' This order shall dispose of Writ Petition No,4142 of 2005 and Writ Petition No,5574 of 2005, as common question of law and facts are involved.
2. The petitioners are students of Lahore Medical and Dental College, Lahore, which originally was affiliated with Baqai Medical University, Karachi. They qualified their M.B.,B.S. Part-I examination, according to examination and result conducted by the University. The method of teaching and examination of University was as under:---
(i) 70 per cent marks were to be taken by appearing in the annual examination.
(ii) 30 per cent by internal evaluation/assessment marks.
3. On promulgation of University of Health Sciences Ordinance, 2002 all Medical Colleges in Punjab, previously affiliated with University of Punjab or with University located outside territorial limits of Province had to seek affiliation with University, Health Sciences, with the exception of King Edward Medical College and Fatima Jinnah Medical College.
4. The first professional examination in Baqai University was divided into two parts while the University of Punjab prescribed composite mode of examination. First professional examination is conducted on completion of first two years as per calendar of University. The Baqai University's method of teaching, internal evaluation and assessment marks is supported by P.M.D.C. Regulation 4(1), reproduced below:--- "Continuous internal assessm ent consists of appropriate 'evaluation at the end of each assignment, term, stage or course of the curriculum. Proper records of internal evaluations should be maintained, and the scores obtained in these tests should contribute 30 per cent to the final total score of the candidates. Final University examinations of each subject should contribute 70 per cent to the total score, and the students should pass on the aggregate."
5. The University of Health Sciences accepted the result of petitioners, who had passed 1st professional examination Part-I examination. Students from Lahore Medical and Dental College and Nishtar Medical College were allowed to take first professional Part-II in the examination while all remaining colleges in the Punjab had to undertake composite examination for first professional. On account of radical changes brought by University of Health Science Ordinance, 2002 students were afforded additional chance called supra supplementary examination.
6. The applicants/petitioners through the above-mentioned Constitutional petitions prayed that the condition imposed upon First professional Part-II (Studying medicines) M.B.B.S. Examination in respect of the students who did not qualify in three consecutive chances available, availed or unavailed, shall cease to become eligible for further education in medicines, be declared illegal, and without lawful authority. In response to notice, Sayed Najam-ul-Hassan Kazmi, Advocate entered appearance on behalf of University Health Sciences and filed parawise comments praying that the same be treated as written statement.
7. Mr. Munk Ahmad Bhatti, Advocate, learned counsel for the petitioner raised the following contentions:-
(i) That the Ordinance stands repealed on the expiry of four months from its promulgation as it was not laid before the National Assembly in accordance with the provision of Article 89(a) of the Constitution of Islamic Republic of Pakistan, 1973;
(ii) That the letter, dated 14-7-2004 provide different number of chances to students of first, second and third professional examination;
(iii) That the Regulations have no legal status;
(iv) That the petitioners are being treated with sheer discrimination;
8. Syed Najam-ul-Hassan Kazmi, Advocate/learned Legal Advisor of the respondent-University in opposition argued:---
(1) That the petitioners are not being treated with any discrimination in any manner. He relied on Ahmad Abdullah and 62 others v. Government of the Punjab and 3 others PLD 2003 Lah. 752 (Full Bench) and laid emphasis on the following observations:--- "Right to education is a fundamental right but the State regulates it in more than one ways. In the context of this case it is the State, through Legislature, which establishes schools, colleges, Universities and regulates affairs. The Universities are entrusted with the task of teaching of laying down curriculum or courses, of formulating admission policy, prescribing recruitment rules for the teaching staff etc. Affiliation and disaffiliation are some of the privileges, which a University grants under law. This affiliation is basically an association of two Corporate Bodies and is distinct from "right to Association" contemplated by Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. It is not a right created by any Constitutional provision. It is a right, which does not flow from .Right to education. It is, therefore, not a fundamental right. It is a right created by a Statute. Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights provision of Constitution.
(2) He further submitted that Full Bench of this Court in clear terms has held that the Ordinance, 2002, is not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 or the Pakistan Dental Counsel, 1962. The aforementioned judgment of this Court has been affirmed by the Honourable Supreme Court of Pakistan in Shafique Ahmad and others v. Government of the Punjab and others PLD 2004 SC 168.
(3) As to internal assessm ent, he placed reliance on Abdul Wadood and 18 others v. University of Health Sciences, Sheikh Zayed Hospital, Lahore through Vice-Chancellor and 3 others 2005 CLC 467 and argued that internal evaluation system of Lahore Medical and Dental College has no place in the Punjab University Regulation'
(4) He with reference to the aforementioned judgment stated that Regulations of 1998 of P.M.D.C.
Have not been approved by the Federal Government, therefore, have no statutory force;
(5) ,As to number of permissible chances in 1st professional examination, he relied on Akhtar Ali Javed v. Principal Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 538, Maroof Khan v.
Principal Ayub Medical College, Abbotabad and 4 others 1996 SCMR 1101 and Munza Habib and others v. The Vice-Chancellor and others 1996 SCMR 1790.
(6) In reply to the contention that the Ordinance, 2002 has been repealed on account of its being not placed before the National Assembly on expiry of four months, learned counsel relied on Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973 to canvass that the Ordinance, 2002 promulgated on 15-10-1999 shall be deemed to have been validly made notwithstanding anything contained in the Constitution and shall not be called in question in any Court or forum or on any ground, thereafter.
8-A Heard.
8-B The petitioner in Writ Petition No,4142 of 2005 availed permissible three chances in first professional M.B.B.S. Part-II examination, 2003. The first chance was availed in January, 2004. The 2nd in April/May, 2004 and the third in December, 2004 and failed to clear the first professional Part-II examination in permissible three chances. Similarly, the petitioners in Writ Petition No,5574 of 2005 also availed permissible chances. Adil Ayub, petitioner appeared in A examination held in January, 2004, then in April/May, 2004 and lastly in December, 2004. Petitioner No,2 Jauria Saeed and petitioner No,3 Faiqa Zulfiqar Ali appeared in B.D.S. First professional examination held in November, 2003, March/April, 2004, August, 2004 and in January, 2005. They exhausted the chances permissible and failed to clear the examination.
9. The University of Health Sciences retained the previous scheme of education in interregnum (i,e, till the notification of University of Health Sciences Regulations on 14-7-2004) for students already enrolled in various sessions, so as to avoid inconvenience. In that view, schemes of education of the petitioner as available to them prescribed by their previous universities was not changed. The petitioners had to clear the IB first professional Part-II examination within three permissible chances. The Notification dated 14-7-2004 for academic sessions, 2004 and 2005 and onwards in regard to permissible chances to clear professional examination did not bring any change in the number of chances for first professional M.B.B.S. Part-I and Part-II examination in the newly framed University Health Sciences Regulations. The change was relatable only to 2nd, 3rd and 4th M.B.B.S. Examination. The petitioners had appeared under Punjab Medical and Dental Council Regulations and were eligible to get through in three permissible chances only.
10. The first contention of the learned counsel that the Ordinance, 2002, has been repealed on account of the provision of Article 89(a) of Constitution of Islamic Republic of Pakistan, 1973 is displaced in view of the provision of Article 270-AA of the Constitution of Islamic Republic of Pakistan, 1973. The University Health Sciences Ordinance, 2002 has been additionally declared to be a valid law by Full Bench of this Court in Ahmad Abdullah and 62 other's case supra. The contention of the learned counsel for the petitioner is, thus, rejected.
11. The next contention of the learned counsel as to internal assessment of the petitioner's has been adequately answered in a well-considered judgment of a learned Division Bench of this Court in Abdul Wadood's case supra. We respectfully subscribe to the view taken in the said judgment.
12. As to petitioner's discriminatory treatment, we have not been able to convince ourselves that the petitioners are being meted out with such treatment. The petitioners were originally affiliated with Baqai University. It provided three chances in first professional examination and three chances in second professional examination. The Punjab University provided four chances in all in composite first professional examination consisting of Ist and 2nd Part. The petitioners having failed to clear their IInd Part examination within prescribed chances cannot claim any further allowance. Reliance has rightly been placed on Akhtar Ali Javed v. Principal, Quaid-i-Azam Medical College, Bahawalpur 1994 SCMR 532 and Maroof Khan v. Principal, Ayub Medical College, Abbottabad and 4 others 1996 SCMR 1101.
13. Case of Nabeel Iqbal is distinguishable. A learned Division Bench of this Court had allowed him to avail another chance subject to final decision of his Constitutional petition on the ground that he availed two chances to clear first professional examination. He was not allowed to avail third chance due to in action of two departments.
14. The petitioners on their failure to clear, Ist professional Part-II examination in three consecutive chances have ceased to become eligible for further medical education. Students at the top of merit are granted admission in institutions of learning medicines. Only bright, studious and hardworking students are selected in this field in view of difficult task ahead to render services in health sector. Students who are carefree in studies cannot be allowed to sit in college for indefinite period of time and occupy the seat, which may become available to any other deserving student.
It is a time of meritocracy. Those who failed to come up to the standard prescribed by the educational institutions, and fall below in merit should select some other field, and, be not allowed to waste time and money. The regulation in unequivocal terms provides that on failure to clear 1st professional Part- IInd examination in three consecutive availed or unavailed chances, a student shall cease to be a student. Regulation of statutory body cannot be set at naught by Courts in exercise of Constitutional jurisdiction without any basis. Constitutional jurisdiction is exercised in order to advance and promote justice in accordance with law and is not meant to bypass the provisions of statute.
15. For what has been discussed above, we do not find any force in these Constitutional petitions, which are dismissed.
Petitions dismissed.
2005 CLC 1931 [Karachi] Before Sarmad Jalal Osmany and Amir Hani Muslim, JJ ATIQUE HUSSAIN and another---Petitioners versus FEDERATION OF PAKISTAN through Secretary, Ministry of Communication and 2 others---Respondents Constitutional Petition No,D-593 of 2005, decided on 12th July, 2005. Privatization Commission Ordinance (LII of 2000)--- ----Ss. 22, 23, 24, 25, 6, 7, 8 & 9---Pakistan Telecommunication (Reorganization) Act (XVII of 1996), Ss.36 & 34---Civil Servants Act (LXXI of 1973), S.36---Constitution of Pakistan (1973), Arts.173(1), 142(2) & 199---Constitutional petition---Vires of privatization of Pakistan Telecommunication Company by the Government of Pakistan on the touchstone of the Constitution---Contention of the petitioner was that Art.142(a) of the Constitution provided that Majlis-e-Shoora (National Assembly) shall make laws in respect of any matter provided in the Federal Legislative List; that Entry No,7 in Part-I of the said list pertained to Post and Telegraph hence the privatization of the company without necessary legislation by the National Assembly was quite incompetent and unlawful and that the working conditions of the employees would be adversely affected since the new owners were bound to make changes to suit their interests---Validity---Federal Government under Art.173(1) of the Constitution had the right to sell, mortgage or dispose of State property which was subject only to the well-settled principles in respect thereof viz.; executive authority was to be exercised in accordance with law and must be transparent, fair and nondiscriminatory---No specific legislation was required for the exercise of executive authority under Art.173(1) of the Constitution---Nevertheless Ss.22, 23, 24 & 25 of the Privatization Commission Ordinance, 2000 had been enacted which specifically catered for privatization of State property and in the manner in which privatization was to be carried out---Government of Pakistan, in principle, did have the power and the authority to dispose of the shares of the company---Provision of S.142(a) of the Constitution had given exclusive powers to make laws with regard to the matters listed in the Federal Legislative List, Part-I, in which Post and Telegraph were at Entry No,7 and said Article read with Entry 7, gave the National Assembly exclusive power to make laws vis-a-vis matter relating to Post and Telegraph and had nothing to do with the Federal Government's powers to dispose of State property which exercising powers under Art.173 of the Constitution as these two provisions of the Constitution dealt with separate organs of the State, i,e, the Federal Government and the National Assembly--- Section 36, Pakistan Telecommunication (Reorganization) Act, 1996 catered for the terms and conditions of employees of the company and in particular S.36(2) of the Act provided that all employees shall be treated in accordance with the law of Pakistan and their terms and conditions would not be altered except with their consent and upon award of appropriate compensation--- Constitutional petition against the privatization of the Company was dismissed by the High Court in circumstances. [p. 1934] A & B Amin Ahmed v. Ministry of Production Government of Pakistan PLD 1996 Kar. 27 and Talat Saeed Khan v. Privatization Commission 1999 YLR 1084 fol. Reference No,1 of 1988 made by the President of Pakistan PLD 1989 SC 85; Calicon (Pvt.) Ltd. v. Federal Government of Pakistan 1996 MLD 705; Haji T.M. Hassan Rawther v. Kerala Financial Company AIR 1988 SC 157 and Abid Hassan v. PIAC 2005 SCMR 25 ref. Sohail Hameed for Petitioners.
Ahmed Pirzada, Addl. A.-G. For Respondent No, 1 .
A.H. Pirzada for Respondent No,2.
Dates of hearing: 15th and 20th June, 2005.
' SARMAD JALAL OSMANY, J.--- This petition impugns the privatization of Pakistan Telecommunication Company by the Government of Pakistan on the ground of being violative of Constitutional provisions.
2. In support of the petition, Mr. Sohail Hameed has firstly submitted that Article 142(a) of the Constitution provides that Majlis-eShoora (National Assembly) shall make laws in respect of any matter provided in the Federal Legislative List. Entry No,7 in Part-I of the said list pertains to Post and Telegraph and hence the privatization of the Company without necessary legislation by the National Assembly is quite incompetent and unlawful. In support of this proposition learned counsel has relied upon Reference No,1 of 1988 made by the President of Pakistan PLD 1989 SC 85.
3. Next, he has submitted that per Article 79 of the Constitution the Revenue of the Federation of Pakistan are only to be controlled by the National Assembly. Consequently, the Company which is a highly profitable entity cannot be sold without the appropriate legislation by the National Assembly. Finally, per learned counsel, after privatization of the Company the working conditions of the employees would be adversely affected since the new owners are bound to make changes to suit their interests.
4. On the other hand, Mr. A.H. Pirzada, appearing for the Privatization Commission, has submitted that there are two sources of executive authority, firstly that given by the Constitution itself and secondly through the Legislature by means of legal enactments. Per learned counsel, in this respect, Article 173 of the Constitution allows the Federal Government to sell State property subject to the limitations stated therein and accordingly the Privatization Commission Ordinance, 2000 has been enacted to sell/privatize such property. This is a comprehensive piece of legislation and provides for all eventualities vis-a-vis the disposal of companies Corporations, units owned by the Government of Pakistan. In support of this submission learned counsel has relied upon Ameen Ahmed v. Ministry of Production, Government of Pakistan. PLD 1996 Kar. 27, Millat Tractors Employees Trust v. Government of Pakistan PLD 1992 Lah. 68, Brig. Talat Saeed Khan v. Privatization Commission 1999 YLR 1084, Calicon (Pvt.) Ltd. v. Federal Government of Pakistan 1996 MLD 705 and Haji T.M. Hassan Rawther v. I4erala Financial Company AIR 1988 SC 157.
5. Secondly, per learned counsel, Article 97 of the Constitution provides that the executive authority of the Federation extends to all matters in respect of which the National Assembly has the power to make laws except where the Provincial Assembly has the power to do so. Per Article 142(a) the National Assembly has exclusive powers to make laws with regard to the matters listed in the federal legislative list, part-1 in which posts and telegraph are at Entry No,7. Consequently, the Pakistan Telecommunication (Re-organization) Act, 1996 has been enacted by the National Assembly whereby a separate Company has been formed to deal with the erstwhile telephone and Telegraph Department of the Government of Pakistan. Per section 34(4) of the Act the Government has been authorized to sell the shares of the company which has been done in the present matter viz. Only 26% have been sold to the highest bidder along with management rights at Rs,118 per share which is much more than that quoted on the stock markets. Per learned counsel the rights of the employees have also been taken care of through section 36 of the Act viz. They continue to be civil servants within the meaning of the Civil Servants Act.
6. Finally, learned counsel has submitted that the privatization of the company has been done in a plain, open and transparent manner by inviting bids both nationally and internationally and the highest offer has been accepted, which is much more than the quoted price of the shares in the stock markets. Consequently, per learned counsel, no exception can be taken in this regard. In support of this contention he has relied upon Abid Hassan v. The P.I.A.C. 2005 SCMR 25.
7. In reply Mr. Sohail Hameed has submitted that as the Company is a legal entity hence there must be a board resolution to authorize its privatization which has not been filed at all by the Government to which Mr. Prizada's reply is that the company is not selling any property but the Government of Pakistan is selling its shares which are quoted on the stock exchange.
8. The learned Additional Advocate-General has supported the arguments of Mr. A.H. Pirzada and prayed that the petition be dismissed.
9. We have heard both the learned counsel as well as learned Additional Advocate-General and our conclusions are as follows:--
10. It would be seen that per Amin Ahmed v. Ministry of Production decided by a Division Bench of this Court, and Talat Saeed Khan v. Privatization Commission as well as Calicon (Pvt.) Ltd. v. Federal Government oT Pakistan (supra) decided by the learned Lahore High Court it has been held that per Article 173(1) of the Constitution, the Federal Government has the right to sell, mortgage or dispose of State property which is subject only to the well-settled principles in respect thereof viz. Executive authority is to be exercised in accordance with law and must be transparent, fair and non-discriminatory. In fact, it was further held in the aforementioned cases that no specific legislation was required for the exercise of executive authority under Article 173(1). Nevertheless, it would be seen that now the Privatization Commission Ordinance, 2000, has been enacted which specifically caters for privatization of State property. In this regard section 5 lays down the functions and powers of the Commission vis-a-vis the privatization programme of the Government, sections 6, 7, 8 and 9 provide for the management and administration of the Commission and sections 22, 23, 24 and 25 thereof cater for the manner in which privatization is to be carried out. In view of the foregoing observations, we are satisfied that the Government of Pakistan in principle does have the power and the authority to dispose of the shares of the Company. As there is no challenge to the manner in which the same have been disposed of, we are not called upon to give any findings in that respect.
11. As regards Article 142(a) of the Constitution it would be seen thereto that the National Assembly has been given exclusive powers to make laws with regard to the matters listed in the federal legislative list, part-1, in which post and telegraph are at Entry No,7. In our opinion, this Article read with Entry No,7 aforementioned, gives the National Assembly executive power to make laws vis-a- vis matters relating to post and telegraph and has nothing to do with the Federal Government's power to dispose of State property while exercising powers under Article 173 as these two provisions of the Constitution deal with separate organs of the State, i,e, the Federal Government and the National Assembly.
12. It would further be seen that insofar as the employees' terms and conditions of service are concerned, the Pakistan Telecommunication (Re-organization) Act, 1996, inter alia, provides for the setting up of a Pakistan National Telecommunication Company vide section 34, thereof. Section, 36 caters for the terms and conditions of employees and in particular subsection (2) provides that all employees shall be treated in accordance with the laws of Pakistan and their terms and conditions would not be altered except with their consent and upon award of appropriate compensation.
Consequently, in this view of the matter, we cannot agree with Mr. Salman Hameed that the new buyer of the Company's controlling shares would be able to adversely change the terms and conditions of the employee's service.
13. For the foregoing reasons, we had vide a short order passed earlier, dismissed this petition.