Muhammad Awais Khan & others Vs Government of Pakistan through Federal Secretary Health, Islamabad & others

\.. JUDGEMENT SHEET

lN THE PESHAWAR HIGH GOURT, PESHAWAR (Judicial Department)

W.P No. 930-P12022 with Interim Relief

Muhammad Awais Khan and others

Versus

Government of Pakistan through Federal Secretary Health, Islamabad and others For petitioners Ms. Humaira Gul, Advocate For respondents Mr. Aamir Javed. Addl. Attorney General IWS Muhammad Bashar Naveed and Saqib Raza, A.A.Gs for Provincial Government.

Ml. Abdul Munim Khan, Advocate for the re spondent-Univers ity.

Muhammad Sangeen Khan, Advocate for

PMC.

Date of hearing Z5;Z0ZZ

JUDGMENT

SYED ARSIIAD ALI, J.- This consolidated judgment shall decide the instant petition as well as the connected petitions No. 969-P and 857-P as essentially in all these petitions the grievances of all the petitioners are one and the same.

2.It is prayed in Writ Petitions No. 930-P, 969-P & 857 -P 12022 that:

While accepting this writ petition the Special Admission Policy for admission ot't vacant seats dated 16.2.2022 of undergraduate MBBS/BDS progroms may please be declared as null and void and appropriate writ/directions moy please be issued to the respondenls/'concerned authorities to follou' trdmission policy of the )tear 202l tts per section 28 of the up-gradation of

\r student on the vacant seats on merit cum choice policy of Khyber Medical University for the year 2021-22 and as per rule 1I of PMC Admission Regulations or any other appropriate order for the end of justice may please be passed in favour of petitioners and agoinst the respondents.

Whereas it is prayed in Writ Petition No. 929- P12022 that:

"Wile accepting this Writ Petition the Special Admission Policy for admission on vacant seats dated 16.02.2022 of undergraduate MBBS/BDS programs may please be declared as null and void and appropriate writ/directions may please be issued to the respondents/concerned authorities to follow admission policy of KMU for the year 2021 and as per rule 15 of admission policy of KMU and the rnerit criteria may be maintain the same, as for already admitted students and for students on waiting list awaiting their admissions for the same of MBBS/BDS undergraduate program of KMU, as per their merit in case of any vacant seat and any other appropriate orderfor the end of justice may please be passed in favour of petitioners ond against the respondents".

Claim of the petitioners

3.It is the precise claim of the present petitioners that Pakistan Medical Commission ("PMC) through a Public Notice had invited applications for admission in Public Sector as well as Private Sector Medical Colleges prescribing therein the timeline for filing applications and the admission criteria. This Public Notice was followed by all the Public Sector Medical Universities including Khyber .) Medical University Peshawar (*KMU'). Pursuant to the said advertisement, the petitioners applied for admission through KMU; they qualified Medical and Dental Colleges Admissions Test (*MDCAT'.) andwere eligible to be given admission in the Medical Colleges. It is averred in the

-J-

J petition that the petitioners secured highest aggregated percentages and got their admissions in MBBS and BDS undergraduate program under KMU, after fulfillment of codal formalities. They were waiting for their upgradation in case of availability of any vacant seat in a better medical college. A11 the petitioners felt aggrieved from the impugned Special Admission Policy dated 16.02.2022 issued by the PMC for admission on vacant seats for the session 2021-22, whereby not only the admission criteria for filling the vacant seats was changed but the petitioners were barred to apply for transfer of their seats/upgradation to a better institution. Stance of the PMC

4.Pakistan Medical Commission ("PMC') has filed its comments and contests the claim of the present petitioners. It is the case of the respondent/PMC that the admission for session 2021-2022 was announced by the PMC on 28hl29th October, 2021 with a complete guideline emphasizing that the admission process in all public sector colleges should be completed by 10th January, 2022 and in a private college it should be completed by 30ft January, 2022 respectively whereas 10ft February, 2022 was given as a deadline for admission of delayed and special criteria seats. All the relevant universities/colleges were required to provide the list of admitted students to the PMC on its online portal. The public as well as private colleges had failed to upload the list of admitted students on the online portal of the PMC by the deadline. However, the same was uploaded at belated stage. The PMC after assessment of the uploaded admitted a student lists by the colleges on online portal observed that 4 the colleges had failed to admit students around l9l7 in number which were still vacant for the current session, 2021-2022. The criteria and time line for filling the vacant seats after the close of admission is provided under PMC

.J Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 notified through letter dated 04.06.202, Regulations wherein it is specifically provided that no public sector universities/colleges have any authority to enroll any student after the deadline. However, when a large number of vacant seats (1972) which after close of admission could not be filled through transfer of admitted students, therefore, the Medical & Dental Council of the Commission in its meeting held on 15.02.2021 had resolved that since the colleges had failed to admit students on these vacant seats, even after the extended deadline, therefore, the PMC shall nominate students with highest merit to the respective colleges against the vacant seat and in this background the impugned policy dated 16.03.2022 was issued by the PMC providing an opportunity to the respective colleges to get its vacant seat filled. In this regard the PMC on 01 .03.2022 had issued nomination of students/merit list on vacant seat policy for public colleges, wherein the students on lowest merit in KPK (MBBS List) was closed at 86.655, therefore, the impugned policy was within the domain of respondent/PMC and the present petitioners have no right to challenge the same. The respondents have also raised a serious objection to the maintainability of these petitions due to availability of an altemate remedy which is provided under the Medical Tribunal Act,2020 being presided over by a retired Hon'ble Judge of a High Court.

Stance of KMU (Respondents No. 3 & 6l

5.It is averred by the aforesaid respondent that since the .) PMC had locked further admission in medical colleges, 4 therefore, the present petitioners could not be upgraded to high merit colleges, however, it has admitted that the candidates lower in merit and waiting lists as per KMU lists

have been placed in top merit colleges by PMC, which has led to unrest among the deserving candidates. The University has formulated its own criteria for admission to the waiting list and upgradation of the existing admiued students but the said criteria was not adhered to pursuant to the impugned notification of PMC.

6.Arguments heard and record perused.

7.The present issue relates to admission policy of the PMC as well as KMU in MBBS as well as BDS program for the Session, 2022. One of the criteria for admission in Medical Colleges is that the candidate should qualiff MDCAT by securing 65Yo marks. The said MDCAT is given and supervised by PMC. The PMC through a Public Notice for the Session issued a policy and the timeline for admission on 28,fil29th October, 202t The criteria for admission and the deadline issued in the said policy are as following.

a Only students hoving possed the MDCAT 2021 examination obtaining 65ok or more morlrs are eligible for admission. There ore no exceptions in any public or private medical & dental college across Pakistan. a Students who have obtained more than 65ok marl<s in their equivalence MDCAT 2020 exam are also eligible for admission.

o Students are required to submit the list of colleges they have applied to at hups : //pmc. gov.pH Re sult s/ Forw ardColle ge R esults for forwarding their verffied MDCAT scores to the colleges.

a A student must have obtained 6596 or more aggregote marks in their F.Sc., A'levels or oiher-equivalent HS.SC qualification. IBCC certificate for equivalence to F.Sc. shall be required fo, A Level or other equivalent qualification holders.

4 Following are the Deadlines for Admissions. No adnission after these dates shall be registered with PMC;

Public Colleges Private Colleges

V Issuance of Final l}th December Prior to 15 Merit Lists 2021 January2022 Closure of Admissions l0 Januarv 2022 30 January 2022 Admission of Special 10 February Seats 2022 Admission of Delayed 10 February 10 Februory Results 2022 2022

The said policy was followed by the KMU being a provincial entity responsible for supervising admission in Public Sector Medical Colleges of the Province of Khyber Pakhtunkhwa. The said criteria reads as under:

,1S PER "PMC GUIDELINES" SPECIAL

PROVISION FOR STUDENTS WITH

DELAYED F,SC OR A-LEVEL RESULTS

a "Any student who has applied for admissions but their F.Sc or A Level result is delayed due to late exams sholl be considered for admission subject to such result being available prior to lCIh February 2022.

o A college shall retain a list of all such student and an equal number of seats from the bottom of the allocated seots shall be held on a provisional basis. a Students who have applied with their results available shall be admitted on a provisional basis only on such seats till 10th February 2022.

a If a student with a delayed result submits their result before 10'h February, 2022 and on calculation is higher in merit than the last student on the admitted list, they shall be given admission and the provisional admission to the earlier student shall be cancelled. A student who has paid the fee against a provisional admission shall be having their fee refunded infull.

a If no candidate with delayed results submits before |0th February 2022, the provisional admissions shall be 4 Jinalized".

4 Last date for submission/receiving of applications was given as 23.11.2021, which was later extended to 25.11.2021.

8.For the Session, 2021122, due to pandemic of covid- 19 various Secondary Boards of the Province had conducted the examination in unconventional manner and thus, as per the policy of the Provincial Government, the students were given the opportunity to take re-examination by the Provincial Govemment. A good number of the students had appeared in the re-examination and also applied to the KMU on the basis of their declared result in the examination which was conducted by the respective Secondary Boards of the Province. Due to the said pandemic of covid-I9, it appears that throughout the Pakistan the examination was delayed and more importantly the students, who were pursuing their studies in their A-Level/Cambridge examination, their examinations were not only delayed but their results were also announced later. In this regard, a clarification was issued by the PMC informing the public/candidate that those students who sat for HSSC examination in October, 2O2l for the first time and not as a repeater/re-sit student to improve their marks would be given extended time for admission. The aforesaid controversy led to litigation before this Court as well as other High Courts which was ultimately resolved through different judgments, however, the fate of the same was that there was delay in admission process and due to aforesaid reason, the KMU has hardly completed admission by the deadline provided by the PMC.

9.On 16.02.2022 the PMC had issued a policy for admission "Impugned Policy" against the vacant seats. The 4 salient features of the said policy gerrnane to the present controversy are as follows:

i. All the colleges both in public and private sectors who had foited to follow the timeline for admission, ofi the deadline date, the

submitted and admitted list of the students were locked which could not be changed, therefore, the said students cannot be entered/admitted by any other college in their list waiting their admission after the deadline.

ii. Any students, who fuffilled the entry criteria (MDCAT qualified and 65% marla in HSSC) and has not been entered in the uploaded admitted list by any college, shall be eligible to apply for admission on PMC portal. The merit criteria was changed by assigning 50 o% marks MDCAT and 50 % marks to H,S,SC. The students, who were not enrolled in any medical college would only be etigible who shall apply on PMC portal identifying five Medical & Dental Colleges of their choice in order of priority along with copy of HSSC qualification anrl equivalent certificate where was applicable.

10.Pursuant to the said policy, a public notice was issued soliciting applications from the candidates who could not get admission in any college and accordingly the PMC through the aforesaid change policy had filled various seats and the list was sent to the respective public sector colleges.

The list sent to the Province of Khyber Pakhtunkhwa consists of 92 students. On 03.03 .2022 a further notification was issued by the PMC explaining therein that the said list sent to the respective colleges will not confer any right of admission on the students, which shall vest with each public university or provincial authority. However, if any public university does not admit a student so nominated, the said seat will remain vacant and no further students shall be admitted against the said seats.

v 11. Be that as it frdy, however, the essential question before this Court is the authority of PMC to have issued notification dated 16.02.2022 and by itself conducting admission in various medical colleges by soliciting applications from the candidates. In order to answer this issue, we have to refer the governing law on the subject i.e.

Pakistan Medical Commission Act, 2020 and the Regulation nrade thereunder. The Parliament on 23.09.2020 has promulgated the Pakistan Medical Commission Act, 2020 ("Act') in order to provide for the regulation, control of the medical profession and to establish a uniform minimum standard of basic and higher education and training etc. A highest body with the name of Pakistan Medical Commission ("PMC) has been established under Section 3 of the Act providing an umbrella cover to the Medical and Dental Council, National Medical and Dental Academic Board and the National Medical Authority. 12, Medical and Dental Council ("Council') is established under Section 4 of the Act comprising of the eminent members from civil society, eminent doctors, Dentist, Surgeon General of the armed forces etc. The powers and functions of the Council has been provided under Section 8 (f) of the Act, which, inter alia, includes to provide/ frame regulations for conduct of admissions in medical and dental colleges and examinations to be conducted by the PMC and examination structure and standards of the medical and dental colleges, admissions test, national licensing examination etc.

13.National Medical and Dental Academic Board 4 ("Boord') is established under Section 10 of the Act, comprising of the Chairman Higher Education Commission, President of the College of Physicians and Surgeons of Pakistan, one Vice Chancellor or dean of a public sector

university, one vice chancellor of the medical faculty of a private university, the Principal of the Army Medical College and other members as provided. The mandate of the Board is to formulate accreditation standard, curriculum and scope of undergraduate medical and dental program, formulate the examination structure and standard for MDCAT for approval of the Council etc.

14.The National Medical Authority ("Authority') is established under Section 15 of the Act comprising of various members of PMC having mandate to conduct all examination provided for under the Act.

15, Section 18 of the Act provides that the Authority shall conduct annually on a date approved by the Council and as per standards approved by the Board a single admissions test (MDCAT) which shall be mandatory requirement for all students seeking admission in medical or dental undergraduate programs anywhere in Pakistan. Section 18 (2) of the Act bars all medical and dental degree colleges in Pakistan to admit any student, who has not passed MDCAT test. Section 18(3) of the Act envisages that the admission to medical or dental programs conducted by public colleges shall be regulated as per the policy of the Provincial Government strictly on merit, as a ready reference Section 18 of the Act is reproduced.

"18. Medical and dental colleges admissions tests (MDCAT). (1) The Authority shall conduct annually on a date approved by the Council and as per standards approved by the Board a single admissions test which shall be a mandatory requirement for all students seeHng admission to medical or dental under-graduate programs anywhere in Pakistan.

4 (2) No student shall be awarded a medical or dental degree in Pakistan who has not passed the MDCAT prior to obtaining admission in a medical or dental college in Pakistan:

Provided that such requirement shall be mandatory for all students who have been

enrolled in medical or dental under-graduate programs in the year 2021 and thereafter.

(3)The admission to medical or dental progroms conducted by public colleges shall be regulated as per the policy of the Provincial Governments strictly on merit and admission to a private college shall be in accordance with the criteria and requirements stipulated by the private college at least one yeor in advance of admissions including any additional entrance test as may be conducted by a private college subject to qny conditions imposed by the relevant university to which such college is ffiliated:

Provided that the marks obtained by a student in the MDCAT conducted by the Authority shall constitute a minimum of fifty percent of the weightage for the purposes of admission in the public colleges".

76.Section 40 of the Act empowers the PMC to frame regulations by notiffing it in the official gazette, inter alia, relating to all matters which are covered under the Act. 77, Through notification dated 04.06.2021, the PMC has framed regulations "Regulotions" under Section 40 read with Section 2(f) of Section 8 of the Act. Regulation-3 deals with the admission/criteria whereas Regulation-4 deals with the admission process for public colleges. Both the provisions are relevant to the present controversies which are reproduced as under:- "3. Eligibility for Admission,- Any person seeking admission in any undergraduate medical or dental college in Pabistan shall be eligible having ful/illed the follow ing mandatory criteria ;

a) have passed the MDCAT examination conducted by the National Medical Authority;

b) obtained a Higher Secondary School Certificate qualification ("HSSC") or an equivalent 12th grade qualification recognized in Pakistan and having obtained more than sixty Jive percent marlcs therein, or a higher percentage as may be notified - by the Medical and Dental Council; and c) passed the subiects of biologt and chemistry and either physics or mathematics in the examination of the Higher Secondary School Certificate or an equivalent 12th grade qualification recognized in Pakistan:

Provided that the mandatory eligibility requirements V shall not apply to a student admitted on a special program seat pre-defined exclusively for a Federal Government program for foreign students under bilateral agreements with other countries. Such students shall also not be entitled to apply for a Full License to practice in Pakistan after having obtained their degree and will have to apply as foreign graduates subject to applicable licensing pathways.

4.Admissions Process for Public Colleges.- (1) Admissions to public colleges shall be conducted and completed by the respective government or authority under whose control the public college is established, operates and administered or any entity authorized by such government or authority for purposes of conducting admissions.

(2)The government shall formulate the merit and admission criteria for the public colleges subject to at least Jifty percent weightage given to the MDCAT score of an applicantfor purposes offorming the/inal merit.

(4)The final criteria for merit and admission including all category of seats shall be publicly announced by or before I't August ofeachyear. A copy of the criteria and categories shall be provided to the Authority by l't August of each year.

(8)The merit lists shall be made public by or before ldh December and admissions to public colleges shall be completed by or before lCIh January of each year. Admissions to all special category seats not being on open merit shall be completed by llh February of each year.

(e)

(11)Any allocated seat of a college which mry remain vacant after the completion of admissions shall remain vacant subject to being available for an admitted student who may seek a transfer andwhere such transfers shall be permitted afier l't March of each year and the admitted student having received their registration from the Commission subject to any applicable rules of the ffiliating university.

Since under Section 18(3) of the Act, it is the domain of the respective govemment to formulate admission policy for enrollment in public sector organization, therefore, the Government of Khyber Pakhtunkhwa has also issued admission policy and regulation for admission in public sector medical colleges 2 for the year, 2021-2022. The merit criteria has been 4 provided under Para-l5 of the Admission Policy whereas criteria for admission on waiting list has been provided

under Para-2&. Both the provisions are reproduced as under:- Admission Policv, 202 I -2022

15.The candidate shall apply to concerned Admitting University for admission by submitting /rr.'s SSC, HS^SC or F.Sc. and his Medicol and Dental College Admissions Test (MDCAD result. The concerned admitting university shall prepare a merit list by a weight age formttla as under:-

(a)SSC/Matric/Equivalent (10%o)

(b)Adjusted marl6 in F.Sc or equivalent examination (elective subject of Biolog,t, Chemistry, and Physic/Mathematics). &0%o); and

(b)Medical and Dental Colleges Admissions Test (MDCAD (50%o) ' Provided that no candidate shall be considered eligible on merit if the student has not acquired a minimum of 65ok marks in the Admission Test.

28.Filling of the vacant seats shall be on the basis of merit cum choice through upgradation of admitted students and amongst the waiting list which will be the responsibility of KMU Admission Committee (KUM-AC). Down gradation to an institute which was already rqfused shall not be allowed.

Regulations in para 15 and 18 also deals with the subject as following:-

15.Examination & Results. (1) Each professional examination shall be conducted by the ffiliating university directly in terms of setting the examination and its checking and marking. No constituent, ffiliated or administer college shall be permitted to set the paper or mark the same.

@ The professional examinations shall be conducted by each university ond the results announced by or before l|th Janury of each year unless for reasons beyond the control of the university the examinations are delayed. Any delay in the examlnationi shall be informed in advance to the Authority by the university.

(3)The results of each professional exam 2 subject wise shall be provided to the Authority by each university within ten days of the result having been annownced.

18.Transfer to Another Pakistani College. (1) A student enrolled in any medical or dental

college may transfer to another college in the some progrom at the same level to a vacant seat available in the college transferring to subject to any transfer rules prescribed by the ffiliating university.

(2)All colleges, public or private, shall at all times publicly display any vacant seats available in eachyear ofthe program and shall inform the Authority of such vacancy within fourteen days of such vacancy occurring. No transfer can be accepted by a college to a vacant seat until the vacancy has been publicly displayed for at least fourteen days allowing for students to applyfor transfer to such vocancy.

(3)No college or university shall restrict a student's right to leave a college and transfer to another college.

(4)The terms of transfer shall be determined by the university regulating the college to which the student ,s seeking a transfer to.

(5)If no transfer rules ore presuibed by a university, the college to which a transfer is sought shall ensure that the transfer is bosed on merit if more than one siudent applies for such ?[l*'u*r* resticted by the rutes of a univ;ersity, there shall b,e no restriction on transfer from a public to a private college or vice versa.

(7)A college to which a student has transferred to and the college fi'om which the student has transferued out shall inform the Authority within fifieen days of such transfer of the occurrence of the transfer".

18.The perusal of the aforesaid relevant provisions of the Act and the Regulation would clearly reveals that the PMC is the apex regulatory authority, regulating medical profession which is comprised of various sub-components, including council and the Authority having specified functions. Section 18 of the Act Clearly envisages that the MDCAT examination for the purpose of admission in medical colleges shall be conducted by the Authority 4 (established under Section 15 of the Act) annually on the 4 date approved by the Council (established under Section 4 of the Act) and as per standard approved by the Board

(established under Section 10 of the Act) a single admission test which shall be a mandatory requirement for all students seeking admission to medical or dental undergraduate program anywhere in Pakistan.

19.Section 18 (3) of the Act in clear words confers and delegate upon the respective Provincial Government/Authority to frame the admission policy for enrollment of students in respective public sector medical colleges, however, the only restriction which is being imposed by the Act that while calculating the merit criteria 50% weightage should be given to the marks obtained by the students in MDCAT. However, the PMC white framing relevant regulations notified on 04.06.202l ("Impugned Notiftcation') has gone a step further by providing the following admission criteria.

a) have passed the MDCAT examination conducted by the National Medical Authority;

b) obtained a Higher Secondary School Certificate qualification ("HSSC") or an equivalent 12th grade qualification recognized in Pakistan and having obteined more than sixty fi.ve percent marks therein, or a higher percentage as may be notified by the Medical and Dental Council; and c) passed the subjects of biologt and chemistry and either physics or mathematics in the examination of the Higher Secondary School Certificate or an equivalent 12h grade quali/icalion recognized in Pakistan:

Regulation-4 has provided a statutory timeline for the public sector medical colleges that the merit list of all candidates, who are to be enrolled in the public sector medical colleges should be made public on lOth December and adtnission in the respective medical colleges should be completed by lOth January of each year, however, admissions to all special category seats not being on open merit shall be completed by 10th February ofeach year.

20.According to Regulation-4(l1) of the Regulation, the vacant seats which remain unfilled after the completion of admission shall be available only to an admitted student, who may seek a transfer and where such a transfer shall be permitted after I't March of each year.

21.In the present case, admittedly, the KMU had completed the admission process by 18th February,2022, however, it was unable to inform the PMC regarding the vacant seats. The respondent-university has not initiated any process for allowing the enrolled candidate to apply for the transfer of the seat from one Medical College to another Medical College of their choice.

22, The gravamen of the present petitioners is the impugned admission policy issued by the PMC on 16.02.2022 whereby the already enrolled students in various medical colleges were not only deprived of the aforesaid choice but has decided to undertake the process of admission against the vacant seats by itself. Even through the impugned notification dated 16.02.2022 the admission criteria has been changed which would obviously affect the merit position. In this regard, the learned counsel appearing on behalf of the respondent- PMC has argued that since the KMU which is a public sector university has failed to complete the process of admission within the statutory timeline provided by the PMC and has not notified the available vacant seats to the PMC, therefore, in the public interest, the said notification was issued in order to save the said seats from being vested. However, these arguments of learned counsel for the respondent-PMC have not impressed us for the obvious reason that as stated above, the Act as well as Regulation do not empower the PMC to undertake the

process of admission on its own. Under Section 18(3) of the Act these powers have been specifically delegated upon the public sector universities and thus the public sector universities are free and independent to chalk out the policy for admission in the respective colleges but in conformity rvith the Act. The question whether the PMC has any jurisdiction to provide a guideline through Regulation is not before us as the vires of Regulation have not been challenged, however, these Regulations too does not empower the PMC to undertake the process of admission against the vacant seats on its own which is otherwise a domain of public sector universities in view of the clear mandate of Section 18(3) of the Act. It is settled law that where the law requires something to be done in a particular manner, it must be done in that manner. Another important canon of law is that what cannot be done directly cannot be done indirectly. Therefore, obviously the process of admission carried out by the PMC is without jurisdiction.

23.It is also contended by the learned counsel for the respondent-PMC that after the deadline provided in the Regulation, no public sector university can continue with the process of admission. We are unable to subscribe to the said submissions as we are clear in our mind that the transfer of one student from one medical college to another medical college would not amount to a new admission. This right to the already admitted students has not only been provided under Regulation-4(11) read with regulation l9 but by the public sector universities through 4 the KMU admission policy of 2022 (Para-28 of the admission policy). Therefore, the present petitioners cannot be deprived of this vested right to apply for

transfer of their admission from one college to another college of their choice in preference to those students who have been admitted by the PMC under the impugned notification dated 16-02-2022 who on merit are lower than the Petitioners. Joint Admission Committee. Khvber College. Peshawor and others vs. Rqza Hassan and others (1999 SCMR 965).

24.It appears from record that in this regard, the PMC while directly admitting the students through different criteria as notified under the impugned Notification dated 16.02.2022 has acted illegally and without jurisdiction, however, we would exercise restrains by annulling the criteria in totality as it would have far reaching effect because the admission in various medical colleges have already been closed, however, the said criteria is not sustainable and is liable to be struck down only to the extent of the vested rights of the present petitioners depriving them of their choice to transfer their enrollment from one Medical & Dental College to another Medical & Dental College where the said seat has become vacatrtloccurred.

25.Moving on to the objection of the respondent-PMC about the availability of alternate remedy. Granted; that under Section 4 of Medical Tribunal Act, 2020, a forum has been provided against the acts/orders of the PMC which is a Medical Tribunal, however, at this stage, when the matter has come up for final hearing and we are o convinced that the impugned Notification issued by the { PMC is patently without lawful authority, we would not refuse to exercise our jurisdiction as it would obviously put the present petitioners at inconvenience. Indeed, it is well settled that the rule about invoking the constitutional

jurisdiction only after exhausting all other remedies, is a rule of convenience and discretion by which the Courts regulate its proceedings and it is not a rule of law affecting the jurisdiction. A constitutional petition is competent if an order is passed by a court for authorrty by exceeding its jurisdiction even if the remedy of appeaVrevision against such order is available, depending upon the facts and circumstances of each case. Gatron (Industries) Ltd vs. of Pakiston and others (1999 SCMR 1072). Similarly, in the case of the Muruee Brewerv Co. Ltd vs. throush the Secretarv to Government of Pokistan, l(orks Division and 02 others, the Hon'ble Apex Court has held, "the rule that the High Court will not entertain o writ petition wlten other appropriate remedy is available ,s not a rule of law barring jurisdiction but a rule by which the Court regulates its jurisdiction. One of the well-recognized exception to the ge:neral rule is o case where an order is attacked on the ground that it was wholly without authority, whereas, statutory functionary acts malafide or in a partial, unjust antd oppressive manner, the High Court in the exercise of its jurisdiction has power to grant relief to the aggrieved porty." Similar view has been reaffirmed by the Apex Court in the case of Collector Custoltts (Valuationt and another vs. Ksrachi Bulk Storose and Terminal Ltd (2007 SCMR 1357), Muslimabad Cooperative Housins Societv through 4 Secretorv vs. Mrs.

sc 13s), Wattan Purtv throush Fiaz and others (PLD 2008 vs. Federation

of Pakistan throush Cahinet Committee of Privatiz.stion. Islamabad snd others (PLD 2006 SC 697).

26.In view of the above, we admit &, partially allow these petitions by holding that the impugned Notification dated 16.02.2022 to the extent of barring the present petitioners to exercise their choice for transfer of their admission from one Medical & Dental College to another Medical & Dental College, which right has been conferred upon them under Paru-Z8 of the Admission Policy of the KMU and Regulation no 4 (l l) and 18 is illegal and without lawful authority and accordingly direct the KMU to readjust the admission of the enrolled students by allowing the present petitioners to first exercise their choice for transfer of their admissions to the medical college of their choice on merit. The needful be completed within a period of one month positive Announeed.

t7'o6-zozz

Arshad Ali

ruDGE Nawab Shah CS (DB) Justice lslrtiaq Ibrahim & Justice