' MUNIB AKHTAR, J.---As will presently be seen, the controversy that ostensibly requires determination in this bunch of connected petitions is whether a corrigendum issued by the Secretary to the Government of Sindh in the Health Department has legal force and effect, and if so, to what extent. We use the word ostensible advisedly since it will become clear that in order to determine the real point in controversy, a number of other issues also have to be dealt with (and were argued at the bar by learned counsel), including in particular the proper interpretation of various statutes relating to medical education and medical universities. The petitioners can be 'divided into two categories. One set---by far the majority-contest and challenge the corrigendum and seek declarations and other relief striking it down. For convenience, these petitioners are referred to as the "contesting petitioners". The others-a small minority-seek declarations upholding the corrigendum. They are referred to as the "concurring petitioners".
2. Before proceeding to consider the dispute at hand, certain preliminaries need to be dealt with.
Firstly, medical education in Sindh can be regarded as divided between Karachi and the rest of the province. We are not concerned with Karachi and therefore references to "Sindh" shall (unless the context otherwise indicates) be to the province excluding Karachi. Secondly, education and training in dentistry is imparted by dental colleges. We are not concerned with these, and therefore references to dental colleges in the statutes and record, will be ignored. Thirdly, since a number of abbreviations are used herein, for ease of reference the principal ones are gathered in one place and are as follows:-- Abbreviation Refers to Corrigendum Corrigendum issued by the Secretary, Health Department, on22-10-2012 PMC Peoples Medical College PUMHS Peoples University of Medical and Health Sciences for Women Shaheed Benazir PUMHS ActThe Peoples University of Medical and Health Sciences for Women Shaheed Benazir Act, 2009 (passed by the Provincial Assembly on 21-12-2009; received the Governor's assent on10-11-2010)
LMC Liaquat Medical College LUMHS Liaquat University of Medical and Health Sciences LUMHS OrdinanceThe Liaquat University of Medical and Health Sciences Ordinance, 2000 (promulgated on or before 20-1-2001)
CMC Chandka Medical College GMMC Ghulam Muhammad Mahar Medical College SMBBMU Shaheed Mohtarma Benazir Bhutto Medical University SMBBMU Act The Shaheed Mohtarma Benazir Bhutto Medical University Act, 2008 PMDC Pakistan Medical and Dental Council PMDC OrdinanceThe Medical and Dental Council Ordinance, 1962 PMDC RegulationsThe Conditions for Admission in MBBS and BDS Course and Housejob Regulations 2010 First MeetingMeeting of Vice Chancellors held under the chairmanship of the Secretary on 17-5- 2011 Second MeetingMeeting of Vice Chancellors held under the chairmanship of the Secretary on 23- 7-2011 (together, the "Meetings")
1987 Act The Sind Medical Colleges Act, 1987 1995 Act The People's Medical College and Hospital Nawabshah Act, 1995 1997 Act The People's Medical College and Hospital Nawabshah (Repeal) Act, 1997 ' Finally, it may be noted that LUMHS (at least) has certain reciprocal arrangements with medical institutions at Karachi and also outside the province. In terms of these arrangements, inter alia, suitably qualified applicants admitted to the MBBS program can choose to study at the other medical institutions (and presumably, vice versa). In this judgment, we are not concerned with such arrangements or with the choice so available to, and exercised by, any person.
3. We begin with an overview of the facts. The dispute centers on admissions to the MBBS program starting from the year (or session) 2011-2012, and the pivotal point is as to who is entitled to be admitted to LUMHS and/or PUMHS/PMC. Admissions to the latter institution are limited only to female students, and as will be seen, in our, view, this is a crucial point that goes to the very root of the controversy. All the petitioners are female applicants who applied for admission to PUMHS/PMC for the 2011-2012 session. On or about 17-5-2011, the First Meeting was held under the chairmanship of the Secretary, Health Department ("the Secretary"). The minutes of the First Meeting were circulated on or about 28-5-2011. The Vice-Chancellors of all the public sector medical universities in the Province (i.e., including Karachi) attended the meeting. The principal of the Shaheed Benazir Bhutto Medical College Lyari, Karachi a governmentowned, managed and administered institution, was also present. The agenda for the meeting was to establish a common admissions policy for entrants to the MBBS program starting from the 2011- 2012 session. The minutes, which were placed on record, show that it was decided that the entry test for admissions would be held by all the institutions on the same day, i.e., 2-10-2011. The test would be conducted by the same organization, the National Testing Service ("NTS"), and each university was to enter into its own agreement (or MOU) with NTS. Uniform dates were settled for other matters relating to the admissions process, such as issuance of prospectuses (5-9-2011), submission of application forms (17-9-2011) and announcement of final merit list (20-10-2011).
4. After the First Meeting, there was a follow up meeting, i.e., the Second Meeting, the minutes of which were circulated on or about 25-8-2011. The chairmanship of, and attendance at, the Second Meeting remained the same as before. Essentially, the decisions taken at the First Meeting were confirmed and certain ancillary decisions were also taken.
5. After the two meetings as above, the Vice-Chancellor of PUMHS addressed at letter to the Secretary on or about 12-10-2011, He pointed out what he referred to as "confession in [the] admission policy" and requested that a corrigendum be issued with regard to the minutes of the Secohd Meeting, and the press also be informed, so that the confusion could be resolved. As a result of this letter, the impugned Corrigendum was issued on behalf of the Secretary on or about 22-10-2011 and circulated to all the Vice-Chancellors. The Corrigendum needs to be reproduced in full, and stated as follows:- "A meeting was held under the Chairmanship of Mr. Rizwan Ahmed Secretary Health Sindh on 23rd July, 2011 at 10-00 a.m. In the office of the Secretary Health to finalize the uniform policy for admission in Public Sector Medical Universities/Colleges of Sindh for the Session 2011-2012.
' Minutes of the meeting were circulated earlier but Vice-Chancellor, (PUMHS, SBA) pointed out the following points for inclusion in the minutes of the meeting.
(1) The girls sudents can get prospectus from Nawabshah (PUMHS) or from Hyderabad (LUM and.
HS) belonging to the District tagged with LUMHS and can submit the form in respective University and appear in their respective Institute, where they have applied for admission.
(2) The students belonging to the tagged Districts of SMBBU, the girl students can apply in their respective Districts and they are eligible to apply at PUMHS and can appear in their respective Institutes.
(3) The selection will be done on merit/cum choice basis from their respective Districts in consolidated list of LUMHS, Jamshoro and PUMHS, SBA.
(4) The selection will be done on merit cum-choice from respective Districts in consolidated list of SMBBU & PUMHS."
6. LUMHS immediately wrote back (in fact, on the same day) to the Secretary with regard to the Corrigendum. It was pointed out that LUMHS had already (with due approval from its syndicate) issued the prospectus and announced its admission policy in terms of the decisions taken at the First Meeting. It was therefore stated as follows:-- "Keeping in view above circumstances, and the facts that no choice of Peoples University of Medical and Health Sciences (PUMHS), Shaheed Benazirabad (Nawabshah) have been mentioned in our Prospectus, therefore it is not possible for this University at this stage to consider selection on merit-cum-choice basis for admission in PUMHS, Shaheed Benazirabad (Nawabshah)."
7. Thus, LUMHS refused to issue a combined or common merit-cum-choice list of successful applicants to the MBBS program, as requested by the Vice-Chancellor of PUMHS and directed in the Corrigendum. At the same time, PUMHS, in line with its own request and the Corrigendum and, it appears, having taken data available on the LUMHS website, proceeded to issue a combined merit-cumchoice list of successful applicants. It is the issuance of the combined list by PUMHS on the one hand, and the refusal to do so by LUMHS on the other, that resulted in the filing of the present petitions.
8. Mr. Sardar Akbar Ujjan, learned counsel for some of the contesting petitioners, submitted that prior to the LUMHS Ordinance, there were only medical colleges in Sindh, which were all affiliated with the University of Sindh. From inception, PMC had been an all-girls' institution, and it was the only such institution in Sindh. Admissions to these medical colleges were made on the basis of "tagged districts", and combined meritcum-choice lists. (These matters are considered and explained in detail herein below.) Learned counsel submitted that after the passing of the PUMHS and the SMBBU Acts, the inter se affiliations of the various medical colleges came to an end. He emphasized that now all were universities governed and regulated separately by their respective statutes. Referring to the prospectus issued by PUMHS for the 2011-2012 session, he submitted that the seats available there were divided amongst the various districts of Sindh as shown therein. He averred that the references (at pg. 35 of the prospectus) to LUMHS and the colleges now with SMBBMU had nothing whatsoever to do with these institutions as such. He contended that the uniform or common policy established by the First and Second Meetings was purely procedural in nature. Each of the institutions covered by the common policy had to issue its own prospectus and this was duly done by both LUMHS and PUMHS. Every applicant applied separately to each institution by obtaining from it the application form on payment of the fee prescribed by it. Learned counsel submitted that no question arose of any combined list of applicants being issued or considered since all the institutions were separate universities. Each of them had issued its own prospectus, entertained applications and it was on such basis that applicants were to be considered for admission. Thus. The merit lists for each university had to be separately and independently published. The mere fact that the applicants took the same entry test on the same date was not relevant. Insofar as the Corrigendum was concerned, learned counsel submitted that it was entirely without legal force or effect. It was issued simply on the request of the Vice-Chancellor of PUMHS and without any meeting being called to consider the same. He contended that the Corrigendum sought to impose obligations and an admissions regime on the universities that was entirely contrary to and inconsistent with the applicable legal framework.
9. Mr. Amjad Sahito, learned counsel for some of the contesting petitioners, submitted that the 1987 Act had no application to the present case. He referred to section 32 of the PUMHS Act, and submitted that the prospectus of this institution had been issued in exercise of the powers thereby conferred. He contended that the PUMHS Act conferred complete independence and autonomy on the university and therefore no question arose of there being any combination of applicants to its.
MBBS program with those candidates who had applied to other universities, including LUMHS. He submitted that the Corrigendum was entirely unlawful and merited being struck down.
10. Mr. Hakim Ali Siddiqui, learned counsel for some of the contesting petitioners,' referred to various provisions of the PUMHS Act (including sections 21, 26 and 27(2)(c)) fo contend that the Government had no say in the affairs of the university. As presently relevant, the matter of admissions was entirely in the hands of the academic council, which was one of the authorities duly constituted under the PUMHS Act. The university was entirely independent. Learned counsel emphasized that the statutory provisions applicable to all three universities were essentially the same. He submitted that the two Meetings held under the chairmanship of the Secretary, to establish the common policy, were entirely illegal since they conflicted with the relevant statutory provisions of the statutes whereby LUMHS, PUMHS and SMBBMU had been established. The Vice- Chancellors had no power or authority to formulate any admissions policy, let alone a common policy under the auspices of the Secretary. Thus, his case was that the Corrigendum was completely non est and had no existence in law. He also emphasized the complete independence of each university and contended that no combined merit list could at all be issued. He submitted that the contesting petitioners had been wrongly excluded from the list published by PUMHS, and candidates who had not even applied there had been shown as successful applicants. The question of the merit of applicants had to be determined for each university separately, and on the basis of only those candidates who had applied to that particular institution. He submitted that the mere fact that there had been a common entry test taken on the same date under the same organization (NTS) did not mean that there was one test. Each university tested its own applicants (i.e., those who had submitted application forms at that institution).
11. Mr. Arshad Pathan, learned ' counsel for some of the contesting petitioners, also contended that the Corrigendum was liable to the struck down. He submitted that the Coirigendum was nothing other than a mere desire or wish that had been expressed- by the Vice-Chancellor of PUMHS. He referred to the meaning of this term, and submitted that the document called the "Corrigendum" was no such thing within the meaning of law. At most, it was merely a decision of the Secretary, and he had no power or authority in this regard. If at all, a proper meeting ought to have been called or at least the proposal of the Vice-Chancellor of PUMHS should have been circulated amongst all the participants of the Meetings in order to solicit their views. Learned counsel further submitted that by the date on which the Corrigendum was issued (22-10-2011) a number of steps had already been taken in respect of PUMHS admissions process, as printed on the inside back cover of the prospectus. Thus, the prospectus itself had been issued, admissions forms purchased by those applicants who wished to apply to PUMHS and applications submitted and vetted. Even the entry test was scheduled to be held on 2-10-2011, and it had only been postponed on account of the rains. Thus, the contesting petitioners, who had all applied to PUMHS, had acquired vested rights, which could not be taken away retrospectively. That however, was the precise effect of the Corrigendum. He further submitted that there was no reciprocal arrangement of any nature between PUMHS and LUMHS and therefore no question arose of there being any combined merit- cum-choice list. He further contended that the Corrigendum amounted to discrimination.
12. Mr. Masood Khan, learned counsel for some of the contesting petitioners, submitted that the Corrigendum had no legal force or effect. He contended that the admissions process started when the prospectus was published. By the time the Corrigendum was issued, not merely had this been done, but a number of other steps or stages in the admissions process had also been reached and passed. He submitted that once the admissions process has started it could not be altered and certainly not to the detriment of those candidates who had applied on the basis or faith thereof.
Their rights had become vested and could not be affected or altered in such a manner.
13. Mr. Zahoor A. Baloch appeared on behalf of the concurring petitioners. Learned counsel supported the Corrigendum. He submitted that the concurring petitioners were all domiciled in Shaheed Benazirabad District (formerly Nawabshah) and were eligible to be included in the combined merit-cum-choice list, if properly issued (as required in terms of the Corrigendum) for and by both PUMHS and LUMHS. He submitted that the refusal of LUMHS to issue or recognize such a combined list was adversely affecting the rights of the concurring petitioners, since they would be unable to have (and therefore exercise if any so wished) the choice of studying medicine at LUMHS.
Candidates with lesser marks and lower down the merit list were being granted admission by that institution and the concurring petitioners were being unlawfully excluded. He prayed that the Corrigendum be enforced and LUMHS be directed to recognize and apply the combined merit list, thus enabling the concurring petitioners to exercise their rights accordingly.
14. Mr. Shahab Usto appeared for PUMHS and strongly supported the Corrigendum. He submitted that not merely was the Corrigendum entirely lawful and proper, it was also fair, and enabled the maximum number of deserving and eligible candidates (i.e., those with the highest marks) to enroll in the MBBS program. The combined merit-cum-choice list had to be issued for LUMHS and PUMHS and duly recognized by, and given effect at, both institutions. Thus, he was at odds not merely with the contesting petitioners but also learned counsel for LUMHS. Learned counsel submitted that the present petitions raised a number of issues, which included the following: (a) whether LUMHS, and each of the other medical universities, was autonomous and entitled to make its own policies; (b) whether the Government, as regulator of public policy, was empowered to issue or formulate the common admissions policy for the public sector medical universities; (c) what the concept of tagged districts; and of course, (d) whether the Corrigendum was lawful or not. Referring to the reply filed by LUMHS, learned counsel drew attention to the fact that the minutes of the 28th meeting of the university's syndicate, whereby the admissions policy had been approved, merely followed and endorsed the common policy established under the auspices of the Government. He submitted that LUMHS had never before in any manner or form attempted to deviate from applicable Government policy. He contended that the 'Government's power to impose a common admissions policy stemmed from its inherent power in the public arena and in the particular circumstances of the present case was an application of Article 25 of the Constitution. Learned counsel submitted that it was incumbent on the Government to formulate a policy which enabled the maximum number of the most eligible female candidates (i.e., those with the highest marks) to have access to the MBBS program. Since PUMHS was the sole institution that admitted women only, admissions on the basis of a combined merit-cum-choice list was the only approach that made this desired policy objective possible. Learned counsel emphasized that if LUMHS refused to accept the, and grant admissions on the basis of, a combined list the entire policy would fail and collapse. He was highly critical of LUMHS' refusal in this regard, especially as contained in its response of 22-10-2012 to the Corrigendum. Ile also submitted that a common admissions policy was nothing new; every year, the Secretary formulated such a policy with the assistance of the concerned institutions.
15. Learned counsel also relied strongly on the 1987 Act and contended that this statute also armed the Government with sufficient statutory powers to formulate a common admissions policy. He referred to its various provisions and submitted that the 1987 Act contained a non obstante clause that gave it overriding effect. He submitted that neither LUMHS nor any of its authorities (including the syndicate) could deviate from the policy laid down by the Government. We will consider this Act and the case sought to be built thereon by learned counsel in detail below. Learned counsel submitted that no institution other than LUMHS had objected to the Corrigendum. He contended that even in its letter of 22-10-2012 LUMHS did not deny that the Government had the requisite authority; rather, it only challenged the timing of it. He submitted that when the Corrigendum was issued, LUMHS had not yet published its merit list and thus could easily had complied with the terms thereof and published, and joined in, a combined list. Even LUMHS' own prospectus showed that it recognized the merit-cum-choice concept and hence all objections now being raised were entirely without force. He also focused attention on the policy implications of LUMHS' refusal to abide by the Corrigendum: unmeritorious girl students would gain admission, while more qualified candidates would stand excluded. He submitted that this could not have been the intent of the law.
Learned counsel also referred to a 2009 Division Bench decision of this Court handed down at the Sukkur Bench and submitted that LUMHS' refusal to recognize the combined list was in violatiOn of the same.
16. Mr. Kamaluddin, learned counsel for LUMHS, strongly resisted the application of the Corrigendum to the university he represented. He referred to various provisions of the LUMHS Act to contend that the university was wholly independent and autonomous, and that the Government had no power or authority to formulate or impose any policy, whether in relation to admissions or otherwise, for or in relation to LUMHS. He submitted that medical colleges and universities were regulated by PMDC and placed reliance on the PMDC Regulations. In particular, learned counsel referred to Regulation 3 and submitted that the common admissions policy was formulated by the Vice-Chancellors pursuant to this provision. However, he emphasized the procedural nature of the exercise by going through the minutes of the First and Second Meetings. Even the decisions taken at the Meetings were not binding unless approved by LUMHS' syndicate. He submitted that the syndicate had only approved the decisions taken at the two Meetings and the Corrigendum travelled far beyond what had been agreed upon. Learned counsel also gave a detailed explanation of the concept of tagged districts and how it had operated earlier in relation to LUMHS and other institutions. He submitted that now the situation had changed fundamentally since each institution was governed by its own statute. The Corrigendum was not a corrigendum as normally understood. Learned counsel accepted that had what was stated in the Corrigendum been decided upon and included in the decisions taken at the two Meetings then LUMHS would have been bound to act in terms thereof. However, the Corrigendum was issued in the middle of the admissions process and was not therefore legally binding and could not have any effect in law. He submitted that it had rightly been resisted and objected to by LUMHS. At most, it was a mere recommendation or suggestion, which LUMHS was free to accept or reject. He also submitted that those girl students who had been given admission at LUMHS on the basis of its own merit list were not respondents to the present petitions. An application of the Corrigendum would result in at least some of them being removed from the university and thus, they would be condemned unheard. He denied entirely the power .Of the Government to regulate matters relating to admissions at LUMHS and submitted this was the domain of PMDC. He also contended that the 1987 Act did not at all apply to LUMHS, and further contended that the Division Bench decision relied upon by learned counsel for PUMHS did not apply.
17. Learned A.A.-G. Supported the Corrigendum. He submitted that the combined merit-cum- choice list had been accepted and applied for the past several years, and the statutes whereby the universities were established could not, and did not, affect this policy. He contended that the Government had all the necessary powers to formulate and apply a common admissions policy.
He referred to the Meetings, and submitted that there was no denial of the meetings having been convened. He submitted that there was thus an acceptance of the common admissions policy by all the Vice-Chancellors. Learned A.A.G. Contended that the Corrigendum simply supplied and corrected an obvious mistake and for that reason had been accepted by all concerned, save only LUMHS. He submitted that the Corrigendum was directly relatable to the Second Meeting and only incorporated what had been inadvertently left out. He further submitted that no entry test was held on the scheduled date and was postponed on account of the rains, and was held after the issuance of the Corrigendum. Thus, the position of no candidate or applicant was at all affected. It was entirely possible for LUMHS to have done what was required in terms of the Corrigendum, i.e., (issue and apply a combined merit-cum-choice list. He also submitted that Regulation 3 of the PMDC Regulations, rather than supporting the case put forward by LUMHS, supported the stance of the .Government and PUMHS. He therefore prayed that the Corrigendum be applied in letter and spirit to all the universities including, in particular, LUMHS.
18. Exercising their right of reply, learned counsel for the contesting petitioners submitted that the stand taken by learned A.A.-G. At the bar contradicted what had been stated by the para wise comments filed by the Government. There, it had been expressly stated that the Government (through the Health Department) acted only as a facilitator to enable a common policy to be formulated by the Vice-Chancellors. No power, as such, had been asserted by and for the Government. It was also submitted that PMDC was a regulator that operated in its own field, and it was not an authority under or in relation to the LUMS Act. The only involvement was that a representative of PMDC. Was a member of the senate. Learned counsel also pointed out that an interim order dated 8-12-2011 had been made in C.P. D-455 of 2011, whereby it had been directed as follows: "it is clarified that if any admission is allowed in violation of merit list or the corrigendum issued by the respondent No. 2 is found unlawful, the admissions, if any allowed will be subject to orders of this Court and all students being admitted be also notified this order". Thus, no question arose of any of the girl students who had been admitted in violation of the -Corrigendum being condemned unheard Learned counsel for PUMHS, replying to what had been stated by learned counsel for LUMHS, submitted that the case sought to be built by the latter on the basis of the PMDC Regulations went beyond the para wise comments that had been filed. He submitted that in any case, there was nothing in Regulation 3 which disallowed the application of a combined merit- cum-choice list. That regulation also could not, and did not, allow LUMHS to act on its own in utter disregard of the common admissions policy that had been formulated and was binding on all the universities. Finally, learned counsel for LUMHS submitted that there was no such thing as a "combined" or "common" merit . List. The two Meetings had had a limited agenda, and what had been agreed upon had been acted upon by LUMHS. The Corrigendum travelled beyond what had been agreed and sought to impose something on LUMHS that "it was not bound to accept and apply and in any case, could not since it was issued in the middle of the admissions process counsel to file synopses, and some did so along with the case law that they wished to rely upon.
20. We have heard learned counsel as above, examined the record with their assistance and considered the material (including the case law) relied upon. The first point that needs consideration is the distinction between an "affiliated college" and a "constituent college". All the three statutes presently relevant, the LUMHS Ordinance, and the PUMHS and SMBBMU Acts, contain definitions of these terms in more or less identical terms. Indeed, it would appear that such definitions are to be found in virtually every statute whereby a university is created. For illustrative purposes, we turn to the definitions in section 2 of the PUMHS Act, which are as follows:-- "affiliated college" means the college affiliated to the University but not maintained or administered by it; [clause (ii)] "constituent college" means a college maintained and administered by the University; [clause (viii)] "college" means a constituent college or affiliated college imparting instructions or practical training in courses of studies relating to health sciences and allied sciences; [clause (vii)] It is clear from the definitions that a "constituent college" is both maintained "and" administered by the university, whereas an "affiliated college" is not maintained "or" administered by it. The word "maintained" in the present context essentially has the connotation of ownership. Thus, a "constituent college" is A both owned and run by the university itself, whereas an "affiliated college" is neither owned nor run by it. The latter type of college may be owned, e.g., by a trust, an individual, a company or the government. It may even (as we will see shortly) be a corporate body in its own right. It may also be that it is formally owned by one body or person while being maintained by another. However, the degree to be awarded to students at such a college, like those at a constituent college, is by and that of the university.
21. It is also important to keep in mind the distinction between a university and its constituent college(s). The two are not identical. The constituent college may have no separate legal existence of its own. But that does not mean that it has no distinct identity within the university. To conclude otherwise would be to do away with the concept of a constituent college. Thus, the PUMHS Act has separate definitions of a faculty of the university, a teaching department, the dean of a faculty and the principal of a constituent college. All the relevant statutes expressly enable the respective universities to establish colleges, faculties and departments. Again this position would appear to be the invariable norm in legislation of this type.
22. Prior to the promulgation of the LUMHS Ordinance, there were only medical colleges in Sindh, being LMC, PMC, CMC and GMMC. All of these were affiliated colleges of the University of Sindh. (The University of Sindh Act, 1972 contains, in section 2, clauses (b) and (f), identical definitions of "affiliated college" and "constituent college".) There is no dispute that these colleges were maintained and administered by the government (though they may, formally, have been owned by, e.g., a trust or some such body).We were informed that after the promulgation of the LUMHS Ordinance, PMC, CMC and GMMC became affiliated colleges of LUMHS. The question however is what happened to LMC on the promulgation of the LUMHS Ordinance, to PMC on the passing of the PUMHS Act, and CMC and GMMC when the SIvIBBMU Act came into force? We first take up the case of PMC. Section 4 of the PUMHS Act provides that all properties, assets, liabilities and obligations of PMC stood transferred to PUMHS. Likewise, all persons serving in PMC stood transferred to PUMHS (subject to each having an option to continue in the employ of the Health Department of the Government). Learned counsel for PUMHS, as also learned counsel for LUMHS, submitted that by ?
Virtue of section 4, PMC has ceased to exist. For reasons stated later, we do not agree and as will also be seen, this matter goes to the very root of the present controversy. In our view, regardless of how PUMHS has currently arranged its affairs, as a matter of law PMC continues to exist as a constituent college of the university. The distinction between a university and its constituent college(s) must be recognized between PUMHS and PMC. Section 4 has not obliterated PMC. It has simply shifted this institution from its position as an affiliated college of another university to being a constituent college of the newly created university, i.e., PUMHS. The position is similar in relation to CMC and GMMC, to which subsections (6) to (10) of section 3 of the SMBBMU Act apply in the same manner.
23. The position of LMC however, was different. Section 3(1) of the LUMHS Ordinance states as follows: "The Liaquat Medical College shall be upgraded as the Liaquat University of Medical and Health Sciences, Jamshoro in accordance with the provisions of this Ordinance, but the Government shall have the power to setup any Additional Campus at any place within the jurisdiction of the University or by converting any educational institution or college under control and management of the University."
' Neither of the PUMHS and the SMBBMU Acts have a. Similar provision. The difference is clear and apparent. Whereas the three medical colleges (i.e., PMC, CMC and GMMC) stood transferred to their respective universities, LMC itself became the university, i.e., LUMHS. Thus, while the three medical colleges continue (at least as a matter of law) to exist as constituent colleges of their respective universities and retain a position distinct from the latter, LMC ceased to have any existence at all: it had been "upgraded" to, and into, the university itself. Jurisprudentially, the matter may be stated as follows. In the case of PUMHS and SMBBMU, the legal entity is created by their respective sections 3(1), which provide that there "shall be established" the university concerned. Section 3(1) of the LUMHS Ordinance however, states that LMC "shall be upgraded as"
LUMHS. In Salmond on Jurisprudence (12th edition, 1966), it is noted that "legal personality is not limited by any logical necessity, or, indeed, by any obvious requirement of expediency, to the incorporation of bodies of individual persons" (pg. 308). Thus, in the case of PUMHS and SMBBMU, the mere expression of the legislative will bring the legal entity into being. In the case of LUMHS however, the legislature chose to confer legal personality on a physical entity (i.e., LMC). Reference may also be made to Bank of NSW v Commonwealth (1948) HCA 7; (1948) 76 CLR 1, a decision of the High Court of Australia. This decision, commonly known as the Bank Nationalization case, is a landmark decision in respect of section 92 of the Australian Constitution. The vires of the Commonwealth Bank Act, 1945 was impugned before the High Court (and on appeal, the Privy Council). For present purposes, however, the following observations of Dixon, J., are relevant:-- "Although the Commonwealth Bank is declared to be a body corporate there are no corporators. I see no reason to doubt the constitutional power of the Federal parliament, for a purpose within its competence, to create a juristic person without identifying an individual or a group of natural persons with it, as the living constituent or constituents of the corporation. In other legal systems an abstraction or even an inanimate physical thing has been made _an artificial person as the object of rights and duties. The legislative powers of the Commonwealth, while limited in point of subject matter, do not confine the legislature to the use of existing or customary legal concepts or devices...." (para 68)
24. The point presently under consideration can also be illustrated by what happened to PMC itself in the mid-nineties. By means of the 1995 Act (section 3), PMC was reconstituted and reorganized as the People's Medical College and Hospital, Nawabshah and "as reconstituted" became a body corporate having perpetual succession, etc. It will be seen that what section 3 of the 1995 Act did was analogous to what was achieved by section 3(1) of the LUMHS Ordinance, the only difference being that in one case, the physical entity was "reconstituted and reorganized" while in the other it was "upgraded" into the legal entity. It is to be noted that no degree conferring power was granted to the newly created legal entity, which therefore was, like PMC, an affiliated college of the University of Sindh. The 1995 Act was repealed by the. 1997 Act, and section 2(2) provided that on repeal, "the People's Medical College and Hospital... Shall stand transferred to Government and on such transfer... Shall be managed by Government". Thus, by one statute, legal personality was conferred on a physical entity (PMC), and by another, taken away.
25. The foregoing discussion has a direct and material bearing on the question whether the 1987 Act applies or not. It will be recalled that this was one of the main planks on which learned counsel for PUMHS rested his case regarding the existence of governmental power to formulate and impose a common admissions policy. The 1987 Act is a short enactment, comprising of only four sections. As originally enacted, it can be found at PLD 1987 Sind Statutes 58, and as presently relevant its provisions are as follows:--
(2) Definitions.---In this Act, unless there is anything repugnant to the subject or context-- ..
(b) "medical college" means a medical college established or maintained and run by Government and includes a dental college;
(d) "student" means a student of a medical college.
(3) Power of Government of make rules.---(1) Notwithstanding anything contained in any law, for the time being in force, but subject to the Medical Councils Ordinance, 1962, Government may by rules--
(a) regulate admissions in a medical college; ....
(2) Without prejudice to the generality of the foregoing provisions, the rules may provide for-
(a) allocation of seats;
(c) conditions for admission; ....
Learned counsel submitted that section 3 conferred the requisite powers on the Government.
However, the crucial provision is the definition of "medical college", which (as the word "means" indicates) is exhaustive. In our view, a "medical college" comes within the meaning of the definition only if both of the following conditions are fulfilled: it is (a) established or maintained, and (b) run, by the Government. The word 'run" has the same meaning or sense as "administered". Thus, the medical college must be both maintained and administered by the Government for the 1987 Act to apply. However, as is clear from the foregoing discussion, this is no longer true for PMC, CMC and GMMC. As explained above, in our view, these institutions are now constituent colleges of their respective universities. In any event, they are neither maintained nor administered by the Government. Thus, the 1987 Act has no application at all in relation to them. Insofar as PUMHS and SMBBMU are concerned, these are universities established under their own statutes and quite obviously, the 1987 Act can have no application insofar as they are concerned.
26. Learned counsel for PUMHS however, also relied on a version of the 1987 Act that appeared in a prospectus issued in 2004-2005 by the Health Department. That version differs from the original enactment in the following ways (emphasis supplied):-- "medical colleges" means a medical college established or maintained and run by Government and includes a dental college and constituent colleges of LUMHS; "student" means a student of a medical institution. Learned counsel relied on the express reference to LUMHS in the definition of "medical college", and the use of the word "institution" instead of "college" in the definition of "student". He submitted that "institution" was a word of wider import and included all manner of bodies, including universities. He also relied on the non obstante clause in section 3 and submitted that the 1987 Act therefore applied even in relation to universities, since they were "institutions" and their own statutes were overridden by the non-obstante clause.
27. The first point to note as regards the amended version is the obvious one that any amendment in the statutory text could only be brought about by an amending Act or Ordinance. However, none of the learned counsel, despite strenuous efforts, was able to place any such Act or Ordinance before us. We even asked the librarian of the Judges' Library to conduct a search but that also produced no result. Thus, no statutory support was found for the version of the 1987 Act as put forward by the Health Department in its prospectus, and this alone is sufficient to cast doubt on whether it was amended at all However, even if the amended version is accepted, it does not advance the case put forward by learned counsel for PUMHS. This is so because, as submitted by learned counsel for LUMHS and concluded by us in the foregoing paras, LUMHS does not have any "constituent colleges". The only candidate to which this description could apply was LMC but as noted above that institution ceased to exist as such by virtue of section 3(1) of the LUMHS Ordinance and became, on its being upgraded, the university itself. Insofar as the change in the definition of "student" is concerned, that also is of no consequence since there is no change in section 3, which continues to apply to "medical colleges". This continues to remain the controlling, and crucial, definition and since none of the institutions presently relevant come within the scope thereof, the 1987 Act has no application. To this extent therefore, the case put forward by learned counsel for PUMHS must, with respect, fail.
28. The reliance placed by learned counsel on the "inherent power" of the Government to formulate public policy is also misconceived. In effect, learned counsel was relying on the executive authority of the Province. However, it is now well settled that the executive authority must be exercised in a manner consistent with any legislative enactment, and in particular, if a matter is covered, governed or regulated by statute, then to that extent it is the legislative will that must prevail and executive authority cannot be relied upon. Thus, in Abdul Haq and others v. Province of Sindh and others PLD 2000 Karachi 224 (DB), it was observed as follows: "Exercise of executive authority is not unfettered, unbridled or uncontrolled but under Article 137, is circumscribed, conferred and regulated by the Constitution or legislative instruments framed thereunder" (para 20; pg. 232). In the present case, the 1987 Act does not apply, and each university is governed and regulated by its own statute. The entire matter is covered by statutory provisions, and it is these alone which must be looked at and applied. Reliance cannot be placed on the executive authority or the "inherent powers" of the Government. Furthermore, the reliance placed on Article 25 of the Constitution is also misplaced. Clause (2) of this Article prohibits gender based discrimination, but clause (3) allows positive discrimination for the "protection" of women. Now fundamental rights serve as a check on State power; i.e., they prohibit the relevant organ of the State from doing what it otherwise could do (whether in the exercise of legislative or executive power). In other words, fundamental rights do not confer powers on the State; they derogate from its powers and draw a line which cannot be crossed. This Article therefore does not apply in the manner as submitted by learned counsel. However, it may have an application in a somewhat different sense, as explained below.
29. The stage is now set for consideration of the Corrigendum itself. However, in order to properly understand the terms thereof, the matter has to be looked at in the historical perspective. In particular, the admissions policy followed before the enactment of the various statutes whereby the universities were set up needs to be understood. As noted above, earlier there were only medical colleges in Sindh, being LMC, PMC, CMC and GMMC. Now, the various districts of Sindh were distributed amongst LMC, CMC and GMMC. Thus, students wishing to study medicine who were domiciled in the districts that were (e.g.) allocated to LMC could only apply there, and the situation was the same in relation to CMC and GMMC. In other words, the various districts were "tagged" to specific medical colleges. This is the basic meaning of "tagged district". The position of PMC was somewhat different. It was the only all-girls' medical college in Sindh. The seats in PMC were therefore distributed amongst all the districts in Sindh. However, since each of these districts was also "tagged", for admissions purposes the seats in PMC allocated to a particular district were dealt D with along with the seats for that district in the college to which it was "tagged". For example, Hyderabad District was allocated to or "tagged" with LMC. At the same time, certain seats were allocated to Hyderabad in PMC. The seats for E Hyderabad in PMC were dealt along with the seats allocated to the district in LMC. In a sense therefore, the seats in PMC were doubly "tagged".
30. How the system worked can be explained by taking the example of Hyderabad, a "tagged district" of LMC. Thirty seven seats were reserved in LMC for students domiciled in Hyderabad, and ten seats were reserved for students with such domicile in PMC. The 47 seats were dealt with together. What used to happen was that a "combined" merit-cum-choice list was prepared for the applicants from Hyderabad District. The list obviously comprised of the top 47 applicants, and was gender neutral, i.e., included both male and female students. The "merit" element of the list ensured that only the most meritorious students were included. The "choice" element applied only to the girl students. Each of these applicants, in descending order (i.e., from top down), was offered the choice of either studying at LMC or going to PMC. Some girls opted for LMC, while others, preferring an all-girls' environment, chose PMC. If all the 10 seats in PMC allocated to Hyderabad were filled in by choice, the matter ended there, the remaining 37 applicants enrolling at LMC. However, if any seats at PMC were left vacant, those seats were filled in by selecting girls in ascending order (i.e., from bottom up). Thus, the lowest ranking girl on the combined list (who had not herself chosen to go to PMC) was sent to PMC, then the next higher and so on, till all the vacant seats were filled. In this sense, these girls had no choice; they had to study medicine at PMC. The position was the same in relation to all the other districts "tagged" to LMC, as well of course, in respect of the districts "tagged" to CMC and GMMC respectively.
31. It will be seen from the foregoing that it was of the essence of the policy (which is hereinafter referred to as the "Old Policy") that all the seats in Sindh allocated to a particular district were dealt with together. Each district necessarily had seats in PMC, and also seats in another medical college, to which it was "tagged". One combined list was issued for each district in relation to all the seats allocated to it. The list had (obviously) to be based on merit, but it also had an element of choice, to enable those female applicants who wished to study in an all-girls' college to opt for PMC. ,Any vacancies left in the seats at PMC for any particular district were filled in the manner just described; those girls had no choice and were required to enroll at PMC.
32. When the Corrigendum is examined from this perspective, it is at nnce obvious that it is nothing other than an attempt to continue applying the Old Policy. Only now, the policy is being applied to the admissions process of universities operating under their own statutes. The question therefore is whether it is legally permissible and/or valid to apply the Old Policy in a situation that is, from a legal perspective, quite different from what had prevailed earlier, and if so, whether it is possible to do so by means of the Corrigendum or otherwise?
33. The first point to note is that this question has arisen for the first time. The reason is that, as noted in the beginning of this judgment, although the Bill relating to PUMHS was passed by the Provincial Assembly on 21-12-2009, it did not receive the Governor's assent till almost a year later, on 10-11-2010. Thus, at the time of admissions to the 2010-2011 session there was no PUMHS; there was only PMC. When the prospectus issued by PUMHS for the session presently relevant, i.e., 20.112012 is examined, it is at once obvious that it has been prepared with reference to the old framework, i.e., the Old Policy. Thus, the allocation of seats amongst the various districts of Sindh is given at pp. 35-6 of the prospectus. This in itself is unexceptionable. What is noteworthy is that the seats are expressly divided into three categories, which are labeled as follows: "LUMHS TAGGED DISTRICTS", "CMC TAGGED DISTRICTS" and "GMMC TAGGED DISTRICTS". This classification and description makes sense only in the context of the Old Policy, and what was of the essence of that policy: all the seats in Sindh allocated to a particular district were to be dealt with together.
However, it appears that somewhat belatedly, the Vice- Chancellor of PUMHS began to realize the full implications of the PUMHS Act, i.e., of PMC no longer being a mere affiliated college. It is perhaps for this reason that he wrote to the Secretary on 12-10-2011, seeking to remove the "confusion" in the common admissions policy determined in the First and Second Meetings, which led to the issuance of the Corrigendum. It is noteworthy that in the prospectus issued by LUMHS, which was also placed before us, the allocation of seats amongst the districts "tagged" with it is given at pg.
42. That list does not however, make any reference to PUMHS/PMC nor (it seems) is there any such reference anywhere else in the prospectus.
34. We have carefully considered the minutes of the First and Second Meetings. We find nothing therein that would indicate that the Old Policy was required to be adhered to or that it was to be enforced. The only matters that were decided upon were essentially procedural in nature. Ensuring that all the candidates sat on the same date for the same entry test and that the other relevant acts in respect of the admissions process would also occur on the same dates. There was no "confusion" in the decisions taken at the Meetings as claimed by the Vice-Chancellor of PUMHS.
What was discussed and decided was stated in categorical terms in the minutes. It would seem that LUMHS, appreciating that PUMHS/PMC was now subject to its own statute and legal framework, issued a prospectus that was limited .To what applied to LUMHS alone, i.e., to the districts "tagged" to it. PUMHS/PMC issued a prospectus that appeared to conform to the Old. Policy, without fully appreciating that it was no longer a mere medical college affiliated with another institution: it was a full fledged university in its own right.
35. When viewed from this perspective, in our view the Corrigendum itself must fail. There can be no doubt that it was (at most) a mere executive act, which attempted, after the prospectuses had been issued and the admissions process begun, to alter the admissions policy not merely for PUMHS but also LUMHS and SMBBMU. Learned counsel for the contesting petitioners relied on case law to assert that this could not be done. Reference need only be made to some of the decisions cited, such as Chairman, Joint Admission Committee, Khyber Medical College v. Raza Hassan and others 1999 SCMR 965, Ghulam Mustafa v. Mehran University of Engineering and Technology and others 1986 CLC 1056 (SHC; DB) and Ayesha Fida v. Government of N.-W.F.P. And others 2004 CLC 1160 (PHC; DB), where the law is stated clearly and categorically. Furthermore, even if the Corrigendum could at all have been issued, it should first have been placed before all the Vice- Chancellors in a meeting specifically called for that purpose (which would therefore have been the third meeting). At the very least, the letter received from the Vice-Chancellor of PUMHS should have been circulated amongst the others. No such event occurred. The Secretary simply took it upon himself to issue the Corrigendum on the request of one of the stakeholders (PUMHS) without consultation with any of the other institutions that had been represented at the Meetings. We have already concluded that the Government did not have any authority to formulate or impose any policy with regard to admissions, whether under the 1987 Act or otherwise. Indeed, as correctly pointed out by learned counsel for the contesting petitioners and LUMHS, the specific stand taken in the para wise comments by the Health Department was that it only acted as a facilitator.
Therefore, the Corrigendum, as (at best) an executive act, must fail both procedurally and substantively. But that, as will shortly be seen, is not quite the end of the matter. However, before turning to consider this aspect, some other points must first be addressed.
36. Learned counsel for LUMHS emphasized that the university that he represented was autonomous and independent and was regulated and governed by its own statute, the LUMHS Ordinance. Thus, he contended, no admissions policy could be forced on LUMHS without its consent and agreement, and that is what, in substance, the Corrigendum amounted to. Learned counsel for the contesting petitioners endorsed this position and submitted that it applied equally to all the universities, which were likewise autonomous and independent. Learned counsel for PUMHS on the other hand sought to argue that the PUMHS Act, and the exercise of powers by the authorities thereby created, remained subject to the overall control of the Government, and its ability and power to frame policy at what might be called the highest levels. With respect, we must disagree.
In our view, the stand taken by learned counsel for LUMHS and the contesting petitioners is correct.
The whole point of establishing a university is to give it autonomy and independence. The point is made expressly in section '3(5) of the SMBBMU Act, which opens with a nonobstante clause and states that "the University shall have academic, financial and administrative autonomy". In our view, this only makes explicit what is necessarily implicit in any statute creating an institution of higher learning. Academic freedom, and all that that implies, is and must be a cherished goal to be sought and achieved by and in any free society. It is in many (though not all) respects an end in itself. No such state of affairs can exist if the institution is subject to outside interference or control, including governmental. Of course, the relevant legislation may provide otherwise. But it must do so in the clearest possible terms. We find nothing in the three relevant statutes that would lead to such a conclusion. The Secretary could not therefore impose the Government's will (or that of any other institution) on the universities by means of the Corrigendum or any other executive act. Each of three universities, LUMHS, PUMHS and SMBBMU is independent and autonomous. It is governed and regulated by its own statute. This is of course, subject to the obvious (and unexceptionable) rider that to the extent that the matter falls within its jurisdiction, the universities must conform to the decisions of PMDC. But that is merely because PMDC acts as a regulator. There must necessarily be an interface between medicine (and health and other allied sciences) as academic disciplines on the one hand, and the practice of medicine as a profession on the other. That interface is provided by PMDC. Its role is not intended to (nor does it) impinge on the autonomy and independence of the universities as academic institutions of higher learning.
37. Since the subject of PMDC has come up, it will be convenient to deal here with the submissions made in relation to this body. As noted above, learned counsel for LUMHS sought to argue that the PMDC Regulations (and in particular Regulation 3) was the controlling provision, and learned A.A.G.
Submitted that that regulation in fact supported the Government's case. In our view, references to PMDC and its Regulations are misconceived. PMDC is a statutory body operating within the framework of its own statute, the PMDC Ordinance. Obviously, its jurisdiction and remit are defined and circumscribed by what is therein contained. It is essentially concerned with the registration of medical practitioners (and dentists), i.e., with determining and regulating the persons qualified to practice medicine as a profession. For this purpose, it is certainly empowered (per, inter alia, section 33(2)(a) to (c to frame regulations that prescribe conditions for admissions to courses of medical training, i.e., to lay down the criteria to be adhered to while determining the eligibility of candidates who are to enroll in the MBBS program. Regulation 3 is directed towards this end. This regulation is essentially an attempt to ensure that all candidates for the MBBS program in a province (at "public colleges") are tested in the same manner. The benefits of this approach are at once obvious, not least of which are uniformity and transparency. There is no dispute that this has happened for the 2011-2012 session. However, this is not the issue before us. We are concerned with the distribution of seats amongst the various districts of Sindh, and in particular, with the question as to who is entitled to be enrolled at PUMHS/PMC. This issue is not the subject-matter of Regulation 3. The PMDC Regulations therefore are not relevant for present purposes.
38. Finally, we may also consider the submission by learned counsel for PUMHS that the refusal by LUMHS to recognize the combined merit-cum-choice list is a violation of the decision of this Court dated 6-2-2009 (at the Sukkur Bench) in C.P.D-749 and 887, both of 2007. It will be noted that that decision 'was announced when the PUMHS Act had not yet come into force (in fact, even the relevant Bill had not yet been passed). The Court appears to have given recognition to the total seats allocated for each "tagged district", i,e., its seats in the medical institution to which it was "tagged" along with its seats in PMC. For example, 47 seats were shown for Hyderabad district. In its prospectus for the 2011-2012 session, LUMHS has shown only 37 seats and learned counsel for PUMHS objected that the orders of the Court had been violated. But this is not so at all. LUMHS quite correctly gave recognition to the fact that the PMC was no longer an affiliated college, but part of PUMHS. It will be noted that the total number of seats remained exactly the same as before: 37 at LUMHS and 10 at PUMHS. The same was true of all the other districts. This objection is therefore entirely without force.
39. If the foregoing had been all that there was to it, the contesting petitioners would have been entitled to the declarations that they are seeking. However, as we noted at the end of para 35, that is not quite the end of the matter. For there is a specific statutory provision of the PUMHS Act that must also be considered, one which in our view has a fundamental bearing on the controversy at hand. This is section 6, and provides as follows (emphasis supplied):-- "6. University open to all.---(1) The University shall be open to all persons of either sex of whatever religion, race, creed, class, colour who are academically qualified for admission to the courses of study offered by the University, and no such person, shall be denied the privileges on the grounds only of religion, race, caste, creed, class or colour. Foreigners shall be eligible for admission if they are qualified for admission.
(2) The policy of admission to the constituent colleges and constituent institution in force immediately before the commencement of this Act shall continue until modified by the Syndicate."
' The LUMHS Ordinance and the SMBBMU Act (in their sections 8 and 5 respectively) contain provisions substantially similar to subsection (1) of section 6., However, neither of these statutes has any provision equivalent to subsection (2), which appears to be unique to the PUMHS Act. The question therefore is, why was this provision enacted, and what is its import?
40. The first point to note is that 'subsection (2) applies to the "policy of admission". This term is not, as such, defined and therefore, its true meaning will have to be ascertained. Secondly, the subsection applies to the policy of admission to the "constituent colleges and constituent institution" of the university, as in force "immediately before the. Commencement of this Act". The definition of "constituent college" has already been reproduced in para 20 above. Obviously, a "constituent college" can only come into being when the statute itself comes into force. Therefore, subsection (2) can only be given a sensible meaning, arid at all apply, if: (a) there was some institution to which a "policy of admission" applied, and (b) that institution became a "constituent college" (or "institution") of PUMHS on the commencement of the PUMHS Act. The legislative intent seems to be that some body or institution, which it was intended would become. a "constituent college" of PUMHS on the commencement of the statute, had a "policy of admission" applicable to it, and such policy was to continue till such time as PUMHS' syndicate decided otherwise.
41. A moment's reflection indicates that this body or institution could only be PMC. This medical college was the only institution that was transferred to PUMHS an the commencement of the PUMHS Act by operation of that statute itself. It is also to be noted that PMC had to become (at the very least as a matter of law) a "constituent college" of PUMHS. If PMC did not become a "constituent college", then there was nothing at all to which subsection (2) could apply. This is a fundamental and crucial point. Subsection (1) of section 6 categorically states that PUMHS must ("shall") be open, inter alia, to all persons of either sex. However, subsection (2) provides otherwise.
In other words, by allowing the "policy of admission" of a body or institution that was to become a "constituent college" to continue as in force immediately before the commencement of the statute, subsection (2) allowed a girls-only policy to be retained. But, and this is the crucial point, this policy could only apply if the body or institution became a "constituent college". If it did not, and (as it were) merged' and disappeared into the newly created university, then the girls-only admissions policy would be illegal, since it would violate subsection (1). We have already concluded that on their true and correct interpretation, sections 3 and 4 provide that PMC became a constituent college of PUMHS. Section 6(2) provides another reason why, at least as a matter of law, this must be so. It is only if PMC is a "constituent college" of PUMHS that the female-only admissions policy can be retained. Without the continuance of PMC, the all girls character would violate the mandatory provisions of subsection (1) and be unlawful.
42. It is in the foregoing sense that Article 25(3) of the Constitution can be regarded as applying to the PUMHS Act: it permits, by virtue of section 6(2), positive discrimination in favor of women by allowing the girls-only character of PMC to remain alive. During the course of their submissions, we invited learned counsel to assist us on the proper interpretation of section 6(2). Learned counsel for PUMHS did not, essentially, advance any arguments on this provision. Learned counsel for the contesting petitioners submitted that it applied to the future, i.e., to some constituent college or institution to be established subsequently by PUMHS. In our view, such an interpretation cannot be correct. Section 6(2) is intended to apply to the state of affairs that existed when the PUMHS Act came into force. It is only then that a "policy of admission" could be regarded as being "continued" and it is only in relation to such a policy that the syndicate can exercise its powers of modification.
The next question that requires consideration, and this takes us to the very heart of the controversy, is the true scope of the "policy of admission" that is to continue in terms of section 6(2). It is to be noted that the provision is cast in mandatory terms: the "policy of admission" must ("shall") continue until modified by the syndicate. This is an express mandate of law and PUMHS has no option in this regard. In our view, this phrase can have one of two possible meanings. If construed narrowly, it can be regarded only as applying to the extent of permitting PUMHS/PMC to continue being an all- girls' institution. However, the other possible meaning is that whatever was the admissions policy that applied to PMC as on the commencement of the PUMHS Act would continue to Apply to it even after it became a "constituent college", until and unless modified by the syndicate. That admissions policy of course, was none G other than the Old Policy. Thus, on this possible interpretation, subsection (2) casts a mandatory statutory duty on PUMHS to grant admissions only on the basis of the combined merit-cum-choice lists.
43.
44. After having carefully considered the matter, we conclude that on its true interpretation, the phrase "policy of admission" has a broad rather than a narrow meaning. In other words, its meaning is not limited only to a requirement that the all-girls' character of PMC be retained. Rather, it requires (until and unless the syndicate modifies it) that the Old Policy continue to remain the admissions policy. Learned counsel for the contesting petitioners submitted that if the Old Policy (i.e., the combined merit-cumchoice lists) were applied, then girls who only applied to LUMHS and not to PUMHS would become eligible for admission, to the exclusion of the girls (including the contesting petitioners) who had only applied to the latter university. Indeed, it could even be conceivable that, depending on how the merit lists work out, that for a particular district "tagged" to LUMHS, all the seats in PUMHS/PMC would be filled in by girls who had only applied at the former and not the latter institution. It is also the case that LUMHS, has, as noted above, refused to apply the Old Policy (i.e., recognize the combined lists) and we have already concluded that it was of the essence of this policy that all the seats in Sindh allocated to a particular district were to be dealt with together. Giving "policy of admission" a broad meaning would result in the Old Policy applying in a one-sided manner. i.e., only to PUMHS/PMC and not to the other corresponding institution. (This of course, is the grievance of the concurring petitioners.) These are powerful arguments and we appreciate their force. However, in the end, we must consider. Interpret and apply the statutory provisions by ascertaining "the intent of them that made it", i.e., the legislature. If the intent had been to limit the scope of section 6(2) only to retaining the all-girls' character of PMC, this could easily have been stated in appropriate words of a limited nature and effect. It could even have been done by placing the contents of subsection (2) as a proviso to subsection (1). But subsection
(2) is a standalone provision. By this, we mean that it would have a sensible meaning and application even if there had been no subsection (1). Furthermore, the subsection uses broad language ("policy of admission") and relates it to what was happening just prior to the PUMHS Act ("in force immediately before the commencement of this Act"). The situation just before the PUMHS Act was not merely that only girls could be admitted to PMC; they were being admitted on a specific basis and in a particular manner. All of this must be regarded as part and parcel of the "policy of admission", and hence must continue to have effect pursuant to subsection (2).
45. What however of LUMHS' refusal to recognize and apply the combined meritcum-choice list?
Learned counsel for PUMHS complained that LUMHS had attempted to erect an "iron wall" between the institutions, which was not warranted. Now, this "iron wall" (if it be such) is a legal construct, being the legislature's creation. Equally, the fact that the divide is porous in one but not the other direction by reason of section 6(2) is also an exercise of the legislative will. When the PUMHS Bill came to be passed, the LUMHS Ordinance and the SMBBMU Act were already in force. The Provincial Assembly could easily have modified these statutes, but chose not to. It could easily have used words of limited scope in subsection (2) but again chose not to. In our view, the continued application by mandate of law of the Old Policy only to PUMHS/PMC is an intentional act and policy decision of the legislature. We must therefore give effect to the same.
46. It must also be kept in mind that PUMHS is not entirely helpless in the present context.
Subsection (2) expressly empowers its syndicate to modify the subsisting policy of admission. Thus, the syndicate can easily decide that the combined merit-cum-choice list (i.e., the Old Policy) will not apply in respect of those districts "tagged" to a university which does not make reciprocal arrangements to give effect to such a list. However, we would not wish to say anything in detail on this point, since that may encroach on the jurisdiction of the syndicate and have the effect of channelizing it in a particular direction. But the point is that the syndicate is fully empowered to act in any appropriate manner.
47. Insofar as the petitioners are concerned, we appreciate their dilemma and the hardship to which they may be exposed. However, in the end we have to interpret the law as we understand it to be and then apply it. It is also to be noted that no question of the petitioners having acquired any rights, vested or otherwise, can arise in relation to section 6(2). This is so because this provision was in the PUMHS Act from inception. Thus, the issuance of the prospectus for the 2011-2012 session, and all acts done pursuant thereto in furtherance of the admissions process, are and must be understood only in the context of, and subject to, section 6(2).
48. To a certain extent, the present situation has arisen because, as noted earlier, this is the first session in which PUMHS has come into existence and PMC is no longer a mere affiliated college. It may be that one-off, special arrangements may be made for the petitioners from the next session onwards in order to accommodate them. However, there may be a hitch there as well. The number of seats in any medical institution is controlled and settled by PMDC, and cannot be increased without its permission. Since PMDC is not party to these proceedings, we do not wish to issue any directions as such. However, if a suitable representation is made to PMDC to consider temporarily increasing, on a one-off basis, the number of seats at PUMHS/PMC to accommodate the petitioners (and other such affected applicants) from the next session onwards, we are certain that it will be dealt with appropriately under the PMDC Ordinance. In any case, if such a representation is made, then a proper opportunity of hearing must be given by PMDC, which must consider the representation on its own merits, and if it is being turned down, then a proper reasoned order must be issued.
49. In view of what has been stated above, these petitions are disposed off in the following terms:--
(a) The Corrigendum as such, being (at most) an executive act, cannot be enforced or implemented and therefore must be regarded as being of no legal effect.
(b) However, by reason of section 6(2) of the PUMHS Act, the Old Policy must continue at PUMHS/PMC until and' unless modified by the university's syndicate, which is fully empowered to take appropriate action in the matter.
(c) Since neither the LUMHS Ordinance nor the SMBBMU Act . Contain any provision equivalent to section 6(2), these universities are not bound to recognize or apply the Old Policy unless they themselves choose to do so in accordance with their respective statutes.
(d) Accordingly, for the 2011-2012 session the admissions to PUMHS/PMC must be finalized on the basis of the combined meritcum-choice lists as before, but LUMHS and SMBBMU (unless they have themselves agreed to act on such basis) may finalize their admissions on the basis of their own, separate lists.