M/s NCS Institute of Sciences VS Shaheed Zulfiqar Ali Bhutto Medical University etc.

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

W.P. No.3848 of 2022 NCS Institute of Sciences Versus Shaheed Zulfiqar Ali Bhutto Medical University (SZABMU) and others S. No. of Date of Order with signature of Judge and that of parties or counsel where order / order/ necessary.

proceedings Proceedings 21.10.2022 Mr. Muhammad Masood Khan and Syed Faisal Hussain Shah, Advocates for the petitioner.

Mr. Soban Hayat, Law Officer, SZABMU.

Through the instant writ petition, the petitioner, NCS Institute of Sciences, impugns the decision taken by the Grievance Committee of Shaheed Zulfiqar Ali Bhutto Medical University (“SZABMU”), in its meeting held on 04.08.2022, whereby a penalty of stopping future intake of new students for a period of one year (2022-2023 batch) was imposed on the petitioner.

2.The facts essential for the disposal of the instant petition are that the petitioner is engaged in the business of providing educational services and for this purpose has established NCS Institute of Sciences, Capital Campus Islamabad. Vide letter dated 21.12.2020, the Pakistan Nursing Council (“PNC”) / respondent No.4 granted an approval to the petitioner for registration of 50 seats for the four-year BS Nursing Generic Degree Program (“BS-NG Degree Program”). On 13.10.2021, the petitioner applied to the PNC for enhancement by 50 seats for the BS-NG Program 2021-2022. Vide letter dated 22.11.2021, the petitioner was informed that the PNC had decided to enhance the petitioner’s seats from 50 to 60 for the four-year BS-NG Degree Program. Vide letter dated 15.03.2022, the PNC enhanced the petitioner’s seats from 60 to 80 for the four-year BS-NG Degree Program. In the said letters dated 22.11.2021 and 15.03.2022, it was clearly mentioned that the pre- registration of students will only be entertained after the final affiliation from the Higher Education Commission

(“HEC”) recognized university. On 16.03.2022, the petitioner applied to SZABMU to grant approval for 80 seats for the BS-NG Degree Program. Vide letter dated 13.05.2022, SZABMU informed the petitioner that its request for the enhancement of the seats for BS-NG Degree Program was under consideration. The petitioner was required to submit documents to process the case for inspection. The documents sought by SZABMU were submitted by the petitioner along with its letter dated 18.05.2022. On 27.05.2022, SZABMU constituted a committee to carry out a physical inspection of the petitioner institute on 01.06.2022.

3.It appears that before obtaining approval from SZABMU for the enhancement of the seats for the BS-NG Degree Program, the petitioner admitted 28 students beyond the permissible limit of 50 students. It is an admitted position that the petitioner received fees from these 28 students. Since SZABMU had not granted an approval for the enhancement of the petitioner’s seats from 50 to 80, the petitioner filed writ petition No.2756/2022 before this Court on 23.07.2022. The petitioner had sought a direction to SZABMU to permit the 28 students who had already been admitted by the petitioner for the BS-NG Degree Program to participate in the examination which was scheduled to begin on 25.07.2022. In the alternative, it was prayed that a separate examination for the 28 students should be arranged.

4.Although a conditional permission was granted by PNC to the petitioner to enhance its seats from 50 to 80 but when such permission was granted, the petitioner did not have affiliation with SZABMU. It is after admitting the 28 students that the petitioner applied to SZABMU for the grant of affiliation.

5.SZABMU had referred the petitioner’s grievance regarding the examination for the 28 students to a Grievance Committee. Vide order dated 25.07.2022, this

Court observed that the pendency of writ petition No.2756/2022 shall not pose as an obstacle before the Grievance Committee in deciding the petitioner’s grievances regarding the examination of the 28 students. On 16.08.2022, this Court was informed that the Grievance Committee, after affording an opportunity of a hearing to the petitioner, had decided to admit the 28 students and to arrange a special examination for them. Furthermore, the Court was informed that a penalty of stopping future intake of new students for a period of one year (2022-2023 batch) had been imposed on the petitioner. The petitioner had reserved its right to challenge the imposition of the penalty before an appropriate forum. Since the petitioner’s grievance as regards the examination for the 28 students had been redressed, writ petition No.2756/2022 was dismissed as infructuous vide order dated 16.08.2022.

6.Thereafter, the petitioner filed writ petition No.3420/2022 before this Court to challenge the penalty imposed on it by the Grievance Committee. This petition was dismissed as withdrawn with permission to file afresh vide order dated 22.09.2022.

7.The petitioner has filed the instant petition to challenge the imposition of the penalty on it by the Grievance Committee.

8.Learned counsel for the petitioner, after narrating the facts leading to the filing of the instant petition, submitted that SZABMU should have conducted an inspection of the petitioner’s institute as soon as the petitioner submitted an application for the enhancement of the seats from 50 to 80 for the purposes of affiliation; that subsequently after conducting an inspection, SZABMU vide letter dated 15.09.2022 approved the enhancement of the seats from 50 to 80 per annum for the BS-NG Degree Program at the petitioner’s institute; and that had the said approval been timely granted, the

question of imposition of a penalty on the petitioner would not have arisen.

9.Furthermore, it was submitted that neither does the Shaheed Zulfiqar Ali Bhutto Medical University Act, 2013 (“the 2013 Act”) nor do the Shaheed Zulfiqar Ali Bhutto Medical University Affiliation Regulations, 2014 (“the 2014 Regulations”) regarding Affiliation of Medical, Dental and Allied Health Sciences Colleges / Institutions with SZABMU empower SZABMU or any of its Committees to impose a penalty of stopping a medical college / institute from future intake of students for one year; that the only penalty envisaged by Regulation 18(i) of the 2014 Regulations is to de-affiliate the medical college / institute; and that SZABMU or its Grievance Committee by not imposing the penalty of de-affiliation on the petitioner has recognized that the petitioner’s college / institute ought to continue to impart education to students enrolled against the approved seats in BS- NG Degree Program. Learned counsel for the petitioner prayed for the writ petition to be allowed in terms of the relief sought therein. In making his submissions, learned counsel for the petitioner placed reliance on the law laid down in the cases reported as Rawal Institute of Health Sciences (Pvt.) Ltd. Vs. Federation of Pakistan (2019 MLD 1217) and Pakistan Telecommunication Company Ltd. Vs. Pakistan Telecommunication Authority (PLD 2015 Islamabad 184).

10.On the other hand, learned counsel for SZABMU submitted that PNC’s approval for the enhancement of seats from 50 to 60 vide letter dated 22.11.2021 and from 60 to 80 vide letter dated 15.03.2022 clearly provided that the pre-registration of students will be entertained after final affiliation from the HEC recognized university; that when the petitioner admitted 28 students in addition to 50 students, its affiliation with SZABMU for 80 seats for the BS-NG Degree Program had not been approved; that by admitting the additional 28 students and taking a

fee from them, the petitioner acted in violation of the 2014 Regulations; that SZABMU had the power to impose the penalty on the petitioner under Regulation 10(iii) of the 2014 Regulations; and that the said penalty is reasonable and does not suffer from any legal infirmity. Learned counsel for SZABMU prayed for the writ petition to be dismissed.

11.I have heard the contentions of the learned counsel for the contesting parties and have perused the record with their able assistance. The facts leading to the filing of the instant petition have been set out in sufficient detail in paragraphs 2 to 7 above and need not be recapitulated.

12.Section 5(2) of the 2013 Act makes it mandatory for all medical colleges and health institutions in the public or private sector excluding the constituent college of a university, located within the Islamabad Capital Territory, to be affiliated with the university within such period and on such conditions as may be prescribed. The 2014 Regulations have been made in exercise of the powers conferred by provisions of the 2013 Act. The 2014 Regulations set out the mechanism for the grant of affiliation to medical colleges / institutions / departments in the public and private sectors with SZABMU. The terms and conditions on which affiliation can be granted and the criteria which an applicant has to satisfy are also set out in the 2014 Regulations.

13.Regulation 17(xi) of the 2014 Regulations provides that no institution, desirous of seeking affiliation, shall advertise and do admission for the course of study before issuance of affiliation letter from the university. Regulation 18 sets out the procedure for de-affiliation of a medical college, institute / department for failure to fulfill any of the conditions of affiliation with SZABMU. For the purposes of clarity, Regulation 18 is reproduced herein below:- “18. Procedure for De-affiliation:

i)If any Institute/Medical College/ Department fails to fulfill any of the conditions of affiliation of SZABMU or the affairs are of the affiliated college/ Institution is conducted in a manner which is prejudicial to the best interest of the concerned educational Institution or SZABMU, the Institute/Medical College/ Department will be served with a notice and then de-affiliated.

ii)The appeal against refusal or withdrawal of affiliation shall be submitted to the Vice-Chancellor.

iii)The Vice Chancellor may pass any order which he may deem fit and proper and place the case before the Academic Council for information.”

14.It is an admitted position that the petitioner transgressed Regulation 17(xi) of the 2014 Regulations by admitting 28 students for the BS-NG Degree Program without having approval / affiliation for such seats from SZABMU. This lapse on the petitioner’s part was considered by the Grievance Committee, which in its meeting dated 04.08.2022, took a sympathetic stance by permitting the 28 students unlawfully admitted by the petitioner to be registered and allowed to sit in the examination in the upcoming proposed summer session. It also showed leniency to the petitioner by not de- affiliating it under Regulation 18 of the 2014 Regulations but imposed a penalty of stopping it from future intake of new students for a period of one year (2022-2023 batch).

15.The vital question that needs to be answered is whether the Grievance Committee constituted by SZABMU could have imposed the penalty of stopping future intake of new students for a period of one year (2022-2023 batch) on the petitioner for admitting 28 students without having approval / affiliation / for 28 seats from SZABMU.

16.Regulation 18 of the 2014 Regulations provides the procedure for de-affiliating a medical college / institute / department which fails to fulfill any of the conditions of affiliation of SZABMU or where its affairs are conducted in a manner which is prejudicial to the best interest of the concerned educational institution or SZABMU.

17.The case at hand does not pertain to any breach by the petitioner of any condition on which affiliation was granted to it by SZABMU. It is a case of the petitioner admitting 28 students and receiving fees from them despite the fact that it had no approval / affiliation for such seats from SZABMU. The PNC had, through its letters dated 22.11.2021 and 15.03.2022, enhanced the petitioner’s seats for BS-NG Degree Program subject to the condition that the pre-registration of students will only be entertained after the final affiliation from the HEC recognized university. The petitioner transgressed Regulation 17(xi) of the 2014 Regulations by admitting 28 students without affiliation for such seats from SZABMU.

18.Now Regulation 10(iii) of the 2014 Regulations provides that the university / SZABMU shall have full powers to take an appropriate action, including de- affiliation of an affiliated institution, if found indulging in any subversive or “unlawful activity” or against provisions of laws without any modification / intimation. Regulation 17(xi) of the 2014 Regulations which prevents an institution, desirous of seeking affiliation, from advertising and or making admission for the course of study before the issuance of affiliation letter from SZABMU, is lawful since the said Regulations have been made in exercise of statutory power. By admitting 28 students in its BS-NG Degree Program without approval / affiliation for the said seats from SZABMU, the petitioner exposed itself to “appropriate action” under Regulation 10(iii). True, a specific penalty other than de-affiliation is not prescribed by Regulation 10(iii) for the violation of any of the requirements under the 2014 Regulations, however, this would not mean that the appropriate action of imposing a penalty commensurate with the unlawful activity committed by a medical college / institution / department cannot be taken by SZABMU. The aforesaid violation committed by the petitioner under Regulation 17(xi) of the 2014 Regulations is certainly an unlawful

activity for which the appropriate action of imposing a penalty could be taken by SZABMU.

19.It has become commonplace for educational institutions to admit students and receive fees from them despite the fact that their registration / affiliation is under consideration and not granted by the competent authority at the time of such admissions. This is a wrong which is motivated by the financial interests of errant educational institutions. Once students are admitted without the approval of the affiliation, it is at the eleventh hour that the Courts are approached to grant relief by stressing that the future of the wrongfully enrolled students is at stake. In the instant case, SZABMU also permitted the wrongfully admitted 28 students to take the examination by showing leniency. But for the unlawful activity by the petitioner to admit 28 students in the BS-NG Degree Program without an approval / affiliation for 28 seats, the litigation in the instant writ petition as well as the earlier writ petitions could have been averted.

20.The sanction of 80 seats for the petitioner’s BS- NG Degree Program by SZABMU through its letter dated 15.09.2022 does not wash away the unlawful activity committed by the petitioner by admitting the 28 students prior to the said sanction.

21.Since I do not find the penalty of stopping the petitioner from future intake of students for a period of one year in the BS-NG Degree Program (2022-2023 batch) to be disproportionate for the petitioner’s unlawful activity of admitting 28 students without approval / affiliation for such seats from SZABMU, the instant writ petition is dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*