors and Examiners in Medical and Dental Institutions in Pakistan, 1984 promulgated by the Medical and Dental Council of Pakistan, under the Pakistan Medical and Dental Council Ordinance, 1962. After being unsuccessful in the appeals filed by them before the Government of Sindh, they have filed these Constitutional petitions.

5. Both the Pakistan Medical and Dental Council and the Sindh Public Service Commission, the respondents in the petitions have resisted the contentions of the petitioners and have filed counter‑affidavits in Constitutional Petition No. D‑255 of 1988. These affidavits have also been pressed into service on their behalf in the other petition as well.

6. Miss Wajahat Niaz the Advocate appearing for petitioners in both the petitions has contended that Regulations of 1962 as amended in 1979 are applicable to their cases and both & departments have illegally applied the new regulations of 1984.

7. Mr. Samiuddin Sami, Advocate (or respondent No. 1 has contended that as the petitioners in both the petitions were appointed in the teaching posts (Assistant Professor) after 15‑1‑194 therefore regulations will be attracted in their cases. They were not eligible to apply for the posts in question under the new Regulations and their applications have been rightly rejected. He further contended that both of them were appointed on ad hoc basis and, therefore, they did not have any vested right to enforce by way of these petitions. He has relied on cases reported in 1982 S C M R, 46 1979 p L C (C.S.T.) 56, PLJ 1976 Tr. C. 184, P L D 1962 SC 72; 1987 S C M R 30; and P L D 1960 SC 164.

8. Mr. A.A. Muhammad Ali, the Additional Advocate‑General Sindh has supported the arguments advanced by Mr. Samiuddin Sami, Advocate.

9. The case of the petitioners in short is that as the old Regulations of 1962 as amended up to 1979 are applicable in their cases they possess proper academic qualifications and teaching experience to be eligible for the post of Assistant Professor of Pathology. The Regulations framed by the Pakistan Medical and Dental Council under the Pakistan Medical and Dental Council Ordinance, 1962 and amended up to April, 1979 prescribe M.B.B.S. or equivalent medical qualifications recognised by the Council or M.Sc. Phil. (Pathology) as the basic qualification. Candidates possessing certain other post‑Graduate qualifications and having teaching experience will have preference over the former category. Explanatory Note No. 24 appended to these Regulations provides an exception in case of appointment of Assistant Professor in different sections of Pathology Department. It reads as under:‑ "

24. Non‑medical personnel shall be eligible for appointment as Assistant Professor, in all branches o f pathology i.e. Microbiology, Hismatelogy, Morbid Anatomy, Histology and Chemical Pathology etc. provided a medical graduate with the requisite qualification in the subject is not available and the number of non‑medical personnel in the department should not exceed 50% of the total strength of the respective department." It was on account of such a provision in the Regulations that the petitioners were appointed as Demonstrators in the Department of Pathology. Muhammad Ayoob, the Secretary of the Sindh Public Service Commission in his counter‑affidvit has very clearly admitted that under the old Regulations, the persons with M.Sc. Phil (Pathology) With M. Phil (Microbiology) were eligible to the post of Assistant Professor (Nhol0gy). In view of it, there can be no dispute regarding their initial appointment in the department.

10. The contesting respondents have, however, taken a stand that under the revised Regulations framed in super session of previous Regulations on 15‑1‑1984 the petitioners who were appointed as Assistant Professors after the date of such promulgations would not qualify for such appointments. The service as a demonstrators according to them is not a teaching job and petitioner cannot take advantage of that post for the purpose of the job in question. According to the Chambers 20th Century Dictionary, New Edition 'demonstrator' means, "a teacher or assistant who helps students with practical work". The Pakistan Medical and Dental Council themselves have through a footnote on page No. 1 of A the Regulations equated the post of Demonstrator with the post of Lecturer. We are, therefore, inclined to hold that the pact of Demonstrator is a teaching job.

11. Although the main Regulations of 19'$4 prescribe M.B.B.S. or the equivalent medical qualifications recognised by the Pakistan Medical and Dental Council to be the basic qualifications for the post of Assistant Professors generally for all the departments but in case of Assistant Professors of Pathology, it has been provided in Explanatory Note No. 21 that holders of M. Phil R (Microbiology) and M. Phil. (Chemical Pathology) would be eligible for such posts. In presence of such an explanation in the Regulations of 1984 it cannot be said that the petitioners were not eligible to apply for the post of Assistant Professor (Pathology). As the cases referred to by Mr. Samiuddin Sami, Advocate do not relate to the basic point in these petitions, we have not discussed the same.

12. For the foregoing reasons, we declare that the petitioners are qualified and eligible for the post of Assistant Professor (Pathology) under the Regulations of 1984 as well and their forms were illegally rejected by the Sindh Public Service Commission. We, therefore, quash the orders impugned in these petitions and allow the petitions with no order as to costs. M.Y.H./G‑152/K???????????????????????????????????????????????????????????????????? Petitions allowed.