SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Through this constitutional petition filed in terms of Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, following prayer has been made: "....It is therefore, respectfully prayed that by appropriate writ or order , the respondents No.1 and 2 may kindly be directed to immediately recognize the degree of petitioners and formulate a specific policy regarding students who have passed their degrees but are not being recognized by respondents due to inability of their alma matter in the paramount interest of justice.
It is further prayed that respondents Nos. 1 and 2 may very kindly be directed to provisionally allow the recognition of degree of petitioners pending final adjudication of this Writ petition.
Any other relief which this Hon'ble Court deems fit and proper in the peculiar circumstances of this case, may very kindly be awarded to the present petitioners in the paramount interest of justice, good conscience equity and fair play"
2. At the very outset, it has been contended by the learned counsel for the petitioners that in response to advertisement for the M. Phil program in Science of Dental Materials, petitioners applied for the same and they were granted admission on merit. Further contends that the petitioners passed their Professional Examinations and were awarded degrees/DMCs accordingly . It has been argued that the said degree course was discontinued by the respondent University after two years from its starting and the petitioners are only degree holders of M. Phil in Science of Dental Materials from Univers ity Health Sciences at present. Further contends that after completion of degrees, the petitioners came to know that respondent University has not yet been recognized by the Pakistan Medical and Dental Council. Further contends that University of Health Sciences had applied for affiliation from Pakistan Medical and Dental Council (respondent No.1) for recognition of the degrees which is still pending till date. Further contends that University of Health Sciences, Lahore vide letter dated 20th November , 2014 requested the respondent No.1 for> comprehensive inspection of its postgraduate program campus and also enclosed a demand draft No.042578 dated 20.11.2014 amounting to Rs.3,50,000/- for the recognition of unrecognized postgraduate programs offered by the respondent No.3 but said inspection has not been made so far and petitioners are suffering irreparable loss due to inaction of respondent No. 1. Further contends that the respondent No.1 Pakistan Medical and Dental Counc il has previously allowed provisional recog nition to many students of AFIP and other institutes, therefore, the petitioners also deserve the same relief in accordance with law and constitutional rights.
3. On the other hand, learned Law Officer assisted by learned counsel for the respondent No.3 states that University of Health Sciences, Lahore is a public sector Medical University which started to teach M.Phil. (Science of Dental Material) and University admitted students in sessions 2014-15 and sessions 2015-16 M. Phil (Science of Dental Material) and University completed subsidized postgraduate on, campus courses in. M. Phil in 2014-15 and also paid a stipend of Rs.10,000/- per month. to students simply for the purpo se of faculty development in a discipline and Science of Dental Material is taught in 2nd year of BDS. Further contends that University forwarded program inspection form (RIF) for M. Phil (Science Dental Material) to Ministry of National Health Services Regulation and Coordination, Islamabad vide letter No.UHS/REG-17/89 dated 13.01.2017 for early inspection of the program by PM&DC but no visit was conducted and university closed the said program.
4. However learned counsel representing respondent No.3/PM&DC opposed the contention of the learned counsel for the petitioners. It is contended by learned counsel for respondent No.1 that PM&DC is a regulatory body of Universities and this Court cannot sit as a court of appeal over the decision of the statutory bodies. Adds that clear distinction is made in section 2(4) of The Pakistan Medical and Dental Council Ordinance, 1962 between the institutions and every postgraduate medical institution is bound to follow due process for its recognition and to comply with the rules made by the Coun cil. Further contends that University of Health Sciences, Lahore is not in third schedule as an institution in terms of section 16 of The Pakistan Medical and Dental Council Ordinance, 1962 read as Section 17 of Pakistan Medical and Dental Council Ordinance 2019 which itself trains the students in its own recognized facility and then examines the students trained in it and then award the students with a recognized degree. Further contends that the petitio ners attached letter dated 20th Novemb er, 2014 and the University of Health Sciences Lahore and University of Health Science Lahore did not request for the inspection of the Degree which is acquired by the petitioners i.e. M.Phil (Science of Dental Materials) and further that the other letter dated 13th January 2017 has not been received in the office of PM&DC. Adds that as the University of Health Sciences Lahore is not included in third schedule of PM&DC in terms of section 16 of The Pakistan Medical and Dental Council Ordinance, 1962 read as Pakistan Medical and Dental Council Ordinance 2019 to acquire status of recognized medical/dental qualification which can then be registered by PM&DC, hence, no right accrues in favour of petitioners as all regulations framed by the Counsel under The Pakistan Medical and Dental Council Ordinance, 1962 read as Pakistan Medical and Dental Council Ordinance 2019 are also binding on every medical and dental institution in Pakistan recognized under the Ordinance.
5. Arguments advanced pro and contra have been heard and record available on file perused.
6. There is no cavil to this proposition that in response to an advertisement in the postgraduate program, M.Phil. in Science of Dental Materials, at the University of Health Sciences, Lahore, the petitioners applied for the same and were granted admission in the said course in the session 2014-2015 and University completely subsidized postgraduate on campus courses in the M.Phil. (Science of Dental Material) in 2014 and 2015 rather paid a stipend of Rs,10,000/- per month to the students, It is noticed that in response to letter No.P .F.12-F-2013.PG.
Inspection/102/262362 dated 06.02.2014, issued by Pakistan Medical and Dental Council, the Registrar , University of Health Sciences, Lahore vide letter No.UHS/REG-14/3070 dated 29th November , send Demand Draft No.042578 dated 20.11.2014 amounting Rs.3,50,000/- to Pakistan Medical and Dental Council as comprehensive inspection fee, as well as, Secretariat Charges for inspection of on campus postgraduate programs of University of.
Health Sciences regarding the Program Information Forms forwarded to Director General, National Health Services Regulation and Coordination, Islamabad vide letter No.UHS/REH-14/654 dated 28.02.2014. This attached letter with the instant petition was mentioned in parawise comments/reply by respondent No. 1 . Further respondent No. 1 denied the letter dated 13th, January , 2017 to have received/traceable in the office regarding Program Inspection Form (PIF) for recognition of M. Phil Science of Dental Material Program of University of Health Sciences, Lahore.
It has been noticed that letter No.UHS/REG-17/89 dated 13th January , 2017 was addressed to Secretary Government of Pakistan, Ministry of National Health Services, Regulations and Coordination, Islamabad whereby the Pakistan Medical and Dental Council was requested for early inspection of the program. The most significant aspect of the case is that in pursuance of 142nd meeting held on 12th March, 2016, Pakistan Medical and Dental Council issued letter No.PF .65-F-2016 (Student Registration)/289161 dated 6th April 2016 addressed to Vice Chancellor; University of Health Sciences Lahore intimated that the "council" unanimously approved to register graduating over admitted students of public sector institutes till that date subject to submission of affidavit by concerned Secretary Health/Principal/Dean of institute and Vice Chancellor of degree awarding University that "from session 2016-2017, no admission shall be made beyond allotted annual admission to institute by PMDC and failing to comply shall warrant disciplinary proceeding against institutes/persons as provided in sections 22 and 22- B of PMDC Ordinance, 1962". Furthermore, the students already admitted in unrecognized public sector institutes through open merit and pursuing medical education or graduated shall also be registered as RMP/RDP or students as the case may be after notification in respect to that institution of Federal Govern ment as recognized institute as one time dispensation and not to be quoted as precedent. Perusal of the record reveals that the Registrar , University of Health Sciences Lahore vide letter No. UHS/P&D-19/1 11 dated March 13, 2019 addressed to Registrar , Pakistan Medical and Dental Council intimated that University of Health Sciences, Lahore forwarded program inspection form (PIF) for M. Phil (Science Dental Material) to Ministry of Health Services, Regulations and Coordination, Islamabad vide letter dated 13.01.2017 for early inspection of the program by MP&DC but no visit was conducted and university closed the said program. Moreover University admitted five students in sessions 2014-15 (including petitioners) and eight students in section 2015-16 M. Phil. (Science Dental Material) and while drawing attention to letter dated 06.04.2016 issued in pursuance of 142nd meeting of the Council held on 12th March, 2016, requested for registration of students and that Vice Chancellor , UHS also submitted an affidavit as per letter dated 06.04.2016.
7. Perusal of the letter issued in pursuance of 142nd meeting held on 12th March, 2016 whereby the students already admitted in unrecognized public sector institutes through open merit and pursuing medical education or graduated shall also be registered as RMP/RDP or students as the case may be after notification in respect of that institute by Federal Government as recog nized institute as one time dispensation , the respondent No. 1/Pakistan Medical and Dental Council is under obligation to register said students which was intimated vide letter No.UHS/P&D 19/111 dated March 13, 2019. Non-registering the said students shows that it is violative of basic principle of natural justice. The denial in this regard is. in conflict with the funda mental rights guaranteed under Articles 4, 9, 14, 18 and 20 read with Article 37(c) of the Constitution. Reliance in this regard is placed upon the dictum of law laid down in the case of "Imdad Hussain v. Province of Sindh through Secretary to Government Sindh Karachi and 3 others" (PLD 2007 Karachi 1 16), wherein it has been held as under: ".......Arts. 9, 14, 18, 20, 37(c) & 199---V alidity---Right to education was a fundamental right covered by Arts. 9, 14, 18 and 20 read with 37(c) of the Constitution and, therefore, any unreasonable restraint, hindrance or condition on its exercise would be ultra vires the Constitution, irrespective of whether the same was imposed by an administrative or executive act, by some statutory rule or even by the statue itself......"
The petitioners qualified the course of of M.Phil in Science of Dental Materials from University of Helath Sciences Lahore (respondent No.3) and the basic criteria for qualification requires the recognition by Pakistan Medical and Dental Council which is being withheld without any fault at their end. As the petitioners have successfully pursued and completed the course of studies in the faculty of Basic Dental Science and have been found qualified for the award of Degree of Master of Philosophy and in this regard Degrees have also been issued by University of Health Sciences, Lahore in December , 2018, hence, they have accrued a right which cannot be withheld without due process of law. Even it is a settled principle of law that taking away any right accrued to somebody cannot be taken away prospectively but if some benefit is going to be allowed then, of course, such benefit may have retrospective effects, hence, the rule of locus poenitentiae is attracted in the present case which prescribes that once a legal right is accrued, it cannot be taken back without following the proper procedure because it would be against the principle of natural justice. In this regard, reliance is placed on the case of "Director General Ordnance Services General Headquarters Rawalpindi v . Muhammad Abdul Latif (2003 SCMR 410 ) wherein it has been held as under:- "Principle of locus poenitentiae was available to Government or relevant Authorities and further Authorities which was competent to make order had power to undo it, but such order could not be withdrawn or rescinded once it had taken legal effect and created certain rights in favour of any individual"
Under principle of "locas poenitentiae" the authority competent to pass an order can get the same rescinded but when the degrees have been awarded to the petitioners by the University of Health Sciences, Lahore and it has taken legal effect then notwithstanding the power available to it under section 21 of General Clauses Act, 1897, the same cannot be withdrawn unless and until it is established that the degrees were obtained by practicing fraud or misrepresentation. It will not be out of place to mention here that when the petitione rs have been awarded degrees, hence, they have accrued a right which cannot be withdrawn on the principle of locus poenitentiae and in the light of provisions of Section 21 of the General Clauses Act, 1897, which is reproduced as under:- "21. Power to make to include power to add, to amend, vary or rescind, orders , rules or bye-laws .--Where by any [Central Act] or Regulation, a power to [issue notifications], orders, rules, or bye-laws is conferred, then that power includes a power , exercisable in the like manner and subject to the like sanction and conditions (if any) to add, to amend, vary or rescind any (notifications), orders, rules or bye-laws so [issued]"
In case of "The Engineer in Chief Branch through Ministry of Defence, Rawalpindi and another v. Jalaluddin " (PLD 1992 SC 207) it has been held as under: "Locus poenitentiae is the power of receding till a decisive step is taken but it is not a principle of law that order once passed becomes irrevocable and past and closed transaction"
In case of "Messrs Army Welfare Sugar Milts Limited and others v. Federation of Pakistan" (1992 SCMR 1652 ) it has been held as under: "Authority competent to make order has power to undo it, but the order cannot be withdrawn or rescinded once it has taken legal effect and certain rights are created in favour of any individual and principle of locus poenitentiae would be available"
Similar view has been taken in the case of Chairman Selection Committee/Principal, King Edward Medical College Lahore v. Wasif Zamir Ahmad and another " (1997 SCMR 15) and in case of "Chief Secretary , Government of Sindh v. Sher Muhammad Makhsoom and 2 others " (PLD 1991 SC 973 ).
8. In sequel to what has been discussed above, by allowing the instant constitutional petition, the respondent No.1 (Pakistan Medical and Dental Council) is directed to register the petitioners in view of letter No.PF .65-F-2016- (Student Registration)/289161 dated 6th April 2016 issued in pursuance of 142nd meeting of Pakistan Medical and Dental Council held on 12th, March, 2016 and letter No.UHS/P&D-19/1 11 dated March 13, 2019 by Registrar University of Health Sciences Lahore and recognize the degrees of the petitioners.
9. Petition accepted.