MIANGUL HASSAN AURANGZEB, J:- Through the instant writ petition the petitioner, Islamabad Medical and Dental College ("IMDC"), impugns the decision dated 11.04.2023 taken by the Acting Registrar of the Pakistan Medical and Dental Council ("PM&DC") whereby a penalty amounting to Rs.1,500,000/- was imposed on it for not granting admission in MBBS Session 2022-23 to respondent No.3 / Syeda Fatima Hussain.
2. The record shows that respondent No.3 had applied for admission in MBBS Session 2022-23 at IMDC. Her merit score was 78.395 whereas that of respondent No.4 / Mah Rukh Aziz was 63.99. Even though respondent No.4's merit score was less than that of respondent No.3, IMDC granted admission to respondent No.4. This caused respondent No.3 to submit a complaint on 06.02.2023 to the PM&DC. Omission on the part of PM&DC to decide the said complaint caused respondent No.3 to file writ petition No.921/2023 before this Court. The said petition was disposed of vide order dated 16.03.2023 requiring PM&DC to decide respondent No.3's said complaint in accordance with the law after affording her an opportunity of a hearing.
3. PM&DC, on 24.03.2023, issued notices to respondent No.3 as well as the to Principal of IMDC to appear for a personal hearing on 28.03.2023. It is not disputed that the hearing was conducted by the Acting Registrar of PM&DC. Vide impugned order dated 11.04.2023, it was held that respondent No.3 was entitled to be granted admission by IMDC in MBBS Session 2022-23. Furthermore, a penalty of Rs.1,500,000/- was imposed on IMDC for granting admission to respondent No.4 whose merit score was less than that of respondent No.3. The said decision has been assailed by IMDC in the instant writ petition.
4. Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that the proceedings conducted by the Acting Registrar of PM&DC were coram non-judice and consequently, the impugned order dated 11.04.2023 was without lawful authority and of no legal effect; that there is no provision in the Pakistan Medical and Dental Council Act, 2022 (Act No.IV of 2023) ("the PM&DC Act, 2022") which empowers the Registrar or Acting Registrar to conduct hearings on complaints against medical and dental colleges or to impose penalties on such colleges; that the duties and responsibilities of the Registrar set out in Section 14 of the PM&DC Act, 2022, do not include the power to conduct hearings or to impose penalties.
5. Learned counsel for the petitioner further submitted that Section 52 of the PM&DC Act, 2022 requires the Council to be constituted within a period of sixty days from the date of commencement of the said Act; that the said Act was enacted on 12.01.2023; that the Council was not constituted within sixty days of 12.01.2023 but on 11.04.2023; that Section 52 empowers the Minister-in-Charge of the Division concerned to exercise the powers of the Council during the transitory period of sixty days; that the Minister cannot exercise the powers of the Council beyond the sixty-day period from 12.01.2023, which came to an end on 13.03.2023; that since the impugned decision was taken by the Acting Registrar of PM&DC on 11.04.2023, the same has no sanctity under the law; and that there is no provision in the PM&DC Act, 2022 which allows delegation of powers.
Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein.
6. On the other hand, learned counsel for PM&DC submitted that the Minister could not have been expected to exercise all the powers of the Council for the transitory period of sixty days commencing on 12.01.2023; that on 03.03.2023, a proposal was submitted to the Minister to authorize the Registrar of PM&DC to conduct hearings in all complaints submitted to PM&DC; that the Minister accorded approval to the said proposal on 08.03.2023; that the Acting Registrar, in exercise of delegated authority, conducted hearings in the complaint submitted by respondent No.3 and his decision to impose a penalty on IMDC was approved by the Minister on 11.04.2023; that it is after the said approval that PM&DC issued the impugned order dated 11.04.2023; that the decision taken by the Acting Registrar has been duly ratified by the Council in its first meeting held on 15.04.2023; and that since the decision to impose a penalty on IMDC already stands ratified by the Council, the said decision for all intents and purposes is to be treated as the decision of the Council. Learned counsel for PM&DC prayed for the writ petition to be dismissed.
7. I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 3 above and need not be recapitulated.
8. The PM&DC Act, 2022 was enacted to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical and Dental Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry. It received Presidential assent on 12.01.2023. The date of the enactment of an Act of Parliament is always the date on which it receives Presidential assent in terms of Article 75 of the Constitution. Even though the said Act was enacted in the year 2023, Section 1(1) thereof provides that it shall be called, "Pakistan Medical and Dental Council Act, 2022." Therefore, in this judgment the said act is being referred to as the PM&DC Act, 2022.
9. Section 2(b) of the PM&DC Act, 2022 defines a "Council" to mean the Pakistan Medical and Dental Council constituted under the said Act. Section 3(1) provides that the Prime Minister shall, by notification in the official Gazette, constitute the Council. The said Section also provides for the composition of the Council. Section 6 of the said Act provides that the Council constituted under Section 3 shall be a body corporate by the name of the Pakistan Medical and Dental Council, having perpetual succession and a common seal, with power to acquire and hold property both movable and immovable, and to contract, and shall by the said name sue and be sued. It also provides that the Council shall be a regulatory body for regulating the medical and dental profession, medical and dental education, and institutions. Section 9(1) vests the Council with powers of general supervision over the working of the Council and to hold the President of the Council, national medical and dental academic board, committees and other authorities accountable for all its functions. In addition to the general powers granted to the Council by Section 9(1), specific powers are conferred on the Council by Section 9(2). One such power is the power under Section 9(2)(s) to determine "the quantum of penalties in respect of any violation or offence pursuant to this Act or as may be provided for in accordance with regulations prescribed by the Council subject to the quantum being a fair compensation for the wrong caused and a deterrent to future violations of similar nature by any person."
10. Section 52 of the PM&DC Act, 2022 requires the Council to be constituted within sixty days of the commencement of the said Act. This sixty-day period is referred to in the said Section as a "transitory period" during which the Minister-in-Charge of the National Health Services, Regulation and Coordination Division has been empowered to exercise the powers of the Council. The decisions taken by the Minister during this transitory period have been made subject to ratification by the Council constituted after such period.
11. After having given a conspectus of the provisions of the PM&DC Act, 2022 which are relevant for the purposes of the instant case, the first question that needs to be determined is whether the Acting Registrar of PM&DC was vested with the power or jurisdiction to conduct proceedings pursuant to respondent No.3's complaint dated 06.02.2023 and/or to impose a penalty on IMDC.
12. Section 14(1) of the PM&DC Act, 2022 requires the Council to appoint a Registrar through a transparent process. The responsibilities which the Registrar is required to discharge are set out in Section 14(2), which provides that the Registrar shall maintain all records of the Council and the Board, including recording and issuing the minutes of all meetings of the Council and the Board in real time and as approved at the relevant meeting, and shall under his signature issue all notifications and decisions of the Council and the Board as and when necessary. Section 14(3) of the PM&DC Act, 2022 provides that the Registrar shall be the custodian of the common seal of the Council whereas Section 14(4) provides that the Registrar shall cause to be displayed on the website of the Council all minutes of the meetings of the Council and the Board as approved, audited accounts of the Council, and all notifications and decisions of the Council and the Board.
13. Since the duties, which the Registrar is to perform, are circumscribed by Section 14 of the PM&DC Act, 2022, he cannot perform any other duty or exercise power not specifically conferred on him by statute. It is not disputed that the PM&DC Act, 2022 does not confer on the Registrar the power to conduct hearings on complaints submitted to PM&DC or to impose any penalty on a medical or dental college.
14. As mentioned above, the power to determine penalties is specifically conferred by Section 9(2)
(s) of the PM&DC Act, 2022 on the Council. The said statutory provision explicitly confers on the Council the power to determine, in addition to penalties already provided for under the PM&DC Act, 2022, the quantum of penalties in respect of any violation or offence pursuant to the said Act or as the case may be provided for in accordance with the Regulations prescribed by the Council subject to the quantum being a fair compensation for the wrong caused and a deterrent to future violations of similar nature by any person.
15. Learned counsel for PM&DC attempted to demonstrate that the hearing conducted by the Acting Registrar pursuant to respondent No.3's complaint or the penalty imposed by him on IMDC did not suffer from any legal infirmity by submitting that the Minister had, on 08.03.2023, approved a proposal made by the management of PM&DC through a summary dated 03.03.2023 to authorize the Registrar of PM&DC to conduct hearings in all complaints submitted to PM&DC. The said summary shows that this proposal was made because it was felt that it was not practically possible for the Minister to hear each and every complaint. Reference in the said summary was also made to Section 9(2)(s) of the PM&DC Act, 2022 which empowers the Council to determine penalties and to Section 52 which empowers the Minister to exercise the powers of the Council for a period of sixty days from the date of the commencement of the PM&DC Act, 2022.
16. The recitals of the said summary make it clear that the power to determine a penalty is vested only in the Council by virtue of Section 9(2)(s) of the PM&DC Act, 2022. For the purposes of clarity, it is essential to reproduce herein below Section 52 of the PM&DC Act, 2022:- "52. Transitory provision.-Upon the commencement this Act, the Council shall be constituted within sixty days, however, during the transitory period of sixty days, Minister-in-charge of the Division concerned shall exercise the powers of the Council, subject to the condition that all his decisions shall be ratified by the Council constituted after transitory period."
17. Section 52 ibid empowers the Minister to exercise the powers of the Council but only for the transitory period of sixty days from the date of the commencement of the PM&DC Act, 2022 within which period the Council is to be constituted by the Prime Minister in terms of Section 3(1) of the said Act. The date of the commencement of the PM&DC Act, 2022 was 12.01.2023 when it received the assent of the President of Pakistan. The Council was not constituted within sixty days of the commencement of the said Act but on 11.04.2023, vide notification (SRO 455(I)/2023) issued by the Ministry of National Health Services, Regulations and Coordination.
18. Section 52 of the PM&DC Act, 2022 envisaged that the Council would be constituted within a period of sixty days from 12.01.2023. It is for this reason that the said Section catered for the eventuality of the non-constitution of a Council for sixty days after 12.01.2023 (i.e., up to 13.03.2023) but not for the period after 13.03.2023.
19. If this Court were to hold that the Minister could exercise the powers of the Council beyond the sixty-day period envisaged by Section 52 of the PM&DC Act, 2022 or until the constitution of the Council through notification dated 11.04.2023, it would be doing violence to the unambiguous language of the said Section and would amount to reading into the said Section words not found therein.
This Court cannot recast or reframe the legislation for the simple reason that it has no power to legislate. A Court cannot add words to a statute or read words into it which are not there. Where the words of a statute are clear or unambiguous, the provision should be given its plain and normal meaning without adding or rejecting any words. Departure from the literal rule by making structural changes or substituting words in a clear statutory provision under the guise of interpretation will pose a serious risk as the changes may not be what the legislature intended or desired. Legislative wisdom cannot be replaced by a judge's views. In the case of Khan Gul Khan Vs. Daraz Khan (2010 SCM R 539), it was held that in the garb of interpretation, the Courts have no power to add or omit even a single word from the provisions of law. Since Section 52 of the PM&DC Act, 2022 does not empower the Minister to exercise the powers of the Council beyond the transitory period of sixty days, a fortiori the powers of the Council exercised by the Minister beyond 13.03.2023 (i.e. sixty days after the commencement of the PM&DC Act, 2022 on 12.01.2023), including the power to impose a penalty, would be without lawful authority and of no legal effect.
20. The Minister had not imposed a penalty on IMDC. He had just approved the penalty imposed by the Acting Registrar in purported exercise of delegated power and that too beyond the transitory period of sixty days. The Acting Registrar decided respondent No.3's complaint by directing IMDC to grant admission to respondent No.3 and imposed a penalty of Rs.1,500,000/- on IMDC through order dated 11.04.2023. This order was passed way beyond the transitory period of sixty days which expired on 13.03.2023. On 11.04.2023, the Minister could also not have exercised the powers of the Council or imposed a penalty on IMDC. Therefore, the proceedings conducted by the Acting Registrar were coram non judice and the order passed by him in such proceedings was without jurisdiction and therefore, a nullity in the eyes of law.
21. Another question that needs to be determined is whether the Minister could have delegated the power to hear and decide complaints or impose penalties on Medical and Dental Colleges to the Acting Registrar. True, a proposal had been made by the management of PM&DC in its summary dated 03.03.2023 for the Registrar of PM&DC to be authorized to conduct hearings in all complaints on the ground that it was not practically possible for the Minister to hear each and every complaint. This proposal was approved by the Minister on 08.03.2023. In making the said proposal, PM&DC was oblivious of the mandate in Section 52 of the PM&DC Act, 2022. Section 52 only empowers the Minister and none other to exercise the powers of the Council during the transitory period of sixty days. There is no provision in the PM&DC Act, 2022 which authorizes the Minister (who is to exercise the powers of the Council during the transitory period of sixty days) or for that matter even the Council to delegate any of the powers and functions enumerated in Section 9 of the said Act. What the law does not permit the Council to do, the Minister could most certainly not do during the transitory period of sixty days when exercising the powers of the Council.
22. The power to determine a penalty is specifically conferred on the Council by Section 9(2)(s) of the PM&DC Act, 2022. During the transitory period of sixty days, this power could only have been exercised by the Minister. Since the law does not permit the Council or the Minister to delegate any of its statutory powers, the delegation of power to impose penalties while deciding complaints to the Acting Registrar was without lawful authority and is declared as such. In holding so, reliance is placed on the following case law:-
(i) In the case of Muhammad Ashraf Tiwana Vs. Pakistan (2013 SCMR 1159), it was held as follows:- "49. Here it is helpful to reemphasize the general principle of our law that all statutory authority is fiduciary in nature; it is vested in the functionary or body specified in the statute and is therefore, as a rule non-delegable. The maxim delegatus not potestdelegare sums it up: the delegate cannot further sub-delegate. A leading authority on administrative law, states the rule thus: "It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another." (De Smith, S.A. Judicial Review of Administrative Action, p. 263, 3rd Ed. London: 1973). In his treatise on constitutional law, relying on Vine v. National Stock Labour Board [(1956) 3 All ER 939], Justice (r.)
Fazal Karim, a former Judge of this Court and a leading legal scholar and academic summarizes the position thus: "In deciding whether a person has the implied power to delegate, one has to consider the nature of duty and the character of the delegating person... [T]here are powers which, though administrative in nature, cannot normally be delegated. For example, power of appointment to an office, and disciplinary powers, such as non entitlement to pay, suspensions or dismissals cannot be delegated." (Justice (r.) Fazal Karim, Judicial Review of Public Actions, Vol I, p.
399, Karachi: 2006)..."
(ii) In the case of Imtiaz Gohar Vs. Additional Commissioner (1990 M LD 1912), the Hon'ble Mr. Justice Fazal Karim, speaking for the Hon'ble Lahore High Court, held as follows:- "18. Three general propositions of law are well-settled and well-recognized: (i) if the power given by the statute is personal to the person designated in the statute or the statutary law, the power must be exercised by that person Liversidge v. Anderson (1942) AC 206, 265, (ii) in order to enable a person to delegate his powers or functions, there must be an authority express or implied to delegate and that the action taken by a delegated authority when there is no power to delegate goes to the root of the jurisdiction. (Vine v. National Dock Labour Board (1957) AC 488 and (iii) judicial authority normally a cannot be delegated (Vine's case, referred to above)."
(iii) In the case of Muhammad Vs. Custodian, Evacuee Property (PLD 1976 Lahore 109), it was held as follows:- "Where powers to impose sanctions in respect of disciplinary offences committed by members of a profession or workers in an industry have been entrusted to statutory bodies, the Courts have held that these bodies cannot without express authority delegate their powers of decision to their officers or committees. It is fair to assume that an implied right to delegate the power to decide will never be held to have been conferred if the relevant statutory provisions show that a special confidence is placed in the tribunal as constituted under the Act, or if the consequences of the decision seriously affect individual rights, or if the functions of the tribunal are closely analogous to those typically vested in courts of law."
23. Regardless of the fact that it has been held herein above that the law did not empower the Minister to delegate his powers (which were those of the Council to be exercised by him during the transitory period of sixty days) to any other person, even if it is assumed that such powers could have been delegated, such delegation would come to an end on 13.03.2023. This is because beyond 13.03.2023, the Minister could also not exercise the powers of the Council in terms of Section 52 of the PM&DC Act, 2022. In the case of Hassan Noor Ali Vs. Pakistan State Oil Company Ltd. (2008 YLR 1933), it has been held inter alia that no person can be allowed to delegate his powers which he did not possess after expiry of stipulated period.
24. Much emphasis has been made by the learned counsel for PM&DC on the fact that the Minister had on 11.04.2023 approved the decision taken by the Acting Registrar on 11.04.2023 to impose penalties on IMDC, and that the Council in its meeting dated 15.04.2023 had also approved the said decision of the Acting Registrar. These approvals of the Minister and the Council are of no legal consequence because it has already been held that the Acting Registrar had no lawful authority or jurisdiction to conduct hearings on complaints or to impose penalties. It ought to be mentioned once again that during the transitory period of sixty days from the commencement date (i.e. from 12.01.2023), it is only the Minister who could exercise the powers of the Council. Since Section 52 of the PM&DC Act, 2022 had explicitly conferred on the Minister the powers of the Council during the said period, this power could not have been delegated to any other employee or official of PM&DC including the Acting Registrar.
25. The said Section makes it mandatory for the Council constituted after the transitory period to ratify the decisions taken by the Minister during the transitory period. The ratification by the Council can only be for the decisions of the Minister taken during the transitory period and not a day beyond that. This is because the Minister can exercise the powers of the Council only and only during the transitory period of sixty days. Since the decision taken by the Acting Registrar on 11.04.2023, in purported exercise of the power delegated to him by the Minister, was admittedly beyond the transitory period of sixty days, the same has been held to be without lawful authority and a nullity. An approval of a nullity by the Minister or for that matter by the Council would not clothe it with validity.
26. The decision of the Acting Registrar remains to be without lawful authority or jurisdiction and this defect cannot be cured by an approval of the Minister or a ratification of the Minister's approval by the Council. The principles applicable to the ratification by the principal of the acts of an agent performed prior to the grant of the agency are not applicable to the exercise of powers conferred under statutory provisions. The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab initio void and cannot be ratified. Hence, it is held that the powers of the Council, exercised by the Minister beyond the sixty- day transitory period, are without lawful authority or jurisdiction and incapable of ratification by the Council. In holding so, reliance is placed on the following case law:-
(i) In the case of Chairman, Distt. Screening Committee Vs. Sharif Ahmed Hashmi (PLD 1976 SC 258), it was held that "the expression "void" in the strict and accurate sense means "absolutely null", that is to say, incapable of ratification or confirmation and of no effect whatsoever."
(ii) In the case of Amjad Ali Khan Vs. Ministry of Energy (Power Division) (2019 PLC (C.S.) 300), the Hon'ble Lahore High Court held that "when the basis of an action is held untenable, the subsequent superstructure cannot be allowed to remain in field merely on account of ratification by the competent authority."
(iii) In the case of Gulfam Vs. Ali Muhammad (PLD 1989 Karachi 499), the Hon'ble High Court of Sindh inter alia held that the doctrine of ratification applies only to acts which are not void or forbidden by law.
27. The minutes of the first meeting of the Council held on 15.04.2023 show that the Council had not been appraised about the nature of the complaint made by respondent No.3 against IMDC. The said minutes do not show any application of mind by the Council to the nature of the complaint or whether the penalty imposed by the Acting Registrar was commensurate with the wrong alleged against IMDC. Agenda item No.21 of the said minutes is a simple narration of how the PM&DC Act, 2022 had repealed the PMC Act, 2020 and that Section 9(2)(s) of the former Act empowers the Council to impose penalties. It also refers to Section 52 of the PM&DC Act, 2022 which empowers the Minister to exercise the powers of the Council during the transitory period of sixty days and requires the Council to ratify any decisions of the Minister taken during the transitory period. The Management of PM&DC projected a wrong impression before the Council that since it was not practically possible for the Minister to hear each and every complaint, it was lawful for his powers to have been delegated or entrusted to the Acting Registrar. The Council was clearly under a misconception when it, without having any knowledge of the nature of the complaint and the wrongdoing alleged against IMDC, simply ratified the approval that was granted by the Minister to the decision taken by the Acting Registrar to decide a complaint and impose a penalty on IMDC on a date beyond the transitory period. I am of the view that there can be no valid ratification unless the person ratifying an act or a decision had full knowledge of the facts. The material that the management of PM&DC was under an obligation to place before the Council should have been such as to enable the Council to make an informed decision to ratify the decisions of the Minister made during the transitory period. The Council cannot be expected to act in a mechanical manner and ratify the Minister's decision with their mind and eyes shut to details of a particular case. It may be mentioned that Section 198 of the Contract Act, 1972 provides that no valid ratification can be made by a person whose knowledge of the facts of the case is materially defective. Speaking about the effect of ratification by the shareholders of the illegal or irregular acts of the directors, Lord Romer, speaking for the Privy Council in the case of Premila Devi Vs. The Peoples Bank of Northern India, Limited (AIR 1938 Privy Council 284), held that "there can in truth be no ratification without an intention to ratify, and there can be no intention to ratify an illegal act without knowledge of the illegality." Additionally in the case of Bank of Montreal Vs. Dominion Gresham Co.
(AIR 1930 Privy Council 278), it was held that "effective ratification necessarily involves knowledge of all the material facts on the part of him who ratifies." This principle, in my view, is applicable with equal force in the realm of administrative law.
28. The Council was to be placed in a position as would enable it to deliberate and determine that in the facts and circumstances of a particular case, the Council would have come to the same decision as the Minister did during the transitory period. The minutes of the Council's first meeting dated 15.04.2023 show that such material was not placed before the Council when it proceeded to ratify the Minister's decision to approve the Acting Registrar's decision to impose a penalty on IMDC. This is an added reason for holding that the Council's ratification was of no legal consequence.
29. In view of the above, the instant petition is allowed; the decision dated 11.04.2023 taken by the Acting Registrar of the PM&DC is declared to be without lawful authority or jurisdiction and consequently the same is set-aside. The approval dated 11.04.2023 by the Minister to the Acting Registrar's decision dated 11.04.2023 as well as the ratification dated 15.04.2023 by the Council of the Minister's approval dated 11.04.2023 are also set-aside. The matter is remanded to the Council which shall decide the same in accordance with the law. There shall be no order as to costs.
30. Since by virtue of the Acting Registrar's decision dated 11.04.2023, respondent No.3 was held to be entitled to be granted admission by IMDC and till date she could not be granted admission due to an injunctive order passed by this Court, it is expected that the Council would take a decision in the matter expeditiously and preferably within a period of ten days from the date of the receipt of this judgment. It may be mentioned that this Court has been conscious not to give any finding on the merits of respondent No.3's complaint.