' The relevant facts for decision of this petition briefly are that the petitioner did his M.B.,B.S. In the year 1981 from the King Edward Medical College, Lahore and thereafter he passed his M.R.C.P. Part-I from U.K. The result of which was declared on 10-7-1992. He applied for exemption from F.C.P.S., Part-I through an application dated 24-7-1992. Thereafter, he sent a reminder on 22-8-1992. He was informed vide letter dated 8-9-1992 appended as Annexure `D' with the petition that his case would be put up before Reference Committee, which was expected to meet sometime next month and thereafter he would be informed of the decision. In the meanwhile, he was asked to send his complete biodata with attested copies of certificates of passing MRCP, Part-I and of professional experience since then. He was also advised to send a draft of Rs,1,500 as processing fee for exemption in accordance with the Rules. The needful was done through letter dated 16-9-1992.
However, the petitioner was informed through letter dated 2-1-1993 that it was decided in recent meeting that exemption from F.C.P.S., Part-I will no more be granted on the basis of passing FRCS- I/MRCP-1 as already announced in the press. This way petitioner was constrained to file this Constitutional petition, which was admitted to regular hearing and notices were issued to the respondents, who have appeared and contested the petition.
2. The learned counsel for the petitioner in support of the petition argued that admission is vested right of a person qualified for the same and he cannot be deprived of whimsical, arbitrarily, mala fide and for extraneous reasons. The learned counsel in this behalf has referred to the judgment reported as Farman Shah v. Vice-Chancellor, Gomal University (1992 M LD 2029). It is added that the petitioner applied on 24-7-1992 when according to the policy in vogue the exemption was available. It is added that neither the policy decision nor the Rules can be given retrospective effect. In this behalf, the learned counsel relied on the case reported as Sarfraz Ahmed v.
Government of Sindh (1992 CLC 1367).
3. On the other hand, the learned counsel for the respondents argued that the petitioner has only done MRCP-I and not the full MRCP, therefore, he was not qualified to exemption. In this behalf, reference was made to the letter placed on the record by the petitioner and appended at page 14.
It was added that the prospectus pertaining to admission and examination are changed every year. The application of the petitioner was disposed of in accordance with Prospectus 1992 where there was no provision for exemption. It is added that the petitioner on 22-12-1992 left Pakistan for U.K. To attend a course and came back on 29-10-1993, therefore, he was not available in April, 1993 when the examination in respect of which he applied for exemption was held. It was argued that the exemption as per policy was strictly banned and no exemption whatsoever was granted to improve the standard of education.
4. While summing arguments, the learned counsel for the petitioner had placed on record additional documents P1 to P14 to show that exemptions not only were granted prior to the filing of the present petition but even during the pendency of the petition the respondents had been granted exemptions very generously. It is maintained that this false plea was taken only to mislead the Court. It was added that it is incorrect to argue that exemptions were withdrawn because in foreign institutions specially in U.K. Were not granted any such exemptions. The learned counsel, in this behalf, referred to the Certificate dated 16-3-1994 issued by Overseas Postgraduate Director and also referred to the Prospectus of Royal College of Obsterticians and Gynaecologists to urge that institutions based in U.K. Grant exemptions to Pakistani students.
5. I have given my anxious consideration to the arguments advanced by the learned counsel for the parties and gone through the documents and precedent cases. The main argument advanced on behalf of the petitioner was that the exemption was illegally and arbitrarily denied to him. On the other hand, the learned counsel for the respondents argued that the petitioner had done only MRCP-I and not the full, therefore, he was not qualified to seek exemption. The argument is without any merit for the reason that exemptions were being granted on the basis of passing MRCP Part-I as is clear from Annexure 'G', the letter of Deputy Chief Controller of Examinations through which the petitioner was informed that his request for grant of exemption had been turned down. The respondents have not given the date of 'recent' decision but have appended the minutes of the meeting held on 14th December, 1992 as Annexure 'B wherein it was mentioned that the decision of the Committee made previously to grant exemptions from FCPS to those candidates who had passed FRCS-I and MRCP-I was taken back on 22-11-1992. Therefore it is evident from both these documents that the candidates, who had passed MRCP-I were entitled to exemption.
6. In the second place it was argued that since the petitioner had left Pakistan on 22-12-1992 for U.K.
And came back on 29-10-1993, therefore, he was not available for the examination scheduled to be held in April, 1993. The precise reply by the learned counsel for the petitioner was that once exemption is granted, which his client had sought, then it was for him to decide which examination he was to take. There is nothing wrong with the submission because the exemption was not to be granted for a particular examination. Moreover, this is just an afterthought and not the basis of the rejection of the application of the petitioner for grant of exemption. Therefore, the same cannot be pleaded as a defence to the writ petition.
7. The third and the last argument advanced on behalf of the respondents was that they had not granted any exemption since November, 1993 and that there was no provision for exemption in the prospectus issued in July, 1992. It was added that the prospectus are issued every year and the same govern the admission and control the examinations of respondent No,1. The argument that since there was no provisions for grant of exemption in the prospectus for the year 1992, therefore, neither the petitioner could move for the said exemption nor it could have been granted. The argument is without any merit and against the conduct of respondent No,1 for the following reasons:--
(1) The application made by the petitioner on 24-7-1992 was entertained as is clear from the letter dated 8th September, 1992 appended as Annexure 'D' with the writ petition wherein he was assured of consideration in the next meeting of the Committee. Above all in the meanwhile the petitioner was required to produce documents and pay processing fee.
(2) The application was turned down vide the impugned order dated 2-1-1993 with reference to a recent decision, which according to Annexure 'B' with the written-statement, was taken on 22-11- 1992 and not prospectus 1992.
(3) That although the prospectus were styled as July, 1992 but neither the date of its printing had been given nor the date from which the same came into force had been incorporated therein. It can, therefore, be legitimately presumed that the same were not in force when not only the application was made by the petitioner but also when it was entertained and even when it was decided. Otherwise, the application was to be turned down summarily on the ground that there is no provision for exemption. It seems that the application was entertained and processed in accordance with the prospectus of 1991 or general Policy.
(4) Above, all, if the prospectus of July, 1992 were in force then there was no occasion to pass resolution on 22nd November, 1992 that no exemption shall be given on the basis of passing MRCP- I/FRCS-I.
(5) The argument is completely demolished by the minutes of the meeting of the Reference Committee dated 3-3-1993 whereby about three dozen doctors were approved for nomination for fellowship without examination and minutes of 3rd July, 1993 whereby Dr. Khalid Shad was given exemption.
(6) The Prospectus of July, 1992, heavily relied by the respondents, were silent about the exemption and at the same time there was no bar to grant exemption. The conduct of respondent No,1 clearly showed that it continued entertaining the applications and granting exemptions even in 1992-93.
8. The application of the petitioner, having been entertained for exemption, could not be turned down on the basis of the decision taken in the A meeting held on 22nd November, 1992. The relevant portion of the minutes reads as under:-- "AGENDA ITEM NO. 5 PERMISSION TO RETURN UNREFUNDABLE PROCESSING CHARGES: ' The President gave the background information about the decision of the Council made previously to grant exemption from FCPS-I to those candidates who had passed FRCS-I and MRCP- I on individual merit and also described that according to the same Council decision Rs,1,500 were to be charged as processing charges from those who applied for exemption. Since the last Council in its meeting of 22nd November, 1992 decided not to grant any further exemption to candidates who seek exemption on the basis of passing MRCP-I and FRCS-I only."
9. The decision contained in the resolution of the Reference Committee or the policy contained in the prospectus cannot be given retrospective effect. I am fortified in my view by the following passage of CRAIES ON STATUTE LAW (Seventh Edition):-- "PRESUMPTION AGAINST TAKING AWAY VESTED RIGHTS ' In 1888 a restriction was for the first time imposed on persons desiring to practise as patent agents, with a saving for rights acquired before the Patents Act, 1888 came into force. By rule under that Act made in 1890, and having legislative force, the business of a patent agent was put under regulations. In Starey v. Graham ((1899) 1 Q.B. 406, 411) it was held by Channell, J. That 'right acquired' did not include a right on the part of persons practising as patent agents before the Act of 1888 to practise and describe themselves as such after the Act. He defined, a 'right acquired' as 'some specific right which is one way or other has been acquired by an individual and which some persons have got and others have not'. It is not a 'right' in the popular sense. The learned Judge added: 'Before the passing of the Act, everybody had the right to call himself a patent agent, that is to say, the law did not forbid him to do so. A right enjoyed in that way is not within the meaning of this saving clause a 'right acquired' otherwise it is obvious that such a clause would nullify the operation of any Act in which the clause was inserted."
' In the absence of anything in an Act to show that it is to have a retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act is passed, and so far as regards repelling Acts this rule is clearly recognised by section 38(2) of the Interpretation Act, 1889'. Where, however, the necessary intendment of an Act is to affect pending causes of action, the Court will give effect to the intention of the legislature even though there is no express reference to pending actions: ' So careful are the Courts in endeavouring to protect vested rights that we find that in several cases Judges have refused to allow statutes to have a retrospective operation, although their language seemed to imply that such was the intention of the legislature, because, if the statutes had been so construed, vested rights would have been defeated. In Gardner v. Lucas ((1878) 3 App.
Cas. 582, 603) Lord Blackburn stated this rule of law in the following way with regard to the effect of a statute upon a transaction past and closed.* ' The view also is confirmed by the decision reported as Government of Punjab v. Zia Ullah Khan (1992 SCM R 602). The same view was upheld in the case reported as Farman Shah v. Vice- Chancellor, Gomal University (1992 M LD 2029) and Muhammad Tariq Raza v. Province of Punjab (1992 CLC 1181).
10. This is besides the fact that the documents on record show that this resolution was applied discriminately and not to all candidates. This cannot be countenanced in view of Article 25 of the Constitution of the Islamic Republic of Pakistan. This completely nullifies the contention of the respondents.
11. There was much emphasis in the argument as well as in the written statement that the exemption was withdrawn in order to raise the standard of education as elsewhere in the world particularly U.K. The relevant part of the written statement reads as under:- "It may be clarified that the step was taken in the larger National interest and was retraced to safeguard that National interest since it is the endeavour of the respondents always to have the College recognized as its equivalent foreign colleges and never to be placed at a lower pedestal."
12. The learned counsel for the petitioner argued that this is a false pretext and absolutely incorrect.
He in this behalf has referred to Prospectus of--
(1) Royal Colleges of Physicians of Edinburgh, Glasgow, London MRCP (UK)
(2) Royal Colleges of Obsteticians and Gynaecologist.
' It is added that the prospectus is falacious and incorrect. The relevant portion of the latter prospectus reads as under:-- "Examinations * * * * * * * * * * * * * * * * * * * * * * * * * *
(i) * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(iv) * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
(v) Part 1 examination (Obstetris and Gynacology) fellowship of the College of Physicians and Surgeons of Pakistan.
(vi) * * * * * * * * * * * * * * * * * * * * * * * * * * * * This negates the practice of withholding the exemption. Moreover, its policy cannot be given retrospective effect. The learned counsel for the petitioner has rightly referred to the judgment of Farman Shah (supra). Moreover, as is clear from the minutes referred to above of the March and July, 1993 meetings, the exemptions were given. If looked from this angle the learned counsel for the petitioner rightly complained of discriminatory treatment. The impugned decision is clearly violative of Article 25 of the Constitution. The respondents failed to justify the impugned action. The request of the petitioner was fully covered by the policy in vogue, therefore, should have been granted. The learned counsel has rightly referred to the case of Muhammad Tariq Raza (supra).
12. The upshot of the above discussion is that this petition is allowed with no order as to costs and the impugned action of respondent No,1 is set aside. The result is that the petitioner is allowed exemption from FCPS Part-I.