1998 PLP 2701 (SCMR)

AJMAL MIAN, C.J.

By this common judgment, we intend to dispose of above Civil Appeals as they inter alia involve a common point of law, namely, whether the Inter-Board Committee of Chairmen (hereinafter referred to as the I.B.C.C.) constituted under the Federal Supervision of Curricula, Textbooks and Maintenance of Standards of Education Act, 1976 (Act X of 1976), hereinafter referred to as the Act, is competent to issue equivalence certificates/marks certificates or the Provincial Boards for Admission in Medical Colleges.

2. Civil Appeal No.791 of 1998 has been filed with the leave of this Court against the judgment dated 3-6-1997 passed by a Division Bench of the Peshawar High Court in Writ Petition No. 1433 of 1996, filed by respondent No. I , allowing the same by holding that the conversion of marks done by the I.B.C.C. was valid and respondent No. l be admitted as a regular student in First Year M.B.B.S, Civil Appeals Nos.795 of 1998, 796 of 1998, 798 of 1998 and 799 of 1998 have arisen out of the judgment dated 2-3-1998 of the Lahore High Court passed in Writ Petition No.521 of 1998, filed by one Sheikh Hasan Shaharyar, in which it was held that the Admission Committee was to grant admission in the medical colleges on the basis of Prospectus issued by the Government of Punjab. Whereas the aforementioned other appeals have been filed against a common judgment dated 25-3-1998 passed by a Division Bench of the Lahore High Court in 18 writ petitions mentioned in para. I of the Judgment under appeal, in which inter alia the following has been held:-- (i) That the formula adopted for conversion of 'A' Leval to F.Sc. marks prescribed in Appendix-II clause (i) appears to be just and fair; (ii) that the equivalence formula laid down in the prospectus in relation to American System of Education is unfair, unrealistic and without any foundation; (iii) that the quota system for the physically handicapped and the candidates from FATA who got their education in the backward areas is legal but the seats reserved for doctors' children and for others are unconstitutional in view of the judgment of this Court in the case of Mushtaq Ahmad Mohal and others v. The Honourable Lahore High Court, Lahore and others (1997 SCMR 1043); and (iv) that though the question, as to whether I.B.C.C. is competent to issue the equivalence certificates/marks certificates, has not been dilated upon in detail but it has been impliedly held that it has no power by holding that the formula provided for conversion of ' A' Level to F.Sc. (Pre-Medical) marks in the Prospectus Appendix-11 clause (i) is just and fair.

3. Leave to appeal was granted to consider, as to whether the I.B.C.C. was legally competent to issue equivalence certificates converting the Grades of the students into marks for the purpose of granting admission to them in the medical colleges or that the formula evolved by the medical colleges as mentioned in their Prospectus was to determine the entitlement of the students to secure admission in the medical colleges. It was also ordered that in the meanwhile the cases of each student, who were parties to the Civil Petitions for Leave to Appeal mentioned in the leave granting order dated 29-4-1998, shall be decided on merit keeping in view the equivalence certificates issued by the I.B.C.C. and they shall be given provisional admissions subject to their coming up to the criteria laid down by it.

4. The brief facts are that the appellants in all the aforesaid Civil Appeals had not passed their F.Sc. (Pre-Medical) Examination from any Board of Intermediate and Secondary Education in Pakistan but had passed G.C.S.E., 'A' ' level/Higher Senior Cambridge from U.K. or from Higher Secondary School or Intermediate College U.S.A. Respondent No. l in Civil Appeal No.791 of 1998, who had passed her G.C.S.E., G.C.E. and 'A' Level from U.K., applied for admission in Ayub Medical College, Abbottabad, on the basis of equivalence marks certificate issued by the I.B.C.C. but the same was not accepted and she was declined admission in the aforesaid medical college on the basis of its Prospectus. Thereupon, she filed Writ Petition No.1433 of 1.996 in the Peshawar High Court, which was allowed in the aforesaid terms. It appears that one Sheikh Hassan Shahryar, who qualified his ' O' Level from Crescent Model Higher Secondary School, Lahore, and had approached King Edward Medical College for admission, filed Writ Petition No.521 of 1998 for the following reliefs:-- "Under the circumstances aforementioned, it is most respectfully prayed that the decision of the 1.B.C.C., respondent No.3 of enhancing the marks be declared illegal, void ab initio, arbitrary against law and equity, a nullity in the eye of law, of no legal effect qua the rights of the petitioner and the same be struck down. It is further prayed that the merit list be made/prepared in accordance with the previous formula for students having qualified ' A' Level and not according to the revised formula of respondent No.2 in the 75th meeting. It is prayed that the respondents be directed to revise the formula and allocated same percentage marks to ' O' /' A' Level students as being allocated to the students of B:I.S.E.'s. of Pakistan. It is also prayed that the respondents be directed riot to enhance the marks of students and display the merit list, till the disposal of the titled petition. Cost and any other relief which this Hon'ble Court deems fit may also be granted." The above writ petition was disposed of by the aforementioned judgment dated 2-3-1998 (which is the subject-matter of Civil Appeals Nos.795, 796, 798 and 799 of 1998). The appellants in the above appeals were not impleaded as parties in the aforesaid writ petition but they are affected by the judgment under appeal. Civil Appeals Nos.792, 793, 794 and 797 of 1998 have arisen out c, Writ Petitions Nos.2384 of 1998, 2722 of 1998, 3187 of 1998 and 521/98, which were filed by the present appellants and which were disposed of by the aforesaid common judgment dated 25-3-1998. Civil Appeals Nos.771 of 1998 and 878 of 1998 have been filed by Miss Mobeen Sheikh and Shaun Ilahi, respectively, against the aforementioned judgment dated 25-3-1998, who were not parties in the Writ Petition before the High Court.

5. The plea of all the above appellants is that the I.B.C.C. is the competent authority to issue Equivalence Certificates/marks certificates and not the Provincial Admission Board of Medical Colleges.

6. In support of Civil Appeal No.791 of 1998 Mr. Saeed Baig, learned Sr.A.S.C. appearing for the appellant, has vehemently contended that the I.B.C.C. has no authority ' under the Act to issue the equivalence certificates/marks certificates in respect of G.C.S.E and G.C.E. but the Admission Board of Medical Colleges has the requisite power. To reinforce the above submission he has referred inter alia to letters received from King Edward Medical College, Lahore, and Dow Medical College, Karachi, to demonstrate that not only in the Province of N.-W.F.P. the Admission Board of Medical Colleges provides for conversion in the Prospectus but also in the other Provinces. On the other hand, Qazi Muhammad Anwar, learned A.S.C. appearing for respondent No. 1, has urged that under the Act the only competent Authority to issue equivalence certificates/marks certificates is the I.B.C.C. Mr. Abdul Karim Kundi, learned A.S.C. who has appeared on behalf of I.B.C.C., has joined Qazi Muhammad Anwar in the above submission and has invited our attention to the relevant provisions of the Act, relevant notifications and Resolutions on the subject. M/s. Raja Muhammad Bashir and A.K. Dogar, learned counsel appearing for the appellants in the above appeals except Civil Appeal No.791 of 1998, have supported the above submission of M/s. Qazi Muhammad Anwar and Abdul Karim Kundi. They have also pointed out that their clients were condemned unheared that the High Court had no jurisdiction to hold that the equivalence formula laid down in the Prospectus relating to American System of Education was unfair, unrealistic and without any foundation. Miss Yasmin Saigol, learned Additional Advocate-General, .Punjab appearing on behalf of the Government of Punjab, has submitted that since education is covered by Item No.38 of the Concurrent Legislative List, the provincial Government has also power to frame the Prospectus and to provide formula for equivalence certificate. However, after examining Item No. 17 of the Federal Legislative List and hearing arguments of the learned counsel for the parties, she candidly conceded that the I.B.C.C. had the jurisdiction in the matter.

7. In Civil Appeal No.791 of 1998, today we passed the following short order:-- "For the reasons to be recorded later on, the aforesaid appeal is dismissed with no order as to costs and the judgment of the Peshawar High Court is maintained." Whereas in the above remaining appeals we passed the following short order:-- "For the reasons to be recorded later on, the impugned judgment of the Lahore High Court is modified to the extent that:-- (i) the competent authority to issue equivalence certificates/marks certificates is the I.B.C.C. constituted pursuant to Act No.X of 1976 (Federal Supervision of Curricula, Textbooks and Maintenance of Standards of Education Act, 1976) and not Provincial Medical College Board; . (ii) the finding of the High Court that the American System of Education appears unrealistic and without any foundation and the formula adopted in respect thereof is also unjust, is set aside. It is held that it is not for the High Court to decide the above question but it is within the domain of the I.B.C.C , (iii) the appellants/the candidates who have been granted admission in the medical colleges on the bass of interlocutory orders passed by this Court will continue their studies provided they come within the merits laid down as per formula adopted by I.B.C.C.; and (iv) the other questions of law decided in the impugned judgment of the High Court relating to quota system etc. will be decided in the appeals which have been adjourned for hearing for want of paper books. (2) The aforesaid appeals stand disposed of in the above terms with no order as to costs."

8. The basic question involved in the instant cases is as to the competency of issuance of equivalence certificates/marks certificates in respect of above foreign qualification. In this regard, it may be pertinent to reproduce Preamble and section 3 of the Act, which read as under: Preamble of the Act: "Whereas it is necessary to provide for the building up of national cohesion by promoting social and cultural harmony, and designing curricula relevant to the nation's changing social and enconomic needs, compatible with the basic national ideology and providing massive shift from general education to more purposeful agro-technical education; and to make provision for Federal Supervision of Curricula, Textbooks for various classes and maintenance of standards of education; " Section 3 of the Act: "

3. Appointment and duties of Competent Authority.

(11 The Federal Government may, by notification in the official Gazette, appoint one or more Competent Authorities for carrying out the purposes of this Act. (2) The Competent Authority may, for carrying out the purposes of this Act,-- (a) prepare or cause to be prepared schemes of studies, curricula, manuscripts of textbooks and schedules or strategy for their introduction in various classes of an institution in connection with the implementation of the education policy of the Federal Government; (b) approve manuscripts of textbooks produced by other agencies before they are specified in various classes of an institution; and (c) direct any person or agency in writing to delete, amend or withdraw any portion, or the whole, of the curriculum, textbook or reference material prescribed for any class of an institution within a period specified in such directive. (3) Action on the directive of the Competent Authority under clause (c) of subsection (2) shall be taken as soon as possible by the person or agency and an implementation report shall be submitted to the Competent Authority within such period as may be laid down in the directive. " A perusal of the above-quoted Preamble indicates .that the object of the Act was to provide for the building up of national cohesion by promoting social and cultural harmony, and designing curricula relevant to the nation's changing social and economic needs, compatible with the basic national ideology and providing massive shift from general education to more purposeful agro technical education; and to make provisions for Federal Supervision of Curricula, Textbooks for various classes and maintenance of standards of education. It may be noticed that under subsection (2) of the section 3 of the Act the Federal Government has been empowered to appoint one or more Competent Authorities for carrying out the purposes of the Act. Whereas under subsection (2l thereof it has been laid down that the Competent Authority may, for carrying out the purposes of the Act, inter alias-- (a) prepare or cause to be prepared schemes of studies, curricula, manuscripts of textbooks and scheduling or strategy for their introduction in various classes of an institution in connection with the implementation of the education policy of the Federal Government. It is not necessary to repeat what has been provided in the aforequoted sub clauses (b) and (c) of subsection (2) of the aforesaid section.

9. It may be observed that pursuant to the above provisions, it seems that the Federal Government issued a Notification bearing No.D.773/76-JEA (CW) dated 4 12-1976. After that it issued another Notification No.5-5/F.90 JEA(CW) dated 22-4-1990 with reference to the aforesaid earlier notification, appointing the I.B.C.C. to be the Competent Authority for determining of equivalences of Certificates/Diplomas up to Higher Secondary level. The above notification reads as follows:-- "NOTIFICATION No.F.5-5/90-JEA(CW).--In exercise of the powers conferred by the subsection (1) of section 3 of the "Federal Supervision of Curricula, Textbooks and Maintenance of Standards of Education Act, 1976 read with Notification No.D.773/76-JEA(CW), dated 4th December, 1976, the Federal Government is further pleased to appoint the Inter-Board Committee of Chairmen (I.B.C.C.) to be the Competent Authority for determining of equivalences of Certificates/Diplomas up to Higher Secondary level."

10. It may also not be out of context to mention that by Resolution No.F.10-I1/86-CEI, dated 30-6-1987, it was resolved to establish the I.B.C.C. under the Federal Ministry of Education. The above Resolution contains the aims and objectives and working of the I.B.C.C. It will be advantageous to reproduce page 1 of the aforesaid Resolution (Full Resolution runs into 7 pages and it is at pages 34 to 40 of the file of Civil Appeal No.792 of 1998), which reads as under:-- "RESOLUTION Subject: ESTABLISHMENT OF INTER-BOARD COMMITTEE OF CHAIRMEN. Whereas the Government of Pakistan had decided to establish Inter Board Committee of Chairmen under the Federal Ministry of Education with its aim and objectives as:-- The 'aims and objects of the Committee shall be-- (a) .to exchange information among the member Boards on all aspects of Intermediate and Secondary Education; (b) to achieve a fair measure of uniformity of academic evaluation and curricular standards; (c) to promote curricular and extra-curricular activities on Inter-Board basis; (d) to serve as a forum of discussion and consultation for the chief executives of the Boards on all matters relating to the development and promotion of Intermediate and Secondary Education, and to make suitable recommendations to the Government; (e) to advise on and facilitate the exchange of teachers and students; and to perform such other functions as may be incidental or conducive to the attainment of the above objectives. And whereas the Government decision contemplates the setting up of an autonomous Inter-Board Committee of the Chairmen to be responsible for keeping co-ordination with all the Board of Education in Pakistan and other educational organizations. Now, therefore, Federal Government is pleased to issue the following Resolution:--

1. Preliminary. This Resolution may be called Inter Board Committee of Chairmen Resolution, 1987."

11. It may be pertinent to point out that the I.B.C.C. comprises inter alia the Chairmen of the Boards of Intermediate and Secondary Education of the four Federating Units/Provinces. It, pursuant to the above Resolution and the notifications has been evolving formula for translating Grades or the marks of. the foreign qualifications into the marks of F.Sc. (Pre-Medical). The latest on the subject is of 4-11-1996 which was evolved in the 75th meeting of the I.B.C.C. The relevant item reads as under:-- "Item No.570: REVISED CONVERSION FORMULA OF GCEO' AND A' LEVEL (I.B.C.C./G.C.E.). Resolution: On the recommendation of 2-member Committee (Chairmen F.B.I.S.E. and B.I.S.E., Rawalpindi) it was resolved that conversion formula of G.C. E. ' O' and ' A' level be revised to remove disparity with US grading formula where the highest marks were 85% for A+ grade, The UK conversion would be made in the following way: GCE ' O' & A' Level SC Pak Marks IGCSE Pak Marks A. B. C. D. E. N. 1.2 3.4 5.6 7 8 - 85 75 65 55 45 35 A B C D E F G 85 75 65 50 45 40 35 In case the actual marks are available as the London University has recently started, and also in case of other systems, the conversion will be made on actual marks obtained by the student as letter grade (A, B, C, etc.) was only an average of scale of marks and did not show the actual position of the candidate in a subject. This decision will also apply to the previous cases."

12. Mr. Abdul Karim Kundi, besides relying upon the judgment of a Division Bench of the Peshawar High Court (which is the subject-matter of Civil Appeal No.791 of 1998), has also referred to an unreported judgment dated 22-9-1997 of a learned Single Judge of the Lahore High Court passed in Writ Petition No.38 of 1997, wherein it was held that the conversion of marks ~:)f the petitioner as worked out by the I.B.C.C. was valid and binding on the Admission Board of Medical Colleges. References has also been made by the learned counsel for the parties to the following cases:- (i) Daud Chaudhry v. Admission Board of Admissions to Medical Colleges through its Chairman (PLD 1984 Lahore 20); In the above case the petitioner, who had passed his High School Examination from the Warren Central High School, Indianapolis, Indiana, U.S.A., applied to the Principal of King Edward Medical College, Lahore, but he was declined admission as he did not pass the Intermediate Science Examination of a Board of Secondary Education, Punjab. The petitioner applied to the University of Punjab for issuing him an Equivalency Certificate as envisaged by paragraph 23 of the Prospectus of the Medical College, which was granted by the University and it was certified that he was eligible for admission to the M.B.,B.S. 1st Year Class, but the saMe was not accepted. He filed a writ petition, which was allowed by holding that the Equivalency Certificate issued by the Punjab University was binding on the medical college. (ii) Miss Faiza v. Government of Sindh and others (NLR 1989 UC 350); in which the petitioner, who has passed Ordinary Level and Advanced Level from University of Cambridge, which were held under the supervision of Karachi Grammar School, applied for an equivalence certificate to the Equivalence Committee appointed under section 27 of the University of Karachi Act, 1972. The Committee, while working out the marks, deducted 15 marks. The above deduction was assailed through a writ petition in the High Court of Sindh, which was dismissed. (iii) Miss Wafa Rasheed Saleemi v. Chairman, Admission Board for Medical Colleges/Principal, King Edward Medical College more and another (1992 CLC 167); In the above report the question, whether I.B.C.C. was competent to issue equivalence certificate or the Admission Board of Medical Colleges was competent under the Prospectus, was not in issue. The controversy was, as to whether Rule 23 of the Prospectus as amended providing the formula for issuance of equivalence certificate was intra vires or ultra vires? It was held that the petition assailing the above formula was devoid of any merit as Rule 23 of the Prospectus envisaged Admission Board's power to determine the merit equivalence.

13. In our view, the object of enacting the Act was to provide for building up of national cohesion, inter alia, by promoting purposeful agro-technical education and by providing provision for Federal supervision of curricula, text books for various classes and maintenance of standards of education. The above object has been further reinforced, inter alia, by clause (a) of subsection (2) of section 3 of the Act, which empowers the Competent Authority to prepare .or cause to be prepared schemes of studies, curricula, manuscripts of textbooks and schedules or strategy for their introduction in various classes of an institution in connection with the implementation of the education policy of the Federal Government. It may further be observed that the I.B.C.C was incorporated through the aforesaid Resolution dated 30-6-1987 pursuant to subsection (2) of section 3 of the Act. The aims and objects of the I.B.C.C reproduced hereinabove in para. 10 indicate that it includes of taking of-steps to achieve a fair measure of uniformity of academic evaluation and curricula standards throughout Pakistan, which cannot be achieved unless there is a uniform standard of entry inter alia into the medical colleges. The same also indicates that in order to bring about national cohesion the I.B.C.C. is to serve as a forum of discussion and consultation for the chief executives of the Boards on all matters relating to the development and promotion of Intermediate and Secondary Education and to make suitable recommendations to the Government. It may further be observed that to achieve the above objective, the aforesaid Circular providing conversion of Grades or, in other words, translating the Grades into marks in terms of F.Sc. (Pre-Medical) is an act covered by the Act as well as by the aforementioned Resolution, whereby the I.B.C.C. was established. In this view of the matter, the authority of the I.B.C.C. to issue equivalence certificates/marks certificates is backed by law.

14. However, it was submitted by Mr. Saeed Baig that the Prospectus of the medical colleges are framed pursuant to the statutory power. In other words, they have statutory force. Reference was made by the learned counsel for the parties to the case of Government of Balochistan and others v. Rifat Parveen (1981 SCMR 1002), in which inter alia it was held that the rules or the Regulations embodied in the prospectus could not be placed higher than the rules or the bye-laws framed in exercise of delegated power or the executive authority and that such bye-laws or rules could be struck down do the ground of unreasonableness.

15. Mr. A.K. Dogar has invited our attention to the following observations of Dorab Patel, J. in the case of Muhammad Iqbal Khan Niazi v. Vice-Chancellor, University of Punjab etc. (PLD 1979 6C 1) as to the legal status of the prospectus:-- "I regret my inability to agree with this view, because the prospectus has not been framed by any Legislature. If has not even been approved by any Legislature, and it is not known whether the Legislature was even informed of its existence As this was not disputed by the learned Assistant Advocate-General, we enquired whether the prospectus had been framed under the Statutes of the University. His answer was in the negative and he could not even make a statement from the Bar that the prospectus had been framed under the powers conferred by some Legislation. Therefore, as indicated earlier, it does not appear to have any statutory sanction and it is probably nothing more than an offer by the Government of the conditions under which it would admit students to the colleges run by it However, as this aspect of the case is shrouded in obscurity if not in mystery, I will examine the question whether rules 3 and 4 should be construed liberally both on the footing that they should be equated with subordinate Legislation like bye-laws as submitted by the learned Assistant Advocate-General and on the footing that they should be equated with the terms of a contract." According to Mr. Dogar, the above observations would not have been made if the relevant provisions of The Punjab Government Rules of Business. 1974, hereinafter referred to as the Rules. would have been pointed out to the Court. According to him, under Item 4 in the Chapter 'Health Department' of Second Schedule to the Rules, power has been conferred on the Health Department to provide for medical education including medical schools and colleges and institutions for dentistry. He has submitted that the Prospectus of the medical colleges have statutory force because they have been framed pursuant to the above statutory power. It has been further urged by him that even if they have statutory force, in case of inconsistency between the formula provided by the I.B.C.C. and the Prospectus. the former shall prevail in view of Article 143 of the Constitution which provides that in case of repugnancy, the provision of an act of Majlis-e-Shoora shall prevail.

16. We are inclined to hold that since the Act is a special Act covering entire Pakistan which has been enacted with the object highlighted hereinabove and the scheme framed thereunder by the authority, it shall prevail over a Prospectus which may have been framed pursuant to Item 4 under the Chapter 'Health Department' of Second Schedule to the Rules. The view which we are inclined to take will not only be conducive to bringing about a uniform standard for admission in the medical colleges throughout Pakistan but will also alleviate the possibility of having conflicting standards of admission in medical colleges or conflicting equivalence standards which may be adopted by various Admission Boards of Medical Colleges in various Provinces.

17. Before concluding the above discussion we may observe that we have not dilated upon the question, as to whether the formula adopted by the I.B.C.C. suffers from any legal infirmity, as the same was not in issue before us. However, we may observe that before adopting any formula for issuance of equivalence certificates/marks certificates, it is incumbent upon the I.B.C.C. to work out a formula, which should be transparent and does not suffer from any inconsistency or unreasonableness.

18. The upshot of the above discussion is that Civil Appeal No.791 of 1998 stands dismissed, whereas the remaining Civil Appeals stand disposed of in terms of the. short order reproduced hereinabove in para.

7. However, there will be no order as to costs. A.A. /M.197/S Order accordingly