Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: Miss RABIA KHAN and 3 others VS Respondent: PROVINCE OF SINDHand 3 others
Court Name: Sindh High Court Judge(s): Munib Akhtar, Syed Hassan Azhar Rizvi Title: Miss RABIA KHAN and 3 others vs PROVINCE OF SINDHand 3 others Case No.:C.Ps. Nos.D-455, 1970, 1987 to 1991, 1954, 1955, 1951, 2006 to 2010, 1900, 1860 to
1863 and 1995 of 2011C.P. No. 455 of 2011C.P. No. 1970 of 2011C.Ps. Nos. 1987, 1988, 1989, 1990 and 1991 of 2011C.P. No. 1954 and 1955 of 2011C. P. No. 1951 of 2011C.Ps. Nos. 2006, 2007, 2008, 2009 and 2010 of 2011C.P. No. 1900 of 2011C.Ps. Nos.1860, 1861, 1862, 1863 and 1995 of 2011 Date of Judgment:2012-04-06 Reported As: 2012 YLR 1801 Result: Order accordingly Judgment ORDER ' MUNIB AKHTAR, J.---As will presently be seen, the controversy that ostensibly requires determination in this bunch of connected petitions is whether a corrigendum issued by the Secretary to the Government of Sindh in the Health Department has legal force and effect, and if so, to what extent. We use the word ostensible advisedly since it will become clear that in order to determine the real point in controversy, a number of other issues also have to be dealt with (and were argued at the bar by learned counsel), including in particular the proper interpretation of various statutes relating to medical education and medical universities. The petitioners can be 'divided into two categories. One set---by far the majority-contest and challenge the corrigendum and seek declarations and other relief striking it down. For convenience, these petitioners are referred to as the "contesting petitioners". The others-a small minority-seek declarations upholding the corrigendum. They are referred to as the "concurring petitioners". 2. Before proceeding to consider the dispute at hand, certain preliminaries need to be dealt with. Firstly, medical education in Sindh can be regarded as divided between Karachi and the rest of the province. We are not concerned with Karachi and therefore references to "Sindh" shall (unless the context otherwise indicates) be to the province excluding Karachi. Secondly, education and training in dentistry is imparted by dental colleges. We are not concerned with these, and therefore references to dental colleges in the statutes and record, will be ignored. Thirdly, since a number of
---
## Page 2
abbreviations are used herein, for ease of reference the principal ones are gathered in one place and are as follows:--
Abbreviation Refers to Corrigendum Corrigendum issued by the Secretary, Health Department, on22-10-2012 PMC Peoples Medical College PUMHS Peoples University of Medical and Health Sciences for Women Shaheed Benazir PUMHS ActThe Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009 (passed by the Provincial Assembly on 21-12-2009; received the Governor's assent on10-11-2010) LMC Liaquat Medical College LUMHS Liaquat University of Medical and Health Sciences LUMHS OrdinanceThe Liaquat University of Medical and Health Sciences Ordinance, 2000 (promulgated on or before 20-1-2001) CMC Chandka Medical College GMMC Ghulam Muhammad Mahar Medical College SMBBMU Shaheed Mohtarma Benazir Bhutto Medical University SMBBMU Act The Shaheed Mohtarma Benazir Bhutto Medical University Act, 2008 PMDC Pakistan Medical and Dental Council PMDC OrdinanceThe Medical and Dental Council Ordinance, 1962 PMDC RegulationsThe Conditions for Admission in MBBS and BDS Course and Housejob Regulations 2010 First MeetingMeeting of Vice Chancellors held under the chairmanship of the Secretary on 17-5- 2011 Second MeetingMeeting of Vice Chancellors held under the chairmanship of the Secretary on 23- 7-2011 (together, the "Meetings") 1987 Act The Sind Medical Colleges Act, 1987 1995 Act The People's Medical College and Hospital Nawabshah Act, 1995 1997 Act The People's Medical College and Hospital Nawabshah (Repeal) Act, 1997 ' Finally, it may be noted that LUMHS (at least) has certain reciprocal arrangements with medical institutions at Karachi and also outside the province. In terms of these arrangements, inter alia, suitably qualified applicants admitted to the MBBS program can choose to study at the other medical institutions (and presumably, vice versa). In this judgment, we are not concerned with such arrangements or with the choice so available to, and exercised by, any person. 3. We begin with an overview of the facts. The dispute centers on admissions to the MBBS program starting from the year (or session) 2011-2012, and the pivotal point is as to who is entitled to be admitted to LUMHS and/or PUMHS/PMC. Admissions to the latter institution are limited only to female students, and as will be seen, in our, view, this is a crucial point that goes to the very root of the controversy. All the petitioners are female applicants who applied for admission to PUMHS/PMC for the 2011-2012 session. On or about 17-5-2011, the First Meeting was held under the chairmanship of the Secretary, Health Department ("the Secretary"). The minutes of the First Meeting were circulated on or about 28-5-2011. The Vice-Chancellors of all the public sector medical universities in the Province (i.e., including Karachi) attended the meeting. The principal of the Shaheed Benazir Bhutto Medical College Lyari, Karachi a governmentowned, managed and administered institution,
---
## Page 3
was also present. The agenda for the meeting was to establish a common admissions policy for entrants to the MBBS program starting from the 2011- 2012 session. The minutes, which were placed on record, show that it was decided that the entry test for admissions would be held by all the institutions on the same day, i.e., 2-10-2011. The test would be conducted by the same organization, the National Testing Service ("NTS"), and each university was to enter into its own agreement (or MOU) with NTS. Uniform dates were settled for other matters relating to the admissions process, such as issuance of prospectuses (5-9-2011), submission of application forms (17-9-2011) and announcement of final merit list (20-10-2011). 4. After the First Meeting, there was a follow up meeting, i.e., the Second Meeting, the minutes of which were circulated on or about 25-8-2011. The chairmanship of, and attendance at, the Second Meeting remained the same as before. Essentially, the decisions taken at the First Meeting were confirmed and certain ancillary decisions were also taken. 5. After the two meetings as above, the Vice-Chancellor of PUMHS addressed at letter to the Secretary on or about 12-10-2011, He pointed out what he referred to as "confession in [the] admission policy" and requested that a corrigendum be issued with regard to the minutes of the Secohd Meeting, and the press also be informed, so that the confusion could be resolved. As a result of this letter, the impugned Corrigendum was issued on behalf of the Secretary on or about 22-10-2011 and circulated to all the Vice-Chancellors. The Corrigendum needs to be reproduced in full, and stated as follows:- "A meeting was held under the Chairmanship of Mr. Rizwan Ahmed Secretary Health Sindh on 23rd July, 2011 at 10-00 a.m. In the office of the Secretary Health to finalize the uniform policy for admission in Public Sector Medical Universities/Colleges of Sindh for the Session 2011-2012. ' Minutes of the meeting were circulated earlier but Vice-Chancellor, (PUMHS, SBA) pointed out the following points for inclusion in the minutes of the meeting. (1) The girls sudents can get prospectus from Nawabshah (PUMHS) or from Hyderabad (LUM and. HS) belonging to the District tagged with LUMHS and can submit the form in respective University and appear in their respective Institute, where they have applied for admission. (2) The students belonging to the tagged Districts of SMBBU, the girl students can apply in their respective Districts and they are eligible to apply at PUMHS and can appear in their respective Institutes. (3) The selection will be done on merit/cum choice basis from their respective Districts in consolidated list of LUMHS, Jamshoro and PUMHS, SBA. (4) The selection will be done on merit cum-choice from respective Districts in consolidated list of SMBBU & PUMHS." 6. LUMHS immediately wrote back (in fact, on the same day) to the Secretary with regard to the Corrigendum. It was pointed out that LUMHS had already (with due approval from its syndicate) issued the prospectus and announced its admission policy in terms of the decisions taken at the First Meeting. It was therefore stated as follows:-- "Keeping in view above circumstances, and the facts that no choice of Peoples University of Medical and Health Sciences (PUMHS), Shaheed Benazirabad (Nawabshah) have been mentioned in our Prospectus, therefore it is not possible for this University at this stage to consider selection on merit-cum-choice basis for admission in PUMHS, Shaheed Benazirabad (Nawabshah)." 7. Thus, LUMHS refused to issue a combined or common merit-cum-choice list of successful applicants to the MBBS program, as requested by the Vice-Chancellor of PUMHS and directed in the Corrigendum. At the same time, PUMHS, in line with its own request and the Corrigendum and, it appears, having taken data available on the LUMHS website, proceeded to issue a combined merit-cumchoice list of successful applicants. It is the issuance of the combined list by PUMHS on
---
## Page 4
the one hand, and the refusal to do so by LUMHS on the other, that resulted in the filing of the present petitions. 8. Mr. Sardar Akbar Ujjan, learned counsel for some of the contesting petitioners, submitted that prior to the LUMHS Ordinance, there were only medical colleges in Sindh, which were all affiliated with the University of Sindh. From inception, PMC had been an all-girls' institution, and it was the only such institution in Sindh. Admissions to these medical colleges were made on the basis of "tagged districts", and combined meritcum-choice lists. (These matters are considered and explained in detail herein below.) Learned counsel submitted that after the passing of the PUMHS and the SMBBU Acts, the inter se affiliations of the various medical colleges came to an end. He emphasized that now all were universities governed and regulated separately by their respective statutes. Referring to the prospectus issued by PUMHS for the 2011-2012 session, he submitted that the seats available there were divided amongst the various districts of Sindh as shown therein. He averred that the references (at pg. 35 of the prospectus) to LUMHS and the colleges now with SMBBMU had nothing whatsoever to do with these institutions as such. He contended that the uniform or common policy established by the First and Second Meetings was purely procedural in nature. Each of the institutions covered by the common policy had to issue its own prospectus and this was duly done by both LUMHS and PUMHS. Every applicant applied separately to each institution by obtaining from it the application form on payment of the fee prescribed by it. Learned counsel submitted that no question arose of any combined list of applicants being issued or considered since all the institutions were separate universities. Each of them had issued its own prospectus, entertained applications and it was on such basis that applicants were to be considered for admission. Thus. The merit lists for each university had to be separately and independently published. The mere fact that the applicants took the same entry test on the same date was not relevant. Insofar as the Corrigendum was concerned, learned counsel submitted that it was entirely without legal force or effect. It was issued simply on the request of the Vice-Chancellor of PUMHS and without any meeting being called to consider the same. He contended that the Corrigendum sought to impose obligations and an admissions regime on the universities that was entirely contrary to and inconsistent with the applicable legal framework. 9. Mr. Amjad Sahito, learned counsel for some of the contesting petitioners, submitted that the 1987 Act had no application to the present case. He referred to section 32 of the PUMHS Act, and submitted that the prospectus of this institution had been issued in exercise of the powers thereby conferred. He contended that the PUMHS Act conferred complete independence and autonomy on the university and therefore no question arose of there being any combination of applicants to its. MBBS program with those candidates who had applied to other universities, including LUMHS. He submitted that the Corrigendum was entirely unlawful and merited being struck down. 10. Mr. Hakim Ali Siddiqui, learned counsel for some of the contesting petitioners,' referred to various provisions of the PUMHS Act (including sections 21, 26 and 27(2)(c)) fo contend that the Government had no say in the affairs of the university. As presently relevant, the matter of admissions was entirely in the hands of the academic council, which was one of the authorities duly constituted under the PUMHS Act. The university was entirely independent. Learned counsel emphasized that the statutory provisions applicable to all three universities were essentially the same. He submitted that the two Meetings held under the chairmanship of the Secretary, to establish the common policy, were entirely illegal since they conflicted with the relevant statutory provisions of the statutes whereby LUMHS, PUMHS and SMBBMU had been established. The Vice- Chancellors had no power or authority to formulate any admissions policy, let alone a common policy under the auspices of the Secretary. Thus, his case was that the Corrigendum was completely non est and had no existence in law. He also emphasized the complete independence
---
## Page 5
of each university and contended that no combined merit list could at all be issued. He submitted that the contesting petitioners had been wrongly excluded from the list published by PUMHS, and candidates who had not even applied there had been shown as successful applicants. The question of the merit of applicants had to be determined for each university separately, and on the basis of only those candidates who had applied to that particular institution. He submitted that the mere fact that there had been a common entry test taken on the same date under the same organization (NTS) did not mean that there was one test. Each university tested its own applicants (i.e., those who had submitted application forms at that institution). 11. Mr. Arshad Pathan, learned ' counsel for some of the contesting petitioners, also contended that the Corrigendum was liable to the struck down. He submitted that the Coirigendum was nothing other than a mere desire or wish that had been expressed- by the Vice-Chancellor of PUMHS. He referred to the meaning of this term, and submitted that the document called the "Corrigendum" was no such thing within the meaning of law. At most, it was merely a decision of the Secretary, and he had no power or authority in this regard. If at all, a proper meeting ought to have been called or at least the proposal of the Vice-Chancellor of PUMHS should have been circulated amongst all the participants of the Meetings in order to solicit their views. Learned counsel further submitted that by the date on which the Corrigendum was issued (22-10-2011) a number of steps had already been taken in respect of PUMHS admissions process, as printed on the inside back cover of the prospectus. Thus, the prospectus itself had been issued, admissions forms purchased by those applicants who wished to apply to PUMHS and applications submitted and vetted. Even the entry test was scheduled to be held on 2-10-2011, and it had only been postponed on account of the rains. Thus, the contesting petitioners, who had all applied to PUMHS, had acquired vested rights, which could not be taken away retrospectively. That however, was the precise effect of the Corrigendum. He further submitted that there was no reciprocal arrangement of any nature between PUMHS and LUMHS and therefore no question arose of there being any combined merit- cum-choice list. He further contended that the Corrigendum amounted to discrimination. 12. Mr. Masood Khan, learned counsel for some of the contesting petitioners, submitted that the Corrigendum had no legal force or effect. He contended that the admissions process started when the prospectus was published. By the time the Corrigendum was issued, not merely had this been done, but a number of other steps or stages in the admissions process had also been reached and passed. He submitted that once the admissions process has started it could not be altered and certainly not to the detriment of those candidates who had applied on the basis or faith thereof. Their rights had become vested and could not be affected or altered in such a manner. 13. Mr. Zahoor A. Baloch appeared on behalf of the concurring petitioners. Learned counsel supported the Corrigendum. He submitted that the concurring petitioners were all domiciled in Shaheed Benazirabad District (formerly Nawabshah) and were eligible to be included in the combined merit-cum-choice list, if properly issued (as required in terms of the Corrigendum) for and by both PUMHS and LUMHS. He submitted that the refusal of LUMHS to issue or recognize such a combined list was adversely affecting the rights of the concurring petitioners, since they would be unable to have (and therefore exercise if any so wished) the choice of studying medicine at LUMHS. Candidates with lesser marks and lower down the merit list were being granted admission by that institution and the concurring petitioners were being unlawfully excluded. He prayed that the Corrigendum be enforced and LUMHS be directed to recognize and apply the combined merit list, thus enabling the concurring petitioners to exercise their rights accordingly. 14. Mr. Shahab Usto appeared for PUMHS and strongly supported the Corrigendum. He submitted that not merely was the Corrigendum entirely lawful and proper, it was also fair, and enabled the maximum number of deserving and eligible candidates (i.e., those with the highest marks) to enroll in the MBBS program. The combined merit-cum-choice list had to be issued for LUMHS and PUMHS
---
## Page 6
and duly recognized by, and given effect at, both institutions. Thus, he was at odds not merely with the contesting petitioners but also learned counsel for LUMHS. Learned counsel submitted that the present petitions raised a number of issues, which included the following: (a) whether LUMHS, and each of the other medical universities, was autonomous and entitled to make its own policies; (b) whether the Government, as regulator of public policy, was empowered to issue or formulate the common admissions policy for the public sector medical universities; (c) what the concept of tagged districts; and of course, (d) whether the Corrigendum was lawful or not. Referring to the reply filed by LUMHS, learned counsel drew attention to the fact that the minutes of the 28th meeting of the university's syndicate, whereby the admissions policy had been approved, merely followed and endorsed the common policy established under the auspices of the Government. He submitted that LUMHS had never before in any manner or form attempted to deviate from applicable Government policy. He contended that the 'Government's power to impose a common admissions policy stemmed from its inherent power in the public arena and in the particular circumstances of the present case was an application of Article 25 of the Constitution. Learned counsel submitted that it was incumbent on the Government to formulate a policy which enabled the maximum number of the most eligible female candidates (i.e., those with the highest marks) to have access to the MBBS program. Since PUMHS was the sole institution that admitted women only, admissions on the basis of a combined merit-cum-choice list was the only approach that made this desired policy objective possible. Learned counsel emphasized that if LUMHS refused to accept the, and grant admissions on the basis of, a combined list the entire policy would fail and collapse. He was highly critical of LUMHS' refusal in this regard, especially as contained in its response of 22-10-2012 to the Corrigendum. Ile also submitted that a common admissions policy was nothing new; every year, the Secretary formulated such a policy with the assistance of the concerned institutions. 15. Learned counsel also relied strongly on the 1987 Act and contended that this statute also armed the Government with sufficient statutory powers to formulate a common admissions policy. He referred to its various provisions and submitted that the 1987 Act contained a non obstante clause that gave it overriding effect. He submitted that neither LUMHS nor any of its authorities (including the syndicate) could deviate from the policy laid down by the Government. We will consider this Act and the case sought to be built thereon by learned counsel in detail below. Learned counsel submitted that no institution other than LUMHS had objected to the Corrigendum. He contended that even in its letter of 22-10-2012 LUMHS did not deny that the Government had the requisite authority; rather, it only challenged the timing of it. He submitted that when the Corrigendum was issued, LUMHS had not yet published its merit list and thus could easily had complied with the terms thereof and published, and joined in, a combined list. Even LUMHS' own prospectus showed that it recognized the merit-cum-choice concept and hence all objections now being raised were entirely without force. He also focused attention on the policy implications of LUMHS' refusal to abide by the Corrigendum: unmeritorious girl students would gain admission, while more qualified candidates would stand excluded. He submitted that this could not have been the intent of the law. Learned counsel also referred to a 2009 Division Bench decision of this Court handed down at the Sukkur Bench and submitted that LUMHS' refusal to recognize the combined list was in violatiOn of the same. 16. Mr. Kamaluddin, learned counsel for LUMHS, strongly resisted the application of the Corrigendum to the university he represented. He referred to various provisions of the LUMHS Act to contend that the university was wholly independent and autonomous, and that the Government had no power or authority to formulate or impose any policy, whether in relation to admissions or otherwise, for or in relation to LUMHS. He submitted that medical colleges and universities were regulated by PMDC and placed reliance on the PMDC Regulations. In particular, learned counsel referred to Regulation
---
## Page 7
3 and submitted that the common admissions policy was formulated by the Vice-Chancellors pursuant to this provision. However, he emphasized the procedural nature of the exercise by going through the minutes of the First and Second Meetings. Even the decisions taken at the Meetings were not binding unless approved by LUMHS' syndicate. He submitted that the syndicate had only approved the decisions taken at the two Meetings and the Corrigendum travelled far beyond what had been agreed upon. Learned counsel also gave a detailed explanation of the concept of tagged districts and how it had operated earlier in relation to LUMHS and other institutions. He submitted that now the situation had changed fundamentally since each institution was governed by its own statute. The Corrigendum was not a corrigendum as normally understood. Learned counsel accepted that had what was stated in the Corrigendum been decided upon and included in the decisions taken at the two Meetings then LUMHS would have been bound to act in terms thereof. However, the Corrigendum was issued in the middle of the admissions process and was not therefore legally binding and could not have any effect in law. He submitted that it had rightly been resisted and objected to by LUMHS. At most, it was a mere recommendation or suggestion, which LUMHS was free to accept or reject. He also submitted that those girl students who had been given admission at LUMHS on the basis of its own merit list were not respondents to the present petitions. An application of the Corrigendum would result in at least some of them being removed from the university and thus, they would be condemned unheard. He denied entirely the power .Of the Government to regulate matters relating to admissions at LUMHS and submitted this was the domain of PMDC. He also contended that the 1987 Act did not at all apply to LUMHS, and further contended that the Division Bench decision relied upon by learned counsel for PUMHS did not apply. 17. Learned A.A.-G. Supported the Corrigendum. He submitted that the combined merit-cum- choice list had been accepted and applied for the past several years, and the statutes whereby the universities were established could not, and did not, affect this policy.…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.