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Petitioner: Syed Mohammad Hassan Raza Rizvi and others VS Respondent: Federation of Pakistan JUDGMENT
Court Name: Islamabad High Court Judge(s): Miangul Hassan Aurangzeb Title:Syed Mohammad Hassan Raza Rizvi and others vs Federation of Pakistan
JUDGMENT
Reported As: 2021 IHC 264, 2022 MLD 227 Result: Accordingly dismissed Judgment JUDGMENT MIANGUL HASSAN AURANGZEB, J. Through the instant writ petition as well as writ petitions No.1519 and 1520 of 2021, the petitioners, who have obtained undergraduate medical qualifications from colleges/institutions in the People's Republic of China ("China"), Republic of Kyrgyzstan, Afghanistan, and Ukraine, seek a declaration to the effect that the inaction on the part of the Pakistan Medical Commission ("PMC") to recognize their foreign qualifications and grant them provisional licences to undertake their house job in Pakistan is without lawful authority and of no legal effect. In particular, the petitioners assail the decision taken by the Council, which is one of the components of PMC, in its 5th meeting held on 19.02.2021 on agenda item No.12 on the subject "NLE permission for Foreign Medical Graduates graduated before January 2021." The said petitions are being disposed of through this common judgment. 2. In the said meeting, the Council had decided that students who had graduated prior to January 2021 from a foreign college contained in List-B of the colleges shall be processed for licensing on the following basis:- "a. Shall be required to show License Eligibility in the country from where they graduated if they have not acquired a license from such country. b. Qualify the NLE. c. On qualification of NLE they shall be granted Provisional License. d. Shall be required to then complete a house job in Pakistan. e. On completion of house job, they shall be granted a full license." 3. Vide letters dated 19.04.2021, the PMC informed the petitioners about the said decision. FACTUAL BACKGROUND:-
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4. The Pakistan Medical and Dental Council Ordinance, 1962 ("the PM&DC Ordinance") was promulgated on 05.06.1962 in order to consolidate the law relating to the registration of medical practitioners and dentists; to establish a uniform standard of basic and higher qualifications in medicine and dentistry; and to reconstitute the Medical and Dental Council in Pakistan ("PM&DC"). The PM&DC Ordinance was repealed by the Pakistan Medical and Dental Council Ordinance, 2019 which was promulgated on 08.01.2019 but lapsed by efflux of time. Thereafter, the Pakistan Medical Commission Ordinance, 2019 ("the PMC Ordinance") was promulgated on 20.10.2019 but was declared ultra vires the Constitution by this Court vide judgment reported as Saira Rubab Nasir Vs. President of Pakistan through Secretary, Islamabad (PLD 2020 Islamabad 130). The Pakistan Medical Commission Act, 2020 ("the PMC Act") was enacted on 22.09.2020, and Section 50(1) thereof repealed the PM&DC Ordinance whereas the proviso to Section 50(2) repealed and made unenforceable all Regulations made under the PM&DC Ordinance. 5. Section 3(4) of the PMC Act provides that the PMC shall consist of (a) the Pakistan Medical and Dental Council ("the Council"), (b) the National Medical and Dental Academic Board and (c) the National Medical Authority . SCHEME FOR THE REGISTRA TION OF GRADUA TION OR POST -GRADUA TION QUALIFICA TION FROM A FOREIGN INSTITUTION UNDER THE PM&DC ORDINANCE AND REGULA TIONS MADE THEREUNDER:- 6. Section 15 of the said Ordinance provided as follows:- "15. Power of the Council to certify certain persons to be possessed of sufficient medical qualifications. - (1) If, after an examination by a board constituted by the Council, the Council is satisfied that a person holding a qualification granted by a medical institution outside Pakistan, is possessed of sufficient knowledge and skill to be registered as a practitioner for the purpose of this Ordinance, it may recommend to the Federal Government to issue a notification in favour of such person to register him and his qualification. Upon such notification, the Council shall register the qualification possessed by the person without it being entered in any of the Schedules of this Ordinance. (2) The Council shall register the qualification granted by a medical institution outside Pakistan, possessed by the person by maintaining a separate list in the Register ." 7. In exercise of the powers conferred by Section 33 of the PM&DC Ordinance, the PM&DC, with the previous sanction of the Federal Government, made the Pakistan Registration of Medical and Dental Practitioners Regulations, 2008 ("the 2008 Regulations"). Under Part VII of the said Regulations, the National Examination Board ("NEB") was constituted by the PM&DC to conduct examinations to determine the professional competence or otherwise of a candidate for registration or equivalence of his/her foreign basic or post-graduate medical qualification, to enable the PM&DC to make a decision about the equivalence of Pakistani basic or post-graduate medical qualification to the foreign qualification. The NEB was to conduct examinations for the registration and equivalence of basic qualifications and post-graduate qualifications. 8. Regulation 44 of the 2008 Regulations required a Pakistani citizen desirous of joining an undergraduate or a post-graduate medical course in any foreign medical institution to approach the NEB for the issuance of a No Objection Certificate ("NOC") and to provide detailed documentary information regarding the qualification /cour se and the institution the student intends to join. 9. Regulation 45 of the said Regulations provided inter alia that an NOC certifying that the candidate is eligible to join a medical institution outside Pakistan to obtain the medical qualification would be issued if the candidate is found to fulfill the criteria for admission and the course and standard of the institution are acceptable to the PM&DC. The NOC was to indicate that on return, after obtaining the foreign medical qualification, the candidate shall obtain an eligibility certificate to appear in the registration and equivalence examination conducted by the NEB. The candidate' s application for the eligibility certificate was required to be accompanied by the NOC from the PM&DC to join the course. 10. Regulation 46 makes it clear that the issuance of an NOC to a candidate would not entitle him to any right whatsoever other than to take admission in an undergraduate or post-graduate medical course in a foreign medical institute and after graduation to obtain the eligibility certificate from the Registrar of PM&DC to appear in the exam conducted by the NEB.
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11. A Pakistani citizen desiring to seek registration or equivalence after achieving graduation or post-graduation from a foreign institution, and who met the requisite qualification for admission as specified by the PM&DC in its admission criteria and is issued an eligibility certificate to appear in the examination conducted by the NEB was required to pass such examination before the PM&DC granted registration or equivalence to the candidate. 12. The examinations conducted by the NEB consisted of three parts namely (i) Step-I (theory papers and basic subject), (ii) Step-II (theory papers of clinical), and (iii) Step-III (clinical / viva exam). THE PETITONERS' GRIEVANCE:- 13. It is an admitted position that all the petitioners went abroad for their undergraduate medical qualifications prior to the repeal of PM&DC Ordinance, and that they were all issued NOCs by PM&DC before they went abroad. It is also an admitted position that all the petitioners, after graduating and returning to Pakistan, cleared the first two steps of the NEB examination but prior to sitting in the third step, the PMC Act was enacted on 24.09.2020. Thereafter, the third part of the NEB examination was not conducted. Since the petitioners have not cleared all the three steps of the NEB examination, they have not been granted licences to do their house job in Pakistan. 14. As per the Press Release issued by the PMC on 04.02.2021, foreign graduates seeking licences to practice medicine and dentistry in Pakistan were required to follow the designated licencing pathways prescribed by the PMC and placed on its website. For the purposes of the pathways, the PMC had placed the assessed foreign undergraduate medical colleges in the following three categories:- (i) Category-A represents colleges and qualifications offered by these colleges that have been assessed and accredited at two levels i.e. pursuant to a physical inspection by an independent internationally recognized accreditation agency which is duly recogn ized by World Federation for Medical Education ("WFME") and is further recognized by a tier 1 international regulator (Educational Commission for Foreign Medical Graduates ("ECFMG"), General Medical Council ("GMC"), Australian Medical Council ("AMC")) in addition to recognition by the national regulator enabling graduates to be licenced in the home country . (ii) Category-B represents colleges and qualifications that are recognized by either by a tier 1 international regulator (ECFMG, GMC, AMC) or pursuant to a physical inspection by one of the independent internationally recognized accreditation agency which is duly recognized by WFME in addition to recognition by the national regulator enabling graduates to be licenc ed in the home country; hence, these colleges possess only a single tier verification. (iii) Category-C represents colleges and qualifications that possess recognition by the national regulator enabling graduates to be licenced in the home country but do not possess either of the two tiered independent verification by a tier 1 international regulator (ECFMG, GMC, AMC) or pursuant to a physical inspection by one of the independent internationally recognized accreditation agency which is duly recognized by WFME. 15. Countries with stringent internationally recognized licencing regulatory framework had been placed by the PMC in List-A whereas all other countries had been placed in List-B. A foreign college could be shifted from one List to the other based on its accreditation status in its own country and international accreditation assessments. 16. The institutions from where all the petitioners have obtained their undergraduate medical qualifications have been placed in List-B. The petitioners assert that the decision taken by the Council in its 5th meeting held on 19.02.2021 is in stark contrast to Section 20(2) of the PMC Act which is reproduced herein below:- "(2) A person, having obtained an under -graduate medical or dental qualification issued by a university in Pakistan or an under -graduate medical or denta l qualification issued by a foreign institution duly recognized by the Commission, shall be granted a provisional license to undertake his house job within fourteen days of verification of their qualification by the granting institution: Provided that the person to whom a provisional license is granted shall complete the mandatory requirement of passing the NLE at any time prior to issuance of full license. "(Emphasis added) 17. The National Licencing Examination ("NLE" ) is scheduled to be held on 27.08.2021. All the petitioners have registered to sit in the said examination. But they don't want to take the exam so soon. They want provisional licences to be issued to them right away so that they can undertake their house job, and after they complete their
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house job they say that they would take the NLE. It is for this reason that the petitioners have challenged the said decision taken by the Council which inter alia requires them to qualify in the NLE whereafter they would be issued provisional licences, provided they show licence eligibility in the country from where they graduated if they have not acquired a licence from such foreign country. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PETITIONERS:- 18. Learned counsel for the petitioners submitted that all the petitioners are citizens of Pakistan, and have obtained MBBS degrees from institutions in foreign countries after passing their Higher Secondary School/F.Sc./A Levels examinations; that the petitioners had obtained NOCs from the PM&DC under Part VII of the 2008 Regulations prior to starting their undergraduate courses in the foreign countries; that upon their return to Pakistan after obtaining MBBS degrees, the petitioners applied to the PM&DC for the issuance of eligibility certificates to enable them to sit in the NEB examination; that all the petitioners were issued eligibility certificates to sit in the NEB examination; that in 2019, the petitioners appeared in the first and the second step of the said examination but could not sit in the last step since it was suspended due to the enactment of the PMC Act; that Section 20(2) of the PMC Act provided inter alia that a person who had obtained an undergraduate medical qualification issued by a foreign institution duly recognized by the Commission shall be granted a provisional licence to undertake a house job within fourteen days of verification of their qualification by the granting institution; that the proviso to Section 20(2) provided that a person to whom a provisional licence is granted shall complete the mandatory requirement of passing the NLE at any time prior to the issuance of the full licence; that the institutions from where the petitioners have obtained their undergraduate degrees have been placed in List-B by the PMC; that all the petitioners approached the PMC for the issuance of provisional licences in accordance with Section 20(2) of the PMC Act so as to enable them to start their house job and become eligible to sit in the NLE; that the petitioners would be in a position to obtain a full licence on passing the NLE; that the PMC, in its meeting held on 19.02.2021, decided inter alia that the students who had graduated prior to January 2021 from a foreign institution placed in List-B shall be processed for licensing subject to the conditions listed in the said decision; that the petitioners have already deposited the fee and submitted the required documents for the grant of provisional licences; that the PMC has withheld the petitioners' provisional licences without any justification; that the petitioners have graduated more than two years ago but have, till date, not been issued provisional licences; and that the refusal by the PMC to grant provisional licences amounts to a transgression of the petitioners' fundamental rights enshrined in the Constitution. 19. Furthermore, it was submitted that the institutions from where the petitioners have obtained their MBBS degrees stood recognized by the PM&DC under the erstwhile PM&DC Ordinance since all the petitioners had been issued eligibility certificates to sit in the NEB examination; that under Section 50(6) of the PMC Act, all registrations and recognitions granted by the erstwhile P.M.&D.C. under the repealed PM&DC Ordinance are to be treated as registrations and recognitions granted by the PMC; that the placement of the institutions from where the petitioners have obtained their MBBS degrees in List-B is in conflict with the provisions of the PMC Act; that the decision taken by the PMC requiring students (who had obtained their undergraduate degrees from institutions placed in List-B) to sit in the NLE prior to the issuance of a provisional licence is in violation of Section 20(2) of the PMC Act; that the said provision clarifies that a candidate cannot sit in the NLE prior to the issuance of a provisional licence; that the PMC has meted out discriminatory treatment to the petitioners inasmuch as candidates similarly placed as the petitioners (i.e. who have graduated from institutions placed in List-B) have already been issued provisional licences and are presently doing their house job in hospitals in Pakistan; that several people who have obtained undergraduate degrees from the same institutions from where the petitioners graduated are registered medical practitioners in Pakistan; that the WCAME (the Medical Education Regulatory Body in China) has given time to medical institutions in its jurisdiction to get accredited and registered till 2024; that the inspection team of WCAME has not inspected several institutions due to the COVID-19 pandemic; that the institutions from where the petitioners obtained their undergraduate degrees have been recognized by the Ministry of Higher Education in China, the World Health Organization, FAIMER, and ECFMG; that the petitioner s are ready to take the NLE in accordance with the law; and that the decision taken by the Council in its 5th meeting held on 19.02.2021 is contrary to the object behind the enactment of the PMC Act, i.e. to set up uniform minimum standards of basic and5th
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higher medical education, training and recognition of qualifications in medicine and dentistry . Learned counsel for the petitioners prayed for the writ petition to be allowed in terms of the relief sought therein. CONTENTIONS OF THE LEARNED COUNSEL FOR THE PMC:- 20. On the other hand, learned counsel for the PMC took an objection to the maintainability of the instant petition on the ground that the petitioners have an alternative remedy of filing an appeal against the impugned decision taken by the Council in its 5th meeting held on 19.02.2021 before the Medical Tribunal; and that the impugned decision dated 19.02.2021 taken by the Council in its 5th meeting is an "order or direction" against which the petitioners could have filed an appeal before the Medical Tribunal. Learned counsel for the PMC prayed for the writ petition to be dismissed as not maintainable. 21. Furthermore, it was submitted that under Section 20(2) of the PMC Act, a provisional licence to undertake a house job can be granted to a person who has obtained an undergraduate medical qualification issued from a foreign institution only if such institution is recognized by the Commission; that till date, none of the institutions from where the petitioners have graduated have been recognized by the Commission; that the Council showed grace to the petitioners by allowing them to sit in the NLE so that they could prove their ability; that the Council, in its 4th meeting held on 22.12.2020, decided inter alia that graduates from a foreign institution which is not recognized by the PMC and placed by the PMC in the blacklist cannot be entertained for the grant of licence in Pakistan, however, such graduates were permitted to seek recognition of their foreign qualifications from the Higher Education Commission as non-medical undergraduate qualifications provided it shall not make them eligible for medical licensing by the PMC; that the petitioners do not fulfill the requirements of the issuance of provisional licences under any of the licensing pathways devised by the Council; that the institutions from where the petitioners have obtained their undergraduate degrees fall in Category-B; that the cases of the candidates who have obtained their undergraduate degrees from foreign institutions in Category-B have been facilitated by the Council by permitting them to qualify in the NLE whereafter provisional licences shall be granted to them provided they show licence eligibility in the country from where they graduated if they have not acquired licences from such foreign country; and that the NLE is scheduled to be held in the near future and the petitioners have already registered to sit in the said exam. 22. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petitions have been set out in sufficient detail in paragraphs 4 to 17 above and need not be recapitulated. 23. I propose in the first instance to deal with the objection taken by the learned counsel for the PMC to the maintainability of the instant petitions. 24. The Medical Tribunal was constituted pursuant to the provisions of the Medical Tribunal Act, 2020 ("MT Act") . Vide notification dated 31.12.2020, the Prime Minister has, in exercise of the powers conferred under Section 4(1) of the MT Act, established the Medical Tribunal at Islamabad to exercise jurisdiction under the said Act. Vide another notification dated 31.12.2020, the Prime Minister has, in exercise of the powers conferred under Section 4(2) of the said Act, appointed the Chairman of the Medical Tribunal for a period of three years. The Member of the Medical Tribunal has also been appointed vide notification dated 17.02.2021. The Medical Tribunal has been made functional in Islamabad, and can take cognizance in any matter over which its jurisdiction extends. 25. Section 8 of the MT Act provides inter alia that any person aggrieved by any order or direction of the authorities pursuant to (i) the PM&DC Ordinance, (ii) the PMC Ordinance, (iii) the Pakistan Nursing Council Act, 1973, (iv) the Pakistan Health Research Council Act, 2016, (v) the Unani Ayurvedic and Homeopathic Practitioners Act, 1965, (vi) the Pharmacy Act, 1967 (vii) or any other law as may be notified by the Federal Government may prefer an appeal before the Medical Tribunal within thirty days of the date of communication of the impugned order or direction. 26. Section 3(1) of the MT Act provides that no court shall take cognizance in any matter to which jurisdiction of the Medical Tribunal extends. The MT Act is a special law, Section 6 whereof circumscribes the jurisdiction that can be exercised by the Medical Tribunal. Section 6 of the said Act titled "jurisdiction and powers of Medical Tribunal" explicitly provides for the matters over which the Medical Tribunal has jurisdiction. In particular, under Section 6(2) of the MT Act, the Medical Tribunal has been empowered to hear and decide appeals against
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decisions, orders and acts of the authorities formed pursuant to (i) the PM&DC Ordinance (ii) the PMC Ordinance (iii) the Pakistan Nursing Council Act, 1973, (iv) the Pakistan Health Research Council Act, 2016, (v) the Unani Ayurvedic and Homeopathic Practitioners Act, 1965, (vi) the Pharmacy Act, 1967 (vii) or any other law as may be notified by the Federal Government. 27. It is no longer res integra that unless a statute specifically ousts Courts' jurisdiction, ouster of jurisdiction cannot be readily inferred. The jurisdiction of a special tribunal cannot be inferred by implication. Ouster of jurisdiction is to be found only if the Court finds that the provisions of a statute excluding the jurisdiction of the Court are unequivocal, explicitly expressed and definitive. To hold that the jurisdiction of the Courts has been ousted it must be found from the language of the statute that there is an express ouster of jurisdiction of the Courts as well as an express conferment of such jurisdiction upon a special tribunal set up under the Act. In the case of Additional Collector-II Sales Tax Vs. Messrs Abdullah Sugar Mills Ltd. (2003 SCMR 1026), it was held that "ouster of jurisdiction is always through express words and can never be implied." In the case of Maula Dad Khan Vs. West Pakistan Bar Council (PLD 1975 SC 469), it was held that "it was a well-settled principle of interpretation that there cannot be an implied ouster of the jurisdiction of the Superior Courts so as to be inferentially spelt out from vaguely worde d and imprecise expressions on the basis of a priori reasoning." In the case of Abbasia Cooperative Bank Vs. Muhammad Ghaus (PLD 1997 SC 3), it was held that "the provision contained in a statute ousting the jurisdiction of Courts of general jurisdiction is to be construed very strictly and unless the case falls within the letter and spirit of the barring provision, it should not be given effect to." 28. Section 6(2) of the MT Act also provides that appeals against decisions, orders and acts of the authorities formed pursuant to any other law as may be notified by the Federal Government can be heard and decided by the Medical Tribunal. Till date the PMC Act has not been notified by the Federal Government so that appeals against the decisions, orders and acts of the authorities formed pursuant to the said Act could be filed before the Medical Tribunal. Since the PMC Act was not enacted prior to the MT Act but on the very same day (i.e. 22.09.2020), this is perhaps the reason why the PMC Act was not included in the list of statutes with respect to which the Medical Tribunal could exercise jurisdiction. Learned counsel for the PMC confirmed that a notification by the Federal Government providing for appeals, claims, complaints etc. against decisions, orders and acts of the authorities formed pursuant to the PMC Act to be filed before the Medical Tribunal is awaited. Section 3(1) of the MT Act does not oust the jurisdiction of a Court to take cognizance in a matter to which the jurisdiction of the MT does not extend.…
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