The case involves a challenge to Regulation 4(7)(b) of the Pakistan Medical and Dental Council (PMDC) Regulation 2023, regarding admission quotas for overseas Pakistani students.
 |
The case involves a challenge to Regulation 4(7)(b) of the Pakistan Medical and Dental Council (PMDC) Regulation 2023, regarding admission quotas for overseas Pakistani students.The case involves a challenge to Regulation 4(7)(b) of the Pakistan Medical and Dental Council (PMDC) Regulation 2023, regarding admission quotas for overseas Pakistani students
The petitioner sought to strike down the regulation, alleging it discriminated against Pakistani citizens residing in certain countries. However, the court found that the regulation did not discriminate and upheld its legality. The petitioner failed to demonstrate foreign residency at the time of application, a prerequisite for admission under the foreign quota. The court emphasized that the regulation was not discriminatory and dismissed the petition.
اس کیس میں پاکستان میڈیکل اینڈ ڈینٹل کونسل (PMDC) ریگولیشن 2023 کے ریگولیشن 4(7)(b) کو چیلنج کیا گیا ہے، جو بیرون ملک مقیم پاکستانی طلباء کے داخلے کے کوٹے سے متعلق ہے۔ درخواست گزار نے ریگولیشن کو ختم کرنے کی کوشش کی، یہ الزام لگاتے ہوئے کہ یہ بعض ممالک میں مقیم پاکستانی شہریوں کے ساتھ امتیازی سلوک کرتا ہے۔ تاہم، عدالت نے پایا کہ ضابطے نے امتیازی سلوک نہیں کیا اور اس کی قانونی حیثیت کو برقرار رکھا۔ درخواست گزار درخواست کے وقت غیر ملکی رہائش کو ثابت کرنے میں ناکام رہا، غیر ملکی کوٹہ کے تحت داخلے کی شرط۔ عدالت نے اس بات پر زور دیا کہ ضابطہ امتیازی نہیں ہے اور درخواست کو خارج کر دیا۔
HCJDA 38.
Judgment Sheet
IN THE LAHORE HIGH COURT,
MULTAN BENCH, MULTAN
JUDICIAL DEPARTMENT
….
W.P. No. 73273/2023
Muhammad Abdullah Abrar Syed, etc.
Versus
Pakistan Medical and Dental Council, etc.
JUDGMENT
Date of hearing:
03.04.2024.
Petitioner by:
Barrister Syeda Maqsooma Zahra
Bukhari, Iqra Liaqat and Anum Tariq,
Advocates.
Respondents by:
M/s Barrister Haris Azmat, Maryam
Hayat and Hassnain, Advocates for
PMDC.
Ch. Imtiaz Elahi, Deputy Attorney
General for Pakistan.
Rana Muhammad Ansar, Advocate for
UHS.
Mr. Tahir Yasin, Law Officer.
Mr. Imran Muhammad Sarwar,
Advocate for UHS.
ASIM HAFEEZ, J.
Petitioner seeks relief in following terms,
“It is prayed most humbly and respectfully that this Hon‟ble Court may be
pleased to strike down and declare that the impugned Regulation 4(7)(b) of the
PMDC Regulation 2023 as illegal, unlawful, ultra vires, un constitutional and
contradictory to Regulation No.2(f) as well as previous Regulations and
legislations defining „Overseas Pakistanis‟, in order to qualify for „overseas
Pakistani quota‟ in the MBBS admission which in fact violate their fundamental
rights of the persons such as the petitioner enshrined under Article 4, 9, 25 and
25-A of the Constitution of the Islamic Republic of Pakistan, and it is further
prayed that this honorable court may direct the Respondents to accept the
petitioner and other students like him in their overseas quota for the admission
in 2023”
2.
Precise grievance against regulation 4(7)(b) of Medical and Dental
Undergraduate Education (Admissions, Curriculum and Conduct) policy and
Regulations 2023, (‘impugned regulation’) is that the requirement of being, „….
W.P. No.73273/2023.
2
a resident of foreign country at the time of applying for admission…….‟ is
specifically directed against Pakistani citizens, residing in Middle Eastern
Countries and Kingdom of Saudi Arabia, which countries incidentally do not
extend nationality or permanent residency to the residents therein. It is alleged
that impugned regulation extends preference to the nationality holders of
European and North American countries. Adds that definition of „overseas
Pakistanis‟ is subject to frequent changes, in quick succession, on annul basis,
which expression and application thereof is otherwise contrary to the expression
defined in other Statutes, dealing with citizenship and registration matters. Adds
that impugned regulation contradicts regulation 2 (f) of Medical and Dental
Undergraduate Education (Admissions, Curriculum and Conduct) Policy and
Regulations 2023 (‘Regulations 2023’), wherein no requirement of being a
resident of foreign country at the time of application for admission was indicated.
Elaborates that petitioner stayed, studied and completed education till 12th Grade
at Saudi Arabia and equivalence certificate affirmed petitioner‟s residency at
Saudi Arabia. Refers to report / para-wise comments submitted in proceedings,
subject matter of W.P No.1682/2017 to emphasize that representation made is
contrary to the mandate of impugned regulation. Lastly submits that requirement
of being physically present in a foreign country at the time of submitting
application is absurd and irrational condition, which was not endorsed otherwise
by this Court while deciding Intra Court Appeal bearing ICA No.62074/2019.
3.
Conversely, learned counsel appearing for PMDC submits that admissions
are regulated by the Commission and changes are introduced where found
necessary to check and control potential misuse of foreign student‟s quota. Adds
that no discrimination is intended towards Middle Eastern Countries. Explained
that petitioner is not a foreign resident, who wants admission on foreign student
quota, instead of contesting on open merit. Submits that judicial review
jurisdiction is not available or exercisable to interfere in the policy domain or to
assess rationality and plausibility of impugned regulation, drafted in exercise of
powers conferred under parent enactment. Relies upon judgments reported as
“SUNDAS and others. Vs. KHYBER MEDICAL UNIVERSITY through V.C. Peshawar and
W.P. No.73273/2023.
3
others.” (2024 SCMR 46), “AINA HAYA. VS. PRINCIPAL PESHAWAR MODEL GIRLS HIGH
SCHOOL-1, PESHAWAR and others” (2023 SCMR 198) and “YASIR NAWAZ and others. Vs.
HIGHER EDUCATION COMMISSION AND OTHERS” (PLD 2021 SC 745). Adds that
comparison with definition of overseas Pakistanis under other laws is misdirected,
and principle of pari materia legislation is not attracted. Further submits
Constitutional petition bearing W.P. No. 5750/2020 was declared infructuous
upon promulgation of new enactment and no affirmative declaration was made
with reference to Regulation 8(2) of MBBS and BDS (Admissions, House Job
and Internship) Regulations, 2018 (as amended on 30th May 2019) (Regulations
2019). Submits that facts of the case, subject matter of I.C.A No. 62074/2019, are
distinguishable and otherwise having no precedential value in the context of
present proceedings.
4.
Heard. Record Perused.
Regulation 8(2) of Regulations 2019 bears semblance / proximity with the
impugned regulation. No decision has been cited to show that regulation 8(2),
ibid, was declared void and of no legal effect on the premise of being contrary to
the parent statute or otherwise. Challenge to the constitutionality of impugned
regulation is therefore adjudged hereunder.
5.
It is essential to understand the position of the petitioner vis-à-vis the
grievance agitated and discrimination pleaded. While examining correspondence
addressed by the petitioner to the President of Pakistan Medical Commission,
dated December 04, 2019 – Subject: Complaint against Foreign Residency
Requirements at the time of admission to MBBS – petitioner admits being residing
in Pakistan, who acknowledged that he was not a foreign resident at the time of
applying for MBBS in Pakistan. This particular stand disentitle petitioner from
claiming admission under foreign seats quota („designated reserved seats‟).
W.P. No.73273/2023.
4
Advertisement for admission for the session 2023-24 required submission of
Iqama or residence permits green card or foreign passport, to substantiate
candidate‟s foreign residency at the time of submission of application. Petitioner
possessed none of the mentioned documents, hence, same is suffering from
inherent deficiency for the purposes of seeking admission against reserved seats.
6.
Now I turn to examine challenge to the vires of the impugned regulation, in
the context of discriminatory treatment towards Pakistani citizens, being residents
of Middle Eastern Countries and Saudi Arabia. To contextualize the context, it is
appropriate to state impugned regulation, 4(7)(b) of Regulations 2023, which
reads as;
(7) Self-finance and foreign quota seats. – (a) All medical and dental institutions may
admit students on foreign seats quota upon fifteen percent of their total annual seats
allocated by the Council purely on merit.
(b)
No candidate shall be eligible for foreign quota seat in the public
and private medical and dental institutions under sub regulations (a)
unless, he holds a permanent foreign nationality or is an overseas (being
a Pakistani citizen permanently resident in a foreign country) Pakistani,
and who has studied and passed HSSC 12th grade examination or
equivalent from outside Pakistan and is a resident of a foreign country
at the time of applying for admission and possess a certificate from the
institution last attended to this effect.
[Emphasis supplied]
7.
I have examined the impugned regulation and do not find any particular
disadvantage / exclusion directed towards Pakistani citizens, being resident(s) of
Middle Eastern Countries or Saudi Arabia, for the purposes of present
controversy. One of the conditions precedent for self-finance and foreign quota
seats is that candidate must be a resident of foreign country, at the time of
applying for admission - this key-phrase has to be read in the context of the
documents ought to be provided by Pakistani students residing abroad and foreign
candidates applying for the reserved seats – details of documents are mentioned
in the advertisement which inter alia included Iqama or Residence permit or
W.P. No.73273/2023.
5
green card of Foreign passport. It is evident that candidate(s) seeking admission
against foreign seats quota must specify residency of a foreign country, at the
time of making application. Physical presence of prospective candidate in
Pakistan, at the time of making of application, is not a pre-requisite but what is
required is that candidate should be the permanent resident of a foreign country,
at the time of making application for admission. Notwithstanding, candidate‟s
physical presence in Pakistan at the time of making application real test is
whether same possess any of the documents, showing residency of a foreign
country –– class of documents required are mentioned in the advertisement.
Hypothetically speaking, a candidate, physically present in Pakistan and holding
Overseas Identity Card, for taking care of ailing parents, can still apply for
admission against foreign seat quota, provided same had a valid residency of a
foreign country, at the time of making application. There is another illustration. If
prospective candidate, having Iqama – [residency of UAE] - is on vacation in
United States, he can apply for admission against foreign seat quota provided he
possessed and submitted copy of valid Iqama along the application. A prospective
candidate may not be physically present in UAE - country of Iqama - but if he is a
resident of a foreign country, at the time of applying for admission, he is eligible
to apply. An invalid or ineffective Iqama does not entitle said candidate to seek a
reserved seat. Petitioner misconstrued the scope of the impugned regulation, who
may be physical present in Pakistan but failed to show that he was resident of a
foreign country, at the time of making of the application. Conversely, petitioner
admits its status as Pakistani citizen, and not being resident of foreign country.
Some material facts / dates need particular mention. Petitioner filed instant this
constitutional petition and provided CNIC, issued on 16.02.20214 with expiry of
W.P. No.73273/2023.
6
16.02.2021 – showing stay of petitioner in Pakistan. Petitioner provided copy of
NICOP, wherein country of stay was Saudi Arabia, which card was valid till
14.10.2020. Petitioner also provided copy of National Identity Card, issued on
16.01.2020 with expiry of 16.01.2030, wherein country of stay was Canada –
mere stay in Canada, in absence of proof of foreign residency, in terms of the
documents mentioned in advertisement, is not enough to meet the requirements.
Petitioner had no claimed that his stay at Canada meets the requirement of a
resident of a foreign country at the time of applying for admission. Petitioner fails,
hence, not eligible to be considered for admission against reserved seats, who can
otherwise compete with the class of Pakistani Student on merits.
8.
Upon perusal of sections 10 and 12 of National DATABASE AND
REGISTRATION AUTHORITY ORDINANCE, 2000 it is evident that National
Identity Cards are issued to the citizens and Overseas identity cards are issued to
a class of citizens resident abroad. Petitioner has not claimed foreign residency.
No contradiction is otherwise pointed between impugned regulation and other
relevant statutes.
9.
No contradiction is found in regulation 2(f) and impugned regulation. One
must not lose sight of regulation 2(g), which defines foreign student. In view of
the aforesaid petitioner, for all intent and purposes, is a Pakistani student, eligible
to compete on general seats on merits, but ineligible for admission on reserved
seats. Petitioner seeks advantage of his stay in Saudi Arabia, and time spent there
in acquiring HSSC (12th grade) without fulfilling the requirement of an “Overseas
Pakistani” (being a Pakistani citizen permanently resident in foreign country). No
case of any discrimination or exclusion of any particular foreign country is
plausibly made out. In recent years a sinister practice has developed that a person,
W.P. No.73273/2023.
7
who does not meet the requirements of any rule, throws challenge to the
constitutionality of disadvantageous rule. This calls for disapproval. In absence of
any defect in the constitutionality of impugned regulation, this Court finds no
reason to judicially review the plausibility, rational and foundational basis for
criterion for admission against foreign seat quota. No arbitrariness or perversity is
found in exercise of discretion. The legality of regulations 8(2) of Regulations,
2019 was not adjudged by way of judicial scrutiny – W.P No.5750 of 2020 was
disposed of being infructuous. Argument that some concession, apparently, is
available in terms of para-wise comments submitted in W.P No.1682/2017, is
misconceived. Effect has to be given to the statement contained in delegated
legislative instrument, instead of construing any concession in para-wise
comments. Decision in ICA No.62074/2019 is not attracted. No case of
discrimination or discriminatory application of impugned regulation is made out.
10. Challenge to the legality / constitutionality of impugned regulation is
rejected. This petition fails on merits. No order as to the costs.
(Asim Hafeez)
Judge
Approved for reporting.
Jud
Comments
Post a Comment