Legality and constitutionality

Petitioner, Pakistan Medical Commission ("PMC"), impugned four purported Notifications, through which the Government of Sindh had essentially sought to reduce the passing marks of the Medical and Dental Colleges Admission Test ("MDCAT") from 65% to 50% for the admission session 2021-22 for the candidates of the Province

Held, that power must be exercised only with appropriate lawful authority

No executive authority can take any executive action without the backing and support of a valid law, else such exercise will be void and liable to be struck down as such

Impugned Notifications were issued in a legal vacuum with such reckless abandon

As per the criteria set for admissions, the weightage attached to the MDCAT score was 50% whereas the weightage of the HSSC/FSC and SSC/Matric or Equivalent were 40% and 10% respectively

Therefore, if the arbitrary measure seeking to supplant the standard of the PMC with the lesser one of the Provincial Government were allowed to sustain, it would enable candidates scoring between the range of 50% to 64.99% in the MDCAT, who otherwise would not have qualified, to nonetheless be considered for admission

That, in turn, would give rise to the prospect and likelihood of distortion of the eventual admission results to the detriment of those who had attained the higher standard set by the PMC, so as to deprive them of their due right to admission

For this reason too, the impugned Notifications could not stand

Constitutional petition was allowed.

Order upheld up the High Court and Supreme Court challenged in separate proceedings by way of a Constitutional petition before the High Court

Legality and Constitutionality

Official in question had been a party to the proceedings before the High Court as well as the Supreme Court and to his knowledge, the order in question had been upheld by the Supreme Court, therefore he was not entitled, in any shape or form, to challenge the same order, in a devious and underhanded manner, by filing a Constitutional petition before the High Court

Said Official's actions in approaching the High Court in a fresh Constitutional petition, despite being party to the earlier proceedings throughout, and being represented up to the Supreme Court, was an attempt to undo and circumvent the orders of the Supreme Court, which could not be countenanced

No court in the country had the jurisdiction to interfere with and undermine the authority of the Supreme Court

Official filed the Constitutional petition in clear violation of the principles of res judicata enshrined in S. 11 of the C.P.C. and Art. 189 of the Constitution

Order passed by the High Court in the Constitutional petition was, thus, a nullity being coram non judice.

Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, provided that "distribution company shall pay to the Federal Government such surcharge as the Federal Government, from time to time, notify in respect of each unit of electric power sold to the consumers..."

Said section did not specify the design and nature of surcharge to be imposed on the sale of the electric power; it also failed to provide legislative parameters or guidelines or legislative policy for determining the amount and nature of surcharge or the number of surcharges to be levied

Legislature has left it to the discretion of the Executive to decide what it wanted to recover and how

Power vested in the hands of the Executive (under S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997) was unguided and uncontrolled

Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, delegated an essential legislative function to the Executive which was not permissible under the Constitution

Foundations of excessive delegation owed its genesis to the doctrine of separation of powers, which was a fundamental principle of constitutional construct-Section 31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, simply opened an unguided window and empowered the Executive to assume legislative responsibility, which offended separation of powers and fell within excessive delegation

Such unguided and unstructured delegation empowered the Executive with a power which was ex-facie discriminatory and hence not permissible under the Constitution-High Court declared S.31(5) of the Regulation of Generation, Transmission and Distribution of Electric Power Act, 1997, and the impugned surcharges namely; Equalization Surcharge, Debt Servicing Surcharge, Universal Obligation Fund Surcharge and Neelum Jhelum Surcharge levied from time to time through impugned notifications, as unconstitutional and hence set-aside the same, and that the Federal Government by charging unconstitutional and illegal surcharges from the consumers of electricity had been unjustly enriched

High Court directed that the Federal Government should refund the amount of surcharges illegally extracted from the consumers; that NEPRA should work out the total amount of surcharges collected from the end consumers to date and evolve a plan for the repayment of the said amount through adjustment in tariff for the benefit of the end consumer

Intra-court appeal was allowed accordingly.

Petitioners had challenged the imposition of "equalization surcharge" in their electricity bills by the Federal Government

Held, "equalization surcharge" attempted to reduce the effect of the financial impact of the subsidy granted (on electricity) by the Federal Government

Federal Government first granted subsidy and then 'sought to reduce the financial impact thereof by imposing the "equalization surcharge", therefore, it would not be correct to categorize the equalization surcharge as an additional imposition (in the electricity bills)

By imposition of "equalization surcharge", Electric Supply Company did not seek to recover anything beyond the cost of electricity consumed by the petitioners/consumers

­Equalization surcharge was neither illegal nor unconstitutional

High Court directed that Electric Supply Company may recover the "equalization surcharge" from consumers in twelve equal monthly installments-Constitutional petition was dismissed accordingly.