2019 PLP 1900 (MLD)

ASIM HAFEEZ, J.

This Intra Court Appeal arises out of judgment dated 08.11.2018 by the learned Single Judge-in-Chambers, whereby the writ petition filed by the appellant was dismissed.

2. Before adjudicating upon the lis, it is expedient to reproduce relief sought in the writ petition by the appellant, which reads as; "In view of the above, it is therefore respectfully prayed that instant petition may graciously be allowed, the impugned 2018 Regulation may kindly be striked down and the impugned advertisement dated 7-10-18 containing mandatory condition of MDCAT for the admission of MBBS/BDS class be set aside. It is further humbly prayed that the Respondents be directed to provisionally entertain Petitioner's admission form and to prepare her provisional merit on the basis of score of O level and SAT-II examination and further to take steps her admission accordingly till final decision of instant W.P. Any other relief, which this Hon'ble Court deem fit and proper in the best interest of justice may also be awarded to the petitioner."

3. The appellant is primarily aggrieved of clause 9(1) of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2018 ("Regulations of 2018"), whereby, in addition to any other eligibility criteria under the regulations, the provisioning of valid admission test result was made mandatory for admissions to any public or private sector Medical/Dental Colleges. The Regulations of 2018 were drafted by the Ad hoc counsel, constituted by the Honourable Supreme Court of Pakistan vide order dated 12.01.2018, which were presented and accepted by Honourable Supreme Court of Pakistan on 17.09.2018 in SUO MOTU case No.01 of 2010 and other Civil Miscellaneous applications. Respondent No.2 issued advertisements in the month of August, 2018, wherein condition of appearance in Medical and Dental Colleges' Admission Test [MDCAT, 2018] was prescribed for admission to any public or private sector Medical/Dental Colleges of the province of Punjab. Appellant took her MDCAT exam on 23.09.2018. Later on, applications were invited from potential candidates for admissions in MBBS and BDS for the session 2018-2019, wherein result of MDCAT, 2018 exams was given 50% weightage in the aggregate percentage. The option of SAT-II/MCAT was made available for reserved seats to the Children of Overseas Pakistanis/Dual Nationality Holders of Pakistan Origin.

4. The appellant, through writ petition, challenged the vires of the Regulations of 2018, primarily the mandatory condition of appearing/ taking MDCAT, 2018 exams for admission and advertisement dated 07.10.2018. The appellant placed reliance on the ratio/reasoning in case reported as "Muhammad Fahad Malik v. PMDC and others" (PLD 2018 Lahore 75) and decision by the Honourable Supreme Court of Pakistan, reported as "Pakistan Medical and Dental Council Through President and 3 others v. Muhammad Fahad Malik and 10 others" (2018 SCMR 1956). The writ petition was dismissed vide judgment dated 08.11.2018, relevant portion whereof is reproduced hereunder; "From the above, it is very much clear that the Regulations were made by the Respondents in pursuance of the Judgment of this Court dated 07.12.2017 (PLD 2018 Lahore 802) as well as the judgment of the Hon'ble Supreme Court of Pakistan dated 12.01.2018 (2018 SCMR 1956) and the order dated 17.09.2018, therefore, the same cannot be struck down. Moreover, the Petitioner herself relied upon the above referred judgments and order of this Court as well as the Hon'ble Supreme Court of Pakistan, respectively which explicitly go against her. In view of what has been discussed above, the Petitioner has failed to make out a good case in her favour. Consequently, this petition, being bereft of any force, is hereby dismissed".

5. Briefly, the facts are that appellant claimed to have completed her A-Level in academic session 2016-2018. She undertook her SAT-II examination in November 2017. She claimed that, after declaration of invalidity of Regulations of 2016 by Hon'ble Supreme Court of Pakistan in "Pakistan Medical and Dental Council through President and 3 others" case (supra), the condition of MDCAT - before the promulgation of Regulations of 2018 - in terms of MBBS and BDS (Admissions, House Job and Internship) Regulations, 2016 (Regulations of 2016) could not be pressed in view of the fact that vested right had accrued to her upon completion of A-level and taking SAT-II exams in November, 2017, which met the criterion under the Admissions in MBBS/BDS Courses and Conditions for House Job/Internship/Foundation Year Regulations, 2013 (Regulations of 2013), wherein scores in SAT-II were considered, for the purposes of determining the eligibility of a student for the admission, in lieu of prescribed admission test under Regulations of 2018.

6. At the outset, learned counsel for the appellant submitted that submissions would be confined to the extent of claiming a right to be considered for admissions for the session 2018.2019 on the basis of her SAT-II scores and not MDCAT result, in view of the law laid down in Fahad Malik's case (supra). Learned counsel for the appellant read various portions of case reported as "Fahad Malik's case and "Pakistan Medical and Dental Council through President and 3 others case" (supra). Per learned counsel, the case of the appellant is identical and she deserves similar treatment, as extended in terms of above-noted judgments.

7. Conversely, the learned counsel for respondent No.1 also placed reliance on referred judgments and explained that the concession extended therein was for students who completed their A-Level in June 2017, same were held entitled to be admitted, on the basis of their SAT-II scores only for the session 2017-2018. Learned Counsel for the respondent No.2 submitted that eligibility criterion was determined in terms of the Regulations of 2018 and respondent No.2 was responsible for carrying out admissions process and preparation of merit list, who submitted various lists on record.

8. Arguments heard. Available record perused.

9. The facts of the case are straightforward. Appellant claimed to have started her A-Level in the middle of 2016, which was before the promulgation of Regulations of 2016 on 27.10.2016, though same were declared invalid lately. Regulation 9 of Regulations of 2016 put a condition of passing of admission test - almost alike condition was imposed under regulation 9 of Regulations of 2018, making condition of provisioning of valid admission test result for admissions -- which Regulation 9 of Regulations 2016 came up for judicial review and proceedings culminated by way of judgments in Fahad Malik's case, and "Pakistan Medical and Dental Council Through President and 3 others case (supra). We will deal with the question that whether appellant is entitled to similar treatment, as extended in above-noted judgments, after discussing the reasons given to dismiss the petition. We have examined the judgment by learned Single Judge in Chambers, whereby submissions regarding declaration of invalidity qua Regulations of 2018 were dismissed in view of Order of Hon'ble Supreme Court of Pakistan dated 17.09.2018, which reads as; "The ad hoc Pakistan Medical and Dental Council (the council) has placed on record (vide. C.M.A No.8032/2018) certain regulations/draft laws prepared under the authority of this Court by the said Council, which are supported by the learned Attorney General for Pakistan. The list of these regulations/draft laws are views of all the stakeholders present in Court, we accept the report and all the regulations/draft laws which are hereby incorporated and made a part of this order. Obviously, these regulations/draft laws shall be susceptible to the amendments/changes made by the permanent Council (when constituted in accordance with law) at the relevant point of time. In light of the above, this matter having borne fruit is disposed of".

10. The plea of the appellant, claiming eligibility for admission in MBBS and BDS for the academic session 2018-2019, on the basis of SAT-II scores, was dismissed in view of paragraph No.35(v) of decision in Fahad Malik's case and paragraph No.24(r) of decision in Pakistan Medical and Dental Council through President and 3 others' case Paragraph 35 (v) reads as; "that students who completed their A level in June 2017 are entitled to be admitted into medical and dental colleges on the basis of their SAT-II scores for the 2017-18 session". And paragraph No.24(r) reads as; "students who completed their A-level in June 2107 are entitled to be admitted into medical and dental colleges on the basis of their SAT-II scores for the 2017-18 session."

11. The fundamental question is that whether same relief can be extended to the appellant while applying the ratio laid down or reasoning in Fahad Malik's case (supra). The element of commonality of facts in Fahad Malik's case and facts of case at hand will be examined in the later part of this judgment, at this stage, it is expedient to understand and identify the ratio/reasoning in Fahad Malik's case to see that whether the law enunciated therein can be applied and/or treated as precedent/ authority for this case. Paragraph No.29 in Fahad Malik's case is reproduced hereunder as; "

29. The Appellants and Petitioners have also relied upon several documents to show that after the issuance of 2016 Regulations when the same were challenged before the Court, PMDC entered into negotiations with students in order to resolve the dispute. Consequently local A level students who appeared for their final exam in June 2016 were given admission on the basis of the SAT II exam on the understanding that since the 2016 Regulations were issued in October 2016 they would not apply to the students who graduated in June 2016. PMDC issued a notification on 28.11.2016 after an emergent session in November 2016 and allowed local A level students admission in medical and dental colleges on the basis of their SAT II result. PMDC does not deny offering the waiver, however it is their case that the SAT II score was only relevant with reference to the foreign quota seats and not for the open merit seats. However, in terms of the 2013 Regulations and on the basis of the data placed before us it is clear that local A level students were given admission on open merit seats on the basis of their SAT II score as it could be done under the 2013 Regulations. The learned Single Judge denied the Appellants' admission on the basis of their SAT II score given that these students had sufficient knowledge of the 2016 Regulations and given that the 2013 Regulations did not permit admission on open merit on the basis of SAT II score in lieu of the MDCAT exam. We, however have a slightly different view. Although the Appellants and Petitioners before us had knowledge of the 2016 Regulations in October 2016 that does not amount to a reason to deny them a benefit that others in similar position were allowed. The A level program is a two year program and the students before the Court completed one year of their A level in October 2016 when the 2016 Regulations were issued. By this time they had taken several steps in progression of their desire to get admission in medical and dental colleges and had planned their two years post their O level exam in order to achieve the desired merit. We find that these students are entitled to be treated in the same way as the students who graduated in June 2016 as a vested right had accrued in their favour under the 2013 Regulations. These students had taken decisive steps before the promulgation of the 2016 Regulations such as the SAT II exam in preparation for admission to medical and dental colleges under the 2013 Regulations. We also find that even though the Appellants sat for the MDCAT in October, 2017, it was done out of abundant caution to save their future careers and as such does not mean that they had accepted the 2016 Regulations as they were under challenge before the learned Single Judge. Even otherwise due to the challenge to the 2016 Regulations which started in October 2016 there was confusion as to how the 2017-18 admissions would take place. Therefore we grant the same benefit to the Appellants/Petitioners before us in order to protect their interests and future careers as medical and dental practitioners. In this regard we note that most students who opt to enter the medical profession decide to become doctors very early in their lives. Preparing for admission in medical and dental colleges is not a random or last minute decision but requires planning and preparation with years of hard work. Furthermore entry into colleges being so competitive requires that this is a thought through decision. Students are therefore eager and highly charged in their desire to get admission in medical and dental colleges and plan for the same very early in life". [Emphasis supplied]

12. The Hon'ble Supreme Court of Pakistan upheld the ratio/ reasoning in Fahad Malik's case, to the extent of, treating SAT-II scores as eligibility criteria for admissions, for students/candidates who completed A-level exams in June 2017 in lieu of admission test - MDCAT exam -- for admission in MBBS and BDS colleges for session 2017-2018.

13. Upon examining the reasoning in Fahad Malik's case (supra), and perusal of facts peculiar to appellant's case, it can be reckoned that appellant is entitled to similar treatment, which appeared more plausible upon reiteration of relevant facts of the lis at hand; a) appellant took admission in A-level in June 2016 -- before the promulgation of Regulations, 2016 (declared as invalid in terms of judgment reported in Pakistan Medical and Dental Council through President and 3 others v. Muhammad Fahad Malik and 10 others' case; b) Appellant took her SAT-II exams in November, 2017; c) by the time Regulations of 2018 were introduced

as approved by the Apex Court--on 17.09.2018, the appellant had completed her A-level; d) her claim of accrual of vested right stood fortified in view of the reasoning in paragraph 29 of the Fahad Malik's case; e) appellant also took her MDCAT as an abundant caution; f) appellant forthwith challenged the advertisement dated 07.10.2018 wherein condition of giving 50% weightage to admission test -- MDCAT - while calculating aggregate percentages for open merit seats, was incorporated;

14. Mere appearance in MDCAT exams by the appellant, conducted by University of Health Sciences (UHS), in pursuance of advertisement dated 12.08.2018, would not deprive her of claiming vested right to be assessed for the purposes of admission in MBBS and BDS on the basis of SAT-II scores. Even otherwise by the time the mandatory condition of taking MDCAT exams was advertised

which is even before the approval extended to the Regulations of 2018 by the Honourable Supreme Court of Pakistan vide order date 17.09.2018 -- the appellant had competed her A-levels and she already undertook SAT-II exams in November, 2017.

15. Another crucial aspect worth mentioning that when the appellant completed her A-level exams, the Regulations of 2013 were applicable, in view of the declaration of invalidity of Regulations of 2016 by the Honourable Supreme Court of Pakistan. And Regulations of 2018 were accepted in terms of order dated 17.09.2018 by august Supreme Court of Pakistan. In terms of Regulations of 2013, Scores in SAT-II provided basis for eligibility.

16. Whether the appellant, who was not party to the above-noted cases, can claim benefit of the judgments in Fahad Malik's case, and "Pakistan Medical and Dental Council through President and 3 others case (supra). As was said in the case of "Pir Baksh v. Chairman Allotment Committee" (PLD 1987 Supreme Court 145) that: "in a controversy raising a dispute inter parties, the thing adjudged is conclusive as between the parties both on question of law and fact, but as to what the court decided generally is the ratio decidendi or rule of law for which it is the authority. It is the ratio decidendi which is applicable to subsequent cases presenting the same problem between third parties not involved in original case nor will either of the original parties be bound in a subsequent dispute with a third party".

17. In the circumstances, in light of the ratio of the Fahad Malik's case and decision in Pakistan Medical and Dental Council through President and 3 others case (supra), the appellant is entitled to be considered/assessed for admission in MBBS and BDS for the session 2018-2019 on the basis of her scores in SAT-II - November, 2017, provided she fulfills all other conditions prescribed for eligibility, other than the condition of MDCAT, 2018.

18. In view of the above observations in paragraph in 17, this appeal is accepted and the decision dated 08.11.2018 by learned single Judge in chambers is modified accordingly. The declaration of validity of the Regulations of 2018 in judgment dated 08.11.2018 by the learned Single Judge-in-Cambers is sustained. MH/H-5/L Order accordingly.