MUHAMMAD AMEER BHA TTI, J. As both parties are fully represented and have addressed full-fledged arguments, therefore, through this single judgment, the following writ petitions treating the same as pacca case are being decided collectively as question of law and facts are common in all of them:- i) W.P.No.52871/2019 (Maleeha Syed v . Pakistan Medical and Dental Council etc.) ii) W.P.No.54133/2019 (Rana Taha Hussain v . Pakistan Medical and Dental Council etc.) iii) W.P.No.56170/2019 Ms. Kinza Hamid v . Pakistan Medical and Dental Council etc. iv) W .P.No.58578/2019 Ahmad Dildar Chaudhry v . Pakistan Medical and Dental Council etc.
2. Through these petitions, the petitioners have called-in-question the changes/amendment made in regulations pertaining to admission in medical colleg es whereby the criteria-formula already existed-framed under Pakistan Medical and Dental Council Ordinance, 1962 (hereinafter referred to as 'the Ordinance, 1962') for determining the interse merit of the candidates was changed, on the ground that it was beyond the scope of Pakistan Medical and Dental Council (PMDC) inasmuch as the existing Pakistan Medical and Dental Council Ordinance, 2019 (hereinafter referred to as 'the Ordinance, 2019') replacing the Ordinance, 1962 does not have any provision which permits/empowers PMDC to frame/formu late/amend the regulations pertaining to admission in medical colleges, therefore, the impugned amendment/alteration through which the protected Admission Regulations, 2018, framed under the Ordinance, 1962 on the direction of Hon'ble Supreme Court was replaced without any legal justification and authority in law, thus, the impugned change in criteria of admission came into force in exercise of PMDC/authority having no backing of law; hence, liable to be declared illegal and unlawful being void ab initio.
3. The learned counsel for the petitioners contend that the Ordinance, 2019 empowers the Pakistan Medical and Dental Council under Section 42 thereof to make the regulations pertai ning to the matters/purposes provided/enumerated therein and beyond that they were not legally entitled to frame or make any regulation. It is further contended that regulations framed under the Ordinance, 1962 were prote cted under section 49(2) of the Ordinance, 2019 till its alter, repeal or modification by the new Council constituted under the Ordinance, 2019, therefore, the power provided under section 42 thereof regarding framing of regulations to Pakistan Medical and Dental Council was with regard to the matters mentioned/provided in this section, which specifically omitted/ excluded the power regarding framing of regulation relating to admission in medic al colleges, therefore, amending the existing regulation framed under section 33(2) of the Ordinance, 1962, which has been protected under Section 49(2) of the Ordinance, 2019, was beyond the scope and power of the PMDC, therefore, the present amended regulations are result of illegally exercised power regarding the admission of MBBS colleges, hence on account of lack of power is non-existent and alien, therefore, in consequence of amendments formula provided therein to determine the inter-se merit list of the candidates for admission in medical colleges, is void ab-initio. To support the contentions, learned counsel has relied upon the law cited in Multiline Associates v. Ardeshir Cowasjee and 2 others (PLD 1995 Supreme Court 423), Maj. Matloob Ali Khan v. Additional District Judge, East Karachi and another (1988 SCMR 747), Pakistan through Secretary Finance, Islamabad and 5 others v. Aryan Petro Chemical Industries (Pvt.) Ltd., Peshawar and others (2003 SCMR 370), Suo Motu Case No.13 of 2009 (PLD 2011 Supreme Court 619), 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 ). To sum-up the arguments, it is contended that a vested right to seek admission has accrued in favour of the petitioners, which cannot be snatched by way of impugned action under the garb of impugned amendment in existing Admission Regulations, 2018. Reliance in this regard is placed on Federation of Pakistan and others v. Ch. Muhammad Aslam and others (1986 SCMR 916), Pakistan, through the Secretary , menistry of Finance v.Muhammad Himayatullah Farukhi (PLD 1969 Supreme Court 407) and Dr. Mariam Raza Syed and another v. Pakistan Medical and Dental Council through Registrar and others (PLD 2019 Lahore 558 ).
4. On the other hand, the learned counsel for the respondent-PMDC submit that the petitioners by admitting the policy in vogue, after availing-appearing in the entry test when failed to obtain the required percentage according to the new formula introduced by the PMDC through impugned amendment in Regulations, 2018 by exercising the power provided in this regard under section 42(2) of the Ordinance, 2019, have filed these petitions attracting the doctrine of estoppel, hence not entitled to get any relief from this Court at this belated stage.
5. Regarding the framing of regulations which is a legal question of law, it is contended that section 42(2) of the Ordinance, 2019 read with section 49(2) of ibid specifically empowers the authority-PMDC to frame, alter or modify the existing Regulations, 2018, therefore, no illegality and irregularity has been committed nor modification in the existing Regulations, 2018, was beyond the scope of their power . Further contended that under section 49(2) of Ordinance, 2019 the authority was vested in PMDC to alter, repeal or modify the existing regulations, therefore, the writ petitions are not maintainable as the framing or modification in the existing Regulations, 2018, was within the domain of the existent Ordinance, which empowered the PMDC to make/frame fresh/new regulations or to amend- alter the existing regulations protected under section 49(2) of the Ordinance, 2019. It is lastly contended that in exercise of constitutional jurisdiction, the disputed questions of facts requiring recording of evidence cannot be decided. In support of these submissions , the learned counsel have placed reliance on Tahmasub Faraz Tayyab and 13 others v. Vice-Chancellor , University of Health Sciences, Lahore and 3 others (PLD 2005 Lahore 261), Aqib Rasheed and 3 others v. Government of the Punjab through Secretary Health and 4 others (PLD 2011 Lahore 1) and Muhammad Zubair and 5 others v. Government of Pakistan through Secretary Health, Islamabad and 22 others (2012 CLC 1071 ).
The other learned counsel representing the University of Health Sciences-respondent No.2 have adopted the same line of arguments.
6. I have heard the learned counsel for the parties and gone through the record with their able assistance.
7. In order to appreciate the contentions of both the parties, first I deem it expedient to reproduce section 33(2) of the Ordinance, 1962, examination of which is necessary to determine the legal question concerning scope of exercise of power of framing/ alter/modification of MBBS and BDS (Admission, House Job and Internship)
Regulations, 2018:- "33(2) Notwithstanding anything contain ed in subsection (1), the Council shall make Regulations which may provide for--
(a) prescribing a uniform minimum standa rd of courses of training for obtaining graduate and postgraduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing the conditions for admission to courses of training as aforesaid;
(d) prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions;
(e) prescribing the standards of examinations, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance;
(f) prescribing the qualifications and exper ience required of examiners for professio nal examination in medicine and dentistry antecedent to the granting of recognized medical qualifications;
(g) registration of medical or dental students at any medical or dental college or school or any university and the fees payable in respect of such registration.
The provisions of section 42(2) of the Ordinance, 2019, correspond to the provisions of section 33(2) of the Ordinance, 1962 provides as under:- "42. Power to make Regulations .--- (1) The Council may, with the approval of the Ministry , make Regulations generally to carry out the purposes of this Ordinance, and, without prejudice to the generality of this power , such Regulations may provide for--- (a).................
(b).................
(c).................
(d).................
(e).................
(f)..................
(g).................
(h).................
(i)..................
(j)..................
(2) Notwithstanding anything contained in subsection (1) the Council shall make Regulations which may provide for--
(a) prescribing a uniform minimum standard of courses of training for obtaining graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules;
(b) prescribing minimum requirements for the content and duration of courses of study as aforesaid;
(c) prescribing minimum qualifications and experience required of teachers for appointment in medical and dental institutions;
(d) prescribing the standards of examinations, methods of conducting the examinations and other requirements to be satisfied for securing recognition of medical and dental qualifications under this Ordinance;
(e) prescribing the qualifications, experience and other conditions required for examiners for professional examinations in medicine and dentistry antecedent to the granting of recognized medical and dental and additional medical and dental qualifications;
(f) terms and conditions of service for all employees of the Council;
(g) election of members of the Council; and
(h) prescribing a uniform minimum stand ard for continuous professional development for registered graduate and post-graduate medical and dental practitioners."
Similarly , section 49 of the Ordinance, 2019, which is also necessary to be reproduced here, is as under:- "Repeal and Savings .---(1) Subject to section 6 of the Genera l Clauses Act, 1897 (Act X of 1897), the Pakistan Medical and Dental Council Ordinance, 1962 (Act XXXII of 1962) herein after reflected as repealing Ordinance hereinafter referred as repealed Ordinance.
(2) Notwithstanding the repeal of the Pakistan Medical and Dental Council Ordinan ce, 1962 (Act XXXII of 1962) or anything contrary contained herein, all regulations, decisions, disciplinary action taken by the Council Ad-hoc Council, Executive Committee or any other Committee or authority of the Pakistan Medical and Dental Council shall be deemed to have been validly made under the provisions of this Ordinance until altered, repealed or modified by the new Council Constituted under this Ordinance.
Provided that any existing regulations to the extent that they are in conflict with the provisions of this Ordinance shall be deemed to have been repealed and shall not be enforceable.
(3) ..................
(4) ..................
(5) ..................
The combined reading of above textually quoted provisions would not leave any doubt that the Ordinance, 2019, did permit the authority-PMDC to make the regulations relating to the matters provided/enlisted under section 42(2) of Ordinance, 2019 and modification, alteration, repeal was also within the parameters/domain of the PMDC because of protection granted by section 49(2) of the then newly promulgated Ordinance, 2019.
8. It is also relevant to mention here that draft of Regulation, 2018 relating to admission was presented in Hon'ble Supreme Court along with other Regulati ons reflecting from order of Supreme Court dated 17.09.2018 passed in Suo Motu Case No.1 of 2010 etc. and following observation was made:- "The ad-hoc Pakistan Medical and Dental Council (the Council ) has placed on record (vide C.M.A. No.8032/2018 ) certain regulations/draft laws prepared under the authority of this Court by the said Council, which are supported by the learned Attorney General for Pakistan. The list of these regulations/dra ft laws are contained in the aforementioned application. Having cons idered the views of all the stakeholders present in Court, we accept the report and all the regulations/ draft laws which are hereby incorporated and made a part of this order . Obviously , these regulations/draft laws shall be susceptible to the amendments/ changes made by the permanent Council (when constituted in accordance with law) at the relevant point of time. In light of the above, this matter having borne fruit is disposed of."
9. The foremost and precise question before this Court for determination is that, "whether any provision of law was included in the Ordinance, 2019, as it had been in Ordinance, 1962 permitting the Council to amend, alter and repeal the existing saved Regulations relating to admissions, 2018 and section 42(2) or any other provision of the Ordinance, 2019, did permit or empower the Council in this regard despite absence of power in a list provided under section 42(2) relating to framing of regulations of admission in MBBS and BDS even then power had been exercised by the PMDC to make the amendments in the existing regulations relating to Admission; hence what's its status".
10. To examine and resolve this legal question, perusal of provision of section 42 of the Ordinance, 2019 is essential, which consisted of two parts: first part depicts powers regarding framing of regulations relating to the matters mentioned in clauses (a) to (j) under subsection (1) but all framed Regulations relating to these items/matters were required the approval of the Ministry for attaining the status of Regulation, therefore, this condition restricts to attain the status of regulations framed by the Council relating to the purposes mentioned in clauses (a) to (j) until its sanction was granted by the Ministry .
Whereas the second part of section 42 of the Ordinance, 2019, starts with, 'notwithstanding anything contained in subsection (1) exclude the condition of obtaining approval from any authority; meaning thereby this subsection gives the Council unfettered and unlimited power regarding framing of regulations relating to the matters provided in subsection (2) i.e. from clauses (a) to (h) and there would be no need of obtaining any sanction from any authority for acquiring the status of Regulations.
11. The corresponding section 33 of Ordinance, 1962 vested the same power in the same terms in the Council for framing the regulations, first part whereo f imposes the condition of obtaining sanction of the Central Government whereas subsection (2) thereof omits this condition and whatever the Council will conclude regarding the matters cited in the list under subsection (2) of section 33 of the Ordinance, 1962, that would get the sanction of regulations. Comparison of both provisions and the lists mentioned therein leaves no room for this Court to reach on inescapable conclusion that in the Ordinance, 1962 through a specific provision under clause (c) of section 33(2) Council had been empowered to frame regulations relating to admission to courses of training of medical sciences, independently , which was omitted to incorporate in section 42(2) of the Ordinance, 2019.
12. The learned counsel for the PMDC and University of Health Sciences made unsuccessful attempt to persuade this Court that independent clause (c) of section 33(2) of the Ordinance, 1962, relating to admission to courses of training had been omitted because clause (a) of subsection (2) of section 42 of the Ordinance, 2019, in its present form served the purpose; hence separa te/ independent provision being un-necessary was intentionally/rightly deleted, whereas bare reading of which made it clear and obvious that it did not give the control of framing of regulations relating to admission to courses of training for obtaining the graduate medical and dental qualification and moreover both the provisions of both the Ordinances were verbatim. Clause (a) of section 33(2) of the Ordinance, 1962 and of section 42(2) of Ordinance, 2019 was one and same wher ein the council was empowered to make Regulations only with regard to uniform minimum standard of courses of training for obtaining graduate medical and dental qualifications it had no nexus with framing of Regulation for obtaining admission in courses of training. This clause "a" was clear and obvious in its terms. It was so conspicuous in its present form left no need for getting any external aids for its interpr etation and settled law is that if the wording of the provision of the statute is unambiguous and gives clear and obvious meaning then, same must be accepted without deviation. The golden rule of interpretation of statutes is to adhere to the ordinary meaning of the words used unless conflicts with the intention of the legislature which intention is to be collected from the statute itself. Keeping in view the principle of interpretation of statute, I feel no hesitation to hold that argument of the respondents has no force as clause (a) is clear and conspicuous in providing power to the P.M.D.C. to frame regulations relating to uniform minimum standards of courses for obtaining gradua te, Medical and Dental qualifications. For ready reference, it is expedient to reproduce both provisions here in juxtaposition as under: "33(2) notwithstanding anything contained in subsection (1), the Council shall make Regulations which may provide for----
(a) prescribing a uniform minimum standard of courses of training for obtaining graduate and postgraduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules; (underline supplied).
"42(2) notwithstanding anything contained in subsection (1) the Council shall make Regulations which may provide for---
(a) Prescribing a uniform minimum standard of courses of training for obtaining graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules ; (underline supplied).
13. It is also settled law that when law has provided a particular thing to be done in a specific manner then it shall be done in that manner or it shall not be done at all. Reliance is placed on Raja Hamayun Sarfraz Khan and others v. Noor Muhammad (2007 SCMR 307), Khyber Tractors (Pvt.) Ltd. Through Manager v. Pakistan through Ministry of Finance, Revenue and Economic Affairs, Islamabad (PLD 2005 SC 842), Government of the Punjab, Food Department through Secretary Food and another v. Messrs United Sugar Mills Ltd. and another (2008 SCMR 1148), Zia ur Rehman v. Syed Ahmed Hussain and others (2014 SCMR 1015 ), Shaukat Ali v. Muhammad Razzaq (2018 CLC 1624 [Lahore] , Muhammad Andleeb Raw v. Muhammad Nazar and another (2019 YLR 1974 ) [Lahore] and TCS Private Limited through Authorized Representative and others v. Pakistan Post and another (PLD 2019 Sindh 69) .
14. The other argument of the learned counsel for the respondents is that section 49(1) of the Ordinance, 2019, repealed the Ordinance, 1962 and subsection (2) thereof provided protection to all the regulations, decisions, disciplinary action taken by the Council ad-hoc Council, Executive Committee or any other Committee or authority of the Pakistan Medical and Dental Council being validly made under the provisions of Ordinance, 2019 until altered, repealed or modified by the new Council constituted under Ordinance, 2019. It is contended that since this subsection provides protection to the acts, regulations made/framed by the Council as well as all the authorities till its modification, alteration or repeal under the new Ordinance, hence, it empowered the Council to take decision about the protected regulations etc. To elaborate their argument, it is also contended that this provision specifically made the Council entitled to alter, repeal or modify the regulations, therefore, the power exercised to amend the regulations was justified under subsection (2) of section 49 of the Ordinance, 2019.
15. Undeniably , said subsection (2) in the same breath permits amendment, alteration and modification to the protected regulations etc. but provided this power was entrusted under the Ordinance to the PMDC. It is always requirement of law to include saving clause in the new promulgated Act/Ordinance regarding the rules, regulations, actions taken/framed under the repealed acts/ordinances until its reframing/alter/modification without which existing system cannot continue because all rules, regulations, actions every time lost their existence/validity after the repeal of the Act/Ordinance under which those had been framed provided existence of them was not secured in the new promulgation. Likewise waiving clause is always added to enable the authority either to opt or repeal, amend or modify them according to their desire under new enactment. So it is clear and obvious from this clause of section 49(2) of Ordinance, 2019 that all the regulations and actions which were protected would be as good as framed under new Act/Ordinance and remained in field till any amendment/repeal was carried-out. It is added that if this authorization clause had not been inserted (until altered, repealed or modified by the new Council constituted under this Ordinance) the new Council constituted under that Ordinance would not be able to touch them despite having the power of its framing, hence, the argument in a way the learned counsel addressed has no substance. It is further clarified that addition of the validating clause enables the authority to exercise its vested power under section 42 of the Ordinance, 2019 concerning the existing regulations etc.
16. The next argument of the learned counsel for the respondents is with regard to the proviso to subsection (2) of section 49 of the Ordinance, 2019, which was existed as under:- "Provided that any existing regulations to the extent that they are in conflict with the provisions of this Ordinance shall be deemed to have been repealed and shall not be enforceable."
The contention of the learned counsel representing the respondents was that if any protected regulation etc. was not allowed to be altered, repealed or modified under this Ordinance then it would be in conflict with the provisions of existed Ordinance; hence, that would be considered to be repealed because if the Ordinance did not provide any power regarding alter, repeal or modification of any regulation, it could not be considered to have been framed under that Ordinance. Non-existence of admission regulation on account of non-availability of power of its amendment, would seriously create a vacuum in the system, therefore, it could not be presumed that the power had not been vested with the Council to amend the prevalent admission regulations.
17. Subsection (2) of section 49 of the Ordinance, 2019 unambiguously owned the authority of the existing regulations etc. to be deemed to have been framed under this Ordinance. There was no doubt regarding existence of Admission Regulations, 2018 and its protection under subsection (2) of section 49 of the Ordinance, 2019. It is also inferred that permission was also granted under this section regarding existed regulations including Admission for its alter, repeal or modification to the new Council constituted under Ordinance, 2019 but adding of proviso declaring it to be non-existent, if it was not in conformity with the Ordinance, 2019, merely because Ordinance did not empower the Council to go ahead with making amendments or repealing the Regulations of Admission could not be allowed to be taken away by addition of proviso inasmuch as it is settled law that thing which has been given under the section cannot be allowed to take away by adding proviso.
18. To my mind it was a case of omis sion of inclusion of relevant provision to exercise the power to frame regulations under subsection (2) of section 42 of the then Ordinance, 2019 relating to conditions for admission in courses of training, therefore, until its insertion, these protected regulations relating to admission in courses of training would remain as it was and in absence thereof it is declared that Counc il was not entitled/competent to make amendments or modification in existing regulations relating to admission in courses of training because this Court is bound to adhere the statutory provisions as those were. As is obvious, to permit the Court to supply the omissions in Statutes would generally constitute an encroachment upon the field of the legislature, therefore, a casus omissus can, in no case, be supplied by the Court of law. To get support, reliance is placed on "Nadeem Ahmed Advocate v .Federation of Pakistan (2013 SCMR 1062 ) wherein it was held as under:- "It is not our function, as was held by Mr. Justice Walsh, in the case of "Attorney General v. Bihari, re Australia Factors Limited (1966) 67 S.R. (N.S.W) 150 to repair the blunders that are to be found in the legislation. They must be corrected by the legislator". A court of law is not entitled to read words into the constitution or an Act of parliament unless clear reason is found within the four corners of either of them".
In Zain Yar. Khan v. The Chief Engineer , C.R.B.C., WAPDA Di. Khan and another (1998 SCMR 2419 ) it was held as under:-- "It has been contended that a Court or other judicial forum can only interpret but has no power to make or promulgate laws. Correspondingly , if there be an omission or lacuna, such canno t be supplied or filled merely by straining the rules of interpretation.
It is true that the Courts have to interpret the law as they find it. A' casus omissus, again, ought not to be created by interpretation alone, save in a case of strong or unavoidable necessity . In the context, however , a legislation is to be closely examined and its intendment is to be explored before arriving at the conclusion that the matter gives rise to a casus omissus".
In The Collector of Sales Tax, Gujranwala and others v. Messrs Super Asia Mohammad Din and Sons and others (2017 SCMR 1427 ), Hon'ble Supreme Court of Pakistan held as under:- "It is settled law that the principle of reading in or casus omissus is not to be invoked lightly , rather it is to be used sparingly and only when the situation demands it. In fact the Courts should refrain from supplying an omission in the statute because to do so steers the Courts from the realms of interpretation or construction into those of legislation".
Same view was taken in Amanullah Khan v. Chief Secretary , Government of N.W.F.P. and 2 others (1995 SCMR 1856 ) it was articulated that:- "The Court cannot put into the Act words which are not expressed and which cannot reasonably be implied on any recognized principles of construction. That would be a work of legislation, not of construction, and outside the province of the Court".
19. It is also brought to the notice of this Court that the Ordinance, 2019 was presented by the Government for its approval in the Parliament but it lost its life on account of its withdrawal from the process of authorization from the Parliament. The amendment, modification or repeal of regulations could only be allowed provided in this regard any power was vested specially with that authority-Council. Since this power was missing in the Ordinance, therefore, the Council was not competent to validly amend or modify the admission regulations.
20. Another aspect of the case necessitated to be clarified is that draft of admission regulations along with other regulations were placed before Hon'ble Supreme Court as already mentioned in the preceding paras concluding in order dated 17.09.2018 also reproduced above, in consequence whereof approval/ protection had been granted by Hon'ble Supreme Court to all those regulations presented before it which were made part of aforesaid order , therefore, after demise of Ordinance, 2019, protection granted to those Regulations framed under Ordinance, 1962 on the direction of apex Court by acting Council reflecting from the order of august Supreme Court dated 17.09.2018 till making of amendments/ alteration by the new Council constituted under promulgated Act/Ordinance.
To me, burial of Ordinance will not affect the existence of the regulations framed by acting Council in exercise of power provided under Ordinance, 1962 which revived on demise of Ordinance, 2019, which were made part of order of Hon'ble Supreme Court until needful is done in manner as directed by apex Court in its order dated 17.09.2018.
21. Giving weightage to the above, I have reached on this conclusion that the Pakistan Medical and Dental Council had not been vested with any power under the Ordinance, 2019 as it then was to amend the protected MBBS and BDS (Admission, House Job and Internship) Regulations, 2018, therefore, the action of the respondents relating to the amendments made in the said Regulations by virtue of Ordinance, 2019 as it then was are hereby declared ultra vires, void ab-initio and without lawful authority having no legal backing. Consequently , all the constitution petitions are allowed and it is hereby declared that excluding impugned amendments the admission shall be made on the basis of the formula given in protected MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 framed by the acting Council on the direction of august Supreme Court of Pakistan.
Since entrance test has already been held, therefore, all the medical colleges are directed that for admission of students the criteria given in the un-amended MBBS and BDS (Admission, House Job and Internship) Regulations, 2018 shall be followed.