AHMAD ABDULLAH and 62 others vs GOVERNMENT OF THE PUNJAB and 3 others

TASSADUQ HUSSAIN JILANI. J.---This judgment shall dispose of the following Constitutional petitions as common questions of law and fact are involved. These petitions can be placed in two categories i,e, those which have been filed by the students of medical institutions/colleges which stood already affiliated with University of the Punjab or Bahauddin Zakariya University, Multan prior to the promulgation of University of Health Sciences Ordinance, 2002 and petitions filed by students or colleges in the private sector which were affiliated with the University of the Punjab after the promulgation of the UHS Ordinance. These petitions are as follows:-- CATEGORY-I S.No,Case No, Who filed it

1. W.P. No.7281/2003Filed by students of Allama Iqbal Medical College, Lahore studying in the Final Year of M.B.,B.S.

2. W.P.

No.8034/2003Filed by 2nd year, 3rd and 4th year students of BDS in' De Mongtmorency College of Dentistry, Lahore.

3. W.P.

No.8636/2003Filed by 4th year students of Allama Iqbal Medical College, Lahore.

4. W.P.

No.2643/2003Filed by a student of M.B.,B.S. final year in-the Nishter Medical College, Multan.

5. W.P. No.9717/2003 Filed by students of 4year M.B.,B.S. in Nishter Medical College, Multan (fixed and heard on 9-7-2003).

6. W.P.

No.8389/2003Filed by students of final year and 4th year M.B.,B.S. studying in Allama Iqbal Medical College, Lahore.

7. W.P.

No.9035/2003Filed by Final year students of M.B.,B.S. in Nishter Medical College, Multan.

CATEGORY-II 8 W.P.No.5594/2003 Filed by students of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore.

9 W.P. No.6309/2003 Filed by Lahore Medical and Dental College, Lahore.

10 W.P. No.7407/2003 Filed by the students of the old first year BDS of Fatima Memorial Hospital College of Medicine and Dentistry, Lahore.

11 W.P. No.8193/2003 Filed by final year M.B.,B.S. students of Punjab Medical College, Lahore.

12 W.P. No.6310/2003 Filed by a final year student of Lahore Medical and Dental College, Lahore.

13 W.P. No.7343/2003 Filed by Lahore Medical and Dental College, Lahore.

14 W.P. No.8755/2003 Filed by students of 1st year, 2nd year, 3rd and 4th year students of M.B.,B.S. in Punjab-Medical College, Faisalabad.th 15 W.P. No.5565/2003 Filed by Fatima Memorial Hospital College of Medicine and Dentistry, Lahore. Petitioner has also challenged the Notification dated 26-6-2003 issued by the Government of the Punjab exempting King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore from the purview of University of Health Sciences Ordinance, 2002.

2. Through these Constitutional petitions petitioners have challenged the vires of the University of Heath Sciences Ordinance, 2002 (Ordinance No,LVIII of 2002 to be hereinafter called the UHS Ordinance) which has established a University of Health Sciences to be housed in the premises of Sheikh Zayed Hospital, Lahore with the declared objectives and powers, inter alia, of imparting Instructions in research, prescribe courses of studies in medical institutions to be affiliated with it, hold examinations, confer degrees and attend to other matters enumerated in section 4 of the UHS Ordinance.

After going through the petitions, the written statements filed and after initial hearing of petitioners' learned counsel, following issues cropped up for consideration:--

(i) Whether the provisions regarding recognition and affiliation stipulated in the University of Health Sciences Ordinance are violative of the Pakistan Medical and Dental Council Ordinance, 1962 (No,XXXII of 1962). If so, to what effect?

(ii) Whether the letter (dated 2-12-2002) issued by the Vice-Chancellor, University of Health Sciences is violative of the spirit of UHS Ordinance particularly with reference to section 37 of the Ordinance?

(iii) Whether the provisions relating to affiliation are violative of fundamental rights provisions of the Constitution of Islamic Republic of Pakistan?

(iv) Whether the petitioners have a right to be examined by the University of Punjab in view of the principle of legitimate expectation?

(v) Whether the respondents are estopped to direct compulsory affiliation of Government Medical Colleges of Punjab notwithstanding the earlier affiliation contemplated in the Prospectus of the Government Medical Colleges in the Punjab?

(vi) Whether the letter issued by the Vice-Chancellor of University of Health Sciences directing compulsory affiliation of all medical colleges in the Province of Punjab without complying with the conditions stipulated in the Ordinance and at a stage when the petitioners are in the final phase of their professional degree is in accord with equity and standards of reasonableness as laid down by the august Supreme Court with regard to the exercise of administrative authority?

(vii) Whether section 37 of the University of Health Sciences Ordinance could have retrospective application in the facts and circumstances of this case?

(viii)Whether the concept of compulsory disaffiliation contained in the University of Health Sciences Ordinance pursuant to which the impugned letter was issued by the Vice-Chancellor is violative of the University of Punjab Act and the Calendar framed thereunder. If so, to what effect?

3. Mr.Aitzaz Ahsan, learned counsel for petitioners in Writ Petition No,7281 of 2003 submitted as under:--

(i) That the petitioners have studied three to four years in pursuing the' M.B.,B.S. Course, they have cleared their 1st, 2nd and 3rd years Professional Examinations in the hope that their final year examination shall be conducted and Degree shall be awarded by the University of the Punjab which has international recognition. The said University has a history of academic excellence stretching over more than a century. To deprive these students, the honour of appearing in the final M.B.,B.S. Professional Examination from the said University, would be unfair and against the canons of equity. He added that the petitioners would not be content merely acquiring the M.B.,B.S. Degree but they would like to pursue their higher education abroad and from this Province only the University of the Punjab has recognition. He added that to appear for ECMFG Examination (which is a universally recognized Degree in Medicine), a student must have at least four credit years in attendance at a medical school that is listed in the International Medical Educational Directory. The registration of General Medical Council also requires a degree from the University of the Punjab and the newly created University of Health Sciences does not enjoy such status. The net effect, he added, would be, that with the M.B.,B.S. Degree awarded by the University of Health Sciences, they would not be able to get admission in a wall-recognized University abroad.

(ii) That the letter dated 2-12-2002 of the Vice-Chancellor of the University of Health Sciences, Lahore to the Medical colleges/institutions in the Punjab, insofar as it declares those colleges to stand affiliated with the University of the Health Sciences in the purported exercise of powers under the Ordinance is ultra vires of the Ordinance itself. The impugned letter issued by the Vice-Chancellor reflects an undue haste which is against the scheme of the new Ordinance.

(iii) That the newly promulgated Ordinance lays down an elaborate procedure for affiliation of a medical institution and the Vice-Chancellor neither has the authority to proceed in derogation to those mandatory provisions nor can he pre- erupt the competent body under the Ordinance to perform its function in matters of affiliation. The law does not countenance automatic affiliation of medical institution as is sought r be achieved by the impugned letter. Section 34(iv) read with section 57 and Statutes of University of the Health Sciences Ordinance, inter alia, contemplate composition of an Affiliation Committee which has to examine/deal with the issues of affiliation and disaffiliation for ultimate consideration by the Syndicate.

(v) That recognition of a medical degree is governed by section 11 of the Pakistan Medical and Dental Council Ordinance, 1962 and the Schedule made therein whereas recognition of a degree awarding institution is governed by section 22-A of the said Ordinance. The afore-referred two provisions relate to two different situations and have respective procedures. In the case of the respondent University none of those procedures have been followed.

(vi) That the matters of recognition of medical institutions or the Degree/qualification which those institutions may award, fall within the exclusive jurisdiction of Pakistan Medical and Dental Council established under the Pakistan Medical and Dental Council Ordinance, 1962. The manner in which the respondent-University has obtained recognition from the Pakistan Medical and Dental Council i,e, it was granted the same day when it was applied, indicates that respondent's application was never considered by the Council and the letter of recognition was issued by Secretary of the said Council who had no authority to issue that. The Council while considering the application has to see, inter alia, the facilities available in the institution which seeks recognition, the faculty of the said institution, the Campus and other essential facilities. All these conditionality's, it was contended, are non-existent in case of the respondent-University;

(vii) That the 'curriculum', 'medical' and 'professional education' are subjects in the Concurrent Legislative List contained in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan,1973. Both the Federal and Provincial Legislature can legislate on subjects listed in Concurrent List. But in case of a conflict the provisions of Federal Statute have to prevail in view of Article 143 of the Constitution.

(viii) That the departmental construction of the Ordinance shows that it has to have prospective 'effect and it cannot be made applicable retrospectively so as to compulsorily affiliate the existing medical institutions.

(ix) That the exemption of the King Edward Medical College, Fatima Jinnah Medical College, Lahore and Army Medical College, Rawalpindi from the purview of the University of Health Sciences Ordinance, shows that the Ordinance is being selectively applied and that the petitioners' colleges have been discriminated against. The selective application of law is violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973.

(x) That 'various provisions of the Ordinance and the letter issued by the Vice-Chancellor under the purported exercise of the said Ordinance are violative of Articles 9, 18 and 25 of the Constitution of Islamic Republic of Pakistan, 1973. The right to life includes right to education and seek higher education. The right to choose a profession includes the right to have a professional University of choice so that the citizens can pursue higher studies to ensure career advancement.

When the petitioners were granted admission in the medical colleges, the Prospectus issued by the Government of the Punjab for admission in the medical colleges in the Punjab inter alia specifically- provided that on completion of study they shall be granted a Degree to be issued by the University of the Punjab. This vested right, it was contended, cannot be withdrawn in view of settled principle of locus penitential. In support of the submissions made learned counsel relied on Pakistan v. Hussain Ali PLD 1960 Supreme Court (Pak.) 310, Chairman, Selection Committee/ Principal, King Edward Medical College, Lahore and 2 others v. Wasif Zamir Ahmad and 'another 1997 SCMR 15 and Mst. Attiya Bibi Khan and others v. Federation of Pakistan through Secretary of Educator Ministry of Education, Civil Secretariat, Islamabad and others 2001 SCMR 1161.

(At the end Mr. Aitzaz Ahsan voiced petitioners' apprehension that t, they might be victimized for having filed these petitions. Mr. Abdul Hafeez Pirzada immediately responded that the fears are ill-founded and assured that the respondent-University shall always proceed with institutional and parental approach. The Court observed that the statement made by Mr. Pirzada should be enough to allay the apprehension of the students).

4. Learned counsel for the petitioners in Writ Petitions Nos.8636 of 2003 and 8389 of 2003 (Mr. Ijaz Ahmad Chadhar, Advocate) adopted the arguments of Mr. Aitzaz Ahsan, Advocate.

5. Learned counsel for the petitioners in Writ Petition No,8193 of 2002 (Mr. Sehram Sarwar, Advocate) and in Writ Petitions Nos.8034, 7343, 6309 and 6310 of 2003 (Mr. Iqbal Mehmood Awan, Advocate), also adopted the arguments of Ch. Aitzaz Ahsan, Advocate but made following additional submissions:--

(i) That three Ordinances were issued in the year 2002 besides the University of Health Sciences Ordinance through which three Medical Universities have been created. Those Ordinances are Ordinance No,LXXVI of 2002 (PLD 2003 Central Statutes Supplement 216) whereby Riphah International University was created at Islamabad and Ordinance No,LXXXVIII of 2002 establishing Foundation University at Islamabad (PLD 2003 Central Statutes Supplement 310). The University of Health Sciences, therefore, cannot claim exclusivity. De' Mongtmorency College is a very old Institution which was created in the year 1929, it was affiliated with the University of the Punjab in 1934 where most of the subjects are taught in the Kind Edward Medical College, Lahore. Compulsory affiliation of petitioner's College (De' Mongtmorency College) and the exemption of King Edward Medical College, Lahore would create an anomalous situation.

(ii) That the Academic Council of the King Edward Medical College had passed a unanimous resolution opposing the affiliation of the College with the University of Health Sciences.

6. Mr. Abid Hassan Minto, Advocate has appeared as an amicus curiae submitted as under:--

(i) That the Ordinance has not been enacted in the manner such laws are mostly made. It reflects deficiency and contradictions. For instance no date of the establishment of the University is given in the Ordinance, it stipulates creation of various bodies but there is nothing to indicate whether those bodies have been created i,e, the Board of Governors, Syndicate, Executive Committee, Registrar and Controller. Unless the University and its bodies are established, the University cannot function not to speak of issuing directions for the affiliation of other colleges.

(ii) That in absence of proper establishment of the University in terms of the Ordinance, a Vice-Chancellor designate cannot exercise the powers vested in the office of the Vice-Chancellor.

(iii) That in terms of section 5 of the University of Health Sciences Ordinance, the respondent-University can exercise powers within the limits of the Province of the Punjab and in respect of "the constituent colleges" only. The expression "constituent colleges" has been defined in section 2(x) which means "a college maintained and administered by the university". The medical colleges which are sought to be affiliated through the Ordinance or impugned letter issued by the Vice-Chancellor are admittedly not the "constituent colleges" of this newly created University and, therefore, it cannot direct them to affiliate with it. The impugned letter is, therefore, ultra vires of the Ordinance itself.

(iv) The University under subsection (2) of section 5 of the Ordinance can admit to its privileges, a medical institution within territorial limits of another University provided the said University consents to it and the Government also accords sanction. In absence of these two conditionalities, no institute or a college can be admitted to the privileges of this newly created University.

(v) That under section 7 (of the University of Health Sciences Ordinance), the University has to prescribe various courses and curriculum before it assumes status of a degree awarding institution. Admittedly, no such courses or curriculum have been prescribed by the University so far. The college and the teaching institutions which the respondent-University wishes to affiliate with itself, already stood affiliated with the established Universities in Punjab. Where there are more than two Universities, the choice has to be that of the student. At the time of their admission the students were given to understand that they were affiliated with a particular University and after successful completion of their course, they will be awarded degree of the said. University. This invitation cannot be withdrawn,

(vi) That sections 12 and 13 of the Ordinance deal with the office of the Vice-Chancellor and his powers. These sections do not authorize him to direct affiliation of a college or to grant any privilege to it. The emergency powers stipulated in subsection (2) of section 13 of the Ordinance can be exercised by the Vice-Chancellor only in case of the existence of emergency as an objective reality and not as per his subjective perception. This, therefore, would require him to give reasons while exercising such an emergent power. In the impugned letter issued by the Vice-Chancellor, neither any reference has been made to the existence of an emergency nor he has given any reasons for issuing that letter. Even otherwise, this power can be exercised with regard to only those matters which fall within the domain of the Board of Governors under the Ordinance as after passing an order under this provision, the Vice-Chancellor has to refer the matter to the Board for approval in terms of subsection_(2) of section 13 of the Ordinance. The question of affiliation or disaffiliation of Medical institutions has to be decided by the Syndicate and the Vice-Chancellor could not have issued the letter.

(vii) That the Ordinance has created a University of Health Sciences, has spelt out its jurisdiction in various provisions but it has not abolished the other Universities and it does not contemplate exclusion of other bodies engaged in medical education and research. That is why the question of affiliation has been left to the institutions and the expression "seeking affiliation" has been used in section 37(2) of the UHS Ordinance. The law has been created for advancement of medical education which cannot be achieved by excluding other institutions and universities.

(viii) That the elaborate procedure laid down in the Ordinance for affiliation has a rationale behind it i,e, they were conscious of the fact that at the time of the promulgation of the Ordinance, a great majority of students would be pursuing their respective courses and they would have a legitimate expectancy of pursuing a professional degree to be granted by a University to which they stood affiliated at the time of their admission. Any forcible disaffiliation from one University and affiliation with the respondent-University would be violative of their fundamental right to pursue a profession of choice.

7. Mr. Uzair Karamat Bhandari, Advocate appeared for petitioners in rebuttal (in W.P. No,7281 of 2003), made following submissions:--

(i) That the principle of legitimate expectation is being canvassed not against the Legislature but with the assumption that the concept of affiliation in terms of section 37 of University of Health Sciences Ordinance is, not mandatory, but discretionary and petitioners having long affiliation with University of the Punjab had legitimate expectation that they would be awarded degree by the latter. The understanding given should be honoured.

(ii) That the Vice-Chancellor of University of Health Sciences could not direct affiliation under the emergency power granted to him in terms of section 13(2) of the University of Health Sciences Ordinance. He placed reliance on Rehmatullah v. University of the Punjab and others PLD 1982 Lah. 411, University of the Punjab and 2 others v. Rehmatullah PLD 1982 Lah. 729, Muhammad Nadeem etc. v. University of Engineering and Technology NLR 1999 Civil 83, R v. North and East Devon HA (2000) 3 All ER.

8. Mr. Sulman Akram Raja, learned counsel for petitioners in W.P.Nos.5565 of 2003, 5594 of 2003 and 7470 of 2003 has made following submissions:-

(i) That a combined reading of sections 5 and 37 of the University of Health Sciences Ordinance would indicate that an unguided power to the Government has been given and it has created an arbitrary scheme. These provisions of the Ordinance are, therefore, ex facie, discriminatory and violative of Article 25 of the Constitution of Islamic Republic of Pakistan, 1973. The arbitrary and selective application of these provisions is manifest from the issuance of notification dated 26-6-2003 vide which the King Edward Medical, Lahore and Fatima Jinnah Medical College, Lahore have been exempted by the Government of the Punjab from the purview of the afore-referred Ordinance. These provisions, therefore, merit to be struck down in view of the law laid down in Waris Meah v. The State PI,D 1957 Supreme Court 157, Khawaja Muhammad Safdar v. Province of West Pakistan PLD 1964 Lahore 718 and Shaukat Ali Mian v. The Federation of Pakistan 1999 CLC 607.

(ii) That the notification dated 26-6-2003 issued by the Governor of the Punjab in the purported exercise of powers under section 5(1) of the Ordinance is ultra wires of the law itself as such a power could only be exercised with respect to a "constituent college" and the institutions qua which the power has been exercised, admittedly, are not "constituent colleges" in terms of section 2, clause (18) of the University of Health Sciences Ordinance.

(iii) That affiliation of a College with any University is' always a bilateral act, the various provisions of the Ordinance and subsection (2) of section 37 itself would indicate that the expression "shall affiliate" has to be read as "may seek affiliation" and any other interpretation would make the provision arbitrary and, therefore, hit by Article 25 of the Constitution.

(iv) That the petitioner-College was already affiliated with the University of the Punjab and the letter issued by its Vice- Chancellor withdrawing the affiliation is neither backed by any provision of the University of the Punjab Act nor by the University of the Health Sciences Ordinance and is, therefore, not sustainable in law.

(v) That the petitioner-College had to pay 1.4 million as affiliation fee and if the impugned letter is upheld, the Court may direct the University of the Punjab to refund the afore-referred affiliation fee.

9. Mr. Ahmad Farooq Malik, learned counsel for the petitioners in W.P. No,9035 of 2003 adopted the arguments of Ch. Aitzaz Ahsan, Advocate. In W.P. No,8755 of 2003 Mr.Mehmood A. Sheikh, Advocatewho represents four students of Punjab Medical College, Faisalabad, the vires of the letter issued by the Vice-Chancellor of the University of Health Sciences have been challenged on the grounds that the latter had no power under the law to issue such a letter; that the Ordinance does not envisage retrospective application; that the Ordinance insofar as it interferes with the right to life and profession would be hit by Articles 9 and 18 of the Constitution of Islamic Republic of Pakistan, 1973, that section 37(1) is not mandatory and any other interpretation would offend the fundamental rights provision of the Constitution.

Mr. Salman Mansoor, Advocate for petitioner in W.P. No,2643 of 2003 submitted written arguments mostly in line with the arguments of Mr. Aitzaz Ahsan, Advocate.

10. Syed Mansoor Ali Shah, learned amicus curiae made following submissions:-

(i) That section 37 of the University of Health Sciences Ordinances is ultra vires of the scheme of the Ordinance insofar as it mandates that all medical institutions "shall affiliate with the University". The entire scheme of the Ordinance, according to him, stipulates a voluntary act on the part of the college seeking affiliation. Section 37(1) contemplates a "period", "such terms and conditions as may be prescribed" and the word "prescribed" in terms of section 2 means "prescribed by statutes, regulations or rules". Clause 11 of the Statute (of the First Schedule to the Ordinance in question) describes the composition of the Affiliation Committee. Clause 12 of the said Statute mandates that the Affiliation Committee shall advise the Syndicate, after inspecting the institute "seeking affiliation" and section 27 of the Ordinance pertains to the powers and duties of the Syndicate which, inter alia, include the power of affiliation or disaffiliation of medical institutions. The afore-referred provisions provide an elaborate procedure of affiliation and disaffiliation in which the Vice-Chancellor has no effective role to play. If the legislative intent is to be deciphered from various provisions of the Ordinance and if it has to be given .Effect in letter and spirit, the word "shall" in section 37 will have to be construed as "may". In this connection he referred to the doctrine of "reading down" which doctrine has found favour in American Constitutional law and has also been invoked by the Indian Supreme Court in Delhi Transport Corporation v.

DTC Mazdoor Congress AIR 1991 Supreme Court 101).

(ii) That the letter issued by the Vice-Chancellor to all medical institutions to the effect that they stand affiliated with the University of Health Sciences is ultra vires of the Ordinance itself in view of the various provisions to which reference has been made in the preceding paragraphs. The letter in question was issued by the Vice-Chancellor under the purported exercise of the powers given under section 37(2) a bare reading of which would show that it is meant only for situations of emergency and that too for matters which fall within the purview of Board of Governors as any action taken under this provision has to be sent to the Board for approval.

(iii) That section 37 of the Ordinance insofar as it seeks mandatory affiliation of medical institutions, is violative of Articles 9, 17 and 18 of the Constitution of Islamic Republic of Pakistan; 1973. In support of this argument learned counsel relied on A.K. Brohi's Fundamental Law, at pages 309, 315, 317, 319 and 395 and the precedent case-law reported in Wukala Mahaz Barai Tahafaz Dastoor and another v. Federation of Pakistan and others PLD 1998 Supreme Court 1263, Mohtarma Benazir Bhutto and another v. President of Pakistan and others PLD 1998 Supreme Court 388, Sardar Farooq Ahmad Khan Leghari v. Federation of Pakistan and others PLD 1999 Supreme Court 57 and Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 Supreme Court 473.

(iv) That the letter dated 20-5-2003 issued by the Secretary of Pakistan Medical and Dental Council, in response to the request of the respondent-University conferring recognition, is of no avail to the respondent-University as there is no power with the Council to confer recognition to a medical institution. The power under section 11 is only with regard to conferring recognition to a medical qualification not included in the schedule of the Pakistan Medical and Dental Council Ordinance, 1962. The order issued, therefore, is ultra vires of the said Ordinance. He added that even for extending recognition to a medical qualification it is the Medical Council constituted under the said Ordinance which has to decide by a majority vote and the Secretary of the Council who has 'issued the letter cannot arrogate to himself the power of the Council. The logical corollary of the afore-referred aspect would be that the Pakistan Medical and Dental Council has so far not accorded recognition to the degree/qualification which the University of Health Sciences Ordinance wishes to confer for which purpose it has sought affiliation of various medical institutions in the Province of Punjab. Reliance was placed on Nighat Sultana v. University of Punjab through Vice-Chancellor, Punjab University, Lahore and 2 others 2000 YLR 511, Seena International Medical College through Director v. Government of N.-W.F.P.

Through Chief Secretary and 2 others 1999 SCMR 2110, Akhtar Ali Javed v. Principal, Quaid-e-Azam Medical College, Bahawalpur 1994 SCMR 532 and Muhammad Hamid Shah v. Pakistan Medical and Dental Council through Secretary and 4 others 1996 SCMR 1101.

(v) That the so-called letters of consent from the Principals of various medical institutions to the Vice-Chancellor of the University of Health Sciences is not a consent contemplated under the Ordinance and the relevant laws as the Principal has no jurisdiction to issue such a letter. It would be the Academic Council which has to decide the issue and two Academic Councils of Premier Medical Institutions of Punjab have already conveyed their dissent to affiliate with the University of Health Sciences. Those institutions are, King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore.

(vi) That an examination of the laws in paramateria with the Ordinance (University of Health Sciences Ordinance) would indicate that those laws have made affiliation to be a consensual affair, discretionary with the institution which seeks affiliation and there is no compulsion whatsoever. He referred to section 25 of the University of Punjab Act, 1973 which stipulates that the Syndicate shall decide the question of affiliation or disaffiliation. He added that during the same period when the Ordinance, under challenge, was promulgated, three other Ordinances creating Universities were enacted and all these Ordinances specifically mandate that the Universities so established shall not affiliate any college or institution for a period of ten years. Those Statutes are as under:--

(i) Ordinance No,LIX 2002 (section 5), Hajvery University, Lahore.

(ii) Ordinance No,LX 2002 (section 5), University of Faisalabad.

(iii) Ordinance No,LXI 2002 (section 5), University of Lahore.

(vii) That under the well-settled principle of interpretation of statutes, the expression 'shall' appearing in a particular provision of law has to be read as 'may' if the intention of the law maker as reflected in various provisions of the Ordinance is to be given effect to. More so when violation of an apparently mandatory provision is not visited with a penalty under the law.

(viii) That the objective of an Ordinance under challenge has not been spelt out in its preamble. In the presence of two bodies created by the Pakistan Medical and Dental Council Ordinance, 1962 and Pakistan College of Physicians and Surgeons Ordinance, 1962, there was no need for promulgating the Ordinance in question. The written statement filed by the respondents, he contended, is no substitute for the preamble and in any case It does not provide any guideline to the objective of the Ordinance.

(ix) That any compulsory affiliation as is sought to be achieved by the respondent-University under the purported exercise of section 37(1) of the University of Health Sciences Ordinance would be violative of Articles 9 and 18 of the Constitution. Article 9 of the Constitution is relatable to right to life and the Courts have accorded progressive interpretation to it. The right to life has been extended to include right to clean environment right to travel, right to livelihood and right to education. Right to education would include the right to have education of choice which would mean right to have a Degree of choice and right to pursue a profession of choice. The University Degree is likely to affect their right to further education and their right of career and professional advancement. Any compulsion to affiliate with a University not of their choosing, therefore, would be violative. Of these fundamental rights. In support of the submissions, he relied on Manika Gandhi v. Union of India AIR 1978 Supreme Court 597, Bandhua Mukti Mocha v. Union of India AIR 1984 Supreme Court 802, Unni Krishnan, J.P. v. State of AP AIR 1993 Supreme Court 2178, Ms. Shehla Zia and others v. WAPDA PLD 1994 Supreme Court 693, Rahimyar Khan College of Education v. Islamic University, Bahawalpur 1996 CLC 64 and Dr. NaveedaTufail and 72 others v. Government of Punjab and others 2003 SCMR 291.

(x) That right to form an association is a fundamental right enshrined in Article 17 of the Constitution. Affiliation stems from right to associate as it is a consensual arrangement between the two institutions. It contemplates a relationship and right of association. And, the right to association includes the right not to associate. Any provision of law providing for compulsory association/affiliation is, therefore, ultra vires of this Article. He relied on Abul Ala Maudoodi v.

Government of West Pakistan PLD 1964 SC 673, Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416, Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 SC 66, Mian Muhammad Nawaz Sharif v. President of Pakistan and others PLD 1993 SC 473 and Damyanti v. Union of India AIR 1971 SC 966.

(xi) That the beneficiaries of affiliation are the students. They are the stake holders, they were the ones who, at the time of admission to the respective medical institutions, were given to understand that they stood affiliated with a particular University and that at the end of their five years' professional course they will be granted the Degree by the said University. At this belated stage, they cannot be disaffiliated from the University of their choice and affiliated with the respondent-University without their consent. He, however, conceded, on Court query, that the consent of students and the medical institutions for purposes of affiliation could be expressed and conveyed by the Academic Council or now by the Board of Governors constituted under section 3 of Ordinance VIII of 2002 (Punjab Medical and Health Institutions Ordinance, 2002), provided the best interest of the students are kept in view by the Board;

(xii) That an individual could surrender fundamental right in public interest and if the law so provides. The law under challenge is silent as to what public interest it seeks to promote which should oblige the petitioners-students to barter away .Their rights. The written statement, he contended, is no improvement over the law under challenge insofar as this aspect is concerned. He also alluded to the report of the Commission headed by Mr.Justice (R) Ghulam Mujaddid Mirza regarding the establishment of the respondent-University and its working.

11. Dr. A. Basit, learned Legal Advisor for University of the Punjab submitted as under:--

(i) That the Vice-Chancellor of University of the Punjab disaffiliated certain medical Institutions in terms of the order dated 28-4-2003 pursuant to a direction issued by the Governor of the Punjab/Chancellor. He, however, conceded that there is an elaborate procedure for disaffiliating a college in the University of the Punjab Act, 1973 and the Vice- Chancellor could not have issued the afore-referred order under the said Act. He further conceded, on Court query, that although the order was passed by the Vice-Chancellor under the purported exercise of section 15(2) of the University of the Punjab Act which stipulates existence of emergency but there is no reference to the emergency in the order in question. He added that the Vice-Chancellor of the University of the Punjab had issued the afore-referred letter in reference to the Chancellor's opinion/desire but was fully conscious of the mandate of law.

(ii) That the University of Health Sciences Ordinance, 2002 is a valid piece of legislation and is not ultra vires of the Constitution.

(iii) That the expression 'shall affiliate' appearing in section 37 of University of Health Sciences Ordinance is mandatory insofar as the requirement for fulfilling the conditions relatable to affiliation are concerned but is not mandatory insofar as the act of affiliation is concerned. The expression 'shall' he added is qualified by the subsequent expression 'within such period and on such terms and conditions as .May be prescribed'.

(iv) That University of the Punjab is of the view that it has power under the University of the Punjab Act to affiliate and disaffiliate including medical institutions and any contrary interpretation would not be in consonance with the objective of the higher education which the University seeks to pursue.

(v) That the direction of the President of Pakistan to which reference has been made in Governor of Punjab's letter dated 24-4-2003 is a departmental construction of section 37 of the University of Health Sciences Ordinance according to which those colleges/institutions which were affiliated after the promulgation of the University of Health Sciences Ordinance (with effect from 29-9-2002? Should be disaffiliated and no further affiliation of medical institutions shall be carried out by any other University except the University of Health Science. The King Edward Medical College, Lahore is, a constituent college of the University of the Punjab, the De'Mongtmorency College Dentistry is a faculty of the King Edward Medical College, Lahore and, therefore, would not fall within the purview of the newly created University i,e, the University of Health Sciences. (At this stage, the learned Additional Advocate-General Mr. M. Bilal Khan placed on record a copy of the letter issued by the Health Department, Government of the Punjab dated 26-6-2003 according to which, 'the De'Mongtmorency College of Dentistry is not a constituent College of King Edward Medical College, Lahore' as it has its own Principal, its own Faculty, its own Academic Council and has its own Campus).

(vi) That the medical colleges and institutions are regulated by the Pakistan Medical and Dental Council Ordinance, 1962. The Ordinance under challenge does not envisage any other authority in the medical institutions nor it lays down any curriculum for them and tile only activity or function that it wants to assume is that of holding examinations for the professional degree of M.B.,B.S.. The University of Health Sciences has no plan to recruit any new faculty either but even in this endeavour and desire to hold the examinations, the said University is pitted against heavy odds both by lack of experience and resources on account of which it has conveyed to the University of the Punjab that it cannot hold the final year M.B.,B.S. Examination for the current session and had requested the latter to hold the examinations itself.

(vii) That the University of the Punjab does not oppose the establishment of a Specialist University as has been created under the Ordinance in question but it must have the requisite resources, the requisite expertise and a certain amount of credibility at the national and international level to hold the examinations. He added that at present the qualification/Degree that it wants to' confer i,e, M.B.,B.S. Has not been recognized by the Pakistan Medical and Dental Council in terms of section 11 of the Pakistan Medical and Dental Council Ordinance, 1962;

(viii) That the concept of a Specialist University is not in consonance with the latest trends the world over as now it is generally felt that unless inter-disciplinary facilities are available an institution/ University cannot carry out proper research and it is only a general University like the University of the Punjab which could pursue such an academic goal.

Any attempt to isolate that medical institutions from the University of the Punjab would dampen the momentum of the research activity.

12. Mr. Abdul Hafeez Pirzada, Senior Advocate appearing for the University of the Health Sciences, while defending the impugned letter and opposing the petitions, submitted as under:

(i) That the Ordinance and the establishment of the University of Health Sciences has mostly been challenged by surrogates i,e, the students who do not have any vested right on questions of affiliation and disaffiliation. Their claim to continue their earlier affiliation (University of the Punjab or Bahauddin Zakaryia University) is not based on any representation made to them by the Government or any contract or on any statute. Hence it cannot be enforced through a Constitutional petition. He added that the students have not been asked to leave the medical colleges/institutions where they are pursing their medical studies. Neither they have agitated this grievance. If a medical student has passed his professional degree from a particular college he will be known as a medical graduate from that college for all times to only and the issuance of a Degree by a particular University is only a formality. None of the principles of estoppels are, therefore, attracted. Even otherwise there is no estoppel against law unless any fundamental right is violated. No challenge, therefore, can be thrown to the University . Of Health Sciences Ordinance; 2002 as it neither suffers from any substantive or procedural ultra vires; ' In support of the submissions made, he relied on two unreported judgments of the august Supreme Court in C.P.

No,996 of 2001 and C.P. No,1549 of 2001 and of Lahore High Court, Rawalpindi Bench, Rawalpindi in W P. No,2455 of 2002.

(ii) That in the Constitution of Islamic Republic of Pakistan, 1973, with regard to the distribution of powers between the Centre and the Province only two lists were prepared i,e, the Federal and the Concurrent and the residuary powers were left with the Provinces. The subject of establishment of a University is not mentioned in the Concurrent List and is one of the residuary subjects over' which the Province has exclusive jurisdiction. Even the Executive Authority in terms of Article 97 of the Constitution of Islamic Republic of Pakistan, 1973 vests with the Province. No wonder that Universities have been established by the Provinces.

(iii) That a bare reading of sections 11, 20, 21 and 22 of the Pakistan Medical and Dental Council would show that Pakistan Medical and Dental Council cannot extend recognition to medical institutions. Recognition which it accords is qua qualification and degree. The promulgation of the Ordinance under challenge and the resultant creation of the University of Health Sciences would, therefore, not be ultra vires of the afore-referred Ordinance.

(iv) That although the petitioners do not have a vested right to have a University of their choice, the only ground being pressed to have a Degree from University of the Punjab is that it would have greater credibility abroad and, therefore, it would lead to their professional and career advancement. This desire, he contended, cannot be acceded to. Firstly, because the major expense on a medical graduate is borne by the State and the State should have a right to decide where a medical graduate should serve. Secondly, it is a poor country where the first duty of a medical graduate is towards his own country. In the national interest, the students may not be permitted to acquire a degree from abroad which may tempt them to settle there to the detriment of the domestic needs of the country.

(v) That the University of the Punjab carries out the exercise for holding examinations of about one lac fifty thousand students every year; that it is physically impossible for them to ensure transparency; that the complaints regarding conduct of examinations carried out by the University of the Punjab are on account of the fact that it has become impossible for the University to undertake such a gigantic task. It was one of the reasons for establishing a Specialist University. In an age of specialization such Universities are being set up everywhere;

(vi) That section 37 of the University of Health Sciences Ordinance has two parts i,e, section 37(1) relates to the existing institutions which had prior affiliation with the University of the Punjab and it stipulates that they shall stand affiliated with University of the Health Sciences whereas subsection (2) of the same section is relatable to those institutions which seek affiliation after the establishment of the University of Health Sciences Ordinance. The former is mandatory while the latter is discretionary.

(vii) That the University of Health Sciences Ordinance and the establishment of the new University of Health Sciences are bona fide actions of the law maker and even if there is some irregularity in the orders passed, this Court may not like to interfere as it is the bounden duty of this Court to enforce principles of policy enshrined in Article 38 of the Constitution as the entire exercise under challenge was motivated to give effect to these principles. In support of the submissions, he relied on Nazeer Ahmad etc. v. Muhammad Murad Ali PLD 1978 Lahore 930.

(viii) That the principle of legitimate expectation applies only to the matters of procedural propriety and cannot be invoked against a statute. It is the weakest form of the principle of estoppel. He added, that the law laid down in Al- Jehad Trust through Raeesul Mujahidin Habib Al-Wahabul Khairi, Advocate Supreme Court and another v. Federation of Pakistan and others PLD 1997 Supreme Court 84 has been revisited by the august Supreme. Court in Supreme Court Bar Association through President and others PLD 2002 Supreme Court 939. None of the medical institutions/colleges were held out any representation qua affiliation and, therefore, the question of legitimate expectation does not arise. So far as the students are concerned, no representation was made by the respondent-University of Health Sciences and if any representation was made by the Government of Punjab, the same cannot be pleaded as an estoppel against the Legislature.

(ix) The argument that University of Health Sciences may not have the requisite universal credibility which the University of the Punjab has, is premature and based on apprehensions. The question of recognition of the newly created University is a question of time and with the passage of time when it acquires credibility and recognition those apprehensions would wither away. There is always a starting point for a university, the big universities in the world.

Always had their first day and the first phase. If the colleges and students similarly had agreed to be affiliated with Islamia University, Bahawalpur and Bahauddin Zakariya University, Multan, there can be no valid reason to find fault with the University of the Health Sciences.

13. Mr. Najamul Hassan Kazmi, learned counsel for University of the Health Sciences while supporting the submissions made by Mr. Abdul Hafeez Pirzada, Advocate, submitted as under:--

(i) That the University of the Health Sciences has been established in response to and to resolve the various problems being faced in the domain of Health Sciences to arrest the declining standards ofmedical education and research. In this regard a comprehensive feasibility report was prepared which spells out various features of Health Sciences and its plans for the future. The feasibility report is at page 108 of the written statement.

(ii) That the argument canvassed: by amicus curiae that without the constitution of the various bodies of the University of Health Sciences, the Vice-Chancellor has started functioning, is factually incorrect. He referred to various notifications vide which the Academic Council, the Syndicate, the Board of Governors were constituted and the Vice-Chancellor was appointed. The letter issued by the Vice-Chancellor of the University of Health Sciences, impugned in this petition, was a logical culmination of various decisions taken and it had prior approval of the Board of Governors.

(iii) That a tiny minority of the total student community engaged in pursuing the professional Degree of M.B.,i3S have challenged the establishment of the University of Health Sciences, No Governmental Medical College or Institution has challenged the Ordinance. He gave a break-up of the total number of students in various years of the professional Degree and those who have challenged:- Total StudentsFiled Petitions First Year 1105 7 Second Year 1257 1 Third Year 1159 1 Fourth Year 1159 67 Fifth Year 1191 345 The afore-referred break-up, it was contended, demonstrates that all the students are not aggrieved and only a few have challenged the establishment of the new University.

(iv) That the Punjab Medical College, Lahore and the Fatima Jinnah Medical College, Lahore were affiliated after the promulgation of the Ordinance and, therefore, it reflects mala fides. This was brought to the notice of the Governor of the Punjab/Chancellor of the University of the Punjab who acting under section 11 of the University of the Punjab Act, directed that those be immediately disaffiliated.

14. We have heard learned counsel for the parties, have gone through the precedent case-law and have given anxious consideration to the issues raised in these petitions: ISSUE NO.1: Whether the provisions regarding recognition and affiliation stipulated in the University of Health Sciences Ordinance are violative of the Pakistan Medical and Dental Council Ordinance, 1962 (No,XXXII of 1962). If so, to what effect?

15. The Medical Council Ordinance, 1962 (Ordinance XXXII of 1962) was enacted as per in its preamble, "to consolidate the law relating to the registration of medical practitioners and dentists and reconstitute the Medical Council in Pakistan in order to establish a uniform minimum standard of basic and higher qualification in medicine and dentistry". To achieve this purpose, the Ordinance has, inter alia, created bodies, laid down conditionality's for recognition of a medical qualification and for registration of medical practitioner, spelt out procedure for decision-making by the Medical Council and has made false representation before the Council, a penal offence. Some of the provisions which may be relevant for the case in hand are as follows:-- Section 3 lays down the composition of the Council consisting of twelve members nominated, elected and ex officio.

Section 8 provides that the quorum for the meeting of the Council shall be nine members and "all the acts of the Council shall be decided by I majority of the members present and voting". Section 11 spells out the procedure for recognition of medical qualifications which various medical institutions may grant. It reads as under: "11. Recognition of medical qualifications granted by medical institutions in Pakistan.--(1) The medical qualifications granted by medical institutions in Pakistan which are included in the First Schedule shall be recognized medical qualification for the purpose of this Ordinance.

(2) Any medical institution in Pakistan which grants a medical qualification not included in the First Schedule may apply to the Central Government to have such qualification recognized, and the Central Government, after consulting the Council, may, by notification in the official Gazette, amend the First Schedule so as to include such qualification therein.

(3) Such notification may also direct that an entry shall be made in the last column of First Schedule against such medical qualification declaring that it shall be a recognized medical qualification only granted after a specified date." The University of Health Sciences, Lahore Ordinance (Ordinance LVIII of 2002), on the other hand, has been enacted to establish a Degree awarding University, power and goals of which are discernible from section 4 of the said Ordinance are as under:--

(i) "4. Powers of the University.---The University shall have the powers to---

(ii) provide for instruction in such branches of learning, as it may deem fit and to make provisions for research and for the advancement and dissemination of knowledge in such manner as it may determine;

(iii) prescribe courses of studies to be taught in the medical institutions, affiliated and constituent colleges;

(iv) hold examinations and to award and confer degrees, diplomas, certificates and other academic distinctions to and on persons who have been admitted to and have passed its examinations under prescribed conditions;

(v) confer, in the prescribed manner, honourary degrees or other academic distinctions on approved persons;

(vi) confer degrees on persons who have carried on independent research under prescribed conditions;

(vii) provide for teaching specified courses of training for persons not being students of the University and grant certificates and diplomas to such persons;

(viii) affiliate or disaffiliate colleges and other medical institutions in the prescribed manner;

(ix) admit colleges and other educational institutions to its privileges or withdraw such privileges in the prescribed manner;

(x) inspect colleges and medical institutions, affiliated or seeking affiliation;

(xi) accepted the examinations passed and the periods of study spent by the students of the University at other Universities, Colleges or places of learning as equivalent to such examinations and periods of study in the University, as it may determine, and to withdraw such acceptance;

(xii) cooperate with other Universities and authorities in such manner, and for such purposes as it may determine;

(xiii) institute Professorships, Associate Professorships, Assistant Professorships and Lecturerships and any other posts and to appoint persons thereto;

(xiii) create posts in connection with teaching research, publication extension, training and administration of its affairs and for any other related purposes and appoint persons thereon such terms and e conditions as it may determine;

(xiv) recognize as teachers such persons as it may deem fit;

(iv) institute and award fellowships, scholarships, bursaries, medals and prizes in the prescribed manner;

(xvi) establish institutes, colleges, departments, centers of advance studies, museums and other centers of learning for the development of teaching and research and to their maintenance, management and administration as it may determine;

(xvii) control the residence of students of the University and to establish and maintain halls of residence and approve any place as hostel for lodging of students; (xviii) supervise and control the discipline of students of the University, to promote the co-curricular and recreational activities of students and to make arrangements for promoting their health and general welfare;

(xix) take disciplinary action against, and impose penalty on, students in the prescribed manner;

(xx) charge and receive such fees and other payments as it may determine;

(xxi) make provisions for research and advisory services and with these objects to enter into arrangements with other institutions, or with public or private bodies under prescribed conditions;

(xxii) enter into, carry out, vary or cancel contracts; (xxiii) receive and manage property transferred and any grants, bequests, trusts, gifts, donations, endowments and other contributions made to. The University and to invest any fund representing such property grants, bequests, trusts, gifts, donations, endowments or contributions in such manner as it may deem fit;

(xxiv) provide for the printing and publication of research and other words; and (xxv)do all such other acts or things, whether incidental to the powers aforesaid of not, as may be requisite to further the objectives of the University as a place of education, learning and research;" Section 5 of the Ordinance is relatable to the territorial jurisdiction of the University and reads as under:- Jurisdiction of the University.--(1) The University shall exercise the powers conferred on it by or under this Ordinance within the territorial limits in the Province of the Punjab and in respect of the constituent colleges: Provided that Government may, in consultation with the University, by general or special order, modify the extent and scope of the aforesaid powers of the University with regard to such territorial limits or institutions.

(2) The University may admit to its privileges under prescribed conditions, a medical institution falling within territorial limits of another University, whether inside or outside Pakistan, provided that the consent of such other University and the sanction of Government is first obtained."

16. A comparative study of the two Statutes would show that while the Federal Law (Medical Council Ordinance, 1962) contemplates the creation of a Central Regulatory Authority for whole Pakistan (Medical Council) to establish a uniform minimum standard of basic and higher qualifications in medicine and dentistry", The Provincial Law (University of Health Sciences, Ordinance, 2002) seeks to establish a degree awarding University, with power to undertake, research, teaching, prescribe courses of studies to be taught in affiliated and constituent colleges. There may be overlapping in broad objectives of the two Ordinances but both envisage distinct institutions. However, the subject-matter of both the laws fall within the ambit of Item 38 of the Concurrent List in the Fourth Schedule to the Constitution of Islamic Republic of Pakistan, 1973 which is as under:-- "38. Curriculum, syllabus, planning, policy, centers of excellence and standards of education." But, so far as the power to grant a Degree in some medical qualification is concerned, no University in Pakistan can issue a Degree in a medical qualification mentioned in the First Schedule to Ordinance XXXII of 1962 unless the said qualification has been accorded prior recognition in terms of section 11(1)(2) of the said Ordinance which, inter alia, contemplates recognition through a notification to be issued by the Federal Government after prior consultation with Medical Council established under the said Ordinance. This is true of the University of Punjab, the other Universities similarly placed in Pakistan and University of Health Sciences is no exception. Article 143 of the Constitution of Islamic Republic ofPakistan, 1973 which underpins the primacy of a Federal Statute, stipulates as under:-- "143. Inconsistency between Federal and Provincial Laws.---If any provision of an Act of a Provincial Assembly is repugnant to any provision of an Act of [Majlis-e-Shoora (Parliament)] which [Majlis-e-Shoora (Parliament)] is competent to enact. Or to any provision of any existing law with respect to any of the matters enumerated in the Concurrent Legislative List, then the Act of [Majlis-e-Shoora (Parliament)], whether passed before or after the Act of the Provincial Assembly, or, as the case may be, the existing law shall prevail and the Act of the Provincial Assembly, shall, to the extent of the repugnancy, be void."

17. Both the learned counsel for the University of the Health Sciences did not seriously contest foregoing legal aspect and submitted that a reference is pending before the Federal Government and recognition would be accorded to the qualification/degree which the University is desirous to confer on the successful students of the colleges which stand affiliated with it.

18. As discussed above, the UHS Ordinance is not ultra vires of the Pakistan Medical and Dental Council Ordinance rather both supplement each other.

ISSUE NO.II: Whether the letter (dated 2-12-2002) issued by the Vice-Chancellor, University of Health Sciences is violative of the spirit of UHS Ordinance particularly with reference to section 37 of the Ordinance?

19. In the purported exercise of power under section 37 read with section 13(2) of the University of Health Sciences Ordinance, the Vice-Chancellor of UHS sent the impugned letter dated 2-12-2002 to all the medical institutions in the Punjab, already affiliated with a University, that they stand affiliated with the University of Health Sciences. It reads as under:-- "The Principal Executive Officers/Deans of:

(1) The King Edward Medical College, Lahore.

(2) The AllamaIqbal Medical College and Jinnah Hospital, Lahore.

(3) The Fatima Jinnah Medical College and Ganga Rath Hospital, Lahore.

(4) The Nishter Medical College and Hospital Mahan.

(5) The Quaid-e-Azam Medical College and BVH, Bahawalpur.

(6) The Punjab Medical College and Allied Hospital, Faisalabad. {7) The Rawalpindi Medical College and Allied Hospitals, Rawalpindi.

(8) The Principal of De'Mongtmorency College of Dentistry Dental Hospital, Lahore.

(9) The Dean Institute of Public Health, Lahore.

(10) The Dean Post-Graduate Medical Institute, Lahore.

(11) The Chairman, Post-Graduate Medical Institute, ShaikhZayed Hospital, Lahore. Sub: Affiliation of Medical Institutions with the University ofHeath Sciences, Lahore. Dear.Sir/Madam, I have the honour to inform you that consequent upon the promulgation of the University of Health Sciences Ordinance, 2002, notified by the Government of Punjab on September 28, 2002 and the resultant establishment of the University of Health Sciences, Lahore, all medical institutions (Medical Colleges, Dental Colleges/ Institutes/Nursing Schools/Public Health Institutions/Schools, Para-Medical Schools/Medical Technicians Schools/Post-Graduate Medical Institutes etc.) located within the geographical boundaries of the Punjab Province, whether affiliated with any other University/Examination Board/Medical Faculty or not up to, shall henceforth affiliate as per requirements of section 37 of the Ordinance with the University of Health Sciences, Lahore. The existing institutions,' above mentioned, operating within the Province of Punjab, already affiliated as on 28-9-2002 either with the University of the Punjab, BahauddinZakaryia University, Multan or Islamic University of Bahawalpur, need not undergo the ordeal of affiliation process afresh, I, therefore, in exercise of the powers vested in me under section 13(2) of the University of Health Sciences Ordinance, 2002 have decided that these institutions be deemed to have been ipso facto affiliated with this University, with immediate effect. For other institutions affiliation proceedings may be initiated as per rules. Application forms for the purpose may be obtained from the Office of Assistant Dean, University of Health Sciences, Lahore. (Underlining is ours).

Yours truly, (Sd.) VICE-CHANCELLOR Copy for information and necessary action to:--

(1) The Vice-Chancellor, University of Punjab, Lahore.

(2) The Vice-Chancellor, University of BahauddinZakaryia University, Multan.

(3) The Vice-Chancellor, Islamic University, Bahawalpur.

(Sd.)

(Vice-Chancellor).

20. To better appreciate the vires of the said letter it would be necessary to refer to some of the relevant provisions relating to the affiliation of institutions in the Ordinance under challenge. Section 4 of the Ordinance includes the power to "affiliate or disaffiliate colleges and other medical institutions in the "prescribed manner" which has been defined in section 2(xx) as "prescribed by Statutes, Regulations or Rules". Statute I, clause 11 relates to the composition of the Affiliation Committee consisting of 5 members and clause 12 spells out its functions which, inter alia, includes inspection of the educational institutions "seeking affiliation with or admission to the privileges of the University and to advise the Syndicate thereon". Section 27 empowers the Syndicate to affiliate or disaffiliate medical institutions. Section 37 of the Ordinance which has a direct bearing on the point in issue is as under:-- "37. Affiliation of medical institutions.---(1) All medical institutions, whether in public or private sector, located within the geographical boundaries of the Province of the Punjab, whether affiliated with any other University, Examination Board or a Medical Faculty, notwithstanding anything contained in any other law for the time being in force, shall affiliate with the University within such period and on such terms and conditions, as may be prescribed.

(2) A medical institution seeking affiliation to the University shall make an application to the University and shall satisfy it that---

(i) the medical institution is under the management of Government or a regularly constituted governing body;

(ii) the financial resources of the medical institution are sufficient to ensure its. Continued maintenance and efficient working;

(iii) the strength and qualifications and the terms and conditions ofservice of the teaching and other staff of the medical institution are satisfactory for the purpose of teaching of prescribed courses of studies and training in the institution;

(iv) the medical institution has framed proper rules governing the conduct and discipline of its employees;

(v) the building of the medical institution is suitable and commodious for its requirement;

(vi) the medical institution has, or can make a provision in the prescribed_ manner for the residence of students, not residing with their parents or guardians, and their supervision, and physical and general welfare;

(vii) the medical institution has a provision for a library and adequate library service;

(viii) the medical institution is properly equipped with laboratories, museums and other places of practical work required for courses of studies taught in the medical institution;

(ix) the medical institution has, or can make, provision for the residence of its Chief Executive and Deputy Dean, and other members, of the teaching staff in the medical institution building or near such building or the residence of students; and

(x) the affiliation of the medical institution shall not be injurious to the education or discipline of the students of other institutions in the neighborhood.

(3) The application shall further contain an undertaking by the medical institution that after the institution is affiliated, any change in the management or the teaching staff shall forthwith be reported to the University and that the teaching staff shall possess such qualifications as are, or may be prescribed.

(4) The Syndicate shall, after considering the recommendations of the Affiliation Committee, dispose of the application for affiliation in accordance with such procedure, as may be prescribed, and may grant or refuse affiliation: Provided that the affiliation shall not be refused unless the medical institution has been given an opportunity of making a representation against the proposed decision."

21. A close look at subsection (1) of section 37 would indicate that it makes mandatory for all medical institutions except those which have been established under some Federal Statute and are under the Administrative control of the Federal Government within the geographical boundaries of the Province of Punjab to affiliate with the newly established University of Health Sciences and "within such period" and on "such terms and conditions" as may be prescribed. The institutions run by the Federal Government can, of course, voluntarily affiliate. The time frame was considered essential by the law maker as an abrupt switch-over from one University to the other could be problematic either for the students or the institutions concerned. Subsection (1) of this section is relatable to those institutions which already stand affiliated with a University and qua whom terms and conditions and terms of affiliation are to be prescribed, whereas subsection (2) stipulates the basic requirements of eligibility of affiliation for an institution/ applicant, having no prior affiliation. Subsection (4) of the same section vests the power to allow or refuse affiliation with the Syndicate and after considering the recommendations of the Affiliation Committee. In the case of the former category of institutions, it is mandatory both for institutions and University of Health Sciences to affiliate whereas for the latter it is discretionary with the UHS to grant or refuse affiliation.

22. The argument of the learned counsel for respondent that affiliation of the existing institutions with UHS would be automatic with effect from the promulgation of the Ordinance is untenable because if the legislative intent was so then:--

(i) the law maker would have used the expression "shall stand affiliated henceforth" instead of "shall affiliate";

(ii) "such period" on "such terms" would become redundant if the law envisaged automatic affiliation;

(iii) the existing medical institutions have been specifically mentioned in clause (1) of subsection (2) of section 37 which enjoins the institutions to apply for affiliation;

(iv) section 37(2)(i) shows that even an existing medical institution under the management of Government or otherwise will have to apply. The non obstante clause makes the legislative intent too apparent to warrant any other inference;

(v) the letter itself reflects that there was no affiliation by operation of law and the respondent Vice-Chancellor had to send a letter/order under the cloak of the emergent power of the Vice-Chancellor in terms of section 13(2) of the said Ordinance;

(vi) The application forms were sent by the Vice-Chancellor for the said is purpose. Section 13(2) provides for the special powers of the Vice-Chancellor in cases of emergency. It reads as under;-- "13. Powers and duties of the Vice-Chancellor.--(1) The Vice-Chancellor shall-- (i)

(ii)

(iii)

(iv)

(v)

(vi)

(vii)

(viii)...

(ix)

(2) The Vice-Chancellor may in an emergency, which in his opinion requires immediate action, take such action as he may consider necessary and shall forthwith seek approval of the Board as to the action taken in emergency."

23. A bare reading of the afore-referred provisions shows (a) that these powers are available to the Vice-Chancellor provided the emergency exists as an objective reality, but is not an emergency in a wide sense of the word. It is any state of affairs where the Vice-Chancellor is of the view that any inaction on his part may not be in University's interest, where, immediate meeting of the competent body under the statute is not feasible and where an interim order for ultimate approval by the competent body would serve the institutional interest; (b) it can be used only with regard to those matters which, fall within the power of the Board of Governors as slept out in section 24 of the University of Health Sciences Ordinance because any action taken by the Vice-Chancellor has to be placed before the Board for approval in view of section 13(2) referred to above. The impugned letter of the Vice-Chancellor neither refers to existence of any emergency nor the subject of affiliation fell within the powers of the Board. The letter in question, therefore, was beyond the scope of his power under the Ordinance.However, it can be considered as an intimation by the Vice-Chancellor to all medical institutions concerned about the mandatory nature of the new law and that they should apply which these institutions did.

' The argument that the Vice-Chancellor designate could not perform its functions as the "letter of recognition in respect of the UHS issued by the Secretary, Pakistan Medical and Dental Council, was not a valid recognition in terms of section 22-A of Pakistan Medical and Dental Council Ordinance is without substance because Ordinance VII of 1999 vide which the afore-referred section was inserted lapsed since it was not placed before the Parliament. This has been confirmed by Malik M. Pervez Akhtar, Deputy Attorney-General for Pakistan.

24. The following issues are inter-connected and we propose to deal with them accordingly:--

(iii) Whether the provisions relating to affiliation are violative of fundamental rights provisions of the Constitution of Islamic Republic of Pakistan?

(iv) Whether the petitioners have a right to be examined by the University of Punjab in view of the principle of legitimate expectation?

(v) Whether the respondents are estopped to direct compulsory affiliation of Government Medical Colleges of Punjab notwithstanding the earlier affiliation contemplated in the Prospectus of the Government Medical Colleges in the Punjab?

(vi) Whether the letter issued by the Vice-Chancellor of University of Health Sciences directing compulsory affiliation of all Medical Colleges in the Province of Punjab without complying with the conditions stipulated in the Ordinance and at a stage when the petitioners are in the final phase of their professional degree is in accord with equity and standards of reasonableness as laid down by the august Supreme Court with regard to the exercise of administrative authority?

(vii) Whether section 37 of the University of Health Sciences Ordinance could have retrospective application in the facts and circumstances of this case?

(viii)Whether the concept of compulsory disaffiliation contained in the University of Health Sciences Ordinance pursuant to which the impugned letter was issued by the Vice Chancellor is violative of the University of Punjab Act and the Calendar framed thereunder. If so, to what effect?

25. It was contended before us that the right of education is a fundamental right which includes the right to have education of choice and a career of choice and that the compulsory disaffiliation from the University of Punjab and affiliation with University of Health Sciences is likely to affect the career and the right to have education of choice, right to have a degree of choice and ultimately their right to advancement in career. The Degree of medical qualification which University of Health Sciences may award, it was stressed, does not have worldwide recognition and, therefore, the petitioners may not get admission in foreign universities.

26. The fundamental right of "right to life" recognized in the entire civilized world and enshrined in Article 9 of our Constitution has been given expanded meaning over the years. With the passage of time the role of the State has become more pervasive. Its actions, policies and laws affect the individuals in a variety of ways and the Courts have accordingly given a more comprehensive and dynamic interpretation of the fundamental rights including the right to life. Right to life is no longer considered as merely a right to physical existence or a right not to be deprived of life without due process of law. It means a sum total of rights which an individual in a State may require to enjoy a dignified existence. In modern age a dignified existence may not be possible without a certain level of education and the State has to play a role in ensuring by positive action that the citizens enjoy this right. In Brown v. Board of Education (1953) 98 Law Ed. 873, the US Supreme Court acknowledged this right and held as under:-- "Today, education is perhaps the most important function of State and Local Governments it is required in the performance of our most basic responsibilities, even service in the Armed Forces, it is the very foundation of good citizenship. Today, it is the principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful and child may reasonably be expected to succeed in life if he is denied the opportunity of an education."

27. However, the fundamental rights under consideration are not absolute. Absolute rights may be possible perhaps in the moon or in utopia. In St. Xaviers College v. State of Gujarat AIR 1974 SC 1389, at page 1441, the settled principle of Constitutional law that all these rights have to be regulated by law, was reiterated with reference to the precedent case-law, in the following words:- "No right, however, absolute, can be free from regulation. The Privy Council said in Commonwealth of Australia v. Bank of New South Wales 1950 Can 235, 310 that regulation of freedom of trade and commerce is compatible with their absolute freedom that section 92 of the Australian Commonwealth Act is violated only when an Act restricts commerce directly and immediately as distinct from creating some indirect or consequential impediment which may fairly be regarded as remote. Likewise, the fact that trade and commerce are absolutely free under Article 301 of the Constitution is compatible with their regulation which will not amount to restriction. The Automobile Transport (Rajasthan) Ltd. v. State of Rajasthan (1963) 1 SCR 491 = AIR 1962 SC 1406. "

28. Right to education is a fundamental right but the State regulates it in more than one ways. In the context of this case it is the State, through Legislature, which establishes schools, colleges, universities and regulates affairs. The Universities are entrusted with the task of teaching of laying down curriculum or courses; of formulating admission policy, prescribing recruitment rules for the teaching staff etc. Affiliation and disaffiliation are some of the privileges which a University grants under law. This affiliation is basically an association of two Corporate Bodies and is distinct from "right to Association" contemplated by Article 17 of the Constitution of Islamic Republic of Pakistan, 1973. It is not a right created by any Constitutional provision. It is a right which does not flow from right to education. It is, therefore, not a fundamental right. It is a right created by a Statute. Merely because a college has been disaffiliated from a University through an enactment would not be derogatory to the fundamental rights provision of the Constitution.

29. Section 37 of the University of Health Sciences Ordinance is not a new provision in the history of the creation of the Universities in Pakistan and in the Sub-Continent. Almost similar provision existed in the University of the Punjab Act even in pre-Partition days. This provision exists even in the University of the Punjab Act, 1947 in the Indian Province of Punjab. Section 5(3) of which mandated as under:-- "(3) Notwithstanding anything contained in any other law for the time being in force, any educational institution situated within the limits of the area specified under subsection (1) shall, with effect from such date as may be notified in this behalf by the State Government be deemed to be associated with and admitted to the privileges of the University and shall cease to be associated in any way with, or be admitted to any privileges of the Punjab University; and different dates may be appointed for different institutions. "

30. Under the afore-mentioned provision, a notification was issued by the State Government which inter alia "notified that 30th June, 1970 as the date from which the educational institutions situated within the limits of the areas so specified in the notification shall be deemed to be associated and admitted to the privileges of the University". The vires of the afore-referred Statute and the notification issued thereunder were challenged, inter alia, on the grounds that it was violative of fundamental rights. The Indian Supreme Court dismissed the petition (in D.A.V. College, Jullundur v. The State of Punjab and others AIR 1971 Supreme Court 1737) declaring that it was not violative of fundamental rights and held as under:-- "We have, therefore, no hesitation in holding that the notification under which the Colleges have been affiliated to the Universities is legally valid and from the date specified therein petitioners' Colleges cease to be affiliated to the Punjab University."

31. Unlike section 5(3) of the University of Punjab Act, 1947, the same purpose is sought to be achieved through sections 5 and 37 of the University of Health Sciences Ordinance, of course with regard to medical institutions. Section 5 empowers the Provincial Government to exempt some of the institutions from the purview of section 37 whereas the latter provision makes it mandatory for those institutions to affiliate.

32. The University of Punjab Act, 1973, the Bahauddin Zakariya University Multan Act, 1975 and the Islamia University Bahawalpur Act, 1975, have analogous provisions a break-up of which is given below:-- University of the Punjab Act, 1973Bahauddin Zakaria University Act, 1975The Islamia University of Bahawalpur Act, 1976 Section 5(2): Section 5(2): Section 5(2), No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government be associated in any way with or seek admission to the privileges of any other University.No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government be associated in any way with or seek admission to the privileges of any other University.No educational institution situated within the territorial limits of the University shall, save with the consent of the University and the sanction of the Government he associated in any way with, or seek Admission to the privileges, of any other University.

Section 6(1): Section 7(1): Section 6(1):

(1) Notwithstanding anything to the contrary contained in any other law, notification, contract, agreement or instrument, Government may, by notification in the official Gazette, integrate with the University any educational institution situated any where in the Province or transfer any institute, institution or Department of the University to Government.(1) Notwithstanding anything to the contrary in any other law, notification, contract, agreement or instrument, Government may by notification in the official Gazette, integrate with the University any educational institution situated any where (in Multan Division) or transfer any institute, institution or Department of the university to Government.Notwithstanding anything to the contrary contained in any other law, notification, contract, agreement or instrument, Government may, by notification in the official Gazette, integrate with the University any educational institution situated any where in the Province or transfer any institute, institution or Department of the University to Government.

33. The break-up of the analogous provisions in the University of Punjab Act, 1947 (India), the University of Punjab Act, 1973 (Pakistan), the Bahauddin Zakariya University, Multan Act, 1975 and Islamia University Bahawalpur Act, 1975, Bahawalpur, would clearly demonstrate that such provisions are there in all the State-run Universities and the Government concerned or the Universities have always been vested with power to affiliate or disaffiliate and to exempt or not to exempt an institution. The Courts have never found these statutory provisions to be discriminatory or violative of fundamental rights. The precedent case-law qua Article 17 of the Constitution of Islamic Republic of Pakistan, 1973 to which reference was made by Syed Mansoor Ali Shah, learned amicus curiae was relatable to political parties and political rights and, therefore, would not advance petitioners' case. (Reference was made to Miss Benazir Bhutto v.

Federation of Pakistan and another PLD 1988 Supreme Court 416, Mrs. Benazir Bhutto and another v. Federation of Pakistan and another PLD 1989 Supreme Court 66 and Mian Muhammad Nawaz Sharif v. President of Pakistan and another PLD 1993 Supreme Court 473).

34. Coming to the question of legitimate expectation, there is substance in the argument of Mr. Abdul Hafeez Pirzada, learned counsel for the University of Health Sciences that the principle of legitimate expectation has to stem from a particular provision of law, contract or representation. The main contention of petitioner's learned counsel in this regard was that since at the time of admission it was provided in the Prospectus that at the conclusion of their five years' professional course, they would be issued a Degree from the University of Punjab, therefore, they had legitimate expectation to remain associated with the said University, This argument is not tenable for more than one reason. Firstly, the Prospectus is an administrative instruction which may have a force of law but if this administrative instruction is superseded by a statutory provision, the latter has to prevail. Secondly, the provisions of General Clauses Act cannot have primacy over the special law. This is in line with the law laid down by the august Supreme Court in Fazal Din v.

Lahore Improvement Trust PLD 1969 Supreme Court 223 wherein, at page 238, it was observed as under:-- The power of alteration or modification, if regulated bythe statute itself must prevail over the general principles enunciated in section 20 of the General Clauses Act. It was accepted by this Court in the case of the University of Dacca v. Zakir Ahmad that even the principles of natural justice could be excluded by express words in the enactment itself "

Thirdly, at the time of admission, the merit list was prepared and colleges were allocated and students were admitted to those colleges throughout the Punjab on the basis of standing of those medical colleges and not the basis of universities in the Punjab. The petitioners continue to be the students of their respective medical colleges to which they were admitted in terms of the merits list prepared and would be awarded the same Degree for which they were admitted. Fourthly, in terms of the same Prospectus the students are bound by any subsequent amendment in Prospectus and the impugned provisions being statutory enjoy a higher status. Paras 6 and 7 of the Prospectus of the Government Medical Colleges in the Punjab (Session 20022003) are as follows:-- "6. Students on the role of these colleges shall be bound to abide by the rules and regulations as laid down in this prospectus and such changes issued by Government of the Punjab, from time to time.

7. Government of the Punjab, reserves the right of admissions and alterations of any rule in the prospectus at any stage."

35. So far as the students of final two years of M.B.,B.S. And BDS examinations are concerned, Mr. Abdul Hafeez Pirzada has placed on record a supplementary written statement to the following effect:-- that it will hold the examinations scheduled for 2003, forall the four courses of M.B.,B.S. And BDS namely first profession to the Fourth/Final Professional (5th year) M.B.,B.S. Course of Studies and First year to 4th years (Final) of the BDS Course, but as a gesture permit the degrees for the fourth year (Third Professional) and Final M.B.,B.S. And Third Year and Fourth Year BDS Course to be awarded in the name of Punjab University and Bahauddin Zakariya University as the case may be, to all the candidates who pass the said examinations."

36. Petitioners' learned counsel Mr. Aitza zAhsan and others have accepted this offer and no counsel has objected to it.

Dr. A. Basit, learned Legal Advisor for University of the Punjab has made statement on behalf of the University that the afore-referred statement is acceptable even to University of the Punjab.

37. Section 37 of the University of Health Sciences Ordinance, 2002 may not be in accord with sections 5 and 6 of the University of Punjab Act, 1973, sections 5 and 7 of the Bahauddin Zakariya University Multan Act, 1975 and with Islamia University Bahawalpur Act insofar as Medical Institutions are concerned. But the law maker has decided to set up a Specialist University of Health Sciences and to the extent of the latter Ordinance, the provision of the former three laws shall stand impliedly repealed. Sitting in the Constitutional jurisdiction this Court would not like to enter into the policy making domain of the State or question the legislative wisdom. This is in line with the law laid down by the august Supreme Court in Muhammad Iqbal Rafi v. The Province of Punjab Lahore and others 1986 SCMR 680 and Prof. Noor Muhammad Khan Marwat, Principal, Lucky Marwat College of Education and Research, Lakki Marwat v. Vice-Chancellor, Gomal University, Dera Ismail Khan and 2 others PLD 2001 Supreme Court 219.

38. This brings us to the petitions of those colleges and their students which were affiliated with the University of Punjab after the promulgation of the University of Health Sciences Ordinance, 2002 i,e, 28th September, 2002 (W.Ps.

Nos.5565/2003, 8755/2003, 1343/2003, 6310/2003. 6309/2003, 8193/2002, 7470/2003 and 5594/2003). All these petitioner colleges were granted affiliation by the University of the Punjab on the applications submitted by the respective colleges. The Vice-Chancellor of the University of the Punjab vide letter dated 28-4-2003 issued to all the afore-referred colleges informed them that the affiliation granted to them had been withdrawn. The letter issued to the Principal, Lahore Medical and Dental College, Tulspura, Lahore reads as under:-- To The Principal, Lahore Medical and Dental College, Tulspura, Lahore Subject: AFFILIATION OF MEDICAL INSTITUTIONS The Governor Punjab/Chancellor's directive issued -vide No,GS(Ii)17-1/2003-169. Dated April 23. 2003 refers; The affiliation already granted by Punjab University to your college stands withdrawn with immediate effect.

(Sd.)

Col. MasudulHaq, Registrar. CC. Muhammad Ilyas, Additional Secretary, Governor's Secretariat, Punjab."

39. We have already held that the mandate of section 37 of the University of Health Sciences Ordinance. 2002 was explicit and that all medical institutions whether affiliated with University or not had to affiliate M with the newly created University. Admittedly all the afore-referred institutions were granted affiliation after the enforcement of the University of Health Sciences Ordinance notwithstanding the mandate of the provision referred to above. It appears that Vice- Chancellor was apprised of the afore-referred legal position pursuant to which he withdrew their affiliation but the question whether the Vice-Chancellor could withdraw the affiliation himself under the University of Punjab Act, 1973 would be a moot point. Section 38 of which reads as under:- "38. Withdrawal of affiliation.--(1) If an educational institution affiliated to the University fails at any time to fulfill any of the requirements mentioned in this Act, or if an educational institution has failed to observe any of the conditions of its affiliation, or its affairs are conducted in a manner which is prejudicial to the interests of education, the Syndicate may, on recommendation of the Affiliation Committee, and after considering such representation as the educational institution may wish to make, withdraw, either in whole or in part, the rights conferred on the educational institution by affiliation or modify such rights.

(2) The procedure to be followed for the withdrawal of affiliation shall be such as may be prescribed."

40. A careful reading of the afore-referred provision demonstrates that the withdrawal contemplated under the law is on account of non-fulfillment of any requirement of Act, its failure to observe any condition of affiliation or on account of anything done by the said institution which is prejudicial to the interests of education. If the institution was guilty of any of these acts or infirmities, section 38 empowers the Syndicate,, on the recommendation of the Affiliation Committee, to withdraw affiliation granted. As there was no allegation of the afore-referred kind, obviously the Syndicate would not have been in a position to withdraw affiliation under this provision. However, the change in affiliation has been mandated by law through procedure laid down. But the letter issued by the Vice-Chancellor, University of the Punjab is neither backed by any provision in the University of Punjab Act, 1973 nor the University of Health Sciences Ordinance, 2002. Confronted with a Court query, about the legality of the afore-referred letter issued by the Vice-Chancellor of the University of the Punjab dated 28-4-2003, Dr. A. Basit, learned Legal Advisor conceded that the former did-not had any authority to issue the letter in question. However, since the affiliation granted by the University of the Punjab to those colleges was in derogation to the mandatory provisions of University of Health Sciences Ordinance, 2002 was itself void, the order of withdrawal of the said affiliation becomes inconsequential and it is held so. But, the act of the University of the Punjab or the respective colleges who sought affiliation with it should not prejudice the case of the students of these colleges. The examination forms of the students of those colleges shall, therefore, be accepted by the University of Health Sciences and those students shall be allowed to appear in terms of the same arrangement referred to in para. 35 above. In the meanwhile University of Health Sciences shall entertain the application of these colleges for the grant of affiliation and as their eligibility qua affiliation had already been determined by the University of the Punjab, they shall be granted the requisite affiliation in the same terms they had with the University of the Punjab i,e, provisional or permanent affiliation as the case may be.(Emphasis supplied).

41. We have gone through the working paper prepared on the establishment of University of Health Sciences, Lahore. It highlights the problems being faced in the medical institutions, the quality of teaching; the standards of examination, the fact that University of Punjab is overburdened, that every year it has to examine a total number of one lac fifty thousand students in various disciplines and the need to improve curriculum and research with a view to bring it in accord with the requirements of the contemporary world. It explains that the idea of a Health University is not new. There are eighty. Such Universities in Japan. Seven in Iran and even in Sindh there are five. In the afore-referred back-drop, the fundamental objective has been explained as under- .,........ With a view to bring radical changes in medical education for combating the challenges of 21st century , it has been considered inevitable to set up an institution in the Punjab which can act as center of excellence for all health, and medical related activities. This center has been conceived in shape of University of Health Sciences, Lahore. The proposed University would serve as a nexus for medical sciences in Pakistan with specific focus on the Punjab Province.

The precise role of the University will be to act as a body for regulating, coordinating and ensuring quality control in the domain of medical education. In addition, it would also manage activities like holding international, national and regional conference, seminars, workshops, and lectures by eminent scholars/professionals both from abroad and within the country."

The vision is dynamic and the declared objectives appear to be noble. We only hope that these are backed by the requisite dedication and resources both. The allocation of merely five acres of 'land for a University of the kind visualized in the founding papers and the law enacted is a rather modest start to say the least. While the recent strides in the domain of information technology are worthy of positive comment, but the treatment meted out to the determinants of a civil society generally and the education sector particularly in the last fifty years strikes a jarring note. How can a nation confront the challenges of 21st Century which spends hardly 3% of its GNP on education. In this backdrop the argument of Mr. Abdul Hafiz Pirzada, learned counsel for UHS that the State has a right, in the national interest or on the principle of patriotism, to prohibit medical graduates to go abroad for higher education so that they may not settle there, is untenable because it would impede further advancement in professional knowledge and would adversely affect higher career prospects. Individuals grow, nations are built and civilizations advance not by such regimentation or regulation, but by a spirit of free enquiry, a spirit of research and in a society which does not put a clog on intellectual growth which encourages inter-action between academicians within and beyond the frontiers. Patriotism is not generated in a vacuum; it does not sprout from the barren fields or grow from the trees it is visible in the lush green fields where the tiller gets his due in the factories, where the worker gets fair wages for his toil and sweat; it breeds in the hearts and minds of the young men and women when their thirst for knowledge is quenched in the seats of learning and when they grow up and lay off their student robes, they discharge their debt to posterity by shaping the future of the country as Doctors. Engineers, Lawyers, Judges, Teachers, Statesmen, Soldiers, Politicians and Philosophers. It smells in the air when people have a sense of security of their lives, their liberties, their honour and their livelihood. It flourishes in a tolerant society which is not accused of producing zealots charged with an evangelistic spirit, "seeking heavens by creating hell on earth", and it reins supreme in a justice system which inspires confidence.

42. "The ink of the scholar is more sacred than the blood of the martyr", so said Prophet Muhammad (peace be upon him). But alas! Today, we are accused of spreading terror. In Muslim history the intellectual advancement received a stunning blow when Halloko Khan destroyed the seats of learning and libraries in "Baghdad". Let there be an intellectual renaissance. Let our traditional seats of learning grow and blossom intouniversities teaching modern subjects. Let these institutions acquire an academic credibility. After all traditional universities like Cambridge and Oxford where once upon a time were Church institutions. We are all Abraham's children. In history all of us had our days of glory, our days of intellectual advancement, our days of political ascendancy and our days of economic boom. Only the time and space varies.

43. In this age of scientific advancement and technology, it is knowledge acquired through education which lays down, raises superstructure and sustains societies and a nations in their forward march towards the realization of their dreams, hopes and ideals. There are moments in history when the whole fate and future of nations can be decided by a single decision. That moment is within our reach; we only have to discover it, it calls for a change in our national outlook and a change in national priorities i,e, it calls for a tilt towards more education, more schools and colleges, more seats of learning, of research and excellence. It is, inter alia, with this spirit in mind that we uphold the law and the Specialist University of Health Sciences established thereunder.

44. For what has been discussed above, while disposing of the writ petitions, mentioned in para 1 of this order, we declare, hold and direct as under:

(1) That the University of Health Sciences Ordinance, 2002 is not ultra vires of the Constitution of Islamic Republic of Pakistan, 1973 or the Pakistan Medical and Dental Council Ordinance, 1962. The University of Health Sciences has been validly established and no exception can be taken to it whatsoever.

(ii) That subject to Article 143 of the Constitution of Islamic Republic of Pakistan, 1973, all the medical institutions under the administrative control of the Provincial Government and the medical institutions in the private sector in the territorial limits of Punjab are under a mandate of the new law to affiliate with the University of Health Sciences within such time and on such terms and conditions which may be prescribed subject of course to the power of the Provincial Government to exempt any medical institution in terms of section 5 of the said Ordinance. The order of exemption of King Edward Medical College, Lahore and Fatima Jinnah Medical College, Lahore is therefore, not without lawful authority. So far as the Army Medical College, Rawalpindi is concerned nothing has been placed on record to indicate that it has either been established under a Provisional Statute or is under the administrate control of the Provincial Government. Whatever be the factual position, legal consequences shall flow in terms indicated above.

(iii) That the letter dated 2-12-2002 issued by the Vice-Chancellor of University of Health Sciences, insofar as it declares the medical colleges to be deemed to have been affiliated, is without any lawful authority. The letter shall be considered merely as an intimation to the medical institutions concerned about the change in law qua affiliation and an invitation to comply with the mandate of law. The intimation sent by the Principals of the medical colleges/institutions would be treated as applications for affiliation and the latter shall pass appropriate orders for affiliation if it has not already been passed, without further loss of time in terms of section 37 of the University of Health Sciences Ordinance, 2002;

(iv) That all the private medical colleges which were granted affiliation (provisional or permanent) by the University of Punjab after the promulgation of UHS Ordinance shall be granted similar nature of affiliation forthwith which they enjoyed with the University of Punjab so that the students may not suffer. The concerned colleges shall apply to the University of Health Sciences within a week:

(v) That since those colleges which acquired affiliation, with the University of Punjab after the enforcement of the UHS Ordinance, did not avail the privilege of affiliation for long and had to disaffiliate by operation of law, the University of Punjab shall consider the question of refund of their affiliation dues if an application is made in this behalf.

(vi) That the requisite notification qua recognition of the medical qualification in terms of section 11 of Pakistan Medical Council Ordinance, 1962 is still awaited. By way of an interim arrangement the University of Health Sciences and University of the Punjab have agreed that the former shall be an examining body for the fourth year (3rd Professional) and final M.B.,B.S. And 3rd and 4th year of BDS and the latter shall award degrees.

45. Before parting with the judgment we may observe that the petitions, in hand were cases of first impression, involved intricate questions of law and interpretation of Constitutional provisions. The assistance rendered by the learned counsel from both the sides has been of great value. We particularly, place on record our deep appreciation for Mr. Abdul HafeezPirzada, Mr. AitzazAhsan, Mr. Najamul Hassan Kazmi, Mr. Abid Hassan Minto, Dr. A. Basit, Syed Mansoor Ali Shah and Mr. Salman Akram Raja. Advocates for their qualitative and quantitative input.