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Petitioner: Hamza Bashir and others VS Respondent: Pakistan Medical Commission through JUDGMENT
Court Name: Lahore High Court Judge(s): Ayesha A. Malik Title:Hamza Bashir and others vs Pakistan Medical Commission through
JUDGMENT
Reported As: PLD 2021 Lahore 654 Result: Petition allowed Judgment JUDGMENT AYESHA A. MALIK J.---This common judgment decides upon the issues raised in the instant Petition as well as connected W.Ps. Nos.30812/2021, 3007 8/2021, 30479/2021 and 34213/2021 as all the Petitions raise common questions of law and facts. The Petitioners are students of the Respondent medical and dental colleges and have challenged advertisement dated 29.4.202 1 issued by the Examination Department, Pakistan Medical Commission, Islamabad ("PMC") wherein the process of re-admission is to take place with respect to the listed colleges, which includes the college of the Petitioners along with order dated 24.4.2021 issued by the PMC in the instant Petition as well as in W .P. No. 30479/2021, W .P. No.30078/2021 and W .P. No.30812/2021. 2. Facts of the case are that the Petitioners are all students who took admission in medical and dental colleges for the 2020-21 session. They have paid the fees and are attending classes for the past three months. The Petitioners are aggrieved by the advertisement dated 29.4.2021 issued by the Examination Department PMC which essentially calls for the process of re-admission in the medical and dental colleges which includes the college of the Petitioners that is Sahara Medical College , Narowal (W.P. No.30346/2021 and W.P. No.34213/2021), Akhtar Saeed Medical and Dental College, Lahore (W.P. No.30078/ 2021) and Al-Aleem Medical College, Lahore (W.P. No.30812/2021 and W .P. No.30479/2021). 3. The case of the Petitioners is that there is no justification whatsoever for commencing this process of re- admission given that the Petitioners have participated in the admission process and have passed the Medical and Dental Colleges Admission Test ("MDCA T") but also the interview . After participating in an extremely competitive process they were admitted in the respective colleges and have commenced their education in terms thereof. The Petitioners are also aggrieved by the order dated 24.4.2021 issued by the PMC on the basis of which PMC has concluded that the admission process for the respective medical colleges are tainted, in contravention to the
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admission regulations and that the interview process is non-transparent, in violation of the regulations, hence cancelled. The Petitioners stated that on the basis of a general order , the rights of the Petitioners with respect to their admission in medical colleges has been severely prejudiced; that they have not been heard and that the allegations levelled against the respective Respondent colleges do not necessarily establish any involvement of the Petitioners in procuring admission nor does it suggest that the merit of the Petitioners does not warrant admission. 4. Report and parawise comments have been filed on behalf of Respondent PMC in all the Petitions. They have raised a preliminary objection with respect to the maintainability of the Petitions on the ground that remedy of appeal under Section 37 of the Pakistan Medical Commission Act, 2020 ("PMC Act") is available to the Petitioners and they can challenge the impugned orders of 24.4.2021 by filing an appeal before the Medical Tribunal which has been established pursuant to the Medical Tribunal Act, 2020 ("MT Act"). Learned counsel for the Respondent PMC stated that since the Medical Tribunal is functional and its rules and regulations have been framed, hence the Petitioners may approach the Medical Tribunal for redressal of their grievance, In this regard, learned counsel has relied upon Section 10 of the MT Act which provides for the abatement of any suit or proceedings with reference to any matter which falls within the jurisdiction of the Medical Tribunal. Learned counsel also stated that the PMC received numerous complaints with reference to the admission process of different colleges and after giving a. hearing to the relevant colleges, the PMC concluded that there were serious violations of the regulations; that the interview process was not transparent and that the colleges were unable to substantiate that they followed due process and the regulations with reference to the admissions. Learned counsel pointed out that some of the discrepancies highlighted are that the challan forms issued by the colleges were paid prior to any merit list being issued; that the students were admitted after the cutof f date; that no interview was conducted nor any merit list was issued; that the various different provisions of the PMC Act and the Admission Regulations (Amended) 2020-2021 ("2020 Regulations") have been violated. Learned counsel stated that notices were issued to the colleges pursuant to which the impugned order dated 24.4.2021 was issued. In this regard, he further explained that the impugned advertisement does not mean or suggest that the admission of the Petitioners have been cancelled. The advertisement basically calls upon students to apply for admissions, being those students who did not get admission in any college yet are on the merit, so that their cases can be considered with reference to the colleges listed in the advertisement. Hence he stated that the objective is to find students who were deliberately denied admission even though they fell within the merit of the college. 5. Reply has also been filed on behalf of the respective colleges. It is their common case that the allegations levied are totally without basis; that they are general in nature and that the complaints filed against the colleges do not necessarily suggest that the college has compromised on the merit. It is their case that a proper inquiry has not been conducted in the matter and instead a general order has been passed declaring their admission process faulty which is totally without basis. In this context, learned counsel for Al-Aleem Medical College, Lahore in W.P. No.30812/2021 stated that the allegation levied against the college has nothing to do with the admission process rather it is with reference to the procuring a proper insurance policy . In this regard, learned counsel for Respondent PMC has clarified that show cause notices were issued to all the colleges before the Court regarding the irregularities in the admission processes for the session 2020-21, including Al-Aleem Medical College, Lahore. 6. In terms of the reply filed in the instant Petition by Sahara Medical College, documents have been appended along with specific replies to all the allegations essentially to counter the fact that the complaints filed necessitated PMC to issue the impugned advertisem ent. It is their case that they followed the rules and regulations; they published the interview schedule along with merit list and that with reference to the complaints appended with the reply of the PMC most of the students do not even fall within the cutof f merit of the college. So it is stated that the closing merit of Sahara Medical College is 75.909% whereas the complainants referred to in the reply filed by the PMC do not meet this merit. Essentially they have refuted the factual basis on which PMC has concluded that the college has contravened the requirements of the 2020 Regulations. Preliminary Objections 7. The preliminary objection raised by the counsel for PMC is that in terms of Section 37 of the PMC Act, an appeal lies to the Medical Tribunal against any order of the PMC. Hence, the instant Petitions are not maintainable as the
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Petitioners can file an appeal before the Medical Tribunal. Section 37 of the MT Act is reproduced as under: (1) Any person including an employee of the Commission aggrieved by any order or direction of the Commission, including the Council, Authority or disciplinary committee, under any provision of this Act, or rules or regulations may prefer an appeal only before the Medical Tribunal within thirty days of the date of communication of the impugned order or decision. (2) An appeal to the Medical Tribunal shall be in such form, contain such particula rs and be accompanied by such fees as may be prescribed. The MT Act establishes the Medical Tribunal under section 4, to hear appeals, complaints, or claims in terms of section 6(11) of the MT Act. In terms of the PMC Act, section 32 provides for disciplinary proceedings, suspension or cancellation of license. Subsection (3) of section 32 provides that the PMC shall on the complaint of any person or authority or of its own motion on information received, initiate disciplinary proceedings against any recognized institution in respect of medical negligence, misconduct or violation of any obligati on under the Act or any rules or regulations or directions of the PMC. This order is appealable under section 37 of the PMC Act before the Medical Tribunal. Hence a complaint can either be heard by the PMC or can be heard by the Medical Tribunal with respect to irregular admissions or invalid admissions or refusal of admission. In these cases PMC has statedly heard about 400 complaints against dif ferent colleges with reference to irregular admissions. 8. In this context, it is also important to note that although PMC claims to have taken action as a consequence of the 400 complaints that were heard, surprisingly they have not concluded in any of the impugned orders that any one of the 400 complainants deserves admission on merit and was not granted the same. They have also not concluded that any particular complainant has established that they were deliberately and wrongfully denied admission. The PMC concluded in the impugned orders that the admission process lacked transparency and is in contravention to the 2020 Regulations. However they have not pointed out which of the admitted students was wrongfully admitted against the merit and in contravention of the 2020 Regulations. Furthermore the impugned advertisement calls for students who were denied admission to come forward, with their merit so that it can be checked as to whether the colleges acted against the 2020 Regulations yet there appears to be no justifiable reason to issue the advertisement in search of other students. who have been denied admission, when in the first instance PMC should have decided upon the complaints and the fate of the complainants admissions before it went in search of other candidates. The fundamental flaw in the impugned advertisement is that it appears to be reaching out to candidates, once again to apply to the named medical and dental college on the basis of their previous merit to ascertain whether or not they were left out of the process. If these candidates have not approached the PMC till date, notwithstanding the fact that the PMC was hearing complaints on the matter , there appears to be no reason for issuing the impugned advertisement and reaching out to candidates who have not filed any complaints. Furthermore PMC should have inquired into the individual complaints filed before it to ascertain whether or not the college violated the 2020 Regulations and denied a deserving candidate admission. In this context, the biggest issue before the PMC was the discretion exercised by the colleges with respect to 20% marks that were allocated pursuant to the interviews. One of the PMC's grievance is that the interview marks were given without any guideline in a non-transparent manner , adverse to merit. However , this too is a general impression and the PMC has admit tedly not considered the case of each and every complainant vis-a-vis the allocation of marks given in the interview to a candidate to conclude wrongful exercise of discretion. Although discretion is given to private medical colleges to grant 20% marks for the interview , there is nothing in the impugned orders to show that the PMC has identified candidates who were wrongfully admitted, hence their admission should be cancelled. 9. Learned counsel for PMC claims that the PMC heard 400 complaints and thereafter passed the impugned orders with respect to each of the Respondent medical college. The impugned orders before this Court, however are not specific orders against 400 complaints statedly filed, rather in all Petitions before the Court, the impugned orders are identical. When confronted with the same, learned counsel for PMC tried to show that there are distinguishable features in each of the orders. However , a bare reading of each order shows that essentially they are identical in terms of content and at best, each of the impugned orders with respect to each of the medical colleges before this
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Court, only gives reference the name of one student admitted beyond the cut off date. All other content is identical, reference to the Regulations that were breached are identical and the conclusion drawn in each of the impugned orders with respect to admission of the students and cancellation of the interview marks is the same. On the face of it, the impugned orders show lack of due process and natural justice as the admission of the admitted students have been suspended and their interview marks have been cancelled without hearing them and without determining whether in fact these student s were in any manner responsible for procuring their admissions contrary to the merit. As the rights of these students are adversely affected, their right to due process has been totally ignored in the decision making process. More so, even though PMC claims to have heard 400 complaints with reference to the various different medical and dental colleges, the impugned orders do not reference any specific complaint or name any of the complainants or conclude that the complaint is genuine and that candidate was deprived of admission. Hence the conclusion drawn by the PMC through its disciplinary committee in the impugned orders is presumptive and not based on a factual inquiry or due process. Consequ ently the entire decision making process is flawed and against the mandate of the law . 10. The primary objection raised by the Petitioners is that the impugned order and the advertisement is against the norms of due process and violates the principles of natural justice as the Petitioners who are all students were never heard yet in terms of the impugned order their admissions have been suspended and their interview marks have been cancelled. This means that none of the Petitioners before the Court were given a chance to reply or refute any claims made by any of the complainants before the PMC nor were they confronted with any evidence to suggest that they were in any manner involved in wrongfully procuring admission at their respective college. There is no provision under the PMC Act or its 2020 Regulations which allows the PMC to pass an omnibus order against 400 complaints that. too without giving affected parties a hearing. It may be that the PMC has formed an impression that the admission processes for some colleges was tainted and that the Respondent medical college did not diligently exercise their discretion with respect to the interview process and the interview marks or that they did not follow 2020 Regulations but PMC is required to hear a specific complaint and pass an order on its merit. 11. This Court in constitutional jurisdiction can review all actions which are contrary to the principles of natural justice, due process, in violation of statute or rules and regulations framed thereunder . The entire argument of the Respondent PMC is that the Medical Tribunal has been established under the MT Act to hear and decide all appeals, complaints or claims instituted before it. Hence the Petitioners could file a complaint before the Medical Tribunal, being the adequate, statutory remedy available to them. In this regard while the general rule is that where there is a statutory remedy available, then writ jurisdiction should not be invoked, there are exceptions to this rule, which will depend on the facts and circumstances of the case. The august Supreme Court of Pakistan in various different judgments has held that constitutional jurisdiction can be invoked to rectify errors for which there is no adequate or efficacious remedy; where orders are patently illegal; in abuse of authority , without jurisdiction or in excess of jurisdiction, in violation of the statute or even to avoid multiplicity of disputes so as to protect and preserve the rights before the Court. The august Supreme Court of Pakistan has defined adequacy and efficacious remedy so as to ensure that the forum available should redress the grievance appropriately . Reliance is placed on Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act Gujranwala and 57 others (PLD 2002 SC 452), Muhammad Aslam v. Senior Member (Colonies), Board of Revenue, Punjab and others (2004 SCMR 1587 ), Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others (2011 SCMR 1813 ) and Haleem ur Rehman v. Province of Sindh and others (2019 SCMR 1653 ). In the instant cases, the impugned orders are not appealable before the Medical Tribunal because they are not specific orders passed on a specific complaint. The impugned orders are all identical and have suspended the admission of the Petitioners and their interview marks without hearing them. On the face of it, PMC has not exercised its authority as per law and the entire decision making process is contrary to the principles of due process. 12. Therefore in the context of the above , this Court can always in constitutional jurisdiction review the decision making process in order to ensure that the competent authority has acted in accordance with law, maintained the principles of natural justice and due process and has not in any manner abused its authority . To the mind of this Court, the orders impugned through these Writ Petitions are in violation of the statutory mandate given to the PMC
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to hear complaints and decide upon the same. They are also in violation of the statutory mandate given to PMC to oversee the admission process and to take disciplinary action where required. As this aspect of the matter touches merits of the case, I deem it appropriate to decide the same on its merits holding that the instant Petitions as maintainable and that the remedy before the Medical. Tribunal neither adequate nor efficacious for the purposes of the dispute before this Court. On merit 13. The basic issue before the Court is whether the PMC is authorized under the PMC Act to pass the impugned orders and issue the impugned advertis ement on the basis of which it has attempted to initiate admission for candidates who applied to a medical or dental college in the published list, as per the advertisement, yet were not admitted in the medical or dental college and are re-invited on the basis of the advertisement to submit their intent for admission. 14. The PMC was established pursuant to the PMC Act. The preamble of the PMC Act sets out its objectives that is to provide regulations and control of the medical profession as well as to establish a uniform minimum standard of basic and higher medical education and training and recognition of qualifications in medicine and dentistry . One of the basic functions of the PMC is to frame regulations for conduct of admissions in medical and dental colleges and to approve the examination structure and standard of the MDCA T. It is important to note that the PMC in terms of Section 3 of the PMC Act consists of a Medical and Dental Council, the National Medical and Dental Academic Board and the National Medical Authority . The National Medical and Dental Academic Board in terms of Section 13(c) of the PMC Act is responsible to formulate examination structures and standards for the MDCA T for approval by the Council. The National Medical Authority is responsible to conduct the examinations provided for under the PMC Act and is also responsible to implement the decisions of the Council and the Board. The MDCA T is conducted pursuant to Section 18 of the PMC Act, annually on a date approved by the Council as per the standard approved by the Board. Section 18(3) of the PMC Act provides for admission to medical or dental programs conducted by public colleges to be regulated as per the policy provided by the Provincial Government and admissions to private college in accordance with the criteria and requirements stipulated by the private college, at least one year in advance of the scheduled admissions which will include any entrance test to be conducted by a private college. It also provides that the marks obtained in the MDCA T will constitute fifty percent of the weightage for the purposes of admissions in public colleges. Section 18 does not provide any information with reference to the admission criteria and the weightage that is to be given by a private college for admission. In this context, the 2020 Regulations which were issued pursuant to section 8(2)(f) of the PMC Act are relevant. These Regulations are applicable to all private and public medical and dental colleges with reference to 2021 session specifically . It is important to note that it is with reference to these regulations that the impugned orders have concluded that the Respondent Colleges have not been compliant with the prescribed admission requirements. 15. The 2020 Regulations provide that any student seeking admission in any medical or dental college has to pass the MDCA T exam and the passing marks were statedly 60%. All admissions in public and private medical and dental colleges had to be concluded before 21.2.2021 and classes were required to begin from February 2021. All private and public colleges have allocated number of seats and no college is allowe d to admit beyond the allocated seats. These Regulations also regulate admissions in private colleges. Relevant to the dispute are Regulations 18, 19, 19A to 19F which PMC has relied upon to show that the Respondent colleges have not fulfilled the prescribed requirements. 16. By way of background it is important to note that the PMC was established pursuant to the PMC Act which was promulgated on 22.9.2020 and was published in the official gazette on 24.9.2020 . The advertisement for holding the MDCA T by the PMC was published on 22.10.2020 and the MDCA T was conducted on 29.11.2020 and 13.12.2020 (for students who had tested Covid-19 and were unable to appear on the examination held on 29.11.2020). The result of the MDCA T was announced on 16.12.2020. During this time the relevant Regulations were the Admission Regulations 2020-2021. The PMC thereafter issued the Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 ("2021 Regulations ") on 4.6.2021 which now govern the admission process. However , so far as the 2020 Regulations are concerned, it is important to note that
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these Regulations were amended twice, once on 17.11.2020 and then on 23.12.2020. Hence it would be fair to state that until 23.12.2020 the process of regulating the admissions for the year 2020-21 was undergoing change. In this regard, the Private Association of Medical and Dental Institutions ("PAMI") also challenged the role of the PMC with reference to admissions in private colleges and ultimately with the intervention of the Court, a consensus was reached between the PMC and PAMI whereafter the 2020 Regulations were amended and specifically Regulations 19A to 19F were incorporated. A significant change was brought abou t which allowed private medical and dental colleges to give weightage, such that 50% MDCA T, 30% F.Sc or its equivalent and 20% marks reserved for interview by the private colleges. For the purposes of the dispute at hand, PMC has raised questions specifically with respect to the manner in which the 20% marks were given, that is the decision making process and the discretion exercised by the private colleges when awarding 20% marks in the interviews. The basic contention of PMC before the Court is that transparency and merit be maintained and it is in the context of achieving these goals of transparency and merit that this entire exercise is being undertaken. Hence PMC states that it is scrutinizing the admission process and the merit list to ensure that the 2020 Regulations have been complied with, that the merit list has not been compromised and more importantly candidates who claim that they were deliberately ousted from the system notwithstanding their merit are not denied the opportunity to pursue a career in the medical or dental profession. 17. In the context of the instant Petition, as per the record, notices were issued to the college on 5.4.2021 to appear on. 8.4.2021 and the impugned order was passed on 24.4.2021. As per the impugned order , para 7 refers to one student who was admitted after the close of the admission deadline in violation of…
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