' MUHAMMAD ANWAR KHAN KASI, J.--- The petitioner has challenged the holding of MD/MS/MDS Examinations, under Regulations, 2010 instead of the Regulations whereunder he was granted admission/registration with the respondent-University and prayed for them to be declared illegal, unlawful, with further direction to the respondents to re-conduct his examination strictly in accordance with the old regulations.
2. Petitioner, after, his MBBS had got admission in Quaid-i-Azam Post Graduate Medical College, for his Master of Surgery in April, 2004 with the approval of the concerned Board and was registered as a student of MS. It is his case that according to the regulations, Professor Dr. Muhammad Zahid PIMS, Islamabad was appointed as his Supervisor. It is submitted that he completed his four years' training on 23-4-2008 and after completing his thesis, he submitted it to the Supervisor, who sent it to the External Examiner for examination and report, whereafter the thesis and the reports were placed before the Research Board and the Board allowed him to appear in the written/practical viva voce examination.
3. Petitioner further submits that in the meanwhile, in 2010 the respondent-University introduced MD/MS/MDS Regulations 2010 approved by the Syndicate in its 152nd Meeting and, after the notification, were made applicable to all admissions, courses and examinations. The grievance of the petitioner is that the said Regulations could not have been applied in the cases of old students because he had completed his training under the previous regulations and their written examination and viva voce under a new regulations was without any lawful justification. He mentioned that against this practice, he submitted a representation and thereafter served a legal notice through lawyer for deciding his case within 15 days, but it remained unresponded.
4. The learned counsel for the petitioner submitted that all the rules and regulations are applied prospectively as the vested rights accrue to the persons, under the previous Rules and Regulations, which cannot be taken away by any of the concerned authorities. In support of his contentions, he relied upon the case-laws reported in "2007 CLC 1926 and PLD 1963 Dacca 886".
5. In the first authority, it is held that M"a unified policy with regard to the admission and discriminatory treatment has to be adopted by the University and not following it shall be in violation of Constitutional rights and the petitioners have to be treated on the basis of same policy under which they were given admission".
6. In the second case, the Dacca High Court laid down that "future career of the employees appointed under the PMDC Regulations, 1984 can only be governed under the regulations which were prevalent at the day of their appointment".
7. He, therefore, prayed that the respondents be directed to hold his examinations under regulations which were prevalent when he was granted admission as he has already completed his four years' training in his speciality.
8. The respondents after notice, contested the petition by filing their written reply, wherein, maintainability of the petition has been challenged on the ground that alternate remedy by filing of representation under University Rules has not been exhausted.
9. The next attack is about the retrospective applicability of regulations, which according to the respondents are always retrospective in nature because they are not substantive laws, but relate to procedure only.
10. On merits, it is submitted that the petitioner submitted his thesis vide letter dated 2-12-2008 and the Board after considering all the reports allowed him to appear in the final examination, conducted on 24, 25, 26 March, 2011, while clinical/viva voce examination was held on 6-4-2011, but the petitioner could not clear the papers/viva and was declared fail. It is stated that the petitioner appeared under the revised rules, because according to clause XII(b), it is held that "after notification of amended rules all admissions, courses and examination of MD/MS/MDS will be conducted according to the revised statutes and regulations".
11. Since the petitioner had appeared in the examination under the revised rules without any agitation at that time and, therefore, after failing he cannot take any refuge under the old regulations. It is finally submitted that the petitioner was advised to prepare for the next examination to be held in September, 2011.
12. Heard and record perused.
13. Admitted position of the case is that the examination regulations for MD/MS/MDS were revised/amended on 31-7-2010 and the petitioner cleared his paper and thesis under the amended rules, but could not pass the viva examination and thereafter started agitating the applicability of regulations of the times of his admission.
14. In fact, the regulations operate retrospectively unless there is specific bar against it. The only exception to the retrospective operation of a procedural law is that if by giving it a retrospective operation, the vested right of a party is impaired then to that extent it operates prospectively. It has repeatedly been held that the courts while interpreting a law do not legislate or create a new law or amend the existing law. The Courts through interpretation only declare the two meanings of law which already existed.
15. In view the alterations in the form of procedure through legislation are always retrospective unless there is some good reasons to hold otherwise, because nobody has vested right in the procedure, however,- it is made clear that if a new legislation affects the vested rights of any person, the same cannot be made applicable retrospectively. It has already been held by the superior Courts that if the legislature forms a new procedure then new form of procedure shall be adopted and the alterations shall be considered retrospectively.
16. The Hon'ble Supreme Court in "PLD 2001 SC 482" also held that procedural character of an amendment in the law shall operate retrospectively and affect all pending cases for neither any right of any person was taken away nor the ends of justice defeated by retrospective application of the provisions.
17. The definidon of the law of procedure shall explain the proposition very clearly because the law of procedure is defined as that branch of law which governs the process, while the substantive law relates to its purpose and subject-matter.
18. This view is also supported by the following case-laws:---
(1) 1972 SCM R 173, (2) 1992 SCM R 372, and (3) PLD 2001 (?) 452..
19. In the present case, only the procedure regarding examination was amended/revised and the petitioner had also appeared under the revised rules without any protest at the relevant time and, therefore, no vested right of the petitioner was infringed. He started litigation only when he could not qualify the viva and, therefore, his conduct creates an estoppel against his present actions, because none can be allowed to take altogether different positions.
20. For the foregoing reasons, the petition is found meritless and is dismissed with no order as to costs.