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Petitioner: Rawal Institute of Health Sciences VS Respondent: Ministry of National Health Services and others
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Rawal Institute of Health Sciences vs Ministry of National Health Services
and others Case No.: W.P.No.1817/2016 Date of Judgment:2019-02-01 Reported As: 2019 IHC 22 Result: Petition Dismissed Judgment MIANGUL HASSAN AURANGZEB, J:- Through this judgment, I propose to decide writ petitions No.1817/2016 and No.3953/2018 since they entail similar questions of law and fact. 2. Through writ petition No.1817/2016, the petitioner , Rawal Institute of Health Sciences, has sought a declaration to the effect that the resolution passed by Pakistan Medical and Dental Council/respondent No.2 ("P.M.&D.C.") for closing admissions in the petitioner/Institute was arbitrary , ill motivated and an act without lawful authority . Furthermore, the petitioner prayed for a direction to the effect that neutral inspectors should conduct an inspection of the petitioner/Institute. 3. Through writ petition No.3953/2018, the petitioner assails P.M.&D.C.' s letter dated 21.06.2018, whereby the petitioner was inter-alia restrained from making admissions in its medical college. Furthermore, the petitioner has prayed for permission to make admissions for the academic session 2018-19. 4. The facts essential for the disposal of the instant petitions are that the petitioner /Institute has been operating as a medical and dental college since 2011. The first comprehensive inspection of the petitioner/Institute was conducted by P.M.&D.C. on 24.10.201 1. The objective of the said inspection was to determine whether the petitioner/Institute had sufficient facilities as per P.M.&D.C.' s criteria to merit recognition under Section 11 of the Pakistan Medical and Dental Council Ordinance, 1962 ("P.M.&D.C. Ordinance"); and whether it could be permitted to admit and train students for the MBBS course. The Inspectors, in their inspection report dated 24.10.201 1, recommended that the petitioner/Institute be recognized to train 100 students for the MBBS course. The Executive Committee of P .M.&D.C. had also recommended that the petitioner/Institute be approved for recognition. 5. P.M.&D.C., in its meeting held on 22.12.201 1, considered the said inspection report dated 24.10.201 1, and vide letter dated 27.12.201 1, P.M.&D.C. informed the erstwhile Ministry of National Regulations and Services (now the Ministry of National Health Services, Regulation and Coordination/respondent No.1) about the said
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recommendation and requested for the entry of the petitioner/Institute in the First Schedule of P.M.&D.C. Ordinance. 6. Vide notification dated 30.12.201 1, issued by respondent No.2 in exercise of the powers conferred by Section 11 of P.M.&D.C. Ordinance, the petitioner/Institute was approved for imparting training for the MBBS degree awarded by Bahria University , Islamabad. Furthermore, it was directed that the petitioner/Institute' s name be entered in the last column of First Schedule of P .M.&D.C. Ordinance. 7. The petitioner/Institute' s affiliation with Bahria University was provisionally approved by the latter for the five years MBBS programme only. Subsequently , the petitioner/Institute was affiliated with Shaheed Zulfiqar Ali Bhutto Medical University (respondent No.3). 8. It is an admitted position that the petitioner/Institute was inspected by Bahria University on 06.11.2014, and by P.M.&D.C. along with N.A.B. on 18.03.2014. The petitioner/Institute was able to pass these inspections. On 09.03.2016, a surprise inspection of the petitioner/Institute was conducted by P.M.&D.C. As per the inspection report, the petitioner/Institute got just 501 out of 1000 marks. It is an admitted position that a medical college which does not get 750 or more marks is not recommended for recognition. The convener of the inspection team endorsed the following observations in the inspection report:- "1. No clear cut demarcation between medical college/ dental college/ hospital. 2. Infrastructure needs a lot of improvement. 3. Hospital needs better equipment and diagnostic facilities. "Not recommended for 100 MBBS admissions" 9. Vide letter dated 10.03.2016, P.M.&D.C. sent the inspection report to the petitioner/Institute and requested the latter to note the deficiencies/recommendations pointed out in the said report and furnish its observations within a period of two weeks for the consideration of the Executive Committee of P.M.&D.C. Vide letter dated 16.03.2016, the petitioner/Institute requested P.M.&D.C. to clarify whether the inspection carried out on 09.03.2016 was a surprise inspection or a comprehensive inspection. Vide letter dated 01.04.2016, P.M.&D.C. informed the petitioner/Institute that the inspection carried out on 09.03.2016 was a surprise inspection on the directions of the President P.M.&D.C. 10. Vide letter dated 25.03.2016, the petitioner/Institute gave its comments on the inspection report to P.M.&D.C. In the said letter, the petitioner/Institute took the position that the presentation made by the Principal had not been fully heard by the inspectors; and that some of the facilities had not been fully inspected. The petitioner/Institute also complained that the dealings of a few inspectors with the head of the concerned departments had not been in consonance with the professional excellence, courtesy and esteem is expected from the inspectors. 11. P.M.&D.C., in its extraordinary meeting held on 04.05.2016, approved the followin g decision dated 03.05.2016 taken by the Executive Committee of P .M.&D.C.:- "The Executive Committee considered the comments received from Principal Rawal Medical College and Rawal Dental College. The Executive Committee unanimously approved the recommendations made by honourable inspectors according to which the college does not fulfill the criteria of continuation of recognition however the Executive Committee decided only to stop fresh intake of students in MBBS and BDS until the deficiencies pointed out by inspectors are rectified." 12. A news item had appeared in the daily Dawn' s issue of 05.05.2016 stating that P.M.&D.C. had decided to ban further admissions in the petitioner/Institute, because the college and its affiliate d hospital were situated in the same building, while the regulations required them to be in separate buildings. Other newspapers had also carried similar news about the petitioner/Institute. This caused the petitioner/Institute to file writ petition No.1817/2016 before this Court. On 13.05.2016, this Court issued notices to the respondents. By this time, P.M.&D.C. had not conveyed its decision dated 04.05.2016 and the Executive Committee' s decision dated 03.05.2016 to the petitioner/Institute. On 20.05.2016, learne d counsel for the petitioner/Institute informed the Court that no order had been passed by P.M.&D.C. In the said order, it was observed by this Court that if any order is passed by P.M.&D.C., it shall be provided to the petitioner/Institute and its copy shall be placed on the record. 13. On 26.05.2016, P.M.&D.C. informed the petitioner/Institute as to its decision dated 04.05.2016. Furthermore, the petitioner/Institute was directed by P.M.&D.C. "not to admit or advertise for admission of students" . The
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petitioner/Institute was warned that if any students were admitted before the issuan ce of permission by P.M.&D.C., the responsibility of the adverse effect on the career of the students shall be entire ly on the petitioner/Institute and will lead to penal action under the relevant law . 14. The said letter dated 26.05.2016 was brought on the record of writ petition No.1817/2016. Vide order dated 07.06.2016, this Court restrained P.M.&D.C. from publicizing its decision referred to in the said letter . Thereafter , the petitioner/Institute filed an application (C.M. No.31 12/2016) praying that a special team of inspectors be constituted with the mandate to conduct a comprehensive inspection of the petitioner/Institute in accordance with the law. On 04.10.2016, learned counsel for P.M.&D.C. sought some time from the Court so as to enable him to consult with his client. This Court, vide order dated 04.10.2016, also required P.M.&D.C. to submit a list of the notified inspectors. On 26.10.2016, learned counsel for P.M.&D.C. sought more time so that he could meet with the President of P.M.&D.C. Thereafter, the case was adjourned on several occasions. 15. Vide letter dated 05.03.2018, P.M.&D .C. informed the petitioner/Institute that a comprehensive inspection was scheduled to be carried out on 08.03.2018. On 07.03.2018, learned counsel for P.M.&D.C. submitted before this Court that the results of the students who were enrolled before 26.05.2016 had not been withheld by P.M.&D.C. He had further submitted that since P.M.&D.C. had restrained the petitioner/Institute from enrolling students after 26.05.2016, the fate of such students would be decided after the inspection which was scheduled to be carried out on 08.03.2018. This Court, vide order dated 07.03.2018, directed that "after the proceedings pursuant to letter , dated 05.03.2018 have been completed the matter shall be placed before the Council for addressing the grievance of those stud ents who were admitted after 26.05.2016" . 16. On 08.03.2018, a comprehensive inspection of the petitioner/Institute was carried out by a team of inspectors. As per the inspection report, the petitioner/Institute was able to get 789 out of 1000. In the said inspection report, the inspectors' final recommendation was that the petitioner/Institute be recognized for 100 MBBS students. The convener 's special comments (which were part of the said report) were as follows:- "Medical & Dental College and hospital are in contradiction to Section 13 i.e. separate college & hospital building. PMDC council may decide accordingly . Bank guarantee not provided. Waste disposal not appropriate, not in line with environmental protection guidelines. Systematic implementation of curriculum needs to [be] in practice. Principal role needs more emphasis." 17. Vide letter dated 13.03.2018, the said inspection report was sent to the petitioner/Institute for its comments/observations. On 22.03.2018, the petitioner/Institute provided its comments to P .M.&D.C. 18. The inspection report dated 08.03.2018 and the petitioner/Institute's comments were considered by the Executive Committee of P.M.&D.C. in its meeting held on 12.04.2018. In the said meeting, it was unanimously decided that the earlier order stopping the petitioner/Institute from taking admissions would continue and the tuition fees collected by the petitioner/Institute from the two batches of students admitted after 26.05.2016 were required to be paid to P.M.&D.C. as a penalty. Such admissions were stated to be "in violation of P.M.&D.C. Rules". The petitioner/Institute was also required to show compliance with Regulation 13 of the Medical and Dental Institutions (recognition, eligibility criteria for enhancement in annual admissions and accreditation standards) Regulations, 2012 ("the 2012 Regulations") within a period of six months. The Executive Committee of P.M.&D.C. required the petitioner/Institute to comply with the said condition before a decision could be taken regarding the continuation of its recognition. Furthermore, it was decided that the next admissions in the college would depend on the outcome of an inspection which would be carried out after six months. For the purposes of clarity, the relevant portions of the minutes of the said meeting dated 12.04.2018 are reproduced herein below:- "The Executive Committee after perusing the inspection report, recommendations made by the Inspection team and having deliberate discussion unanimously decided that the order regarding stop admissions/intake of admissions will be continued. Regarding students admitted in violation of PM&DC rules, penalty as per decision of 142 session of the Council (5 years tuition fee for each over admission i.e 5 x tuition fee x No. students) will be imposed on two batches admitted in violation of PM&DC rules. Further the college will have to comply with Sectionnd
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13 of "Medical and Dental Institutions (recognition, eligibility criteria for enhance ment in annual admissions and accreditation standards) Regulations, 2012" within six months time and submit a compliance report regarding establishment of separate hospital and college. To proceed further with continuation of recognition, the above conditions will have to be complied by the College and next admission/ intake of the college will be dependent on outcome of the Inspection which will be done after six months to verify rectification of above deficiencies and the College will be inform ed that no new admissions will be allowed to the College, unless the above conditions are fulfilled." (Emphasis added) 19. Vide letter dated 25.04.2018, P.M.&D .C. informed the petitioner/Institute that P.M.&D.C., in its 164th session held on 12.04.2018, had considered the minutes of the Executive Committee' s meeting dated 12.04.2018 and had approved the same. Vide order dated 26.04.2018 passed in writ petition No.1817/2016, this Court suspended the penalty imposed on the petitioner/Institute. 20. The Executive Committee of P.M.&D.C., in its meeting held on 06.05.2018, again decided not to allow further admissions in the petitioner/Institute. This decision was conveyed by P.M.&D.C. to the petitioner/Institute vide letter dated 21.06.2018. The Executive Committee' s decision dated 12.04.2018 and P.M.&D.C.' s letter dated 21.06.2018 have been challenged in writ petition No.3953/2018. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONER/INSTITUTE:- 21. Learned counsel for the petitioners, after narrating the facts leading to the filing of the petitions under disposal, submitted that the petitioner/Institute is imparting high quality medical education to MBBS and BDS students since 2011; that the inspectors who carried out the surprise inspection on 09.03.2016 were biased and pre-disposed against the petitioner/Institute; that neither does P.M.&D.C. Ordinance nor do the Regulations made thereunder empower P.M.&D.C. or its Executive Council to impose the penalty of paying the entire tuition fees collected from students on a medical college; that P.M.&D.C. had no power under P.M.&D.C. Ordinance to stop admissions in a medical college for an indefinite period; that P.M.&D.C. could impose only those penalties which are specifically mentioned in Section 22B of P.M.&D.C. Ordinance; that P.M.&D.C.'s requirement that the teaching hospital should be in a separate building from the medical college shall be complied with by the petitioner/Institute within a reasonable period; that the teaching hospital and the medical college being in the same building but on different floors does not in any manner violate Regulation 13 of the 2012 Regulations; that the said Regulation is vague and does not clearly require the teaching hospital and the medical college to be in two separate buildings detached from each other; that Regulation No.9(4) of the Medical and Dental Institutions (recognition, eligibility criteria for enhancement in annual admissions and accreditation standards) Regulations, 2018, require the building of the medical college to be on a plot of land measuring not less than 3 acres; that there was no such requirement under the 2012 Regulations; that medical colleges have been given a period of three years to fully conform to the requirements of the 2018 Regulations; and that the petitioner/Institute undertakes to put the teaching hospital and the medical college in separate buildings at the earliest. 22. Furthermore, learned counsel for the petitioner submitted that as early as 12.05.2016 when writ petition No.1817/2016 was filed, the petitioner/Institute had prayed for its inspection to be conducted by neutral inspectors; that the mere fact that such a prayer was made shows the petitioner/Institute's bonafides; that had a timely inspection of the petitioner/Institute been carried out by P.M.&D.C., there would have been no occasion for stopping the admission of students; that P.M.&D.C. procrastinated and avoided the petitioner/Institute's inspection for no plausible reason; that after the petitioner/Institute was able to obtain more than the passing marks in the inspection conducted on 08.03.2018, there was no reason for the continuation of the restriction on the admission of students; that this Court, in its order dated 26.04.2018, passed in writ petition No.1817/2016, had inter-alia observed that "[t]he recent inspection appears to have confirmed the apprehensions of the petitioner Institution regarding the inspection which was carried out on 09.03.2016"; that the said observation was made after the Court was informed that the inspectors appointed by P.M.&D.C. had given a favourable report to the petitioner/Institute after the inspection carried out on 08.03.2018; that the petitioner/Institute committed no illegality by admitting students in two batches after 26.05.2016; and that the future of such students would be irreparably harmed if the instant petitions are not allowed. Learned counsel for the petitioner/Institute prayed for the writ petitions to be allowed in terms of the relief sought therein.
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CONTENTIONS OF THE LEARNED COUNSEL FOR P.M.&D.C.:- 23. On the other hand, learned counsel for P.M.&D.C. submitted that in the surprise inspection of the petitioner/Institute carried out on 09.03.2016, it had obtained just 501 out of 1000 marks (750 being the passing marks); that in the inspection report dated 09.03.2016, the convener had clearly observed that there was no clear cut demarcation between the petitioner/Institute's medical college and the hospital; that P.M.&D.C., in its 143rd session held on 04.05.2016, approved the executive committee's decision dated 03.05.2016; that on 03.05.2016, the executive committee had decided to stop the petitioner/Institute from making further admissions; that P.M.&D.C.'s decision dated 04.05.2016 was conveyed to the petitioner/Institute vide letter dated 26.05.2016; that since the petitioner/Institute, in violation of the said decision, admitted students for two batches, it has disentitled itself from any relief in the discretionary/equitable jurisdiction of this Court; that even though the said letter dated 26.05.2016 was sent by P.M.&D.C. after the institution of writ petition No.1817/2016, the petitioner/Institute chose not to amend the said writ petition so as to challenge the said letter and/or P.M.&D.C.'s decision dated 04.05.2016; that although this Court can take into consideration events subsequent to the institution of a writ petition but it cannot strike down a decision which has not been specifically challenged in a writ petition; that the petitioner/Institute did not even pay the inspection fee for the inspection carried out on 09.03.2016; that the petitioner/Institute had miserably failed the said inspection; that P.M.&D.C. was under no obligation to re-inspect the petitioner/Institute at the latter's convenience; that this Court had not suspended P.M.&D.C.' s decision dated 04.05.2016 conveyed to the petiti oner/Institute, vide letter dated 26.05.2016; that on 07.06.2016, all that this Court had ordered was that the said decision shall not be publicized in any manner; that on 30.06.2016, P.M.&D.C. took a categorical position before this Court that the said decision restraining the petitioner/Institute from admitting students still remains intact; and that this Court had not permitted the petitioner/Institute to admit students after P .M.&D.C.' s said decision dated 04.05.2016. 24. Learned counsel for P.M.&D.C. further submitted that although the petitioner/Institute in the inspection dated 08.03.2018 had obtained 789 out of 1000 marks (750 marks being the passing marks), this by itself was not sufficient to accord recognition to the petitioner/Institute; that the petitioner/Institute had not complied with its mandatory obligation of having its medical college in a building separate from the hospital as required by Regulation 13 of the 2012 Regulations; that the petitioner/Institute had admittedly not furnished a bank guarantee in favour of P.M.&D.C. as required by Regulation 15 of the 2012 Regulations; that until the petitioner/Institute's medical college and hospital are housed in two separate buildings, and until a bank guarantee is furnished by the petitioner/Institute, the restraint qua the admission of new students cannot be lifted; that P.M.&D.C., in its 142nd session held on 12.03.2016, decided that those institutes/medical colleges who admit more than the allotted annual admissions would have to pay to P.M.&D.C., as penalty, the entire tuition fees charged from the students admitted beyond the permissible/allotted admissions; that the penalty imposed on the petitioner/Institute by P.M.&D.C., in its decision taken in the 164th session dated 12.04.2018, and communicated to the petitioner/Institute, vide P.M.&D.C.'s letter dated 25.04.2018, is on the same analogy as P.M.&D.C.'s decision taken in the 142nd session dated 12.03.2016; that the said penalty imposed on the petitioner/Institute was suspended by this Court vide order dated 26.04.2018 passed in writ petition No.1817/2016; that once the said penalty had been suspended, the petitioner/Institute could not have filed writ petition No.3953/2018 to challenge the very same penalty; that given the convener of the inspection team's observations regarding the inspection dated 08.03.2018, the petitioner/Institute could not be permitted to admit students until the deficiencies in the petitioner/Institute pointed out by the convener had been rectified; that P.M.&D.C. did not refer the matter to the Federal Government for the petitioner/Institute's de-recognition, because it had taken a lenient view in the matter; and that on every deficiency or irregularity in a medical college, P.M.&D.C. could not be expected to refer the matter to the Federal Government for the de-recognition of such medical college under Section 22 of P.M.&D.C. Ordinance. Learned counsel for P.M.&D.C. prayed for the writ petitions to be dismissed. 25. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. 26. The facts leading to the filing of the instant petitions have been set out in sufficient details in paragraphs 4 to 20 above and need not be recapitulated.
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27. The petitioner/Institute tried to impeach the inspection report dated 09.03.2016 on the ground that P.M.&D.C.' s new regime elected in 2016 had a "biased approach against the medical colleges on personal likes and dislikes and extraneous considerations" , etc. Furthermore, in writ petition No.1817/2016, it was pleaded that the petitioner/Institute had "strong reservations" against the inspectors who carried out the inspection on 09.03.2016. It was also alleged that the inspectors were least interested in inspecting the standard of the petitioner/Institute. 28. Now learned counsel for the petitioner/Institute, in his arguments, did not utter a single word as to how and the manner in which the inspection was conducted on 09.03.2016 violated any provision of P.M.&D.C. Ordinance or the Regulations made thereunder. There is no material, much less cogent material, on the record for me to come to the conclusion that the inspectors who conducted the inspection on the said date were biased or had harboured an ill will against the petitioner/Institute. Fanciful apprehensions of bias are never considered enough to undo such inspections. There must be reasonable evidence to satisfy that there was real likelihood of bias in the conduct of the inspectors. Such evidence is lacking in the case at hand. 29. The first communication by the petitioner/Institute with P.M.&D.C. after the said inspection was the letter dated 16.03.2016, wherein the petitioner/Institute simply requested P.M.&D.C. to clarify whether the inspection carried out on 09.03.2016 was a surprise inspection or a comprehensive inspection. In the said letter , the petitioner/Institute did not take a position consistent with its subsequent pleadings in writ petition No.1817/2016 qua the manner in which the inspection was conducted by the inspectors in that no allegation of bias was made against the inspectors in the said letter . Furthermore, the petitioner/Institute, in its comments to the inspection report, took the position inter-alia that the dealings of a few inspectors with the head of concerned departments had not been in consonance with the professional excellence, courtesy and esteem that could be expected from the inspectors. It was also alleged that the Principal' s presentation had not been fully heard, and that some of the facilities had not been fully inspected. These allegations were…
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