SH. AZMAT SAEED, J.- This order shall dispose of Writ Petitions bearing number 16780 of 2003, 16782 of 2003, 629 of 2004, 1345 of 2004, 2979 of 2004, 3350 of 2004, 552 of 2004, 16826 of 2003, 1600 of 2004 and 91 of 2004 involving almost common question of facts and identical question of law.
2. Petitioners in all these cases are presently undergoing their MBBS professional studies at various medical colleges including the Lahore Medical and Dental College which was initially affiliated with the Baqai University Karachi. It may be stated that petitioners were granted admission on the basis of less than 60% marks in their F.Sc. Pre-Medical examinations. Subsequently, the Ordinance 2002 creating the University of Health Sciences was promulgated on 22nd of September, 2002 and for purposes of appearing in their professional exams, the petitioners through their respective colleges applied to the University to sit in the examination, but the University declined to issue them roll numbers on the ground that according to the regulation prescribed by Pakistan Medical and Dental Council (PMDC), no student with less than 60% marks could be eligible for admission to a Medical College. The marks of the petitioners were less than the prescribed 60%, therefore, they could not be allowed to sit in their examination. Petitioners have challenged such refusal by means of above-referred Constitutional Petitions.
3. It was argued by the learned counsels appearing for the petitioners that in terms of section 33 of the Medical Council Ordinance, 1962, the Council has the power to make the regulations, but with the condition of previous sanction from the central government. By virtue of Subsection 2(c) of section 33 of the Ordinance, the Council could prescribe the conditions for admission to the course of training, but it is submitted that in its 97th session when the condition of minimum 60% marks was imposed, no previous sanction had been obtained from the central government, therefore, such limitation/condition/qualification had not been legally imposed/enforced, and thus the petitioners could not- be restrained from appearing in the examination by the University of Health Sciences.
4. It was further argued that at the time when the petitioners obtained admission, Lahore Medical and Dental College was affiliated with the Baqai University Karachi, and they Have been studying regularly in the college for a considerable period of time without there being any objection from any quarter at my point of time; they have spent valuable time and money towards their professional career, and thus they have obtained a vested right for purposes of sitting in the examination irrespective of the fact whether they had less than 60% marks in their F.Sc. (pre- medical) examination, and the questioned regulation of the University of Health Sciences cannot be considered to have been validly promulgated, In support of their contentions, the learned counsel have placed reliance upon PLD 1991 SC 973 Chief Secretary Vs. Sher Muhammad Makhdoom, 1997 SC MR 15 Chairman Selection Committee/Principal King Edward Medical College, Lahore and others Vs. Wasif Zamir Ahmad and another and PLJ 2001 SC 759 Mst. Attiya Bibi Khan and others Vs. Federation of Pakistan, etc.
5. Mr. Saqib Akram Gondal, Advocate in WP 2979 of 2004 states that prior to its affiliation with the University of Health Sciences, Lahore Medical and Dental College was initially affiliated with the Baqai University Karachi. The University of Health Sciences had imposed the condition of 60% marks vide the letter dated 30.5.2002 whereas, the Ordinance was enforced on 20.9.2002 and the petitioners had already obtained admission in their Medical College on 24.12.2002 and classes had commenced on 6.1.2003. It is stated that under provision of section 27 of the Ordinance, 2002, the University of Health Sciences is required to supervise, inter alia process of admission in the medical colleges. The inaction on the part of the University of Health Sciences even after its creation precluded the respondents from disallowing the petitioners to sit in the examination.
6. Peer Kalim Khurshid, Advocate states that once the petitioners have been registered as students of the University of Health Sciences, they could not be deprived of their studies in the examination at a subsequent stage.
7. The learned counsel appearing on behalf of the respondents controverted the contentions raised by the petitioners' side.
8. That by virtue of Ordinance XXXII of 1962, the PMDC was constituted in order to establish the uniform minimum standard of basic and higher education in medicine and dentistry, In order to give effect to the purposes of the Ordinance, the PMDC has been conferred with the authority and power to make regulations by virtue of section 33 of the Ordinance ibid.
9. It has been held by the Supreme Court in the case reported as Nadir Khan Vs. Principal Khyber Medical College (1995 SCM R 421) that the regulations framed by the PMDC in terms of section 33 of the Ordinance are binding on all medical and dental colleges in Pakistan. Thus, such regulations would also apply to the college where the petitioners in the present case are enrolled and studying.
10. The powers conferred upon the PMDC under section 33 of the Ordinance are bifurcated into making of to separate sets of regulations on the basis of subject to which such regulations may pertain. Sub-section (1) of section 33 of the Ordinance provides that PMDC with the "previous sanction" of the central government may make regulations to provide for matters specified therein which are detailed in clauses (a) to (i) of sub-section (1) of section 33 of the Ordinance. Obviously, any and all regulations pertaining to the subjects and matters spelt out in clauses (a) to (i) of subsection (1) of section 33, can be made by the PMDC after obtaining the requisite and prior sanction from the central government.
11. However, sub-section (2) of section 33 is a non-obstinative in nature and confers powers upon the PMDC to make regulations in respect of matters provided in the said sub-section independently without previous sanction of the central government.
12. It is the case of the respondents that prescribing of conditions for admission is an item mentioned in sub-clause (c) of sub-section (2), hence, in the instant case, the "previous sanction" of the central government was not required, It may appropriate to reproduce the relevant portion of sub-section (2) of section 33 of the Ordinance, which reads as under:- "(2) Notwithstanding any thing contained in subsection (1), the Council shall make Regulations which may provide for--- (a)
(b)
(c) prescribing the conditions for admission to courses of training as aforesaid;"
13. A perusal of the law makes it clear and obvious that previous sanction of the central government was not required by the PMDC while determining and prescribing the minimum qualification of obtaining 60% marks for admission to medical and dental college. Thus, the contention raised on behalf of the petitioners that decision of the PMDC made in its 97th session was inoperative as previous sanction from the central government had not been obtained is without any force. And in view of the judgment of the Supreme Court in Nadir Khan's case, referred to herein above, there can be no escape from the fact that the conditions prescribed would apply to the institutions where the petitioners are enrolled.
14. That the petitioners relying upon the case reported as Muhammad Suleman, etc. Vs. Abdul Ghani (PLD 1978 SC 190) and Saghir Ahmed Vs. Province of Punjab (PLD 2004 SC 261) have contended that since the decision of the PMDC, referred to above, amending the regulations had not been notified/published in the official Gazette, therefore, the same were inoperative and inapplicable to the petitioners, It is not disputed by the respondents that the aforesaid decision/amendment in the regulations has in fact not been published in the official Gazette or otherwise notified.
15. In the case of Muhammad Suleman etc. Supra, the issue before the Supreme Court was the interpretation of the phrase "declare by notification" as appearing in section 8(2) of. The Punjab Pre-emption Act, 1913. It was held by interpreting section 2(41) of the West Pakistan General Clauses Act that "notification" is a public declaration and not a private declaration made in the secretary of an office, and further that to give effect to a provision withdrawing rights, it must necessarily be published in the official Gazette, as such withdrawal would be applicable from the date of such publication and not from a prior date. However, in the aforesaid case, it was the requirement of the provision of the 'law conferring power to do the act that the same should be done by the notification. And the term "notification" as used in sub-section (4) of section 2 of the West Pakistan General Clauses Act has been interpreted. A perusal of section 33 of the Ordinance. 23 of 1962 would reveal that no such condition has been laid down requiring that the regulations or any amendment therein, must necessarily be notified or published in the official Gazette.
16 In the case of Saghir Ahmed ibid, the term notified as used in section 3 of the Punjab Acquisition of Land (Housing Act, 1973) came up for interpretation, In the "said case it had been clearly prescribed that the land shall be subject to acquisition for the housing scheme approved and notified by the Government or the official development agency. Their lordships of the Supreme Court interpreted the expression "notified" both in the context of its meaning and in the context whether the provision for notification was directory or mandatory. Their lordships held that notified would mean to make known, publish or announce and further held that such a condition may or may not be a since qua non for the validity of the act required to be notified, In view of its own facts and circumstances the Supreme Court was pleased to hold that absence of publication in the official Gazette did not denude the act of its validity as no prejudice was caused to the petitioner in that case.
17. Be that as it may, in the aforesaid case of Saghir Ahmed, it was the requirement of law that the act (the scheme in the case) must be notified, In the instant case, as has been noted earlier, no such requirement is mentioned in section 33 of the Ordinance. Thus, the ratio of the above judgments are applicable to the facts and circumstances emerging from the instant case and are of no help to the petitioners.
18. The petitioners have further contended that in view of the amendment in the General Clauses Act by insertion of section 20-A notwithstanding the absence of requirement of notification in section 33 of the Ordinance, all regulations must necessarily be published in the official Gazette.
Section 20-A of the General Clauses Act was inserted vide Ordinance No. XXXIII of 2002, dated 27.7.2002 after the decision made by the PMDC in its 97th session which is the subject-matter of the lis in hand. Ordinance XXXIII of 2002 is not retrospective in its application and section-20-A of the General Clauses Act is not attracted and cannot be pressed into service by the petitioners.
19. Adverting now to the contention raised on behalf of the petitioners that on account of their admission and' continuous studies in the College, a vested right had accrued in their favour which cannot be taken away subsequently, as the authorities have no locus poenitentiae to impose the condition of having obtained 60% marks in their pre medical examination. There can be no cavil with the proposition that in terms of section 21 of the General Clauses Act, the power conferred to amend, vary or rescind any notification, order, rule or by law can only be exercised before any decisive step has been taken. This principle has been repeatedly reiterated by the apex Court in its numerous judgments from time to time. The Federal Court enunciated this principle in the case reported as Shahbaz Vs. The Crown (PLD 1956 Federal Court 46) to hold the Government is vested with the power to modify or cancel an unconditional order till a decisive step is taken to carry it into effect. This was reiterated by the Supreme Court in the case reported as It. Col. G.L Battacharya Vs. The State and to others (PLD 1964 Supreme Court 503.). This issue again came up for consideration, and the apex Court in the celebrated judgment reported as Pakistan through the Secretary Ministry of Finance Vs. Muhammad Himayatullah Farukhi (PLD 1969 SC 407) observed as follows: "There can hardly be any dispute with the rule as laid down in these cases that apart from the provisions of section 21' of the General Clauses Act, locus Poenitentiae, i.e.,-the power of receding till a decisive step is taken, is available to the Government or the relevant authorities, In fact, the existence of such a power is necessary in the case of all authorities empowered to pass orders to retrace the wrong steps taken by them. The authority that has the power to make an order has also the power to undo it. But this is subject to the exception that where the order has taken legal effect, and in pursuance thereof certain rights have been created in favour of any individual, such an order cannot be withdrawn or rescinded to the detriment of those rights."
20. The aforesaid judgments were subsequently followed in various cases including PLD 1991 SC 973 Chief Secretary Government of Sindh Vs. Sher Muhammad Makhdoom and 2 others and PLJ 2001 SC 759 Mst. Atiya Bibi Khan and others Vs. Federation of Pakistan, etc. And the analysis of the aforesaid dictum of law as laid down by the Supreme Court makes it clear and obvious that the power of retracing, rescinding, and amending is available with the authorities concerned till decisive step has been taken. Such principle has no application where the variation, amendment or recession is affected prior to the decisive step, In all the instant cases under reference, the decisive step as claimed by the petitioners and as is obvious from the record is the enrolment of the petitioners in the institutions, It is equally a matter of the record that condition of obtaining 60% marks in F.Sc. Pre-Medical examination was imposed by the PMDC and came into effect prior to the enrolment of the petitioners. Hence, they cannot press into service or take advantage of the principle of law and the aforesaid judgments of the Supreme Court are of no help to the petitioners in the facts and circumstances of the case in hand.
21. Be that as it may, even otherwise, it is not a principle of law that an act once done becomes irrevocable and a past and closed transaction if the original act is illegal. In such circumstances, no vested right can be deemed to have been accrued based on an illegality. Such is the dictum of law laid down by the Supreme Court in the case reported as The Engineer in Chief Branch through Ministry of Defence Rawalpindi and another Vs. Jalauddin (PLD 1992 SC 207).
22. The upshot of the above discussion would reveal that at the point pf time when the petitioners obtained their enrolment, the condition imposed by the PMDC with reference to minimum 60% marks in the pre-medical examination was already in force. Such decision/regulation issued by the PMDC is binding on all medical and dental colleges including the institution where the petitioners are currently studying. Furthermore, no change or retracing of steps has been effected by the authorities after the enrolment, and there was no mandatory requirement of either obtaining the previous sanction of the central government for imposing the condition in question nor of its publication in the official Gazette.
23. Confronted with this situation, it has been contended on behalf of the petitioners that there had been a consistent practice permitted by law to enroll the students in the medical and dental institutions who had obtained less than 60% marks, In fact, the primary criterion for admission was the availability of seats. The condition imposed by the PMDC was never publicized and no effort to publicize the same was ever made. The petitioners acting on the representations made by their institution had enrolled and paid money to pursue their professional and academic career and in compliance with the orders of this Court, they have their professional examinations, and we are apprised that most of the petitioners have passed the same, It is argued- that grave hardship would be caused to the petitioners if at this crucial juncture they are deprived of their right to continue with their academic career particularly when there is no fault on their part.
24. A consistent pattern has been noticed that usually prior to the holding of an examination, writ petitions are filed challenging the refusal of the university to allow students to sit in the forthcoming examinations, and after the grant of interim relief, when the matter comes up for final disposal on merit if no case is made out, it is canvassed at the bar that since the students have successfully gone through the examinations, thus, dismissal of the writ petition would cause them irreparable loss and grave hardship, It appears that the institutions allow enrolment initially without observing the prescribed legal procedure and very conveniently place the matter at the doorstep of this Court with the belief that compassion will prevail and the students will be permitted to continue their academic career. This state of affair cannot be countenanced, especially, where the granting of relief to a person may be at the expense of another.
25. In the instant case, there can be no escape from the fact that traditionally in view of the paucity of seats in the medical as well as dental institutions, admission therein was determined by the quantum of seats rather than the minimum marks obtained. The change in this regime was affected by the PMDC in its 97th session of its counsel held on 29th and 30th of December, 2001. The decision of the PMDC admittedly was never published in the official Gazette nor any effort appeared to have been made to notify the same.
26. It has also been noticed that the authorities conferred with the power to issue instructions or make rules and regulations under a statute do the same within the secrecy of their offices without publishing the notification or publicizing the same thereby setting a trap for the citizens. Thus to deal with this mischiefs the legislature in its wisdom has now enacted section 20-A in the General Clauses Act, but unfortunately the said provision of law came into force a few months to late for the petitioners who are there for pushed into a legal black hole.
27. It is regretted that council members chose to believe that their decision would be in the knowledge of the petitioners and their parents without there being any effort to this effect by them.
However, this failure on the part of the PMDC does not excuse the institution whereat the petitioners are enrolled. Thus, who are engaged in the business of selling education must make it their business to know and apprise their students of the initial requirements of enrolment and taking of examinations, It cannot be said that the institutions concerned acted bona fide in the absence of due care and diligence.
28. Furthermore, the petitioners have the misfortune of finding themselves at the cusp of a transformation, i.e. The opening of the imparting of professional education to the private sector and the replacement of supervisory regime through the creation of the UHS. Such transformation has resulted in the usual confusion and lack of timely action. Undoubtedly, the petitioners possess the basic qualification to be enrolled having qualified their F.Sc. Pre-medical examination. The condition in question which has been added on to the basic qualification pertains only to the admission in the institution and has no direct impact on the professional examination which, of course, the petitioners must qualify independently. Enrolment of the petitioners and pursuit of their academic and professional career does not affect the right of any third party nor is there any question of State subsidy. We are of the considered view that it would be extremely harsh to punish the petitioners by ruining their academic career for the acts and omissions of the institution where petitioners are enrolled, and the failures of the PMDC and UHS, especially, when the petitioners are not guilty of any wrongdoing. Admittedly, the petitioners are in the midstream of their academic career, and most of them, have successfully taken their professional examinations.
29. For the foregoing reasons, these petitions are accepted with no order as to the costs, It is however clarified that relief is being granted in view of the peculiar circumstances of the case only to the extent of the petitioners.