Ayesha A. Malik J: This common judgment decides the instant ICA as well as connected ICAs No.62075/19, 62076/19 and 62077/19 having common questions of law and facts and arise out of the same impugned judgment dated 10.10.2019 passed by the learned Single Judge in WP Nos.52871/19, 54133/19, 56170/19 and 58578/19.
2. Chaudhary Muhammad Umar , Advocate for the Appellant, Pakistan Medical and Dental Council Islamabad ("PMDC ") argued that the Appellant is aggrieved by the impugned judgment on the ground that the impugned judgment was passed without issuing any notice to the Attorney General for Pakistan under Order XXVII-A of the Civil Procedure Code, 1908 ("CPC ") which was mandatory given that the Respondents had challenged the vires of the amendments made to the MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 ("2018 Regulations"). In this regard, learned counsel has relied upon Federation of Pakistan through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and others v. Aftab Ahmad Khan Sherpao and others (PLD 1992 SC 723) and Federal Public Service Commission and others v. Syed Muhammad Afaq and others (PLD 2002 SC 167). Furthermore, the Appellant is aggrieved as the impugned judgment has held that the Appellant does not possess the power to make regulations pertaining to admission nor could it have amended the 2018 Regulations since there was no specific provision in the Pakistan Medical and Dental Council Ordinance, 2019 ("2019 Ordinance") granting such power to the Appellant. Learned counsel argued that the PMDC is the regulatory body for the medical profession as well as for medical education, training and recognition of qualifications in medicine and dentistry as per the 2019 Ordinance. The preamble of 2019 Ordinance clearly provides for the regulation and control of the medical profession and to establish a uniform minimum standard of basic medical education and training and recognition of qualifications in medicine and dentistry. Learned counsel further argued that in terms of various different pronouncements of the august Supreme Court of Pakistan it is now settled that the PMDC is empowered not only to regulate the admission process and make regulations thereto but also that its regulations are valid and legally binding on all medical and dental colleges across Pakistan. Learned counsel further stated that the provisions of Section 49(2) of 2019 Ordinance have not been appreciated in their proper context given that there is a clear mandate in the said section to alter, repeal or modify regulations. Learned counsel argued that one of the primary functions of PMDC is to regulate the admission process for which the policy and guidelines are set by the PMDC on the basis of which admissions are undertaken throughout Pakistan in medical and dental colleges. He argued that a plain reading of the preamble and the function of the PMDC read with Section 42(2)(a)(b) of 2019 Ordinance clarifies that the mandate for regulating admissions into medical and dental colleges vests with PMDC. Notwithstanding the same, Section 49(2) of 2019 Ordinance specifically grants PMDC the power to amend the 2018 Regulations, therefore there was no justification for setting aside the amendments made to the 2018 Regulations on 30.05.2019. Learned counsel argued that more than 70,000 applicants participated in the admission process.
Only four petitioners challenged the amendments on the ground of being dual nationals. He argued that the amendments to the 2018 Regulations were made in May, 2019 yet the petitions were filed in September, 2019 after the petitioners participated in the MDCAT examination and realized that they do not fall at a higher merit for admission in public sector colleges. He relied upon the prayer made in the petitions to urge the point that the matter in issue had already been settled in Muhammad Fahad Malik v. Pakistan Medical and Dental Council and others (PLD 2018 Lahore 75) and Pakistan Medical and Dental Council through President and 3 others v.
Muhammad Fahad Malik and 10 others (2018 SCMR 1956) and further that the 2018 Regulations were amended well before the holding of the MDCAT examination giving the Petitioners sufficient time to challenge the amendments if they deemed it so important. He argued that the delay in filing the petitions is simply because they did not meet the merit criteria for public sector universities hence they decided to challenge the entire admission process. This factor was also not duly considered and the impugned judgment set aside the amendments notwithstanding the fact that the admission process so far as the holding of MDCAT examination had taken place and the merit lists were to be announced.
3. On behalf of the Respondents, Mr. Rizwan Mushtaq, Mian Muhammad Aslam, Ms. Uzma Ahmad Bajwa and Mr. Sahir Mahmood Bhatti, Advocates argued that notices under Order XXVII-A CPC was not required as no constitutional question was involved in the petitions. The only issue is with respect to the powers of PMDC to amend the 2018 Regulations, hence as such the requirement under Order XXVII-A CPC was not mandatory .
Learned counsel while distinguishing this case from PLD 1992 SC 723 (supra) and PLD 2002 SC 167 (supra) have placed reliance on Pakistan Automobile Corporation Limited through Chairman v. Mansoor ul-Haque and 2 others (2004 SCMR 1308 ). Learned counsel further argued that the impugned judgment has clearly set out the case of the Respondents and clearly provided that since the PMDC did not have the power to make regulations with reference to admissions in medical and dental colleges, they did not have the power to amend the 2018 Regulations. Mr. Rizwan Mushtaq, Advocate argued that the power to make regulations with respect to the admission was deliberately omitted under the 2019 Ordinance to give continuity to the 2018 Regulations which were made under the direction of the august Supreme Court of Pakistan in 2018 SCMR 1956 (supra ). Hence PMDC did not have the power to amend the 2018 Regulations. Reliance is placed on Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747), Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 SC 423), Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industry (Pvt.)
Ltd., Peshawar and others (2003 SCMR 370) and Suo Motu Case No.13 of 2009 decided on 15.3.201 1 (PLD 2011 SC 619). He further relied on the doctrine of CASUS OMISSUS whereby any omission in the statue is considered to be intentional and that mistake cannot be rectified by the courts. Reliance is placed on Amanullah Khan v. Chief Secretary , Government of N.W.F.P and 2 others (1995 SCMR 1856 ) and Sabz Ali Khan v. Bismillah Khan and another (1997 SCMR 1781 ). He further argued that any delay on the part of the Respondents in filing the writ petitions is not only explainable but also irrelevant with respect to the legal questions raised in the writ petitions. Further that the Respondents acquired a vested right to seek admissi on under the 2018 Regulations since they, at the time of taking their A Level examination in May, 2019 had already decided that they were to participate in the admission process for medical and dental colleges and the sudden changes to the admission criteria brought through the amendments in the 2018 Regulations prejudiced their rights such that they were put to a disadvantage which is wholly unfair and cannot be done by the PMDC. Ms. Uzma Ahmad Bajwa, Advocate added to the arguments that the Respondents are dual national who were entitled to the benefit of Regulation 7 and 8 under the original 2018 Regulations and while their A Level examination was under way, the admission criteria was changed, hence they were deprived of the benefit of Regulation 7 and 8 of the original 2018 Regulations, putting them at a major disadvantage which is against the spirit of 2018 SCMR 1956 (supra ). She argued that a lot of effort has been put in by these students in pursuing their desire to study medicine and the PMDC should not be allowed to change the rules and regulations at the last moment as not only did the Respondents acquire a vested right in the admission process to be governed by the 2018 Regulations but also it does not inspire much confidence in the system which is subject to constant change.
4. We have heard the learned counsel for the parties at great length and have also gone through the record. The Appellant has raised the basic objection that notices were not issued under Order XXVII-A CPC given that vires of 2018 Regulations were challenged on the touchstone of the 2019 Ordinance and the petitioners' fundamental rights. We have gone through the contents of the writ petitions and find that these petitions specifically allege that the amendments made by the responden ts to the 2018 Regulations are liable to be struck down being against their fundamental rights and contrary to the applicable laws. We also note that reliance of the Respondents on 2004 SCMR 1308 (supra ) is not relevant as this case deals with a service matter in which the Court concluded that notices under Order XXVII-A CPC are not required. Therefore we find that notices under Order XXVII-A CPC in terms of the dicta laid down by the august Supreme Court of Pakistan in PLD 1992 SC 723 (supra ) is mandatory .
At this stage all learned counsel before us plead urgency in the matter as the issues pertain to admissions in medical and dental colleges and the issue of whether admissions are to be made under the 2018 Regulations or not should be resolved at the earliest so as to prevent any further delay in the matter . Ms. Ambeen Moeen, DAG present in Court on instructions stated that the Federal Government adopts the arguments of the PMDC in this case for a decision on its merits. Therefore we proceed to decide the case on its merits.
5. The relevant facts are that the 2018 Regulations were issued on 17.9.2018 which were amended on 30.05.2019 wherein the relevant regulations on the basis of which the writ petitions were filed are Regulation 7, 8 and 9 of the 2018 Regulations. Prior to the amendments, Regulation 7 of the 2018 Regulations provided for the eligibility criteria for MBBS and BDS courses in Pakistan and abroad calling for a sixty percent aggregate in three subjects.
Respondent No.1 in ICA No.62077/2019 is aggrieved by the amendment made to Regulation 7(2) of the 2018 Regulations which now requires a seventy percent aggregate in three subje cts. The Respondents in ICA Nos.62074 and 62076 of 2019 are aggrieved by the amendments made to Regulation 8(2) of the 2018 Regulations, which originally provided as follows:- 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 who had studied and passed HSSC 12th grade examination or equivalent from outside Pakistan and has stayed in the foreign country for the whole duration of the above mentioned course (applicable w.e.f session 2021- 2022) and possess a certificate from the institution last attended to this ef fect.
The amendments made on 30.05.2019 to Regulation 8(2) provided as follows:- No candidate shall be eligible for foreign quota seats in the public and private Medical and Dental institutions under sub regulations (1) unless, he holds a permanent foreign nationality or is an overseas (being a Pakistani citizen permanently resident in a foreign country) Pakistani student, and who has studied and passed HSSC 12th grade examination or equivalent from outside Pakistan and is a resident of a foreign country at the time of applying for admission and possess a certificate from the institution last attended to this ef fect.
In terms of the amendments to Regulation 8(2), it was clarified that the foreign quota seats were available for those dual national or overseas Pakistani, who were residing permanently in a foreign country and who had studied and passed the 12th grade examination or equivalent from outside Pakistan and at the time of admission was a resident of a foreign country . The Respondents collectively are also aggrieved by the amendment to the 2018 Regulations which provides the threshold on the basis of which weightage was to be given to O Level and matriculation results. In terms of the 2018 Regulations the formula provided was ten percent weightage given to O Level and matriculation result whereas the amendments of 30.5.2019 did away with the ten percent weightage and the criteria was changed to fifty percent weightage for MDCA T and fifty percent weightage for F.Sc (Pre - Medical)/HSSC/equivalent (50%).
6. The impugned judgment considered the stance of the Respondents and concluded that there was no specific power under Section 42(2) of 2019 Ordinance authorizing PMDC to make regulations with respect to the admissions in medical and dental colleges. The Court further concluded that since there was no specific power under Section 42(2) of the 2019 Ordinance, the provisions of Section 49 of the 2019 Ordinance would not be applicable since the 2019 Ordinance did not permit the PMDC to make regulations related to admissions under Section 42 of the 2019 Ordinance. The Court held that Section 49(2) of the 2019 Ordinance protected all regulations and actions under the repealed Ordinance. However since the 2019 Ordinance did not grant the specific power of making regulations governing the admissions, then the power to alter, repeal or modify the existing regulations was also not available to PMDC being against the mandate of the 2019 Ordinance. It was further held that the power to alter, repeal or modify the regulations could only be allowed if there was a specific power vested in PMDC to make regulations pertaining to admissions.
7. We have duly considered the contentions and arguments of the Respondents' Counsel, however we are not in agreement with the findings in the impugned judgment on this issue. We find that notwithstanding the argument that there is no specific provision authorizing the PMDC to make regulations pertaining to admissions, there is specific authorization given under Section 49(2) of the 2019 Ordinance, being the repeal and saving clause to alter, repeal or modify regulations, decisions, disciplinary action taken by the PMDC, Adhoc Council, Executive Committee or any other committee or authority of PMDC. We also find that Section 42 and Section 49 of the 2019 Ordinance are independent provisions of the 2019 Ordinance and the repeal and saving clause is not dependent on any other provision of the 2019 Ordinance. The objective of the repeal and saving clause precisely as it states is to repeal the previous law being the Pakistan Medical and Dental Council Ordinance, 1962 ("1962 Ordinance ") and to save all those decisions, rules and regulations that the legislatures deemed necessary . Under the 2019 Ordinance, the 2018 Regulations were saved making them the relevant regulations for the purposes of admission in medical and dental colleges with the specific power to the new council constituted under the 2019 Ordinance to alter, repeal or modify the existing regulations which included the 2018 Regulations. The power to repeal any law and to save any decision, order , proceeding, rules or regulations under the repealed is a legislative function. It is done with the intent to safeguard that which the legislature deems necessary from the repealing provision.
Essentially the saving clause acts as a restriction on the repealing provision exempting all saved items from the repeal. Hence where the legislature has specifically saved the 2018 Regulati ons made under the repealed Ordinance, with the specific power to alter, repeal or modify the saved regulations, the intent of the legislature is clear and not dependent on any other provision of the 2019 Ordinance. Furthermore we find that there is no conflict with respect to the provisions of Section 42 and 49 of the 2019 Ordinance as Section 49 grants special permission to the new council to alter, repeal or modify the existing regulations. The new council notwithstanding its power to make regulations as granted in Section 42 has the power to alter, repeal or modify existing regulations. Therefore for the purposes of the dispute raised by the Respondents in their respective petitions, no case was made out against the PMDC that they could not amend the 2018 Regulations on 30.5.2019.
8. We have also examined the prayers in the writ petitions wherein the petitioners essentially challenged the elimination of the quota for dual nationals and the exclusion of the weightage given to O Level results from the admission criteria. In this regard, we note that the petitioners were in fact not entitled to any foreign seat quota under the 2018 Regulations as they are admittedly students who have studied for their O Level and A Levels in Pakistan and for the purposes of their Secondary School Education and 12th grade examination, they did not reside abroad. Even under the original regulations any candidate applying for the foreign quota seats in public and private medical and dental colleges had to have studied and passed the 12th grade examination or equivalent from outside Pakistan and have stayed in the foreign country for the whole duration of the course. Admittedly none of the Respondents before the Court meet with this criteria, hence with respect to the eligibility of a foreign quota seats, the petitioners were not entitled to any relief in their constitutional petitions. Furthermore the Respondents' reliance on 2018 SCMR 1956 (supra ) is misconceived as the facts are disting uishable. The amendments were publicized and posted on the website of the PMDC in June 2019 and was available in the booklet information made available to students prior to taking the MDCA T examination. The Respondents took the MDCA T examination and after getting their result filed the petitions in September 2019. Hence the Respondents contention that the amendments came as surprise to them is totally without basis.
9. Under the circumstances, all four appeals are accepted and the impugned judgment dated 10.10.2019 passed by the learned Single Judge in WP Nos.52871/19, 54133/19, 56170/19 and 58578/19 is set aside and the 2018 Regulations are restored to their original amended form. Consequently the competent authority can proceed with the admission process as per the 2018 Regulations.