SYED ARSHAD ALI, J- By this consolidated judgment we intend disposing of all the petitions, the description whereof is provided in Annexure "A" to this judgment.
2. The issue at hand raised in all these petitions relates to the test conducted by the Provincial Government commonly known as Medical & Dental Colleges Admissions Tests ("MDCAT') for admission to MMBS and BDS programmes in public sector as well as private sector Medical Colleges and Universities, on 10th September 2023 on the province wide basis through Educational Testing & Evaluation Agency ("ETEA") and there are allegations of mass cheating through modern electronic devices in the said examination. In order to appreciate the issue, we deem it appropriate to refer to the legal dispensation of the impugned examination.
Medical and Dental College Admission Test (MDCAT)
3. Every student who is desirous to pursue his medical education in Pakistan is required to undergo and pass MDCAT prior to obtaining such admission. Section 17 of the Pakistan Medical and Dental Council Act, 2023 ("Act No. IV of 2023") envisages that each province as per the policy and standard approved by the Provincial Government and Federal Government respectively shall conduct on the dates approved by the Medical and Dental Council "Council" a single admission test based on the intermediate or equivalent syllabus for all students seeking admission in undergraduate programme both in public and private Medical & Dental Colleges and Universities.
Similarly, it is also envisaging in sub-section 3 of section 17 of the Act No. IV of 2023, that admission to Medical & Dental programmes conducted by the public & private colleges and universities shall be regulated as per the policy and standard of the Federal Government through Minister In-charge and Provincial Government. It is further provided under sub-section 2 of section 17 ibid, that no student shall be awarded a Medical or Dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in Medical or Dental Colleges in Pakistan.
4. The Pakistan Medical and Dental Council established under section 3 of the Act No. IV of 2023, has the mandate under section 9 sub-section 2 Clause (f), to make rules and regulations for the conduct of admission in Medical and Dental Colleges and examinations to be conducted by each Province, Islamabad Capital Territory and Gilgit Baltistan and approve the examination structures and standards of the National Registration Examination.
5. The Council while exercising its authority under section 9 sub-section 2 Clause (f) has issued a notification dated 13111 July 2023 known as "PM&DC Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Policy Regulations 2023" ("Regulations of 2023"), applicable to all Medical & Dental Undergraduate Programmes recognized by the Council. Rule 2 sub-clause C mandates "Admitting Universities" of the respective provinces to conduct a MDCAT and make admissions in all public and private sector colleges of the province.
6. In the province of Khyber Pakhtunkhwa an independent and autonomous authority by the name Education Testing & Evaluation Agency ETEA has been established under section 3 of the Khyber Pakhtunkhwa Educational Testing & Evaluation Agency Ordinance, 2001 ("Ordinance No. VIII of 2001"). The purpose of establishing ETEA and its functions has been provided under section 4 of Ordinance No. VIII of 2001, which, inter-alia, includes the development of resources and system for conducting examination in respect of educational institutions in general and for admission to the educational institutions in particular and to perform such other functions as Government may by notification in the official gazette assign.
7. For conducting MDCAT for the session 2023, the Council through letter No.16 dated 02.06.2023 requested to the Provincial Government of Khyber Pakhtunkhwa to appoint and nominate any university as "Admitting University" eligible to fulfil the requirement of Act No. IV of 2023 and admission regulations. In response to the said letter, the Provincial Government was pleased to notify the Khyber Medical University, the only Public Sector University as "Admitting University" for the session 2023 vide notification dated 06.07.2023.
8. Accordingly, an MOU was inked between the Khyber Medical University and ETEA on the Is'
August, 2023 to conduct the MDCAT as per syllabus provided by the Council according to the policy & standard of the Provincial Government of Khyber Pakhtunkhwa. The Council had initially fixed a date for MDCAT as 27' August, 2023 which was later changed to September, 10th 2023. Accordingly, 46,439-candidates appeared in the examination from 43 centres established by ETEA in 11 cities of the province.
Use of unfair means in the Medical & Dental Colleges Admission Tests (MDCAT) held on September 10th, 2023.
9. While the MDCAT examination being conducted by ETEA was in process, reports began to emerge through various sources which, inter-alia, includes intelligence agencies, social media, that candidates taking the examination were using technical based unfair means through an organized racket and during the said process ETEA was able to arrest certain candidates and registered F.I.Rs against the unscrupulous elements in various Districts of the province. When the matter was brought to the notice of the Provincial Government, the Provincial Government through Home & Tribal Affairs Department constituted a joint investigation team ("JIT") vide notification dated 15.09.2023 under the Chairmanship of Additional Inspector General of Police, Special Branch, Khyber Pakhtunkhwa with representation from the departments of Higher Education, Health, Home and Tribal Affairs, Intelligence Bureau; SSP Investigation, CCP, Peshawar were the members of the JIT and a co-opted member from Khyber Medical University namely Dr. Javed Ahmad was also part of the JIT . The JIT was to dig out the complete facts on the matter, the planners and perpetrators behind the mass cheating through use of sophisticated communication equipment for unfair means, the complicity if any of Government servants and organized racket behind it.
10. Similarly, some of the candidates had approached this Court through various complaints/petitions, questioning the transparency of the MDCAT, the said petitions were converted into Constitutional petitions and were placed before this Bench on 15.09.2023.
Accordingly, notices were issued to the respondents to file their reply and on the same date ETEA was restrained from uploading the MDCAT result on official website or through any other means till further orders of the Court. During the instant proceedings, the worthy Advocate General appeared before the Court and has provided the report of JIT dated 20.09.2023. The JIT was able to unearth certain serious irregularities conducted in the examination and their observations are reproduced as under: "Preliminary investigation of Police and reports of Intelligence Agencies have revealed that a number of perpetrators and accomplices were involved in making available/selling of Bluetooth and other devices to the candidates before the conduct of examination on 10th September, 2023 for substantial amounts from the involved candidates. It is estimated that nearly eight hundred candidates may have had access to the unfair means.
It is also transpired that they have been applying these techniques not only for MDCAT but also for other tests/recruitment examinations. This has been carried out in an organized manner by groups in different districts of Khyber Pakhtunkhwa. The network consists of major operations in District Karak, while many other smaller associated groups have been identified operating in other districts of the province.
It has also been unearthed that the network has been operating for several years with one Zafar Mehmood Khattak resident of Karak as one of the main culprits. The police has also recently arrested associated gang members and further investigation is under process. The main culprit has previous history of government service and was earlier involved and arrested in unfair means scam."
11. The matter was placed before the "Caretaker Provincial Cabinet" for its decision keeping in view the (JIT) report, accordingly a special meeting was held of the Caretaker Provincial Cabinet on September 28" 2023, wherein the following decisions were taken: - "Decision: (i). Medical and Dental Colleges Admission Test (MDCAT) conducted on September 10th, 2023 is cancelled and shall be re-taken within 06-weeks' time in order to ensure timely admission into the medical institutions.
(ii). Khyber Medical University (KMU) shall conduct a fair and transparent test in accordance with codal formalities and the Provincial Government will provide security through District Administration & Police.
(iii). Higher Education Department shall constitute a committee, comprising officers of all the stakeholders Departments, IT experts and officials of Educational Boards having expertise of secrecy matters, to submit recommendations for re-vamping and improving the testing mechanism and secrecy of ETEA.
(iv). Strict action shall be taken against all planners and perpetrators involved in the cheating scam according to the prevailing laws and rules. "
In response to the notice issued to the respondents, they have filed their written replies.
Comments filed by Education Testing & Evaluation Agency (ETEA)I Respondent No.3.
12. It is the contention of ETEA, that pursuant to MOU dated 1ST August, 2023, it has conducted MDCAT on September 10th, 2023 where 46,439-students appeared and for that it had established 43 centres at 11 cities, efforts were made to conduct the test in a transparent manner and proper security measures were taken which, inter-alia, includes the physical search of the candidates before entering the examination halls. Neither the paper was leaked from the possession of ETEA nor any official of the ETEA was found involved in the scam. Indeed, it was ETEA who was able to get hold of those students who were involved in cheating. Comments filed by Khyber Medical University.
13. It was the contention of Khyber Medical University that being the only Admitting University in the Province of Khyber Pakhtunkhwa, the MDCAT examination was organized by it through ETEA strictly by observing the standard provided by the Federal Government as well as by the Council. It was the ETEA which through a common syllabus available on the website of the Council prepared a question paper composed of 200-MCQs to be attempted in 3- /2 hours and as per Khyber Medical University supervisor feedback reports, transportation opening and closure and return transportation of question paper and answer books were performed only by ETEA staff and even in some of the centres, the Khyber Medical University staff was not allowed to enter into examination hall. The Khyber Medical University has further confirmed the reports that during body search and scanning process through metal detectors a number of GSM based Bluetooth devices were recovered from both male and female candidates. Despite, initial checking some of the candidates mostly females were able to take these devices inside examination centres and were caught later on during the examination.
Written reply of the Council.
14. It is the contention of the Council that as per mandate of section 17 of the Act of 2023, a single MDCAT was conducted all across Pakistan on September 10th, 2023 wherein almost 187,000 students appeared. A post examination analyses of MDCAT of 2023 was held on 15th September 2023 at the Council premises which was attended by the Vice Chancellors of all Provincial Admitting Universities, including the Vice Chancellor of Khyber Medical University. As per the press release of the meeting issued on the same date, the Khyber Medical University provided details of MDCAT conducted in the Province of Khyber Pakhtunkhwa according to which total of 46,339 students were registered in the Province while only 45,640 students appeared in the examination whereas 799 students were absent. It was apprised by the Vice Chancellor of Khyber Medical University in the meeting that 219 students were caught red handed in cheating, using unfair means and necessary legal action against the students were initiated accordingly. The number of students who were caught red handed using unfair means only constitute 0.4732% of the total students, therefore, only the examination was to be cancelled to their extent whereas the rest of the students have properly given MDCAT and therefore, the test of the rest of the students shall not be put into limbo causing uncertainty.
15. Before us there are two camps of students; one complaining against the manner and mode of conduct of examination and the others who were impleaded in the proceedings on their application, are not satisfied with the decision of the Provincial Government to scrap the entire examination on the allegations unearthed by JIT and have argued that since they appeared in the examination and were able to obtain high score, therefore, the examination should not be scrapped as a whole and only the examination of those students should be annulled who were found involved in the cheating/use of unfair means.
Contentions of learned counsel representing the camp who have questioned this examination.
16. Mr. Syed Abdul Haq, Advocate was the lead counsel who has argued the case on behalf of the petitioners. The learned counsel has maintained that admittedly en-masse cheating was noticed in the examination and thus the entire examination has lost its sanctity albeit shattered the confidence of the public in the system, therefore, the decision of the Provincial Government for a retake is just and fair in the circumstances of the case. The learned counsel while placing reliance on the case of "Rashid All Channa Vs Muhammad Junaid Farooqui & others (2017 SCMR 1519)" has argued that when serious illegalities and discrepancies in examination were unearthed by JIT then the only course is the re-take of the entire examination. The learned counsel has also referred to the law laid down in the cases of "Jaudat Hassan Vs Board of Secondary Education Karachi (2011 CLC 867 Karachi); People University of Medical & Health Sciences for Women through Registrar Vs Pakistan Ministry of Health Services Regulation and Coordination (PLD 2021 Sindh 526)".
Arguments of learned counsel representing the other camp.
17. M/s Zia ur Rahman Tajik, Sabah ud Din Khattak, Yasir Khattak, Advocates have addressed the following arguments: - (i). That the Provincial Government has no mandate to annul the examination which is the sole prerogative of the Council and has relied upon the judgment of Sindh High Court in the case of "Naila Maqbool Laghari Vs Govt: of Sindh & others (PLD 2018 Sindh 391)", wherein, when the Provincial Government had cancelled similar examination for induction in Medical and Dental Colleges Universities, the Honourable Sindh High Court had set aside the said decision for lack of jurisdiction.
The learned counsel have further maintained that since the said examination falls under the regulatory regime of the federal enactment i.e. Pakistan Medical and Dental Council (PM&DC), therefore, the Provincial Government has no authority to interfere in the same. The learned counsel have further maintained that nowhere in past when allegations regarding cheating surfaced/noticed in any examination, the entire examination was scrapped rather the persons involved in cheating should be put to task and the other candidates who were never found involved in cheating could be suffered for the same.
(ii). The next objection was that since under section 17 of Pakistan Medical and Dental Council Act, 2023 ("Act No.4 of 2023"), it is the prerogative of the Pakistan Medical and Dental Council (PM&DC) to notify a single date for conducting the said examination, therefore, once the said examination was conducted; conducting a second examination would offend section 17 of the Act. The learned counsel have also referred to the press release issued by the Council wherein they have shown their satisfaction on the conduct of examination and has urged for announcement of the result.
18. The learned Advocate General has argued that since it is apparent from the JIT report and reports of the intelligence agencies that en masse sophisticated unfair means were used in the examination and according to the said preliminary investigation the same has remained a practice even in past but could not be noticed. His next contention was that the racket was traced who are the employees of the Provincial Government as well as the Federal Government behind the sophisticated scam and good number of persons are arrested. He further argued that the device used in the said process is so sophisticated and smart that it could not be easily noticed by invigilators and the Government has sufficient proof that good number of students have used the said devices and for that reason when we compare the test result of this year with that of the previous year there is an alarming and noticeable difference of the candidates who have obtained marks more than 180 out of 200. For these reasons, when the matter was placed before the Cabinet, it has ordered for cancellation of the examination and it has set aside the result and has ordered for re-take within six (06) weeks.
19. Perusal of the arguments of learned counsel for the parties as well as Advocate General, the following are the questions for determination of this Court.
N. Whether the Provincial Government has any authority to have cancelled the MDCAT test for the year 2022/23?
(ii). Whether the impleaded candidates have any vested rights in the test and therefore, the Provincial Government even, if it has the authority was left with any locus poenintentiae to cancel the test?
(iii). What is the effect of the terms single date occurring in section 17 of the Act as once the test conducted on the date fixed by the Council, whether the retake would amount to a second test which is not permissible under section 17 of the Act?
Questions No.1 & 2
20. Act No. IV of 2023 governs the subject. The ultimate regulator of Medical profession is the Council established under section 3 of the Act. The powers of the Council are provided under section 9 of the Act No. IV of 2023 which inter alia includes the framing of regulations for conduct of admission in Medical & Dental Colleges.[1]
21. Similarly, National Medical & Dental Academic Board ("Board") is an entity established under section 10 of the Act No. IV of 2023 headed by Chairman, Higher Education Commission of Pakistan.
The powers and functions of the Board are provided under section 13 of the Act which, inter alia, includes to formulate the examination procedure and structure for MDCAT to be conducted by the respective provinces for approval of the Council and to formulate and recommend to the council for its approval the standard scope and structure of MDCAT.[2] Section 17 of the Act No. IV of 2013 governs the MDCAT, which reads as under:
17. Medical and Dental Colleges Admission Tests (MDCAT). --(1) Each province, Gilgit Baltistan and Islamabad Capital Territory as per the policy and standards approved by the Provincial Governments and Federal Government respectively shall conduct on the dates approved by the Council, a single admission test based on the intermediate or equivalent syllabus for all students seeking admission in undergraduate programs both in public and private medical and dental colleges and universities.
(2) No student shall be awarded a medical or dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in a medical or dental college in Pakistan: Provided that the mandatory requirement of MDCAT shall not apply to students seeking admission on a special program seat predefined exclusively for foreign students and on the seats reserved for overseas Pakistanis.
(3) The admission to medical and dental programs conducted by public and private colleges and universities shall be regulated as per the policy and standards of the Federal Government through Minister Incharge, Provincial Government and Gilgit Baltistan strictly on merit. However, private colleges may take any additional entrance test subject to any condition imposed by the relevant university to which such college is affiliated: Provided that the marks obtained by a student in MDCAT conducted by the province shall constitute a minimum offifty percent of the weightage for the purposes of admission in the public and private colleges.
(4) The MDCAT result of one province shall be valid for the entire country and shall be valid for a period of three years. Each province, Gilgit Baltistan and Islamabad Capital Territory shall give preference to the students having domicile of their respective province or territory as the case may be.
(5) Admissions on vacant seats shall be decided by the respective provincial government and respective authority in case of Gilgit-Baltistan and Islamabad Capital Territory.
22. The very opening paragraph of section 17 clearly envisages that each Province has the authority to conduct the MDCAT, however, the policy and standard is to be provided by the provincial as well as the Federal Government. MDCAT shall be conducted on the date approved by the Council, a single admission test based on intermediate or equivalent syllabus for all students seeking admission in undergraduate programme. Similarly, as discussed earlier in the preceding paragraphs that in each province an admitting university is to be notified with the concurrence of the Council by the Provincial Government to conduct MDCAT. Thus, it is clear from the verbiage of section 17 that it is the Province alone which is responsible for conducting MDCAT. The only mandate of the Council is to notify curriculum and a single date for MDCAT throughout the country.
Similarly, the Act is completely silent about the eventuality when the Government is faced with the situation like in the present case when there are allegations of mass cheating in the said examination. Since, the Act is completely silent to provide any mechanism for the situation like present in this case, therefore, the general principle as provided under section 21 of the General Clauses Act would be attracted which envisages that where an Act or Regulation empowers an authority to issue order, rules or by-laws that the said power includes a power exercisable in like manner and subject to the like sanction and conditions, to add, to amend, vary or rescind any orders, rules, bylaws so issued. The said power is always available to the Government or the executive authority to rescind any notification or order till a decisive step is taken. Even the law is settled that perpetual rights cannot be gained on the basis of illegal and flawed order and when the order has been acquired in illegal manner, the rule of locus poenitentiae will apply .
"Muhammad Hussain Shaikh & others Vs University of Sindh & others (2002 PLC (C.S) 696)". The learned counsel for the respondents have referred to the judgment of the Honourable Sindh High Court in the case of Naila Maqbbol, wherein in a similar situation when a similar examination was conducted for admission in Medical Colleges, the same was cancelled by the Provincial Government. The Honourable Court has thoroughly examined the said issue from various angles and it was held in the said judgment that since under the then regulations i.e. MBBS and BDS (Admission House Job & Internship) Regulations 2016, the mandate to conduct the said examination was with the then PMDC, therefore, the Provincial Government had no authority to cancel the said examination. With profound respect, the said judgment is quite distinguishable. In that case under the then Regulations, it was the PMDC which had the mandate to hold the said examination, therefore, the Provincial Government had no authority in the matter to cancel the examination. However, in the present case, section 17 of the Act empowers the Provincial Government alone to conduct the said examination, therefore, we are of the considered opinion that the Provincial Government has the authority to cancel the said examination in terms of section 21 of General Clauses Act, 1897.
23. We are conscious of the fact that the Provincial Government cannot exercise the said authority in vacuum unless there is sufficient material before the Provincial Government justifying or even requiring for cancellation of the said examination. The record is clear that unfair means were indeed used in the said examination on a very large scale and there was a racket behind the same. It is evident from the report of JIT that it was a premeditated scheme of an organized group who have devised scientifically sophisticated equipment for unfair means which were available in the market against handsome amount. Though, only 219 persons were found involved using the said devices, however, keeping in view the character and design of the devices which were not easily visible, there is a strong probability that a good number of students have used the said devices.
24. It was the main argument of the students who were aggrieved of the decision of the Provincial Government that, since, the identified student can be segregated and the matter can be resolved by cancelling their examination only, therefore, the decision of the Provincial Government ordering for the cancellation of the entire examination is harsh. These arguments might have some weight but the en masse unfair means in the examination on one side has shattered the confidence of public in the examination system and on the other hand, if we allow the piecemeal cancellation of examination it will encourage the racket who were involved in the said scam as well as those students who were involved in the cheating but remained unnoticed in the process either by manoeuvring with the invigilators of the examination or otherwise. They will obviously be in an advantageous position over the other who are competing for a limited number of seats. The MDCAT examination results carries 50% of the total 100 marks, hence even a small edge in the total marks by using unfair means would give unfair advantage to the students who were able to cheat in the examination.
In this regard we can refer to an example from Indian jurisdiction wherein a similar examination was conducted for all India pre medical and pre dental examination wherein the unfair means were used in the similar fashion and style i.e. the use of electronic device during the course of examination. When the matter reached to the Indian Supreme Court in the case of "Tanvi Sarwar Vs Central Board of Secondary Education & others reported as (AIR 2015 SC 3454) it has very scholarly addressed this issue in para 16 of the judgment which is reproduced as under: "Segregation only of the already 44 identified candidates stated to be the beneficiaries of the unprincipled manoeuvre by withholding their results for the time being, in our comprehension cannot be solution to the problem that confronts all of us. Not only thereby, if the process is allowed to advance, that would be pushed to a vortex of litigation pertaining thereto in the foreseeable future, the prospects of the candidates were not only remained uncertain and tentative, they would also remain plagued with the prolonged anguish and anxiety if involved in the ordeal of Court cases. Acting on this option, would in our estimate, amount to driving knowingly the students, who are not at fault, to an uncertain future with their academic career jeopardy on many counts, further, there would also be a lurking possibility of un-identified beneficiary candidate stealing a march over them, on the basis of the advantages availed by them through the underhand dealings as revealed Having regard to the fact, that the course involved with time would yield the future generations of doctors of the country, who would be in charge of public health, their inherent merit to qualtb, or taking the course can by no means be compromised.
25. Similarly, the worthy Sindh High Court when confronted with alike matter in the case of "Ms. Saba Vs The Province of Sindh 2020 PLC (C.S) 113" while referring to the various instances where the examination were conducted in various jurisdictions and in the said examination unfair means were used then in such circumstances retake of examination was emphatically approved. The relevant paragraphs of the said judgment are reproduced as under:
15. The phenomenon of leakage of paper before examination and in such set of circumstances, decision to retest/retake by the authorities is not unique or novel. Following are some working examples in which the paper was leaked thereafter the concerned authorities decided to take retest/retake examinations and everybody sat without any reservation or objection:
1. Gulf News, April 1, 2018. UAE schools averted retake of CBSE exams. India's CBSE (Central Board of Secondary Education) said all students would have to reappear for the Class 10 maths and Class 12 economics exam after it emerged that exam papers had been leaked on WhatsApp.
2. Khaleejtimes.Corn, March 29, 2018. More than 10,000 Indian students have to reappear in Class 10 mathematics and Class 12 economics examinations following a confirmation of question paper leaks by the Central Board of Secondary Education (CBSE), on Wednesday. (same as above)
3. Dunya News, 06th October, 2017. Lahore High Court directed to conduct a re-examination of medical entry test after finding evidence that its question paper was leaked. The court conducted hearing over the petitions filed against the leakage of question paper.
4. BBC News, 13 October 2016. Some children had already seen 11-plus paper before sitting the exam. The mistake was spotted by girls retaking the English exam in Plymouth.
5. The Indian Express, March 29, 2018. CBSE Class, X, XII Papers leaked: Over 20 lakh Students have to retake exam, dates to be announced soon. Central Board of Secondary Education (CBSE) announced that re-examination will be conducted across the country for Class 10 Mathematics and Class 12 Economics papers.
6. The Supreme Court India dismissed a string of writ petitions filed in the wake of the recent event of the leakage of the Economics and Mathematics question papers for the class 12 and 10 CBSE examinations respectively. 16 lakh students appeared in the exam in 11 regions all over the country and abroad. A plea was taken by the petitioners that the decision of re-examination contradicts the test of proportionality and reasonableness. The bench remarked, "it is not a part of the jurisdiction of this court to see if the paper was leaked... in writ jurisdiction, we cannot examine the impact of the leakage...this falls within the power of the authorities..." <https://www.livelaw. in/sc- dismisses-petitions-relating-cbse-examination-paper-leak retese>
7. Aljazeera, 20 Jun 2016. A total of 555,177 pupils will be re-sitting partial baccalaureate exams this week. More than half a million secondary school pupils are retaking their baccalaureate exams in Algeria after a major leak of the papers online earlier this month. Algerian authorities have decided to temporarily block several social media websites including Facebook and Twitter, starting on Sunday, to prevent .further cheating. Tribune, Karachi, October 30, 2012. Retakes scheduled after IoBM papers leaked. At least 160 students at the Institute of Business Management (IoBM) have been asked to retake an exam after the administration learnt that a question paper was leaked.
9. The Express Tribune Blogs. June 5, 2013. The British Council has announced "a breach of security".
Because of a few low cheats, all students will have to retake their Pakistan Studies and Islamiyat Papers in ten days' time. The problem of leaks is not purely a Pakistani one. In places like Zimbabwe the main local examination board Zimansec has very little credibility due to rampant cheating. The only credible qualifications in Zimbabwe are those from the Cambridge International Examination Board. However, reputable examination boards can also face issues. For example, in April this year an A-level paper was leaked online in the UK. The CIE Board also faced some minor issues in Namibia recently.
10. The Daily Star, Bangladesh, August 16, 2018. The High Court cancelled the written examination held on April 21 last year for the recruitment of executive officer of Janata Bank for question paper leak. The writ petitioner prayed to cancel the examination and hold a retake. They said in the petition that the question papers of the examination were leaked before the exam.
11. Independent News for International Students. 29.3.2017. UK: Medical students to resit exams after online leak discovered. More than 250 final-year medical students from the University of Glasgow will have to retake their exams following a discovery exam details were leaked through social media, The Telegraph reports. https: //www.studyinternational.com/news/uk-medical students <https ://www. studyinternational. com/news/uk-medical-students>.
12. bdnews24.com. Bangladesh, 18 Feb., 2018. Government panel says SSC questions leaked, recommends test retaking. A government panel says it has found that the questions of the school- leaving SSC and equivalent exam have leaked and plans to file recommendations for retakes in some cases.
13. Supreme Court of India. Civil Appeals 5675-77/2007. (Chairman, All India Railway Rec.
14. Board v. K. Shyam Kumar and others). Railway Board directed the Railway Recruitment Board to conduct retest for recruitment to Group-D posts for those candidates who had obtained minimum qualifying marks in the first written examination against which large scale irregularities were noticed including leakage of question papers. The court maintained the decision of the Board for retest.
16. The aforesaid incidences of leakage of papers and decision of retest make evident that a large number of students had to sit in retake/retest. In India two million students had to sit in retest of two papers. The Supreme Court of India dismissed the petitions which were filed to challenge the decision of retake/retest. In our country the Cambridge students had to sit in retest of two subjects like other examples of Lahore High Court orders for retest in the medical entry test and retest/retake announced by Institute of Business Management. The right which is foundation of an application under Article 199 of the Constitution is a personal. The legal right may be a statutory right or a right recognized by law. A person can be said to be aggrieved only when a person is denied a legal right by someone who has a legal duty to perform relating to the right. There must not only be a right but a justiciable right in existence to give jurisdiction to this court in the matter.
The object of the proceeding initiated under Article 199 of the Constitution of Islamic Republic of Pakistan is the enforcement of a right and not the establishment of legal right and therefore, the right of petitioner must not only be clear and complete but simplicitor and there must be an actual infringement of the right. Ref: Asdullah Mangi v. PIAC (2005 SCMR 445).
26. The present case in no way is distinguishable from the aforesaid cases where the re-take of the examination were ordered by the Courts or by the Government, therefore, we have no occasion to hold a different view and hold that the decision of the Provincial Government is in consonance with the principles of natural justice, fair play and obviously is aimed to uphold transparency in the examination.
27. As we have stated above, that the candidates who are opposing the re-test had no vested right in the examination conducted by the respondents and the Provincial Government has the locus poenitentiae of the re-test then the said re-test will cause no prejudice to those candidates because if they have confidence in their abilities and intellect, then obviously in the next examination they would again be with better position. However, if the said examination is not re- conducted, the candidates who were indeed involved in unfair means would be in advantageous position as compared to those students who have worked hard and burnt midnight oil while preparing for the examination. Therefore, the decision of the Provincial Government on this score is not open to any exception. Neither the candidates who appeared in the examination have a right in the result of the said examination where the examination was conducted against the principles of transparency. The Balochistan High Court in the case of "Qaiser Khan Vs Chief Secretary, Government of Balochistan (2013 PLC(C.S) 1132)" where an examination for selection process was set aside and the same was challenged before the Balochistan High Court, it was held by the Court, "learned AAG is also correct in stating that the government is within its rights to cancel the selection process before any appointment have been made, particularly when serious contravention of the applicable procedure was made". Consequently, the petition cannot succeed as no illegality has been committed by the Government of Balochistan in cancelling the said result.
Question No.3
28. Moving on to the contention of the Council as well as some of the impleaded candidates wherein they have raised the objection that since one examination was conducted on the date notified by the Council. Therefore, the said test cannot be re-conducted as section 17 of the Act ibid only envisages for a "single admission test".
29. The Sindh as well as Lahore High Court has elaborately settled this issue. In this regard we would refer to the intellectual discussion of Mr. Jawad Hassan-J in para No.13 of the judgment passed in the case of Rida Fatima (PLD 2022 Lahore 197), which reads as under:
13. Perusal of section 18(1) of the Act makes it abundantly clear that the expression "single admission test" refers to the fact that every student would only be allowed to appear in and sit for one MDCAT and the context and object of the Act shed light on the purpose underlying behind the condition laid down under the Act, which clearly suggests that the emphasis is on substance and not on form, which means that all the students must be adjudged on a single standard of testing and on a similar pattern of scoring with equal number of opportunity to participate in the exam in a single year and no preferential discrimination will be done in this regard. Moreover, Section 20 of the Act clearly mentions that the examination shall be held at least twice a year. The Hon'ble Sindh High Court while dealing with the same issue passed a detail judgment in C.P. No.6021 of 2020 titled as "Syed Ahmed Maaz and others v. Federation of Pakistan and others" (2021 CLC 937) and observed that taking the NMDCAT on two dates is not illegal. It was held by the Court:-
9. Regarding the argument advanced on behalf of the petitioners that Section 18 ibid allows only a single NMDCAT and as such the impugned announcement of conducting the subject tests on two different dates is ultra vires the PMC Act, we are of the view that a plain reading of Section 18(1) ibid would show that the words "on a date" and "a single admissions test" contained therein do not mean that the same must be read conjunctively. The words "a single admissions test" clearly denote a single attempt by every applicant; and the words "on a date" undoubtedly mean the date approved by the Council. In this context, the submission made on behalf of PMC that a single admissions test means a centralized test across Pakistan also has force. It is not disputed that all the applicants appearing in the subject tests on both the given dates will be allowed only one / single attempt, and both the said dates have been duly approved by the Council. As noted above, the Council has the power under section 8(2)(f) of the PMC Act to frame regulations for the "conduct" of admissions in medical and dental colleges "and the examinations to be conducted by PMC". Therefore, the approval accorded by the Council for conducting the subject tests on two dates cannot be deemed to be illegal or ultra vices the PMC Act, especially when every applicant will be allowed only a single attempt. (emphasis supplied)
14. Perusal of Section 18(1) ibid would show that the words "on a date" and the expression "a single admission test" contained therein do not imply that the same must be read conjunctively. The words "a single admission test" clearly denote a single attempt by every applicant; and, the words "on a date" undoubtedly mean the date approved by the Council. In this context, the submission made on behalf of learned counsel for PMC that single admission test means a centralized test across Pakistan has no force.
30. We have no occasion to hold a different view regarding interpretation of section 17 of the Act relating to single admission test other than what has been held by the Honourable Lahore as well as Sindh High Court. Even otherwise once the said examination was held on the date notified by the Council and due to mass irregularities and cheating in the said examination, the Provincial Government has already set aside/annulled the said examination before it could be announced, therefore, now it is the responsibility of the Council to notify another date within the time frame provided by the Provincial Government for conducting MDCAT.
In view of what has been discussed above, we hold and declare; (a). That under the facts and circumstances of the case when the mass cheating was unearthed by JIT the Provincial Government ought to have cancelled the MDCAT and thus the decision of the Provincial Government cancelling the MDCAT and its direction for re take of MDCAT is in accordance with its mandate and thus does not call for any interference.
(b). The Provincial Government is directed to conduct the MDCAT within the time period as provided by the Cabinet (six weeks) ensuring transparency in the examination.
(c). Direct the Council to notify to the Provincial Government after consulting the admitting university as well as the Provincial Government a date for the MDCAT across the Province within the time period of six-weeks.
[1]Section 9. Powers of functions of the Council,---(1)....
(2) Without prejudice to the generality of the foregoing powers and notwithstanding anything contained in any other law for time being in force, the Council shall have the following functions and powers, namely:
(f) to make rules and regulations for conduct of admission in medical and dental colleges and examinations to be conducted by each province Islamabad Capital Territory and Gilgit-Baltistan and approve the examination structures and standards of the national registration examination and the national equivalence board examination as proposed by the national medical and dental academic board including the standards of renewal and revalidation of registrations to practice medicine or dentistry in Pakistan.
[2]Section 13. Powers and functions of the board,---(1) The board shall have the following functions and powers, namely: - (a)---- (b)----
(c) to formulate the examination procedure and structure for the MDCAT to be conducted by the respective provinces for approval of the Council.