Civil Appeals No.3 and 4 of 2018 (Appeal to allow SAT-II for admissions to medical colleges)

Date of hearing: 12.01.2018
Court: Supreme Court of Pakistan (Appellate Jurisdiction)
Judges Present: Mr. Justice Mian Saqib Nisar,
HCJ Mr. Justice Mushir Alam,
Mr. Justice Sajjad Ali Shah
Name: Civil Appeals No.3 AND 4 OF 2018 (on appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A. No.98703/2017);
Civil Petitions No.45 and 64 – 70 of 2018 (on appeal from the judgment/order dated 07.12.2017 passed by the Lahore High Court, Lahore in I.C.A.98703/2017).

The facts of the case are as follows: According to the Admission in MBBS/BDS Courses and Conditions for House Job/Internship/Foundation Year Regulations, 2013 students who had completed their F.S.c were eligible to be enrolled in medical and dental colleges on the basis of the marks they had obtained in F.Sc. and the Medical & Dental College Admission Test (MDCAT) whereas students who had completed their A-Levels were eligible for admission on the basis of marks obtained in their equivalence certificates issued by the Inter Board Committee of Chairmen (IBCC) and their SAT-II scored in lieu of the MDCAT. On 27 October 2016 the 2013 Regulations were repealed by the MBBS and BDS (Admissions, House job and Internship) Regulations, 2016 in which A-level students could no longer rely on their SAT-II scores to enrol in medical and dental colleges and were required to take the MDCAT instead. The students applying for enrolment in the 2017-18 session had completed their A-levels in June 2017 and had appeared for their SAT-II exam in June/October 2017. These students challenged the 2016 regulations claiming that when they enrolled in their A-levels in 2015 and prepared for their admissions in medical and dental colleges over the next two years, the 2013 regulations were in effect. They took the steps necessary to ensure their enrolment, according to these regulations which allowed marks for SAT-II to suffice for an application. Now, at the very last moment the Pakistan Medical and Dental Council (PMDC) made major changes to the admission criteria without prior notice. This coupled with the fact that students in previous years had been allowed to enroll under the 2013 Regulations was argued to be a violation of the rights of these students. These students were therefore entitled to the same treatment as they had already completed a year of their A-levels in October 2016 and had planned their year on the understanding that they would be governed by the 2013 Regulations which created a legitimate expectation that they could be enrolled on the basis of their SAT-II score.

The 2016 Regulations also introduced a Centralized Admission Program (CAP) whereby which private medical and dental colleges in all provinces were required to participate in constructing a merit list with the University of Health Sciences (UHS). Since this was ignored by the private colleges, negotiations took place between the PMDC and the Pakistan Association of Private Medical and Dental Institutes (PAMI). Following this, both private institutions and the UHS were requesting applications for enrollment which created confusion for the students. The PAMI and some private colleges challenged the 2016 Regulations as acts violating their fundamental right to do business under the Pakistan Medical and Dental Council Ordinance, 1962 (Ordinance of 1962) by violating article 18 of the Constitution of Pakistan. The High court adjudicating this issue held the 2016 Regulations to be illegal as they were beyond the authorized mandate of PMDC under the 1962 Ordinance and ordered them to be struck down. The court also ordered the students who had completed their A-levels in June 2017 to be entitled to admission based on their SAT-II scores for the 2017-18 session and the PMDC was ordered to work under the purview of the Council of Common Interests (CCI).

The Chief Justice of Pakistan, Mian Saqib Nisar gave the leading judgment. In reviewing the legitimacy of CAP the court stated that the PMDC’s mandate included regulation of medical and dental education and institutions (Ordinance of 1962, Sec 6(ii), 6(iii)). Since this included the process of admissions CAP was rendered to be a legitimate decision of the PMDC.

Referring to the High Court’s judgment the court held that since the CCI was subservient to the parliament as per the constitution and the parliament had absolute authority to make laws enumerated in the Federal Legislative List, without requiring any approval from any authority, including CCI (except Presidential assent in terms of Article 75 of the Constitution). The ordinances (including the Amendment Ordinances) were therefore not invalid on the grounds that they were not approved by the CCI which validated the 2016 Regulations even though the CCI had not approved them.

The court stated that ordinances promulgated by the president were valid until the time stated in Article 89 (or article 128) of the constitution unless they were approved by the legislature. The failure to comply with the requirement of laying an Ordinance before the legislature was a serious constitutional infraction and abuse of the constitutional process. Re-promulgation of Ordinances, especially when the earlier ones were either not approved or disapproved by Parliament, was a fraud on the Constitution and a subversion of democratic legislative processes. Therefore amendments made by the Amendments Ordinance in the 1962 Ordinance did not survive after the former had lapsed and the pre-amendment law was revived.

In evaluating the validity of the activities of the PMDC during the period where the Ordinances of 2014 and 2015 (collectively referred to as the ‘Amendment Ordinances’) had lapsed/been repealed the council constituted pursuant to those had also ceased to exist from 25.04.2016. Following this, the 2016 regulations framed under Section 33 of the 1962 Ordinance by the PMDC, both of which had been substituted by the 2015 Ordinance also ceased to exist as it had been framed illegally. This however, did not affect actions of the PMDC taken in the ordinary course of business as these were held to be protected under the de facto doctrine until changed by the new CCI to be constituted after fresh elections were conducted.

Upholding all other decisions of the PMDC the court permitted students who completed their A-level in June 2017 to be admitted into medical and dental colleges on the basis of their SAT-II score for the 2017-18 session only.