Muhammad Bilal etc Vs KMU

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

W.P. NO.2283-P of 2013.

Date of hearing 5/12/2013.

Petitioners (Muhammad Bilal etc.) By Imtiaz Ali, Advocate.

Respondents (Khyber Medical University etc.) By Mr.Taskeenuddin Khattak, Advocate.

QAISER RASHID KHAN, J.- In this writ petition the petitioners have made the following prayers, to:-

(i)Declare that petitioners having studied in duly recognized medical college in consequence of judgment of apex court and having been registered with the PMDC as medical students for current session, are entitled to appear in the MBBS 1st Professional Part-I exam to be conducted by Khyber Medical University, being their degree awarding university as per gazette notification dated

(ii)Direct the respondent (Khyber Medical University) to immediately issue formal

affiliation letter to the Al- Razi Medical College and after issuing them roll numbers petitioners and other eligible students of the college shall be allowed to appear in MBBS 1st Professional part-I exams.

2.Precise facts leading to the instant petition are that the petitioners are 1st year students of Al-Razi Medical College; that Al-Razi Medical College (hereinafter referred to as “the College”) has applied for its recognition/ accreditation to the Federal Government u/s 11 of the PMDC Ordinance, 1962 and before seeking such recognition the College had applied to the Khyber Medical University (hereinafter called as “the University”) for the issuance of the desired certificate, which was issued on 12.7.2010 and as there was a dispute between the College and PMDC, therefore, the matter went up before the august Supreme Court of Pakistan, where on 19.11.2012, the PMDC undertook to recommend recognition of the College within a period of one month and it was

directed by the Honourable apex Court that the College may commence the process of admission for the session commencing from January, 2013 to which the petitioners applied and were admitted in due course.

In the meanwhile the PMDC duly informed the University vide its letter dated 22.2.2013 that the College having been recognized by the PMDC, the University should finalize formal affiliation of the College, but the respondent/University delayed the issuance of formal affiliation letter without any lawful justification and such inaction on the part of the University has created academic problems for the petitioners, who have completed their courses for MBBS 1st Professional part-I exams and prepared to appear in the Annual examination to be held on 17.9.2013. Hence this petition.

3.The learned counsel for the petitioners argued with vehemence that the respondent/university is bound by the commitment made in letter dated 12.7.2010 enjoining therein that the necessary affiliation would be accorded to the

College once the recognition is granted to it by the PMDC and the College after having undergone the strenuous exercise by approaching the superior courts for the redressal of their grievance and the matter was finally resolved by the august apex court vide its judgment dated 19.11.2012, whereafter the PMDC granted the necessary recognition to the College, then it was not befitting on the part of the University to backtrack from its commitment held out to the College on 12.7.2010. The learned counsel for the petitioners laid immense stress on the contents of the said letter, which was addressed to the College by none other but by the Director of the University, wherein no clog as such had been placed to refuse affiliation to the College if recognition was granted by the PMDC. It was further contended that the petitioners under the bonafide belief got admission in the College in view of the judgment of the honourable apex court, whereby it was held that the college may start the process of admission commencing from January, 2013

and that the petitioners turned out to be ultimate sufferers in the process of affiliation of the College, which has been illegally withheld by the respondent/ University.

4.In the comments furnished by the respondent/University, the averments of the petition have been forcefully opposed.

In line with the comments so furnished, the learned counsel for the

respondent/University dilated at length on the various aspects of the matter. He argued that instead of coming forward himself, the Chief Executive of Al-Razi Medical College has opted to present the petitioners as aggrieved party, so as to give a sympathetic outlook to the case of the petitioners and that the entire petition is all about seeking affiliation for the College by the University. He also referred to the letter dated 17.7.2010 addressed by the Director of the University to the Executive Director of the College with reference to his letter dated 26.6.2010. He stressed that the reply was not as such unconditional one so

as to accord affiliation to the College, but was to be done after completion of certain formalities and in this respect he referred to a letter dated 17.8.2013 by the Director Academics, Admissions and Quality Assurance of the University to the Principal of the College, which shows that the delay in granting to the University was caused on account of the College itself as they failed to apply to the University on the prescribed proforma under the KMU, Affiliation Statutes, 2008.

He further contended that Principal of the College has preferred to stay in the background and instead the petitioners have been brought forward through the instant petition though it was for the said Principal to have pleaded his case for affiliation through the instant petition, rather than through the petitioners.

Arguments heard and the available record perused.

5.Through the petition in hand, the petitioners seek declaration that after having studied in the respondent’s College

as a consequence of the judgment of the honourable apex court they are entitled to appear in the MBBS 1st professional Part-I examination to be conducted under the auspices of Khyber Medical University and that the University should also accord formal affiliation letter to the respondent College. As evident from letter dated 17.12.2010 of the Director of the respondent/University to the Executive Director of the College, some correspondence had been going on between the Collage and University inter se for which the necessary recognition by the PMDC was a pre-requisite, whereafter affiliation would be granted to the College. As laid down in the preceding paras, litigation between the College and the PMDC went on upto the honourable apex court, when finally on 19.11.2012 the petitions were disposed of in the following terms:-

i)that the question of attachment of the hospital has already been made in the agreement for a period of 30 years and therefore for the time

being acceptable to the Pakistan Medical & Dental Council (PMDC).

ii)That in accordance with the Notification of 26.01.2012 the Al- Razi Medical College undertakes to have its own college and hospital building within a period of three years;

iii)That the students already admitted shall be readmitted afresh; and

iv)That the PMDC accepts, with certain minor reservations, the list of faculty furnished by the College and that the PMDC still reserves the right to finally approve the faculty, which shall be approved within a period of one month.

However, the College may commence the process of admission for the session commencing January, 2013.

Thereafter the College was granted recognition by the PMDC and accordingly the petitioners alongwith other students were admitted in the College. However, the matter of affiliation of the College

with the University lingered on. In this respect we have before us a letter dated 17.8.2013 of Professor Dr.Shad Muhammad Khan, Director Academics and Admissions addressed to the principal of the College from which it is abundantly manifest that the said Principal submitted an application for affiliation to the College as late as on 31.7.2013 and moreover, he failed to apply on the Prescribed Proforma under the Khyber Medical University Affiliation of Colleges/Institutions Statutes 2008. The said statutes provide for an all encompassing standard procedure or for that matter the sine qua non for the affiliation of a college or an institution with the university. The same also provides for an inspection committee and the conditions governing the grant of Affiliation to a certain College/Institution. When the learned counsel for the petitioners was questioned as to any efforts made by the College for affiliation with the University, he contended that though he

was representing the petitioners, but after the College was recognized by the PMDC, then the University was bound to accord the affiliation to the same. We are afraid, it was not strictu sensu a case of affiliation simpliciter, but the College or for that matter any other Institution was bound by the KMU Affiliation of Colleges/Institutions Statutes, 2008. We have noticed with a degree of sarcasm that it was for the principal of the College to have taken up the cudgels to approach this court pertaining to his affiliation controversy with the University, but instead the petitioners have opted to prefer the instant petition, who on the one hand are pleading their own woes and sufferings, but simultaneously in a discreet manner they are also seeking affiliation of the College with the University. We have also before us the minutes of 16th meeting of the Khyber Medical University Affiliation Committee with its recommendations, which per se

give as overall view about the College including:-

1)Non provision of Faculty Registration Certificate and Faculty Experience certificate for each

individual faculty member issued by PMDC.

2)Non provision of financial statement, HERA registration certificate.

3)Non provision of appointment orders of faculty members.

4)Non provision of salary slips of faculty members.

5)The committee examined the list of faculty registration provided by the college and it was found that the

following seven faculty members were already

Government Employees:

Secondly, the non-availability of clinical facility at Cantonment Board Hospital in the department of Medicine,

Ophthalmology, ENT, Orthopaedics and Psychiatry and deficiencies in terms of faculty and equipments in the departments of Paediatrics, Obstetrics and Gynaecology and Radiology.

Furthermore the basic sciences department was also found deficient in terms of faculty and thus the affiliation of the College till the rectification/removal of the deficiencies was deferred.

6.In such state of affairs, the respondent/University was well within its legal right not to accord affiliation to the College till the removal of the deficiencies and the University authorities had acted under the obligation cast on their shoulders by the KMU Affiliation Statutes 2008. We are at a loss to understand as to why the College is not fulfilling the required criteria, whereby it could be granted the necessary affiliation by the University and the authorities are found dragging their feet on doing the needful. We understand that sans the

requirements or for that matter the deficiencies noted by the Inspection Committee of the University, the respondent College is not imparting true education to students who are in the nascent stage of their medical career.

Even otherwise the students without being exposed to the availability of proper teaching staff, lack of clinical facility in the major fields of medicine, Surgery, Ophthalmology, ENT Orthopaedics and other disciplines as well as deficiencies in terms of the faculty and equipment in paediatrics, Obstetrics, Gynaecology and Radiology would end up as improficient doctors. It is not merely within the confines of the College where the students would be getting only lectures but the host of other facilities to which the students must have proper access. It is about time that the messiahs should come to the medical aid of the teeming millions.

Let the medical education not become another industry or for that matter a money minting machine. It is high time

that the Messiah should ‘heal thyself’ before coming to help the ailing humanity.

7.We are thus of the considered and concerted view that the affiliation of the College has been rightly deferred by the University till the College authorities fulfill the requisite criteria and make up for the deficiencies pointed out in the inspection report. Simultaneously we are conscious of the tale of woes of the petitioners who under the bona fide belief got admission in the college and have studied in the existing environment though the college authorities in a very indifferent and negligent manner preferred to delay the affiliation of the College and thus put at stake the future of the petitioners.

8.We thus dispose of this writ petition in terms of directing the respondent/University to declare the result of the petitioners and all other students of MBBS 1st year part-I exam forthwith, direct the College

authorities to pay the amount to the petitioners so received by them from the students keeping in view their agonies and sufferings, direct the University authorities to adjust/accommodate the petitioners as well as all other students of MBBS 1st year part-I in other colleges of the province, and simultaneously the respondent No.5 i.e.

Al-Razi Medical College is debarred from giving any further admissions to students till the College authorities get affiliation from the Khyber Medical University.

Announced:

Dated 5.12.2013.

JUDGE

JUDGE