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Petitioner: AHMAD ABDULLAH and 62 others VS Respondent: GOVERNMENT OF THE PUNJAB and 3 others
Court Name: Lahore High Court Judge(s): Syed Jamshed Ali, Raja Muhammad Sabir, Tasaddaq Hussain Jillani Title: AHMAD ABDULLAH and 62 others vs GOVERNMENT OF THE PUNJAB and 3 others Case No.: Writ Petition No,7281 of 2003 Date of Judgment:2003-07-16 Reported As: PLD 2003 Lahore 752 Result: Order accordingly
JUDGMENT
JUDGMENT TASSADUQ HUSSAIN JILANI. J.---This judgment shall dispose of the following Constitutional petitions as common questions of law and fact are involved. These petitions can be placed in two categories i,e, those which have been filed by the students of medical institutions/colleges which stood already affiliated with University of the Punjab or Bahauddin Zakariya University, Multan prior to the promulgation of University of Health Sciences Ordinance, 2002 and petitions filed by students or colleges in the private sector which were affiliated with the University of the Punjab after the promulgation of the UHS Ordinance. These petitions are as follows:-- CATEGORY-I S.No,Case No, Who filed it 1. W.P. No.7281/2003Filed by students of Allama Iqbal Medical College, Lahore studying in the Final Year of M.B.,B.S. 2. W.P. No.8034/2003Filed by 2nd year, 3rd and 4th year students of BDS in' De Mongtmorency College of Dentistry, Lahore. 3. W.P. No.8636/2003Filed by 4th year students of Allama Iqbal Medical College, Lahore. 4. W.P. No.2643/2003Filed by a student of M.B.,B.S. final year in-the Nishter Medical College, Multan. 5. W.P. No.9717/2003 Filed by students of 4year M.B.,B.S. in Nishter Medical College, Multan (fixed and heard on 9-7-2003). 6. W.P. No.8389/2003Filed by students of final year and 4th year M.B.,B.S. studying in Allama Iqbal Medical College, Lahore. 7. W.P. No.9035/2003Filed by Final year students of M.B.,B.S. in Nishter Medical College, Multan. CATEGORY-II 8 W.P.No.5594/2003 Filed by students of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. 9 W.P. No.6309/2003 Filed by Lahore Medical and Dental College, Lahore. 10 W.P. No.7407/2003 Filed by the students of the old first year BDS of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. 11 W.P. No.8193/2003 Filed by final year M.B.,B.S. students of Punjab Medical College, Lahore. 12 W.P. No.6310/2003 Filed by a final year student of Lahore Medical and Dental College, Lahore. 13 W.P. No.7343/2003 Filed by Lahore Medical and Dental College, Lahore. 14 W.P. No.8755/2003 Filed by students of 1st year, 2nd year, 3rd and 4th year students of M.B.,B.S. in Punjab-Medical College, Faisalabad.th
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15 W.P. No.5565/2003 Filed by Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. Petitioner has also challenged the Notification dated 26-6-2003 issued by the Government of the Punjab exempting King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore from the purview of University of Health Sciences Ordinance, 2002. 2. Through these Constitutional petitions petitioners have challenged the vires of the University of Heath Sciences Ordinance, 2002 (Ordinance No,LVIII of 2002 to be hereinafter called the UHS Ordinance) which has established a University of Health Sciences to be housed in the premises of Sheikh Zayed Hospital, Lahore with the declared objectives and powers, inter alia, of imparting Instructions in research, prescribe courses of studies in medical institutions to be affiliated with it, hold examinations, confer degrees and attend to other matters enumerated in section 4 of the UHS Ordinance. After going through the petitions, the written statements filed and after initial hearing of petitioners' learned counsel, following issues cropped up for consideration:-- (i) Whether the provisions regarding recognition and affiliation stipulated in the University of Health Sciences Ordinance are violative of the Pakistan Medical and Dental Council Ordinance, 1962 (No,XXXII of 1962). If so, to what effect? (ii) Whether the letter (dated 2-12-2002) issued by the Vice-Chancellor, University of Health Sciences is violative of the spirit of UHS Ordinance particularly with reference to section 37 of the Ordinance? (iii) Whether the provisions relating to affiliation are violative of fundamental rights provisions of the Constitution of Islamic Republic of Pakistan? (iv) Whether the petitioners have a right to be examined by the University of Punjab in view of the principle of legitimate expectation? (v) Whether the respondents are estopped to direct compulsory affiliation of Government Medical Colleges of Punjab notwithstanding the earlier affiliation contemplated in the Prospectus of the Government Medical Colleges in the Punjab? (vi) Whether the letter issued by the Vice-Chancellor of University of Health Sciences directing compulsory affiliation of all medical colleges in the Province of Punjab without complying with the conditions stipulated in the Ordinance and at a stage when the petitioners are in the final phase of their professional degree is in accord with equity and standards of reasonableness as laid down by the august Supreme Court with regard to the exercise of administrative authority? (vii) Whether section 37 of the University of Health Sciences Ordinance could have retrospective application in the facts and circumstances of this case? (viii)Whether the concept of compulsory disaffiliation contained in the University of Health Sciences Ordinance pursuant to which the impugned letter was issued by the Vice-Chancellor is violative of the University of Punjab Act and the Calendar framed thereunder. If so, to what effect? 3. Mr.Aitzaz Ahsan, learned counsel for petitioners in Writ Petition No,7281 of 2003 submitted as under:-- (i) That the petitioners have studied three to four years in pursuing the' M.B.,B.S. Course, they have cleared their 1st, 2nd and 3rd years Professional Examinations in the hope that their final year examination shall be conducted and Degree shall be awarded by the University of the Punjab which has international recognition. The said University has a history of academic excellence stretching over more than a century. To deprive these students, the honour of appearing in the final M.B.,B.S. Professional Examination from the said University, would be unfair and against the canons of equity. He added that the petitioners would not be content merely acquiring the M.B.,B.S. Degree but they would like to pursue their higher education abroad and from this Province only the University of the Punjab has recognition. He added that to appear for ECMFG Examination (which is a universally recognized Degree in Medicine), a student must have at least four credit years in attendance at a medical school that is listed in the International Medical Educational Directory. The registration of General Medical Council also requires a degree from the University of the Punjab and the newly created University of Health Sciences does not enjoy such status. The net effect, he added, would be, that with the M.B.,B.S. Degree awarded by the University of Health Sciences, they would not be able to get admission in a wall-recognized University abroad. (ii) That the letter dated 2-12-2002 of the Vice-Chancellor of the University of Health Sciences, Lahore to the Medical colleges/institutions in the Punjab, insofar as it declares those colleges to stand affiliated with the University of the Health Sciences in the purported exercise of powers under the Ordinance is ultra vires of the Ordinance itself. The impugned letter issued by the Vice-Chancellor reflects an undue haste which is against the scheme of the new Ordinance. (iii) That the newly promulgated Ordinance lays down an elaborate procedure for affiliation of a medical institution and the Vice-Chancellor neither has the authority to proceed in derogation to those mandatory provisions nor can he pre- erupt the competent body under the Ordinance to perform its function in matters of affiliation. The law does not countenance automatic affiliation of medical institution as is sought r be achieved by the impugned letter. Section 34(iv) read with section 57 and Statutes of University of the Health Sciences Ordinance, inter alia, contemplate composition of an Affiliation Committee which has to examine/deal with the issues of affiliation and disaffiliation for ultimate consideration by the Syndicate.
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(v) That recognition of a medical degree is governed by section 11 of the Pakistan Medical and Dental Council Ordinance, 1962 and the Schedule made therein whereas recognition of a degree awarding institution is governed by section 22-A of the said Ordinance. The afore-referred two provisions relate to two different situations and have respective procedures. In the case of the respondent University none of those procedures have been followed. (vi) That the matters of recognition of medical institutions or the Degree/qualification which those institutions may award, fall within the exclusive jurisdiction of Pakistan Medical and Dental Council established under the Pakistan Medical and Dental Council Ordinance, 1962. The manner in which the respondent-University has obtained recognition from the Pakistan Medical and Dental Council i,e, it was granted the same day when it was applied, indicates that respondent's application was never considered by the Council and the letter of recognition was issued by Secretary of the said Council who had no authority to issue that. The Council while considering the application has to see, inter alia, the facilities available in the institution which seeks recognition, the faculty of the said institution, the Campus and other essential facilities. All these conditionality's, it was contended, are non-existent in case of the respondent-University; (vii) That the 'curriculum', 'medical' and 'professional education' are subjects in the Concurrent Legislative List contained in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan,1973. Both the Federal and Provincial Legislature can legislate on subjects listed in Concurrent List. But in case of a conflict the provisions of Federal Statute have to prevail in view of Article 143 of the Constitution. (viii) That the departmental construction of the Ordinance shows that it has to have prospective 'effect and it cannot be made applicable retrospectively so as to compulsorily affiliate the existing medical institutions. (ix) That the exemption of the King Edward Medical College, Fatima Jinnah Medical College, Lahore and Army Medical College, Rawalpindi from the purview of the University of Health Sciences Ordinance, shows that the Ordinance is being selectively applied and that the petitioners' colleges have been discriminated against. The selective application of law is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. (x) That 'various provisions of the Ordinance and the letter issued by the Vice-Chancellor under the purported exercise of the said Ordinance are violative of Articles 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. The right to life includes right to education and seek higher education. The right to choose a profession includes the right to have a professional University of choice so that the citizens can pursue higher studies to ensure career advancement. When the petitioners were granted admission in the medical colleges, the Prospectus issued by the Government of the Punjab for admission in the medical colleges in the Punjab inter alia specifically- provided that on completion of study they shall be granted a Degree to be issued by the University of the Punjab. This vested right, it was contended, cannot be withdrawn in view of settled principle of locus penitential. In support of the submissions made learned counsel relied on Pakistan v. Hussain Ali PLD 1960 Supreme Court (Pak.) 310, Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and 'another 1997 SCMR 15 and Mst. Attiya Bibi Khan and others v. Federation of Pakistan through Secretary of Educator Ministry of Education, Civil Secretariat, Islamabad and others 2001 SCMR 1161. (At the end Mr. Aitzaz Ahsan voiced petitioners' apprehension that t, they might be victimized for having filed these petitions. Mr. Abdul Hafeez Pirzada immediately responded that the fears are ill-founded and assured that the respondent-University shall always proceed with institutional and parental approach. The Court observed that the statement made by Mr. Pirzada should be enough to allay the apprehension of the students). 4. Learned counsel for the petitioners in Writ Petitions Nos.8636 of 2003 and 8389 of 2003 (Mr. Ijaz Ahmad Chadhar, Advocate) adopted the arguments of Mr. Aitzaz Ahsan, Advocate. 5. Learned counsel for the petitioners in Writ Petition No,8193 of 2002 (Mr. Sehram Sarwar, Advocate) and in Writ Petitions Nos.8034, 7343, 6309 and 6310 of 2003 (Mr. Iqbal Mehmood Awan, Advocate), also adopted the arguments of Ch. Aitzaz Ahsan, Advocate but made following additional submissions:-- (i) That three Ordinances were issued in the year 2002 besides the University of Health Sciences Ordinance through which three Medical Universities have been created. Those Ordinances are Ordinance No,LXXVI of 2002 (PLD 2003 Central Statutes Supplement 216) whereby Riphah International University was created at Islamabad and Ordinance No,LXXXVIII of 2002 establishing Foundation University at Islamabad (PLD 2003 Central Statutes Supplement 310). The University of Health Sciences, therefore, cannot claim exclusivity. De' Mongtmorency College is a very old Institution which was created in the year 1929, it was affiliated with the University of the Punjab in 1934 where most of the subjects are taught in the Kind Edward Medical College, Lahore. Compulsory affiliation of petitioner's College (De' Mongtmorency College) and the exemption of King Edward Medical College, Lahore would create an anomalous situation. (ii) That the Academic Council of the King Edward Medical College had passed a unanimous resolution opposing the affiliation of the College with the University of Health Sciences. 6. Mr. Abid Hassan Minto, Advocate has appeared as an amicus curiae submitted as under:-- (i) That the Ordinance has not been enacted in the manner such laws are mostly made. It reflects deficiency and contradictions. For instance no date of the establishment of the University is given in the Ordinance, it stipulates creation of various bodies but there is nothing to indicate whether those bodies have been created i,e, the Board of
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Governors, Syndicate, Executive Committee, Registrar and Controller. Unless the University and its bodies are established, the University cannot function not to speak of issuing directions for the affiliation of other colleges. (ii) That in absence of proper establishment of the University in terms of the Ordinance, a Vice-Chancellor designate cannot exercise the powers vested in the office of the Vice-Chancellor. (iii) That in terms of section 5 of the University of Health Sciences Ordinance, the respondent-University can exercise powers within the limits of the Province of the Punjab and in respect of "the constituent colleges" only. The expression "constituent colleges" has been defined in section 2(x) which means "a college maintained and administered by the university". The medical colleges which are sought to be affiliated through the Ordinance or impugned letter issued by the Vice-Chancellor are admittedly not the "constituent colleges" of this newly created University and, therefore, it cannot direct them to affiliate with it. The impugned letter is, therefore, ultra vires of the Ordinance itself. (iv) The University under subsection (2) of section 5 of the Ordinance can admit to its privileges, a medical institution within territorial limits of another University provided the said University consents to it and the Government also accords sanction. In absence of these two conditionalities, no institute or a college can be admitted to the privileges of this newly created University. (v) That under section 7 (of the University of Health Sciences Ordinance), the University has to prescribe various courses and curriculum before it assumes status of a degree awarding institution. Admittedly, no such courses or curriculum have been prescribed by the University so far. The college and the teaching institutions which the respondent-University wishes to affiliate with itself, already stood affiliated with the established Universities in Punjab. Where there are more than two Universities, the choice has to be that of the student. At the time of their admission the students were given to understand that they were affiliated with a particular University and after successful completion of their course, they will be awarded degree of the said. University. This invitation cannot be withdrawn, (vi) That sections 12 and 13 of the Ordinance deal with the office of the Vice-Chancellor and his powers. These sections do not authorize him to direct affiliation of a college or to grant any privilege to it. The emergency powers stipulated in subsection (2) of section 13 of the Ordinance can be exercised by the Vice-Chancellor only in case of the existence of emergency as an objective reality and not as per his subjective perception. This, therefore, would require him to give reasons while exercising such an emergent power. In the impugned letter issued by the Vice-Chancellor, neither any reference has been made to the existence of an emergency nor he has given any reasons for issuing that letter. Even otherwise, this power can be exercised with regard to only those matters which fall within the domain of the Board of Governors under the Ordinance as after passing an order under this provision, the Vice-Chancellor has to refer the matter to the Board for approval in terms of subsection_(2) of section 13 of the Ordinance. The question of affiliation or disaffiliation of Medical institutions has to be decided by the Syndicate and the Vice-Chancellor could not have issued the letter. (vii) That the Ordinance has created a University of Health Sciences, has spelt out its jurisdiction in various provisions but it has not abolished the other Universities and it does not contemplate exclusion of other bodies engaged in medical education and research. That is why the question of affiliation has been left to the institutions and the expression "seeking affiliation" has been used in section 37(2) of the UHS Ordinance. The law has been created for advancement of medical education which cannot be achieved by excluding other institutions and universities. (viii) That the elaborate procedure laid down in the Ordinance for affiliation has a rationale behind it i,e, they were conscious of the fact that at the time of the promulgation of the Ordinance, a great majority of students would be pursuing their respective courses and they would have a legitimate expectancy of pursuing a professional degree to be granted by a University to which they stood affiliated at the time of their admission. Any forcible disaffiliation from one University and affiliation with the respondent-University would be violative of their fundamental right to pursue a profession of choice. 7. Mr. Uzair Karamat Bhandari, Advocate appeared for petitioners in rebuttal (in W.P. No,7281 of 2003), made following submissions:-- (i) That the principle of legitimate expectation is being canvassed not against the Legislature but with the assumption that the concept of affiliation in terms of section 37 of University of Health Sciences Ordinance is, not mandatory, but discretionary and petitioners having long affiliation with University of the Punjab had legitimate expectation that they would be awarded degree by the latter. The understanding given should be honoured. (ii) That the Vice-Chancellor of University of Health Sciences could not direct affiliation under the emergency power granted to him in terms of section 13(2) of the University of Health Sciences Ordinance. He placed reliance on Rehmatullah v. University of the Punjab and others PLD 1982 Lah. 411, University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lah. 729, Muhammad Nadeem etc. v. University of Engineering and Technology NLR 1999 Civil 83, R v. North and East Devon HA (2000) 3 All ER. 8. Mr. Sulman Akram Raja, learned counsel for petitioners in W.P.Nos.5565 of 2003, 5594 of 2003 and 7470 of 2003 has made following submissions:- (i) That a combined reading of sections 5 and 37 of the University of Health Sciences Ordinance would indicate that an unguided power to the Government has been given and it has created an arbitrary scheme. These provisions of the
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Ordinance are, therefore, ex facie, discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The arbitrary and selective application of these provisions is manifest from the issuance of notification dated 26-6-2003 vide which the King Edward Medical, Lahore and Fatima Jinnah Medical College, Lahore have been exempted by the Government of the Punjab from the purview of the afore-referred Ordinance. These provisions, therefore, merit to be struck down in view of the law laid down in Waris Meah v. The State PI,D 1957 Supreme Court 157, Khawaja Muhammad Safdar v. Province of West Pakistan PLD 1964 Lahore 718 and Shaukat Ali Mian v. The Federation of Pakistan 1999 CLC 607. (ii) That the notification dated 26-6-2003 issued by the Governor of the Punjab in the purported exercise of powers under section 5(1) of the Ordinance is ultra wires of the law itself as such a power could only be exercised with respect to a "constituent college" and the institutions qua which the power has been exercised, admittedly, are not "constituent colleges" in terms of section 2, clause (18) of the University of Health Sciences Ordinance. (iii) That affiliation of a College with any University is' always a bilateral act, the various provisions of the Ordinance and subsection (2) of section 37 itself would indicate that the expression "shall affiliate" has to be read as "may seek affiliation" and any other interpretation would make the provision arbitrary and, therefore, hit by Article 25 of the Constitution. (iv) That the petitioner-College was already affiliated with the University of the Punjab and the letter issued by its Vice- Chancellor withdrawing the affiliation is neither backed by any provision of the University of the Punjab Act nor by the University of the Health Sciences Ordinance and is, therefore, not sustainable in law. (v) That the petitioner-College had to pay 1.4 million as affiliation fee and if the impugned letter is upheld, the Court may direct the University of the Punjab to refund the afore-referred affiliation fee. 9. Mr. Ahmad Farooq Malik, learned counsel for the petitioners in W.P. No,9035 of 2003 adopted the arguments of Ch. Aitzaz Ahsan, Advocate. In W.P. No,8755 of 2003 Mr.Mehmood A. Sheikh, Advocatewho represents four students of Punjab Medical College, Faisalabad, the vires of the letter issued by the Vice-Chancellor of the University of Health Sciences have been challenged on the grounds that the latter had no power under the law to issue such a letter; that the Ordinance does not envisage retrospective application; that the Ordinance insofar as it interferes with the right to life and profession would be hit by Articles 9 and 18 of the Constitution of Islamic Republic of Pakistan, 1973, that section 37(1) is not mandatory and any other interpretation would offend the fundamental rights provision of the Constitution. Mr. Salman Mansoor, Advocate for petitioner in W.P. No,2643 of 2003 submitted written arguments mostly in line with the arguments of Mr. Aitzaz Ahsan, Advocate. 10. Syed Mansoor Ali Shah, learned amicus curiae made following submissions:- (i) That section 37 of the University of Health Sciences Ordinances is ultra vires of the scheme of the Ordinance insofar as it mandates that all medical institutions "shall affiliate with the University". The entire scheme of the Ordinance, according to him, stipulates a voluntary act on the part of the college seeking affiliation. Section 37(1) contemplates a "period", "such terms and conditions as may be prescribed" and the word "prescribed" in terms of section 2 means "prescribed by statutes, regulations or rules". Clause 11 of the Statute (of the First Schedule to the Ordinance in question) describes the composition of the Affiliation Committee. Clause 12 of the said Statute mandates that the Affiliation Committee shall advise the Syndicate, after inspecting the institute "seeking affiliation" and section 27 of the Ordinance pertains to the powers and duties of the Syndicate which, inter alia, include the power of affiliation or disaffiliation of medical institutions. The…
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