UMAR ATA,BANDIAL C.J.---This judgment shall also dispose of Writ Petitions Nos. 7441 and 17121 of 2013 involving common questions of law and fact.
2. Instant writ petition is filed by Pakistan Medical Association, Lahore ("PMA") for relief against the respondent No,1, Secretary, Cabinet Division, Government of Pakistan, Islamabad and respondent No,3, Chairman, Shaikh Khalifa Bin Zayed Al-Nahyan Hospital, Lahore in the following terms: "Under the above stated circumstances of the case, it is therefore, most respectfully prayed that the present petition may kindly be accepted. Writ of mandamus may kindly be issued/granted against the respondent Nos. 1 and 3, declaring that the fee structure of respondent No,2 is discriminatory, without lawful authority and is of no legal effect, moreover, directing the respondents Nos.1 and 3 to develop their fee structure commensurate and at par/rate with the public sector Medical and Dental Colleges in the province.
Any other relief which this honourable Court deems fit and appropriate may also be awarded to the petitioner."
3. The same prayer is also made in two other petitions filed by students of Shaikh Khalifa Bin Zayed Al-Nahyan Medical and Dental College, Lahore ("College"). The College is a component of the Shaikh Zayed Postgraduate Medical Institute ("Institute") and was inaugurated by the Prime Minister of Pakistan on 23-5-2009.
4. After the promulgation of the Constitution (Eighteenth Amendment) Act, 2010 on 24-4-2010, the Institute including all its component entities, assets, liabilities and staff has devolved to the Province of Punjab vide notification of transfer issued by the Cabinet Division of the Federal Government on 14-2-2012. The Government of Punjab ("Provincial Government") is impleaded as respondent No,4 in this petition.
Petitioner's Challenge:
5. The present petition challenges the fee collected by the College from its students during the financial years 2009-2010, 2010-2011 and 2011-2012. Pursuant to transfer of the Institute on 14-2-2012, the Provincial Government has during hearing in this matter intimated its decision dated 28-10- 2013 to grant admission to the College on the basis of a province wide open merit list. The tuition fee structure adopted at other government medical colleges in the Province shall be applied to the merit students at the College. It is an admitted position that during the aforesaid three financial years tuition fee has been charged from students of the College at the rate of Rs,4,00,000/- per annum apart from Rs,75,000/- collected initially as admission fee and other charges. The petitioner's challenge to the said fee structure is firstly based on the premise that as a component of the Institute, the College is a public sector entity; it must charge its student fee in accordance with the structure applicable to government medical colleges. Reliance is placed on the petitioner PMA's letter dated 5-5-2010 to the Prime Minister of Pakistan wherein the said plea is urged. It is claimed that the Federal Government has not responded the petitioner's letter.
6. The second premise of the petition rests on the assertion that the College can at most charge fees authorized by the Federal Government according to the financial feasibility of the College prepared in the year 2001-2002. This feasibility projects an annual tuition fee of Rs,2,00,000/- per student plus Rs,10,000/- as annual admission fee. Documents filed with the petition evidence approval of the said fee structure. The written statement by the Institute explains the point by attaching a Summary prepared by the Cabinet Division for the Chief Executive about the establishment of the College. It contains a note by the Federal Secretary, Finance dated 30-3-2002, the Minutes of the 19th meeting of the Board of Governors of the College ("Board") dated 27-12-2001 and a presentation for the Chief Executive prepared by Chairman of the Institute dated 26-1-2002.
These documents, inter-alia, propose the fee structure mentioned above. On the basis of the said proposal the Chief Executive Secretariat, Islamabad by order dated 17-4-2002 approved establishment of the College by the name of "Shaikh Khalifa Bin Zayed Al-Nahyan Medical and Dental College, Lahore" but subject to the condition that the project would be self-financing without support of additional funds from the Federal Government.
7. It is argued that contrary to the fee structure approved by the Federal Government in 2002 for setting up the College, when admissions to the College opened for the first time in November-2009, the impugned fee structure of Rs,4,00,000/- as annual tuition fee plus Rs,75,000/- as admission fee and other charges were unlawfully billed to and collected from students of the College.
Considering the said allegation by the petitioners to have weight, a learned Single Judge of the Court passed an interim order dated 27-2-2012 restraining the College from charging fee in excess of the rate approved by the Board on 27-12-2001 and endorsed by the Federal Government on 17- 4-2002.
Brief history of the College:
8. Before considering the arguments in rebuttal by learned counsel for the College, it may be useful to recount the brief history of the Institute of which the College is a component. The Institute was conceived in the year 1973 as a benefaction by Shaikh Zayed Bin Sultan Al Nahyan that was placed in a public trust bearing the name "Zulfiqar Ali Bhutto Trust". Under MLO No,22 of 1977 dated 15-10- 1977 the Chief Martial Law Administrator suspended the Board of Trustees and took over charge of the said Trust and its assets.
The Resolution:
9. Some nine years later a notification dated 29-5-1986 was issued by Ministry of Health, Special Education and Social Welfare of the Federal Government to organize the affairs of the Trust by establishing the Sh. Zayed Postgraduate Medical Institute and settling matters regarding its management. The notification is expressed as a Resolution by the Federal Government ("Resolution") on the above mentioned subject. The recitals made in the Resolution declare its object is to "give autonomous character" to the Institute and to facilitate "its un-hindered and efficient functioning". At the time of issuance of the Resolution, the Institute included two components Shaikh Zayed Hospital, Lahore and the National Clinical Research Complex of the Pakistan Medical Research Council. In the years that have followed, the Institute has added other component entities to its strength. These include the Shaikha Fatima Institute of Nursing and Health Sciences, Federal Postgraduate Medical Institute and recently the College in the year 2009. It is common ground that the Resolution still remains the legally relevant instrument for governing the affairs of the Institute and its aforementioned component entities.
10. According to the Resolution, the management of the Institute is entrusted to a Board of Governors ("the Board"), the composition of which is stated in paragraph 6 of the instrument. The Institute is autonomous and functions under the directions of its Board in all matters including finance and budgeting. Under para 6 of the Resolution, the 13 nominated members of the Board are all Federal Government functionaries with the exception of the Secretary Health, Government of Punjab, the Mayor of Lahore Municipal Corporation and the President of the College of Physicians and Surgeons of Pakistan. Under the Resolution, the Chairman of the Institute is an appointee of the Federal Government. In paragraph 7 the Resolution creates an Executive Committee which includes the Chairman of the Board and three of its members nominated by the Board to be the principal administrative body of the Institute working under the directions of the Board. With regard to financial and budgetary matters, the Executive Committee draws the annual budget for the approval of the Board. Thereafter, under paragraph 13 of the Resolution, the annual budget of the Institute must be submitted for approval to the Federal Government showing, inter alia, the financial support required from the Federal Government during the financial year.
Respondentsrebuttal:
11. The points to be answered by the learned counsel for the respondent Institute are firstly, that the impugned fee structure implemented by the College does not bear the approval of the competent authority, namely, the Board and the Federal Government. Secondly, even otherwise the Board and the Federal Government cannot authorize and charge student fees in excess of rates applied in other public sector medical Colleges. Otherwise the respondents are succumbing to the profit motive which rules the private sector medical colleges.
12. Learned counsel for the College has rebutted the said contentions with reference to the record of the Board and the Federal Government. In addition, he has drawn attention to a recent decisive event, namely, the devolution of the Institute from the Federal Government to the Provincial Government pursuant to the Constitution (Eighteenth Amendment) Act, 2010 which came into effect on 24-4-2010. Since then the affairs of the Institute remained in flux until notification dated 14-2-2012 by the Federal Government transferring the Institute, its component entities, their assets, liabilities and staff, from the superintendence of the Federal Government to that by the Provincial Government. As a result of the said notification, the Board constituted by the Resolution became non-functional. The notification 14-2-2012 by the Cabinet Division declares to the following effect: "Government of Pakistan Cabinet Secretariat Cabinet Division Islamabad, the 14th February, 2012.
No,4-3/2012-Min.I OFFICE MEMORANDUM SUBJECT: TRANSFER OF SHAIKH ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE TO GOVERNMENT OF THE PUNJAB.
The undersigned is directed to state that the Prime Minister has been pleased to order transfer of administrative control of Shaikh Zayed Postgraduate Medical Institute, Lahore along with its components, assets, liabilities and staff etc. From Government of Pakistan (Cabinet Division) to Government of the Punjab with immediate effect.
(Omar Hamid Khan)
Joint Secretary to the Cabinet The Chief Secretary, Government of the Punjab, Lahore.
Copy forwarded to the:- 1) Secretary General to the President.
2) Principal Secretary to the Prime Minister 3) Chief Secretaries of the Provincial Governments.
4) Secretaries Senate/National Assembly Secretariats.
5) Secretaries/Additional Secretaries In charge of Ministries/Divisions, Islamabad.
6) Chairman, Shaikh Zayed Postgraduate Medical Institute, Lahore.
(Omar Hamid Khan)
Joint Secretary to the Cabinet"
Transfer of the administrative control of the Institute has empowered the Government of Punjab to superintend decisions of the Board about the Institute. This includes, as in the present case, matters regarding budget and finance of the Institute and its component entities. The matter in issue, namely, fee structure of the College that was in force prior to 14-24012, in the financial years 2009-2010, 2010-2011, 2011-2012 falls partly in a period when the administrative responsibility for the Institute was in transition. After the Eighteenth Constitutional Amendment 2010 and during the transition, Federal Government involvement in the affairs of the Institute declined understandably.
This led to complications in the formation and implementation of policy decisions about the Institute.
13. The learned counsel for the Institute and the College has pointed out that this Court's interim order dated 27-2-2012 limiting the annual tuition fee of students to Rs,200,000/- under the fee structure originally approved by the Federal Government on 17-4-2002 has led to a shortfall in revenue for the College. This is because students have demanded adjustment of higher fee paid in the past period against their present judicially directed dues. According to the learned Addl.A.G.
The Provincial Government is willing to assume financial responsibility for the Institute with effect from the transfer notification dated 14-2-2012. Therefore, the matter in issue boils down to whether the College possesses lawful authorization from its competent authority for its fee structure enforced in the academic years 2009-2010, 2010-2011 and 2011-2012.
14. Consequent upon devolution of the College vide order of the Chief Minister dated 25-2-2012, the Provincial Government has set up a Committee for management of Shaikh Zayed Hospital, Lahore.
This Committee comprises officers of the Provincial Government, Chairman of the Institute, a member of the College faculty, a renowned social worker who is presently Chairman of the Punjab Health Care Commission and a Member of Parliament from Punjab, who is its Chairman. The principal object of the Committee is to ensure the smooth functioning of the Institute including the Shaikh Zayed Hospital and component entities. In the light of the proceedings in the Hon'ble Supreme Court in Suo Motu Case No,1 of 2012, the Provincial Government acknowledges the autonomous status of the Institute. By order dated 16-3-2012 passed in the said proceedings a direction has been issued to both the Federal and Provincial Governments in the following terms: "Copies of both the aforesaid reports be also sent to the Head of the Transition Committee set up by the Government of Punjab as also to the Cabinet Secretary, Government of Pakistan with reference to the proposals made therein to ensure the autonomy of Sheikh Zayad Hospital. In the meanwhile and till the final decision is taken in this regard, the current autonomous status of Sheikh Zayed Hospital shall be maintained in letter and spirit. "
It is explained that on account of pending litigation about the Institute no further steps by the Provincial Government have been itaken for organizing and streamlining the management of the Institute and its component entities. However, the budgets of Institute pertaining to the period falling after the notification of transfer of the Institute dated 14-2-2012, namely, 2011-2012 and 2012- 2013 have been placed before the Transition Committee for approval. The learned counsel for the Institute claims that as the budget estimates of the Institute for the financial years 2009-2010 and 2010-2011 have been approved by the Board, these statements are also being placed before Transition Committee for ratification and confirmation of the expenditures.
Essential parameters and relevant record:
15. Admittedly, the College has during the financial years 2009-2010 and 2010-2011 charged and collected from its students the disputed tuition fee and other charges. It is, inter-alia, the said receipts that are under scrutiny and review by the Transition Committee. The legal propriety of the said receipts would depend on whether firstly, the Board has approved the corresponding budgetary estimates for the financial years 2009-2010 and 2010-2011 in accordance with the terms of the Resolution dated 29-5-1986. The second criterion under the Resolution is whether the Federal Government has endorsed any Board decision envisaging the impugned annual tuition fee of Rs,4,00,000/- plus Rs,75,000/- as admission fee and other charges.
16. To substantiate the disputed fees and charges collected by the College from its students, learned counsel for the College has referred to the Minutes of the 33rd meeting of the Board held on 16-5-2009. Item No,2 of the Minutes deals with the establishment of the College and related matters. The Chairman of the Organizing Committee, who is the current Chairman of the Institute made a presentation to the Board about the proposed College. The presentation included a feasibility report regarding funding sources of the College. The following minute is recorded in relation to the feasibility report:-- "I. ...
2. Prof. Zafar Iqbal, Chairman of the Organization Committee for the Commissioning of College submitted detailed briefing to the Board about the feasibility report of the college (annexed in the working paper). It was informed that infrastructure and facilities are available to commission the college. The college is being housed in the building of SFINHS. This will be run on self finance basis.
The report was prepared after extensive discussion and deliberation, with existing facility of FPGMI/SFINHS and consultant staff of the SZH.
3. .......
4. The Board agreed with the strong recommendations of the faculty unanimously. After detailed deliberations, the Board approved the feasibility report but expressed its reservations on the issue of creation of new posts. The Board directed that the proposal for creation of new posts for the college/ any other components of the SZPGMI, if required, should be sent to the Cabinet Division immediately. "(emphasis supplied)
The feasibility report approved by the Board is also available on record. The revenue estimates given in the report are based on annual tuition fee for local residents at Rs,3,50,000/- with an estimated number of 75 students yielding a total amount of Rs,26.25 million as revenue. The projected admission fee is Rs,15,000/- per student. Accordingly for present purposes, the Board approved a figure of Rs,3,50,000/- as annual tuition fee and Rs,15,000/- as admission fee and other charges At item No,12 of the agenda of the said meeting of the Board, approval was given for, inter- alia, the Constitution of the Academic Council of the College. Pursuant to the said decision of the Board, the Chairman of the Institute wrote to the Cabinet Division of the Federal Government for notification of the freshly constituted Academic Council of the College. This was done by the Cabinet Division on 3-8-2009 in the following terms: "Government of Pakistan Cabinet Secretariat Cabinet Division Islamabad, the 3rd August, 2009 File No,1/34/2004-SZH The Chairman/Dean Shaikh Zayed Postgraduate Medical Institute, Lahore.
Subject:- RE-CONSTITUTION OF ACADEMIC COUNCIL/ HOSPITAL MANAGEMENT COMMITTEE AND SUB-COMMITTEES.
Reference to your letter No, BOG/388 dated 12-6-2009 on the above cited subject.
2. Competent authority is pleased to delegate powers to proposed re-constituted committees for the Academic council of the FPGMI, Academic Council of Shaikh Khalifa Bin Zayed AlNahyan Medical and Dental College and Hospital Management Committee.
(Saleem Shahzad Malik) Section Officer (SZH)."
Thereafter the Academic Council of the College commenced to deliberate and decide matters relating to the affairs of the College from time to time Learned counsel for the College has referred to the minutes of the meeting of the Academic Council of the College held on 5-9-2009 which was presided by the Chairman of the Institute and attended by its 18 members belonging to the College faculty. In this meeting, the Academic Council approved an enhanced fee structure of Rs,4,00,000/- as annual tuition fee and Rs,75,000/- as annual admission fee per student. The said figures accordingly revised the rates approved by Board in its 33rd meeting held on 16-5-2009.
17. On Court's query, learned counsel for the College has explained that the figures submitted before the Board in 33rd meeting were based on financial support of Rs,300.0 million provided by the D Federal Government. The said subvention was later announced by the Prime Minister of Pakistan at the opening ceremony of the College on 23-5-2009. However, the PC-I form claiming such financial support was rejected by the CDWP of the Federal Government on 19-11-2009. Hence, an enhanced fee structure became a necessity for the College.
18. Notwithstanding the refusal by the Federal Government to extend financial support to the College, renewed effort was made by the College under a revised PC-I form submitted in July-2011 to secure the promised Rs,300.0 million funding from the Federal Government. Letter dated 13-2- 2012 convey the comments of the Planning and Development Division of the Federal Government given on the revised PC-I. These comments refer the self-finance status of the College as being the fundamental basis of its establishment. Paragraphs iii, iv and vii of the said comments recall the clear understanding noted in the Chief Executive's order dated 17-4-2002 that the College shall be run on self-finance basis. The repeated effort by the College to obtain financial E support of the Federal Government was disapproved and. Rejected.
19. The learned counsel for the College next referred to the Minutes of 40th meeting of the Board held on 13-11-2010. At item No,2 the Board delegated certain financial powers to the Principal of the College and its financial management committee after observing that the College was run on self- finance basis and incurred multi-faceted costs ranging from payment of salaries, provision and maintenance of infrastructure to the establishment of class rooms and laboratories, fully equipped with the state-of-the-art facilities. Therefore, a financial management committee comprising four members was constituted to judiciously and transparently spend College money. An Item No,3 in the said Minutes, the Board approved a construction project costing Rs,20.5 million to be funded with self-generated revenues of the College. The minutes also recorded that the abortive PC-I for grant of Rs,300.0 million to the College was based on the Prime Minister's assurance given at the time of inauguration of the College on 23-5-2009. The decision of the Board about the source for financing the fresh construction is reproduced below: "In view of urgent demand of the College, the BOG approved the proposed plan of construction of additional storey of existing building of the Shaikha Fatima Institute of Nursing and Health Sciences for SKZMDC and granted permission for its execution through tender/ open bidding and by observing other codal formalities. All the expenditure on this account should be met from the receipts of the medical college. "(Emphasis added)
20. On the basis of the minutes of the 40th Board meeting, learned counsel for the College contends that to authorize the construction of project valuing Rs,20.5 million the Board factored the resources of the College generated on self-finance basis. These include revenue generated by charging of fee. As such it is claimed that the Board impliedly approved the quantum of impugned fee charged by the College from each of its students. The record shows that the decisions and minutes of the Board were sent to the Cabinet Division for approval. In the present case, the minutes of the 33rd, 35th and 40th meetings of the Board were approved by Cabinet Division vide letters dated 23-5-2009, 28-8-2009 and 26-11-2010 respectively. Therefore, the decisions taken in these Board meetings have binding and conclusive effect.
21. With reference to the probity and transparency of the financial management of the Institute, its learned counsel submit that except for the year 2006-2007 the financial accounts of the Institute and all its component: entities have been duly audited by Auditor General for Pakistan. However, letter dated 8-12-2011 by Directorate General (Audit), Federal Government, sub-office Lahore intimates the conduct of special audit of accounts of the Institute for the years 2005-2006 to 2009- 2010 at the sub-office at Lahore. Thus even the excepted year was covered. He has exemplified his claim by reference to letters from the said Directorate.
Objection by the Petitioner:
22. During the course of the hearing an objection was raised by the learned counsel for the petitioner that several documents were allowed to be produced on record by the Institute under various CMs. As a result, the learned counsel for the petitioner had been put to a disadvantage in presenting his case. The objection has been answered by highlighting the Court's queries during the hearing regarding the transparency of the Institute's financial affairs and Federal Government endorsement of Board decisions about financial and administrative matters: in particular practical demonstration of the College being approved and established as a self-finance Institute. These issues are not raised in the writ petition which pleads for a fee structure at the College that matches the level prevalent in other government medical colleges. According to learned counsel for the Institute, to the extent of the case pleaded in the petition, the relevant documents were placed along with the parawise comments and reply filed by Institute and the College. These show that the College was approved by the Chief Executive in the year 2002 to be established on self- finance basis without any financial assistance being given by the Federal Government. He submits that the said documents showing that the College is a self-financed institution are sufficient to answer the petitioner's plea in the petition for the College to have the fee structure of government sector medical colleges funded by the Federation.
23. It is correct that the Court attached weight to the petitioner's objection to the College fee structure on a derivative plea that admittedly the Institute is a government aided organization and therefore it must conform the norms of public sector institutions including fee structure for other government owned medical colleges. The argument that irrespective of being a self-finance Institute, the College is functioning in collaboration with a public funded hospital which falls under the superintendence of the Cabinet Division of the Federal Government has significance. For that reason, the rule of transparency applies squarely to the affairs of the College.
24. Hearing the matter in its constitutional jurisdiction, the Court approved the said plea and applied the rule of transparency to the affairs of the College. Accordingly, a number of documents were produced on record through applications made by College from time to time to elaborate their stand. After examining the said documents, this Court has no doubt that the financial records of the Institute, which includes the College, are maintained diligently and fairly. These have been audited by office of the Auditor General for Pakistan without drawing any noticeable adverse comment.
Self-finance status of the College:
25. It is equally clear that on 23-5-2009 at the inauguration ceremony of the College, the Prime Minister of Pakistan announced a grant of Rs,300.0 million for the College. This is acknowledged by the Planning and Development Division of the Planning Commission in its report dated 7-2-2012 on the request by the Institute conveyed in a revised PC-1 of July-2011 for grant of Rs,300.0 million. The said report is attached to letter dated 13-2-2012 addressed by the Cabinet Division to the Institute.
It is clear from the said report that the Institute and its components are not owned by the Federal Government. The College is to be run commercially as a "public private partnership."
Consideration of the materials:
26. As suggested by the name of the Institute, its sponsor and benefactor is Late Sheikh Zayed Bin Sultan Al Nahyan, Emir of United Arab Emirates. He made a gift for the said public purpose sometime in 1973. The donation given by the foreign Head of State was bequeathed to the "Zulfiqar Ali Bhutto Trust" which was managed by a Board of Trustees appointed at the time. However, by MLO No,22 dated 15-10-1977 the Board of Trustees of "Zulfiqar Ali Bhutto Trust" and the Board of Directors of every institution connected therewith was suspended forthwith. All powers and functions of the said Board of Trustees and Board of Directors were vested in the Chief Martial Law Administrator or his delegate.
27. Thereafter, by a Resolution notified in the Gazette of Pakistan dated 29-5-1986, the Ministry of Health, Special Education and Social Welfare of. The Government of Pakistan organized a new administrative and management structure for establishing Sheikh Zayed Postgraduate Medical Institute and for giving it "autonomous character to facilitate its un-hindered and efficient functioning". The objectives of the Institute are stated in paragraph 2 of the Resolution which include the education and training of medical men and women to become leaders in medical research, education and health delivery system; to develop as a centre for dissemination of knowledge of medical sciences and establish liaison with international centres for medical research and education. The management of the Institute is vested by paragraph 4 of the Resolution in its (a) Board (b) Executive Committee and (c) Chairman. The Board is given power to control, direct and superintend the affairs of the Institute in policy making, administrative and financial matters. Under paragraph 6, the Board comprised of senior functionaries of the Federal Government including Federal Minister for Health, Secretary, Ministry of Health, Auditor General of Pakistan, Secretary Ministry of Finance, Secretary Ministry of Science and Technology, Vice Chancellor, the University of Punjab, Director General (Health), Islamabad, Secretary Health, Government of Punjab, the appointed Chairman of the Institute and a few others.
28. As such the composition of the Board reveals superintendence of the affairs of the Institute to be done by highly placed governmental functionaries. The day to day functioning of administration of the Institute is vested in the Executive Committee that comprises the Chairman of the Institute and three Board members nominated by the Board. The authority of the Executive Committee includes preparation and submission of annual development and non-development budget of the Institute for approval of the Board. Paragraph 12 of the Resolution visualizes financial support to the Institute by the Federal Government in the shape of grants to augment the Institute's income from other sources such as users charges, consultancy and publications. The maintenance and operation of the funds of the Institute Are made subject to the direction of the Federal Government.
29. Although the Resolution is issued by Ministry of Health, however, it appears that the reason for placing the Institute wider the charge of the Cabinet Division is to reinforce its autonomous character and its special status as a centre of excellence. As a result of such placement, the Institute was given access to and representation by the senior most Ministry in the Federal Government. Conferment of the said privilege ensured priority and attention by the Federal Government for rendering its support and facilitation to the Institute.
30. The administrative structure established by the Resolution continued until the 18th Amendment to the Constitution. However, the said constitutional Amendment has altered administrative government for the Institute. The salient feature of the 18th Amendment is the abolition of the Concurrent Legislative List in the Constitution of Pakistan. The subject of 'centres of excellence and standards of educationoriginally formed part of Item No,38 of the Concurrent Legislative List and the subject of 'medical professionis mentioned in Item No,43 of the said List. After the 18th Amendment, the said subjects have devolved to the Provinces. Pursuant to the Constitution (Eighteenth Amendment) Act, 2010 promulgated on 24-4-2010 the Cabinet Division of the Federal Government issued Office Memorandum dated 14-2-2012 bearing the following subject and contents: "Government of Pakistan Cabinet Secretariat Cabinet Division Islamabad, the 14th February, 2012.
No, 4-3 /2012-MM. I OFFICE MEMORANDUM SUBJECT: TRANSFER OF SHAIKH ZAYED POSTGRADUATE MEDICAL INSTITUTE, LAHORE TO GOVERNMENT OF THE PUNJAB.
The undersigned is directed to state that the Prime Minister has been pleased to order transfer of administrative control of Shaikh Zayed Postgraduate Medical Institute, Lahore along with its components, assets, liabilities and staff etc. From Government of Pakistan (Cabinet Division) to Government of the Punjab with immediate effect. ` (Omar Hamid Khan)
Joint Secretary to the Cabinet The Chief Secretary, Government of the Punjab, Lahore.
Copy forwarded to the:- 1) Secretary General to the President.
2) Principal Secretary to the Prime Minister 3) Chief Secretaries of the Provincial Governments.
4) Secretaries Senate/National Assembly Secretariats.
5) Secretaries/Additional Secretaries Incharge of Ministries/Divisions, Islamabad.
6) Chairman, Shaikh Zayed Postgraduate Medical Institute, Lahore.
(Omar Hamid Khan)
Joint Secretary to the Cabinet"
After the Eighteenth Amendment Act, some uncertainty has characterized the conduct of the affairs of the Institute because of the transition of the Institute to the hands of the Province of Punjab. Disputes and litigation have also cropped up to oppose devolution and to allay apprehensions about the treatment meted by the Provincial Government to the financial and administrative autonomy of the Institute. The Provincial Government is also slow and cautious in assuming responsibility and has not yet constituted a fresh Board of Governors of the Institute. Be that as it may, the Province of Punjab has acknowledged and acted upon the aforementioned Cabinet Division notification dated 14-2-2012 declaring transfer of the Institute, by constituting a Transition Committee of the Institute vide notification dated 25-2-2012 issued by the Chief Minister's Secretariat.
31. Learned Addl: A.G has informed the Court that the Provincial Government respondent No,4 takes responsibility for the administrative and financial affairs of the Institute with effect from 14-2-2012, the date of devolution of the Institute to the Province of Punjab. However, prior to that date, responsibility for such matters rests with the Federal Government. On the other hand, notwithstanding notices in this petition being served on the Federal Government respondents Nos.1 and 2, it has remained aloof in these proceedings and filed no comments in answer to this petition.
It appears that the Federal Government has no interest in the matter.
32. Such disinterest may be on account of the transfer of the Institute and its component entities to the Provincial Government on 14-2-2012. Also because according to Federal Government decisions the College is a self-finance Institution. On the other hand, this petition questions the autonomy of the Institute in order to classify it along with government funded and controlled institutions. On this point, the relevant record of the Federal Government placed on the file by learned counsel for both the petitioner and the College, has been carefully perused. It is clear that the financial and administrative decision making of the Institute and, in the present context the fixing of its fee structure, are matters that must be determined and decided in accordance with the terms of the Resolution.
33. The Resolution fixes the parameters of authority of the different bodies of the Institute that are vested with administrative powers. The highest executive authority under the Resolution is the Board of Governors of the Institute which comprises several senior functionaries of the Federal Government. Its decisions inter alia on financial matters are forwarded to the Cabinet Division to secure endorsement and support of the Federal Government. As already noted, the Federal Government has endorsed all, except one, decisions of the Board. That was about the effort by the Institute in 2009 and again in 2011 to obtain a government grant of Rs,300/- million for the College.
Although the Federal Government rendered support to the Institute, however, it insisted that the College was both proposed and established as a self-finance institution.
34. Indeed the Federal Government has remained aloof in these proceedings concerning Government funding for the College. However, Federal Government's disinterest is no handicap as the relevant record of the Federal Government regarding the. Board's requests for financial support to the College has been provided to the Court. Therefore, the Court has proceeded to judgment without further awaiting the filing of a response by the Federal Government.
35. It is a fact that an interim order of the Court dated 27-2-2012 reduced the student fee structure at the College from Rs,400,000/- per annum to Rs,200,000/-per annum. The interim order should have been implemented prospectively but the Institute complains that students started demanding adjustment of their past fee payments against their judicially fixed current dues.
Student non-cooperation has resulted in a shortfall of funds to meet current expenditures of the College. As a result, the operations of the College get affected. This has happened at a time when the administrative responsibility for the College is in transition for transfer from the Federal Government to the Provincial Government. Neither government has come forward to meet the funding gap of the College.
36. Accordingly, the interest of justice demanded that the challenge by the petitioner be addressed expeditiously. So that if the petitioners are justified, the Institute may apply for financial bailout for the shortfall in revenue of the College from the appropriate governmental source under paragraph 12 of the Resolution. After devolution and pursuant to Federal Government notification dated 14-2- 2012 and the notification of the Chief Minister's Secretariat dated 25-2-2012, such responsibility would lie on the Provincial Government.
The merits of the case:
37. Coming now to the merits of the controversy regarding the quantum of tuition fee chargeable by the College from its medical students. The interim order dated 27-2-2012 is based upon the comments by the Finance Division of the Government of Pakistan dated 30-3-2002 given in the summary for the Chief Executive regarding the establishment of the College. This summary proposed a fee structure for the planned College. The summary envisaged 2,00,000/- per annum as tuition fee plus Rs,10,000/- as admission fee. It is the petitioner's contention that the comments of the Finance Division were approved by the Chief Executive vide letter dated 17-4-2002. That letter dated 17-4-2002 by Chief Executive Secretariat addressed to the Secretary Finance Division reads: "CHIEF EXECUTIVE SECRETRIAT ISLAMABAD Subject: ESTABLISHMENT OF MEDICAL COLLEGE IN THE SHAIKH ZAYED MEDICAL COMPLEX, LAHORE.
10. The competent authority has approved the proposal for establishment of medical college at Shaikh Zayed Medical Complex, Lahore by the Shaikh Zayed Postgraduate Medical Institute,subject to the condition that the project would be self-financing, and no additional funds from the Federal Government would be required.
(Abdul Shafiq) Deputy Secretary Cabinet Division (Mr. .Laved Masud, Secretary), Islamabad.
Through Finance Division (Mr. Muhammad Yunis Khan, Secretary), Islamabad.
C.E Sectt. u.o. No, 894/DS(D-3)/2002 dated 17-4-2002." (Emphasis added)
Although the said approval letter by the Chief Executive endorsed the Board decision taken at its 19th meeting held on 27-12-2001, yet it imposed an important financial condition. The College must be financed by the selfgenerated resources without funding from the Federal Government.
38. The fact of the matter is that the College was not established for a good seven years after the said decision dated 27-12-2001 by the Board or the endorsing order passed by the Chief Executive on 17-4-2002. As already noted above the College was inaugurated on 23-5-2009 by Prime Minister of Pakistan when he promised financial support to the College in the amount of Rs,300.0 million. The PC-1 proposals from the College tabled before the Federal Government for materializing the promised financial support was rejected both in the year 2009 and in 2011. These facts have already be,,en noted above. In the aforementioned circumstances, the College as a 'self-financeinstitution was left with no other option but to meet its financial commitments and obligations from its own revenue generation primarily through collection of tuition fee and other charges. Confronted with inflationary factors and changed financial feasibility of the College, the Board in its 33rd meeting held on 16-5-2009 considered a proposal by the Institute for a revised fee structure of the College. Item No,2 of the agenda at the said Board of Governors meeting dealt with the subject of "Establishment of Shaikh Khalifa bin. Zayed Al-Nahyan Medical and Dental College, Lahore and matters related therewith". About financial provision for the activities of the College, the minutes of the said meeting record as follows: "The Board agreed with the strong recommendations of the faculty unanimously. After detailed deliberations, the Board approved the feasibility report but expressed its reservations on the issue of creation of new posts. The Board directed that the proposal for creation of new posts for the college/ any other components of the SZPGMI, if required, should be sent to the Cabinet Division immediately". (Emphasis added)
39. The financial feasibility approved by Board in its aforesaid meeting has also been placed on record. It contains a projected annual tuition fee for local resident students at the rate of Rs,3,50,000/- for the first three years of education and Rs,4,00,000/- tuition fee for the 4th and 5th years of medical education. A onetime admission fee of Rs,15,000/- is also provided. The revenue generation figures in the financial feasibility estimate that the College would have 75 local resident students plus 10 foreign resident students, 5 employeeschildren and 10 outstanding scholarship students. In the foregoing fee structure foreign students are projected to pay US$ 10,000/- as annual tuition fee, employeeschildren are projected to pay 50%, namely, Rs,1,75,000/- as annual tuition fee and 10 outstanding students are planned to be educated on full College scholarships.
Based on the said fee structure, the annual projection of fee collected from the student body of the College in their 1st and 2nd years of medical education is Rs,35.25 million and Rs,39.65 million from students in their 3rd, 4th and 5th years of medical education. The breakdown of fee collection given in the financial feasibility anticipates that Rs,9.0 million per annum is generated from foreign resident students and employeeschildren; and the projected fee in 3rd year up to 5th year of medical education for local resident students at the rate of Rs,4,00,000/- per annum yields an amount of Rs,4.40 million.
40. The Board decision on the revised College fee structure was taken at its 33rd meeting held on 16-5-2009. This decision was endorsed by the Federal Government on 23-5-2009 thereby approving the aforesaid increased fee structure for medical education at the College. As a result, the earlier decision on the subject taken by the Federal Government on 17-4-2002 stood superseded. As such the bedrock of the petitionerscase for relief is based on a superseded fee structure which has ceased to be valid and effective.
41. Learned counsel for the College has also sought to justify increase in the admission fee from Rs,15,000/- per student to Rs,75,000/- per student by referring to a recommendation made by the Academic Council of the respondent College in its meeting held on 5-9-2009. However, learned counsel for the College has not been able to satisfy the Court that the Academic Council possesses any legal authority under the Resolution to determine tuition and other fees to be charged and collected by the College from its students. The increase in admission fee beyond the approved amount of Rs,15,000/- lacks sanction of the competent authority. The Operative Board decision on tuition and other fees chargeable by the College was taken in its 33rd meeting held on 16-5-2009; this decision was approved by the Federal Government on 23-5-2009. Accordingly, the collection of admission fee made in excess of Rs,15,000/- shall have to be adjusted by the College unless such charge and collection is ratified by the competent decision making authorities, namely, Board and the Provincial Government. Equally the tuition fee charged and collected from students in excess of the approved level of Rs,3,50,000/- for the first two years of medical education at the College shall require ratification by the aforesaid two authorities.
42. The fact of the matter is that consequent upon devolution of the Institute and its component entities to the Province of Punjab, the Board as originally constituted and the government superintending the affairs of the Institute have both changed. Accordingly, it is now the duty and responsibility of the Provincial Government to reconstitute the Board of the Institute and to designate in its Rules of Business the administrative department that represents the Institute.
Thereafter, the approvals or ratification, if any, given by the competent authorities, namely, the reconstituted Board and the Provincial Government in matters concerning the Institute including the fee structure of the College would bear legal force.
43. The College has also placed reliance on the minutes of the 40th meeting of the Board held on 13-11-2010 to contain an implied authorization for the College to charge the impugned rate of fee.
The minutes of the said Board meeting were approved by the Federal Government on 26-11-2010.
Item No,3 of the said minutes deals with the subject of "construction of an additional storey at existing building of Shaikha Fatima INHS for SKZMDC." The minute on the said item sheds light on the mode and arrangement envisaged by the Board for meeting the additional financial needs of the College. This minute is reproduced below for facility of reference: "The Board was apprised that the purpose to start self-finance Shaikh Khalifa Bin Zayed Al-Nahyan Medical and Dental College was to provide state-of-the-art teaching/training facilities for undergraduate medical students and to strengthen the Basic and Clinical Sciences. At the time of inauguration of the College, the worthy Prime Minister of Pakistan was pleased to announce a grant of Rs,300 million for the College to meet its initial basic needs. The case of release of funds was taken up with the Finance Division by the SZPGMI and Cabinet Division but no release has been received uptill now. The College started in the existing building of Shaikha Fatima Institute of Nursing and Health Sciences and only two years of classes could be accommodated at the most.
It was further apprised that the PMDC has to re-inspect the College in its 3rd year class, and the College has no infrastructure for the same. The Board was informed that as the PC-I of Rs,481.566 million for construction of College building has been linked with the IPDF authorities and its approval may take more time, the College authorities have to meet the requirements of the PMDC for re-inspection in the 3rd year. After exploring all the options, the only viable economic and time saving option was to add another storey to the already existing building of Shaikha Fatima Institute of Nursing and Health Sciences. In this respect, a structural analysis was got prepared by its original Consultants i,e, Progressive Consultants (Pvt.) Ltd who have certified that the existing building is enable to bear the load of an additional storey. A rough cost estimate of Rs,20.5 million approximately, got prepared by the said Consultants, was also presented to the Board.
Decision: In view of urgent demand of the College, the BOG approved the proposed plan of construction of additional storey of exiting building of the Shaikha Fatima Institute of Nursing and Health Sciences for SKZMDC and granted permission for its execution through tender/open bidding and by observing other codal formalities. All the expenditure on this account should be met from the receipts of the medical college." (Emphasis supplied)
44. Learned counsel for the Institute has laid stress on the last sentence of the decision, namely: "All the expenditure on this account should be met from the receipts of the medical College." This decision clearly suggests that additional funding required for erecting the new structure in the existing building of the College has to be met by self-generated funds. However, what increase in the student fee structure is thereby authorized for generating the requisite additional funding is not settled in the said Board decision. Whereas it can reasonably be inferred that on account of its self-finance status the College required further funds to sustain its developmental work; however, the Court is not in a position to conclude that on account of the said status, the College was authorized to enhance the quantum of its tuition fee from Rs,3,50,000/- per annum to Rs,4,00,000/- per annum for its 1st and 2nd years of medical education.
45. The Court is satisfied from the record that the College faced genuine financial need after the Federal Government declined its financial support for additional fee of Rs,300/- million to the College in 2009. Also as observed earlier the Court is satisfied that the admission and tuition fee charged by the College in excess of the amount sanctioned by the Board in its 33rd meeting dated 16-5-2009, were duly audited and accounted and have therefore been applied towards lawful purposes. However, the fact is that the excess fee has been charged by the Institute without reference to financial estimates or obtaining sanction of the competent authority. Notwithstanding the prima facie probity of the accounts of the Institute, it is legally imperative that the mandate of the Resolution is duly complied. Such authorization may be conferred by the competent authority under the Resolution, if so inclined, by ratifying the impugned action of the Institute and the College. Until such validation is given, it is plain the respondents can only enforce and maintain the fee structure sanctioned by the Board in its 33rd meeting held on 16-5-2009 which was duly approved by the Federal Government on 23-5-2009.
46. As the Institute and its component entities have now devolved to the Provincial Government therefore it is incumbent on the Provincial Government to constitute the competent authority for taking decisions, inter alia, on the aforesaid matters. The Resolution dated 29-5-1986 of the Federal Government assures autonomous status and management to the Institute. That autonomy includes both administrative and financial autonomy. Paragraph 12(3) of the Resolution visualizes the fund of the Institute to comprise grants by the Federal Government and (ii) income from the own/other sources of the Institute. The Board is obliged under paragraph 13 of the Resolution to obtain approval of its annual budget from the Federal Government. Such oversight is intended even if the budget is funded by the own sources of the Institute. Therefore, the Federal Government plays a trustee's role ensuring probity, transparency and fairness in the generation and application of funds by the Institute. Such scrutiny and oversight does not, however, impair the financial autonomy of the College.
47. As the consequence of a constitutional Amendment, the role of the Federal Government has been substituted by the Provincial Government. Such substitution cannot alter the trust character of the Institute or its assets nor diminish the trustee obligation imposed on the executive government that discharges functions in relation to the Institute in terms of the Resolution. Any other interpretation of that obligation would do injustice to public interest and the act of benevolence and goodwill expressed by late Shaikh Zayed Bin Sultan Al-Nahyan, Emir of UAE for the people of Pakistan.
48.Turning to the relief sought from this Court on the premise that the Institute is a government body and therefore the affairs of its College including its students fee policy ought to be settled in the same terms as a government medical college. After examining the relevant legal materials showing the original Trust character of the Institute and the Resolution establishing the Institute as an autonomous center of excellence with its decision making vested in a high powered and independent Board being given special status as a body under the charge of the Cabinet Secretariat, it is clear that the Institute bears a unique standing. It is a centre of excellence enjoying administrative and financial autonomy that is characteristic of an academic and research institute of learning. This is coupled with its privileged access to the Prime Minister through the Cabinet Division. As an entity the Institute and its component bodies are altogether different from the nature and administration of government owned institutions. Whereas the Institute is generally assured autonomy by the Resolution but in the case of the College its financial autonomy, that is self-finance status, is a condition of its establishment. This condition imposed in 2002 by the Federal Government has been reiterated in 2009 and 2011. Therefore, without government funding, the College cannot be equated with public sector medical colleges. The petitioner's plea for equal fee structure therefore lacks force.
49.This does not detract from the fact that the Institute and its component entities are accountable for the conduct of its affairs to executive government. Under the Resolution, the Federal Government rendered financial and administrative support to the Institute (but not the College) in the capacity of a successor to the donor or as benefactor of the Trust. In the said role, the Federal Government enabled, empowered and funded the Institute to function autonomously as a Centre of Excellence. That obligation has now devolved to the Provincial Government. Consistent with the said duty and role enshrined in the Resolution for the promotion and maintenance of excellence in medical research and service, both the Federal Government and the Provincial Government are entitled to ensure that transparency, fairness and probity are fully reflected in the administrative system under which the Institute and its component entities function.
Locus standi of petitioner:
50. It remains to be discussed whether the petitioner Association in the present petition and the petitioners(students of the College) in connected petitions bearing W.Ps. Nos.17121 and 7441 of 2013 have locus standi to challenge the fee structure enforced by the Institute and the College. The petitioner association is a registered body which represents interests of the medical community and the public and is devoted to the promotion of medical education. A petition that questions the transparency, fairness and probity in the conduct of affairs of the Institute should be entertained provided the challenge is based on authentic material and is advanced by a serious party. The petitioner PMA relied on materials including the Federal Government's decision of 17-4-2002 about the approved fee structure at the College, and its trust character in support of its attack. These pleas are substantiated and meet the standard of relevance and seriousness of a petition filed in public interest. Accordingly, the locus standi of the petitioner association is affirmed.
51. The petitioners in the other two petitions are students of the College. They have challenged their fee structure after a lapse of more than two years of commencing their education in the College.
Their locus standi is rejected on the ground of their acquiescence and laches in relation to the impugned action. The said view is reinforced by the latest judgment of the Hon'ble Supreme Court given in Secretary Economic Affairs Division, Islamabad and others v. Anwarul Haq Ahmed and others (2013 SCM R 1687). The relevant portion of the said judgment is reproduced below: "23. It is to be noted that the doctrine of 'estoppelmeans a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability. Even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. Reference in this behalf may be made to the case of Haji Ghulam Rasool v. The Chief Administrator of Auqaf (PLD 1971 SC 376) wherein it was held as under: "The doctrine of estoppel is not confined to the matters deal with under section 15 of the Evidence Act, for, as pointed out by Garth, C.J. In the case of Ganges Manufacturing Co. v. Sourajmull (ILR 5 Cal.669) "estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt within Chapter VIII of the Evidence Act". It has been defined in Salsbury's Laws of England. (2nd Edn.), Vol. 13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has often been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of Lakshmana Goundan v. Subramania Aiyar (AIR 1924 PC 44) where it was held that if a person had "held out and represented to the Hindu public that the temple was a public temple" he cannot resile from that position. Similarly in the case of Jai Dayal v. Dewal Ram Sam Das (AIR 1938 Lah.686) the Lahore High Court also held that "where a person with full knowledge of the facts in unmistakable terms admitted the wakf nature of a house, he cannot subsequently be allowed to resile from that position.
In the case of M/s Gadoon Textile v. WAPDA (1997 SCM R 641) it was held that if on the basis of representation made one party, any other party, acting bona fide, legally enters into any transaction, contract or deal which gives rise to rights and liabilities enforceable at law, then a vested right is created and the benefits or concessions arising from the representation made cannot be withdrawn. In the case of Pakistan v. Fecto Belarus Tractors Ltd. (PLD 2002 SC 208) it was held that true principle of promissory estoppel seems to be that where one party has by his words or conduct made to the other a clear and unequivocal promise which is intended to create legal relations or effect a legal relationship to arise in future, knowing or intending that it would be acted upon by the other party to whom the promise is made and it is in fact so acted upon by the other party, the promise would be binding on the party making it and he would not be entitled to go back upon the same, if it would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties and this would be so irrespective of whether there is any pre-existing relationship between the parties or not. In the case of Muhammad Zubair v.
Government of Pakistan (2012 CLC 1071) a Division Bench of learned Lahore High Court held that the students appears in the Entry Test in terms of the merit/weightage criteria publicized by the competent authority without challenging it and when they could not perform well in the entry test, they filed writ petitions apprehending that they would be ousted on the basis of the entry tests, therefore, they were estopped by their own conduct to challenge the vires of the weightage criteria or merit on the settled principle of estoppel and waiver. The quality is only possible amongst the persons who are placed in same set of circumstances. In Yahya Gulzar v. Province of Punjab, (2001 CLC 9) it was held that candidate who had not challenged the vires of prospectus before appearing in the entry test for admission was estopped to file Constitutional petition against the entry test on the principle of estoppel and waiver as per principle laid down by the Hon'bleSupreme Court in Ghulam Rasool's case (PLD 1971 SC 376). In the case of Turner Morrison & Co v. Hungerford Investment Trust Ltd (AIR 1972 SC 1311) the Indian Supreme Court held that "estoppel is a rule of equity. That rule has gained new dimensions in recent years. A new class of estoppel i,e, promissory estoppel has come to be recognized by the courts in this country as well as in England.
24. Thus, we are in agreement with the learned Additional Advocate General that under the doctrine of 'promissory estoppelthe respondents-students are estopped to challenge their contribution of US$ 10,000 in endowment fund, in terms of Article 114 of the Qanun-e- Shahadat Order, 1984, as they themselves accepted the terms and conditions of admission policy while getting admission on SFS basis."
52. The said judgment of the Hon'ble Supreme Court is also germane to the present controversy in another respect. Even if the College is assumed to be government funded and owned, the petitioner students who were admitted to the College having a F.Sc examination marks/result far below the merit of students who got admission to public sector medical colleges in the Province of Punjab. Therefore, the petitioners who did not qualify on merit for admission to the public sector medical colleges cannot claim classification along with the said students qualifying higher merit.
53. The lowest merit of successful candidates for admission in the 2009-2010 and 2010-2011 sessions in any public sector medical college in the Province of Punjab is given below: Table-1 Last Merit Candidate for the session 2009-2010 Merit Roll No. Name Father's Name F.Sc Entry test Agg% 2038 204032 Naisar FatimaJaffar Hussain 926 868 82.6 Last Merit Candidate for the session 2010-2011 3111 115194 Madiha AsgharMuhammad AsgharBahawalpur 984 993 81.51818 On the other hand, two students who have approached this Court for relief in respect , of their fee are Rana Arslan Mujahid (Session 2009-2010).. And Iqra Farooq (Session 2010-2011) who also competed for entry to public sector medical colleges in the Province of Punjab. Their result in the competition is given below: Table-1 Last Merit Candidate for the session 2009-2010 Merit Roll No. Name Father's Name F.Sc Entry test Agg% 624296 Rana Arslan MujahidMujahid Iqbal 895 598 73.26364 Last Merit Candidate for the session 2010-2011 4630 Iqra Farooq Farooq Ahmad Ch. 877 712 75.22727 The standing of the abovementioned two petitioners shown in Table-2 is not reflected in the merit list for admission to government colleges because both were below the minimum admission level for all government colleges in the Province shown in Table-1. With that background, the two petitioners applied to and got admission in the College. Clearly, the College had a lower standard of admission with the result that the petitioners were accommodated in their respective sessions.
The plea of equal treatment under Article 25 of the Constitution cannot therefore apply.
54. The aforementioned judgment of the Hon'ble Supreme Court has in the foregoing respect held that college authorities have the power to classify students differently according to the level of their accomplishment. Thus the students who secured admission in the medical colleges on open merit have a justifiable claim to a charge of standard fee applied by public sector medical colleges. For candidates obtaining lesser marks, medical education need not be subsidized in the same way as is done for open merit students. In the precedent under reference, a distinction was drawn between the vastly different fee structures applied by public sector medical colleges to students who qualified for admission on open merit and other students who qualified for admission under self- finance scheme. With respect to the aforesaid category of candidates, the Hon'ble Supreme Court was pleased to observe as under: "Thus, it is held that the classification between the students, who secured more marks and succeeded in getting admission on open merit and the students, who after failing to get admission on open merit, opted to get the benefit of Self Finance Scheme, is based on an intelligible differentia as such reasonable. Therefore, students who opted to apply for admission on Self Finance basis, after being failed to get admission on open merit, cannot claim the protection of Article 25 of the Constitution as they are neither similarly placed nor such classification is unreasonable."
55. Learned counsel for the petitioner also made effort to claim preferential treatment for the students of the College on the ground that they should be compared with other students in a federally funded medical college. It appears that in the year 2009, the College was the only educational facility which functioned under an administrative structure that reported to the Federal Government. As such, no basis is available for comparison between College with any other medical college that was owned or attached to the Federal Government.
56. The point of importance in the present case is that although the Institute functions autonomously under the Resolution through a Board of Governors which is appointed by Federal Government, nevertheless the functioning of the College is from the first day on a self-finance basis. Accordingly, the College is entitled to claim greater financial autonomy in relation to the trustee-government than other entities in the Institute. Such differentiation would follow from the separate classification of self-finance students of public sector colleges in the Province of Punjab approved by the Hon'ble Supreme Court.
Conclusion:
57. Accordingly, for the reasons that have been discussed above, the claim by the petitioners before the Court for a reduced fee structure for students in the College for the academic years 2009-2010 until 2011-2012 at the level comparable to public sector medical colleges in the Province of Punjab has no merit. The claim that fee structure of the College stands frozen at the amounts sanctioned in the 19th meeting of the Board of Governors dated 27-12-2001 is incorrect. The Board of Governors enhanced the tuition fee in its 33rd meeting dated 16-5-2009 to the amount of Rs,3,50,000/- per annum for the first two years of medical education and Rs,4,00,000/- per annum for the remaining three years of medical education. The admission fee is visualized by the Board at Rs,15,000/- per student rather than Rs,75,000/- collected by the College. Consequently, for lack of a concrete Board decision which specifically approves the higher rate of fee charged by the College for the 1st and 2nd year of medical education and the additional amount of Rs,60,000/- charged as admission fee by respondent No,3 College, there is a void in the authority sanctioning such charges. It is evident that the Board has in its 40th meeting impliedly acquiesced a higher charge of fee by allocating the receipts therefrom towards the financing of civil structures. However, there is no express permission by Board in the said respect, As such paragraph 7 of the Resolution has not been complied by College in entirety. Since there is no allegation nor any evidence of wrongdoing, non-transparency or abuse of authority, the Court has already ruled that the deficiency in the requisite consent and approval from the Board and the competent government may be cured by the College by way of ratification from its Board after its re-constitution and endorsement by the Provincial Government.
58. Since the financial interest of the students are involved, Punjab Provincial Government is given three monthstime to re-constitute a Board of Governors of the Institute and thereafter to cause the above matter of impugned fee structure at the College to be considered for ratification by the same. It goes without saying that after devolution under the Constitution (Eighteenth Amendment)
Act, 2010, the Federal Government stands substituted by Government of Punjab in the provisions of the Resolution dated 29-5-1986 and in the performance of all functions, obligations and duties previously discharged by Federal Government in relation to the Institute and its components. Until the lapse of three months from the date of receipt of a certified copy of this judgment, the respondent College need not adjust any amounts to students that have been paid in excess of the amount of tuition fee and admission fee duly authorized by Board. Unless the excess amounts charged by respondent College are ratified by Board of the Institute, such amounts shall be adjusted to the respective students after the lapse of the aforementioned period. For clarity it is reiterated that presently the Institute is empowered to charge tuition fee and admission fee from its students in accordance with the rates sanctioned by Board in its 33rd meeting held on 16-5- 2009 and approved by the Federal Government on 23-5-2009.
59.In view of the foregoing observations, this petition is disposed of.