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Petitioner: OMER ISMAIL KHALID, etc.s VS Respondent: PAKISTAN MEDICAL & DENTAL COUNCIL, etc
Court Name: Islamabad High Court Judge(s): Athar Minallah Title: OMER ISMAIL KHALID, etc.s vs PAKISTAN MEDICAL & DENTAL COUNCIL, etc. Case No.: W.P. No, 3944 of 2013 Date of Judgment:2014-12-09 Reported As: PLJ 2015 Islamabad 108 Result: Petition dismissed
JUDGMENT
JUDGMENT "Wherever the art of Medicine is loved, there is also a love of Humanity" - Hippocrates. 2. The petitioners, all young Pakistani citizens, pursued their education in the field of medicine and graduated from the Xi'an Jiaotong University, Peoples Republic of China (hereinafter referred to as the 'Foreign University). In a nutshell, the grievance of the petitioners is, that the Foreign University was recognised and notified in the Second Schedule of the Pakistan Medical and Dental Council Ordinance, 1962 (hereinafter referred to as the "Ordinance") in 2009. Before seeking admission in the Foreign University, some of the petitioners had sought No Objection Certificate from the Pakistan Medical & Dental Council (hereinafter referred to as the 'Council), which was issued by the Registrar. Subsequently, the Registrar, vide letter dated 08-10-2011 informed the President of the Foreign University that pursuant to the decision taken by the Council in its 118th meeting held on 03-04-2011, qualifying the examinations taken by the National Examination Board (hereinafter referred to as the NEB examination) shall be a condition for registration under the Pakistan Medical & Dental Council Ordinance, 1962 (hereinafter referred to as the 'Ordinance), except in case of those students who were admitted before 03-04-2011. 3. The petitioners, admittedly, were enrolled, in the Foreign University prior to 03-04-2011 and graduated in 2013. Pursuant to the graduation and qualifications granted by the Foreign University, they applied for their respective Registration under the Ordinance. The applications of some of the petitioners were entertained but before taking a decision, they were informed that they were required to take the NEB examination as it was a mandatory condition for assessing whether they possessed sufficient knowledge and skill. In case of others, the applications were not entertained on the same ground. The petitioners have, therefore, invoked the jurisdiction of this Court under
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Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter referred to as the "Constitution'), challenging the refusal to register them under the provisions of the Ordinance and requiring them to take the NEB examination. They allege violation of the principles of legitimate expectation, locus poenitentiae and thus infringement of their fundamental rights. It has further been prayed to declare that the requirement of NEB examination is applicable to such students who were enrolled in the Foreign University after 03-04-2011, while the petitioners are exempt. The petitioners, having obtained and holding qualifications from the Foreign University, claim a vested right to be registered under the Ordinance without taking the NEB examinations. 4. Mr. Munir Paracha, ASC, appeared for those graduates who were impleaded as petitioners. He has contended that the insertion of Section 15 in the Ordinance, through the Medical and Dental Council (Amendment) Act XIX of 2012 (hereinafter referred to as the Amendment Act) cannot operate retrospectively and destroy the substantive rights which were created in favour of the petitioners prior to the amendment; Section 15, as inserted through the Amendment Act, is substantive in nature and, therefore, its effect will be prospective; even procedural amendment is prospective, if a retrospective operation will cause inconvenience or injustice; in support, he has placed reliance on a passage from the Construction of Statutes by Crawford, 1940 Edition, Page- 581, 'Adnan Afzal vs. Capt Sher Afzal' [P.L.D. 1969 S.C. 187], Mirza Mehmood Sharif Beg and 4 others vs. Claims Commissioner, Pakistan, Lahore and another' [P.L.D. 1973 Lahore 1141, 'Ghulam Haider vs. Mst Raj Bhari and 4 others' [P.L.D. 1973 Lahore 372] 'Pakistan Steel Mills Corporation vs. Muhammad Azam Katper and others' [2002 S.C.M.R. 1023], 'Khalid Qureshi and five others vs. United Bank Limited I.I. Chundrigar Road, Karachi' [2001 S.C.M.R. 103], 'Water & Power Development Authority Lahore through Chairman and others vs. Haji 'Abdul Aziz and others' [2012 S.C.M.R. 965], Senior Member Bar and others vs. Sardar Bakhsh Bhutta [2012 S.C.M.R. 864]; the rights had accrued in favour of the petitioners when they were enrolled in the Foreign University, and not when they were granted qualifications; the NEB examination is in three stages, each taking four to six months, and in case the candidate does not succeed at any stage, he or she is not entitled to reappear in the next stage; the fee for taking the examinations is a financial burden which the petitioners cannot afford; the petitioners have been treated differently as compared to those students who had graduated from the same University before 2009. In 2009 the Foreign University was not included in the Second Schedule, and as such was not recognized, yet the students who had graduated prior to the recognition were not required to take the NEB examination and this, therefore, raises the plea of discrimination; the Council, through its Registrar, had informed the Foreign University regarding the decision taken in the 118th Meeting held on 03-04-2011 to the effect that students enrolled prior to 03-04-2011 will not be required to take the NEB examinations; the students had obtained NOCs from the Registrar after the inclusion of the Foreign University in the Second Schedule of the Ordinance: the petitioners were induced, and accordingly acted on the representations made by the Registrar on behalf of the Council and, therefore, the Council is estopped on the basis of the doctrine of promissory estoppel from requiring the petitioners to take the NEB examination. 5. Barrister Masroor Shah, ASC, appeared for the other petitioners and argued that the petitioners sought admissions based on the representations made by the Council, and they were enrolled in the Foreign University before 03-04-2011, and thus were exempt from taking the NEB examination in the light of the letter addressed to the President of the Foreign University by the Registrar of the Council; the Amendment Act cannot be given retrospective effect; the letter of the Registrar granting exemption could not have been withdrawn by the Council on the principle of locus poenitentiae; the students who had graduated from the Foreign University prior to the insertion of Section 15, through the Amendment Act, were registered without any examination and, therefore, the present petitioners are being treated differently; reliance has been placed on Article 12 of the Constitution, Section 5 of the General Clauses Act, 1897, 'Md. Sarwar Jan and others vs. Mukhtar
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Ahmed and others' (P.L.D. 2012 S.C. 217], 'Muhammad Tariq Badr and another us. National Bank of Pakistan and others' [2013 S.C.M.R. 314], 'Muhammad Farooq through Legal Heirs and others vs. Muhammad Hussain and others" [2013 SCMR 225], 'Muhammad Ayyub vs. The State' [2014 PCr.LJ 178], 'Ch. Aamir Ali vs. The State' [2002 Y.L.R. 1902); Section 21 of the General Clauses Act, 1897 is attracted in the present case and reliance on 'Director General Ordinance Services, General Headquarters, Rawalpindi vs. Muhammad Abdul Latif] [2003 S.C.M.R. 410], 'Corporation through Chairman us. Inayat Rasool' [2003 PLC (C.S.) 333], 'Muhammad Shahab vs. Government of KPK through Secretary Health Peshawar & 2 others' [2013 P.LC. (C.S.) 712]. 6. On the other hand, Malik Qamar Afzal, ASC, appearing on behalf of the respondent, contends that the Amendment Act or the Ordinance prior to the amendments, does not contain, any provision creating a right to be registered under the Ordinance on the basis of enrolment in a University; the Amendment Act inserted Section 15, which has made it mandatory that any person who possesses qualifications from any foreign University, is required to take the examinations; the Registrar was not vested with any authority or had the jurisdiction to grant exemption vide letter dated 08-10-2011 nor such decision was taken in the meeting of the Council i,e, 118th Meeting; the letter dated 08-10- 2011 was withdrawn by the Council, and in any case, a letter written by the Registrar can neither supersede nor prevail over the statutory provisions as inserted through the Amendment Act; all persons who have obtained their qualifications from any foreign University, whether prior or after the Amendment Act, are required to take the examinations and, therefore, there is no discrimination; it is an admitted position that the petitioners had not obtained their qualifications prior to the Amendment Act taking effect and, therefore, they cannot claim a right on the basis of the principle of promissory estoppel or locus poenitentiae. 7. The learned counsels were heard at length and after perusing the relevant record with their able assistance, the opinion of this Court is as follows. 8. Based on the arguments of the learned counsels, the questions which require consideration by this Court are, firstly, whether the No Objection Certificate (hereinafter referred to as the 'NOC) and the letter dated 08-10-2011, addressed to the President of the Foreign University by the Registrar, had created a right in favour medical or dental qualification, as defined in Regulation 2(iv) and (xvii) respectively. It may be pointed out that 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 exami ;lotion for being provisionally registered under Section 23 of the Ordinance. It is emphasised that the entitlement was on the basis of 'acquiring' a medical qualification and not 'admission' or enrolment. ' 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. In case of institutions included in the Second Schedule, pre-requisite for being entitled to be provisionally registered was on the basis of 'acquiring' the medical qualification. Mere admission or enrolment in a recognised foreign medical institution never created a vested right to provisional or full registration as a medical practitioner under the Ordinance. After the Amendment Act ' The Amendment Act, which received the assent of the President on 10-08-2012, and was notified in the official gazette on 13.08.2012, made fundamental changes in the law. Sections 11 to Section 15 were omitted/substituted and instead new provisions were inserted, which incorporated in the statute the concept and procedure for registration of students qualifying from educational
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institutions outside Pakistan, hitherto provided in the Practitioners Regulations. The Second Schedule of the 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 constituted by the Council, the Council is satisfied that a person holding a qualification granted by a medical institution outside Pakistan, is possessed of sufficient knowledge and skill to be registered as practitioner for, the purpose of this Ordinance, it may recommend to the Federal Government to issue a notification in favour of such person 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." 10. It is obvious from the above provision that the legislative intent is to ensure that a person, holding medical qualifications from a foreign institution, registered under the Ordinance, must possess sufficient "knowledge and skill", to the satisfaction of the Council. As discussed earlier, the position which existed prior to the Amendment Act also did not give any right for registration on the basis of enrolment or admission. Whether a person, holding a qualification granted by a medical institution outside Pakistan, possesses sufficient knowledge and skill to be registered as a medical practitioner for the purposes of the Ordinance, is assessed pursuant to an examination by a Board constituted by the Council. Based on the performance of such a person in the examinations, the Council makes recommendations to the Federal Government to issue a notification in favour of such person to be registered under the Ordinance. After the issuance of the notification, the Council registers the qualification possessed by entering the name of the notified person and his qualifications, in a register maintained in case of qualifications granted by a medical institution outside Pakistan. 11. Holding a qualification from a medical institution outside Pakistan, qualifying the NEB examination so that the Council is satisfied that the person possesses sufficient "knowledge and skill" and issuance of a notification by the Federal Government are the mandatory pre-requisites to be registered under the Ordinance. 12. In the light of the above, the argument raised by the learned counsel for the petitioners that the provisions of Section 15, as inserted by the Amendment Act, are prospective and cannot have a retrospective operation in case of the petitioners is without any force nor of any relevance. It is an admitted fact that at the time when the amendments came into effect through the Amendment Act, the petitioners had not acquired and did not hold or possess the qualifications granted by the Foreign University, and merely on the basis of enrolment or admission, no right had accrued. The petitioners graduated and were granted qualifications by the Foreign University after the Amendment Act had come into force. Section 15 of the Ordinance, as it stands today, makes it mandatory for every person holding a qualification granted by a medical institution outside Pakistan to take the examination by a Board constituted by the Council, so that the latter is satisfied that he or she possesses sufficient knowledge and skill to be registered as a practitioner for the purposes of the Ordinance. The petitioners, therefore, cannot claim registration under the Ordinance as no right was created either prior or after the promulgation of the Amendment Act. 13. The next issue to consider is the effect of the NOC and the letter addressed by the Registrar of the Council to the President of the Foreign University, dated 08-1.0-2011, which purportedly was issued in the light of the decision taken by the Council in its 118th Meeting held on 03-04-2011. Firstly, it is pertinent to note that this meeting was held prior to the promulgation of the Amendment Act,
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and after the framing of the Practitioners Regulations, and secondly, it approved the minutes of the National Examination Board Committee meeting held on 14-03-2011, recorded as Item No, 22 of the Minutes. The learned counsel for the petitioners have not been able to point out any decision taken by the NEB, or the Council, which approved the Minutes of the NEB in the 118th Meeting dated 03-04- 2011, that the students enrolled or who had sought admission prior to 03-04.2011 in an institution outside Pakistan and notified under the Second Schedule, were exempt from taking the NEB examination. Moreover, in the 135th Session held on 11-09-2013, the Council approved the recommendations of the Executive Committee to the effect that all graduates, or persons having obtained medical qualifications from a medical institution outside Pakistan after July-2011, shall be required to take the NEB examinations. The letter, dated 08-10-2011, addressed by the Registrar to the President of the Foreign University, was also withdrawn as not being in consonance with the decision taken by the Council in its 118th Meeting dated 03-04-2011. 14. It may be noted that the Registrar, who is appointed under Section 9 of the Ordinance, is not vested with any power of the Council or the Executive Committee, nor can he exercise such powers. The Registrar had acted on his own as there is no decision of the Council, let alone in the 118th Meeting dated 03-04-2011, to grant exemption to students enrolled in a Foreign University from taking the NEB examinations. The Registrar's letter, dated 08-10-2011 was, therefore, not a letter of the Council, and was issued by the Registrar without having authority or jurisdiction. Moreover, assuming that the Council had taken such a decision, it would have been in violation of the provisions of the Ordinance as admission or enrolment did not create any right. The letter, being void and without jurisdiction, cannot give rise to any right, nor could it have been relied upon by the petitioners for building a case on the principles of promissory estoppel or locus poenitentiae. As far as the NOC obtained by some students is concerned, as already noted, that was a requirement under the Practitioners Regulations for students desiring to seek admission in a medical institution other than included in the Second Schedule and Regulation 46, particularly provided that issuance of such NOC did not create any right. As far as the petitioners are concerned, mere issuance of NOC did not give rise to a right to be registered. It, however, is observed that the Council was negligent in allowing its Registrar to write a letter to the Foreign University by communicating a purported G decision which was never taken in the 118th Meeting of the Council held on 03-04-2011. 15. The reliance of the learned counsels on the principle of promissory estoppel is misplaced and not relevant to the facts and circumstances of the present case. The argument that some petitioners had sought admission in the Foreign University by placing reliance on the representations made by the Council through the grant of the NOC and the letter dated 08-10-2011, issued by the Registrar, has no force. As already held above, the letter of the Registrar was without lawful authority and jurisdiction. It was not a representation made by the Council, rather the - Registrar had acted on his own, and without having jurisdiction, approached the Foreign University and communicated a purported decision of the Council, which the latter had not taken. 16. Promissory estoppel is an equitable doctrine with the object of pre-empting the suffering of any loss arising out of a promise made, and is invoked so as to prevent violation of and to safeguard rights accrued pursuant to such a promise. It is essential that the m promise be made by a person competent to represent the authority, on behalf of which a promise is being made, and the person to whom the representation has been made changes his position to his detriment, takes a decisive step and enters into a binding contract or incurs a liability. Simultaneously, it is settled law that there can be no estoppel against a Statute. In the present case, the Registrar, who had addressed the letter dated 08-10-2011, had no authority-or jurisdiction to make a representation on behalf of the Council, or to communicate a decision never taken. It was, therefore, neither a representation for the purposes of raising the plea of promissory estoppel, nor could it give rise to a claim to any right. There is nothing on record to suggest that the letter had induced the petitioners to seek
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admissions in the Foreign University. In any case, after the insertion of Section 15, through the Amendment Act, the plea of promissory estoppel lost its validity, even if it is assumed that the Registrar had communicated a lawfully taken decision of the Council, as there can be no estoppel against the Statute. Reference in this regard may be made to cases titled 'Messrs Galloon Textile Mills and 814 others vs. WAPDA and others' [1997 S.C.M.R. 641], 'Secretary Economic Affairs Division, Islamabad and others vs. Anwarul Haq Ahmed and others' [2013 S.C.M.R. 1687], 'Dr. Muhammad Munir-UI-Haq and others vs. Dr. Muhammad Latif Chaudhry and others' [1992 S.C.M.R. 2135]. "West Punjab Government vs. Masers Pindi-Jhelum Valley Transport Ltd. Rawalpindi and others' (P.L.D. 1960 S.C, 88], 'Naseer Ahmed and another vs. Asghar Ali' [1992 S.C.M.R. 2300], 'Jam Pari vs. Muhammad Abdullah' [1992 S.C.M.R. 786], 'Mat. Sharif Bibi and another vs. Syed Muhammad Nawaz Shah and others' [2008 S.C.M.R. 1702], "Syed Muhammad Hussain Shah vs. Abdul Qayyum and others' [2011 S.C.M.R. 743], 'Mrs. Zohra Begum vs. Pakistan Burmah Shell' [1988 S.C.M.R. 756], Ikram Bus Service and others vs. Board of Revenue, West Pakistan' [P.L.D. 1963 S.C. 564], 'Islamic Republic of Pakistan vs. Israrul Haq and 23 others" [P.L.D. 1981 S.C. 531], 'Pir Sabir Shah vs. Shad Muhammad Khan, Member Provincial Assembly, N.W.F.P. And another' [P.L.D. 1995 S.C. 66], 'Pakistan through Ministry of Finance, Economic Affairs and others vs. Fecto Belarus Tractors Limited' [P.L.D. 2002 S.C. 208], 'Messrs Army Welfare Sugar Mille Ltd. And others vs. Federatibn of Pakistan and others' [1992 S.C.M.R. 1652], Messrs M.Y. Electronics Industries (Put) Ltd. Through Manager and others vs. Government of Pakistan through Secretary Finance, Islamabad and others' [1998 S.C.M.R.1404]. It may also be noted that the Practitioners Regulations are unambiguous and clear. Obtaining a NOC and an eligibility certificate for taking the NEB examination was a requirement even before the insertion of Section 15 through the Amendment Act and did not create a right to be registered under the Ordinance. Moreovet, petitioners had 'acquired' their respective medical qualifications after Section 15 came into force, pursuant to the Amendment Act. 17. I now take tip the next argument raised by the counsels for the petitioners i.e placing reliance on the principle of locus poenitentiae. According to the principle of locus poenitentiae, once an order has taken effect, and in pursuance thereof, certain rights have been created in favour of a person, then such an order cannot be withdrawn or rescinded to the detriment of the rights created. 18. It is settled law and consistently held by the august Supreme Court that the principle of locus poenitentiae is not a principle of law, according to which an order once passed becomes irrevocable, and a past and closed transaction. An illegal order does not create a right, nor can perpetual rights be gained or claimed on the basis of such an illegal order. The principle of locus poenitentiae would be invoked only in respect of an order which is legal, and not in any respect an order which is contrary to and in contravention of any provision of law, or the rules made there under. Similarly, the principle is applicable only in respect of an order passed by an authority which was competent and in accordance with law. When the basic order is without lawful authority, then no superstructure can be built thereon, and if that is the case, then such structure will also fall on the ground automatically. Reference in this regard may be made to cases titled 'Muhammad Nadeem Arif and others vs. Inspector-General of Police, Punjab, Lahore and others' [2011 S.C.M.R. 408], "Executive District Officer (Edu). Rawalpindi vs. Mat Rizwana Kausar and 4 others' [2011 S.C.M.R. 1581], Nazir Ahmed Panhwar vs. Government of Sindh through Chief Secretary, Sindh and others' [2005 S.C.M.R. 1814], Executive District Officer (Education), Rawalpindi vs. Muhammad Younas' [2007 S.C.M.R, 1835] and The Engineer-In-Chief Branch through Ministry of Defence, Rawalpindi and another vs. Jalaluddin [P.L.D. 1992 S.C. 207]. In the present case the principle is neither relevant nor attracted. 19. In the present case the learned counsels for the petitioners have built the edifice of their arguments on the letter dated 08.10.2011, addressed by the Registrar of the Council to the Foreign University. The letter was illegal and without, lawful authority and jurisdiction. Moreover, after the…
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