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Petitioner: Muhammad Junaid Alam VS Respondent: Federation of Pakistan through its Secretary, Islamabad & others
Court Name: Lahore High Court Judge(s): Muhammad Sajid Mehmood Sethi Title:Muhammad Junaid Alam vs Federation of Pakistan through its Secretary,
Islamabad & others Case No.: Writ Petition No.1775 of 2017 Date of Judgment:2018-10-09 Reported As: 2019 CLC 453, 2018 LHC 2310 Result: Petition allowed Judgment MUHAMMAD SAJID MEHMOOD SETHI, J.- This consolidated judgment shall dispose of instant writ petition along with following connected writ petitions as common questions of law and facts are involved in these cases:- 1. W.P. No.1776 of 2017 titled Kiran Shehzadi v . Federation of Pakistan through its Secretary , Islamabad & others 2. W.P. No.1777 of 2017 titled Imran Khan v . Federation of Pakistan through its Secretary , Islamabad & others 3. W.P. No.1778 of 2017 titled Rizwan Ali v. Federation of Pakistan through its Secretary , Islamabad & others 4. W.P. No.1779 of 2017 titled Ansar Aslam v . Federation of Pakistan through its Secretary , Islamabad & others 5. W.P. No.1780 of 2017 titled Usman Shahid v . Federation of Pakistan through its Secretary , Islamabad & others 6. W.P. No.1781 of 2017 titled Atta ur Rehman v . Federation of Pakistan through its Secretary , Islamabad & others 7. W.P. No.1782 of 2017 titled Hassan Javed v . Federation of Pakistan through its Secretary , Islamabad & others 8. W.P. No.1783 of 2017 titled Waseem Akram v . Federation of Pakistan through its Secretary , Islamabad & others 9. W.P. No.1784 of 2017 titled Irfan E lahi v. Federation of Pakistan through its Secretary , Islamabad & others 10. W.P. No.1785 of 2017 titled Inaam Rasool v . Federation of Pakistan through its Secretary , Islamabad & others 11. W.P. No.1786 of 2017 titled Atif Rashid v . Federation of Pakistan through its Secretary , Islamabad & others 12. W.P. No.1787 of 2017 titled Abdul Manaan v . Federation of Pakistan through its Secretary , Islamabad & others 13. W.P. No.1788 of 2017 titled Wasiq Bashir Khan v . Federation of Pakistan through its Secretary , Islamabad & others 14. W.P. No.1789 of 2017 titled Muhammad Qamar Ikram v . Federation of Pakistan through its Secretary , Islamabad & others
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15. W.P. No.1790 of 2017 titled Mohsin Ali v. Federation of Pakistan through its Secretary , Islamabad & others 16. W.P. No.1792 of 2017 titled Muhammad Ahsan Abbas v . Federation of Pakistan through its Secretary , Islamabad & others 17. W.P. No.1793 of 2017 titled Umer Farooq v . Federation of Pakistan through its Secretary , Islamabad & others 18. W.P. No.1794 of 2017 titled Umer Sharif v . Federation of Pakistan through its Secretary , Islamabad & others 19. W.P. No.8662 of 2017 titled Tauqeer -ul-Hassan & others v . Federation of Pakistan through its Secretary , Islamabad & others 20. W.P. No.98315 of 2017 titled Rizwan Mansoor Bajwa & others v . Federation of Pakistan through its Secretary , Islamabad & others 21. W.P. No.151535 of 2018 titled Ifnan Azeem & others v . Federation of Pakistan through its Secretary , Islamabad & others 22. W.P. No.151537 of 2018 titled Mehwish Riaz & others v . Federation of Pakistan through its Secretary , Islamabad & others 23. W.P. No.151541 of 2018 titled Maham Asif & others v . Federation of Pakistan through its Secretary , Islamabad & others 24. W.P. No.160203 of 2018 titled Muhammad Abu Bakar v . Federation of Pakistan through its Secretary , Islamabad & others 25. W.P. No.201076 of 2018 titled Sana Ullah Khan & others v . Federation of Pakistan through its Secretary , Islamabad & others 26. W.P. No.215588 of 2018 titled Sheher Bano & others v. Federation of Pakistan through its Secretary , Islamabad & others 2. Through instant as well as connected petitions, petitioners have challenged the vires of the Regulations No.48 & 60 of the Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 ("the Practitioners Regulations" ), being ultra vires the Section 15 of the Medical and Dental Council Ordinance, 1962 ("the PNMC Ordinance" ) as amended in the year 2012 through the Medical and Dental Council (Amendment) Act, 2012 ("the Amendment Act" ) and Articles 9 & 25 of the Constitution of the Islamic Republic of Pakistan , 1973 ("the Constitution" ), with the following prayer:- In view of the above, it is, therefore, most respectfully prayed that the Regulations 48 and 60 of the Regulations, 2008 are illegal, unlawful and ultra vires the Section 15 of the Ordinance, 1962 and Articles 9 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. It is further prayed that pending disposal of this petition, the respondents No.3 and 4 may kindly be directed to do what they are by law required to do i.e. to allow the petitioner to sit in the national examination board and forward the name of the petitioner to the Federal Government, if found in possession of sufficient knowledge in the area of medicine, as per the criteria in field. 3. A major development in reorganizatio n and reconstitution of body of Pakistan Medical and Dental Council (interchangeably referred to as "PMMC " or the Council? where appropriate) was brought about by the PMDC Ordinance, after which gradual changes owing to growing needs were introduced through various amendments. Deriving authority from different provisions (mainly Section 33), the PMDC time and again made different Rules / Regulations / Decisions to achieve the purposes of the PMDC Ordinance. The main outcome of exercise of rule- making power delegated to PMDC appe ared in shape of promulgation of the Practitioners Regulations. A large number of amendments / substitutions / additions were brought in the PMDC Ordinance by way of enactment of the Amendment Act of 2012. Now, the Practitioners Regulations and the Amendment Act of 2012 are the basis of litigation involving interpretation and reconciliation of their various provisions, scope and extent of delegated legislation and exercise of discretion etc. In present petitions, petitioners have completed their medical degrees from different foreign universities and thereafter applied to appear in the examination conducted by National Examination Board ("NEB Examination ") to procure practice licenses, under Section 15 of the PMDC Ordinance. They were declined to appear in NEB Examination on the strength of Regulations No. 48 & 60, which provided that requisite No Objection Certificate ("NOC ") before getting admission in a foreign institution and minimum 60%?
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marks in F.Sc. / Intermediate examination were required in order to appear in NEB Examination. This controversy between petitioners and respondent-PMDC constrained petitioners to file present petitions. 4. Learned counsel for petitioners submit that petitioners completed their M.B.B.S. Degrees from foreign institutions and approached the PMDC for seeking permission to sit in the examination to be conducted by the NEB for registration as medical practitioners, but they are not being permitted on the premise that their marks in F.Sc. are less than 60% and no NOCs were obtain ed by them from PMDC before getting admission in foreign universities. They further submit that according to Section 15 of the Ordinance of 1962, the only condition for registration with PMDC is the clearance of examination to be conducted by the NEB, thus, the condition of minimum 60% marks in F.Sc. / NOC is against the provisions of the parent statute. They add that when regulations offend against clear cut provisions of the parent statute, same do not carry any legal sanctity . In support of their last contention, learned counsel have referred to Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others (2015 SCMR 630), National Electric Power Regulatory Authority v. Faisalaba d Electric Supply Company Limited (2016 SCMR 550), Francis Coralie Mullin v. The Administrator , Union Territory of Delhi and others (AIR 1981 Supreme Court 746). They add that if foreign degree holders are not allowed to sit in examinations to be conducted by NEB, they would be deprived of their right to earn bread and butter which is against the spirit of Article 9 of the Constitution. In support of their submissions, they have relied upon The Collector of Sales Tax and others v. Superior Textile Mills Ltd. and others (PTCL 2001 CL. 237), Khawaja Ahmad Hassaan v. Government of Punjab and others (2005 SCMR 186), Suo Motu Case No.11 of 2011 (PLD 2014 Supreme Court 389), Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 Supreme Court 808), Basit Ali v. Additional Chief Secretary , Government of the Punjab, Civil Secretariat, Lahore and 3 'others (2005 MLD 599), Sheikh Muhammad Yousaf and another v. District Collector / District Registrar (DOR), Okara and 4 others (PLD 2010 Lahore 123), Messrs D.S. Textile Mills Limited v. Federation of Pakistan and others (PLD 2016 Lahore 355), Ahmad Daniyal v. Islamia College, Peshawar through Registrar and 10 others (PLD 2017 Peshawar 193), Independent Newspapers Corporation (Pvt.) Ltd. and others v. Federation of Pakistan and others (PLD 2017 Lahore 289), New Allied Electronics Industries (Pvt.) Ltd. v. Federation of Pakistan through Secretary , Revenue Division and another (2017 PTD 130), Muhammad Khalid Qureshi v. Province of Punjab through Secretary , Excise and Taxation Department, Lahore and another (2017 PTD 805), Abdul Ghaffar Mallah and others v. Province of Sindh through Chief Secretary and others [2018 PLC (C.S.) Note 26], Waqas Aslam and 2 others v. Lahore Electric Supply Company (LESCO) through Chief Executive and 4 others [2018 PLC (C.S.) 243] and Moazzam Habib and others v . Federation of Pakistan and others (2018 YLR 222 ). 5. Conversely , learned counsel for respondent-PMDC assisted by Assistant Attorney General in response to notice of Order 27-A of the Code of Civil Procedure, 1908, submit that at the time of admission of petitioners in the foreign institutions, the Practitioners Regulations were in field, therefore the petitioners were bound to fulfill the criteria laid therein. They add that in a number of cases, the Superior Courts have already declared that Regulations framed by PMDC enjoy legal status and eligibility criteria fixed thereunder is sine qua non. They further contend that as the petitioners did not obtain requisite NOC prior to their admission in foreign institutions and some of them even did not clear F.Sc. with 60% marks, hence, they are not entitled for registration under PMDC. They add that as the medical practitioners have to deal with issues relating to health of the general public, thus, quality of medical education may not be allowed to be compromised. To fortify this contention, learned counsel have relied upon Aqib Rasheed and 3 others v. Government of the Punjab through Secretary Health and 4 others (PLD 2011 Lahore 1) and judgment dated 29.10.2014, passed by the Hon'ble Islamabad High Court, Islamabad in W.P. No.3944 of 2013 titled Omer Ismail Khalid etc. v. Pakistan Medical & Dental Council etc. They submit that Section 15 of the Ordinance of 1962 does not relate to eligibility criteria, thus, the same does not come to rescue the petitioners, rather PMDC enjoys power to determine eligibility criteria in terms of Section 33 of the PMDC Ordinance and unless a person fulfills the eligibility criteria, he cannot be allowed to appear in the examination to be conducted by NEB. In support of their contentions, learned counsel have referred to Nadir Khan and others v. Principal, Khyber Medical College, Peshawar and others (1995 SCMR 421) and Dr. Muhammad Zaheer Babar v.
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Pakistan Medical and Dental Council through Chairman, Islamabad and 4 others (PLJ 2013 Islamabad 130). They argue that PMDC is a body to regulate the matters relating to admission and registration of medical practitioners, therefore, any Regulation made by it cannot be declared illegal and unlawful on the whims of any individual. They further argue that in view of low standard of education in medical field provided by foreign institutions, firstly, it is incumbent upon an applicant to get requisite NOC from PMDC prior to getting admission and secondly, after completion of degree, has to pass the examination to be held by NEB to prove his eligibility as a practitioner but the petitioners did not obtain requisite NOC, therefore they are not eligible for registration as medical practitioners with PMDC. In support of their contentions, learned counsel have referred to Pakistan Medical and Dental Council v. Dr. Raza Muhammad Khan (1992 SCMR 1621 ), Pakistan Medical and Dental Council v. Ziauddin Medical University and others (PLD 2007 Supreme Court 323), Salim Javed Baig and others v. Federal Ombudsman and others (PLD 2016 Lahore 433), All Pakistan Paramedical Staff Federation Unit, SZPMI, Lahore v. Federation of Pakistan and others (PLD 2017 Lahore 640), Pakistan College of Law v. University of Punjab and others (PLD 2017 Lahore 830) and Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others (PLD 2018 Lahore 75 ). 6. Arguments heard. Available record perused. 7. The very purpose of promulgation of the PMDC Ordinance is duly reflected in its preamble, which is reproduced hereunder:- Whereas it is expedient to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical and Dental Coun cil in Pakistan in order to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry .? It is evident from the bare reading of preamble that the PMDC was reconstitut ed to set up uniform minimum standard of basic and higher qualification s in medicine and dentistry . In the year 2012 major changes have been brought in the PMDC Ordinance by promulgating the Amendment Act, therefore it is important to examine the scheme of the PMDC Ordinance, before and after the amendments through the Amendment Act. Before the Amendment Act, there were five Schedules of the Ordinance. The recognized medical qualifications granted by medical institutions in Pakis tan and outside Pakistan were notifie d under the First and Second Schedule, respectively . The Third Schedule related to the recognized additional medical qualifications; the Fourth Schedule was for registrable medical licences and diplomas, while the Fifth Schedule dealt with the recognized dental qualifications. Section 11 of the PMDC Ordinance governed the recognition of medical institutions and the medical qualifications granted by medical institutions in Pakistan, while sections 12, 13 and 14 dealt with recognition of medical qualifications granted by institutions outside Pakistan. Section 15 provided for the powers of the Council, and the Federal Government, in case of qualifications granted by medical institutions outside Pakistan, other than those notified in the Second Schedule. Section 23 provided for the qualifications, conditions and procedure for registration of medical practitioners possessing qualifications which were recognised medical qualifications for the purposes of the Ordinance. The three provisos to section 23 laid down the conditions for registration. The registration was envisaged in two stage s; initially , a person holding qualificatio ns from a recognised medical institution was granted 'provisional registration', and after fulfilling certain cond itions, was entitled to get 'full registration'. Section 2(i) defined "recognized medical qualification" as meaning any of the medical qualifications included in the First and Second Schedule or recognized under sections 14 or 15, while section 2(I) defined "registered medical practitioner" as meaning a medical practitioner registered or provisionally registered under the Ordinance. Pursuant to its powers, particularly under Section 33 of the PMDC Ordinance, the PMDC framed Practitioners Regulations which were notified in the official gazette on 26-1-2009. Part VII of the Practitioners Regulations deals with foreign qualifications and the National Examination Board. The NEB Examination is prescribed to determine the professional competence, or otherwise, of a Pakistani citizen, holding basic medical qualifications from a foreign medical institution. The NEB examination was, therefore, introduced for the first time through the Practitioners Regulations. The Practitioners Regulations provided that every student obtaining admission in a foreign medical
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institution was required to get an NOC before joining the medical institution outside Pakistan. The object and purpose of the NEB Examination was to determine the competence, or otherwise, of a candidate for registration and equivalence of the foreign basic or postgraduate medical or dental qualification, as defined in Regulations 2(iv) and (xvii) respectively. Sub-Regulation 1, of Regulation 59, related to those persons who had acquired a foreign basic medical or dental qualification from such medical institutions as were included in the Second Schedule or Fifth Schedule of the Ordinance. The said Regulation provided that they were not required to qualify the NEB examination for being provisionally registered under section 23 of the Ordinance. A combined reading of the provisions of the Ordinance, as they existed prior to the Amendment Act, read with the Practitioners Regulations, makes it obvious that the requirement to qualify the NEB Examination, so as to be entitled to full registration under the Ordinance was mandatory , for those who held medical qualifications from a foreign medical institution other than those notified under the Second Schedule. 8. The Amendment Act of 2012 made fundamental changes in the law. Section 15 of the PMDC Ordinance was substituted with new provision, which incorporated in the statute the concept and procedure for registration of students qualifying from educational institutions outside Pakistan, previously provided in the Practitioners Regulations. The Second Schedule of the PMDC Ordinance was omitted and instead Section 15 has been inserted, which deals with the registration and recognition of qualifications granted by medical institutions outside Pakistan. Section 15, as inserted through the Amendment Act, is as follows:- 15. Power of the Council to certify certain persons to be possessed of sufficient medical qualifications. -- (1) If, after an examination by a board constit uted by the Council, the Council is satisfie d that a person holding a qualification granted by a medical institution outside Pakistan, is possessed of sufficient knowledge and skill to be registered as a practitioner for the purpose of this Ordinance, it may recommend to the Federal Government to issue a notification in favour of such perso n to register him and his qualification. Upon such notification, the Council shall register the qualification possessed by the person without it being entered in any of the Schedules of this Ordinance. (2). The Council shall register the qualification granted by a medical institution outside Pakistan, Possessed by the person by maintaining a separate list in the Register . Section 15, as amended through Amendment Act of 2012, has restricted the powers of respondents to the extent of assessing medical knowledge of the students qualifying from educational institutions outside Pakistan by taking an examination. After having taken the examination, if the respondents are satisfied that candidates holding foreign degrees are possessed with sufficient knowledge and skill, then the names of all those qualified candidates are to be recommended to the Federal Government to issue a notification in their favour to be registered as medical practitioners in Pakistan. 9. The Practitioners Regulations of 2008 were made prior to the substitution of Section 15 of the PMDC Ordinance brought in the year 2012. The impugned Regulation No. 48 imposes a condition upon candidates who intend to get admission in a medical institution outside Pakistan to obtain NOC from the Council. The said Regulation reads as under:- 48. On the commencement of these regulations, a person who gets admission in any medical or dental course in a foreign country without being in possession of a valid no objection certificate issued by the Council to him prior to joining the course abroad shall not be eligible for processing of registration of his qualification if it is not included in the Second, Third, or Fifth Schedule to the PM&DC Ordinance 1962. No person shall be allowed to appear in the National Examination Board examination without the eligibility certificate issued by the Council. Persons admitted in medical and dental courses on or before the approval of these regulations shall be issued eligibility without the no objection certificate by the Council provided they fulfill all other requirements." Whereas the impugned Regulation No. 60 debars the foreign qualified candidates with less than 60% marks in F.Sc. from taking NEB Examination. The said Regulation is reproduced herein below:- 60. A candidate who acquires admission after the end of the year of commencement of these regulations into a foreign medical school with less than 60% marks in F.Sc. premedical or equivalent qualification shall not be entertained for NEB Examination under any circumstances."?
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The Practitioners Regulations to the extent of dealing with foreign qualified students appear to be in conflict with the substituted Section 15 of the PMDC Ordinance. The newly substituted Section 15 now only empowers the respondents to take examination and after having taken the same, if the Council is of the opinion that a candidate does not possess sufficient knowledge and skill to practice, then it may decline to recommend such candidate' s name to the Federal Government to be registered as a medical practitioner in Pakistan. By virtue of Regulations No.48 & 60 of the Regulations of 2008, medical students having foreign degrees have been restrained not only from seeking knowledge of medicine from foreign country but have also been denied an opportunity to demonstrate that they possess sufficient knowledge and skill to practice in Pakistan, whereas no such restriction has been placed in Section 15 of the Ordinance of 1962, reproduced supra. 10. The Practitioners Regulations have been framed in exercise of powers conferred upon PMDC under Section 33 of the Ordinance of 1962 but a careful appraisal of Section 33 makes it clear that said provision of law is silent about powers to make Regulations regarding candidates intending to get admission in foreign medical institutions, students getting medical education abroad and candidates who completed medical education from medical institutions outside Pakistan. For ease of reference, Section 33 is reproduced hereunder:- 33. Power to make Regulations .- (1)The Council may, with the previous sanction of the Federal Government, make Regulation generally to carry out the purposes of this Ordinance, and, without prejudice to the generality of this power , such Regulations may provide for- (a) the management of the property of the Council and the maintenance and audit of its accounts; (b) the summoning and holding of meetings of the Council, the times and places where such meetings are to be held, the conduct of business thereat and the number of members necessary to constitute a quorum; (c) the powers and duties of the President and V ice President; (d) the mode of appointment of the Executive Committee and other Committees, the summoning and holding of meetings, and the conduct of business of such Committees; (e) code of practice and ethics for the medical and dental practitioners; (f) the appointment, powers, duties and procedures of medical and dental inspectors; (g) the conditions and procedure for maintenance, compilation and publication of the Register of medical and dental practitioners and of health care providing facilities and their minimum requirements and the fees to be charged for registration and, if necessary , for opening of sub-of fices or branches for this purpose; (h) the procedure for any inquiry under sub-section (1) of section 31; and (i) any matter for which under this Ordinance provision may be made by regulations. (2) Notwithstanding anything contained in sub-section (1) the Council shall make Regulations which may provide for-- (a) prescribing a uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules; (b) prescribing minimum requirements for the content and duration of courses of study as aforesaid; (c) prescribing the conditions for admission to courses of training as aforesaid; (d) prescribing minimum qualifications and experience required of teachers for appointment in medical and…
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