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1995 CLC 1409

DR. ABRAR HUSSAIN AHMED KHAN AND OTHERS

V/S

GOVERNMENT OF PUNJAB THROUGH SECRETARY AND OTHERS

Per Karamat Nazir Bhandari, J.(a) Constitution of Pakistan (1973), Articles 143 & 199

Under section 15 the Council, with the approval of the Federal Government, is empowered to certify a person holding qualifications guaranteed by a medical institution outside Pakistan, not included in the 2nd Schedule and experience gained in any part of Pakistan to be possessed of qualifications which entitle him to be recognised as possessed of sufficient medical qualifications for the purposes of the Ordinance. The effect of such certification is that the persons so certified shall be deemed to be possessed of qualifications which are recognized medical qualifications for the purposes of the Ordinance. Under section 33 subsection (2) clause (d), the Council is obliged to make regulations providing for minimum qualifications and experience required of teachers for appointment in medical and dental institutions. [p. 1414] A

There is considerable weight in the arguments that having been so placed at par the rules framed by the respondent/Government could not place the petitioner in an inferior category by providing that if no candidate of the first two categories is available, then the candidate falling in the third category shall be eligible. Apparent the intention seems to be clear that once that qualification has been recognised by the Council and an opinion as to eligibility has been rendered, it will not be open to the respondent/Government to act otherwise. It will be noted that even in the written statement, the case of the Council is that the petitioner is eligible for appointment as Assistant Professor on the basis of petitioner’s training and experience abroad. [p. 1415] B

10. Even if the advice/opinion/certification of the Council be not held as binding on the other authorities/functionaries in the Country and such advice etc. is considered only advisory, which is the case of respondent/Government, the respondent/Government must show very strong and cogent reasons as to why the advice/opinion/certification of the council is being disregarded. No. such reason is discrenible from the written statement/ parawise comments filed by the Government nor such a reason has been disclosed much less convassed at the Bar. The learned Additional Advocate-General and the Departments representative of the respondent /Government present during the course of hearing, have been totally unable to give any reason at all as to why the Government was not giving effect to the recommendations of the Service Rules Committee contained in Annex. XI at page 38 of the record. A reading of the minutes clearly supports the view point canvassed by the petitioner in this case. [p. 1415] C

11. Article 143 of the Constitution lays down that in the event of the provision of a Provincial Statute being repugnant to the Federal Statute, it is the provisions contained in the latter which shall prevail and the Provincial provisions to the extent of repugnancy shall be void. The argument is that the relevant rule in the Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979, by which a person duly recognized by the Council functioning under the Federal Statute as having qualifications equivalent or at par or otherwise elegible is placed inferior to persons holding qualifications declared equivalent, is repugnant to the Federal Provisions and such should be declared so. [p. 1416] D

13. For the above reasons, I hold the respondent/Government to be at least bound by the recommendation of its Service Rules Committee and to implement the same expeditiously. It is about two years now that the recommendations have come into the field and no action is being taken. Apart from proverbial delays which mar the Government action something else may be acting as a restraining factor in implementing the recommendation.

14. For the above raasons, I would allow this writ petition and hold the relevant rule to be unconscionable, unjust and unfair and as such of no legal effect. I would grant declaration that the petitioner is eligible and at par with the candidates belonging to the other categories for the purpose of selection as Assistant Professor. I would also direct the respondent/Government to implement the recommendation of the Service Rules Committee and to amend the relevant rule, as recommended. There shall be no order as to costs. [p. 1417] E

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