University Of Health Sciences vs Govt Of Pakistan etc.

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

JUDGMENT

W.P.No.29214/2011

University of Health Sciences, VS. Government of Pakistan through Lahore the Secretary, Ministry of Inter Provincial Coordination, Islamabad etc.

Date of hearing : 28.11.2022 Petitioners by : Barrister Ch. Muhammad Umar, Mufti Ihtisham-ud-Din and Rana Muhammad Ansar, Advocates Respondents by : Mr. Gohar Nawaz Sindhu, Additional Advocate General Mr. Imran Ahmad Malik, Advocate for respondents No.3 & 4 Sardar Taimoor Aslam Khan and Shahrukh Mehboob, Advocates for respondent No.5.

Ch. Muhammad Iqbal, J:- Through this single judgment, I intend to decide the titled Writ Petition [No.29214/2011] and Writ Petition No.19848/2011 as common questions of law and facts are involved in these cases.

Writ Petition No.29214/2011

2.Through this writ petition, the petitioner/University of Health Sciences, Lahore [hereinafter referred to as the ―UHS‖] has challenged the validity of notification dated 13.08.2011 issued by the Deputy Director General (Health), Ministry of Inter Provincial Coordination (Health Wing), Government of Pakistan.

3.Brief facts of this case are that the respondent No.3/The Superior College, Lahore was established under Section 3 of The Superior College Lahore Act 2004 (which was amended through The Superior College, Lahore (Amendment) Act, 2021‖ (XXIII of 2021) and named it as ―The Superior University, Lahore, Act, 2004‖ [hereinafter referred to as ―Act 2004‖] and was allowed to establish a medical college subject to fulfillment of the requirements laid down in Section 4 of the Act 2004 alongwith other legal applicable requirements under Section 37 of The University of Health Sciences Ordinance 2002 [hereinafter referred to as ―Ordinance 2002‖]. Respondent No.3 established a medical college under the name & style of Azra Naheed Medical College [hereinafter referred to as ―College‖] (respondent No.4) and initiated proceedings to obtain recognition from the Pakistan Medical & Dental Council [hereinafter referred to as ―PMDC‖] (respondent No.5) under Section 11 of the Pakistan Medical and Dental Council Act, 1962. The College requested the UHS to issue NOC/Permission to grant affiliation vide letter dated 12.02.2011. The protracted correspondence was still underway between the UHS and the College but respondent No.1 vide impugned notification dated 13.08.2011 accorded approval to the Superior College, Lahore to impart medical education / training for MBBS degrees for 100 students. Through this petition the UHS contends that the impugned approval letter/notification is illegal and has been issued in violation of Section 37 of the Ordinance 2002. That the requirement of Section 4 of Act 2004 was not complied with by the College in letter and spirit, whereas being located within the territorial boundaries of the Province of Punjab, it was mandatory for the college to comply with the statutory requirements contained in Section 37 of the Ordinance 2002. Hence this writ petition.

PMDC filed parawise comments and admitted that affiliation of the medical colleges with UHS was necessary and respondent No.1 also adopted the above comments, whereas respondents No.3 & 4 through filing parawise comments controverted the stance of the petitioner on legal and factual parlances and defended the impugned notification with the assertion that respondent No.1 was well within competence to allow the teaching of medical education to the students and there is no need to get affiliation with the Petitioner UHS and finally prayed for dismissal of this constitutional petition.

Writ Petition No.19848/2011

4.Through this writ petition, the Superior College, Lahore has challenged the validity of Notice dated 21.07.2011 whereby the UHS directed the petitioner to get Azra Naheed Medical College affiliated with UHS and press releases dated 25.06.2011 and 31.08.2011 issued by the UHS whereby the recognition of said College was declared as false and illegal.

5.Brief facts of this case are that the Superior University, Lahore established Azra Naheed Medical College under the provisions of the Act 2004 and filed an application to PMDC for grant of necessary approval for imparting medical education to the students in the said college. The petitioner was advised by the Higher Education Commission, Government of the Punjab to get affiliation of the college with the UHS. The petitioner-college approached UHS for said purpose. On 12.02.2011 UHS informed the Principal of Azra Naheed Medical College to firstly obtain necessary recognition from the PMDC whereafter the UHS shall grant affiliation. Later on, through notice dated 21.07.2011 the UHS again directed the petitioner to get the College affiliated with the UHS as required under Section 37 of the Ordinance 2002 and also advertised publications in daily ―Jang‖ dated 25.06.2011

and 31.08.2011 declaring the recognition of the Azra Naheed Medical College as false and illegal. The petitioner [Superior College] has prayed for setting aside of the aforementioned notices and publications.

6.I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.

7.As per divergent pleadings of the litigating parties the following moot point is required to be answered:

―Whether after having obtained recognition certification under Section 11 of PMDC Act, 1962 the affiliation of medical teaching institutions located within the territorial boundaries of the Province of Punjab with UHS is mandatory under the Ordinance, 2002?

Before delving into the above moot point, it is pertinent to analyse the legislative scheme of law on the subject. As per constitutional scheme, the legislative and executive domains of the federation as well as its provinces have been provided under Article 142, 143 & 144 of the Constitution of Islamic Republic of Pakistan, 1973 [hereinafter referred to as ―Constitution‖]. Under Article 70 of the Constitution, before 18th Constitutional amendment, there were two legislative lists i.e. (i) Federal Legislative List (the exclusive legislative domain of Federation) and (ii) concurrent Legislative list. In the concurrent legislative field Federation and Provinces, both had common legislative competence to make law and execute the same. The Federation promulgated Pakistan Medical and Dental Council Act, 1962 having legislative competence pursuant to entry No.38 of the concurrent list regarding Medical Education, through which PMDC inter alia to regulate/administer the affairs including recognition of the Medical colleges. Similarly the Provincial Government promulgated the Ordinance, 2002 in the Province of Punjab regarding affiliation of the Medical Colleges with UHS.

Subsequently, 18th Amendment in the Constitution was promulgated in the year 2010 whereby the concurrent legislative list was abolished and consequently entry No.38 of concurrent list stood vested with the province(s).

8.Now, adverting to the lis in hand and moot point, admittedly the Ordinance 2002 was promulgated on 28.09.2002 to establish University of Health Sciences as a regulatory body, inter alia to settle the matters of the medical teaching colleges / institutions throughout the province of Punjab. The controversy in the lis in hand is with regard to the condition of compulsory affiliation of the Medical Teaching Colleges or Institutions operating within the territorial limits of the province of Punjab with the UHS. The words ̳affiliated‘, ̳medical institution‘ and ̳university‘ have been defined in Section 2 of the Ordinance 2002 as under:

―2. Definitions.– In this Ordinance, unless there is anything repugnant in the subject or context:–

(ii)―affiliated‖ when used in relation to a medical college or institution means a college or institution affiliated to the university but not maintained or administered by it;

(xviii)―medical institution‖ means any school, institute, college or institution imparting medical education or teaching health sciences;

(xxvii)―University‖ means the University of Health Sciences, Lahore constituted under this Ordinance;

Under Section 4 of the Ordinance 2002, powers of the UHS to present the courses, syllabus, affiliate, disaffiliate the colleges and medical institutions etc. are given. For reference, Section 4 is reproduced as under:

―4. Powers of the University.– The University shall have the powers to–

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

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

(iii)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;

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

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

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

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

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

ix)inspect colleges and medical institutions, affiliated or seeking affiliation;‖

(emphasis supplied)

The territorial jurisdiction of UHS has been given in Section 5 of the Ordinance 2002 which is as under:

―5. 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.‖ (emphasis supplied)

Under Section 27 (2) (ii) of the Ordinance 2002, the Syndicate of the UHS has been authorized to affiliate or disaffiliate medical institutions. The said provision is reproduced as under:

―27. Powers and duties of the Syndicate.– (1)....

(2)Without prejudice to the generality of the foregoing powers and subject to the provisions of this Ordinance and the Statutes, the Syndicate shall have the powers to– (i).....

(ii)affiliate or disaffiliate medical institutions;‖ (emphasis supplied)

The formation of Academic Council of UHS, its powers and duties have been given in Section 30 and Section 31 of the Ordinance 2002, which are reproduced as under:

―30. Academic Council.– (1) The Academic Council shall consist of–

(i)the Vice Chancellor, who shall be its Chairman;

(ii)the Deans of the University;

(iii)the Directors of Institutes;

(iv)the Principals of affiliated and constituent colleges;

(v)the Chairpersons of the teaching departments;

(vi)the Professors including Professors Emeritus;

(vii)five persons to be nominated by the Chancellor;

(viii)the Registrar;

(ix)the Controller of Examinations; and

(x)the University Librarian.

(2)The members of the Academic Council, other than ex- officio members, shall hold office for three years, and if the office of any such member becomes vacant before the expiry of such term, such vacancy shall be filled in the prescribed manner.

(3)The quorum for a meeting of the Academic Council shall be one third of the total number of members, a fraction being counted as one.

31.Powers and duties of the Academic Council.– (1) The Academic Council shall be the academic body of the University and shall, subject to the provisions of this Ordinance, the Statutes and the Regulations, have the powers to lay down proper standards of instruction, research, publication, examination, and to regulate and promote the academic life of the University, medical institutions, and affiliated and constituent colleges.

(2)Without prejudice to the generality of the foregoing powers and subject to the provisions of this Ordinance, the Statutes and the Regulations, the Academic Council shall have the powers to–

(i)advise the Syndicate on academic matters;

(ii)regulate the conduct of teaching, research, publications and examinations;

(iii)regulate the admission of students to the University and conduct examinations of affiliated colleges and medical institutions;

(iv)regulate the award of scholarships, medals and prizes;

(v)regulate the conduct and discipline of students of the University, medical institutions and affiliated colleges;

(vi)propose to the Syndicate schemes for the constitution and organization of faculties, institutes and other academic bodies;

(vii)make Regulations on the recommendations of the Boards of Faculties and the Boards of Studies for approval of the Board;

(viii)propose Regulations for each academic year, on the recommendations of the Boards of Studies of the University, prescribing the courses of studies, the syllabi and the outlines of tests for all examinations; provided that, if the recommendations of a Board of Faculties or the Board of Studies are not received by the specified date, the Academic Council may, subject to the approval of the Syndicate permit such Regulations to continue for the next following year;

(ix)recognize the examinations of other Universities or examining bodies as equivalent to the corresponding examinations of the University;

(x)appoint members to the various Authorities in accordance with the provisions of this Ordinance; and

(xi)perform such other functions as may be prescribed by the Statutes.‖ (emphasis supplied)

Under Section 34(1) (iv) of the Ordinance 2002, the Syndicate of the UHS has been authorized to make Statutes to prescribe and regulate the matters regarding affiliation and disaffiliation of medical institutions. For reference, aforesaid provision is reproduced as under:

―34. Statutes.– (1) Subject to the provisions of this Ordinance, Statutes may be made to prescribe and regulate all or any of the following matters:–

(iv)the affiliation and disaffiliation of medical institutions and related matters‖

Pursuant to Section 34(iv) of the Ordinance 2002 Statutes for Affiliation of Medical Institutions of 2011 was promulgated (which was repealed upon promulgation of Statutes for Affiliation of Medical Institutions 2022) wherein a procedure is provided for application to be filed by all medical institutions seeking affiliation with UHS. Section 37 of the Ordinance ibid requires mandatory affiliation of all the medical colleges/ institutions, whether in public or private sector, located within the geographical boundaries of the province of the Punjab with the UHS. For reference, aforesaid provision is reproduced 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 of service 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 requirements;

(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 Vice Chancellor 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.‖ (emphasis supplied)

9.Under Section 37 of the Ordinance 2002, it is mandatory that all medical colleges or institutions, whether in public or

private sector, located within the territorial boundaries of the Province of 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 UHS. It is not out of place to mention here that the question of mandatory affiliation of medical colleges with UHS was earlier arisen in the year 2003, when concurrent list was still in vogue, a few of the medical colleges/ universities/students challenged the vires of Ordinance 2002 and a learned Full Bench of this Court in its reported judgment titled as Ahmad Abdullah and 62 others Vs. Government of the Punjab and 3 others (PLD 2003 Lahore 752), has declared provision of Section 37 of the Ordinance 2002 as mandatory and thus all the public or private medical colleges or institutions operating within the territorial boundaries of the Province of Punjab shall have to get affiliation with UHS who on receipt of an application of the institution for affiliation, shall pass an order as per law. In the judgment (supra) it is held as under:

―16. A comparative study of the two Statutes would show that while the Federal Law (Medical Council Ordinance, 1962) contemplates that 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.‖

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 Statue and are under the Administrative control of the Federal Government within the geographical boundaries of the Province of Punjab to affiliate with the newly establish 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 intuitions, 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.‖ (emphasis supplied)

The final declaration is prescribed in paragraph No.44 of the judgment (supra), which is as under:-

(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.

(emphasis supplied)

The judgment (supra) was upheld by the Hon'ble Supreme Court of Pakistan which pronouncement has been reported as Shafique Ahmed and others Vs. Government of Punjab and others (PLD 2004 SC 168). As such, the matter of mandatory affiliation of the medical College/Institution with UHS as well as the jurisdiction through enactments as well as by judicial dicta has finally been settled. Thus in consonance with the enactment of Ordinance 2002, as well as the dicta of the superior courts, the following public and private medical colleges got affiliated with the UHS:

―CONSTITUENT INSTITUTIONS

MEDICAL COLLEGES

Name Sector Gujranwala Medical College, Gujranwala Public

AFFILIATED INSTITUTIONS

MEDICAL COLLEGES

Name Sector Allama Iqbal Medical College, Lahore Public Nishtar Medical College, Faisalabad Public

Quaid-e-Azam Medical College, Bahawalpur Public Rawalpindi Medical College, Rawalpindi Public Services Institute of Medical Sciences, Lahore Public Sheikh Zayed Medical College, Rahim Yar Khan Public Sargodha Medical College, Sargodha Public Nawaz Sharif Medical College, University of Gujrat, Public Gujrat Khawaja Muhammad Safdar Medical College, Sialkot Public Sahiwal Medical College, Sahiwal Public Ameer-ud-Din Medical College, Lahore Public FMH College of Medicine & Dentistry, Lahore Private Lahore Medical & Dental College, Lahore Private University Medical & Dental College, Faisalabad Private Wah Medical College, Wah Cantt Private CMH Lahore Medical College, Lahore Private Independent Medical College, Faisalabad Private Sharif Medical & Dental College, Lahore Private Continental Medical College, Lahore Private Akhtar Saeed Medical & Dental College, Lahore Private Central Park Medical College, Lahore Private Multan Medical & Dental College, Multan Private Avicenna Medical College, Lahore Private Shalimar Medical & Dental College, Lahore Private Islam Medical College, Sialkot Private Rashid Latif Medical College, Lahore Private Aziz Fatima Medical & Dental College, Lahore Private Hashmat Medical & Dental College, Gujrat Private Pak Red Crescent Medical & Dental College, Lahore Private Amna Inayat Medical College, Sheikhupura Private

DENTAL COLLEGES

de‘ Montmorency College of Dentistry, Lahore Public Nishtar Institute of Dentistry, Multan Public Dental Section, Lahore Medical & Dental College, Private Lahore Dental Section, FMH College of Medicine & Dentistry, Private Lahore Margalla Institute of Health Sciences, Rawalpindi Private Dental Section, Sharif Medical & Dental College, Private Lahore Dental Section, University Medical & Dental College, Private Faisalabad Institute of Dentistry, CMH Lahore Medical College, Private Lahore Dental Section, Multan Medical & Dental College, Private Multan Islam Dental College, Sialkot Private

ALLIED HEALTH SCIENCES INSTITUTIONS

Institute Sector Allama Iqbal Medical College, Lahore Public Nishtar Medical College, Multan Public Punjab Medical College, Faisalabad Public Rawalpindi Medical College, Rawalpindi Public Quaid-e-Azam Medical College, Bahawalpur Public Services Institute of Medical Sciences, Lahore Public Sheikh Zayed Medical College, Rahim Yar Khan Public De‘ Montmorency College of Dentistry, Lahore Public Punjab Institute of Cardiology, Lahore Public Institute of Public Health, Lahore Public School of Allied Health Sciences, The Children‘s Public Hospital & Institute of Child Health, Lahore FMH College of Medicine & Dentistry, Lahore Private Gulab Devi Postgraduate Medical Institute, Lahore Private Lahore Medical & Dental College, Lahore Private Pakistan Institute of Ophthalmology, Al Shifa Eye Private Trust Hospital, Rawalpindi

Faisalabad Institute of Research Sciences & Private Technology, Faisalabad Armed Forces Postgraduate Medical Institute, Public Rawalpindi Sughra Shafi Medical Complex, Narowal Private Munawar Memorial Hospital Chakwal (Institute of Private Optometry) Faisalabad Institute of Cardiology, Faisalabad Public Ch. Pervaiz Elahi Institute of Cardiology, Multan Public

10.The intent of Ordinance 2002 which is a special law on the subject matter was/is to regulate the medical colleges in the Province of Punjab. Through Section 37 of the Ordinance 2002, the exclusive jurisdiction was/is given to UHS for the affiliation of the medical teaching institutions either in public or private sector, located within the territorial jurisdiction of the Province of Punjab. The said provision has a non-obstante clause i.e. ―notwithstanding anything contained in any other law for the time being in force‖ and it has to be read in the context of what is intended in the enacting part of the provision and/or an overriding provision of law become apparent. The legislature inserted the non-obstante clause in Section 37 with intent to maintain and promote a qualitative best education in the medical field and any contrary provision will not impede its operation. The Hon‘ble Supreme Court of Pakistan has elaborately explained the definition of non-obstante clause in its judgment cited as Syed Mushahid Shah & Others Vs. Federal Investment Agency & Others (2017 SCMR 1218), wherein it is held as under:- ―9. Section 7(4) of the Ordinance, 2001 confers exclusive jurisdiction on the Banking Courts with respect to certain matters albeit subsection (5) creates an exception to the exclusive jurisdiction of the Banking Courts. This confers a right on the financial institution to seek any remedy before any court or otherwise which may be available to it under the law by which the financial institution may have been established [Section 7(5) (a)]. According to section 4 of the Ordinance, 2001 reproduced above, its provisions ―shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force.” This is essentially a non obstante clause which is defined as ―A phrase used in documents to preclude any interpretation

contrary to the stated object or purpose.‖ ̳Notwithstanding‘ means despite, in spite of a regardless of something. In this respect Justice G. P. Singh has aptly explained:- “A clause beginning with “notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force”, is sometimes appended to a section in the beginning, with a view to give the enacting part of the section in case of conflict an overriding effect over the provision or Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment.”

In the judgment reported as Packages Limited through its General Manager and others v. Muhammad Maqbool and others (PLD 1991 SC 258) this Court observed:- “In our opinion a “non obstante” clause operates as an ouster of the earlier provisions only where there is a conflict and inconsistency between the earlier provisions and those contained in the later provision and, therefore, must be read in the context in which it is operating. Accordingly, a non obstante clause will operate as ouster only if an inconsistency between the two is found to exist.”

In the judgment reported as Muhammad Mohsin Ghuman and others v. Government of Punjab through Home Secretary, Lahore and others (2013 SCMR 85), this Court cited with approval a passage from Interpretation of Statutes by N. S. Bhindra which reads as under:-

“It has to be read in the context of what the legislature conveys in the enacting part of the provision. It should first be ascertained what the enacting part of the section provides on a fair construction of words used according to their natural and ordinary meaning and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing law which is inconsistent with the new enactment. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for even apart from such clause a later law abrogates earlier laws clearly inconsistent with it.

The proper way to construe a non obstante clause is first to ascertain the meaning of the enacting part on a fair construction of its words. The meaning of the enacting part which is so ascertained is then to be taken as overriding anything inconsistent to that meaning in the provisions mentioned in the non obstante clause. A non obstante clause is usually used in a provision to indicate that that provision should prevail despite anything to the contrary in the provision mentioned in such non obstante clause. In case there is any inconsistency between the non obstante clause and another provision one of the objects of such a clause is to indicate that it is the non obstante clause which would prevail over the other clauses. It does not, however, necessarily mean that there must be repugnancy between the two provisions in all such cases. The principle underlying non obstante clause may be invoked only in the case of “irreconcilable conflict”.”

From the above it is clear that the non obstante clause of section 4 of the Ordinance, 2001 has been used by the legislature to give the provisions of the said Ordinance an overriding effect over any other law for the time being in force which may be contrary thereto. The use of the word ̳notwithstanding‘ in section 4 ibid indicates the legislative intent to avoid the operation of conflicting provisions, by providing that in the event of such conflict, the provisions of the Ordinance, 2001 would take precedence over any such inconsistent law.‖

11.Even otherwise, with the insertion of Eighteenth Amendment (through Act No.X of 2010) in the Constitution and after omission of the Concurrent Legislative List, a significant enhancement was made in the legislative domain of the Provinces, particularly an entry of Concurrent Legislative List relating to the Education i.e. Entry 38 regarding Curriculum, syllabus, planning, policy, centers of excellence, standard of education stood devolve upon the provinces. This devolution of power to Province further promotes and strengthens the domain of Ordinance 2002. Further the matter of this devolution of powers and its applicability has been settled by the Hon'ble Supreme Court of Pakistan in its judgment cited as Rana Aamer

Raza Ashfaq and another Vs. Dr. Minhaj Ahmad Khan and another (2012 SCMR 6). Moreover, after promulgation of the above said 18th amendment, the subject of education comes within the exclusive legislative domain of the provinces, thus, any Federal Department/Authority lacks jurisdiction to intrude into the domain of the provincial authorities or impede or frustrate the objective and spirit of the law. Therefore, the government functionaries [as in this case the Ministry of Inter Provincial Coordination (Health Wing), Government of Pakistan] are debarred from performing any act in deviation to the mandatory statutory provision of Section 37 of Ordinance 2002, allowing a medical College to escape from the mandatory affiliation, whereas the above process has already been endorsed by the Hon'ble Supreme Court of Pakistan in Shafique Ahmad Case (supra). With regard to the status of enactment by the Federation on the subjects formed part of concurrent list after promulgation of 18th Amendment in 2010, this Court has observed in case reported as Salim Javed Baig and others Vs. Federal Ombudsman and others (PLD 2016 Lahore 435) as under:-

11.Considering it from another angle, if the federal law under Article 270AA (6) can only be subjected to alteration, amendment and repeal by the provincial legislature, it means that the Federal law has lost its federal character and stands transformed into a Provincial law. What if the appropriate legislature does not carry out any amendment or alteration in the federal law, it still automatically stands converted into provincial law and remains in force as such. This is also because with the omission of the Concurrent List, the federal legislature loses its legislative fiat and command over the areas in the Concurrent List to the provincial legislature and as a consequence the federal law is deprived of its federal character. It is important to underline, that with the legislative shift from federal to provincial, the executive authority under article 97 also gets realigned and changes hands from federal executive to the provincial executive.

Further a similar controversy was decided by the learned Peshawar High Court, Peshawar in a judgment titled as Sadia Sajjad Vs. Khyber Medical University (2016 YLR 1261), the relevant portion whereof is reproduced as under:

―6. It appears that for control purposes and smooth running of all Medical and Dental Colleges in the Province of Khyber Pakhtun Khawa, Khyber Medical University Act, 2006 (NWFP Act No.1 of 2007) was enforced. Section 30(1) (a) & (b) of the Khyber Medical University Act, 2006 (NWFP Act No.1 of 2007) governing the subject-matter is reproduced as under:-- ―30. Affiliation.—(1) Subject to this Act,

(a)all Medical and Dental Colleges and all Institutions of Medical and allied health sciences in Public Sector in the North West Frontier Province, shall be affiliated with the Khyber Medical University; and

(b)all private Medical and Dental Colleges and Institutions of Medical and allied Health Sciences in the Province, 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 the University through a procedure prescribed herein‖. 7- On promulgation of above said Act, the affiliation or registration or otherwise, if any, of respondent No.8 with Hazara University has become functions officio. According to Section 30(1) (a) & (b) of the Khyber Medical University Act, 2006 (NWFP Act No.1 of 2007), it was made compulsory for all Medical and Dental Colleges in the Province of Khyber Pakhtunkhawa to get affiliation with Khyber Medical University. After enforcement of Act ibid, respondent No.8 was required to get affiliated it with the Khyber Medical University forthwith but it did not so. A perusal of record would reveal that according to Act ibid respondents No.1 and 2 issued letters to respondent No.8 for submission of application for affiliation with Khyber Medical University so that the Medical / Dental Education of the College may be regularized but to no avail...‖ (emphasis supplied)

12.Moreover, it is of paramount importance to mention here that on 26.06.2013, PMDC filed parawise comments to the instant petition and the learned counsel for the PMDC during the course of arguments before this Court, reiterated the stance taken in the parawise comments that the affiliation of all medical colleges in Punjab with any other institution or university other than UHS shall be cancelled and such colleges shall apply to UHS for affiliation. For reference, order dated 26.06.2013 passed by this Court in instant petition is reproduced as under:

―The learned counsel for respondent No.5 PMDC states that additional parawise comments are ready and shall be filed in office. However, he informs that insofar as present proceedings are concerned, the said comments visualize that all colleges in Punjab affiliated to Universities other than the UHS shall be cancelled and such colleges shall apply to UHS for affiliation. As such, PMDC supports the contention of the petitioner UHS. The learned counsel for the respondents No.3 & 4 colleges whose counsel are not present today shall state their position positively on 04.07.2013 failing which this petition shall be allowed.‖ (emphasis supplied)

The Federal Government vide letter dated 03.07.2013 adopted the parawise comments submitted by PMDC. Thereafter, vide order dated 04.07.2013, this Court declared the affiliation of respondent-college with any university other than the UHS as cancelled and directed the respondent-college to apply to UHS for affiliation. For reference, the relevant portion of the order (supra) is reproduced as under:

―2. The office shall issue notice to the Registrar of the respondent No.3 college and the principal of respondent No.4 college to authorize their representatives to appear before this Court and state whether they are willing to abide by the view of the PMDC expressed in his concise statement. The affiliation of the medical colleges of respondents No.3 and 4 with any university other than UHS shall stand cancelled and they shall apply UHS for affiliation. This order shall be conveyed to respondents No.3 and 4.‖ The respondents No.3 and 4 filed an application [C.M. No.1893/2013] for recalling of order dated 04.07.2013 which was dismissed by this Court on 15.07.2013 with the following observation:

―C.M. No.1893/2013 The learned counsel for respondents No.3 & 4 colleges has informed that his Clients are unwilling to affiliate with the UHS as suggested by the PMDC in its concise statement filed in Court on 26.06.2013. Respondents No.3 & 4 have exercised their option not to accept the stand taken by the PMDC. Consequent, the matter shall be argued on merits. There is no reason to recall the order. Dismissed.‖

13.Admittedly, the respondent-Superior University was established under the Act 2004, Section 4 whereof deals with the powers and functions of the respondent-Superior University. As per Section 4 of the Act 2004, the respondent-Superior University

was empowered to provide for instruction and training in medical education, however subject to the following requirements being fulfilled:

(i)recommendation of the committee constituted by the Education Department,

(ii)approval of the Patron (i.e. Governor of the Punjab as per Section 2(e) read with Section 6 of Ordinance 2002) to the recommendations made by the committee constituted by the Education Department),

(iii)approval of the PMDC.

Whereas in the present case; the procedure as prescribed under the aforesaid provision was not followed by the respondent No.3-Superior University while establishing Azra Naheed Medical College/ respondent No.4 as there is no document on record which may demonstrate the availability of any recommendation of committee constituted by the Higher Education Department to establish faculty of medical education and the approval of the Patron (Governor of the Punjab) to start the teaching and training of the medical and health sciences nor any final determination has been made by the Board of Governors of UHS. In this regard the Secretary, Higher Education Department, Government of the Punjab in its parawise comments submitted that the Accreditation Committee in its meeting dated 01.10.2011 discussed in detail regarding the conduct of the respondent-College as under:

―...the management of the College had, without the approval of the Patron of the college (i.e. Govt. of Punjab) as required under section 4(ii) of its Act, instituted and advertised admission to the Faculty of Medical & Health Sciences and Faculty of Pharmacy. The Department had already taken cognizance of this act. The management could not institute such programmes unless due permission under the relevant law was sought and granted through NOC from PMDC and Pakistan Pharmacy Council. The Committee also observed that as the College had long been advertising itself as University, the management was earlier asked to refrain from such a practice. The Committee discussed in detail the hitherto conduct of the management of the College and decided to pend further action

on the request for grant of Charter as University till such time that the management operated strictly in accordance with law. The Committee asked the department to seek explanation in the matter from the Superior Group of Colleges.‖

14.Furtherore, admittedly, as the respondent-Superior University and respondent-College are operating within the territorial limits of the Province of Punjab thus, pursuant to Section 37 of the Ordinance 2002, the affiliation of the respondent-College was/is mandatorily required to be obtained from petitioner UHS before commencement of the medical education in the college. It is pertinent to describe here that the respondent-College initially kept on continuously requesting the UHS for its affiliation. In this regard, the College has made series of requests to UHS for grant of permission/NOC, which correspondence is reproduced as under:

Registrar University of Health Sciences Lahore

SUBJECT: AFFILIATION OF AZRA NAHEED MEDICAL

COLLEGE

Kindly grant us permission/NOC that the University of Health Sciences will grant us affiliation, Once the college gets recognition from Pakistan Medical & Dental Council & Ministry of Health Pakistan as it is a pre requisite to pursue our project as per PMDC Criteria. We will be highly obliged.

Regards,

Principal Azra Naheed Medical College Lahore‖

In response to the aforesaid letter, the UHS, on the same day informed the respondent-College that the affiliation committee of the UHS would visit the respondent-College after its recognition by the PMDC and the suitability of the college for affiliation would be considered strictly in terms of Section 37 of its Act. The aforesaid letter is reproduced as under:

―No.UHS/Reg-11/33

Principal, Azra Naheed Medical College Lahore

AFFILIATION OF AZRA NAHEED MEDICAL COLLEGE

This is with reference to your letter on the subject cited above.

The Affiliation Committee of University of Health Sciences will visit the Azra Naheed Medical College after its recognition by Pakistan & Dental Council.

The suitability of the college for affiliation will be considered strictly in terms of Section 37 of its Act and the approved terms and conditions for affiliation of institutions.

Regards, Dr. Asad Zaheer Acting Registrar/Head of P&D Department University of Health Sciences Lahore‖

On 07.03.2011, the UHS informed the respondent-College that it shall grant affiliation to the respondent-College subject to recognition of the PMDC and approval by Syndicate of UHS. For reference, aforesaid letter is reproduced is as under: ―Principal, Azra Naheed Medical College Lahore

LETTER OF INTENT OF AFFILIATION

Dear Principal Sahib,

This is in continuation of our previous letter No.UHS/REG- 10/33 dated: 12-02-2011.

It is to inform you that University of Health Sciences shall grant affiliation to our college subject to recognition by the Pakistan Medical and Dental Council and its approval by Syndicate of UHS (under Section 37 of UHS Act).

Yours Sincerely

Prof. Dr. Malik H. Mubbashar Hilal-e-Imtiaz, Sitara-e-Imtiaz MB, FRCP, FCPS Psych, FRC Psych, DPM Vice Chancellor/Chief Executive, University of Health Sciences Lahore‖

On 07.03.2011, respondent-College requested the PMDC regarding arranging an inspection for affiliation purposes. The said letter is reproduced as under:

―DR. AHMAD NADEEM AKBAR

Registrar Pakistan Medical & Dental Council G-10/4, Mauve Area, Islamabad

Subject: AFFILIATION BY UNIVERSITY

Dear Sir,

Reference your letter No.P.F.12-F-2010 (Azra Naheed)/199585 dated 5th March 2011, I am enclosing here with a copy of REVISED UHS letter No.UHS/REG-11/55 dated 7th March 2011 regarding Affiliation with University of Health Sciences for your kind perusal, which clearly states that UHS shall affiliate Azra Naheed Medical College after recognition of Pakistan Medical & Dental Council.

You are requested to arrange Comprehensive Inspection of Azra Naheed Medical College at the earliest.

Yours Sincerely

PROF. DR. M. AKBAR CHAUDHRY

Principal Azra Naheed Medical College 17-km, Raiwind Road, Lahore‖

On 10.03.2011, PMDC returned the case regarding the recognition of respondent-college on account of it being otherwise to the requirements mentioned in stage of processing and consequently directed the Director General Health to comply with the aforesaid requirements of affiliation of the respondent- College. The letter dated 10.03.2011 is reproduced as under:

The Director General Health, Ministry of Health, Government of Pakistan, Islamabad.

Subject: RECOGNITION OF MEDICAL COLLEGE

UNDER PM & DC ORDINANCE, 1962.

Dear Sir,

The Executive Committee has scrutinized case of recognition of the Azra Naheed Medical College, Lahore and has observed that application is not sent through the University to the Ministry of Health, Government of Pakistan as was required under Stage I of Stages of Processing in the Part-II of the Minimum Criteria, Requirements and Guidelines including Faculty Requirement/Checklist of Infrastructure and Equipment for Medical and Dental Institutions Training for A Medical Or Dental Qualification and Rules and Requirements regarding their attached teaching hospitals 2009.

It is further informed that a conditional NOC for affiliation from the University shall not be accepted by PM&DC and the NOC must contain unequivocal commitment and assertion from the affiliating University that affiliation shall be granted after issuance of letter of no objection by the PM&DC to the college.

The case is being returned herewith for early completion of the above requirements, so that inspection can ensure.

Thank you for your cooperation.

Yours Sincerely

DR. Ahmad Nadeem Akbar Registrar‖ (emphasis supplied)

On 22.04.2011, the UHS wrote a letter to the Secretary, Ministry of Health, Government of Pakistan to ask the respondent-College to get itself affiliated with the UHS as required under Section 37 of the Ordinance 2002. For reference, aforesaid letter is as under:

―SECRETARY,

Ministry of Health Government of Pakistan Block-C, Pakistan Secretariat Islamabad, Pakistan

AZRA NAHEED MEDICAL COLLEGE, LAHORE—A PROJECT

OF SUPERIOR GROUP OF COLLEGES

Dear Secretary Sahiba,

I have carefully gone through the Minutes of 118th meeting of Pakistan Medical & Dental Council held on April 03, 2011. I am taking this opportunity to draw your kind attention towards Item No. 27, Serial No. 3 of the minutes i.e. ―Inspection Report of Azra Naheed Medical College, Lahore conducted on 24th March, 2011‖. The Council while discussing the said item, interalia decided:

“The council further resolved that the matter of affiliation of the college may be decided by the Federal Government

before issuance of notification of recognition as both the University of Health Sciences Lahore and the Superior College Lahore are willing to affiliate the college as per their respective laws”

I wish to make it abundantly clear that Azra Naheed Medical College, Lahore or any other Medical/Dental institution located within the geographical boundaries of Punjab is mandated under Section 37 of the University of Health Sciences Act to get itself affiliated with University of Health Sciences, Lahore. The concerned Section 37(1) of the University of Health Sciences, Lahore Act is reproduced below for your kind perusal,

―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.”

Honorable Lahore High Court, Lahore reinforced the UHS (Amended) Act 2009 by stating that,

“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 in term of section 5 of the Ordinance”

(Writ Petition # 7281/2003, Ahmad Abdullah vs Government of Punjab)

In view of the above, Azra Naheed Medical College, Lahore can get itself affiliated with University of Health Sciences, Lahore. I wish to convey it in unambiguous terms that any attempt by the colleges to circumvent the law even inadvertently will damage the credibility of Medical Education System of Punjab/Pakistan that UHS has established painstakingly over the last eight years.

Lastly, I may point out that Sargodha Medical College, Sargodha (a constituent Medical College of Sargodha University), Nawaz Sharif Medical College, University of Gujrat (a constituent Medical of College of University of Gujrat), University Medical College, Faisalabad (a constituent Medical College of University of Faisalabad) and College of Medicine & Dentistry, University of Lahore (a constituent Medical College of University of Lahore) are affiliated with University of Health Sciences Lahore despite being constituent

colleges of their respective Universities in terms of Section 37 of its Act.

May I request to ensure that Azra Naheed Medical College, Lahore get itself affiliated with University of Health Sciences, Lahore in compliance to the law and judgments of Honorable Apex Courts of the country.

With warmest personal regards,

Yours Sincerely

Prof. Dr. Malik H. Mubbashar Hilal-e-Imtiaz, Sitara-e-Imtiaz MB, FRCP, FCPS Psych, FRC Psych, DPM Vice Chancellor/Chief Executive, University of Health Sciences Lahore‖

On 23.04.2011, the UHS wrote a letter to the Secretary, Higher Education Department, Government of the Punjab to ask the respondent-College to get itself affiliated with the UHS. For reference, aforesaid letter is as under:

―Mr. Haseeb Athar, Secretary Government of Punjab Higher Education Department Lahore

AZRA NAHEED MEDICAL COLLEGE, LAHORE—A

PROJECT OF SUPERIOR COLLEGE

Dear Secretary Sahib,

I am taking this opportunity to draw your kind attention towards a decision of Pakistan Medical & Dental Council in its 118th meeting held on April 03, 2011. The council members while discussing Item No. 27, Serial No. 3 of the minutes i.e. ―Inspection report of Azra Naheed Medical College, Lahore conducted on 24th March, 2011” decided to refer the issue of affiliation of Azra Naheed Medical College to the Ministry of Health, Pakistan i.e. Ministry will decide whether Azra Naheed Medical College will affiliate with University of Health Sciences, Lahore or Superior College.

I wish to make it abundantly clear that Azra Naheed Medical College being located within the geographical boundaries of Punjab, mandated under law i.e. Section 37 of UHS Act, duly reinforced by the judgments of Apex Courts, can get itself affiliated with University of Health Sciences, Lahore only. I have stated this fact clearly in my letter addressed to Ministry of Health (copy enclosed).

May I request you to ensure that Azra Naheed Medical College get itself affiliated with UHS in due deference to provisions of UHS Act and Judgments of Apex Courts.

With warmest personal regards,

Yours Sincerely

Prof. Dr. Malik H. Mubbashar Hilal-e-Imtiaz, Sitara-e-Imtiaz MB, FRCP, FCPS Psych, FRC Psych, DPM Vice Chancellor/Chief Executive, University of Health Sciences Lahore‖

Through a letter dated 07.06.2011, the UHS informed the respondent-College to get itself affiliated. The aforesaid letter is as under:

―Principal, Azra Naheed Medical College Lahore

NEWS ITEM APPEARING IN DAILY AUSAF, DATED

JUNE 7, 2011

I am directed to seek your comments on a news appearing in Daily Ausaf dated June 07, 2011. It has been stated in the said news item that Azra Naheed Medical College, Lahore has affiliated itself with Superior Group of Colleges in violation of UHS Act 2009 and judgments of Honorable Lahore High Court as well as August Supreme Court.

I may point out that under Section 37 of UHS Act, Azra Naheed Medical College, Lahore, can only be affiliated with University of Health Sciences, Lahore since it is located within the geographical boundaries of the Province of Punjab. The concerned Section 37 (1) of the University of Health Sciences, Lahore Act is reproduced below for your kind perusal, ―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.”

Honorable Lahore High Court, Lahore reinforced the UHS (Amended) Act 2009 by stating that,

“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 no such terms and conditions which may be prescribed in term of section 5 of the Ordinance”

(Writ Petition # 7281/2003, Ahmad Abdullah vs Government of Punjab)

It is pertinent to mention here that University issued NOC to Azra Naheed Medical College, Lahore on its own request and accordingly the college is obligated under the above mentioned provisions of law to submit the affiliation request for visit of Affiliation Committee of UHS.

Regards

DR. ASAD ZAHEER

Acting Registrar/Head of P & D Department University of Health Sciences Lahore‖

The UHS again asked the respondent-College vide letter dated 21.07.2011 for affiliation. The UHS brought the matter of affiliation of respondent-College amongst two other medical institutions before Chairman, Higher Education Commission through letter dated 29.07.2011, the relevant portion whereof is as under:

―UHS/P&D/2339

July 29, 2011 ―Prof. Dr. Javed Laghari Chairman Higher Education Commission

Dr. Sohail Naqvi Executive Director Higher Education Commission

AFFILIATION OF MEDICAL, DENTAL, NURSING &

HEALTH SCIENCES INSTITUTIONS LOCATED IN THE

PROVINCE OF PUNJAB

Dear Sirs,

7.The case of Azra Naheed Medical College – a project of Superior Group of Colleges – a private sector organization –

is another deviation in offing which should be stemmed at the outset. The chronology pertaining to this college is, i. The college in compliance with the provisions of PM&DC ordinance / rules and UHS Act applied on Feb 12, 2011 for issuance of letter of intent to this University for consideration of affiliation subsequent to recognition by PM&DC.

ii. The letter requested was issued on 12-02-2011 vide which the request of the college was forwarded to the Ministry of Health. The letter of intent in favor of an institution is issued by the University under whose territorial jurisdiction the college falls. The college was later inspected and recognized by the PM&DC. The college subsequently in clear violation of law requested Pakistan Medical & Dental Council to grant it affiliation with Superior College instead of mandatory affiliation with University of Health Sciences.

iii. The Ministry of Health was clarified abundantly vide letter dated 22-04-2011 that the aforementioned proposal was in violation of law and Azra Naheed could affiliate only with University of Health Sciences subject to fulfillment of affiliation requirements. The Ministry of Health never responded.

8.The University has sought comments from three Institutions for presentation to its Syndicate. However as the core issue involves violation of UHS territorial Jurisdiction by the two Universities and a Degree awarding Institution, it will be in the fitness of things that HEC direct Ripah International University, University of Lahore and Superior group of colleges to comply with the provisions of UHS Act and not to indulge in any activity that my jeopardizes the future of students enrolled – unlawfully – in the University College of Medicine & Dentistry, Lahore, University of Lahore, Amina Inayat Medical College and Azra Naheed Medical College.

13.As I already pointed out that imminent admission in Medical/Dental colleges have necessitated the publishing of a joint advertisement – as mutually resolved in the meeting – in national press to protect students from falling into the trap of illegally operating colleges and informing them with abundant clarity about the colleges that are operating lawfully in terms of the provisions of UHS Act, judgments of the Honorable Lahore High Court, Lahore as well as August Supreme Court.

With Warmest Personal Regards.

(Prof. Malik Hussain Mubbashar) Hilal-e-Imtiaz, Sitara-e-Imtiaz MB, FRCP, FCPS Psych, FRC Psych, DPM Vice Chancellor / Chief Executive

Cc:

 President, Pakistan Medical & Dental Council, Pakistan  Principal, Secretary to Chancellor / Governor Punjab, Lahore  Dr. Syed Tauqeer H. Shah Secretary to the Chief Minister Punjab, Chief Minister‘s Secretariat, Lahore  Secretary, Health Department, Government of Punjab, Lahore  Secretary, Higher Education Department, Government of Punjab, Lahore‖

On 30.07.2011, the UHS asked the Secretary, Health Department, Government of the Punjab to take measures to ensure affiliation of respondent-College as well as other institutions who were violating the mandatory statutory provisions of law. For reference, aforesaid letter is reproduced as under: ―Muhammad Jehanzeb Khan Secretary Health Department Government of Punjab Lahore

AFFILIATION OF MEDICAL, DENTAL, NURSING &

HEALTH SCIENCES INSTITUTIONS LOCATED IN THE

PROVINCE OF PUNJAB

Dear Secretary Sahib,

This is with reference to the directive of Chief Minister‘s Secretariat to take notice and appropriate action against the unlawful operation of University College of Medicine & Dentistry, University of Lahore, Amina Inayat Medical College, Sheikhupura and Azra Naheed Medical College, Lahore.

You would recall that I drew your attention towards the unlawful operation of the above colleges vide letters dated November 25, 2010, May 16, 2011, June 07, 2011, July 05, 2011 and July 21, 2011. The colleges are violating the territorial jurisdiction of University of Health Sciences by carrying out their operations in contravention of Section 37 of UHS Act and judgments of the Apex Courts.

University College of Medicine & Dentistry in sheer disregard to provisions of law and a strict warning by the Higher Education Department is conducting its examinations itself despite being affiliated with UHS. Amina Inayat Medical College – found not fit for teaching medical sciences by the UHS – has got itself affiliated with Ripah International University – a federally chartered private university – a blatant violation of Section 37 of UHS Act and Judgment of

Honorable Lahore High Court / Supreme Court. Azra Naheed Medical College is striving to get itself affiliated with Superior Group of Colleges unlawfully.

I have conveyed my concerns to Chairman, Higher Education Commission and Executive Director, Higher Education Commission in a meeting held on July 23, 2011 followed by detailed letter dated July 29, 2011 on the issue. I am enclosing a copy of the letter for your kind perusal with the request to ensure the affiliation of medical, dental, nursing and health sciences institutions located in Punjab province with the University of Health Sciences, Lahore in due deference to provisions of UHS Act and Judgments of Honorable Lahore High Court as well as August Supreme Court.

Chief Minister‘s Secretariat desires that Health Department, Punjab.

i. Advertises in the National Press about the illegal operation of University College of Medicine & Dentistry, University of Lahore, Amina Inayat Medical College, Sheikhupura and Azra Naheed Medical College, Lahore to inform the students and parents that studying in such like colleges is an academic nullity in the eyes of law.

ii. Takes up the issue of violation of law by the defaulter institutions with the Higher Education Commission, Islamabad to protect the rights of the students and sanctity of law.

With Warmest Personal Regards

(Prof. Malik Hussain Mubbashar) Hilal-e-Imtiaz, Sitara-e-Imtiaz MB, FRCP, FCPS Psych, FRC Psych, DPM Vice Chancellor / Chief Executive‖

On 05.08.2011, the UHS asked the respondent-College to provide requisite information for its onward submission to the Syndicate of the UHS and vide letter dated 22.08.2011 directed the principal of the respondent-College to attend meeting regarding affiliation on 25.08.2011. Whereafter, prior to the date fixed for the meeting to be held between the Syndicate of UHS and respondent-college, the respondent No.1 issued the impugned notification dated 13.08.2011, in the following terms: ―Government of Pakistan Ministry of Inter Provincial Coordination (Health Wing)

Islamabad, the 13th August, 2011

NOTIFICATION

No.F.3-46/2008-MER: In pursuance of Section 11 of Pakistan Medical and Dental Council Ordinance 1962 and in consultant with Pakistan Medical & Dental Council, the Federal Government has approved the Azra Naheed Medical College, Lahore to impart training for MBBS degrees awarded by the Superior College, Lahore for 100 students.

2.The Federal Government further directs that an entry to be made in last column of First Schedule of PM&DC Ordinance, 1962 by including the name of the Azra Naheed College, Lahore with Superior College, Lahore.

(Dr. M. Tahir Sajjad) Deputy Director General (Health)‖

Prior to the issuance of recognition certificate through impugned notification the respondent-College continuously kept on approaching the Higher Education Department as well as UHS for its affiliation but instead of complying with the instructions/ orders of the said competent authorities, the respondent-college approached the Ministry of Inter Provincial Coordination for grant of approval for imparting education and training for MBBS degree which conduct invites the application of principle of approbate and reprobate. Reliance is placed on the cases titled as A.R. Khan Vs. P.N. Boga through LR (PLD 1987 SC 107) and Overseas Pakistanis Foundation & Others Vs. Sqn. Ldr. (Retd.) Syed Mukhtar Ali Shah & Another (2007 SCMR 569).

Lastly, it is significant to mention here that the Superior College is a creation of Provincial Legislation and it has to abide by all the provincial laws, rules, regulations and is debarred from bypassing the mandatory provisions of law. Further any federal authority is also patently debarred to pass any prejudicial order to the spirit of Ordinance 2002 and if any order is so passed that would be in-effective, inoperative and without jurisdiction qua the provincial enactment.

15.In view of the foregoing discussion, there is no cavil and cudgel in issuance of a declaration that every medical College / institution which is rendering medical education/training to the MBBS students within the boarder / precincts of Province of Punjab has to necessarily get itself affiliated with the UHS before initiating teaching/training process under the spirit of the 18th constitutional amendment and law laid down by the Hon‘ble Supreme Court of Pakistan as well as mandatory statutory requirement prescribed in Section 37 of the Ordinance 2002.

16.Now adverting to the issue agitated in W.P.No.19848/2011 wherein the Superior College has challenged the notice issued by the UHS for mandatory affiliation as well as publication of notice in media for the knowledge of the general public regarding unwarranted and unauthorized imparting of medical education. As discussed above, admittedly the college was not affiliated with UHS, who being a legal guardian of the students to protect them from loss of precious time, educational career and loss of money through misrepresentation made by the college, was / is well within jurisdiction to preemptively take stringent precautionary positive measures to circulate widespread awareness in the public regarding foul, arbitrary, farcical and misrepresentation of fake educational activities of the educationist institution or the administration of a concerned College to safeguard the public and students. Besides above, as the college has come to this Court with unclean hands, thus it is disentitled for any discretionary relief, as such, it is observed that UHS was well within jurisdiction to publish notice against contumacious institution who denies affiliation with the UHS. Moreover, only vires of notice has been challenged in the writ petition by the Superior College whereas ordinarily writ petition is not maintainable against the notice. Therefore, on both counts writ petition of college deserves dismissal.

17.In view of the foregoing, the notification dated 13.08.2011 impugned in this writ petition issued by respondent No.1 is found to be in violation of the spirit of 18th constitutional amendment, law laid down by the Hon‘ble Supreme Court of Pakistan as well as mandatory statutory requirement prescribed in Section 37 of the Ordinance 2002. Resultantly, this Writ Petition [No.29214/2011] is allowed and the impugned notification dated 13.08.2011 issued by the Ministry of Inter Provincial Coordination (Health Wing), Government of Pakistan is hereby set aside whereas the connected Writ Petition [No.19848/2011] is hereby dismissed.

(Ch. Muhammad Iqbal) Judge

Announced in open Court on 10.02.2023.

Approved for reporting.

Judge Abdul Hafeez