' WAQAR AHMED SETH, J.---Saadia Sajjad and 24 other petitioners seek the constitutional jurisdiction of this Court praying for:-- "that on acceptance of the writ petition, the honourable Court may graciously be pleased to pass the following orders:-
(i) Declaration that petitioners are entitled to have their medical education regularized by the respondents according to the provisions of Khyber Medical University Act, 2006 and are entitled to be registered as Medical Students with Khyber Medical University and to appear in MBBS Final Year Examination.
(ii) Declaration that the respondents are under obligation to regularize medical education of the petitioners,
(iii) Direction to the respondents to register the petitioners as medical student with Khyber Medical University,
(iv) Direction to the respondents to allow the petitioners to appear in the examination of MBBS Final Year to be held on 8th June, 2012,
(v) Any other relief which this honourable Court deems fit and proper may graciously be granted to the petitioners in the highest interest of justice".
2. Brief facts, as per contents of petition, are that respondent No,8/ Northern Institute of Medical Sciences Abbottabad (hereinafter referred to as the NIMS) is affiliated with Hazara University and its recognition by Pakistan Medical and Dental Council (hereinafter referred to as the PM&DC) is under process. The petitioners got admission in the NIMS College of Medicine in the year 2006 and were registered as medical students with Hazara University. The petitioners continued their regular studies and are now students of M.B.B.S. Final Year (IV Prof:). In the meantime, Khyber Medical University Act, 2006 was enforced and according to section 30(1)(a) & (b) of the Act it was made compulsory for all Medical and Dental Colleges in the Province to get affiliation with Khyber Medical University. Respondents Nos.1 and 2 issued letters to respondent No,8 for submission of application for affiliation with Khyber Medical University so that the same may be regularized according to the provisions of Khyber Medical University Act, 2006 and NIMS College of Medicine has not been affiliated so far with Khyber Medical University and, as such, the Medical/Dental Education of the College has not been registered or regularized by respondents Nos.1 and 2.
3. Arguments heard at great length and relevant record and the rules have gone through with the valuable assistance of learned counsel for the parties.
4. In essence, the petitioners seek regularization of their studies and registration as Medical Students with Khyber Medical University as well as participation in the forthcoming final year examination to be held on 8th June, 2012 and that too without proper affiliation of institution/ respondent No,8.
5. There is no denial of the fact that respondent No,1 / NIMS College of Medicine is a private Medical College affiliated with Hazara University. The alleged letter of affiliation issued by Hazara University to respondent No,8 does not bear any number and date of its issuance.
6. It appears that for control purposes and smooth running of all Medical and Dental Colleges in the Province of Khyber Pakhtun khawa, Khyber Medical University Act, 2006 (N.W.F.P. Act No,1 of 2007) was enforced. Section 30(1)(a) & (b) of the Khyber Medical University Act, 2006 (N.W.F.P. Act No,1 of 2007) governing the subject-matter is reproduced as under:-- "30. Affiliation.---(1) Subject to this Act,
(a) all Medical and Dental Colleges and all Institutions of Medical and allied health sciences in Public Sector in the North-West Frontier Province, shall be affiliated with the Khyber Medical University; and
(b) all private Medical and Dental Colleges and Institutions of Medical and allied Health Sciences in the Province, whether affiliated with any other University, Examination Board or a Medical Faculty, notwithstanding anything contained in any other law for the time being in force, shall affiliate the University through a procedure prescribed herein".
7. On promulgation of above said Act, the affiliation or registration or otherwise, if any, of respondent No,8 with Hazara University has become functions officio. According to section 30(1) (a) & (b) of the Khyber Medical University Act, 2006 (N.W.F.P. Act No,1 of 2007), it was made compulsory for all Medical and Dental Colleges in the Province of Khyber Pakhtunkhawa to get affiliation with Khyber Medical University. After enforcement of Act ibid, respondent No,8 was required to get affiliated it with the Khyber Medical University forthwith but it did not so. A perusal of record would reveal that according to Act ibid respondents Nos.1 and 2 issued letters to respondent No,8 for submission of application for affiliation with Khyber Medical University so that the Medical/Dental Education of the College may be regularized but to no avail and instead the students themselves allegedly moved applications for regularization of their studies and registration as Medical students with Khyber Medical University but in spite of the fact respondent No,8 is functioning since long without its proper affiliation or registration with the Khyber Medical University and apparently in violation of the PM&DC Ordinance, 1962.
8. Medical and Dental Institutions (Recognition, Eligibility Criteria for enhancement in annual admission and 'accreditation standards) Regulations, 2012, regulation No, 3(4) says that "no student shall be admitted before recognition of the institution and the institution shall, at the time of application for recognition, certify that it has not been admitted students in the proposed institution".
8. Further, the PM&DC in its meeting held on 2nd and 3rd December, 2009 after considering the inspection reports and other relevant record recommended the immediate closure of the college/ respondent No,8 and in this behalf written letter to the Director General Health, Government of Pakistan, Ministry of Health, Islamabad dated 24th December, 2009. The contents whereof are reproduced as under:- "The Pakistan Medical and Dental Council in its meeting held on 2nd and 3rd December, 2009 at Karachi, after considering the inspection reports and other relevant record, has decided to recommend the immediate closure of Northern Institution of Medical Sciences Abbottabad and recommends to the Federal Government to initiate penal action against college administration for admitting students and violation of the PM&DC Ordinance, 1962 and decision of the honourable Supreme Court of Pakistan PLD 2007 SC 323. You may take action according to the rules".
9. It appears that, in spite of this, no action has so far been taken by the concerned authorities against respondent No,8 and the College Administration in violation of PM&DC Ordinance, 1962, without proper affiliation and registration with the Khyber Medical University, is still admitting the students and is running the business only for illegal monetary gain since then. The respondent No,5 should take immediate and proper action against respondent No,8 strictly in accordance with letter dated 24th December, 2009. However, keeping in view the educational careers of innocent students having no fault on their part, it is directed that all the students of the college of respondent. No,8 be adjusted in the private sector Medical Colleges under the supervision of PM&DC within 15 days, after fulfillment of all the legal requirements and respondent No,8 shall return all the dues and original testimonials obtained from the students/candidates.
11. Since, no medical institution or university can train or grant a medical or dental qualification or train and grant both unless the said qualification, degree or diploma has been accorded recognition in terms of section 11 of the Pakistan Medical and Dental Council Ordinance, 1962 and admittedly NIMS/respondent No, 8 is not registered/ recognized A under section 11 of the PMDC Ordinance, 1962, therefore, it is to be seen that how they operated and was functional for last 5/6 years and was giving admissions to the students, especially when officials of PMDC were visiting the premises of respondent No,
8. There is no provision of any provisional or in anticipation of pending approval.
12. As regarding the deficiencies, there is no need of discussing the same in details. However, it is pointed out that one such deficiency was having no teacher/professor for the subject of ophthalmology, which is a major subject in 4th year MBBS. The present students of final year qualified 4th year, which is also a mystery. The pointation of deficiencies is for a recognized institution whereas respondent No, 8 was still to be recognized.
13. According to Medical and Dental Council (Amended), 2012 section 22-A which is read as under:- ' "Establishment and running medical and dental institutions without recognition---No person shall run nor establish any institution for training or grant or both training or grant of medical or dental qualifications, additional medical or dental education, training for house job, internship or foundation year or an organization for continuous professional development opportunity providing neither shall any university grant affiliation to any such an institution nor any such institution shall award any. Degree unless recognition has been granted to such college or institution under this Ordinance."
' WHEREAS, section 22-B reads as under:- ' Penalty (1) Whoever runs or establishes or endorse any institution or advertises admissions in an institution for imparting education in medicine or dentistry, which is not recognized under sections 11, 11A, 16, 16A or 18 in respect of which recognition has been withdrawn under section 22, shall be guilty of an offence punishable with rigorous imprisonment for a term which may extend to five years but shall not be less than a year or with fine which may extend to then million rupees but shall not be less than five million rupees or without both and shall also be liable to closure of such institution.
' 22-B (3) Where any contravention of this Ordinance has been committed by any Government agency, local authority or local council and it appears from the relevant documents that such contravention has been committed with the consent or connivance of or is attributable to any negligence on the part of the head or any other officer of the government agency, local authority or local council, such head or other officer shall also be deemed guilty of such contravention along with the government agency, local authority or local council and shall be liable to be proceeded against and punished accordingly."
14. At this stage, in the facts and circumstances of instant case, we feel it appropriate to direct the NAB authorities to investigate into the matter and initiate proceedings against all the relevant authorities/ officials of PM&DC during the relevant period when respondent No, 8 institution started operating by giving admissions and continued till date, especially after letter dated 24-12-2009, from top to bottom i,e, incharge of the area to the Inspector/inspecting team, who time and again visited the premises. The said exercise be finalized within one month positively under intimation to the Additional Registrar of this Court. Moreover, DAG and AAG of this Court are directed to file reference against PMDC and NAB, after the expiry of one month time so that the matter be taken to logical end, criminal negligence, inefficiency and is flowing out of the conduct of responsible. Copy of this judgment be sent to NAB authorities by the Additional Registrar of this court immediately.
15. In the light of the above, this Court holds that:--
(1) Respondent No,5 / PM&DC shall take immediate and proper action against respondent No,8 in accordance with letter dated 24th December, 2009, within 15 days;
(2) All the students of the Institution of respondent No,8 be adjusted in the private sector Medical Colleges under the supervision of PM&DC, within 15 days, after fulfillment of all the legal requirements and respondent No,8 shall return the dues and original testimonials obtained from the students / candidates, and
(3) Students of Final Year, who were permitted by this Court to appear in the Final Year Examination, are also to be adjusted in private sector Medical Colleges in Final Year, after verification of the documents by the PM&DC and they shall have to reappear in Final Year from that institution.
16. Writ petition stands disposed of accordingly in the terms stated hereinabove and C.M.
Nos.353/12, 239 and 324 of 2013 stand dismissed.