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Official Citation: 2023 PHC 424
Court / Jurisdiction: Peshawar High Court
Year of Decision: 2023
Decision Date: 2023-10-03
Parties: Ameer Hamza vs Govt: of Khyber Pakhtunkhwa & others
Ruling Summary: This decision was rendered by the Peshawar High Court on 2023-10-03, officially reported as 2023 PHC 424. In this matter between Ameer Hamza and Govt: of Khyber Pakhtunkhwa & others, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023PHC424
Court Name: Peshawar High Court Judge(s): Abdul Shakoor, Syed Arshad Ali Title: Ameer Hamza vs Govt: of Khyber Pakhtunkhwa & others Case No.: WP No. 4015-P/2023 with IR Date of Judgment:2023-10-03 Reported As: 2023 PHC 424 Result: Petition Disposed of
JUDGMENT
JUDGMENT SYED ARSHAD ALI, J- By this consolidated judgment we intend disposing of all the petitions, the description whereof is provided in Annexure "A" to this judgment. 2. The issue at hand raised in all these petitions relates to the test conducted by the Provincial Government commonly known as Medical & Dental Colleges Admissions Tests ("MDCAT') for admission to MMBS and BDS programmes in public sector as well as private sector Medical Colleges and Universities, on 10th September 2023 on the province wide basis through Educational Testing & Evaluation Agency ("ETEA") and there are allegations of mass cheating through modern electronic devices in the said examination. In order to appreciate the issue, we deem it appropriate to refer to the legal dispensation of the impugned examination. Medical and Dental College Admission Test (MDCAT) 3. Every student who is desirous to pursue his medical education in Pakistan is required to undergo and pass MDCAT prior to obtaining such admission. Section 17 of the Pakistan Medical and Dental Council Act, 2023 ("Act No. IV of 2023") envisages that each province as per the policy and standard approved by the Provincial Government and Federal Government respectively shall conduct on the dates approved by the Medical and Dental Council "Council" a single admission test based on the intermediate or equivalent syllabus for all students seeking admission in undergraduate programme both in public and private Medical & Dental Colleges and Universities. Similarly, it is also envisaging in sub-section 3 of section 17 of the Act No. IV of 2023, that admission to Medical & Dental programmes conducted by the public & private colleges and universities shall be regulated as per the policy and standard of the Federal Government through Minister In-charge and Provincial Government. It is further provided under sub-section 2 of section 17 ibid, that no
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student shall be awarded a Medical or Dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in Medical or Dental Colleges in Pakistan. 4. The Pakistan Medical and Dental Council established under section 3 of the Act No. IV of 2023, has the mandate under section 9 sub-section 2 Clause (f), to make rules and regulations for the conduct of admission in Medical and Dental Colleges and examinations to be conducted by each Province, Islamabad Capital Territory and Gilgit Baltistan and approve the examination structures and standards of the National Registration Examination. 5. The Council while exercising its authority under section 9 sub-section 2 Clause (f) has issued a notification dated 13111 July 2023 known as "PM&DC Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Policy Regulations 2023" ("Regulations of 2023"), applicable to all Medical & Dental Undergraduate Programmes recognized by the Council. Rule 2 sub-clause C mandates "Admitting Universities" of the respective provinces to conduct a MDCAT and make admissions in all public and private sector colleges of the province. 6. In the province of Khyber Pakhtunkhwa an independent and autonomous authority by the name Education Testing & Evaluation Agency ETEA has been established under section 3 of the Khyber Pakhtunkhwa Educational Testing & Evaluation Agency Ordinance, 2001 ("Ordinance No. VIII of 2001"). The purpose of establishing ETEA and its functions has been provided under section 4 of Ordinance No. VIII of 2001, which, inter-alia, includes the development of resources and system for conducting examination in respect of educational institutions in general and for admission to the educational institutions in particular and to perform such other functions as Government may by notification in the official gazette assign. 7. For conducting MDCAT for the session 2023, the Council through letter No.16 dated 02.06.2023 requested to the Provincial Government of Khyber Pakhtunkhwa to appoint and nominate any university as "Admitting University" eligible to fulfil the requirement of Act No. IV of 2023 and admission regulations. In response to the said letter, the Provincial Government was pleased to notify the Khyber Medical University, the only Public Sector University as "Admitting University" for the session 2023 vide notification dated 06.07.2023. 8. Accordingly, an MOU was inked between the Khyber Medical University and ETEA on the Is' August, 2023 to conduct the MDCAT as per syllabus provided by the Council according to the policy & standard of the Provincial Government of Khyber Pakhtunkhwa. The Council had initially fixed a date for MDCAT as 27' August, 2023 which was later changed to September, 10th 2023. Accordingly, 46,439-candidates appeared in the examination from 43 centres established by ETEA in 11 cities of the province. Use of unfair means in the Medical & Dental Colleges Admission Tests (MDCAT) held on September 10th, 2023. 9. While the MDCAT examination being conducted by ETEA was in process, reports began to emerge through various sources which, inter-alia, includes intelligence agencies, social media, that candidates taking the examination were using technical based unfair means through an organized racket and during the said process ETEA was able to arrest certain candidates and registered F.I.Rs against the unscrupulous elements in various Districts of the province. When the matter was brought to the notice of the Provincial Government, the Provincial Government through Home & Tribal Affairs Department constituted a joint investigation team ("JIT") vide notification dated 15.09.2023 under the Chairmanship of Additional Inspector General of Police, Special Branch, Khyber Pakhtunkhwa with representation from the departments of Higher Education, Health, Home and Tribal Affairs, Intelligence Bureau; SSP Investigation, CCP, Peshawar were the members of the JIT and a co-opted member from Khyber Medical University namely Dr. Javed Ahmad was also part of the JIT . The JIT was to dig out the complete facts on the matter, the planners and
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perpetrators behind the mass cheating through use of sophisticated communication equipment for unfair means, the complicity if any of Government servants and organized racket behind it. 10. Similarly, some of the candidates had approached this Court through various complaints/petitions, questioning the transparency of the MDCAT, the said petitions were converted into Constitutional petitions and were placed before this Bench on 15.09.2023. Accordingly, notices were issued to the respondents to file their reply and on the same date ETEA was restrained from uploading the MDCAT result on official website or through any other means till further orders of the Court. During the instant proceedings, the worthy Advocate General appeared before the Court and has provided the report of JIT dated 20.09.2023. The JIT was able to unearth certain serious irregularities conducted in the examination and their observations are reproduced as under: "Preliminary investigation of Police and reports of Intelligence Agencies have revealed that a number of perpetrators and accomplices were involved in making available/selling of Bluetooth and other devices to the candidates before the conduct of examination on 10th September, 2023 for substantial amounts from the involved candidates. It is estimated that nearly eight hundred candidates may have had access to the unfair means. It is also transpired that they have been applying these techniques not only for MDCAT but also for other tests/recruitment examinations. This has been carried out in an organized manner by groups in different districts of Khyber Pakhtunkhwa. The network consists of major operations in District Karak, while many other smaller associated groups have been identified operating in other districts of the province. It has also been unearthed that the network has been operating for several years with one Zafar Mehmood Khattak resident of Karak as one of the main culprits. The police has also recently arrested associated gang members and further investigation is under process. The main culprit has previous history of government service and was earlier involved and arrested in unfair means scam." 11. The matter was placed before the "Caretaker Provincial Cabinet" for its decision keeping in view the (JIT) report, accordingly a special meeting was held of the Caretaker Provincial Cabinet on September 28" 2023, wherein the following decisions were taken: - "Decision: (i). Medical and Dental Colleges Admission Test (MDCAT) conducted on September 10th, 2023 is cancelled and shall be re-taken within 06-weeks' time in order to ensure timely admission into the medical institutions. (ii). Khyber Medical University (KMU) shall conduct a fair and transparent test in accordance with codal formalities and the Provincial Government will provide security through District Administration & Police. (iii). Higher Education Department shall constitute a committee, comprising officers of all the stakeholders Departments, IT experts and officials of Educational Boards having expertise of secrecy matters, to submit recommendations for re-vamping and improving the testing mechanism and secrecy of ETEA. (iv). Strict action shall be taken against all planners and perpetrators involved in the cheating scam according to the prevailing laws and rules. " In response to the notice issued to the respondents, they have filed their written replies. Comments filed by Education Testing & Evaluation Agency (ETEA)I Respondent No.3. 12. It is the contention of ETEA, that pursuant to MOU dated 1ST August, 2023, it has conducted MDCAT on September 10th, 2023 where 46,439-students appeared and for that it had established 43 centres at 11 cities, efforts were made to conduct the test in a transparent manner and proper security measures were taken which, inter-alia, includes the physical search of the candidates
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before entering the examination halls. Neither the paper was leaked from the possession of ETEA nor any official of the ETEA was found involved in the scam. Indeed, it was ETEA who was able to get hold of those students who were involved in cheating. Comments filed by Khyber Medical University. 13. It was the contention of Khyber Medical University that being the only Admitting University in the Province of Khyber Pakhtunkhwa, the MDCAT examination was organized by it through ETEA strictly by observing the standard provided by the Federal Government as well as by the Council. It was the ETEA which through a common syllabus available on the website of the Council prepared a question paper composed of 200-MCQs to be attempted in 3- /2 hours and as per Khyber Medical University supervisor feedback reports, transportation opening and closure and return transportation of question paper and answer books were performed only by ETEA staff and even in some of the centres, the Khyber Medical University staff was not allowed to enter into examination hall. The Khyber Medical University has further confirmed the reports that during body search and scanning process through metal detectors a number of GSM based Bluetooth devices were recovered from both male and female candidates. Despite, initial checking some of the candidates mostly females were able to take these devices inside examination centres and were caught later on during the examination. Written reply of the Council. 14. It is the contention of the Council that as per mandate of section 17 of the Act of 2023, a single MDCAT was conducted all across Pakistan on September 10th, 2023 wherein almost 187,000 students appeared. A post examination analyses of MDCAT of 2023 was held on 15th September 2023 at the Council premises which was attended by the Vice Chancellors of all Provincial Admitting Universities, including the Vice Chancellor of Khyber Medical University. As per the press release of the meeting issued on the same date, the Khyber Medical University provided details of MDCAT conducted in the Province of Khyber Pakhtunkhwa according to which total of 46,339 students were registered in the Province while only 45,640 students appeared in the examination whereas 799 students were absent. It was apprised by the Vice Chancellor of Khyber Medical University in the meeting that 219 students were caught red handed in cheating, using unfair means and necessary legal action against the students were initiated accordingly. The number of students who were caught red handed using unfair means only constitute 0.4732% of the total students, therefore, only the examination was to be cancelled to their extent whereas the rest of the students have properly given MDCAT and therefore, the test of the rest of the students shall not be put into limbo causing uncertainty. 15. Before us there are two camps of students; one complaining against the manner and mode of conduct of examination and the others who were impleaded in the proceedings on their application, are not satisfied with the decision of the Provincial Government to scrap the entire examination on the allegations unearthed by JIT and have argued that since they appeared in the examination and were able to obtain high score, therefore, the examination should not be scrapped as a whole and only the examination of those students should be annulled who were found involved in the cheating/use of unfair means. Contentions of learned counsel representing the camp who have questioned this examination. 16. Mr. Syed Abdul Haq, Advocate was the lead counsel who has argued the case on behalf of the petitioners. The learned counsel has maintained that admittedly en-masse cheating was noticed in the examination and thus the entire examination has lost its sanctity albeit shattered the confidence of the public in the system, therefore, the decision of the Provincial Government for a retake is just and fair in the circumstances of the case. The learned counsel while placing reliance on the case of "Rashid All Channa Vs Muhammad Junaid Farooqui & others (2017 SCMR 1519)" has argued that when serious illegalities and discrepancies in examination were unearthed by JIT then
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the only course is the re-take of the entire examination. The learned counsel has also referred to the law laid down in the cases of "Jaudat Hassan Vs Board of Secondary Education Karachi (2011 CLC 867 Karachi); People University of Medical & Health Sciences for Women through Registrar Vs Pakistan Ministry of Health Services Regulation and Coordination (PLD 2021 Sindh 526)". Arguments of learned counsel representing the other camp. 17. M/s Zia ur Rahman Tajik, Sabah ud Din Khattak, Yasir Khattak, Advocates have addressed the following arguments: - (i). That the Provincial Government has no mandate to annul the examination which is the sole prerogative of the Council and has relied upon the judgment of Sindh High Court in the case of "Naila Maqbool Laghari Vs Govt: of Sindh & others (PLD 2018 Sindh 391)", wherein, when the Provincial Government had cancelled similar examination for induction in Medical and Dental Colleges Universities, the Honourable Sindh High Court had set aside the said decision for lack of jurisdiction. The learned counsel have further maintained that since the said examination falls under the regulatory regime of the federal enactment i.e. Pakistan Medical and Dental Council (PM&DC), therefore, the Provincial Government has no authority to interfere in the same. The learned counsel have further maintained that nowhere in past when allegations regarding cheating surfaced/noticed in any examination, the entire examination was scrapped rather the persons involved in cheating should be put to task and the other candidates who were never found involved in cheating could be suffered for the same. (ii). The next objection was that since under section 17 of Pakistan Medical and Dental Council Act, 2023 ("Act No.4 of 2023"), it is the prerogative of the Pakistan Medical and Dental Council (PM&DC) to notify a single date for conducting the said examination, therefore, once the said examination was conducted; conducting a second examination would offend section 17 of the Act. The learned counsel have also referred to the press release issued by the Council wherein they have shown their satisfaction on the conduct of examination and has urged for announcement of the result. 18. The learned Advocate General has argued that since it is apparent from the JIT report and reports of the intelligence agencies that en masse sophisticated unfair means were used in the examination and according to the said preliminary investigation the same has remained a practice even in past but could not be noticed. His next contention was that the racket was traced who are the employees of the Provincial Government as well as the Federal Government behind the sophisticated scam and good number of persons are arrested. He further argued that the device used in the said process is so sophisticated and smart that it could not be easily noticed by invigilators and the Government has sufficient proof that good number of students have used the said devices and for that reason when we compare the test result of this year with that of the previous year there is an alarming and noticeable difference of the candidates who have obtained marks more than 180 out of 200. For these reasons, when the matter was placed before the Cabinet, it has ordered for cancellation of the examination and it has set aside the result and has ordered for re-take within six (06) weeks. 19. Perusal of the arguments of learned counsel for the parties as well as Advocate General, the following are the questions for determination of this Court. N. Whether the Provincial Government has any authority to have cancelled the MDCAT test for the year 2022/23? (ii). Whether the impleaded candidates have any vested rights in the test and therefore, the Provincial Government even, if it has the authority was left with any locus poenintentiae to cancel the test? (iii). What is the effect of the terms single date occurring in section 17 of the Act as once the test conducted on the date fixed by the Council, whether the retake would amount to a second test which is not permissible under section 17 of the Act?
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Questions No.1 & 2 20. Act No. IV of 2023 governs the subject. The ultimate regulator of Medical profession is the Council established under section 3 of the Act. The powers of the Council are provided under section 9 of the Act No. IV of 2023 which inter alia includes the framing of regulations for conduct of admission in Medical & Dental Colleges.[1] 21. Similarly, National Medical & Dental Academic Board ("Board") is an entity established under section 10 of the Act No. IV of 2023 headed by Chairman, Higher Education Commission of Pakistan. The powers and functions of the Board are provided under section 13 of the Act which, inter alia, includes to formulate the examination procedure and structure for MDCAT to be conducted by the respective provinces for approval of the Council and to formulate and recommend to the council for its approval the standard scope and structure of MDCAT.[2] Section 17 of the Act No. IV of 2013 governs the MDCAT, which reads as under: 17. Medical and Dental Colleges Admission Tests (MDCAT). --(1) Each province, Gilgit Baltistan and Islamabad Capital Territory as per the policy and standards approved by the Provincial Governments and Federal Government respectively shall conduct on the dates approved by the Council, a single admission test based on the intermediate or equivalent syllabus for all students seeking admission in undergraduate programs both in public and private medical and dental colleges and universities. (2) No student shall be awarded a medical or dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in a medical or dental college in Pakistan: Provided that the mandatory requirement of MDCAT shall not apply to students seeking admission on a special program seat predefined exclusively for foreign students and on the seats reserved for overseas Pakistanis. (3) The admission to medical and dental programs conducted by public and private colleges and universities shall be regulated as per the policy and standards of the Federal Government through Minister Incharge, Provincial Government and Gilgit Baltistan strictly on merit. However, private colleges may take any additional entrance test subject to any condition imposed by the relevant university to which such college is affiliated: Provided that the marks obtained by a student in MDCAT conducted by the province shall constitute a minimum offifty percent of the weightage for the purposes of admission in the public and private colleges. (4) The MDCAT result of one province shall be valid for the entire country and shall be valid for a period of three years. Each province, Gilgit Baltistan and Islamabad Capital Territory shall give preference to the students having domicile of their respective province or territory as the case may be. (5) Admissions on vacant seats shall be decided by the respective provincial government and respective authority in case of Gilgit-Baltistan and Islamabad Capital Territory. 22. The very opening paragraph of section 17 clearly envisages that each Province has the authority to conduct the MDCAT, however, the policy and standard is to be provided by the provincial as well as the Federal Government. MDCAT shall be conducted on the date approved by the Council, a single admission test based on intermediate or equivalent syllabus for all students seeking admission in undergraduate programme. Similarly, as discussed earlier in the preceding paragraphs that in each province an admitting university is to be notified with the concurrence of the Council by the Provincial Government to conduct MDCAT. Thus, it is clear from the verbiage of section 17 that it is the Province alone which is responsible for conducting MDCAT. The only mandate of the Council is to notify curriculum and a single date for MDCAT throughout the country. Similarly, the Act is completely silent about the eventuality when the Government is faced with the situation like in the present case when there are allegations of mass cheating in the said
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examination. Since, the Act is completely silent to provide any mechanism for the situation like present in this case, therefore, the general principle as provided under section 21 of the General Clauses Act would be attracted which envisages that where an Act or Regulation empowers an authority to issue order, rules or by-laws that the said power includes a power exercisable in like manner and subject to the like sanction and conditions, to add, to amend, vary or rescind any orders, rules, bylaws so issued. The said power is always available to the Government or the executive authority to rescind any notification or order till a decisive step is taken. Even the law is settled that perpetual rights cannot be gained on the basis of illegal and flawed order and when the order has been acquired in illegal manner, the rule of locus poenitentiae will apply . "Muhammad Hussain Shaikh & others Vs University of Sindh & others (2002 PLC (C.S) 696)". The learned counsel for the respondents have referred to the judgment of the Honourable Sindh High Court in the case of Naila Maqbbol, wherein in a similar situation when a similar examination was conducted for admission in Medical Colleges, the same was cancelled by the Provincial Government. The Honourable Court has thoroughly examined the said issue from various angles and it was held in the said judgment that since under the then regulations i.e. MBBS and BDS (Admission House Job & Internship) Regulations 2016, the mandate to conduct the said examination was with the then PMDC, therefore, the Provincial Government had no authority to cancel the said examination. With profound respect, the said judgment is quite distinguishable. In that case under the then Regulations, it was the PMDC which had the mandate to hold the said examination, therefore, the Provincial Government had no authority in the matter to cancel the examination. However, in the present case, section 17 of the Act empowers the Provincial Government alone to conduct the said examination, therefore, we are of the considered opinion that the Provincial Government has the authority to cancel the said examination in terms of section 21 of General Clauses Act, 1897. 23. We are conscious of the fact that the Provincial Government cannot exercise the said authority in vacuum unless…
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