AYESHA A. MALIK, J.--This common judgment decides upon the issues raised in the instant ICA along with connected ICAs and Writ Petitions detailed in Schedule "A" and "B", appended with the judgment, as all appeals and petitions raise common questions of law and facts.
2. There are two sets of Appellants/Petitioners before the Court. The first are students who are desirous of admission in medical and dental colleges in the 2017-18 session. They completed their A level in June 2017 and obtained their equivalence certificates from the Inter Board Committee of Chairman, Government of Pakistan, Islamabad ("IBCC"). Thereafter they appeared in the SAT II subject test on 3.6.2017 and 1.10.2017 and out of abundant caution also sat for the MDCAT exam in October, 2017 on account of the pending litigation. The case of these Appellants/Petitioners is that on completion of their 0 level in June 2015 and while opting to study A level, the Appellants/Petitioners planned and took necessary steps over the next two years in preparation for admission in medical and dental colleges. The Appellants/Petitioners at the time were guided by the Admission in MBBS/BDS Courses and Conditions for House Job/Internship/ Foundation Year Regulations, 2013 ("2013 Regulations") in terms of which they were eligible for admission in medical and dental colleges on the basis of their SAT H score in lieu of the MDCAT exam. In October, 2016, the 2013 Regulations were repealed by the MBBS and BDS (Admissions, House Job and Internship Regulations, 2016 ("2016 Regulations") in terms of which the Appellants/Petitioners could no longer rely on the SAT II result for the purposes of admission in medical and dental colleges and were compelled to take the MDCAT exam. The grievance of the Appellants/Petitioners is that when they commenced their A level in June 2015, the 2013 Regulations were in place and all of a sudden the Respondent PMDC brought about major changes in the admission criteria through the 2016 Regulations without any notice, making the MDCAT exam mandatory and doing away with the SAT II score. The 2016 Regulations were challenged by students who had taken their A level in June, 2016 and ultimately they were given a concession such that their admissions were made under the 2013 Regulations. It is the case of the Appellants/Petitioners that they are entitled to the same treatment as they had already completed one year of their A level in October 2016 and had planned the entire year on the understanding that they would be governed by the 2013 Regulations. Therefore, since they had already taken the SAT H subject tests for the purposes of admission in medical and dental colleges, before the 2016 Regulations were promulgated they had legitimate expectation to be admitted on the basis of the SAT II score. Being aggrieved the Appellants challenged the 2016 Regulations before the learned Single Judge who dismissed the petitions vide the common order dated 16.10.2017 passed in W.P. No,70036/2017. During the pendency of these ICAs, other students in similar position to that of the Appellants filed writ petitions, as detailed in Schedule B, which were heard along with the connected ICAs.
3. The other set of Petitioners before the Court are private medical and dental colleges. The Petitions were filed by the Pakistan Association of Private Medical and Dental Institutes ("PAMI") and Shalimar Medical and Dental College, who have also challenged the 2016 Regulations as they are aggrieved by the Centralized Admission Program ("CAP") prescribed thereunder. It is their case that 2016 Regulations require all private and medical dental colleges to submit to CAP on the basis of which Respondent University of Health Sciences ("UHS") will receive all applications for admission in private medical and dental colleges, process the same on the basis of preferences given by the students and thereafter, finalize a merit list for the private medical and dental colleges. The colleges will then admit the students on the merit list. These Petitioners have called into question inter alia the vires and actions of the Respondents under the impugned 2016 Regulations on the touchstone of their fundamental right to do business under the Pakistan Medical and Dental Council, Ordinance, 1962 ("1962 Ordinance") and it being contrary to the mandate of Article 18 of the Constitution of Islamic Republic of Pakistan, 19/3 ("Constitution" ). It is also their case that in an earlier round of litigation when the vires of 2016 Regulations were challenged, several opportunities were given to PAMI and PMDC to resolve the issues with respect to CAP and other regulations on the basis whereof the parties entered into an understanding whereby the matter would be deemed pending and in the meantime, for the 2017-18 session, private medical and dental colleges can admit students of their choice in terms of the given criteria by PMDC. It is also their case that PMDC unilaterally disregarded and abandoned all points of negotiations and deliberations, which are documented in the minutes of meeting held on 18.9.2017 at PMDC Office, Islamabad and instead set out to enforce the mechanism prescribed under the 2016 Regulations. Private medical and dental colleges have commenced their admission process, however the UHS has also issued advertisements calling for applications for admission in private and medical dental colleges which has created absolute chaos for students as they are unsure of the manner in which admissions will progress this year.
Submissions of the Appellants/Petitioners Counsel
4. Mr. Munawar us Salam argued on the vires of the 2016 Regulations on behalf of the Petitioners/Appellants. He argued that the 2016 Regulations have been framed by a Council constituted under the Pakistan Medical and Dental Council (Amendment) Ordinance, 2015 ("Amendment Ordinance") which ceased to exist on 25.4.2016 being the date of repeal of the Amendment Ordinance as per Article 89 of the Constitution. Therefore he argued that the 2016 Regulations were framed and notified by a Council on 27.10.2016 which in fact did not exist on that date. He argued that even otherwise neither the Amendment Ordinance nor the purported Council established under the Amendment Ordinance stood approved by the Cabinet in terms of the constitutional requirement pronounced by the august Supreme Court of Pakistan in Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others (PLD 2016 SC 808). He further argued that the implementation of 2016 Regulations for the year 2017-18 tantamounts to retroactive application of the 2016 Regulations which is violative of the Constitution. He explained that students had already completed one year of their A level and taken decisive steps towards preparing for admission in medical and dental colleges in terms of the 2013 Regulations. Hence a vested right has accrued in their favour and the Respondents cannot unilaterally, without any notice take away this vested right. He further explained that the 2016 Regulations brought about a sea change in the manner of admission and the criteria from the earlier 2013 Regulations, and were made applicable to the Appellants/Petitioners without any regard of the adverse implications it would have on students who had already taken positive steps in furtherance of their desire to participate in the admission process for medical and dental colleges. He argued that it is a case of legitimate expectation when a certain course will be followed for the purposes of admission in medical and dental colleges whereby it would be unfair if the competent authority were allowed to change that course midstream, as it would adversely affect the rights of the students. Learned counsel argued that mere existence of the 2016 Regulations does not take away the vested rights accrued in favour of the students once they had decided and invested their two years towards pursuing the career in medicine and dentistry. It was also argued that in terms of Article 154 of the Constitution read with Entry 2 of Part II of the Federal Legislative List in the Fourth Schedule of the Constitution, all regulations have to be approved by the Council of Common Interests ("CCI"). In this case the 2016 Regulations have not been routed through the CCI hence are ultra vires to the Constitution.
5. Mr. Khalid Ishaq argued that private medical and dental colleges are registered with the PMDC and affiliated with the UHS and as a term of their affiliation, they have the right to make their own admissions. He argued that PM DC without due consideration of the 1962 Ordinance or its authority mandated CAP under the 2016 Regulations whereby al 1 rights of admission have been taken away from the private medical and dental colleges and placed in the hands of the UHS. He added that the PMDC can only set the conditions for admission under Section 33 of the 1962 Ordinance and cannot make admissions for the private colleges. This he argued was beyond the scope of authority given to PMDC under the 1962 Ordinance. He reiterated that if at all, a change is to be brought about in the admission policy, sufficient notice and time must be given to all stakeholders to ensure full participation in the rule making process and for smooth transition. He argued that after challenging the 2016 Regulations, negotiations took place with PMDC where they conceded to the fact that 2016 Regulations will not apply to the 2017-18 admissions and that private colleges will continue with the admission policy as per ,practice under the 2013 Regulations until the matter is settled with PMDC over the future course for private medical and dental colleges as well as for students. He also argued that PMDC has gone beyond its mandate and is not competent under the Constitution or the 1962 Ordinance to control admissions of private medical and -dental colleges.
Submissions of the Respondents Counsel
6. Mr. Noshab A. Khan on behalf of the PMDC argued that the 2016 Regulations are in accordance with law and that permission from the Federal Government is not required in terms of Section 33 of the 1962 Ordinance. He argued that SAT II score has never been relevant for the purposes of admission on merit seats in medical and dental colleges. Private colleges were admitting students in contravention to the 2013 Regulations which necessitated the promulgation of the 2016 Regulations. He accepted that the waiver was given to the A level students last year on account of the pending litigation and on behalf of the Council offered the same waiver to the students before the Court meaning thereby that they could be given admission against the 15% reserved seats but not on the open merit seats. The learned counsel argued that the PMDC is the regulatory body which is responsible for the quality of education and training imparted in colleges in order to ensure that the quality of the medical profession is maintained and does not fall prey to substandard entry. He further argued that time and again students have challenged the eligibility criteria for entry in medical and dental colleges, however the courts have never accepted such challenges as there is no vested right on the basis of which students can claim admission in medical and dental colleges.
7. Mr. Imran Muhammad Sarwar argued on behalf of Respondent UHS that the 2016 Regulations are binding on them and that in compliance thereof relevant steps were taken to ensure that the changes brought about in 2016 were duly implemented. It was also argued that the Appellant students who have participated in the entry test cannot now attempt to take the benefit of their SAT II result as they were well aware of the admission policy under the 2016 Regulations. Learned counsel explained that even under the 2013 Regulations, the MDCAT entry test was compulsory for all candidates seeking admission in the medical and dental colleges and it was only limited to the 15% seats reserved for foreign that the SAT II result was accepted. Hence the students have no case and they are bound by the decision of PMDC. Reliance was placed on Mst. Attiyya Bibi Khan and others v. Federation of Pakistan (Ministry of Education), Civil Secretariat, Islamabad and others (2001 SCMR 1161), Mian Muhammad Afzal v. Province of Punjab and others (2004 SCMR 1570), Junaid Intzar v. UHS and others (2009 MLD 684) and Muhammad Zubair and 5 others v.
Government of Pakistan through Secretary Health, Islamabad and 22 others (2012 CLC 1071). So far as the case of PAMI and private medical and dental colleges is concerned, learned counsel argued that most of the private medical and dental colleges are affiliated with the UHS and since they are regulated by the PMDC they are obligated to comply with the regulations of PMDC. Reliance was placed on the order of the august Supreme Court of Pakistan dated 11.10.2010 passed in Civil Petition No,1720-L of 2010 to urge the point that the regulations issued by PMDC under the 1962 Ordinance are binding on all institutions vis-a-vis the mechanism for determining the merit of the candidates for admission in medical and dental colleges. He further argued that since the students before the Court have taken the MDCAT exam hence are not entitled to any relief from this Court.
8. With respect to the vires of the law, on behalf of the Federation Mr. Tahir Mehmood Ahmad Khokhar, DAG argued that the 1962 Ordinance was amended in 2b12 and again in 2015. The amendments were never challenged, hence at this stage the Appellants/Petitioners are barred from challenging the same and the petitions are hit by laches. With respect to the argument that the approval of CCI is required it was argued that it is not obligatory for PMDC to place its regulations before the CCI for approval, as only policy matters are considered by the CCI and not legislation. It was argued that the final and conclusive forum for law making is Parliament which has validated the 1962 Ordinance along with the Amendment Ordinance and has delegated its legislative function to PMDC. It was also argued that the Federal Government has given its approval for the regulations vide its letter No,1-76/2016-SO (PMDC) dated 25.10.2016, hence the 2016 Regulations are fully endorsed by the Federal Government. So far as reliance on Mustafa Impex (supra) is concerned, it was argued that it will have prospective effect and not retrospective effect.
He stated that the Federal Government supported the view of PMDC that CAP will improve transparency and ensure fairness in the admission process and that admissions in private medical and dental colleges should be made as per PMDC regulations. In this regard, it was argued that no illegality has been made out and that the impugned order is in accordance with law.
Facts
9. A Standing Committee of the Ministry of Health Services Regulations and Coordination held its meeting in June, 2016 wherein it decided to introduce a central induction system for admission in medical and dental colleges through a uniform admission policy, with a collective merit list for all private medical and dental colleges. Thereafter on 7.9.2016 the Council of the PMDC approved the 2016 Regulations in its 145th session. On 25.10.2016 the Ministry of National Health Services Regulation and Coordination vetted the draft regulations and approved the same stating therein that the Council is competent to make the regulations. On 27.10.2016, the 2016 Regulations were notified in the official gazette. On 28.10.2016 the admission boards as provided for under the 2016 Regulations were duly nominated. In the meantime, several writ petitions were filed challenging the 2016 Regulations and vide order dated 19.12.2016 passed in W.P. No,35526/2016 titled Ms. Mashal Salam v. PM&DC etc. along with other connected matters, the operation of the 2016 Regulations qua the admissions in medical and dental colleges, for the years 2016-17, in terms of the admission criteria contained therein were suspended. At the time students as well as private medical and dental colleges challenged the vires of the 2016 Regulations which brought about a number of changes in the admission process from the 2013 Regulations. Amongst others, the main challenge was that the SAT II score was no longer relevant for local students who have taken the A level exam as they were required to take the MDCAT exam for admission in medical and dental colleges.
Private medical and dental colleges were also aggrieved by the 2016 Regulations on account of the CAP introduced which denied them the right to make admissions in their respective institutes and instead required the UHS to compile a merit list on the basis of which private medical and dental colleges could admit students. The Court directed the parties to attempt to resolve their disputes and ultimately on 4.8.2017 PMDC conceded to the demands of the petitioners and decided to apply the 2016 Regulations prospectively for the 2017-18 session. It was also stated by the Counsel for the medical and dental colleges that a deliberative process was underway with PMDC to iron out other grievances of PAMI with the 2016 Regulations. The Court disposed of the petitions allowing the private colleges to approach the Court in case their grievances were not redressed by a PMDC.
Therefore, as per the record, the 2016 Regulations were suspended from 19.12.2016 to 4.8.2017 with respect to admission in medical and dental colleges. In September 2017 writ petitions were filed by the Appellants challenging the 2016 Regulations essentially on the same grounds as raised in the earlier round of litigation, seeking the same relief. Ultimately the impugned order was passed on 16.10.2017 in WP No,70036/2017 and connected cases.
10.The record also shows that several meetings were held between PMDC and PAMI to settle the dispute that has arisen consequent to the 2016 Regulations. As per the minutes of the meeting held on 18.9.2017 at the PMDC office at Islamabad a Memorandum of Understanding ("MOU") was prepared on the basis of which several changes were made to the central entry test and the process of admission. In terms thereof all private medical and dental colleges were allowed to advertise for admission after the declaration of the entry test result and grant admission as per the given criteria. It was also agreed that a private medical and dental college has the right to refuse admission to any candidate who does not have the financial ability to pay for the full course over the five years. A procedure to appeal against merit violation was set out and the parties also agreed to increase the tuition fees. The MOU was signed on 18.9.2017 by members of PMDC and PAMI.
Issues
11. We have heard the counsel and find that the, issues argued before us can be divided into two broad challenges: the constitutional challenge and the challenge to the regulatory function of the PMDC. The three constitutional grounds are; first that the Amendment Ordinance lapsed on 25.4.2016, hence the 1962 Ordinance as it stood before the amendment was revived and since there was no Council at the time, any actions taken by the purported new Council formed under the Amendment Ordinance are without any legal effect; second that the 2016 Regulations were not approved by the CCI and third that the requirements stipulated in the case Mustafa Impex (supra) have not been followed. The vires of the 2016 Regulations have also been challenged with reference to the regulatory function of PMDC such that PMDC has exceeded its given mandate under the 1962 Ordinance and that the 2016 Regulations to the extent that it denies private medical and dental colleges the right to admit students of their own choice is beyond the competence of PMDC and tantamounts to exercise of power beyond the prescribed authority under the 1962 Ordinance. Also in dispute is the applicability of the 2016 Regulations that is whether it is to be applied retroactively as the Appellants and the Petitioners have taken decisive steps since June 2015 in accordance with the 2013 Regulations and therefore cannot be made to comply with the changes in the 2016 Regulations, especially due to the MOU between PAMI and PMDC on the basis of which it was agreed that the 2016 Regulations would not be made applicable for the 2017-18 admission process.
Opinion of the Court Vires of the 2016 Regulations 12.The 1962 Ordinance constituted a Council under Section 3 and an Executive Committee under Section 10 to exercise powers given under the law. In August 2012 through the Amendment Act 2012 certain amendments were made to the 1962 Ordinance including a substitution in Section 3 of the 1962 Ordinance dealing with the constitution and composition of the Council. The existing Council vide Section 36B of the Amendment Act 2012 was dissolved and the Executive Committee of the Council assumed the powers of the Council until a new Council was elected. On 26 August 2015 the Amendment Ordinance was promulgated under which a new Council was elected. In terms of Article 89 of the Constitution on 11.12.2015 an extension of 120 days was granted to the Amendment Ordinance. On 22.4.2016 the Amendment Ordinance was placed before the Senate, which resolved that the matter be placed before the CCI which is the competent forum to approve the regulations.
This was never done and the Amendment Ordinance lapsed on 25.4.2016. On 6.10.2016 as per the agenda, a joint session of the National Assembly was required to consider the Amendment Ordinance, however the matter was never taken up. Consequently, it is the case of the Appellants/Petitioners that the new Council, as constituted under the Amendment Ordinance did not exist in October 2016 meaning thereby that the 2016 Regulations could not have been framed and notified on 27.10.2016 by that Council. In support of his contentions, learned counsel placed reliance on the cases "Syed Fayyaz Hussain Qadri Advocate v. The Administrator, Lahore Municipal Corporation, Lahore and 4 others" (PLD 1972 Lah. 316), Government of Punjab through Secretary, Home Department v. Ziaullah Khan and 2 others" (1992 SCMR 602), -Muhammad Naeem alias Naeema v. The State" (1992 SCMR 1617), Muhammad Arjf and another v. The State and another"
(1993 SCMR 1589), "Peer Sabir Shah v. Federation of Pakistan and others" (PLD 1994 SC 738), Federation of Pakistan and others v. M. Nawaz Khokhar and others (PLD 2000 SC 26) and Air League of NAC Employees through President v. Federation of Pakistan M/O Labour and Manpower Division, Islamabad and others (2011 SCMR 1254).
13.The applicable provision of the Constitution is reproduced hereunder: Article 89
(1) The President may, except when the (Senate or) National Assembly is in session, if satisfied that circumstances exist which render it necessary to take immediate action, make and promulgate an Ordinance as the circumstances may require.
(2) An Ordinance promulgated under this Article shall have the same force and effect as an Act of (Majlis-e-Shoora Parliament) and shall be subject to like restrictions as the power of (Majlis-e- Shoora Parliament) to make law, but every such Ordinance
(a) shall be laid
(i) before the National Assembly if it (contains provisions dealing with all or any of the matters specified in clause (2) of Article 73), and shall stand repealed at the expiration of (one hundred and twenty days) from its promulgation or , if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided that the National Assembly may by a resolution extend the Ordinance for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by the Assembly, upon the passing of that resolution: Provided further that extension for further period may be made only once.
(ii) before both Houses if it (does not contain provisions dealing with any of the matters referred to in sub-paragraph (i), and shall stand repealed at the expiration of (one hundred and twenty days) from its promulgation or, if before the expiration of that period a resolution disapproving it is passed by either House upon the passing of that resolution.
(Provided that either House may by a resolution extend it for a further period of one hundred and twenty days and it shall stand repealed at the expiration of the extended period, or if before the expiration of that period a resolution disapproving it is passed by a House, upon the passing of that resolution.
Provided further that extension for a further period may be made only once; and)
(b) may be withdrawn at any time by the President.
(3) Without prejudice to the provisions of clause (2),
(a) an Ordinance laid before the National Assembly under sub paragraph (i) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the National Assembly and
(b) an Ordinance laid before both Houses under sub-paragraph (ii) of paragraph (a) of clause (2) shall be deemed to be a Bill introduced in the House where it was first laid.)
14.In terms of Article 89(2) (a) (i) and (ii) of the Constitution, an Ordinance shall stand repealed on the expiration of 120 days from the date of its promulgation or in case of an extension from the date of expiry of the extended period. In 1992 SCMR 602 (supra) the august. Supreme Court of Pakistan held that where a law is repealed or deemed to have been repealed by or under or by virtue of the Constitution the repeal shall not affect the operation of the previous law except where otherwise provided. In 1993 SCMR 1589 (supra) the august Supreme Court of Pakistan discussed the distinction between temporary enactments and permanent enactments. The general principle of law that emerges from the cases relied upon is that an Ordinance being temporary legislation expires with the efflux of time and the earlier permanent statute automatically stands revived.
15. In this case the Amendment Ordinance made certain amendments by way of substitution to the 1962 Ordinance essentially with respect to the constitution and composition of the Council and the election process. In this regard, it is noted that the Amendment Ordinance was temporary legislation which amended the 1962 Ordinance by way of substitution. The amendments took effect immediately and remained effective on the statute books until the lapse of the Amendment Ordinance on 25.4.2016. With the lapse of the Amendment Ordinance, the amendments made to the 1962 Ordinance also lapsed and the position prior to the amendments was restored meaning thereby that the 1962 Ordinance was restored as it existed prior to 26 August 2015 when the Amendment Ordinance was promulgated. The question that arises under these circumstances is what is the effect of the lapse of the Amendment Ordinance on the new Council constituted thereunder. In terms of the dicta laid by the august Supreme Court of Pakistan the Amendment Ordinance was temporary legislation which remained in force for a limited period of time and ceased to operate after its expiry period on 25.4.2016. Article 89(2)(a) of the Constitution provides that an Ordinance promulgated under this. Article shall have the same force and effect as an Act of Parliament and shall be subject to the same restrictions as the power of Parliament to make law, but every such Ordinance must be laid before the National Assembly before its expiration period of 120 days from the date of its promulgation. The National Assembly may by resolution extend the Ordinance for a further period of 120 days and the Ordinance shall stand repealed at the expiration of the extended period. Since the National Assembly extended the Amendment Ordinance on 11.12.2015 it stood repealed on 25.4.2016 after the expiry of the extended period. Therefore as per the Constitution an Ordinance is only a stop gap arrangement and a temporary measure which must be placed before the National Assembly if it pertains to matters specified in Article 73(2) of the Constitution and in all other cases before both Houses within four months of the date of its promulgation unless earlier withdrawn by the President or disapproved by the National Assembly or Parliament as the case may be. Reference is made to Sabir Shah v. Shad Muhammad Khan (PLD 1995 SC 66) and Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad v. Dr. Mubashir Hassan and others (PLD 2012 SC 106). Since the Amendment Ordinance ceased to exist on 25.4.2016 the new Council elected thereunder also ceased to exist as of 25.4.2016. Consequently the new Council could not function thereafter and exercise any powers as per the 1962 Ordinance as it was not constituted as per the 1962 Ordinance.
We are informed that the present position is that the same Council continues even today and if all decisions and actions of the Council are declared unconstitutional and illegal, it will have a devastating effect on the medical profession and will halt the entire admission process which is underway. It was also stated that the future of students already admitted to medical and dental colleges is at stake including the future of students seeking admission in the 2017-18 session. At this juncture we are mindful of the fact that PMDC operates through its Council which carries out the functions of PMDC with respect to the recognition, registration and monitoring of medical and dental colleges and their qualifications as well as being the registering authority of all medical and dental practitioners. During the period after 25.4.2016 the new Council acted under the bona fide belief that they were duly constituted and had the legal authority to perform their duties under the 1962 Ordinance and regulations made thereunder. Many decisions were taken including decisions under the 2016 Regulations pertaining to the admission process, holding of the MDCAT exam and the preparation of the final merit list for admission in medical and dental colleges not to mention the process of registration and recognition of colleges and their qualifications. We are therefore compelled to invoke the de facto doctrine, out of necessity, to protect the decisions of the Council from 25.4.2016 in order to prevent chaos and inconvenience to the public as well as the students and medical and dental colleges who fall under the regulatory control of PMDC and are directly effected by their decisions. The de facto doctrine is an established principle invoked by the superior courts to bring regularity and prevent confusion in the conduct of public business which may be created by persons not legally. entitled to perform such duties yet have continued to do so without any objection. Reliance is placed on Malik Asad Ali and others v. Federation of Pakistan through Secretary, Law, Muhammad Fahad Malik v. Pakistan Medical Lahore 91 and Dental Council (Ayesha A. Malik, J) Justice and Parliamentary Affairs, Islamabad and others (PLD 1998 SC 161), Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445), Chairman, Pakistan Broadcasting Corporation, Islamabad v. Nasir Ahmad and 3 others (1995 SCMR 1593) and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others (PLD 2003 SC 724). In this regard, we are of the opinion that the 2016 Regulations could not have been framed by the Council elected under the Amendment Ordinance since the Council did not exist in October 2016. However in order to give continuity to the regularity regime overseeing the admission process already under way and in order to protect the interest of the colleges and students, all decisions taken including the decisions of framing the 2016 Regulations shall remain intact and valid until they are not placed before, the competent authority in accordance with the law and Constitution for due consideration and approval. It is noted that we have deliberated on this aspect in the later part of the judgment. In saying so we clarify that the given position has to be corrected at the earliest in terms of this judgment.
16. The second argument made was with respect to applicability of the mandatory provisions of Article 154 of the Constitution which is reproduced hereunder: Article 154 of the Constitution: [(1) The Council shall formulate and regulate policies in relation to matters in Part II of the Federal Legislative List and shall exercise supervision and control over related institutions].
(2) The Council shall be constituted within thirty days of the Prime Minister taking oath of office.
(3) The Council shall have a permanent Secretariat and shall meet at least once in ninety days: Provided that the Prime Minister may convene a meeting on the request of a Province on an urgent matter.] [(4)] The decisions of the Council shall be expressed in terms of the opinion of the majority.
[(5)] Until [Majlis-e-Shoora (Parliament) makes provision by law in this behalf, the Council may make its rules of procedure.
[(u)] [Majlis-e-Shoora (Parliament) in joint sitting may from time to time by resolution issue directions through the Federal Government to the Council generally or in a particular matters to take action as [Majlis-e-Shoora (Parliament) may deem just and proper and such directions shall be binding on the Council.
[(4)] If the Federal Government or a Provincial Government is dissatisfied with a decision of the Council, it may refer the matter to [Majlis-e-Shoora (Parliament) in a joint sitting whose decision in this behalf shall be final Fourth Schedule of Federal Legislative List Part II Item 11 is reproduced as under: Legal, medical and other professions.
17. Part II of the Federal Legislative List provides for all those subject matters the supervision and control of which has been entrusted to the CCI. The CCI is a constitutional forum equally represented from the Provinces as well as from the Federal Government which takes decision on the basis of the opinion of the majority. The CCI is answerable directly to both houses of a Parliament in a joint sitting through the Prime Minister. In the case cited at Messrs Gadon Textile Mills and 814 others v. WAPDA and others (1997 SCMR 641) the role of the CCI was duly considered and the august Supreme Court of Pakistan concluded as follows:- The Council of Common Interests is an independent Constitutional body, with an important Constitutional role to play, answerable directly to the Parliament "without any interference from the Cabinet or the executive Government of the Federation.
The executive authority of the Federation stands, to the extent defined in Article 154, abridged, and to that extent, it stands vested in the Council; and The provisions of Article 154 are mandatory in character.
If a matter falls within the powers of the Council of Common Interests under Article 154, it must be placed before it. It is wrong to think that the function of the Council is to resolve disputes and that it is to be activated only when there is a dispute to be resolved. Secondly, the policy decision by the Council of Common Interests must precede any decision by the Federal Government or for that matter any of its instrumentalities such as the Authority.
Thirdly, if the Council has made a policy decision in the performance of its functions under Article 154, it is binding upon the Federal Government and the Authority. That is the necessary result of Article 154 being a constitutional provision and it being of mandatory character.
18.As per the 1962 Ordinance the mandate of PMDC is to establish uniform minimum standard of basic and higher qualifications in medicine and dentistry. In order to carry out its regulatory function PMDC must recognize all medical and dental qualifications granted by medical or dental institutions in Pakistan, which institutions must also be recognized by PMDC and should be included in the First Schedule of the 1962 Ordinance. Similarly PMDC recognizes medical and dental qualifications granted by medical or dental institutions outside of Pakistan which institutions should be included in the Second Schedule of the 1962 Ordinance. Furthermore all medical licenses or diplomas granted by medical institutions are stipulated in the Fourth and Fifth Schedule of the 1962 Ordinance. PMDC is also required to maintain a register of all medical and dental practitioners possessing qualifications which are recognized under the 1962 Ordinance. In terms of Section 29 of the 1962 Ordinance no one other than a registered medical or dental practitioner can practice medicine or dentistry in Pakistan. Therefore PMDC regulates the medical profession by ensuring that all medical and dental education in Pakistan is imparted by recognized medical or dental institutions which issue recognized degrees and thereafter registers the medical or dental practitioner giving them the right to practice medicine or dentistry in Pakistan. The objective of the law is therefore to ensure that the medical profession maintains the standards prescribed by PMDC and that entry in the medical profession is also as per the prescribed standards. Hence the emphasis of the law on recognizing institutions that impart medical education and training and award MBBS/BDS degrees is to ensure that a given standard is maintained in the profession right from the inception while admitting students to medical and dental colleges. PMDC sets the standards for education and admission in medical and dental colleges in order to ensure that the minimum threshold is maintained which is in furtherance of the ultimate progression and development of the medical profession. Since laws related to the medical profession are covered under Part II of the Federal Legislative List, anything done in relation thereto must be placed before the CCI as it is the constitutional forum which exercises and supervises control over the PMDC and regulates all policies with respect to the medical profession.
19. We were informed by the DAG that the concerned Ministry has never referred any matter to the CCI which includes all regulations made so far including the 2013 Regulations and the 2016 Regulations. The case of the Federation is that it is not obligatory for PMDC to have its regulations approved by the CCI as the CCI only regulates policies and not legislation. So far as regulations are concerned, since Parliament has delegated this function to the PMDC under Section 32 (2) of the 1962 Ordinance,. PMDC is competent to make its regulations without CCI approval. It was also argued that the CCI cannot act against the decision of Parliament which is the final authority so far as legislative competence is concerned.
20. We have heard both the parties and find that we are not in agreement with the stance taken by the Federation. The mandatory provisions of the Constitution are clear from a bare reading of Article 154 with Item 11 of Part H of the Federal Legislative List whereby all matters related to the medical profession have to be approved by the CCI. Hence we are of the opinion that all standards, guidelines and recommendations issued by PMDC in furtherance of its mandate, which is to regulate the medical profession, must be approved by the CCI. We are also of the opinion that the language of Article 154 of the Constitution requiring the Council to formulate and regulate policies in relation to matters in Part II of the Federal Legislative List means that there must be a deliberative process before the Council wherein the objectives of the relevant policy are discussed along with manner in which it is to be effectuated. This will include the frame work of any regulation because the regulations are the regulatory tools on the basis of which the objective of the law is achieved.
Furthermore Article 154 requires the Council to exercise supervision and control over related institutions meaning thereby that all decisions are supervised and controlled by the CCI.
Consequently the objectives and framework of any regulation with reference to the medical profession will fall within the control and supervision of the CCI. The wisdom behind this constitutional provision is to ensure that all Provinces participate and agree upon the standards set by PMDC to regulate the medical profession. The different standards of education within the country and the different mediums of instruction make it essential that there is a uniform standard for training doctors and dentists. Hence the creation of a federal authority to develop uniform standards ensures on the quality that can be expected from the medical profession. In doing so all Provinces must participate in the process so as to ensure that the standards set can be applied and that they will cater to the requirements of the medical profession as a whole throughout the country. Therefore if in furtherance of its policies regulations are framed they will have to be approved by the CCI. In this context, it is clarified that in the very least there must be a CCI approval of the policy on the basis of which the regulations were framed. Notwithstanding the fact that Section 33 of the 1962 Ordinance authorizes PMDC to make regulations with respect to the subject matter provided in the stated section, the constitutional mandate in Article 154 must be followed. By ignoring the constitutional mandate the right given to the Provinces to participate in the decision making where minimum standards are to be set is denied and matters which in the wisdom of the Constitution are considered to be crucial and vital for the Provinces has not been considered by them. Consequently PMDC has not been able to achieve its objective successfully as it has never worked on the basis of a consensus with all the Provinces. This fact is highlighted by the diverse manner in which PMDC carries out its regulatory function in the Provinces. As per the data provided to us the centralized entry test has been carried out in the Province of Punjab since 2008. It was introduced in the Province of Sindh for the first time this year and was immediately challenged. The matter is now sub judice before the Sindh High Court. So far as KPK and Balochistan are concerned the representative of PMDC Professor Dr. Aamir Bandesha, Member, Executive Committee of PMDC informed us that said Provinces have not started the centralized entry test through an affiliating university as yet. Even with respect to the dispute before us regarding a centralized admission program, he clarified that it is only being implemented in the Punjab and nowhere else. Hence we find that PMDC has not been able to successfully regulate the admission process because the relevant Ministry has never taken the approval of the CCI and has neglected to consider the opinion of the Provinces or the stakeholders nor has it taken account different education systems and standards available on the strength of which students ultimately, through a common pool, all compete for admission in medical and dental colleges. Even otherwise we note that the participation of the Provinces is meant to be without any interference from the cabinet or the executive government of the Federation, therefore we are of the opinion that Mustafa Impex (supra) is not applicable to this case as the said judgment declared that the executive authority of the Federal Government must be exercised through the Cabinet and in this case the matter falls within the domain of the CCI and not that of the Cabinet.
Challenge to the Regulatory Function
21. The Pakistan Medical and Dental Council is a body corporate established under Section 3 of the 1962 Ordinance. It is the regulatory body responsible for establishing uniform minimum standards of basic and higher qualifications in medicine and dentistry. Not only are all medical and dental institutes recognized by PMDC but essentially in terms of the 1962 Ordinance, the medical or dental qualification must also be recognized by PMDC. In doing so any aspirant who wants to provide medical and dental education must apply to the Federal Government through the PMDC for recognition. The Federal Government after consulting the Council may grant recognition to the medical or dental institution, for such period and upon such conditions as may be specified.
Section 33 of the 1962 Ordinance gives PMDC the power to make regulations to carry out the purpose of the 1962 Ordinance which includes making regulations for providing uniform minimum standard of the courses for training and for obtaining graduate and postgraduate medical and dental qualification which are included in the First, Third and Fifth Schedule. It also requires the Council to set the minimum requirement for the content and duration of the course to study and to prescribe the conditions for admission to courses of training. The Council is also required to prescribe the minimum qualification and experience required for teachers in the medical and dental institution as well as to set the standards of examination and the matter related thereto including the qualification and experience required for the examiners for professional examination.
The Council is therefore, required to make regulations which will set a uniform standard in medical education so as to achieve standardized education in medicine or dentistry throughout the country. In 2012, the 1962 Ordinance was amended by the Medical and Dental Council Amendment Act, 2012 ("2012 Act") in terms of which Section 33 of the 1962 Ordinance was amended to include prescribing regulations which lay down the criteria for university affiliation, conditions and requirements for recognition and continuation of recognition and for the grant of status of a teaching institution.
22. The legislature in its wisdom created the PMDC to ensure that uniform standards were followed throughout the country by institutions imparting training in the field of medicine or dentistry.
Section 33 of the 1962 Ordinance authorizes the PMDC to make regulations in furtherance of this objective. A bare review of Section 33 reveals that setting minimum standards for qualification in medicine and dentistry means prescribing the requirements for the course content and the duration of the courses, setting the criteria for examination/professional examination and all related requirements including prescribing the eligibility criteria for examiners and the teaching staff of the institutions. Effectively PMDC is required to structure education in the field of medicine and , dentistry by planning, implementing and evaluating medical programs, setting the curriculum and developing programs for continued professional development. It also involves setting procedures related to assessment, examination, appraisement and certifying the completion of the training program. Essentially the standards serve as the regulatory tool for improving the quality of the medical profession. In order to ensure that standards are maintained the 1962 Ordinance requires that the institution as well as its degree be recognized and registered with thee. PMDC. This requirement is equally applicable to qualifications granted by institutions outside of Pakistan. It also requires all medical and dental practitioners to be registered with the PMDC. Recognition status is a quality measure which confers the understanding that the quality of medical education is a recognized institution is as per required standards. Adherence to the PMDC standards is therefore the first lens through which quality can be assessed and improved. It also helps to safeguard the medical profession and the workplace by ensuring a minimum standard of entry into profession.
23.The 2016 Regulations have been in dispute by students as they make the MDCAT exam mandatory and does away with the SAT H option for local A level students. It is the case of the students that the 2013 Regulations allowed the SAT II exam in lieu of the MDCAT exam. The Appellants before this Court filed various different writ petitions challenging the 2016 Regulations before the learned Single Judge. The impugned judgment dismissed the petitions on the ground that the Appellants had sufficient knowledge of the 2016 Regulations, which were notified on 27.10.2016. The impugned judgment also finds that under the 2013 Regulations, A level students could not get admission on open merit seats in private medical and dental colleges on the basis of SAT II result. As per the judgment the practice followed by the private medical and dental colleges of admitting A level students CM the open merit seats was contrary to Regulations 5(2)(c) of the 2013 Regulations. The judgment finds that SAT II examination was reserved for quota seats only. The judgment also finds that there is no vested right of the students on account of the 2013 Regulations on the basis of which the Appellants before the Court claim admission in private medical and dental colleges on the basis of SAT II result.
24. The relevant provisions of the 2013 Regulations are reproduced hereunder:-
3. Rules of the Central Entry Test (1) An entry test shall be mandatory for admission in MBBS/BDS course in Pakistan and shall be taken of only the eligible candidates. The eligibility criteria of the candidates to sit in the entry is given in these regulations.
(2) The Provincial Government shall make arrangements for holding a central entry test for admission in MBBS/BDS for both private and public institution in their respective provinces in order to determine the order of merit and no admission shall be given to the resident of that Province without it unless specified below. The Provincial Government shall by notification constitute the Central Admission Authority for admission to the Public Colleges of that Province. At least two paper setters from A-level teaching institutions shall be co-opted in the paper setting team by the provincial/NTS authorities. The entry test of one Provincial Authority/NTS shall be acceptable for admission in other provinces in private colleges and public colleges in territories not conducting their own entry tests. The. Provincial Central Entry/NTS test shall be held as soon as possible after declaration of F. Sc. result by the Higher Secondary Education/Intermediate Boards. The Provincial Authority/NTS shall complete all formalities, including holding of the entry test and declaration of its result for admission of public medical and dental colleges before 31st October each year or within four weeks of declaration of the result of F.Sc by the Higher Secondary Education/Intermediate Boards whichever is earlier so that the final merit list of public colleges reaches PM&DC before 31st October. The Provincial Central Admission Authority/NTS shall form the final merit for admission in medical and dental colleges by after giving due weightage to Matric/equivalent, F.Sc. Intermediate/HSSC equivalent and the entry test marks as given in these regulations.
(3) Private medical and dental institutions in all provinces shall advertise for admission of students only after the determination of final order of merit by the respective provincial testing/admission authorities or 31st October whichever is earlier. They will not conduct their own entry test and shall form final merit by utilizing the Provincial/Government/NTS test result in their province/territory, however they may conduct the aptitude test and interview as per these rules.
(4) For admissions in medical and dental institutions located in the Islamabad Capital Territory, a central entry test shall be held by the Federal Government under the arrangements of NTS.
(5) All admissions for both public and private colleges shall be completed by 30th November each year and lists of admitted students shall be submitted to PM&DC for their registration by PM&DC.
Students admitted after due date shall not be registered by PM&DC.
5. Minimum Academic Requirements for Admission in the MBBS/BDS Course:
(1) .................
(2)Admission on Merit Seats/Pakistani Seats in Private Colleges and Foreign Seats/Self Finance Seats in Public and Private Colleges: a. Admission in a private college and in a public medical or dental college on reserved seats/self finance/special seats/ quota seats shall given only to a candidate who has passed an examination equivalent to intermediate level of Pakistan from a foreign university or examining body or foreign education system with three subject out of which Biology and Chemistry are essential subjects with 60 % marks in aggregate as certified by IBCC to be equivalent to F.Sc./HSSC/intermediate. The equivalence by IBCC in the above terms shall be accepted in aggregate and the candidate shall be eligible for admission the MBBS/BDS course with any study group whichever the IBCC may write.
The candidate shall have to appear in the provincial entry test or in lieu of the entry test of the admission authority, the candidates is required to have passed SAT H examination score with minimum 550 marks in each of the three subjects of which two have to be Biology and Chemistry or MCAT with minimum aggregate score of 24. The candidate is required to present a valid TOEFL or IELT with a minimum score of 500 or 5.5 only if the medium of instruction of study two years prior to application for admission/entry test is not English. An alternate-to TOEFL and IELT is a certification by NUML Islamabad after a one year English language course. b. No admission shall be given in MBBS/BDS course on the foreign admission/self finance seats or any other such Government or private scheme, without an entry test or the requisite SAT II examination score with minimum 550 marks in each of the three subjects of which two have to be Biology and Chemistry or MCAT with minimum aggregate score of 24 and other conditions laid down in 5(2) a above. c. Upto 15% of seats in college shall be allowed to be foreign admission/self finance. The foreign admission shall be filled only by person who meet the Council criteria for admission on such seats.
If foreign admission/self finance seats are left vacant in any college, a local student can be admitted on such seat subject to fulfillment of eligibility criteria for admission as given in regulation 5(2)a above.
Eligibility Criteria for Admission on Foreign/Overseas Seats: Background A. The principle is to encourage foreign students and ex-pats to explore and come for their medical and dental education to Pakistan which offers a wide range of exposure to medical issues and a very cost effective and time effective completion of medical and dental education. Countries like India and Far East-are rapidly offering facilitation to students who wish to explore the .possibility, a huge Diaspora of Pakistani origin overseas families wish for their children to get this education in Pakistan but are forced to look elsewhere because of various hurdles and restrictions in our system.
This deprives the students the opportunity of pursuing their profession of choice and the foreign remittance that is so dearly needed to boost our economy. One classical example is the rigid stance of the IBCC for various subjects and undue underscoring of individuals coming from abroad.
There are well reputed and well established international examinations which test the competency of students and are use world over to determine eligibility for admission to university programs, including medicine and dentistry. These examinations are significantly superior to many of our local systems and are much more discriminatory in identifying high performing students.
Based on the above points following eligibility criteria are laid down: All students applying on foreign students quota will be eligible to sit in the entry test for medical and dental seats if they have any of the following prerequisites. a. A SAT-II score of equal or more than 550 in three subjects two of which should be biology and chemistry, the third may be a science or of a humanities subject OR b. A score of greater or equal to 24 in the MCAT exam.
OR c. IBCC equivalence certificate with a score of equal to or greater then 60%.
2. Such students will sit in an entrance test offered by the institution based on institutional practice and priorities (these might be composed of various science subjects, English language and aptitude).
The institutes will utilize the scores in the test and the eligibility exams scores as per their policies to determine the merit order so that the most deserving candidates are selected.
Note: This option will not be available to students who have completed their education within Pakistani systems within Pakistan or overseas, who will need to present their intermediate scores or IBCC equivalence certificate.
25. In terms of Regulation 3(1) the MDCAT exam is mandatory for admission in MBBS/BDS courses be it public or private colleges. The MDCAT is organized by the Provincial Government through a Central Admission Authority who draws up the final merit list in public colleges as per the regulations. In terms of Regulation 5(1) of the 2013 Regulations, the minimum academic requirement for admission in MBBS/BDS for admission in public colleges is that a candidate has passed the F.Sc/HSSC examination (premedical group) securing 60% marks in aggregate or a candidate who has passed an exam equivalent to F.Sc/HSSC exam from a foreign university or examining body or foreign education system with three subjects out of which biology and chemistry are mandatory with 60% marks in aggregate as certified by the IBCC to be equivalent to the F.Sc. Therefore, a candidate who his passed the F.Sc or A level is eligible for admission, on merit in public colleges. In terms of Regulation .5(2) admission in private and public colleges on merit seats, foreign seats, self finance seats can only be given to candidates who have passed an exam equivalent to F.Sc from a foreign university or examining body or education system with three subjects out of which biology and chemistry are essential with 60% aggregate marks. Candidates have to appear for the MDCAT or in lieu thereof be admitted on the basis of their SAT II exam score with a minimum of 550 marks. Therefore, for the purposes of admission in medical or dental colleges on merit seats the MDCAT exam or in lieu thereof the SAT II option was available. It is noted that under the 2013 Regulations if the 15% reserved seats are left vacant then the remaining seats can be admitted upon as per the criteria given in Regulations under 5(2) meaning thereby on the open merit. We are therefore of the opinion that the SAT II option was available for local A Level students under the 2013 Regulation. The 2013 Regulations also provide for the criteria of candidates applying on the foreign seats. The general principle was to encourage foreign students and expatriates to pursue medical and dental education in Pakistan. The eligibility criteria given was again based on the SAT II score. The Note added provided that this option will not be available to students who have completed their education within Pakistan or overseas who will need to present their intermediate score or IBCC equivalence certificates. It is on the basis of this Note that the learned Single Judge held that the 2013 Regulations do not permit local level students to get admission on the basis of their SAT II score. We are of the opinion that he Note is applicable with respect to the eligibility criteria for admission on foreign seats meaning thereby that the criteria given will not be applicable to students who have studied within Pakistan an examination equivalent to F.Sc from a foreign university or examining body or foreign education system.
Therefore, we find that the interpretation given to the 2013 Regulations in the impugned judgment is not in accordance with the reading of the 2013 Regulations and the learned Single Judge has erred in holding that a local A level student could not opt for the SAT II exam for seeking admission in medical colleges on open merit as this option was available only to the extent of the 15% reserved seats. It is also an admitted fact between the parties that local A level students were admitted to private medical and dental colleges on the strength of their SAT II score and that PMDC never took any notice of this practice nor did it ever suggest any other understanding of the 2013 Regulations.
We believe that this is relevant as PMDC has alleged that medical colleges were admitting local A level students in contravention to the regulations and have further justified and defended the changes made by virtue of the 2016 Regulations due to non-compliance of private medical and dental colleges of the 2013 Regulations. It appears that PMDC deemed it necessary to change the entire process of admission because it was unable to regulate the private medical and dental colleges to ensure compliance of its admission criteria. This is so notwithstanding the fact that the PMDC can take penal action against an institution for not complying with its regulations. In this regard PMDC may call for information from the medical and dental institution regarding the process of admission in order to ensure that the given Regulations are being followed. Furthermore, in terms of Section 22 of the 1962 Ordinance if a recognized institution is violating any provision of the Ordinance or the Regulations made thereunder the PMDC can take steps to withdraw the recognition.
26. The 2016 Regulations changed the eligibility criteria for admissions in medical and dental colleges. The relevant provisions are reproduced hereunder:
7. Eligibility criteria for NOBS and BDS courses in Pakistan and abroad:- (1) Notwithstanding anything contained in any other regulations of the Council no Pakistani student shall be eligible for admission to medical and dental courses in Pakistan or abroad and shall not be registered with the Council as student or practitioner, as the case may be, unless he fulfills the following eligibility criteria namely:
(a) he must have obtained minimum sixty percent marks in higher secondary school certificate
(HSSC) or F.Sc (Premedical) or equivalent examination having minimum twelve years of education; or
(b) he must have passed, obtaining minimum sixty percent marks in aggregate in, an examination of a course from a foreign university or examining body or foreign education system in at least three subjects i,e, compulsory subjects of biology, chemistry and either physics or mathematics and such course must have been duly certified by the inter-boards committee of chairman (IBCC) as equivalent to higher secondary school certificate (HSSC) or F.Sc or intermediate level of Pakistan.
(2) Foreign or dual nationality holders or overseas Pakistani students desirous of taking admission in MBBS or BDS courses against open merit or foreign quota seat in any public or private institution of Pakistan must have passed, obtaining minimum 60% marks in aggregate in an examination of a course from a foreign university or its examining body or its education system in at least three compulsory subjects of biology, chemistry and .either physics or mathematics and such course must have been duly certified by IBCC as equivalent to HSSC, F.Sc or intermediate level of Pakistan.
Equivalence by IBCC under sub-regulations (1) and (2) shall be accepted in aggregate and the candidate shall be legible to take the admission test for MBBS or BDS course with any study group irrespective of the recommendations of the IBCC.
(4) Without prejudice to any other eligibility criteria under these regulations, a foreign or dual nationality student or overseas Pakistani students desirous of taking admission to MBBS and BDS course against open merits or foreign quota or self finance seats in any public or private institution of Pakistan shall have to meet the following additional eligibility criteria, namely:
(a) English language proficiency test e.g. valid TOEFL or IELTS with a minimum score of 500 or 5.5 or a certification by National University of Modern Languages (NUM L) after one year English language course; and
(b) candidates having foreign or dual nationality or overseas Pakistani students and qualified from abroad may also apply if they have passed a foreign SAT II examination with minimum 550 marks in each of the three subjects including compulsory subjects of biology, chemistry and either physics or mathematics or a foreign MCAT with minimum aggregate score of 24 as an alternative to provincial or regional admission test.
8. Self-finance seats and foreign quota seats.---(1) ..... (2) (3) No candidate shall be eligible for foreign quota seats in public and private medical and dental institutions under sub-regulations (1) and (2) unless he holds a permanent foreign nationality or dual nationality or overseas Pakistani students and who has physically studied and passed secondary school certificate (SSC) and HSSC passing 12th grade examination or equivalent from outside Pakistan during his stay abroad and having a certificate from the institution last attended to this effect.
(4)Where any set of foreign or self-finance quota remains vacant due to unavailability of eligible candidates or otherwise, it shall stand transferred to open merit quota and the student shall be charged fee and charges prescribed for open merit seat. An ineligible candidate shall not be admitted against such seats.
(5).................
9. Medical and dental institution admission test.--(1) Unless otherwise provided in these regulations, no candidate shall be admitted to any public and private medical and dental institution unless he, in addition to other eligibility criteria under these regulations, passes admission test for this purpose.
27.In terms of the 2016 Regulations the eligibility criteria for MBBS and BDS courses in Pakistan requires F.Sc/HSSC (pre-medical) or students having passed an examination from a foreign university or examining body or foreign education system in three subjects of which biology and chemistry are mandatory and physics and mathematics as the third subject duly certified as equivalent to F.Sc/HSSC by the IBCC. In terms of Regulation 7(4) foreign or dual national students or overseas Pakistani students can rely on their SAT II score with minimum 550 marks in each of the three subjects amongst other things. Regulation 7(3) further provided that no candidate shall be eligible for foreign quota seats in public and private medical dental institutions unless he holds a permanent foreign nationality or a dual nationality or is overseas Pakistani who has physically studied outside of Pakistan having a certificate from the institute last attended to this effect. This provision changed the earlier provision which all owed local A level students to apply on the basis of the SAT II score in lieu of the MDCAT.
28.During the course of arguments the counsel for the students explained that local students who have studied A level should be given the option to get admission on the basis of SAT II score simply because there is a vast difference in the curriculum of F.Sc/HSSC with that of A level. Furthermore since the MDCAT exam is based totally on the F. Sc syllabus it puts the level students at a disadvantage. In this regard, the impugned judgment finds that the MDCAT exam is designed to cater for both F. Sc students as well as A level students and no prejudice is made out to the A level students. The learned Single Judge called for a list of paper setters and the question answer sheets on the basis of which be concluded that the content of the MDCAT exam covers F.Sc and A level syllabus and that the A level students are not placed at a disadvantage. The same arguments were advanced before us and comparative charts were placed before us along with question papers and the text books of both F.Sc and A level by which the students demonstrated that more than 80% of the MDCAT is based on the F.Sc syllabus and less than 20% is based on the A level syllabus. It was also asserted that the A level students having achieved high merit in their 0 level and A level lose marks on the basis of the equivalence formula applied by the IBCC which is then compensated by relying on the SAT II score for entry in medical and dental colleges. If the students are compelled to take the MDCAT exam they are placed at a further disadvantage of havirtg to then study for the MDCAT exam independent of their A level in order to compete in the entry test. It is their case that this is unfair and does not allow them to compete on a level playing field with the 'F.Sc students. It is also their case that the PMDC should consider the various different systems of education offered in the country and place all students on equal footing for the purposes of entry in medical and dental colleges.
29. The Appellants and Petitioners have also relied upon several documents to show that after the issuance of 2016 Regulations when the same Were challenged before the Court, PMDC entered into negotiations with students in order to resolve the dispute. Consequently local A level students who appeared for their final exam in June 2016 were given admission on the basis of the SAT II exam on the understanding that since the 2016 Regulations were issued in October 2016 they would not apply to the students who graduated in June 2016. PMDC issued a notification on 28.11.2016 after an emergent session in November 2016 and allowed local A level students admission in medical and dental colleges on the basis of their SAT II result. PMDC does not deny offering the waiver, however it is their case that the SAT II score was only relevant with reference to the foreign quota seats and not for the open merit seats. However, in terms of the 2013 Regulations and on the basis of the data placed before us it is clear that local A level students were given admission on open merit seats on the basis of their SAT II score as it could be done under the 2013 Regulations. The learned Single Judge denied. the Appellants admission on the basis of their SAT II score given that these students had sufficient knowledge of the 2016 Regulations and given, that the 2013 Regulations did note permit admission on open merit on the basis of SAT II score in lieu of the MDCAT exam. We, however have a slightly different view. Although the Appellants and Petitioners before us had knowledge of the 2016 Regulations in October 2016 that does not amount to a reason to deny them a benefit that others in similar position were allowed. The A level program is a two year program and the students before the Court completed one year of their A level in October 2016 when the 2016 Regulations were issued. By this time they had taken several steps in progression of their desire to get admission in medical and dental colleges and had planned their two years post their 0 level exam in order to achieve the desired merit. We find that these students are entitled to be treated in the same way as the students who graduated in June 2016 as a vested right had accrued in their favour under the 2013 Regulations. These students had taken decisive steps before the promulgation of the 2016 Regulations such as the SAT H exam in preparation for admission to medical and dental colleges under the 2013 Regulations. We also find that even though the Appellants sat for the MDCAT in October, 2017, it was done out of abundant caution to save their future careers and as such does not mean that they had accepted the 2016 Regulations as they were under challenge before the learned Single Judge. Even otherwise due to the challenge to the 2016 Regulations which started in October 2016 there was confusion as to how the 2017-18 admissions would take place. Therefore we grant the same benefit to the Appellants/Petitioners before us in order to protect their interests and future careers as medical and dental practitioners.
In this regard we note that most students who opt to enter the medical profession decide to become doctors very early in their lives. Preparing for admission in medical and dental colleges is not a random or last minute decision but requires planning and preparation with years of hard work. Furthermore entry into colleges being so competitive requires that this is a thought through decision. Students are therefore eager and highly charged in their desire to get admission in medical and dental colleges and plan for the same very early in life.
30. As the primary function of PMDC is to create a uniform standard in medical education it is also necessary to look at the manner in which PMDC brought about the 2016 Regulations. They were notified on 27.10.2016 which in our opinion is surprising given that as per the 2013 Regulations and the 2016 Regulations the entire admission process commences in October and is finalized in November. It appears that the PMDC thought it advantageous to change or improve the admission process with no notice to the stakeholders, just before the MDCAT exam was to take place.
Naturally the regulations were challenged and by order dated 19.12.2016 were suspended allowing the admission process to continue under the 2013 Regulations. In our opinion this was a highly irresponsible decision on the part of PMDC which should have thought about the best interest of the students and the devastating effect changes would bring not to mention the confusion it would cause to the admission process. It is unfortunate that PMDC being responsible for the future of candidates interested in pursuing a career in medicine or dentistry has shown very little interest in the motivation and merit that these candidates bring when they apply for admission in medical and dental colleges. Equally disturbing is the fact that PMDC while devising uniform standards did not cater to the various different systems and standards in education up to F.Sc level or its equivalent and instead has made this an issue of the "haves and have not". By creating standards a system must be put in place which enables all students to compete equally for admission in medical and dental institutions to ensure that the best students were selected. PMDC being the standard making authority cannot give preference to one particular system of education over the other as this is not its mandate. To the contrary it is required to ensure that all candidates are able to compete for admission on equal footing, hence the requirement to create a uniform criteria for admission. In this case since there are two definite systems of education on the strength of which students apply for admission to medical and dental colleges it is necessary to balance the eligibility criteria for admissions as well as the centralized entry test to ensure that no one system is put to a disadvantage. We therefore are of the view that the Appellants/ Petitioners have made a compelling argument with respect to their disadvantaged position which should be considered compassionately by PMDC to ensure that ultimately the best students enter into medical and dental institutions. In this regard we note that the court in its constitutional jurisdiction cannot replace the opinion of experts by commenting on the content of the MDCAT exam. The learned Single Judge therefore has erred while expressing his satisfaction that students of A level are not placed in a disadvantaged position in relation to those who have undergone the F.Sc exam. This matter is best considered and decided by the forum which is authorized to make policies on such issues.
31. This brings us to the challenge raised by PAMI on behalf of private medical and dental colleges against CAP, consequent to which they do not have the ability to admit students in their medical and dental institutions. It is their case that PMDC cannot take over the right of admitting students and that this function is regulated by the UHS which is the affiliating university. We are told that there are three affiliating universities in the Punjab for medical and dental colleges. The question before us is whether prescribing the conditions for admission allows PMDC to take over the right of colleges to choose their students as per the eligibility criteria and replace it with a centralized system managed by the UHS. As we have already noted that all medical and dental institutions are recognized and registered with the PMDC. Private medical and dental colleges have to be affiliated with a recognized degree awarding university which in this case is the UHS. The UHS was established under the University of Health Sciences, Lahore Ordinance 2002 ("2002 Ordinance") and Section 4 provides for the power to affiliate or disaffiliate colleges and other medical institutions in the prescribed manner. Section 37 provides for the prescribed manner which medical institutions are required to follow for affiliation with UHS. Section 34 of the 2002 Ordinance provides that Statutes may be made to prescribe and regulate the affiliation and disaffiliation of medical institutions and related matters. The Statutes for Affiliation of Medical Institutions, 2011 provide for the terms and conditions on which affiliation to medical colleges is granted. In terms of Clause 13' admissions are to be made in accordance with the eligibility criteria, notified by the UHS and any one admitted in violation of the prescribed criteria can be restrained from making admission for the next academic session. The clause further provides that admission shall not.be in excess of the approved intake and private medical and dental colleges shall admit students only after the final order of merit for public colleges is determined. Further that no institution in the private sector can charge a fee more than that prescribed by the UHS and any violation against the Statutes can be reported to the Syndicate for action in exercise of power under Section 27 of the 2002 Ordinance.
Therefore the right of granting admission to students is a matter inter alia between the affiliated colleges and the UHS. Allowing the affiliated college to admit students on the given criteria in terms of the permissible intake is a right that the college has whilst it is affiliated with the UHS. This right is given by UHS to the affiliated college under the statute for the duration of the affiliation. PMDC has nothing to do with this right nor does the right to admission in private colleges fall within its regulatory control. As per its mandate PMDC is required to prescribe the conditions for admission in courses of training in medical and dental colleges which criteria will be followed by the UHS. The regulations that were issued from time to time in order to achieve this purpose essentially provided the eligibility criteria for admission, the timeline on the basis of which the admission process is to commence and end and the order of merit while allocating weightage to the components that make up the merit. Hence, the admission process is regulated by the criteria laid down which ensures that entry into medical and dental colleges is not below the given merit, in terms of the prescribed process within the given time. The counsel for PMDC argued at length to explain the manner in which private colleges were exploiting students by charging a donation from them in order to guarantee admission. He argued that in doing so private colleges were compromising the merit set out by PMDC and admitting students well below the merit while students who had achieved the merit were unable to get admission in private colleges because they could not afford to pay the donation. A large number of documents were placed before us to show the letters that were issued by PMDC requiring colleges to implement the 2016 Regulations. We have gone through the documents and find that they are simply letters issued from October 2016 informing different colleges of the 2016 Regulations and requiring them to comply with the same. Despite the numerous allegations raised against private colleges before us neither PMDC nor UHS were able to show a single letter or cite a single example of any action taken against any college for allegedly violating the prescribed merit or the admission process.
32. From what has been argued before us and is evident as per the minutes of meeting of the Standing Committee of the Ministry of Health Services Regulations and Coordination held on 16.6.2016, one of the prime factors for creating a centralized admission program was to control the practice of overcharging students in the name of donation by private colleges. After due consideration of the arguments and the record before us we are of the opinion that there are three fundamental flaws in the CAP as introduced under the 2016 Regulations. First that it was done in haste, without consulting stakeholders; second that it was done without considering the rights of the students to choose a college of their liking and convenience and finally it was done without considering the fact that both PMDC and UHS have sufficient powers to curtail and prevent violations of the 1962 Ordinance or the regulations framed thereunder. If at all the issue is to control the merit given by the PMDC while admitting students in private colleges clearly there were more effective ways of achieving this purpose. Notwithstanding the aforesaid we are also of the opinion that granting admission in private colleges is a condition regulated under the Statute for Affiliation of Medical Institutions under the 2002 Ordinance and does not fall within the domain of the PMDC.
While PMDC can provide the eligibility criteria and the standard of merit on which admissions should be granted, it cannot take away the right to admit students in private colleges. Not only is this beyond the mandate of the 1962 Ordinance it also encroaches upon the fundamental right of private colleges to carry out their business and admit students of their choice. We are also of the opinion that in order to facilitate the regulatory requirement of creating standards the legislature delegated its authority to prescribe for the conditions for admissions in medical and dental institutions. In doing so PMDC can make regulations setting out the conditions for admission, meaning that it can set the criteria on which admissions should be made but the law maker in its wisdom did not require PMDC to control the admissions of private institutions in totality because in order for the medical profession to develop and grow both public and private colleges have to play their roles. In this regard, the Federal Government has allowed the establishment of private medical and dental colleges to meet the growing demand. Furthermore by delegating the authority to prescribe the conditions for admission and affiliation, regulatory Control is given to PMDC through which it can fulfill the mandate of the 1962 Ordinance.
Again the law maker in its wisdom deemed it necessary to allow PMDC to set the criteria for admission so that the criteria can be adjusted as per the demands of the market. It is a facilitative power given to PMDC to retain control over the medical profession and does not allow PMDC to go beyond the intent of the primary legislation nor does it allow PMDC to deal with any subject matter not specifically enumerated in the enabling statute. The power to make rules being delegated legislation is simply for the advancement of the basic objective of the law and no more. It is often seen that Parliament delegates its legislative function to regulators where it may not have the required expertise on technical matters or it may be unable to respond to change in a timely manner or to the specific needs. Therefore it gives flexibility in the application of the law by delegating its power to legislate. This Court has already held I in the case cited at Independent Newspapers Corporation (Pvt) Ltd and others v. Federation a Pakistan and others (PLD 2017 Lahore 289) that whenever there is delegated legislation the regulator may run the risk of overstepping its boundary and going beyond the authority delegated to it. That is why superior courts need to examine the question as to whether the rules and regulations under the statute are inconsistent with the statute itself and whether the rules and regulations achieve the purpose of the statute.
Reliance is also placed on Khawaja Ahmad Hassan v. Government of Punjab and others (2005 SCMR 186) wherein the august Supreme Court of Pakistan held that: The subordinate power of framing rules granted by the statute cannot be exercised to override the expression provisions of the statute itself. It is well settled by now that a statutory rule cannot enlarge the scope of the section under which it is framed and if a rule goes beyond what the section contemplates, the rule must yield to the statute. The authority of executive to make rules and regulations in order to effectuate the intention and policy of the Legislature must be exercised within the limits of mandate given to the rule making authority and the rules framed under enactment must be consistent with the provision of the said enactment. The rules framed under a statute, if are inconsistent with the provisions of the statute and defeat the intention of Legislature expressed in the main statute, same shall be invalid.
33. In the case cited at Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt) Ltd. Peshawar and others (2003 SCMR 370) the august Supreme Court of Pakistan has held that statutory rules and regulations cannot enlarge the scope of the section under which they have been framed. The authority must make the regulations in order to effectuate the intention of the legislature within the limits of the mandate given to the authority.
The rules if inconsistent with the provisions of the statute and defeat the intention of the legislature shall become invalid. The rule making authority cannot clothe itself with powers that has not been given to it. On the basis of the dicta of the Superior Courts we are of the opinion that Regulation 9(6)(7)(8) and (11) of the 2016 Regulations are ultra vires the mandate of the 1962 Ordinance and the Constitution, therefore liable to be struck down.
34. Counsel for the UHS also relied upon various judgments of the august Supreme Court of Pakistan to urge the point that time and again students have challenged the criteria set by the PMDC with respect to admission in medical and dental colleges and the court has repeatedly disallowed such challenges holding that the PMDC is competent to set the criteria and merit for admission into medical and dental colleges. Reliance was placed on 2004 SCMR 1570 (supra) in which the court held that there was no vested right to medical colleges nor was the authority debarred from setting a maximum age limit for taking such courses. This is purely an administrative matter relating to a policy decision of the government which the courts are always reluctant to interfere with. Reliance was also placed on 2012 CLC 1071 (supra) in which the court held that the weightage criteria set by the PMDC for admissions falls within the domain of their regulatory function and no vested right was available to students on the basis of any previous weightage criteria. The court also found that the regulations framed by the PMDC are neither arbitrary nor discriminatory and required weightage to be measured through mathematical calculation and exactness. We have gone through the cases relied upon and find that they are distinguishable from the instant case. In this case the students do not claim any quota or special treatment nor do they require that the admission criteria be changed. They simply require equal and fair treatment under the law given that the 2016 Regulations changed in October, 2016 when they had completed one year of their A level and hence are entitled to the same treatment as the A level students of June, 2016. Even otherwise, the students have demonstrated the havoc caused when policies are changed without any thought on the rippling effect it will have. Any change in policy must be made keeping in mind the rippling effect that change will bring in the months or years to come. In this case PMDC failed to take into consideration the impact of the 2016 Regulations on the students who were in the midst of their A level in October 2016 and had taken decisive steps under the 2013 Regulations. Given that the 2016 Regulations cater to the admission process for medical and dental colleges and given that the PMDC regulates the admission criteria it was incumbent upon them to bear in mind the various different systems from which candidates would eventually come to take the MDCAT exam and the impact on those students. It is on account of such sudden decisions, without any consultative process that gives rise to unnecessary litigation and in this case unpleasant litigation initiated by students fighting for a chance to compete for admission in medical and dental colleges. As the standard making authority, PMDC must consider and appreciate the time and effort put in by students to compete for admissions in medical and dental colleges because at the end of the day the purpose of the standards they set is to regulate the admission process and ensure that the prescribed merit enters into the profession.
35. For the above reasons we hold and declare as under:
(i) that the Council constituted under the Amendment Ordinance ceased to exist as of 25.4.2016 with the lapse of the Amendment Ordinance and the constitution and composition of the Council as under the 1962 Ordinance stood revived as on 25.4.2016. However the constitution of the Council and all acts, orders and decisions including the 2016 Regulations taken by the Council after 25.4.2016 shall remain protected under the de facto doctrine until the legal Council is constituted as per law;
(ii) that the Federal Government shall constitute the Council in terms of Section 3 of the 1962 Ordinance within three months' time; (iii)that the existing Council shall carry out the day to day business of PMDC till the constitution of the new Council and shall not frame any new regulations or amend existing regulations under the 1962 Ordinance;
(iv) that Regulations 9(6)(7)(8) and (11) of the 2016 Regulations qua the centralized admission program is beyond the authorized mandate of PMDC under the 1962 Ordinance and inconsistent with the intent of the stated Ordinance, hence declared to be without lawful authority and of no legal effect, therefore struck down;
(v) that students who completed their A level in June 2017 are entitled to be admitted into medical and dental colleges on the basis of their SAT II score for the 2017-18 session;
(vi) that all decisions of the Council post 25.4.2016 including the 2016 Regulations along with the issues raised by private medical and dental colleges as well as students be placed before the CCI, to review the standards and criteria set under the 2016 Regulations to ensure compliance of the Constitution within the next six months;
(vii) as a future course of action PMDC will work under the supervision and control of the CCI and all policies and regulations prepared by them shall be approved by the CCI and will be binding if they are compliant with the constitutional mandate;
(viii) For the above reasons this appeal along with connected appeals mentioned in Schedule A and the writ petitions mentioned Schedule B are allowed and the impugned judgment is set aside.
(JAWAD HASSAN) (AYESHA A.MALIK)
JUDGEJUDGE Schedule-A Details of ICAs mentioned in judgment dated 7.12.2017 passed in ICA No,98703/2017 Sr. No ICA No, Parties Name 1 98703/17 Muhammad Fahad Malik v.
Pakistan Medical and Dental Council etc. 2 103604/17 Taha Ahmed Tarin v. Pakistan Medical and Dental Council etc. 3 103163/17 Hubaib Haider v. Federation of Pakistan etc. 4 Muhammad Osama v. Federation of Pakistan etc.103157/17 5 103166/17 Shaniyaal Shahid v. Federation of Pakistan etc. 6 101133/17 Ahmad Iqbal v. Pakistan Medical and Dental Council etc. (JAWAD HASSAN) (AYESHA A.MALIK)
JUDGEJUDGE Schedule-B Details of writ Petition mentioned in judgment dated 7.12.2017 passed in ICA No,98703/2017 Sr. No WP No, Parties Name 1 109796/17Urwa Ikram etc. v. Pakistan Medical and Dental Council etc. 2 107875/17Ujala Anjum etc. v. Pakistan Medical and Dental Council etc. 3 104665/17Pakistan Association of Private Medical and Dental Institutes v.
Pakistan Medical and Dental Council etc. 4 104589/17Rubail Ata Bajwa v. Pakistan Medical and Dental Council etc. 5 101763/17Mahnoor. Ahsan Bhoon etc. v.
Pakistan Medical and Dental Council etc. 6 102355/17Azeem Izhar v. Federation of Pakistan etc. 7 109795/17Hamzah Ahmad Siddiqui v. Pakistan Medical and Dental Council etc. 8 110470/17Arbaz Khan v. Pakistan Medical and Dental Council etc. 9 110467/17Muhammad Ali v. Pakistan Medical and Dental Council etc. 10 107222/17Shalamar Medical and Dental College v.
Pakistan Medical and Dental Council etc. (JAWAD HASSAN) (AYESHA A.MALIK) JUDGE JUDGE