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Petitioner: Peoples University of Medical & Health Sciences for Women & others VS Respondent: Pakistan & others
Court Name: Sindh High Court Judge(s): Muhammad Ali Mazhar, Adnan Iqbal Chaudhry Title:Peoples University of Medical & Health Sciences for Women & others vs
Pakistan & others Case No.: C.P. Nos.D-4953, 5036, 5158, 5237 of 2020 Date of Judgment:2020-12-11 Reported As: PLD 2021 Sindh 256, 2020 SHC 1312 Result: Petition disposed off Judgment ORDER Muhammad Ali Mazhar , J. In point of fact, out of aforementioned constitutional petitions, some petitioners brought this action to challenge the vires of Pakistan Medical Commission Act, 2020 and the Regulations 2020-2021 framed thereunder . Quite the reverse, some of them have only entreated for the implementation of the same law effectually rather than combating the vires of PMC Act 2020. For the ease of reference, the synthesis and divergent aftermath of the prayer clauses jot down in each petition is reproduced one after the other as under: 1. C.P .No.D-4953/2020. The petitioners have entreated for the declaration that Section 18 of the Act 2020 is ultra vires the Constitution, and PMC Regulations 2020-2021 framed by the Council under the Act 2020 are without lawful authority . Notification dated 24 September 2020 issued by the Respondent No.1 for withholding the admission process already initiated by the petitioner No. 1 is ultra vires Section 18 of the Act 2020 and allow Admitting University to continue the admission process as initiated pursuant to the MBBS & BDS Regulations 2020 made in accordance with the Pakistan Medical and Dental Council Ordinance 1962. 2. C.P . No.D-5036 of 2020 In pith and substance, the petitione rs have virtually prayed that MDC AT being conducted by the respondent No.3 in second week of November without fulfilling mandatory legal criteria of setting up an Academic Board is without lawful authority and in violation of PMC Act. Direct respondent No.4 to furnish the applicable syllabus and explain with clarity to the admission criteria. 3. C.P .No.D-5158/2020 Declare that Section 4 of the Act 2020 is ultra vires the Constitution and is liable to be struck down. Declare that the Notification dated 25 September 2020 issued by the Respondent No. 1 appointing Respondent
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Nos. 4 to 10 as members of the Medical and Dental Council is without lawful authority and without jurisdiction. Declare that the Respondent Nos. 1 to 10 have no authority in law to conduct MBBS and BDS entry test by invoking the provisions of Section 18 till such time that a national curriculum is issued. Sub- section 2 of section 50 of the Act 2020 are violative of the Constitution. Declare that the MBBS and BDS Regulations 2020 framed by the erstwhile PMDC and all decisions taken by the Ad-hoc Council are saved under Section 50 (2) of the Act 2020 and cannot be undone by inserting the provisos to Section 50 (2). 4. C.P .No.D-5237/2020 Declare that the MDCA T under Section 18 of the PMC Act, 2020 being conducted by Respondent No.2 without fulfillment of legal requirements is unlawful and in violation of the fundamental rights of the petitioners. To declare that the Regulation 16 and 17 of the PMC Regulation 2020-2021 framed by the Respondent No.2 under the Act, 2020 have been issued without any lawful authority and are in violation of fundamental rights under Article 4, 9 and 10A of the Constitution and are of no legal effect. To direct the respondent No.2 to frame policy , clear procedure with regards to the admission based on domicile. 2. Mr. Sarmad Hani, learned counsel for the petitioners in CP.No.D-4953/2020 and C.P.No.D-5158/2020, argued that education after promulgation of 18th Amendment has become a Provincial subject which has been overlooked in 2020 Act. Every Province may set its own curriculum and syllabus for Higher Secondary education therefore centralized admission test would tantamount to violate legislative competence of the Province therefore Section 18 of the Act 2020 is violative of the Constitution. The directives issued by the Depu ty Secretary of the Respondent No. 1 on 24 September 2020 are without lawful authority . It was further contended that Section 18 (3) of the Act is in conflict with sub-section 1 & 2 of Section 18 of PMC Act as much as the policy for admissions to Medical and Dental programs conducted by the Public Colleges are regulated on the basis of the policy formulated by the Provincial government and not otherwise. The PMC Regulations 2020-21 promulg ated by the Council are without any lawful authority and in complete derogation of Section 8 (2) of the Act 2020. It was further averred that Section 4 confers unrestricted and unimpeded powers to the Prime Minister to appoint members of the Medical and Dental Council without providing any selection criteria or competitive process which is violative of the fundamental rights envisioned in the Constitution. He also referred to the judgment of Islamabad High Court in the case of Saira Rubab Nasir vs. President of Pakistan (PLD 2020 Islamabad 130) in which the learned Islamabad High Court held that appointments were made without any selection criteria and that they were compromised. He further argued that Section 50 (2) of the Act 2020 saves all the decisions taken, regulations made or amended and disciplinary action(s) taken by the defunc t PMDC pursuant to the repealed Ordinance, whereas sub-section (2) of the Section 50 of the Act, 2020 saves all acts, decisions and regulations of the erstwhile PMDC and provides that the same have been validly made. After saving the aforesaid acts of the repealed Ordinance, a proviso to subsection (2) of Section 50 has been inserted which contradicts and nullifies the saving enacting section i.e. Section 50(2). The proviso, therefore, cannot be given effect to as the same is in direct conflict with the enacting section which cannot override the enacting provisions. 3. Mr. Jibran Nasir Advocate for petitioners in C.P. No.D-5036 of 2020, argued that the respondents while assuming powers to formulate and conduct national and provincial tests cannot ignore the basic fundamental rights of the students for whose benefit the said tests are to be conducted. The perplexity created on promulgation of 2020 Act resulted much confusion with regard to the syllabus, criteria and weightage of the MDCA T. In simple terms this is a gross failure in determination of the merit upon which the petitioners and students across Sindh are to secure admission in private and public medical and dental universities and colleges. In fact the learned counsel made much emphasis that without constituting the Authority and Board, the announcem ent to hold MDCA T is without lawful authority and PMC issued a press release which is also available at their website which shows that they themselves are not confident that syllabus of MDCA T has been harmonized and set according to FSC syllabus of all Provinces and it has been left on the candidates to collect objection form before appearing in the examination hall and submit objections on it if they feel that some questions are out of syllabus. During course of argument, the learned counsel on instructions stated at bar that he does not press prayer clause (3) of his petition.
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4. Ms. Umaimah Mansoor , Advocate for the petitioners in C.P. No. D-5237/2020 argued that PMC Act, 2020 and PMC Regulations 2020 effectively deny the students the right to choose the university of their choice and leaves the discretion upon the respondent No.2 without any check and balance wherefore the student is deprived of his fundamental right and the respondent No.2 is left unchecked depriving the students of merit and the chance to study in the medical college of their choice. It was further contended that Regulation No. 16 and 17 of PMC Regulations, 2020-2021 are unreasonable. The learned counsel also made much emphasis that without appointing Authority to conduct MDCA T and the Board for setting syllabus, the holding of MDCA T is illegal and grave violation of PMC Act 2020. 5. Mr. Zeeshan Abdullah, learned counsel for the PMC argued that all provisions of Pakistan Medical Commission Act 2020 ("PMC Act, 2020") have been validly enacted by the Parliament therefore these are intra-vires. Section 18 is not inconsistent with any fundamental right enshrined under the Constitution, 1973. The Notification manifests that it only conveyed information that as per Section 18 of the Act, 2020 MDCA T shall be conducted by PMC for students seeking admission anywhere in Pakistan. It was further contended that Proviso to Section 18 (2) states that MDCA T shall be mandatory for all students who have been enrolled in medical or dental under-graduate programs in the year 2021 and thereafter . The Council did not stop the Sindh Admitting University from taking an entrance exam if they wanted that as part of their additional criteria in addition to the MDCA T for admission to public colleges. The syllabus is a common syllabus ensuring that no topic or question exceeds the syllabus of any Province which has been finalized by a Committee set up with the Examination Committee of the Council and a representative of each Province was invited but Province of Sindh did not send their representative. The Academic Board?s function under Section 13(1)(c) to formulate standard of MDCA T is subject to approval of Council, which is the primary approving authority , hence in the absence of the Board the Council has the power under Sec.8 (2) (f) read with Sec.13 (1) (c) to formulate the MDCA T standard and structure. The learned counsel further argued that the judgment passed by the Islamabad High Court was related to Pakistan Medical Commission Ordinance, 2019, promulgated by the President of Pakistan in exercise of power conferred in him under Article 89 of the Constitution 1973, however , the instant legislation has been made by the Parliament, therefore, the said Judgment is not applicable to the Act impugned in the insta nt Petition. Moreover , to challenge the above judgment, ICA is pending in IHC. He further argued that Higher Education and Professional Education was never devolved under 18th Amendment of the Constitution 1973. PMC is the licensing regulator , if each Province wants to have its own standards and regulators than no one in the world will recognize a degree or license from Pakistan as there will be no uniform methodology to verify the same. He further contended that the Council invited all the Provinces in a conference to set MDCA T paper . It was further contended that petitioners have failed to consider impact of Entry 12 of Federal Legislative List, part-II, of Constitution, 1973. After passing Bill in respect of PMC Act 2020, by the Parliament, the President assented on 22.09.2020 and subsequently Act, 2020 was notified on 24.09.2020. The impression of admitting university that since they started the process hence no law could have been made is nothing but a misconception of law . 6. Mr. Sheheryar Mehar , the learned A.A.G, argued that the PMC Act 2020 is against the policy of Province of Sindh. The open merit should be only for provincial level and not for general. The syllabus and curriculum for the students sitting in entry test for admission in MBBS and BDS program should be structured by Provincial Government. The syllabus of the Sindh cannot be compared to other Provinces therefore the policy of the PMC Act is not suitable for the students of Sindh. It was further contended that there is no provincial representation in the Council and the PM has been given absolute power of selecting the members of the Council, whereas in Ordinance 1962 the members were elected. The 2020 Act does not provide any guideline and criteria of qualification for the appointment of the members of the Council. The single admission test is not possi ble in the country because there is no common syllabus at national level. 7. The learned DAG argued that the law in question has been validly enacted by the Parliament. The petitioners failed to point out any infringement or violation of fundamental rights. The petitioners cannot be construed aggrieved persons hence petitions are not maintainable. The provisions challenged under the Act are intra vires and within the legislative competence of the Parliament in line with the Federal Legislative List.
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8. An Intervenor National Testing Service also moved an application under Order 1 Rule 10 C.P.C for joining them as proper and necessary party on the foothold that due to cancellation of aptitude test as was being conducted by admitting university under old PMDC Regulations through them on 18.10.2020, NTS has suffered monetary losses as they had already made some arrangements on their engagement of services by the petitioner No.1 (C.P.No.D- 4953/2020). In fact, this Intervenor has entreated for the directions to pay their dues by the Petitioner No.1 of the aforesaid petition. 9. In the beginning, we would like to embark upon the question raised up in two petitions that Section 4 and Section 18 of the Pakistan Medical Commission Act, 2020 (PMC Act, 2020) are ultra vires the Constitution and as a consequence, Pakistan Medical Commiss ion Admission Regulations 2020-2021 have no legal effect. For the ease of convenience, Section 4 and 18 of PMC Act 2020 are reproduced as under: Section 4 of PMC Act 2020 "4. Composition of the Council.-(1) The Council shall comprise the following members to be notified after approval by the Prime Minister of Pakistan in the official Gazette, namely:- (a) three members of civil society who shall be nominated by the Prime Minister of Pakistan consisting of a nationally recognized philanthropist or person of known repute, a legal professional and a chartered accountant; (b) three members being licensed medical practitioners with at least fifteen years' experience of outstanding merit and not being the vice-chancellor , dean, principal or administrator or owner or shareholders of a medical or dental university , college or hospital, nominated by the Prime Minister; (c) one member being a licensed dentist with at least fifteen years' experience of outstanding merit and not being the vice-chancellor , dean, principal, administrator or owner or shareholder of a medical or dental university , college or hospital, nominated by the Prime Minister of Pakistan; (d) one member being the Surgeon General of the armed forces medical service or his nominee; and (e) the Secretary of the Division. (2) After the notification of the members of the Council, the Division shall forthwith and not later than fifteen days of the issuance of notification, call the first meeting of the newly constituted Council. A minimum of seven members of the Council shall constitute a quorum for the purposes of meeting of the Council. (3) The President and Vice-President of the Council shall be appointed from amongst the members of the Council by the Federal Government. (4) No member shall enter upon office of the member of the Council until he signs and submits a declaration of no conflict of interest. (5) The Council shall be deemed to be not properly constituted if its membership falls below six members. (6) Subject to sub-section (5), 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." Section 18 of PMC Act 2020 "18. Medical and dental colleges admissions tests (MDCA T).-(1) The Authorit y shall conduct annually on a date approved by the Council and as per standards approved by the Board a single admission test which shall be a mandatory requirement for all students seeking admission to medical or dental under-graduate programs anywhere in Pakistan. (2) No student shall be awarded a medical or dental degree in Pakistan who has no passed the MDCA T prior to obtaining admission in a medical or dental college in Pakistan: Provided that such requirement shall be mandatory for all students who have been enrolled in medical or dental under-graduate programs in the year 2021 and thereafter . (3) The admission to medical or dental programs conducted by public colleges shall be regulated as per the policy of the Provincial Governme nts strictly on merit and admission to a private college shall be in accordance with the criteria and requirements stipulated by the private college at least one year in advance
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of admissions including any additional entrance test as may be conducted by a private college subject to any conditions imposed by the relevant university to which such college is affiliated: Provided that the marks obtained by a student in the MDCA T conducted by the Authority shall constitute a minimum of fifty percent of the weightage for the purposes of admission in the public colleges." 10. The learned counsel for the petitioners upstretched the plea that appointment of the members under Section 4 of the PMC Act 2020 in the Pakistan Medical Commission should be channeled through an open and transparent policy and equal opportunity should be provided to all persons who may apply for the post of members in the Council whereas unbridled or boundless powers have been accorded to the Prime Minster . In the case of Syed Mahmood Akhtar Naqvi and others vs. Federation of Pakistan & others reported in PLD 2013 S.C 195, the apex court held that whenever there are statutory provisions or rules or regulations which govern the matter of appointments, the same must be followed, honestly and scrupulously; even no explicit rules governing the appointment process and the appointments are to be made in the exercise of discretionary powers, such discretion must be employed in a structured and reasonable manner and in the public interest. It was further held that appointing authorities cannot be allowed to exercise discretion at their whims or in an arbitrary manner; rather they are bound to act fairly, evenly and justly and their exercise of power is judicially reviewable. In the case of Syed Mubashir Raza Jaffri and others vs. Employees Old-Age Benefits Institutions (EOBI) & others (2014 SCMR 949), again apex court held that appointments to public offices are to be made strictly in accordance with applicable rules and regulations, without any discrimination and in a transparent manner . All appointments to public institutions must be based on a process that was palpably and tangibly fair and within the parameters of its applicable rules, regulations and bye-laws. Whereas in the case of Muhammad Yasin vs. Federation of Pakistan and others. (PLD 2012 Supreme Court 132) it was held that if the criteria prescribed by law are not met, any appointment made would be violative of the law and would, therefore, necessarily be subject to judicial review . 11. If we preview the prelude and prologue of Pakistan Medical Commission Act, 2020 it unambiguously expounds that it lays down the law to regulate and control medical profession with an eye to establish uniform minimum standard of basic and higher medical education and training and recognition of qualifications in medicine and dentistry . Section 3 of Act commands the Federal Government to establish Pakistan Medical Commission. In tandem, Section 4 writes down the configuration and constituents of Council to be notified in pursuit of approval of Prime Minister in the official gazette. In the same section, the benchmarks for the appointment and qualification are also jot down. The learned counsel for the petitioners challenging the vires of this section made much emphasis that unbridled discretionary powers have been bequeathed to the Prime Minister to appoint the members and no parameters or see-through and or translucent procedure have been provided for the appointment of members. What we have deciphered from the solemnity of this section is that Clauses (a) to (e) in essence converged to the members of the Council appointed by the Prime Minister that is to say three memb ers of the civil society consisting of a nationally recognized philanthropist or person of known repute, a legal professional and a chartered accountant; three members amongst licensed medical practitioners and one member being a licensed dentist, all should have at least 15 years experiences of outstanding merit and not being the vice chancellor , dean, principal or administrator or owner or shareholders of a medical or dental university , college or hospital; one member being the Surgeon General of the armed forces medical service or his nominee and the Secretary of the Division. Nonetheless the Council is to be notified after approval of the Prime Minister but the qualification and experience of each member to be appointed is clearly mentioned in Section 4. With the intention of avoiding conflict of interest or any bias, Section 4 has also disqualified and debarred the persons from consideration including vice chancellor , dean, principal or administrator or owner or shareholders of a medical or dental university , college or hospital. It is further provided in sub-section 4 that no member shall enter upon office of the member of the council until he signs and submits a declaration of no conflict of interest while Section 5 of the Act, lays emphasis on that no person, his spouse or children shall be eligible to become a member of the council if they or any one of them has any conflict of interest being an owner or having any direct or indirect financial interest in medical or dental institution which in our outlook is a footstep to uphold and keep up transparency in the affairs of the Council so that the decision of the Council should be free from decision structured on personal interest, nepotism and or preconceived notion.
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12. Nonetheless under Section 4 of the PMC Act 2020, powers have been given to appoint members with the approval of the Prime Minister and we also declared such provision intra vires in our short order but here we feel it our utmost sense of duty to put into operation the doctrine of reading down of a statute. What we have noted that no guiding principle, procedure or modus has been assimilated to structure the discretionary powers or to begin with the recruitment or appointment proce ss of members of the council and if we glance at Section 15 of the PMC Act 2020 in juxtaposition which is in particular associated to the composition of National Medical Authority , it sets down in sub-section 2 that council shall appoint the members of this authority through a "transparent process" on merits but this expression "transparent process" which has manifold connotations and broad spectrum is missing from the provision crafted for the appointments of the members of the council under Section 4 before approval of P.M. In our considerate visualization, prior to accomplishing or getting hold of approval of Prime Minster for appointment, there must be evenhanded procedure and watertight course of action to short list the interested candidates? profile and after due diligence, short listing and weighing the credentials and antecedents if found commensurate to the required qualification, a dossier should be placed before the P .M for his approval. 13. As a general rule or by and large, the recruitment or selection process in the statutory bodies or in other government departments is guided and navigated by some rational and translucent principles and procedure to afford fair and equal opportunity to all eligible candidates who intend to join recruitment/selection process. Regardless that the appointments are being made directly under a statute withou t the intervention of competitive process or public service commission but to ensure transparency and fair-min dedness, applications could be invited through advertisements of vacant posts in the vernacular newspapers with defined procedure for submitting curriculum vitae and walk-in job interview so that the best of the best could be appointed. The utmost compelling advantage of transparency in the recruitments essentially ratifies and disseminates public confidence in the impartiality and authenticates that the appointment process is not manipulated or sham but it is free from favoritism, nepotism or bias. 14. We are sanguine that while reading down of a statute two principles had to be kept in view; first that the object of 'reading down' was primarily to save the statute and in doing so the paramount question would be whether in the event of reading down, could the statute remain functional; second, would the legislature have enacted the law, if that issue had been brought to its notice which was being agitated before the court. (Ref: Province of Sindh and others vs. M.Q.M. and others. (PLD 2014 Supreme Court 531). In the case of Delhi Transport Corporation vs. D.T.C. Mazdoor Congress (equivalent citations: AIR 1991 SC 101, 1990 Supp 1 SCR 142), the court held that the doctrine of reading down or of recasting the statute can be applied in limited…
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