ISLAMABAD: The Supreme Court on Tuesday disposed of the suo moto regarding grant of additional 20 marks to Hafiz-e-Quran to get admission in MBBS/ BDS Degree under Regulation 9 (9) of the MBBS and BDS (Admission House Job and Internship) Regulations, 2018.
A six-judge bench, headed by Justice Ijazul Ahsan, and comprising Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A Malik, and Justice Syed Hassan Azhar Rizvi on Tuesday heard the suo moto.
After the announcement of verdict on general elections by a three-judge bench, the SC Registrar fixed the suo moto for hearing at 02:00 p.m. (Tuesday) before a six-member bench, which disposed of the matter after hearing the PMDC lawyer.
Advocate Afnan Kundi, appearing on behalf of Pakistan Medical and Dental Council (PMDC), informed the policy to give additional 20 marks to the Hafiz-e-Quran has been changed and now no additional marks are being given. Justice Ijaz upon the submission of the PMDC counsel said “no live issue,” therefore, close the suo moto.
A three-judge bench, headed by Justice Qazi Faez Isa, and comprising Justice Amin-ud-Din Khan and Justice Shahid Waheed on March 29 with the majority of 2 to 1 held that hearing of all the cases under Article 184(3) of the Constitution be deferred until the changes are made in the Supreme Court Rules 1980 regarding the discretionary powers of the Chief Justice of Pakistan to form benches.
The order said neither Constitution nor the rules give CJP the power to make special benches or select judges who will be on these benches. “The rules do not grant any power to Registrar or to the Chief Justice to change the judge or judges on the Bench or to reduce their number,” said the order.
The order said the matter be postponed until the framing of SC rules. With regard to article 184(3) of the Constitution, the order said that there are three categories of cases. “Firstly, when a formal application seeking enforcement of Fundamental Rights is filed.
Secondly, when (suo motu) notice is taken by the Supreme Court or its Judges. And, thirdly cases of immense constitutional importance and significance (which may also be those in the first and second category). Order XXV of the Rules only attends to the first category of cases. There is no procedure prescribed for the second and third category of cases.
However, a three-judge which announced the judgment on the Punjab elections held that they “wholly unaffected by any observations made in the majority order.”
The six-judge order said: “We are in no manner of doubt that the order dated 15.03.2023 invokes suo motu jurisdiction of this Court and is therefore, clearly violative of the principles settled in a five member judgment of this Court recorded in SMC No.4 of 2021, which clearly and categorically lays down the rule that the suo motu jurisdiction of this Court can only and solely be invoked by the CJP.
The majority order also appears to be in violation of the well settled rule of law, which is axiomatic, that the Chief Justice is the master of the roster.
The order was; therefore, both without and beyond jurisdiction. “Therefore, we are respectfully of the view that the order dated 15.03.2023 passed by two members of the Bench was inoperative and ineffective when made, was such at all times thereafter and continues to remain so.”
It appears that the order was brought to the notice of the HCJP who was pleased to observe as follows: “The observations made in paras 11 to 22 and 26 to 28 of the majority judgment of two to one travel beyond the lis before the Court and invokes its suo motu jurisdiction.
The unilateral assumption of judicial power in such a manner violates the rule laid down by a five-member judgment of this Court reported as Enforcement of Fundamental Rights with regard to Independence of Press/Media (PLD 2022 SC 306).
Such power is to be invoked by the Chief Justice on the recommendation of an Hon’ble Judge or a Bench of the Court on the basis of criteria laid down in Article 184(3) of the Constitution.
The said majority judgment therefore disregards binding law laid down by a larger bench of the Court. Any observation made in the said judgment, inter alia, for the fixation or otherwise of cases is to be disregarded.
The order SC Registrar issued a Circular dated 31.03.2023 with copies endorsed to all concerned. “On perusal of the circular in question, we are of the view that the observations made by the CJP are unexceptionable and simply rectify an unwarranted assumption of jurisdiction and intrusion into, and interference with, powers that the principles laid down in the case law place firmly in the hands of the Chief Justice alone.
“We accordingly affirm the observations of the CJP as incorporated in the Circular and the directions issued therein. In view of the foregoing, the interim order dated 15.03.2023 (released on 29.03.2023) is recalled.”
In view of the stance taken by the PM&DC in their report and as submitted by their counsel on instructions that the MBBS and BDS (Admissions, Examinations, House Job or Internship) Regulations, 2018 and amended in 2019 which allowed grant of 20 additional marks for Hafiz-e-Quran for admission in Medical and Dental Colleges are not in force and the current Regulations namely Medical and Dental Undergraduate Education (Admissions, Curriculum and Conduct) Regulations, 2021 do not grant any additional marks to students who are Hafiz e Quran, no further proceedings in this suo motu case are required. The SMC is accordingly disposed of as having been infructuous.
Copyright Business Recorder, 2023