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Petitioner: Muhammad Fahad Malik VS Respondent: Pakistan Medical and Dental Council, etc
Court Name: Lahore High Court Judge(s): Ayesha A. Malik, Jawad Hassan Title: Muhammad Fahad Malik vs Pakistan Medical and Dental Council, etc. Case No.: 1.0.A. No. 98703 of 2017 Date of Judgment:2017-12-07 Reported As: KLR 2018 Civil Cases 116 Result: Appeals allowed.
JUDGMENT
JUDGMENT AYESHA A. MALIK, J. --- This common judgment decides upon the issues raised in the instant ICA alongwith connected ICAs and Writ Petitions detailed in Schedule "A" and "B", appended with the judgment, as all appeals and petitions raise common questions of law and facts. 2. There are two sets of Appellants/Petitioners before the Court. The first are students who are desirous of admission in medical and dental colleges in the 2017-18 session. They completed their A level in June 2017 and obtained their equivalence certificates from the Inter Board Committee of Chairman, Government of Pakistan, Islamabad ("IBCC"). Thereafter they appeared in the SAT II subject test on 3.6.2017 and 1.10.2017 and out of abundant caution also sat for the MDCAT exam in October, 2017 on account of the pending litigation. The case of these Appellants/Petitioners is that on completion of their 0 level in June 2015 and while opting to study A level, the Appellants/Petitioners planned and took necessary steps over the next two years in preparation for admission in medical and dental colleges. The Appellants/Petitioners at the time were guided by the Admission in aMBBS/BDS Courses and Conditions forHouse Job/Intemship/Foundation Year Regulations, 2013 ("2013 Regulations") in terms of which, they were eligible for admission in medical and dental colleges on the basis of their SAT II score in lieu of. the MDCAT exam. In October, 2016, the 2013 Regulations were repealed by the MBBS and BDS (Admissions, House Job and Internship Regulations, 2016 ("2016 Regulations") in terms of which the Appellants/Petitioners could no longer rely on the SAT II result for the purposes of admission in medical and dental colleges and were compelled to take the MDCAT exam. The grievance of the Appellants/Petitioners is that when they commenced their A level in June 2015, the 2013 Regulations were in place and all of a sudden the Respondent PMDC brought about major changes in the admission criteria through the 2016
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Regulations without any notice, making the MDCAT exam mandatory and doing away with the SAT II score. The 2016 Regulations were challenged by students who had taken their A level in June, 2016 and ultimately they were given a concession such that their admissions were made under the 2,013 Regulations. It is the case of the Appellants/Petitioners that they are entitled to the same treatment as they had already completed one year of their A level in October 2016 and had planned the entire year on the understanding that they would be governed by the 2013 Regulations. Therefore, since they had already taken the SAT II subject tests for the purposes of admission in medical and dental colleges, before the 2016 Regulations were promulgated they had legitimate expectation to be admitted on the basis of the SAT II score. Being aggrieved the Appellants challenged the 2016 Regulations before the learned Single-Judge who dismissed the petitions vide the common order dated 16.10.2017 passed in WP No. 70036/2017. During the pendency of these ICAs, other students in similar position to that of the Appellants filed writ petitions, as detailed in Schedule B, which were heard alongwith the connected ICAs. 3. The other set of Petitioners before the Court are private medical and dental colleges. The Petitions were filed by the Pakistan Association of Private Medical and Dental Institutes ("PAMI") and Shalimar Medical and Dental College, who have also challenged .the 2016 Regulations as they are aggrieved by the Centralized Admission Program ("CAP") prescribed thereunder. It is their case that 2016 Regulations require all private and medical dental colleges to submit to CAP on the basis of which Respondent University of Health Sciences ("UHS") will receive, all applications for admission in private medical and dental colleges, process the same on the basis of preferences given by the students and thereafter, finalize a merit list for the private medical and dental colleges. The colleges will then admit the students on the merit list. These Petitioners have called into question inter alia the vires and actions of the Respondents under the impugned 2016 Regulations on the touchstone of their fundamental right to do business under the Pakistan Medical and Dental Council Ordinance, 1962 ("1962 Ordinance") and it being contrary to the mandate of Article 18 of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"). It is also their case that in an earlier round of litigation when the vires of 2016 Regulations were challenged, several opportunities were given to PAMI and PMDC to resolve the issues with respect to CAP and other regulations on the basis whereof the parties entered into an understanding whereby the matter would be deemed pending and in the meantime, for the 2017-18 session private medical and dental colleges can admit students of their choice in terms. of the given criteria by PMDC. It is also their case that PMDC unilaterally disregarded and abandoned all points of negotiations and deliberations, which are documented in the minutes of meeting held on 18.9.2017 at PMDC Office, Islamabad and instead set out to enforce the mechanism prescribed under the 2016 Regulations. Private medical and dental colleges have commenced their admission process, however the UHS has also issued advertisements calling for applications for admission in private and medical dental colleges which has created absolute chaos for students as they are unsure of the manner in which admissions will progress this year. Submissions of the Appel/ants/Petitioners Counsel 4. Mr. Munawar-us-Salam argued on the vires of the 2016 Regulations on behalf of the Petitioners/Appellants. He argued that the 2016 Regulations have been framed by a Council constituted under the Pakistan Medical and Dental Council (Amendment) Ordinance, 2015 ("Amendment Ordinance") which ceased to exist on 25.4.2016 being the date of repeal of the Amendment Ordinance as per Article 89 of the Constitution. Therefore he argued that that the 2016 Regulations were framed and notified by a Council on 27.10.2016 which in fact did not exist on that date. He argued that even otherwise neither the Amendment Ordinance nor the purported Council established under the Amendment Ordinance stood approved by the Cabinet in terms of the constitutional requirement pronounced by the august Supreme Court of Pakistan in Mustafa Impex,
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Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808). He further argued that the implementation of 2016 Regulations for the year 2017-18 tantamounts to retroactive application of the 2016 Regulations which is violative of the Constitution. He explained that students had already completed one year of their A level and taken decisive steps towards preparing for admission in medical and dental colleges in terms of the 2013 Regulations. Hence a vested right has accrued in their favour and the Respondents cannot unilaterally, without any notice take away this vested right. He further explained that the 2016 Regulations brought about a sea change in the manner of admission and the criteria from the earlier 2013 Regulations, and were made applicable to the Appellants/Petitioners without any regard of the adverse implications it would have on students who had already taken positive steps in furtherance of their desire to participate in the admission process for medical and dental colleges. He argued that it is a case of legitimate expectation when a certain course will be followed for the purposes of admission in medical and dental colleges whereby it would be unfair if the competent authority were allowed to change that course midstream, as it would adversely affect the rights of the students. Learned counsel argued that mere existence of the 2016 Regulations does not take away the vested rights accrued in favour of the students once they had decided and invested their two years towards pursuing the career in medicine and dentistry. It was also argued that in terms of Article 154 of the Constitution read with Entry 2 of Part H of the Federal Legislative List in the Fourth Schedule of the Constitution, all regulations have to be approved by the Council of Common Interests ("CCI"). In this case the 2016 Regulations have not been routed through the CCI hence are ultra vires to the Constitution. 5. Mr. Khalid Ishaq argued that private medica and dental colleges are registered with the PMDC and affiliated with the UHS and as a term of their affiliation, they have the right to make their own admissions. He argued that PMDC without due consideration of the 1962 Ordinance or its authority mandated CAP under the 2016 Regulations whereby all rights of admission have been taken away from the private medical and dental colleges and placed in the hands of the UHS. He added that the PMDC can only set the conditions for admission under Section 33 of the 1962 Ordinance and cannot make admissions for the private colleges. This he argued was beyond the scope of authority given to PMDC under the 1962 Ordinance. He reiterated that if at all, a change is to be brought about in the admission policy, sufficient notice and time must be given to all stakeholders to ensure full participation in the rule making process and for smooth transition. He argued that after challenging the 2016 Regulations, negotiations took place with PMDC whe they conceded to the fact that 2016 Regulations will not apply to the 2017-18 admissions and that private colleges will continue with the admission policy as per practice under the 2013 Regulations until the matter is settled with PMDC over the future course for private medical and dental colleges as well as for students. He also argued that PMDC has gone beyond its mandate and is not competent under the Constitution or the 1962 Ordinance to control admissions of private medical and dental colleges. Submissions of the Respondents Counsel 6. Mr. Noshab A. Khan on behalf of the PMDC argued that the 2016 Regulations are in accordance with law and that permission from the Federal Government is not required in terms of Section 33 of the 1962 Ordinance. He argued that SAT II score has never been relevant for the purposes of admission on merit seats in medical and dental colleges. Private colleges were admitting students in contravention to the 2013 Regulations which necessitated the promulgation of the 2016 Regulations. He accepted that the waiver was given to the A level students last year on account of the pending litigation and on behalf of the Council offered the same waiver to the students before the Court meaning thereby that they could be given admission against the 15% reserved seats but not on the open merit seats. The learned counsel argued that the PMDC is the regulatory body which is responsible for the quality of education and training imparted in colleges in order to
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ensure that the quality of the medical profession is maintained and does not fall prey to substandard entry. He further argued that time and again students have challenged the eligibility criteria for entry in medical and dental colleges, however the Courts have never accepted such challenges as there is no vested right on the basis of which students can claim admission in medical and dental colleges. 7. Mr. Imran Muhammad Sarwar argued on behalf of Respondent UHS that the 2016 Regulations are binding on them and that in compliance thereof relevant steps were taken to ensure that the changes brought about in 2016 were duly implemented. It was also argued that the Appellant students who have participated in the entry test cannot now attempt to take the benefit of their SAT II result as they were well aware of the admission policy under the 2016 Regulations. Learned counsel explained that even under the 2013 Regulations, the MDCAT entry test was compulsory for all candidates seeking admission in the medical and dental colleges and it was only limited to the 15% seats reserved for foreign that the SAT II result was accepted. Hence the students have no case and they are bound by the decision of PMDC. Reliance was placed on Mst. Attiyya Bibi Khan and others v. Federation of Pakistan (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Mian Muhammad Afzal v. Province of Punjab and others (2004 SCMR 1570), Junaid lntzar v. UHS and others (2009 MLD 684) and Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islamabad and 22 others (2012 CLC 1071). So far as the case of PAMI and private medical and dental colleges is concerned, learned counsel argued that most of the private medical and dental colleges are affiliated with the UHS and since they are regulated by the PMDC they are obligated to comply with the regulations. of PMDC. Reliance was placed on the order of the august Supreme Court of Pakistan dated 11.10.2010 passed in Civil Petition No. 1720-L of 2010 to urge the point that the regulations issued by PMDC under the 1962 Ordinance are binding on all institutions vis-a-vis the mechanism for determining the merit of the candidates for admission in medical and dental colleges. He further argued that since the students before the Court have taken the MDCAT exam hence are not entitled to any relief from this Court. 8. With respect to the vires of the law, on behalf of the Federation Mr. Tahir Mehmood Ahmad Khokhar, DAG argued that the 1962 Ordinance was amended in 2012 and again in 2015. The amendments were never challenged, hence at this stage the Appellants/Petitioners are barred from challenging the same and the petitions are hit by laches. With respect to the argument that the approval of CCI is required it was argued that it is not obligatory for PMDC to place its regulations before the CCI for approval, as only policy matters are considered by the CCI and not legislation. It was argued that the final and conclusive forum for law making is Parliament which has validated the 1962 Ordinance alongwith the Amendment Ordinance and has delegated its legislative function to PMDC. It was also argued that the Federal Government has given its approval for the regulations vide its letter No. 146/2016-SO (PMDC) dated 25.10.2016, hence the 2016 Regulations are fully endorsed by the Federal Government. So far as reliance on Mustafa Impex (supra) is concerned, it was argued that it will have prospective effect and not retrospective effect. He stated that the Federal Government supported the view of PMDC that CAP will improve transparency and ensure fairness in the admission process and that admissions in private medical and dental colleges should be made as per PMDC regulations. In this regard, it was argued that no illegality has been made out and that the impugned order is in accordance with law. Facts 9. A Standing Committee of the Ministry of Health Services Regulations and Coordination held its meeting in June, 2016 wherein it decided to introduce a central induction system for admission in medical and dental colleges through a uniform admission policy, with a collective merit list for all private medical and dental colleges. Thereafter on 7.9.2016 the Council of the PMDC approved the 2016 Regulations in its 145th session. On 25.10.2016 the Ministry of National Health Services
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Regulation and Coordination vetted the draft regulations and approved the same stating therein that the Council is competent to make the regulations. On 27.10.2016, the 2016 Regulations were notified in the official gazette. On 28.10.2016 the admission boards as provided for under the 2016 Regulations were duly nominated. In the meantime, several-writ petitions were filed challenging the 2016 Regulations and vide order dated 19.12.2016 passed in WP No. 35526/2016 titled Ms. Mashal Salem v. PM&DC etc. alongwith other connected matters, the operation of the 2016 Regulations qua the admissions in medical and dental colleges, for the years 2016-17, in terms of the admission criteria contained therein were suspended. At the time students as well as private medical and dental colleges challenged the vices of the 2016 Regulations which brought about a number changes in the admission process from the 2013 Regulations. Amongst others, the main challenge was that the SAT !I score was no longer relevant for local students who have taken the A level exam as they were required to take the MDCAT exam for admission in medical and dental colleges. Private medical and dental colleges were also aggrieved by the 2016 Regulations on account of the CAP introduced which denied them the right to make admissions in their respective institutes and instead required the UHS to compile a merit list on the basis of which private medical and dental colleges could admit students. The Court directed the parties to attempt to resolve their disputes and ultimately on 4.8.2017 PMDC conceded to the demands of the petitioners and decided to apply the 2016 Regulations prospectively for the 2017-18 session. It was also stated by the Counsel for the medical and dental colleges that a deliberative process was underway with PMDC to iron out other grievances of PAMI with the 2016 Regulations. The Court disposed of the petitions allowing the private colleges to approach the Court in case their grievances were not redressed by PMDC. Therefore, as per the record, the 2016 Regulations were suspended from 19.12.2016 to 4.8.2017 with respect to admission in medical and dental colleges. In September 2017 writ petitions were filed by the Appellants challenging the 2016 Regulations essentially on the same grounds as raised in the earlier round of litigation, seeking the same relief. Ultimately the impugned order was passed on 16.10.2017 in WP No. 70036/2017 and connected cases. 10. The record also shows that several meetings were held between PMDC and PAMI to settle the dispute that has arisen consequent to the 2016 Regulations. As per the minutes of the meeting held on 18.9.2017 at the PMDC office at Islamabad a Memorandum of Understanding ("MOU") was prepared on the basis of which several changes were made to the central entry test and the process of admission. In terms thereof all private medical and dental colleges were allowed to advertise for admission after the declaration of the entry test result and grant admission as per the given criteria. It was also agreed that a private medical and dental college has the right to refuse admission to any candidate who does not have the financial ability to pay for the full course over the five years. A procedure to appeal against merit violation was set out and the parties also agreed to increase the tuition fees. The MOU was signed on 18.9.2017 by members of PMDC and PAMI. Issues 11. We have heard the counsel and find that the issues argued before us can be divided into two broad challenges: the Constitutional challenge and the challenge to the regulatory function of the PMDC. The three Constitutional grounds are; first that the Amendment Ordinance lapsed on 25.4.2016, hence the 1962 Ordinance as it stood before the amendment was revived and since there was no Council at the time, any actions taken by the purported new Council formed under the Amendment Ordinance are without any legal effect; second that the 2016 Regulations were not approved by the CCI and third that the requirements stipulated in the case Mustafa Impex (supra) have not been followed. The vires of the 2016 Regulations have also been challenged with reference to the regulatory function of PMDC such that PMDC has exceeded its given mandate under the 1962
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Ordinance and that the 2016 Regulations to the extent that it denies private medical and dental colleges the right to Admit students of their own choice is beyond the competence of PMDC and tantamounts to exercise of power beyond the prescribed authority under the 1962 Ordinance. Also in dispute is the applicability of the 2016 Regulations that is whether it is to be applied retroactively as the Appellants and the Petitioners have taken decisive steps since June 2015 in accordance with the 2013 Regulations and therefore cannot be made to comply with the changes in the 2016 Regulations, especially due to the MOU between PAMI and PMDC on the basis of which it was agreed that the 2016 Regulations would not be made applicable for the 2017-18 admission process. Opinion of the Court Vires of the 2016 Regulations 12. The 1962 Ordinance constituted a Council under Section 3 and an Executive Committee under Section 10 to exercise powers given under the law. In August 2012 through the Amendment Act 2012 certain amendments were made to the 1962 Ordinance including a substitution in Section 3 of the 1962 Ordinance dealing with the constitution and composition of the Council. The existing Council vide Section 36B of the Amendment Act 2012 was dissolved and the Executive Committee of the Council assumed the powers of the Council until a new Council was elected. On 26 August 2015 the Amendment Ordinance was promulgated under which a new Council was elected. In terms of Article 89 of the Constitution on 11.12.2015 an extension of 120 days was granted to the Amendment Ordinance. On 22.4.2016 the Amendment Ordinance was placed before the Senate, which resolved that the matter be placed before the CC! which is the competent forum to approve the regulations, This was never done and the Amendment Ordinance lapsed on 25.4 2016. On 6.10.2016 as per the agenda, a joint session of the National Assembly was required to consider the Amendment Ordinance, however the matter was never taken up. Consequently, it is the case of the Appellants/Petitioners that the new Council, as constituted under the Amendment Ordinance did not exist in October 2016 meaning thereby that the 2016 Regulations could not have been framed and notified on 27.10.2016 by that Council. In support of his contentions, learned counsel placed reliance on the cases "Syed Fayyaz Hussain Qadri, Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others" (PLD 1972 Lah. 316), Government of Punjab through Secretary, Home Department v. Ziaullah Khan & two others" (1992 SCMR 602), "Muhammad Naeem alias Naeema v. The State" (1992 SCMR 1617), Muhammad Arif & another v. The State & another" (1993 SCMR 1589), "Peer Sabir Shah v. Federation of Pakistan and others" (PLD 1994 SC 738), Federation of Pakistan and others v. M. Nawaz Khokhar and others (PL.D 2000 SC 26) and Air League. of PIAC Employees through President v. Federation of Pakistan M10 Labour and Manpower Division, Islamabad and others (2011 SCMR 1254). 13. The applicable provision of the Constitution is reproduced hereunder.--- Article 89 (1) The President may, except when the (Senate or) National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require. (2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of (Majlis-e-Shoora Parliament) and shall be subject to like restrictions as the power of (Majlis-e- Shoora Parliament) to make law, but every such Ordinance--- (a) shall be laid--- (i) before the National Assembly if it (contains provisions dealing with all or any of the matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of (one hundred and twenty days) from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended
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period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided further that extension for further period may be made only once. (ii) before both Houses if it (does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of (one hundred and twenty days) from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House, upon the passing of that resolution: (Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before…
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