Dr. Raqib Khan Vs Federation of Pakistan & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT, MINGORA

BENCH (DAR-UL-QAZA), SWAT

(Judicial Department) W.P No. 530-M/2025 Dr. Raqib Khan

Versus

Federation of Pakistan through Secretary to Ministry of Heath and another Present:

Barrister Dr. Adnan Khan, ASC for petitioner.

Mr. Said Jamil Shah, Assistant Attorney General, for the Federation.

Mr. Aurangzeb, Advocate for respondents/PMDC. (Via Video Link)

Date of hearing: 08.04.2026 & 05.05.2026

Date of announcement: 16.06.2026

JUDGMENT

QAZI JAWAD EHSANULLAH, J.- Through the instant constitutional petition, the petitioner, Dr. Raqib Khan, has called in question the decision dated 28.03.2024 rendered by the Standing Recognition Committee of the Pakistan Medical and Dental Council (PM&DC/respondent No.2), whereby he was directed to appear in the Level-III qualification examination (M.D., FCPS, etc.) through an approved University/Degree Awarding Institute. The Committee, however, provisionally recognized and registered his degree of Master of Dermatology and Venereology, 2022, as well as Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

other similarly situated cases, subject to passing the equivalency examination, whereafter the qualification was to be reflected on the PM&DC Registration Certificate. The said decision was communicated to the petitioner vide letter dated 06.05.2024, which has also been assailed in the present proceedings.

2.In essence, the petitioner seeks, firstly, the setting aside of the aforesaid decision and consequential communication thereof on the ground that the same are illegal and without lawful authority; secondly, issuance of a writ of mandamus directing the respondents to grant equivalence to his postgraduate qualification without requiring him to undertake any further examination. In the alternative, he prays that his postgraduate qualification be reflected on his permanent medical registration certificate in the same manner as it had been reflected in the licence issued by the erstwhile Pakistan Medical Commission. He further seeks any other relief deemed just and proper in the circumstances of the case.

3.The relevant facts, briefly stated, are that the petitioner is a registered medical practitioner. He obtained the degree of MBBS from Zhengzhou Medical University, China, and was thereafter registered with the Pakistan Medical Commission, the then regulatory authority governing the medical profession. Subsequently, in the year 2022, he Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

acquired the degree of Master of Dermatology and Venereology from Guangxi Medical University, China.

According to the petitioner, the said qualification constitutes a specialized postgraduate qualification in clinical sciences.

4.The former Pakistan Medical Commission issued in his favour what he describes as a full licence, wherein his postgraduate qualification was reflected with the remark:

“subject to the classification alternative additional qualification as notified by the Commission.” The petitioner maintains that such recognition was granted pursuant to a policy decision of the Commission dated 24.10.2022.

5.In the year 2023, the Pakistan Medical

Commission ceased to exist and was replaced by the Pakistan Medical and Dental Council under the Pakistan Medical and Dental Council Act, 2022. Consequently, respondent No.2 assumed the role of the statutory regulator of the medical profession. In the meanwhile, the petitioner’s licence, valid up to 21.02.2023, expired. Upon renewal, respondent No.2 issued a fresh licence valid up to 31.12.2028. However, the renewed licence did not contain the aforementioned endorsement regarding his postgraduate qualification. Proceeding on the assumption that his postgraduate qualification continued to enjoy recognition under the new statutory regime, the petitioner pursued further professional opportunities. He Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

applied for the post of Senior Registrar Dermatology (BPS-18) through the Public Service Commission. His candidature, however, was rejected on the ground that he had failed to furnish an equivalence certificate from respondent No.2 in respect of his postgraduate qualification.

6.Thereafter, the petitioner approached respondent No.2 seeking recognition and equivalence of the said qualification. Although the matter remained pending for some time, he was eventually afforded a hearing through video conference. The decision, however, was not communicated to him. This constrained him to file Writ Petition No.292-M of 2024 before this Court. During the proceedings of the said petition, respondent No.2 disclosed through its comments that the issue had already been decided against the petitioner.

Consequently, on 07.05.2025, this Court permitted withdrawal of the earlier writ petition with liberty to the petitioner to file a fresh petition. It is in these circumstances that the present petition has been instituted.

7.The principal grounds urged in support of the petition inter alia are: firstly, that the Pakistan Medical and Dental Council Act, 2022 protects and preserves decisions previously made by the erstwhile Pakistan Medical Commission; and secondly, that in terms of Article 264 of the Constitution of the Islamic Republic of Pakistan and section 6 Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

of the General Clauses Act, 1897, repeal of an enactment does not extinguish rights, privileges or benefits accrued under the repealed law.

8.Respondent No.2 has contested the petition through written comments. It is contended that the Pakistan Medical and Dental Council Act, 2022 (the Act) has replaced the previous regulatory regime and that the petitioner’s postgraduate qualification does not find mention in the Second Schedule to the governing law. Consequently, the qualification does not stand recognized under the prevailing statutory framework. It is further maintained that the Standing Recognition Committee considered the petitioner’s case after affording him due opportunity of hearing; that all similarly situated candidates have been treated alike in accordance with law; that no vested right accrued to the petitioner merely by virtue of any previous act or decision of the erstwhile Commission if such act or decision is inconsistent with the current law; and that the controversy pertains to recognition and equivalence of qualifications under sections 25 and 26 of the Act, involving matters of policy, thereby rendering the petition not maintainable under Article 199 of the Constitution.

9.We have heard the learned counsel for the parties at considerable length and have carefully examined the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

available record. At the outset, learned counsel for the petitioner was asked whether a specific statutory remedy in the form of an appeal was provided against the impugned orders under section 6(2) of the Medical Tribunal Act, 2020. Learned counsel candidly conceded that an appellate remedy was provided therein; however, he contended that such remedy remains confined to decisions, orders and acts of apex authorities or council(s) constituted under the Pakistan Medical and Dental Council Ordinance, 1962, the Pakistan Medical Commission Ordinance, 2019, the Pakistan Nursing Council Act, 1973, the Pakistan Health Research Council Act, 2016, the Unani, Ayurvedic and Homeopathic Practitioners Act, 1965, the Pharmacy Act, 1967, or any other law notified under subsection (1) thereof.

10.According to learned counsel, the impugned decision has been rendered under the Pakistan Medical and Dental Council Act, 2022, which has not been specifically incorporated into section 6(2) of the Medical Tribunal Act, 2020. Since the earlier enactments have been repealed and there is no corresponding amendment brought in section 6(2) ibid so as to cover the orders passed by the Pakistan Medical and Dental Council established under the Act and that till this date no notification was issued under the said section of the Act of 2020 in this regard, it was argued that no statutory Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

remedy of appeal has been made available and that the petitioner has rightly invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution.

11.Since the availability of an adequate alternate remedy directly bears upon the maintainability of the petition, we considered it appropriate to address this question at the threshold. Section 6(2) of the Medical Tribunal Act, 2020 provides as under:

“6. Jurisdiction and powers of Medical Tribunal.---

(2)All appeals against decisions, orders and acts of the relevant apex authorities or councils formed pursuant to the Pakistan Medical and Dental Ordinance, 1962 (XXXII of 1962), Pakistan Medical Commission Ordinance, 2019 (II of 2019) the Pakistan Nursing Council Act, 1973 (XXVI of 1973), Pakistan Health Research Council Act, 2016 (XII of 2016) and the Unani, Ayurvedic and Homeopathic Practitioners Act, 1965 (II of 1965), the Pharmacy Act, 1967 (XI of 1967) or any other law as may be notified under sub- section (1) shall be heard and decided by the Tribunal.

12.Before examining the controversy in hand, it would be useful to briefly notice the legislative evolution governing regulation, recognition and registration of medical qualifications in Pakistan. Initially, the field was regulated by the Pakistan Medical and Dental Council Ordinance, 1962, under which the PM&DC functioned as the principal statutory Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

regulator for several decades. The said law was subsequently replaced by the Pakistan Medical Commission Act, 2020, preceded by an Ordinance by the same name passed somewhere in 2019, establishing the Pakistan Medical Commission as the successor regulatory authority. The latter enactment was in turn replaced by the Pakistan Medical and Dental Council Act, 2022, which re-established the PM&DC as the statutory body responsible for regulation of medical education, registration and recognition of qualifications.

13.Coming now to section 6(2) of the Medical Tribunal Act, 2020, it is true that the provision expressly refers to enactments which have since been repealed. Nevertheless, we are of the considered view that the said provision is capable of an interpretation which encompasses decisions and orders passed under the successor legislation despite the absence of a formal amendment. In this regard, reference may profitably be made to section 8 of the General Clauses Act, 1897, which provides:

“8. Construction of references to repealed enactments. –

(1)Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then reference in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

(2)Where before the fifteenth day of August, 1947, any Act of the Parliament of the United Kingdom repealed and re-enacted, with or without modification, any provision of a former enactment, then reference in any Central Act or in any Regulation or instrument to the provision so repealed shall, unless a different intention appears to be construed as reference to the provision so re-enacted."

[emphasis added]

14.A plain reading of the above provision leaves little room for doubt that where a statute repeals and re-enacts, with or without modification, the provisions of an earlier enactment, any reference in another enactment to the repealed law must ordinarily be construed as a reference to the re- enacted provision, unless a contrary legislative intention is evident. Section 8 embodies the principle of legislative continuity. Its purpose is to prevent statutory references from becoming ineffective and redundant merely because the legislation governing a particular field has been repealed and replaced. The provision thus preserves continuity within the legal framework and safeguards remedies, forums, procedures and statutory mechanisms dependent upon cross-references to enactments that have subsequently undergone lapse, repeal and of course re-enactment / replacement. Consequently, where a statute confers a remedy or jurisdiction by reference to another enactment, and the latter is replaced by a successor statute occupying substantially the same field, the Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

reference ordinarily extends to the successor enactment as well, unless the legislature expressly or impliedly indicates otherwise.

15.The doctrine of legislative continuity, also described as legislation by reference or automatic incorporation, received consideration by the august Supreme Court in Zarai Taraqiati Bank Limited v. Said Rehman1 in the following terms:

"31. In Wood's Estate case [1886] 31 Ch D 607, the Court while commenting upon this mode of legislation observed that "if a subsequent Act brings into itself by reference some or the clauses of a former Act, the legal effect of that, as has often been held, is to write those sections into the new Act just as if they had been actually written in it with the pen or printed in it and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all." In Rajya v. Gopikabai (AIR 1979 SC 79), the Indian Supreme Court, highlighted the broad categories of legislation by reference and opined as under:- "Broadly speaking, legislation by referential incorporation falls into two categories: First where a statute by specific reference incorporates the provisions of another statue as of the time of adoption. Second, where a statute incorporates by general reference the law concerning a particular subject as a genus. In the case of the former, the subsequent amendment made in the referred statute cannot automatically be read into the adoption statute. In the case of latter category, it may be presumed that the legislative intent was to include all the subsequent amendments also made from time to time in the general law on the subject adopted by general reference. This principle of

2013 SCMR 642

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

construction of a reference statute has been aptly summed up by Sutherland thus:

A statute which refers to law of a subject generally adopts the law on the subject as of the time the law is invoked. This will include all the amendments and modifications of the law subsequent to the time the reference/statute was enacted."

[emphasis supplied]

16.The ratio emerging from the above

pronouncement is that where a statute makes a general reference to a law regulating a particular subject, the legislative intent is ordinarily to adopt not only the law as it stood at the time of reference but also subsequent amendments, substitutions and re-enactments governing the same field. Thus, unless a contrary intention appears, repeal and replacement of the referenced statute do not render the referring provision redundant or superfluous. Rather, the reference is to be construed dynamically so as to include the successor enactment occupying the same legislative domain. A similar view has also been expressed by the Supreme Court of Azad Jammu and Kashmir in Ghulam Sarwar v. Muhammad Hussain and another2.

17.Applying the aforesaid principles to the case in hand, it is evident that the enactments [Pakistan Medical and Dental Ordinance, 1962 (XXXII of 1962) & Pakistan Medical

2000 YLR 869

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

Commission Ordinance, 2019 (II of 2019)] referred to in section 6(2) of the Medical Tribunal Act, 2020 have since been repealed and replaced, while the Pakistan Medical and Dental Council Act, 2022 presently occupies the same regulatory field. The principle of legislative continuity, therefore, squarely comes into operation. The references contained in section 6(2) must consequently be construed as extending to the successor enactment regulating the same subject matter. The plain reading of the above provisions of both the statutes do not express any intention to the contrary so as to take a different view.

18.We are, therefore, unable to subscribe to the contention advanced by learned counsel for the petitioner that no statutory remedy of appeal is available. The argument is misconceived and cannot be accepted. In our considered view, an appeal against the impugned decision lies before the Medical Tribunal under the Medical Tribunal Act, 2020.

19.For what has been discussed above, we hold that the present constitutional petition is not maintainable in view of the availability of an adequate and efficacious alternate remedy under the Medical Tribunal Act, 2020. The petitioner may approach the Tribunal by way of filing an appeal, if so advised. The delay (if any) in filing of appeal could well be condoned by the Tribunal upon being approached, which it is Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah

expected to do by invoking the general provisions of the Limitation Act, 1908 as the petitioner is found to be pursing his remedy before us under a bona fide mistake.

20.The petition is accordingly dismissed on the ground of non-maintainability, with no order as to costs.

Announced Dt:16.06.2026 -Sd-

JUDGE

-Sd-

JUDGE

Tajamul (D.B.) Hon’ble Mr. Justice Dr. Khurshid Iqbal Hon’ble Mr. Justice Qazi Jawad Ehsanullah