1. TANVIR AHMAD KHAN, J. -- Petitioner through this Constitutional petition has taken exception to the order dated 21.11.1996 issued by respondent No. 3 Secretary Pharmacy Council of Pakistan rejecting his application for affiliation with the Council.
2. It is the case of the petitioner that Sandal Educational Foundation of Kamalia was duly registered under the Societies Act, 1860 with the Assistant Registrar Joint Stock Companies, Lahore. This Society, according to the learned counsel, has opened many educational institutions in different cities throughout the Province. Sandal Educational Foundation has also established an institution under the name and style of Punjab Pharmacy Educational Foundation for the purpose of protection of education in the field of Pharmacy. The petitioner accordingly submitted an application to the President Pharmacy Council of Pakistan, Islamabad on 19.9.1993 for its affiliation.
2. Grievance is made through this Constitutional petition that the respondent in an arbitrary manner has rejected the affiliation application through impugned order dated 21.11.1996. It is also argued that whole exercise of rejection of petitioner's application has been conducted in a mala fide manner without application of independent mind and without advancing any reason at all. A further argument has been advanced that under Section 19 of the Pharmacy Act, 1967, it is the Federal Government which is to grant the approval, while in this case, application has been rejected by the Pharmacy Council of Pakistan without having any legal sanction at all.
3. Learned Deputy Attorney-General has taken a preliminary objection that the petitioner has not approached this Court with clean hands as he through advertisements tried to play fraud upon the public at large as an impression was conveyed that the petitioner's Foundation had already got affiliation under the Pharmacy Act, 1967. He has further stated that a High powered Committee visited the petitioner's place and was disappointed as' no facility whatsoever, was available at the place. The tall claims made by the petitioner in his application all proved bogus. Reference has also been made to the registration of criminal case against the petitioner.
4. I have considered the contentions and have gone through the documents appended with the petition. This writ petition merits dismissal on the ground that the petitioner has not approached' this Court with clean hands. In the prospectus as well as in the press clippings appended with this petition impression had been conveyed that the Punjab Pharmacy Educational Foundation had already got affiliation. In this respect reference is made to the following statement printed in the prospectus:- "There institutions were set up in accordance with the Pakistan Educational Policy and the rules and regulations laid in the Pharmacy Act, 1967. In addition to it, it has been affiliated with Central Pharmacy Council of Pakistan". (underline is mine)
5. Petitioner in his Constitutional petition in para 7 has also admitted this aspect. To cover up the same it has only been stated that the same was published inadvertently. This factual misgiving has certainly misled the general public. In this regard a criminal case was also got registered vide F.I.R. No. 203-93 at Police Station, Garden Town on 25.9.1993 under Sections 420/468/471/406, PPC read with Section 16 M.P.O.
6. As far as the merits are concerned Sections 18 and 19 of the Pharmacy Act, 1967 would be relevant which are reproduced as under:- " Approval of Examination. - (1) Any institution or authority, including a Provincial Council, which holds an examination in Pharmacy, may apply to the Central Council for approval of the examination for the Council for approval of the examination for the purpose of qualifying a person for registration as a pharmacist under this Act.
(2) The Central Council, if it is satisfied after such enquiry as it may think fit that the examination for the approval of which an application has been made under sub-section (1) is in conformity with this Act and the regulations, shall approve the examination and, by notification in the official Gazette, declare it to be an approved examination for the purpose of qualifying a person for registration as a pharmacist under the Act.
19. Approval of courses of study. - (1) Any institution or authority which conducts a course of study in pharmacy may apply to the Central Council for approval of such course of study for the purpose of admission to an approved examination.
(2) The Central Council, if it is satisfied after such enquiry as it may think fit that the course of study for the approval of which an application has been made under sub-section (1) is in conformity with this Act and the regulations shall submit the application together with its recommendation to the Central Government and shall, upon the approval of the course of study by the Central Government, declare it, by notification in the official Gazette, to be an approved course of study for the purpose of admission to an approved examination."
7. The reading of these sections brings one to an irresistible conclusion that the role of Pharmacy Council of Pakistan is pivotal nature. It is the Pakistan Pharmacy Council which has to do all work prior to the affiliation by holding an inquiry that the institution affiliation of which is sought, is having all the requirements for the same. If the Council is satisfied then in that eventuality, reference is made by the Council with its recommendation to the Federal Government. The role of Pakistan Pharmacy Council is not simply of a post office as argued by the learned counsel that after the receipt of the application submitted for affiliation, the same would be forwarded to the Federal Government without any process.
8. It is not denied that the private sector can play an effective role in the field of education but it cannot he permitted to provide substandard education at a heavy cost to he borne by the students and their parents. In 1996 SCM R 341 = PSC 1996 SC 385 (Rahimyar Khan College of Education through Principal and another Vs. Islamia University of Bahawalpur through Vice- Chancellor and 3 others), the Hon'ble Supreme Court observed as under:- "There can be no cavil with the proposition that the citizens of this country should he enabled not only to become literate but also to improve their educational proficiency. It is, however, equally imperative that the institutions which come in this field, should play their role in a he-fitting manner. Mere fleecing of people desirous to achieve excellence or providing them short cuts to obtain high degrees, without requisite knowledge, cannot be countenanced. Heavy responsibility, therefore, falls on the shoulders of the functionaries or the University to ensure that affiliation is granted to only such institutions as can deliver goods in a perfect and laudable manner. If any institution is found lacking in this behalf, the University authorities will be justified in refusing affiliation thereto. It is discretionary with the University to grant or withhold affiliation and if discretion is exercised judiciously, it cannot he taken exception to by any one."
9. 1996 CLC 64 it has been held as under:- "The right to seek education could he classified as Fundamental Right as it is relatable right to life. A person has a right to establish an institution but it does not carry a right to have it recognized. For purposes of recognition it has to conform to the conditions laid down in the relevant law and the same cannot he dubbed as unreasonable restriction."
10. "We must, however, make it clear, and which is of crucial importance herein, that the right to establish an educational institution does not carry with it the right to recognition or the right to affiliation. In St. Xaviers College v. State of Gujrat (1975) 1 SCR 173); (AIR 1974 SC 1389) it has been held uniformly by all the nine learned Judges that there is no Fundamental Right to affiliation. Raym C.J., stated that this has been 'the consistent view of this Court'. They also recognised that recognition or affiliation is essential for a meaningful exercise of the right to establish and administer educational institutions. Recognition may be granted either by the Government or any other authority or body empowered to accord recognition. Similarly, affiliation may he granted either by the University or any other academic or other body empowered to grant affiliation to other educational institutions .......... The institution has to seek such recognition or affiliation from the appropriate agency. Grant of recognition and or/affiliation is not a matter of course nor is it a formality. Admission to the privileges of a University is a power to be exercised with great care, keeping in view the interest of the general public' and the nation. It is a matter of substantial significance......... The private educational institutions merely supplement the effort of the State in educating the people, as explained above. It is not an independent activity. It is an activity supplemental to the principal activity carried on by the State. No private educational institution can survive or subsist without recognition and/or affiliation are the authorities of the State. In such a situation, it is obligatory in the interest of general public upon the authority granting recognition or affiliation to insist upon such conditions as are appropriate to ensure not only education of requisite standard but also fairness and equal treatment in the matter. Of students.
11. Since the recognising/affiliating authority is the 'State', it is under an obligation to impose such conditions as part of its duty. It cannot allow itself or its power and privileges to he used unfairly.
12. The incidents attaching to the main activity attach to supplemental activity as well.
13. Affiliation/recognition is not there for anybody to get it gratis or unconditionally. In our opinion no Government authority or University is justified or is entitled to grant recognition/affiliation without imposing such conditions." (underline is mine)
14. Here in the case in hand an inquiry committee comprising of Senor Officers visited the place and found nothing. Even the tall claims as already stated made by the petitioner proved futile. Learned Deputy Attorney- General is right in saying that the petitioner made all these claims due to his political manoeuvring mentioning the name of Minister as well as Director General Health Services as its patron. The inquiry committee has reported that the petitioner is neither having any laboratory nor other requirements envisaged under the law.
15. As far as the ground of mala .Fide is concerned the same has simply been levelled in a bald manner without any specification as required by the dictum of Hon'ble Supreme Court reported Federation of Pakistan Vs. Saeed Ahmad (PLD 1974 SC 151) wherein it was held as under:- "Mala fides is one of the most difficult things to prove and the onus is entirely upon the person alleging mala fides. Mala fides must be pleaded with particularly, and once one kind of mala fides is alleged, no one should he allowed to adduce proof of any other kind of mala fides nor should any enquiry be launched merely on the basis of vague and indefinite allegations, nor should the person alleging mala .Fides be allowed a roving enquiry into the files of the Government for the purposes of fishing out some kind of a case."
16. It is pertinent to mention here that before satisfying the requirements the petitioner in view of the exaggerated claims created an impression of affiliation of the Institution among the people at large which amounts to putting cart before the horse. The petitioner in this manner has succeeded in charging colossal amount as according to the Constitutional petition itself more than 1000 students had already been registered and the fees have been charged from them. This calculated planned venture to deceive the general public by giving impression of affiliation in the sacred tiled of Education is highly deprecated.
17. Resultantly I am of the view that the petitioner failed to make out a case on merits. Apart from this even if the stance taken by the petitioner is admitted even then I am not inclined to exercise my discretion in view of the conduct demonstrated by the petitioner. Reliance in this respect is placed upon Nawab Syed Raunaq A.I etc. Vs. Chief Settlement Commissioner and others (PLD 1973 SC 236) and Messrs Airport Support Services Vs. The Airport Manager Qaid-e-Azam International Airport, Karachi and others (1998 SCM R 2268). For what has been stated above the writ petition is dismissed with no order as to costs.