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October 17, 2020

High court orders suspending tests for admissions to medical institutions in Sindh

Karachi

October 17, 2020

The Sindh High Court (SHC) on Friday ordered that the admission tests for medical and dental colleges and universities in the province, scheduled to be held on October 18, shall be postponed till further court orders.

The interim order came on petitions filed by the Peoples University for Medical and Health Sciences for Women (PUMHSW), four other medical universities of the province and some students with regard to vires of the Section 18 of the Pakistan Medical Commission (PMC) Act, 2020, under which a national medical authority was constituted to conduct medical and dental colleges and universities’ admission tests anywhere in the country.

The counsel for the public sector medical and health sciences universities argued that the Section 18 of the PMC Act, 2020 was ultra vires and the commission had no right to regulate the entry test and nor it had any jurisdiction to stop the entry test being conducted by the admitting university on October 18.

He submitted that the PMC admission regulations 2020-2021 framed by the council under the 2020 law had been issued without any lawful authority and had no legal effect. He averred that the notification issued by the federal ministry of health and the PMC on September 24 for withholding the admission process initiated by the PUMHSW was ultra vires.

The counsel sought permission of the court to allow the admitting university to continue the admission process and the entry test to be held on October 18 as after the promulgation of the 18th amendment, education had become a provincial subject.

Contrary to the medical universities’ petition, some pre-medical students sought the declaration that the entry test being conducted by the provincial admission committee on October 18 as per the Pakistan Medical & Dental Council (PMDC) admissions regulations was without the lawful authority mainly for the reason that the admission process initiated under the 2020 regulations framed under the PMDC Ordinance, 1962, had already been repealed by the PMC Act of 2020.

The students’ counsel referred to the Section 50 of the PMC Act, 2020 in which it was clearly provided that subject to the Section 6 of the General Clauses, Act, the Pakistan Medical & Dental Council Ordinance, 1962, was repealed.

He submitted that a proviso attached to the sub-section (2) clearly explicated that all the regulations made and promulgated pursuant to the repealed ordinance or the Pakistan Medical and Dental Council Ordinance, 2019, stood repealed and shall not be enforceable subject to the sub-section (6), whereas, the sub-section (6) provided that all the registrations, recognitions, etc. granted by the dissolved PMDC under the repealed ordinance shall be deemed to be the registrations, recognitions granted by the PMC subject to not being in conflict with the Act of 2020.

The counsel for the PMC and federal and provincial law officers sought time to file comments within three days.

A division bench of the SHC headed by Justice Mohammad Ali Mazhar observed that the bone of contention between the petitioners was the alleged vires of the Section 18 of the PMC Act, 2020 that provided that the national medical authority would conduct medical and dental colleges admissions tests (MDCAT) annually as per standards approved by the board and that test shall be a mandatory requirement for all the students seeking admissions to medical or dental under-graduate programmes anywhere in Pakistan.

The high court observed that admittedly, the Act of 2020 had been notified on September 24 and the first petition to challenge the law had been presented on October 10 while the entry test was scheduled to be convened on October 18.

The SHC observed that it was admitted that the PMDC Ordinance, 1962, had been repealed and the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2020, were also repealed though the counsel for the universities argued that the regulations of 2020 were protected despite the repealing the parent law.

The high court observed that it was a well-settled exposition of law that the validly legislated law remained in field unless it was struck down but the operation of the law could not be suspended as an interim measure. The bench observed that under the 2020 Act, a national medical authority had been established to conduct a single admissions test being a mandatory requirement for all the students seeking admissions to medical or dental undergraduate programmes anywhere in Pakistan with a further rider that no student shall be awarded a medical or dental degree in Pakistan who had not passed the MDCAT (Medical and Dental College Admission Test) prior to obtaining admission to a medical or dental college in the country.

The SHC observed that letters of law was clear that no provincial testing committee could conduct any entry test under the new law.

The counsel for the universities as well as an additional advocate general Sindh made a joint request that they may be allowed to conduct the entry test subject to the final outcome of the petitions; whereas, the counsel for the students also raised a plea that since MDCAT was now to be taken by the PMC, many students had not applied in the entry test of the PUMHSW mainly for the reason that they would take the MDCAT conducted by the PMC.

The SHC observed that the grounds raised by the universities with regard to the vires of the law required attention and consideration but if at this stage, the entry test was allowed to be conducted by the university, it would have serious repercussions and it would also create multiplicity of proceedings, hardship and uncertainty.

The high court observed that in order to protect and safeguard the interest of all such students, it would be in the interest of justice to defer the entry test rather than allowing it on October 18.

The SHC directed the federal and provincial governments law officers, PMC and others to file comments by October 22 and in the meantime, the bench ordered the admitting university as an interim measure to postpone the entry test which was scheduled to be held on October 18 till further orders of the court.