' MIAN MUHAMMAD AJMAL, J.---Through this judgment, we propose to dispose of two writ petitions bearing Nos.1277 of 1998 and 1281 of 1998 as common questions of law are involved in both of them.
2. The brief facts of Writ Petition No,1277 of 1998 as asserted are that the petitioner is a medical College in private sector by the name of Seena International Medical College affiliated with Tbilisi State Medical University, Georgia where 216 students are studying; that on 27-8-1998 respondents No,1 and 2 sealed the gates of the College and also of the hostel of the College for girls.
3. Facts as averted in the Writ Petition No,1281 of 1998 are that Ahmad Shah Abdali University, the petitioner is an Afghan Education University duly registered and recognised by the Afghan Commissionerate, Government of Pakistan, and Medical Authorities of Pakistan and is affiliated with the University of Kabul where 1165 Afghan Students are studying in almost all the fields and disciplines, the petitioner was asked by the respondents to close the University without any reasons.
' In both the petitions, the petitioners have prayed that the action of the respondents be declared to be illegal, without lawful authority/jurisdiction and of no legal effect.
4. Learned counsel for the petitioner arguing Writ Petition No,1277 of 1998 contended that the petitioners College if affiliated with Tabilisi State Medical University, Georgia where 216 students both male and female are studying since 1996 amongst whom some of them are in 2nd Year M.B.,B.S. He submitted that the College was set up in view of the Education Policy for the year 1992 wherein it was laid down that education institution in the private sector shall be encouraged. The petitioner is being discriminated as another similar College is operating in Peshawar against whom no action has been taken.
' In Writ Petition No,1281 of 1998, learned counsel for the petitioner argued that the University is affiliated with Kabul University and is imparting education in all disciplines to the Afghan refugees.
He further stated that the University has been registered and recognised by Afghan Commissionerate and it does not require any other affiliation, registration or recognition. He submitted that the closure of the petitioner-University would cause irreparable loss to the students who are about to complete their course in every disciplines.
5. Learned Advocate-General who appeared on pre-admission notice, argued that the petitioners in both the writ petitions have neither been recognised by the P.M.D.C. Nor affiliated with the University concerned nor registered by University Grants Commission. As such they were issued notices by the Government of N. -W.F.P. Health Department on 10-12-1997 to close down their College/University forthwith but they did not comply with it. In pursuance to the Notification, dated 4-3-1998 of the Education Department, two inspection Teams were constituted by the Health Department vide office order, dated 17-3-1998 to make appraisal of the unregistered/unrecognised Medical Colleges and submit report. The report of the Inspection Teams in respect of both the Medical Colleges is that they are substandard and have been opened without obtaining proper approval from the competent authorities. They also lack the necessary facilities required for the dispensation of medical education. He referred to paras.
2.1, 2.2 3.1 of the Guidelines for the establishment of a University or an Institution of Higher Education in the private sector issued by the University Grants Commission, 1998. He also referred to sections 3 and 8 of the West Pakistan Registration of Unrecognised Educational Institutions Ordinance XI of 1962 which provided that no unrecognised private educational institution shall be established or run, unless it is registered in accordance with the provisions of the Ordinance and its contravention is punishable under section 8, and section 11, 12, 14 and 15 of the Medical Council Ordinance, 1962 (Ordinance XXXII of 1962) provided that the medical qualifications granted by the medical institutions in and outside Pakistan included in the First and Second Schedule of the Ordinance shall be recognised by the Council subject to such conditions as may be specified.
6. It would be appropriate to reproduce the relevant law and the rules which govern the establishment of the educational Institutions or University in the Country. The procedure laid down in the Guidelines for the establishment of a University or an Institution of Higher Education in the private sector issued by the University Grants Commission, Islamabad is as under:-- "2.1.The establishment of a university is a multi-step process. It involves fulfilling the legal formalities as well as making available the required physical, human and, financial resources. The next step is to meet the academic and other requirements and submission of feasibility report to the UGC.
Subsequent to the clearance of feasibility stage, the next stage is the physical inspection of the facilities and infrastructure by the UGC. Subject to satisfactory clearance of inspection, the institution concerned shall submit the case to the Ministry of Education if it is desired to have an Act of Parliament for its governance. The case will be submitted to the Provincial Education Department if an Act of the Provincial Assembly is needed.
2. Completion of legal formalities.
2.2.1. The first step in connection with the establishment of an institute of higher education is the fulfilment of legal formalities and registration by the sponsoring body under the relevant laws of the Companies Ordinance/Societies Registration Act/Trust Act as a Foundation Society of a Trust.
3.1. Institutions normally apply to Provincial Governments where they are based Each Provincial Government has a separate set of criteria for evaluation but essentially the guidelines are those which have been provided to them by the UGC. A Provincial Assembly grants the charter to the institution concerned. In such cases, the UGC is usually consulted by the Provincial Governments.
For this purpose, the clearance by the UGC shall help in facilitating the grant of charter".
' The aforesaid Guidelines is an exhaustive and comprehensive document which provide the procedure and the criteria for the establishment of the University or Institution of higher education in the private sector. Both the petitioners have not observed the aforesaid prescribed procedure and thus have not been registered as legal entity by the Federal/Provincial Government nor recognised by the UGC/PMDC nor affiliated with the University of Peshawar. Section 3 of the West Pakistan Registration of.Unrecognised Educational Institutions Ordinance, 1962 (West Pakistan Ordinance XI of 1962) provides that no unrecognised private educational institution shall be established or run, unless it is registered in accordance with the provisions of the Ordinance, and its contravention is punishable with imprisonment which may extend to one year or with fine or both under section 8 of the Ordinance ibid. Under the provisions of Medical and Dental Degrees Ordinance 1982, no person in Pakistan can confer, grant or issue degree, diploma, licence, certificate or other document stating or implying that the holder, grantee of recipient is qualified to practice scientific Medical and Dental system except the University in Pakistan established by an Act of the Federal or Provincial legislature or the college of Physicians and Surgeons of Pakistan.
Sections 3 to 6 of the Ordinance XXVI of 1982 relative for the purpose of this case are reproduced hereunder:-- "3. Right to confer degrees, etc.---The right of conferring, granting or issuing in Pakistan degrees, displomas, licences, certificates, or other documents stating or implying that the holder, grantee or recipient thereof is qualified to practice scientific Medical and Dental System shall be exercisable only by the authorities specified in the Schedule and by such other authority as the Federal Government or a Provincial Government may, by notifications in the official Gazette, and subject to such conditions as it thinks fit to impose, authorise in this behalf.
' Prohibition of unauthorised conferment of degrees, etc.---Save as provided by section 3, no person in Pakistan shall confer, grant or issue any degree, diploma, licence, certificate or other documents stating or implying that the holder, grantee or recipient in qualified to practise scientific Medical and Dental System.
' Contravention of section 4.---Whoever contravenes the provisions of section 4 shall be punishable with rigorous imprisonment for a term which shall not be less than one year or more than five years and shall also be liable to fine which may extend to fifty thousand rupees; and, if the person so contravening is an association, every member of such association who knowingly and wilfully authorises or permits the contravention shall be punishable with rigorous imprisonment for a term which shall not be less than one year or more than five years and shall also be liable to fine which may extend to twenty-five thousand rupees.
6. Penalty for falsely assuming or using Medical and Dental titles.--- whoever voluntarily and falsely assumes or uses any title or description or any addition to his name implying that he holds a degree, diploma, licence or certificate conferred, granted or issued by any authority referred to in section 3 or recognised by the Medical and Dental Council of Pakistan or uses any words to give a false impression that he was qualified to practise Scientific Medical and Dental System shall be punishable with rigorous imprisonment for a term which shall not be less than one year or more than five years and shall also be liable to fine which may extend to fifty thousand rupees:-- ' Provided that nothing in this section shall apply to the use by any person of any title, description or addition which he uses by virtue of any degree, diploma, licence or certificate conferred upon him or granted or issued to him in any subject other than medicine".
' The bare reading of the aforesaid law would make it clear that the right of conferring, granting or issuing the degrees, displomas, licences, certificates etc to the holder or recipient to practise the scientific Medical and Dental System rests with the University in Pakistan established by an Act of the Federal or the A Provincial legislature and the College of Physicians and Surgeons of Pakistan and with such other authority as the Federal or the Provincial Government may by notification authorise in this behalf, and its contravention is punishable, under sections 5 and 6 of the Ordinance.
' Section 11 of the Medical Council Ordinance (XXXII of 1962) also provide that the medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognised medical qualifications and any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the Central Government for the recognition of such qualification. It may be noted that both the petitioners are not included in the First Schedule nor have been notified for inclusion in the Schedule as such their degrees/diplomas etc are not recognisable in Pakistan Forest.
7. Admittedly, both the petitioners i.e, College and the University have not complied with the provisions of section 3 of the West Pakistan Ordinance XI of 1962 and have thus rendered themselves to penal action under section 8 of the Ordinance. They cannot confer, grant or issue degree, diploma, licence, certificate or any other document to any person in Pakistan declaring him to be qualified to practise scientific Medical and Dental System unless Federal or the provincial Government authorise them by Notification in the official Gazette in this behalf. The contravention of this provision is punishable under section 5 & 6 of the Ordinance XXVI of 1982. Similarly the medical qualifications granted by the medical institution not included in the First Schedule of Ordinance XXXII of 1962 are not recognisable by the Council and thus such qualification would be of no consequence. The contention of the learned counsel for the petitioners that the Seena Medical College is affiliated with Tbilisi State Medical University, Georgia and Ahmad Shah Abdali University is registered and recognized by Afghan Commissionerate and is affiliated by Kabul University, is without any force, as such recognition and affiliation which are not supported by the record, would not lend any help to them. Where law prescribes to do a certain thing in a certain manner that must be done in that manner or not at all. The registration, recognition and affiliation has been prescribed to be done in a Manner prescribed by law and if it has not done in that manner, it would have of no legal effect. The mushroom growth of the Universities and professional Colleges which have been established and are being run commercially without basic facilities, legal backing and regulatory frame-work has adversely effected the standard and qualitative education. All such institutions require to be regulated by law so as they should dispense standardised knowledge and disseminates it at the highest level. The petitioners do not fulfil the requirements of law, therefore, they have no legal right to press into service their illegal perpetuity.
8. The Inspection Teams constituted by the Government of N.W.F.P. Health Department, in their reports have observed that both the College and the University (petitioners) were substandard and lacked the required facilities necessary for imparting the medical education. The finding of the Committee reads as under:- ' SEENA INTERNATIONAL MEDICAL COLLEGE. ST. NO.6, NASIR BAGH ROAD, PESHAWAR. Brief introduction.
' College started functioning in 1996.
' PREMISES. College is housed in a rented building. It consists of.
(a) Administration Office.
(b) Three Class rooms.
(c) A small room for Laboratory.
(d) A room turned into Library.
(e) A retiring room for students and staff.
AFFILIATION/RECOGNITION.
' The principal claimed that college is affiliated with Kabul University and controlled by Higher Education Board in Kabul but he has no documentary evidence in favour of his claim.
PROSPECTUS.
College has proper prospectus, copy of which is enclosed. MODE OF ADMISSION.
' As laid down in this prospectus any student who have passed FSc or equivalent Examination with at least 45% marks can apply. Both Afghan & Pakistani citizens are allowed admission in this college. The student have to appear in an entry test. Application are invited through advertisement in the Press majority of the students are Pakistanis only a few were afghans.
6. FINANCES.
' Admission Fee/funds are raised through following. Rs,1200 ' Tuition Fee per month: Rs,600 ' Miscellaneous per months. Rs,400
7. STAFF/ADMINISTRATION. i. A Principal, Dr. Sayed Noor Muhammad Shah M.D. Who looks after the administration as well. Ii.
Vice Principal, Dr. A Sattar M.D. iii. About 14 other staff members, a few having M.D's and few Pakistani Doctors, holding simple M.B.,B.S. Degree are also member of the faculty.
8.
' They have a semester system of Education, The whole Academic Period is for five years. At the end of each semester, students appear for a written test. The promotion exam is being held annually by their own examiners. The degree to be awarded will be M.D. After the college is properly recognised by Kabul University.
9. LABORATORY.
' A small scale Lab. Like that in secondary school. There is no dissection hall nor they have any arrangement/plan for future.
10. LIBRARY.
' A small library with a very few medical books. A small veranda has been converted into a Library.
11. TEACHING HOSPITAL.
' An eight bedded hospital called Seena Teaching Hospital has been established by the college Admn: Which was visited by the Team and it was noticed that there were no admission. It had a small outdoor section where two Afghan M.D. DOCTORS. The number of patients seen in OPD was about 8-12.
' The Committee inspected two Colleges including Seena Medical College and recorded the following findings:- ' "Both the colleges inspected by the Committee are being run in a rented building and do not fulfil the requirements, of medical college in any case. The former college is being run purely on commercial basis with very GHB facility of teaching basis similarly only no facilities for clinic education are available in any of the two colleges. There are also complaints against the Principal of SENA Medical College.
' This-college is a mockery to medical education. Hence needs to be closed".
AHMAD SHAH ABDALI MEDICAL COLLEGE NEAR POLICE COLONY, NASIR BAGH, PESHAWAR.
' Prior to the inspection the team had detailed meeting with the Vice Chancellor of this institute who gave us a briefing. But at the same time he asked us to come through the Afghan Refugees Commissionerate.
' However we did not visit that institute on 24-4-1998 around 12.30 (Friday). The institute was closed and gave a deserted look that of a govt: middle school. The conditions were shabby, unhygenic and deplorable.
' The Committee did not think to revisit this institution and suggested that it should not be registered and allowed to function".
' According to the above reports both the Institutions are substandard in all respects and need to be closed.
' In view of the above discussion, we see no substance in these writ petitions, consequently both the writ petitions are dismissed in limine alongwith C C.Ms.