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Petitioner: Pakistan Medical and Dental Council VS Respondent: Muhammad Fahad Malik etc
Court Name: Supreme Court of Pakistan Judge(s): Sajjad Ali Shah, Mushir Alam, Mian Saqib Nisar Title: Pakistan Medical and Dental Council vs Muhammad Fahad Malik etc Case No.:CIVIL APPEALS NO.3 AND 4 OF 2018 AND CIVIL PETITION NO.3412 OF 2017 AND
CIVIL PETITIONS NO.45 AND 64 TO 70 OF 2018 Date of Judgment:2018-01-12 Reported As: 2020 P SC 846, 2018 SCMR 1956, 2018 SCP 1052, 2018 SCP 1057, 2019 SCP 71 Result: Appeal allowed Judgment MIAN SAQIB NISAR, CJ.- The facts of the instant matters are that as per the Admission in MBBS/BDS Courses and Conditions for House Job/Internship/Foundation Year Regulations, 2013 (Regulations of 2013) the students who did their F.Sc. were eligible for admission in medical and dental colleges on the basis of the marks they obtained in F.Sc. and the Medical & Dental College Admission Test (MDCA T), whereas the students who completed their A-levels were eligible for admission in medical and dental colleges on the basis of the marks obtained vide equivalence certificates issued by the Inter Board Committee of Chairmen, Government of Pakistan, Islamabad (IBCC) and their SAT-II scores in lieu of the MDCAT. On 27.10. 2016, the Regulations of 2013 were repealed by the MBBS and BDS (Admissions, House job and Internship) Regulations, 2016 (Regulations of 2016) in terms of which A-level students could no longer rely on their SAT-II results for the purposes of admission in medical and dental colleges and were required to take the MDCAT instead. The students who desired to seek admission in medical and dental colleges for the 2017-18 session had completed their A-levels in June, 2017 and obtained their equivalence certificates from IBCC. Thereafter, they appeared for the SAT-II held in June and October, 2017. Some of them, by way of abundant caution, also appeared in the MDCAT held in October, 2017. They challenged the Regulations of 2016 on the ground that when they commenced their A-levels in 2015 and took the necessary steps over the next two years in preparation for admission in medical and dental colleges for the 2017-18 session, the Regulations of 2013 were in the field, whereby they were entitled to have their SAT-II marks considered in lieu of that of the MDCAT, but at the eleventh hour, the Pakistan Medical and Dental Council (interchangeably referred to as 'PMDC' or 'the Council' where appropriate) brought about major changes in the admission criteria through the Regulations of 2016 without any notice, making the MDCAT mandatory and doing away with the SAT-II score, which violated their rights. In the previous year, the students had been given a concession that their admissions would be made under the Regulations of 2013 instead of the Regulations of 2016, thus, it was the case of these
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students that they too were entitled to the same treatment as they had already completed one year of their A- levels in October, 2016 and had planned the entire year on the understanding that they would be governed by the Regulations of 2013, therefore, they had a legitimate expectation to be admitted on the basis of the SAT-II score. 2. The Regulations of 2016 also introduced the Centralized Admission Program (CAP) at the Provincial level (though not being practically implemented in all the Provinces), whereby all the private medical and dental colleges were required to submit a plan on the basis of which the University of Health Sciences (UHS) would receive all the applications for admission in private medical and dental colleges, process the same on the basis of preferences stated by the students and thereafter, finalize a merit list for all such private colleges which would then admit the students on the merit list prepared by UHS. Private medical and dental colleges evinced concerns regarding CAP, so negotiations took place between PMDC and the Pakistan Association of Private Medical and Dental Institutes (PAMI); however, PMDC set out to enforce the mechanism prescribed under the Regulations of 2016. Despite that, the private medical and dental colleges commenced their admission process independently; whereas, UHS also issued advertisements calling for applications for admission in private and medical dental colleges, which created confusion among the students. In the circumstances, PAMI and some private medical colleges challenged the Regulations of 2016 and the actions of the authorities taken thereunder on the touchstone of Article 18 of the Constitution of the Islamic Republic of Pakistan, 1973 (Constitution) for violation of their fundamental right to do business under the Pakistan Medical and Dental Council Ordinance, 1962 (Ordinance of 1962). 3. The learned High Court vide impugned judgment held and declared as under:- (i) that the Council constituted under the Amendment Ordinance ceased to exist as of 25.4.2016 with the lapse of the Amendment Ordinance and the constitution and composition of the Council as under the 1962 Ordinance stood revived as on 25.4.2016. However the constitution of the Council and all acts, orders and decisions including the 2016 Regulations taken by the Council after 25.4.2016 shall remain protected under the de facto doctrine until the legal Council is constituted as per law; (ii) that the Federal Government shall constitute the Council in terms of Section 3 of the 1962 Ordinance within three months' time; (iii) that the existing Council shall carry out the day to day business of PMDC till the constitution of the new Council and shall not frame any new regulations or amend existing regulations under the 1962 Ordinance; (iv) that Regulations 9(6)(7)(8) and (11) of the 2016 Regulations qua the centralized admission program is beyond the authorized mandate of PMDC under the 1962 Ordinance and inconsistent with the intent of the stated Ordinance, hence declared to be without lawful authority and of no legal effect, therefore struck down; (v) that students who completed their A level in June 2017 are entitled to be admitted into medical and dental colleges on the basis of their SAT II score for the 2017-18 session; (vi) that all decisions of the Council post 25.4.2016 including the 2016 Regulations along with the issues raised by private medical and dental colleges as well as students be placed before the CCI, to review the standards and criteria set under the 2016 Regulations to ensure compliance of the Constitution within the next six months; (vii) as a future course of action PMDC will work under the supervision and control of the CCI and all policies and regulations prepared by them shall be approved by the CCI and will be binding if they are compliant with the constitutional mandate. 4. The facts of Civil Petition No.3412/2017 are that the petitioner became a Member of PMDC for a period of four years on the basis of the elections held in 2013, and then was elected as its President. Through the Pakistan Medical & Dental Council (Amendment) Ordinance, 2014 (Ordinance of 2014) , Section 36B of the Ordinance of 1962 was substituted and by virtue of the new Section 36B, the Council functioning at that time was made dysfunctional and consequently , a new Managing Committee was constituted. The Ordinance of 2014 stood repealed in terms of Article 89(2)(a)(ii) of the Constitution as the same was disapproved by the Senate of Pakistan through a Resolution dated 23.04.2014. On 28.08.2015, by virtue of the Pakistan Medical & Dental Council (Amendment) Ordinance, 2015 (Ordinance of 2015) , PMDC was again dissolved and structural changes in its constitution and composition were made. Pursuant to the Ordinance of 2015, a fresh Managing Committee was
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constituted, elections were held and a new Council was elected. The Ordinance of 2015 was not enacted as an Act of Parliament; however , after the expiry of 120 days, it was extended for a period of another 120 days by the National Assembly on 26.12.2015, whereafter the same lapsed on 24.04.2016. After the lapse/repeal thereof, the petitioner claimed to have been revived as the President of PMDC. He filed a writ petition before the learned Islamabad High Court which held, inter alia , as under:- (a) though the Ordinances of 2014 and 2015 have lapsed/expired/repealed, however , by virtue of Section 6A of the General Clauses Act, the amendments/substitutions made in the Ordinance of 1962 have survived and are still alive and are part of the said Ordinance, as such, the petitioner is no longer the Member of the PMDC and/or its President; (b) the Ordinances of 2014 and 2015 cannot be held to be invalid on the ground that those were not laid before the Council of Common Interests before promulgation; and (c) it is trite law that the operation of the judgment is prospective and not retrospective, hence the Ordinances of 2014 and 2015 are not hit by the judgment of this Court in M/s Mustafa Impex, Karachi & others Vs. Government of Pakistan through Secretary Finance, Islamabad and others ( PLD 2016 SC 808 ). 5. Heard. For the sake of brevity, the arguments of the learned counsel are not noted separately and will reflect in the course of the opinion. The questions that emerge from the instant matters are:- (a) Whether after the 18 constitutional amendment, whereby the medical profession was included in Part II of the Federal Legislative List, the laws, especially , the Medical and Dental Council (Amendment) Ordinance, 2013 (the Ordinance of 2013) and the Ordinances of 2014 and 2015 (collectively referred to as the 'Amendment Ordinances') , amending the Ordinance of 1962, were validly enacted or the approval of the Council of Common Interests (CCI) was necessary before promulgating those laws; (b) Whether the approval of CCI was necessary before making the Regulations of 2016; (c) Whether after the lapse/repeal of the Amendment Ordinances, the amendments/substitution made thereby would survive or be gone with them; (d) Whether the actions/activities undertaken by PMDC during the period when the Amendment Ordinances were in the field and those undertaken after the lapse/repeal thereof, were protected/saved, and if yes, to what extent; and (e) If the amendments/substitutions made by the Amendment Ordinances have gone with their lapse/repeal, whether the members/President of the PMDC, existing prior to that, stood revived or not? 6. Before dilating upon the legal issues involved, it is appropriate to set out briefly the history of the laws pertaining to PMDC and the amendments made therein. Initially, a Medical Council was established under the Indian Medical Council Act, 1933 (Act of 1933). After partition of the sub-continent, on the recommendation of the Health Conference in 1947, the Act of 1933 was adopted and a Medical Council constituted thereunder. The Medical Council was re-organized under the Pakistan Medical Council Act, 1951, which provided for a Medical Council for each Province. In 1957, the West Pakistan Medical Council was created by merging the Sindh and Punjab Medical Councils. Thereafter, the Ordinance of 1962 was promulgated and under Section 3(1) thereof, the Federal Government was to constitute a Council comprising of the members provided therein, which (members) were to elect its President [Section 3(2)]. As per Section 6 of the Ordinance, 1962, the Council was to be a body corporate having perpetual succession and a common seal, with power to acquire and hold property both movable and immovable, and to contract, and to sue and be sued. Section 3 of the Ordinance of 1962, as originally enacted, was subsequently amended from time to time. Through the Medical and Dental Council (Amendment) Act, 2012 (Act of 2012) , Section 3 ibid was substituted with a new Section 3 which is reproduced as under:- "3. Constitution and composition of the Council.-- (1) The Federal Government shall, by notification in the official Gazette, cause to be constituted a Council consisting of the following members, namely:- (a) One member each from the senate and the National Assembly to be nominated by the Chairman or, as the case may be, the Speaker from amongst the members of the respective House; (b) Secretary , Health Department of each Province; (c) One member each to be elected by the member of the Syndicate of each public sector Pakistan university from amongst the members of its medical faculty and dental faculty of all its constitue nt as well as affiliated collegesth
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from each Province, Gilgit-Baltistan, Federally Administered T ribal Areas (F ATA) and Islamabad Capital T erritory; (d) One member each to be elected by the members of the Syndicate of each private sector Pakistan university from amongst the members of its medical faculty and the dental faculty of all its constituent as well as affiliated colleges from each Province, Gilgit -Baltistan, F ATA and Islamabad Capital T erritory; (e) One member from each Province, Gilgit-Baltistan, FATA and Islamabad Capital Territory to be elected amongst themselves by the registered medical practitioners; (f) Four members to be nominated by the Federal Government of whom one shall be Surgeon General of the Armed Forces Medical Services; (g) One member to be elected from amongst themselves by the registered dentists from amongst themselves by the registered dentists from each Province, Gilgit -Baltistan, F ATA and Islamabad Capital T erritory . (h) one member to be elected from amongst the Professors of the teaching staff of the public sector medical colleges from each Province, Gilgit-Baltistan, F ATA and Islamabad Capital T erritory; (i) One member to be elected from amongst the Professors of the teaching staff of private sector medical colleges from each Province, Gilgit-Baltistan, F ATA and Islamabad Capital T erritory; (j) One member to be elected from amongst the Professors of teaching staff of public sector dental colleges from each Province, Gilgit-Baltistan, F ATA and Islamabad Capital T erritory; (k) One member to be elected from amon gst the Professors of the teaching staff of private sector dental colleges from each Province, Gilgit-Baltistan, F ATA and Islamabad Capital T erritory; (l) One member to be elected by the Council of the College of Physicians and Surgeons; (m) One member , belonging to the legal profession, to be nominated by the Chief Justice of Pakistan; (n) Senior most officer looking after health matters at the Federal level or an authority looking after the affairs of Council at Federal level designated or notified by the Federal Government, as the case may be; and (o) Immediate ex-President of the Council who shall be a member of the Council for one non-renewable term of three years provided that he or she will not hold office. (2) The President of the Council shall be elected by the members of the Council from amongst themselves. (3) No act done by the Council shall be invalid on the ground merely of existence of any vacancy in or any defect in the constitution of the Council. (4) The President shall be the head of the office of the Council and shall be the competent authority for all employees of the Council." It is to be noted that through the Ordinance of 2015, Section 3 ibid was again substituted. 7. The Act of 2012 inserted Section 36B in the Ordinance of 1962, whereby the incumbent Council was dissolved, however, it was provided that the President, Vice-President and the Executive Committee of the Council would stay intact till the appointment of the President, Vice-President and the Executive Committee of the Council after the elections which were to be held within one year. Thereafter, the Ordinance of 2013 substituted Section 36B ibid with a new one which provided that the Council constituted under Section 3 of the Ordinance, 1962 would stand dissolved upon the commencement of the Act of 2012, however, the President, Vice-President and Executive Committee of the Council existing before the Act of 2012, would stay intact, and the President and Vice- President would act as members of the said Committee. Moreover, the Federal Government was authorized to appoint an officer, not below the rank of BPS-20, as an Administrator to head the Executive Committee. The Administrator and the Executive Committee were to exercise powers of the Council till constitution of a new Council and to conduct elections within a period of 90 days. Accordingly, elections were held and the result was published in the Official Gazette on 22.05.2013. The petitioner (in CP No.3412/2017) became a Member of the Council and was appointed as its President on 30.04.2013. The law was again amended through the Ordinance of 2014 promulgated on 19.03.2014, whereby Section 36B was substituted with a new one, by virtue whereof the Members acting as the Council and Executive Committee were de-notified. The Federal Government was authorized to constitute a Management Committee comprising of seven professionals to exercise the powers vested in the Council, with one of the professionals to be nominated as Chairperson. The Management Committee was mandated to hold fresh elections within a period of 120 days. It was also tasked to examine,
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investigate and fix responsibility for any mismanagement, maladministration and wrongdoing in the affairs of the Council in the last regime, and authorized to review any decision already taken by the Council or the Executive Committee. However the Ordinance of 2014 was subsequently disapproved by the Senate through a Resolution dated 23.04.2014, as such, it lapsed/stood repealed. On 28.08.2015, through the Ordinance of 2015, beside amending other provisions, Section 36B ibid was again substituted, whereby the Federal Government was again authorized to notify a Management Comm ittee for the interim period and also notify the nominee Members of the Council when the election results are ready to be announced. The elections were to be held by the Management Committee within a period of 120 days from the commencement of the Ordinance. However , the Ordinance of 2015 was not passed by Parliament within the prescribed time period and lapsed; however , after its lapse, on 26.12.2015 it was extended for another period of 120 days till 26.04.2016, thereafter the same lapsed/stood repealed. It is well established that no mala fide can be attributed to Parliament. However , we are constrained to examine whether the manner in which the amendments were made from time to time through the various Ordinances, especially when the earlier ones were either not approved or indeed were disapproved by Parliament, was appropriate and fulfilled the requirement of Article 89 of the Constitution. 8. Mr. Muhammad Akram Sheikh, learned Sr. ASC representing PMDC submitted that being the regulator of medical education, PMDC has been authorized to frame regulations and policies with regard to medical colleges and the medical profession, therefore, the inclusion of members from private medical colleges/universities in PMDC is not appropriate, and this aspect of the matter has to be considered by this Court. In this regard it is to be noted that as per the original Ordinance of 1962, there was representation of various segments, including the Central/Federal Government, Armed Forces medical profession, Provincial Governments, medical/dental universities/colleges, medical practitioners and dentists and members of the legal profession (to be nominated by the Chief Justice of Pakistan). Initially, there were no private medical/dental institutions in the Country and medical education was imparted only through public sector universities/colleges; as such, there was no question of representation of private medical/dental institutions in PMDC. However, from time to time, a number of private medical/dental institutions were allowed to be established. Thereafter, in order to ensure representation of private medical/dental universities and colleges, certain amendments were made in the Ordinance of 1962; inasmuch as, through the Act of 2012, it was provided in Section 3 infra that the Council would include one member each to be elected by the members of the Syndicate of each private sector Pakistan university from amongst the members of its medical faculty and the dental faculty of all its constituent as well as affiliated colleges from each Province, Gilgit-Baltistan, FATA and Islamabad Capital Territory [Section 3(1)(d) of the Ordinance of 1962] and one member each to be elected from amongst the Professors of the teaching staff of private sector medical colleges [Section 3(1)(i) of the Ordinance of 1962] and private sector dental colleges [Section 3(1)(k) of the Ordinance of 1962] from each Province, Gilgit-Baltistan, FATA and Islamabad Capital Territory. However, we must not lose sight of the fact that PMDC is a regulatory body and its functions include inspection and examination of private medical universities and colleges for the purposes of registration and affiliation and to make rules and regulations in this regard. Therefore, owing to the risk of a conflict of interest, as such, the inclusion of members from each private medical university/college in the country is not appropriate as it would result in their predominant position in the Council. We shall now discuss the answers to the questions mentioned above. (a) Whether after the 18th constitutional amendment, whereby the medical profe ssion was included in Part II of the Federal Legislative List, the laws, especially , the Amendment Ordinances, amending the Ordinance of 1962, were validly enacted or the approval of CCI was necessary before promulgating those laws? 9. At this stage it would be apposite to consider the role of CCI in the legislative process with regard to the matters in the Federal Legislative List and the vires of legislation made without its approval. The respondents' case is that under Article 154 of the Constitution, CCI has the power to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List, and since the 18 Amendment to the Constitution, the medical profession has been included in Entry 11 of Part II of the Federal Legislative List therefore no law/regulation can be made without prior approval of CCI. Conversely , it is the appellants' case that Entry 16 of Part I of the Federal Legislative Listth
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deals with professional or technical trainin g, as such, medical education falls within the purview of this Entry and no prior approval of CCI is necessary . The relevant provisions of the Constitution are as under:- "70. Introduction and passing of Bills. (1) A Bill with respect to any matter in the Federal Legislative List may originate in either House and shall, if it is passed by the House in which it originated, be transmitted to the other House; and, if the Bill is passed without amendment, by the other House also, it shall he presented to the President for assent. (2) If a Bill transmitted to a House under clause (1) is passed with amendments it shall be sent back to the House in which it originated and if that House passes the Bill with those amendments it shall be presented to the President for assent. (3) If a Bill transmitted to a House under clause (1) is rejected or is not passed within ninety days of its laying in the House or a Bill sent to a House under clause (2) with amendments is not passed by that House with such amendments, the Bill, at the request of the House in which it originated, shall be considered in a joint sitting and if passed by the votes of the majority of the members present and voting in the joint sitting it shall be presented to the President for assent. (4) In this Article and the succeeding provisions of the Constitution, "Federal Legislative List" means the Federal Legislative List in the Fourth Schedule. 153. Council of Common Interests. (1) There shall be a Council of Common Interests, in this Chapter referred to as the Council, to be appointed by the President. (2) The Council shall consist of- (a) the Prime Minister who shall be the Chairman of the Council; (b) the Chief Ministers of the Provinces; (c) three members from the Federal Government to be nominated by the Prime Minister from time to time. (4) The Council shall be responsible to Majlis-e-Shoora (Parliament) and shall submit an Annual Report to both Houses of Majlis-e-Shoora (Parliament). 154. Functions and rules of procedure. (1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions. (6) Majlis-e-Shoora (Parliament) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matter to take action as Majlis-e-Shoora (Parliament) may deem just and proper and such directions shall be binding on the Council. (7) If the Federal Government or a Provincial Government is dissatisfied with a decision of the…
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