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Petitioner: NAILA MAQBOOL LAGHARI through next of kin, Maqbool Ahmed and 136 others VS Respondent: GOVERNMENT OF SINDH
Court Name: Sindh High Court Judge(s): Omar Sial, Munib Akhtar Title:NAILA MAQBOOL LAGHARI through next of kin, Maqbool Ahmed and 136
others vs GOVERNMENT OF SINDH Case No.: Constitutional Petition No,D-7826 of 2017 and connected petitions Date of Judgment:2017-12-05 Reported As: PLD 2018 Sindh 391 Result: Order accordingly Judgment ORDER MUNIB AKHTAR, J.---By this judgment, we intend disposing off the petitions noted in para 25 below. The petitions arise in relation to the admission test held for admissions to the MBBS and BDS programs in public sector medical universities/colleges, which was held on 22.10.2017 on a Province-wide basis by the National Testing Service ("NTS"). As explained below, certain questions arose in relation to the holding of the test and the content thereof, which resulted in an inquiry committee being set up, on 26.10.2017, by the Health Department of the Provincial Government. Acting, it appears, on a certain preliminary report presented by the committee the Chief Minister, by notification issued on 11.11.2017, cancelled the admission test and directed that it be held all over again. 2. There are two sets of petitions before us. In one (comprising of two petitions) the petitioners submit that the test was properly conducted and should therefore be upheld and applied in and to the admissions process. These petitioners challenge both the setting up of the inquiry committee and the order of the Chief Minister on legal and factual grounds. In the second set (comprising of three petitions) the petitioners assail the test and submit that it has been rightly annulled and must be held again. The Provincial Government of course defends the actions taken by its Health Department and the decision of the Chief Minister. NTS on the other hand defends the admission test as conducted by it. We will first note the submissions made by learned counsel appearing in those petitions where the petitioners seek to have the test upheld (C.Ps. Nos, D-7826/2017 and 7799/2017), followed by the submissions of learned counsel for NTS. We then note the submissions made by learned counsel in the second set of petitions (C.Ps. Nos, D-7324/2017, 7464/2017 and
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7599/2017), and finally the submissions of the learned AAG. We may note that we also permitted Mr. Ijaz Ahmed Mahesar, Special Secretary in the Health Department, and one of the petitioners from the second set of petitions (as representative of the others) to address the Court. Finally, we may note that at our request (keeping in mind the urgency involved in these petitions) most of the learned counsel at the outset also filed written synopses of their respective cases and submissions. 3. Learned counsel appearing in C.P. D-7826/2017 (who filed a written synopsis) submitted that it was for the first time this year that an admission test on a Province-wide basis was held for admissions to the MBBS and BDS programs in the public sector medical universities/colleges. The test was held under, and as mandated by, the MBBS and BDS (Admissions, House job and Internship) Regulations, 2016 ("2016 Regulations"). The 2016 Regulations have been framed under section 33(2) of the Pakistan Medical and Dental Council Ordinance, 1962 ("PMDC Ordinance"). Referring to the prospectus issued in relation to the admissions process, learned counsel submitted that it provided for the holding of a multiple-choice admission test (referred to as the "entry test"), which was (to quote from the prospectus) to be "conducted from the prescribed intermediate syllabus of Board of Intermediate and Secondary Education, Karachi, Hyderabad, Larkana, Sukkur and Mirpurkhas". The test was to comprise of 100 questions, distributed as follows: 30 questions each relating to Biology, Physics and Chemistry, and 10 relating to English. There would be negative marking, i,e,, candidates would be penalized for a wrong answer. The overall final merit list would be prepared on a weighted average, with 50% weight being given to the entry test, 40% to the candidate's result in his/her HSC/A-level exams and 10% to the result in the Matric/O-level exams. 4. Referring to the 2016 Regulations, learned counsel drew attention to Part II thereof (comprising of Regulations 3 to 15), which relates to admissions in the MBBS and BDS programs. Learned counsel submitted that Regulation 3 establishes an admission board and lays out the nature and scope of its powers and duties. Regulation 4 sets up a committee in and for each Province and region (the latter being defined in Regulation 2(h)). In particular, learned counsel referred to sub-regulation (2) of Regulation 4, which states that a provincial committee "shall have powers to oversee and monitor the entire admission process and ensure transparent conduct of admission test in its area of jurisdiction". Learned counsel also relied on Regulation 9, which is a lengthy provision comprising of not less than 22 sub-regulations (and from which the portions relevant for present purposes are reproduced below). According to learned counsel, the basic position that emerged from the 2016 Regulations and the particular regulations relied upon was that the entire matter of conducting the admission test was entrusted to the admission board set up under Regulation 3 and, more particularly, the provincial committee constituted under Regulation 4. Neither the Health Department of any Provincial Government nor the Chief Minister of any Province figured anywhere in the process, and thus they had no jurisdiction to conduct any inquiry into or investigate any objection taken to the admission test or to cancel the same. That power lay only where the 2016 Regulations placed it, in the bodies set up in terms of Regulations 3 and 4. Although the latter provided that the Health Secretary was to be the chairperson of the provincial committee, learned counsel submitted that that did not mean that the Health Department was entitled or empowered to act. The entire action taken (as set out below) was thus fundamentally without jurisdiction, and this submission constituted the heart of learned counsel's case. 5. Learned counsel further submitted that the PMDC Ordinance was federal legislation that related in its pith and substance to what had been entry No, 43 of the erstwhile Concurrent Legislative List. The entry had read as follows: "Legal medical and other professions". The 18th Amendment, while omitting the Concurrent List, had shifted entry No, 43 to the Federal Legislative List. It was now, in identical form, entry No, 11 of Part II of the Federal List. Learned counsel also referred to entry No, 12 of Part II (which was newly added by the 18th Amendment). It was submitted that as a result of these changes, while previously the legislative competence to which the PMDC Ordinance (and hence
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the 2016 Regulations) related was concurrent, it was now exclusively federal. This was also another fundamental reason why the actions taken by the Health Department in setting up an inquiry committee and the Chief Minister in purporting to cancel the admission test were entirely without lawful authority; the entire matter, post the 18th Amendment, lay wholly beyond provincial competence and exclusively within the domain of the Federation. 6. Learned counsel submitted that the admission test was held on 22.10.2017 and the result announced on 25.10.2017. On 26.10.2017 the Health Department of the Provincial Government issued a notification/order constituting an inquiry committee "to probe the allegations of improper conduct" of the admission test. The composition of the committee and its terms of reference were set out in the order. Learned counsel submitted that the committee was entirely different from the provincial committee constituted under Regulation 4. Learned counsel submitted that thereafter, for several days, nothing happened and then on 06.11.2017 a notice was issued summoning a meeting of the committee on 08.11.2017. It was submitted that on the very same day the committee issued a preliminary report, and purportedly acting on this report the Chief Minister issued the impugned notification dated 11.11.2017 whereby the admission test was cancelled and it was directed that a fresh test be held within 15 days. Learned counsel submitted that this entire exercise was contrary to the 2016 Regulations and hence was liable to be declared unlawful and invalid. Referring to the para-wise comments filed by NTS and the Provincial Government, learned counsel (without prejudice to his submissions as above) submitted that even on the facts there was no justification for the impugned action. The allegations against the admission test rested primarily on two grounds: firstly, that either the test paper and/or the answer key had "leaked" prior to the holding of the test and secondly, that some questions were beyond the syllabus prescribed for the test. As to the first ground, learned counsel submitted that the para-wise comments of NTS showed that it had also conducted an in-house inquiry into the matter. The inquiry report, and the documents and material annexed thereto, categorically asserted and showed that the admission test had not "leaked" at all. Even the inquiry committee set up by the Health Department had not given any clear finding on this ground, neither in its preliminary nor the final report (which was issued on 20.11.2017). As regards the second ground, NTS had clearly refuted the allegation that some questions were outside or beyond the syllabus. While some questions were undoubtedly difficult that was only to be expected: the test examined candidates over a whole range. Thus, learned counsel submitted, there was no case made out, either in law or the facts. The setting up, and reports, of the inquiry committee and the action of the Chief Minister were unlawful and liable to be quashed. It was prayed that the petition be allowed. At the conclusion of his submissions learned counsel also filed certain additional documents under statement. Learned counsel appearing in C.P. D-7799/2017 (who also filed a written synopsis) adopted the submissions just noted and in addition submitted that the petitioners (i,e,, the candidates who supported the admission test as conducted) had been condemned unheard. 7. Learned counsel for NTS (who also filed a statement along with further material/documents) submitted that NTS entered into a memorandum of understanding with the Dow University of Health Sciences (the institution notified in terms of Regulations 2(a) and 9(2)) for conducting the test. Referring to various clauses of the MOU, learned counsel emphasized that NTS took all steps necessary to ensure the secrecy and transparency of the test. Learned counsel also submitted that NTS had very good experience and background in conducting such tests, and had developed a countrywide reputation in this regard. It was submitted that NTS had even conducted such tests for the High Courts, including this Court. After the admission test on 22.10.2017 and responding to certain concerns expressed in relation thereto, NTS on its own initiative set up an internal inquiry committee for carrying out a thorough investigation. Referring to the para-wise comments filed by NTS and the material and record (including the report of the committee) annexed thereto, learned
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counsel submitted that the possibility of a "leakage" of the admission test (certainly before the date thereof, which was all that mattered) was categorically ruled out. Reference was made to the clear findings of the committee, based on a thorough forensic examination. As regards the claim that some of the questions were outside the syllabus prescribed for the test, learned counsel submitted that the committee's report again refuted this allegation. Thus, learned counsel contended, the allegations levelled against NTS and/or the conduct of the test were completely baseless. The admission test was held in a proper manner, and ought to be upheld and applied. It was prayed accordingly. 8. Learned counsel for the petitioner in C.P. D-7599/2017 (who assailed the test) focused his attention on the ground that some of the questions were outside the prescribed syllabus. According to learned counsel, there were not less than 14 such questions. Learned counsel submitted that the petitioner, who was one of the candidates, had made a complaint to NTS almost immediately in this regard, but no reply had been forthcoming. On a query from the Court as to how disputed questions of fact (i,e,, whether the questions were outside the syllabus) could be taken up in constitutional jurisdiction, learned counsel relied on the report prepared by the inquiry committee set up by the Health Department. Learned counsel submitted that that report clearly showed that quite a few questions were outside the prescribed syllabus. Even if the constitution of the committee suffered from any legal infirmities (a view to which learned counsel did not subscribe) nonetheless its findings of fact ought to be given due consideration and proper weight by the Court. Since serious and credible doubts had been cast on the test as conducted, learned counsel submitted that there was a sufficient basis for scrapping the same and holding the test afresh. Learned counsel who had filed power for the first petitioner in C.P. D-7464/2017 (who also assailed the test) drew attention to paras 6 and 7 of the petition and also relied on certain written submissions as filed by the first petitioner. It was submitted that there was sufficient material on record to establish that the test paper and/or answer key had been "leaked", and that quite a few of the questions were outside the prescribed syllabus. It was prayed accordingly. Learned counsel for the petitioner in C.P. D-7324/2017 (who also assailed the test) made submissions similar to those already made and prayed accordingly. (We may note that this petitioner was not himself a candidate; he is an advocate and the petition was filed in the public interest.) As noted above, we allowed one of the petitioners (in C.P. D-7464/2017) also to make submissions. The petitioner made submissions similar to those made and already noted, and placed before us certain material that, according to the petitioner, established that the test paper had indeed "leaked" before the test was held. 9. The learned Additional Advocate General submitted that at its core, the objection of those petitioners who sought to uphold the test was jurisdictional, i,e,, that neither the Provincial Government nor the Chief Minister had the legal power to do what they had done both in terms of inquiring into the conduct of the test and, based on the report of the inquiry committee, the cancellation thereof. The learned AAG submitted that the Provincial Government had full legal. and indeed constitutional, power and authority in this regard. Reliance was placed on Article 137 of the Constitution, which provides that (subject to the Constitution) the executive authority of the Province extends to all those matters which respect to which the Provincial Assembly has power to make laws. It was submitted that the necessary executive authority vested in the Provincial Government in the present case. Furthermore, the executive authority in any case necessarily extended to ensuring that law and order was properly maintained. Referring to the para-wise comments filed by Government and the material and documents annexed thereto, the learned AAG referred to various newspaper reports that had started appearing after the conduct of the test, raising serious questions regarding the same. The Provincial Government was fully empowered to take note of the situation and, through its Health Department, constitute an inquiry
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committee with appropriate terms of reference. The learned AAG submitted that based on the preliminary report of the committee, the Chief Minister cancelled the admission test and directed that it be held again. This was all well within the executive authority of the Province. At the same time, and without prejudice to this submission, the learned AAG submitted that the Provincial Government was in any case empowered even in terms of the 2016 Regulations. Reliance was placed in particular on sub-regulations (2) and (15) of Regulation 9, which refer respectively to the "provincial department" and the "Provincial Government". It was submitted that the first reference meant, in this Province, the Health Department. Thus, powers were specifically and explicitly conferred on the provincial authorities. Regulation 9(2) directed the provincial department to intimate to the PMDC one recognized public sector medical university in terms and for purposes of Regulation 2(a), and Dow University had been duly nominated in this regard. Regulation 9(15) directed and empowered the Provincial Government to "ensure conduct of admission test" within the stipulated period. Thus, the learned AAG submitted, a specific statutory duty and, concomitantly, power had been cast and conferred by the '2016 Regulations directly on the Provincial Government. Referring to Regulation 4 whereby the provincial committee was set up it was submitted that sub-regulation (2) thereof, relied upon by the other side, had to be properly interpreted, and applied in context. In particular, the learned AAG submitted that the question was whether the powers conferred on the provincial committee were exclusive or whether the Provincial Government also had concurrent powers? It was submitted that on a reading of the 2016 Regulations as a whole and in context, it was the latter that was the proper interpretation. Hence even in terms of the said Regulations the Provincial Government was fully empowered to act. The learned AAG quite fairly and properly recognized (though very much without conceding the point) that perhaps there could be some concern regarding the notification issued by the Chief Minister whereby the admission test was cancelled inasmuch it was not, as such, the act of the Provincial Government. However, it was submitted that this notification had also to be considered in context and, based as it was on the report of the inquiry committee constituted by the Health Department, ought not to be disregarded in the facts and circumstances of the case. Reference was also made to the Rules of Business of the Provincial Government. Furthermore, the learned AAG again drew attention to a proposal that had been made on instructions from the Provincial Government on 29.11.2017 (which however, was not accepted by the other side). It was submitted (again without conceding) that even if the other side were right in asserting that the power with regard to the conduct of the admission test lay only with the provincial committee under Regulation 4, the Provincial Government stood ready to refer the matter to the said committee and abide by its decision. It was submitted that even if this Court came to the conclusion that the decision of the Chief Minister could not stand the result would be the same: the matter would end up with the provincial committee for it to decide what to do about the admission test. The power of the Provincial Government to itself initiate an inquiry, and for the result of that inquiry to be taken up and considered by the provincial committee, would remain unaffected. As regards his submissions regarding the executive authority of the Provincial Government, the learned AAG relied on a decision of a learned Division Bench of the Lahore High Court reported as Punjab Higher Education Commission v. Dr. Aurangzeb Alamgir and others PLD 2017 Lah. 489, where a constitutional principle, that of cooperative federalism, has been articulated. (To this decision may be added a more recent judgment of a learned Full Bench of that High Court, Punjab College of Law v. University of Punjab and others PLD 2017 Lah. 830, where the aforesaid principle has been affirmed and applied.) The learned AAG also relied on two decisions of the Supreme Court of India, Chairman All India Rec. Board and another v. K. Shyam Kumar and others (2010) 6 SCC 614 and Sanchit Bansal and another v. The Joint Admission Board and others AIR 2012 SC 214 (also reported at 2012 SCMR 1841).
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10. The learned AAG referred to a notification dated 18.08.2017 in terms of which the provincial committee under Regulation 4 was constituted. The minutes of the meetings held by this committee, and the decision to conduct the admission test as required by the 2016 Regulations were referred to. The learned AAG then referred to the final inquiry report of the inquiry committee constituted by the Health Department, which was released on 20.11.2017. The findings of the inquiry committee, both in relation to the "leak" of the admission test, as well as the allegations that questions were beyond the prescribed syllabus were referred to and several paragraphs read out and relied upon. It was submitted that the report confirmed the conclusions that had been provisionally arrived at earlier, and on the basis of which the Chief Minister took the decision to cancel the test. Thus, it was contended. Both on the facts and in law the actions taken were correct and proper and no exception could be taken to the same. It was prayed that the decision to cancel the test should be allowed to stand and the way cleared for the holding of a fresh test, as provided for by the notification of 11.11.2017. Learned counsel for the petitioners in C.P. D-7826/2017 exercised the right of reply. 11. We have heard learned counsel as above, examined the record and material placed before us and considered the case law relied upon. It will be convenient to begin by setting out the relevant provisions of the 2016 Regulations. As noted, these have been framed under section 33(2) of the PMDC Ordinance. As presently relevant, subsection (2) provides as follows: "(2) Notwithstanding anything contained in subsection (11 the Council shall make Regulations which may provide for--- (a) prescribing a uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules; (c) prescribing the conditions for admission to courses of training as aforesaid; ..." The 2016 Regulations provide in relevant part as follows: "2. Definitions.--In these regulations, unless the context otherwise provides,-- (a) "Exam conducting university" means the university entrusted with responsibility under these regulations to conduct medical and dental college admission test and make admissions in all public sector colleges of that Province/Region and its constituent and affiliated private medical and dental colleges.... (h) "region" means any separate administrative territory which is not included in any Province." "3. Admission board.--The following shall be an admission board comprising members of the Council. namely:-- (a)President or a member of the Council nominated by himChairperson (b)One member of the Council from each ProvinceMembers (c)One member of the Council from Federally Administered Tribal AreasMember (d)One member of the Council from Islamabad Capital TerritoryMember (2) The board constituted under sub-regulation (1) shall -- (a) oversee the process of admission in MBBS and BDS in all provinces and regions; (b) have powers to inspect any examination under clause (a); (c) ensure implementation of these regulations and any other directions of the Council, from time to time, for transparent and merit based admissions under clause (a); (d) for implementation, give to the concerned provincial and regional authorities
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recommendations regarding breach of secrecy, conduct of admission test and any irregularity pointed out in the admission process and in case of non-implementation of the recommendation, the decision of the board shall be final." "4. Provincial or regional admission committee.-- (1) There shall be a provincial or regional admission committee for each province and region, comprising the following members, namely: - (a) Health Secretary of respective province or, as the case may be, regionChairperson (b) a member nominated by the Council from amongst its membersMember (c) Member of the Council of respective province or, as the case may be, regionMember (d) Vice Chancellor of the university conducting entry test for admission in MBBS or, as the case may be, BDSMember (e) Principal of one medical or, as the case may be, dental institute to be nominated by the Vice Chancellor mentioned under clause (d)Member (2) The provincial or regional admission committee constituted under sub-regulation (1) shall have the powers to oversee the entire admission process and to ensure transparent conduct of admission test in its area of jurisdiction."…
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