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P L D 1985 Lahore 358
Before Muhammad Afzal Lone, J
ZAH00R MAHMOOD FAROOQI--Petitioner
versus
THE PUNJAB PUBLIC SERVICE COMMISSION, LAHORE Respondent
Writ Petition No. 3574 of 1983, decided on 6th March, 1985.
--Art. 9-Pakistan Medical and Dental Council Ordinance (XXXII of 1962), S. 33(2)(d)-Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979-Punjab Civil Servants Act (VIII of 1970, S. 23-Constitution of Pakistan (1973), Arts. 268(7), 142 & 143-Regulations published by a Federal Authority and Rules promulgated by Provincial Government = Question whether two standing provisions of viz. Pakistan Medical and Dental Council Ordinance, 1962, S. 33 and Punjab Health Department (Medical and Dental Teaching Posts) Service Rules, 1979 could co-exist-Federal law, held, prevailed, and provincial law to the extent of repugnancy was void -Two competing laws when enact two divergent provisions, Federal law must prevail -Two provisions when entirely irreconcilable, repugnancy could be deemed to exist-- New law when abridges some right conferred by existing law or directly or indirectly interfered with such right, repugnancy could be said to be in existence-Regulations framed by Federal Government being existing law must take precedence over Rules of Provincial Government, therefore, Rules 1979 must give way to Regulations 1962-Irreconcitable conflict and repugnancy-Principles to be applied.-[Interpretation of statutes].
In re : C. P. Motor Spirit Act A I R 1939 F C 1 and Attorney-General for Queens Land v. Attorney-General for Common Wealth 20 Com. W L R 148 ref. ,
M. Agil Mirza for Petitioner.
Najamuz Zaman, Addl. A.-G. for Respondent.
Date of hearing : 8th December, 1984.
Through an advertisement appearing in the daily "Pakistan Times" dated 20-3-1983, Punjab Public Service Commission, invited applications, for 4 temporary, but likely to be made permanent posts of Assistant Professor Bio-Chemistry for Medical Colleges/attached Hospitals, in the Punjab Health Department. The petitioner applied for such a post but his application was rejected by the Punjab Public Service Commission for lack of qualification and an intimation in this behalf given to him under their letter dated 4-7-1983. He filed a representation before the Chairman of the Commission, but it was turned down on 4-8-1983. The Commission reiterated their earlier decision. These orders are under challenge in this writ petition.
2. The qualification for the post in question has been prescribed by means of Regulations issued by Pakistan and Dental Council, in exercise of the powers vesting in it under clause (d) of subsection (2) of section 33 of the Pakistan Medical and Dental Council Ordinance, 1962. The extract of these Regulations as existing on the date, when the applications, were, invited has been added to the petition as Annexure E' which so far as relevant for the purposes of this case is reproduced below : - - - - - -- - - - - - - - - - - ---- - - - - - - - - - - -
Post Basic Qualifications Required Postgraduate
Qualification.
A B C
* * * * *
Asstt: M. B., B. S. or equiva- D. Sc. (Pak) M. Phil F. C. P. S.
Pro- lent medical Ph. D (Pak) M. S. (Pak)
fessur. qualification. OR
OR Other equivalent qualifi-
cation recognised by the
M. Sc. in the PMDC.
respective
subject.
ditto ditto Postgraduate Diplomas
like M. C. P. S. or other
equivalent qualifications.
Remarks:
Persons having experience shall
be preferred.
Candidates without basic medical
qualification are eligible for appoint-
ment as Assistant Professor if they
possess a D. Sc., Ph. D., M. / Phil
degree in the subject provided a Me-
dical graduate is not available,,
Candidates with M. Sc. in the subject
can be appointed as Demonstrator
only. The number of non-medical teaching
staff in the department should not
exceed 50 % of the total strength of teaching
staff in the respective department.
3. It is not disputed that in the first instance, the petitioner passed the B. Sc. examination and thereafter in the year 1960 obtained a degree in B. Pharmacy from the Punjab University and then got a degree in M. Phil. in Bio-Chemistry from the Karachi University in the year 1976. Earlier on 5-9-1964 he joined, service, as a Public Analyst in the Health Department. On 22-8-1979, he was appointed as a Demonstrator in Bio-Chemistry, in the King Edward Medical College, Lahore, and from. 22-7-1980 'onward he is holding the post of Assistant Professor in Bio Chemistry in Allama Iqbal Medical College, Lahore, in his own scale.
4. It would appear from the extract of Annexure 'E' quoted above, that the basic qualification for the post, prescribed by the Pakistan Medical & Dental Council, is, M. B., B. S. or equivalent medical qualification and in the alternate M. Sc. in the subject concerned i.e. Bio-Chemistry. Apart from the basic qualification, the candidate must be possessed of certain post-graduate qualifications referred to above. It is manifest from Annexure 'E' that the holder of medical qualification, need not be M. Phil. in the subject. As regards the M. Sc. in the subject, such an applicant, is, required to hold "other equivalent qualifications recognized by the P. M. D. C.," as post-graduate qualifications. I have left out the columns relating to "experience" and "Research" given in Annexure 'E' as these are merely additional qualifications, which entitle an applicant to preference over others..
5. A reference to remarks column of Annexure 'E' is inevitable for determination of the controversy raised in this case. The entry in the remarks column, is, in the nature of a proviso, which creates an exception to the requisite q641ifications. It expressly lays down that if a Medical Graduate is not available, a candidate without medical qualification, if possessed of D. Sc., Ph. D. or M. Phil. degree in the subject, will be eligible. Now Mr. Aqil Mirza's whole case is founded on the entry in the remarks column; and he argues that since no candidate with basic, medical qualifications is. forthcoming, the petitioner who is M. Phil. in Biochemistry, has the right to apply for the .post and have his candidature considered- by the Commission. .-.
6. On the other hand, the learned Assistant Advocate-General has heavily relied 'upon the Punjab Health Department (Medical axa Dental Teaching Posts) Service Rules, 1979. These were formulated by the Governor under section 13 of the Punjab Civil Servants Act, 1974, much after the promulgation of the Regulations. The extract of the Rule relevant to the matter in issue is as under :-
Name of the Appointing Minimum qualification
Post. authority for appointment by
initial recruitment Promotion.
or transfer.
Assistant Government (i) M. B., B. S. or equivalent medial
Professor qualification recognized by the
(Anatomy/ Pakistan Medical & Dental Council
Physiology/ (hereinafter referred to as the
Pharmacology/ Council).
Bio-Chemistry.
OR
' N1. Se. in the subject (if 'no suitable
Medical Graduate is available)
and'
the following post-graduate qualifica.
tions in order of preference :-
(i) D. Sc. or Ph. , D. or M. Phil. or
(in case of Anatomy) M. S. or (in
case of Physiology and Pharma-
cology only M. D. or other
equivalent qualification recognized
by the Council.
(ii) If no suitable candidate with the
aforesaid qualifications is available, then-
(a) M. B., IS. a. or, equivaleiu medical qualification recognized by the Council and
(ii) five years teaching experience in
the relevant subject as Demons-
trator or equivalent .position
recognized by the Council.
x x x x
He argued that as per these rues, if a suitable medical graduate is not available, the candidate must be M. Sc., in the subject and further possessed of post-graduate qualifications, set out in the Rules.. He went on to contend, that as the petitioner is not M. Sc., in Bio-Chemistry, which in case of non-availability of a medical graduate, is, the basic requirement for the post, he cannot be considered as an alternate candidate. In this behalf, the learned Assistant Advocate-General, further made a reference to the Advertisement in the Pakistan Times, dated 27-7-1980 (Annexure 'G') whereby the Commission invited the applications. This advertisement is in consonance with the Punjab Health 6epartmept, 1979 Rules and describes the qualifications as :
"M. B., B. S. or equivalent medical qualification recognised by the Pak. Medical, and Dental Council or. M. Sc. in the subject (if no suitable medical graduate is available) and then following (postgraduate). qualifications in order of preference :
(i) D. Sq. or Ph. D. or M. Phil. or F. C.. P. S. (in Bio-Chemistry) or other equivalent qualification recognised by the council ;
(ii) If no suitable candidate with the aforesaid qualifications is available then
(a) M. B., B. S. or equivalent medical qualification recognised by the council, and
(h) Five years' teaching experience in the relevant subject as Demonstrator or equivalent position recognised by the council."
7. There is an obvious conflict between the Regulations published by the Pakistan Medical and Dental Council, and the Rules promulgated by the Punjab Government. Under the Regulations (Annex. E' a remarks column) in case of non-availability of Medical Graduate the substitute need not be an M. Sc. in Bio-Chemistry but by virtue of the rules, he must be possessed of such a qualification.
8. A question arises as to whether the two standing provisions can co-exist, if not which shall prevail. The answer to this question will necessitate examination of the source of authority, under which the two provisions in pursuance of delegated legislative powers were made. As already observed. the Regulations have been issued under section 33 of the Ordinance, which lays down :
"33(1).-The Council may, with the previous sanction of the Central Government, make Regulations generally to carry out the purposes of this Ordinance, and without prejudice to the generality of this power, such Regulations may provide for
(a)
(2) Notwithstanding anything contained in subsection (I) the Council shall make Regulations which may provide for
(a) .
(d) prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions ;
Section 23 of the Punjab Civil Servants Act, 1974 under which the Rules have been made reads as under :-
"23(l) The Governor, or any person authorised in this behalf may make such rules as appear to him to be necessary or expedient for carrying out the purposes of this Act.
(2)
9. Article 268 of 1973 Constitution, ordains that all existing laws, shall continue in force, so far as applicable and with necessary adoptations, unless altered repealed or amended by appropriate Legislature. Clause (7) of this Article, defines the existing laws and includes the Ordinances, Orders, Rules, Bye-Laws, Regulations and any Notifications and other legal instruments, having the force of law, and in force in Pakistan, immediately before the coming in force of the Constitution, referred to in the Constitution as the commencing day. There can be thus, no doubt that the Medical and Dental Council Ordinance, 1962, and the Regulations made under section 33 thereof, which were in force before the commencing day, are the existing law.
10. It would be pertinent to refer here to Item 43, of the concurrent list falling under Part-II of the 4th Schedule of the Constitution. It is reproduced below :
"Legal, medical and other professions."
Section 33(2)-"d" ; the Regulations framed thereunder, and the Punjab Health Department Rules 1979, undoubtedly fall within the ambit of this entry. Under Article 142 of the Constitution, dealing with distribution of powers between the Federation and the Provinces, both the Parliament and the Provincial Assembly have powers to make laws, with respect to the matters enumerated in the concurrent list. Article 143, however, embodies the well established rule of the Federal Constitution, that in case of conflict between the Federal and Provincial Laws, the Federal Law prevail, and the Provincial law to the extent of repugnancy is void. In view of the rule underlying Article 143, if on a subject there is already a.4 competently made existing Federal law, evincing an intention to cover the whole field, the provincial legislature looses authority to validly make any law in the same field which cannot stand together with such existing Federal Law. It would thus, follow that when two such competing laws, enact two divergent provisions, the Federal law must prevail.
11. The position is thus, quite clear, if on a subject enumerated in the concurrent list, the existing law already occupies the field, the law made by the Provincial legislature, in conflict with such existing law, is void. But since, the concurrent list itself recognises the provincial legislature's authority to legislate on the subjects, enumerated therein, having regard to the complexity of the enactments and the multi-dimensional legislation, on a variety of aspects of the same subject, mere possibility of overlapping of the two enactments or incidental transgression of the Provincial statute on the Federal statute cannot furnish a valid basis, for treating the Provincial Statute as void.
12. It is only that when the two provisions are entirely irreconcilable that a repugnancy can be said to exist. In the opinion of the Gwyer C. J. B In re : C. P. Motor Spirit Act (AIR 1939 F C 1) :
"If indeed such a reconciliation should prove impossible then, and only then will the non obstante clause operate and the federal power prevail .
Thus, when two provisions suffer irreconcilable conflict repugnancy may be inferred. In Attorney-General for Queensland v. Attorney-General fir C Common Wealth (20 Com. W L R 148), the connotation of the term repugnancy, laid down by' Higgins J. is :-
"What does "repugnant" means, I aril strongly inclined to think that no Colonial Act can be repugnant to an Act of the Parliament of Great Britain unless it involves, either directly or ultimately, a contradictory proposition-probably, contradictory duties or contradictory rights."
Again a repugnancy can be said to exist when the new law, abridges some right conferred by the existing law or directly and substantially interferee with such right.
13. In the light of this test, I now proceed to the provisions of the Regulations and the Rules under consideration. As already observed the petitioner is only B. Pharmacy and thereafter did M. Phil. in Bio Chemistry. But neither B. Pharmacy nor M. Phil, without M. Sc in Bio Chemistry, is, the qualification recognised by the Rules. However, under the Regulations, mere M. Phil. degree, in Bio-Chemistry is enough to confer eligibility on the petitioner. It is manifest that the rules extract a higher qualification than the one set down under the, Regulations. If the rules operate, the petitioner would be deprived of his right to apply, for the post ; have him interviewed by the Commission and considered for the post of Assistant Professor in Bio-Chemistry. Both the pieces of delegated legislation aim at prescribing the qualifications for the appointment of Assistant Professor. There is thus, identity of subject on which the delegated authority, drawn from two different jurisdictions, is, sought to be exercised but the two provisions cannot stand together. The, Regulations which are the existing law, envisaged by .Article 268, must take precedence over the rules. The rules are, therefore, rendered as void.
14. It appears that the 'Commission itself, was not unmindful of the clash between the qualifications prescribed by tile Pakistan Medical and Dental Council. and the Health Department of the Punjab Government, but was informed by the latter to follow the rules and reject the advice of the Council, if in variation with the rules. The direction by the Punjab Government, seems to have given in oblivision of the correct legal position. The qualifications laid,, down by the Commission -in the advertisement, so far as these are inconsistent with the regulations, are liable to be ignored.
15. In the Constitution so marked is the supremacy of the Federal legislation over the Provincial Legislation- qua the concurrent list that under Article 143, even the subordinate legislation bearing the character of "existing law" competently made in exercise of the authority given by h Federal enactment cannot ,be overridden by provisions of the Provincial legislature, much less by the rules-making authority exercising power emanating from such legislation.
16. However; the voidness of the Provincial law, on account of repugnancy to the existing Federal law, in contemplation of Article 143, does not have the effect of completely obliterating it, from the Statute Book but it is merely stripped of the legal force and renders ineffective as long as the effect of the paramount existing law, causing voidness is not removed. Thus, till such time the regulations hold the field, the rules shall ,remain eclipsed. .
17. The case may also be examined from other point of view. It is, fairly established rule that when the legislature has directed its attention to. a .particular subject, and specifically makes 'a provision on it, in unambiguous term, then the general provision cannot be extended to cover the same *subject. Section 33 specially grants powers to the Pakistan Medical and Dental Council, to prescribe minimum qualifications for recruitment of teachers for Medical and Dental Institutions. On the other hand, section 23 of the ''Punjab Civil Servants Act, 1974, merely postulates .a general rule-making power for carrying out the purposes of the Act Apart from .the insurmountable hurdle posed by Article 143, on the general principle 4s well, such rule-making power, cannot be/,permitted to override section 33(2): The rules therefore, cannot be upheld and must give away to the Regulations. ,
18. For the foregoing reasons this writ petition is accepted, the rejection of the 'petitioner's application by the Punjab Public Service Commission, on account of lack of qualification, is declared to be without lawful authority. His application shall be entertained arid dealt with in accordance with law, provided no medical graduate is available. The parties are -left to bear their own costs.
A. A, Petition accepted.
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