P L D 1999 Quetta 125 (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, C.J.--Petitioner Mateullah son of Amanullah in instant Constitutional petition has challenged decision of the Provincial Government, dated 27-8-1998 in pursuance whereof admission .to him was denied in First Year M.B.,B.S. for the session of 1997-98. Petitioner's case is that he secured 663+20/1100 marks in F.Sc. (Pre-medical) Examination in the year. 1997. As he is a Local of District Killah Abdullah, therefore, he applied for admission in B.M.C. for which he also appeared in pre-entry test, but on merits he could not succeed,- as such now his grievance is that formula adopted by the Provincial Government in conducting pre-entry test is contrary to section II subsection (2) of Pakistan Medical and Dental Councils Regulations. As such he has prayed for relief in following terms:-- "It is therefore, humbly prayed that writ may be issued against the respondents in the following terms and declare: (i) That the formula of 40% for entry test and 60% for F.Sc. adopted by the Provincial Health Department, Balochistan, Quetta for preparing of merit list for admission in Bolan Medical College, Quetta for the year 1997-98 is contrary to Pakistan Medical and Dental Council Regulation, Section II, Rule 2 and decision of provincial dated 27-8-98 and section 26, subsection (I) of Prospectus of Bolan Medical College, Quetta is of no force, illegal and without lawful authority; (ii) that respondents Nos.4 and 5 may be directed to formulate and prepare new merit list on the basis of the same entry test dated 1-11-1998, while keeping in view formula contained in section II, Rule 2 of Pakistan Medical and Dental Council Regulations, decision of the Provincial Government dated 27-8-1998 as well as section 26(j) of the Prospectus Bolan Medical College, Quetta and .give admission to the students candidates who after the new merit list qualify themselves for admission in Bolan Medical College, Quetta from their respective districts for the year 1997-98; (iii) any other relief which this Honourable Court may deem fit and proper may be given to the petitioner." It may be noted that previously there was no requirement to give pre entry test by students seeking admissions in B.M.C. It so happened that the Provincial Government of Balochistan in its cabinet meeting on 27-8-1998 decided in this behalf as under:-- "The Cabinet considered the summary/proposal submitted by the Health Department of Prospectus of B.M.C., Quetta for the session 1997-98 approved the deletion as mentioned in working paper and the following proposal:-- i) All admissions are on merits; (ii) entry test is mandatory; In pursuance of above decision in para. 26, sub-para. (1) was added which reads as under:-- "All such seats will be given to candidates on merits including pre-entry test and results. " It may be noted that to implement the above decision of the Government Selection Committee conducted pre-entry test of the candidates who have applied from different districts of the province and adopted the formula for preparing a merit list on calculating 60% of marks of F.S.C. and 40% of pre entry test. As there were four seats reserved for District Killa Abdullah in B.M.C., Quetta, but as petitioner's name was not appearing on merit, therefore, his candidature was rejected, as such he has instituted instant Constitutional petition principally on the averments that if the formula given by Pakistan Medical and Dental Council Regulation's section (ii), subsection (2) is adopted then the petitioner even being at serial No.4 can get a seat from his district, but as this formula was not adopted, therefore, admission was denied to him. Petitioner appeared in person; whereas Selection Committee was represented by Syed Ayaz Zahoor, Advocate who had also made appearance on behalf of private respondent Miss Nadia Wajid daughter of Abdul Wajid Agha. According to learned counsel petitioner did not object on formula while giving pre-entry test, but as now he has failed to get admission, therefore, with mala fide intention he has challenged validity of the formula on the basis whereof he himself has appeared in pre-entry examination. He further explained that his marks were less than private respondent, therefore, he had no entitlement to claim reserve seat from District Killa Abdullah. Learned counsel emphasised that the Cabinet had adopted a formula, therefore, Selection Committee was bound to follow the same and under these circumstances a formula which has been laid down for pre-entry test by Pakistan Medical and Dental Council cannot be followed. Syed Ayaz Zahoor, Advocate further stated that as now admissions throughout in the province have been completed, therefore, at this stage no relief as has been claimed by him can be awarded to him. Mr. Zahoor-ul-haq, learned counsel appearing on behalf of Pakistan Medical and Dental Council argued that it is the duty of the Council to lay down minimum standard of basic and higher qualification in medicine and dentistry and under section 33, subsection (2) of the Pakistan Medical and Dental Council Ordinance, 1962 jurisdiction has been conferred upon it to frame regulations to prescribe a uniform minimum standard of course for obtaining graduation and post graduation medical qualification, prescribe minimum requirement for contents and duration of courses for degrees of M.B.,B.S., for prescribing condition for admission to course of training for degree of M.B.,B.S. and the regulations framed by the Council are bound to be followed by all the Medical Colleges and Universities in Pakistan with a view to attaining the basic minimum standard prescribed by the Council and any deviation from such Rules and Regulations as well as Ordinance, 1962 are not permissible. In fact, a serious objection has been raised by the learned counsel on the formula which has been adopted by the Selection Committee for admissions in B.M.C for pre entry test and while expressing his reservations he contended that, the pre-entry test has been held contrary to the regulations which warrants interference. We have heard the petitioner as well as respondents counsel at length. there is no cavil with the proposition that education in the Medical College throughout in Pakistan including Province of Balochistan is governed by the Regulations of P.M.D.C promulgated under section 33(2) of Ordinance, therefore, in pursuance of the Regulation following formula has been provided for the degree of M.B.,B.S. as per section II, subsection (2): (i) Entry test should be conducted by the respective Provincial Government in Medical Colleges of Public Sector under their administrative control ii) The paper should be computerised; (iii) There should not be any pass marks for entry test (iv) The merit for admission shall be elaborated after adding all marks as below: Intermediate 40% Matric 10% Entry Test 50% Admittedly for admission in B.M.C. for the year of 1997-98 above formula incorporated in the Regulation of P.M.D.C was not followed. From perusal of parawise comments filed by Syed Ayaz Zahoor learned counsel for private respondent Miss Nadia Wajid we failed to understand that on the basis of which criteria Government of Balochistan through Selection Committee formulated a separate formula for preparing merit list of candidates which has been reproduced hereinabove. It may be noted that Selection Committee had no jurisdiction to adopt its own formula on the pretext that the Provincial Government has directed to do so. The decision of the Cabinet had already been reproduced hereinabove, careful perusal whereof indicates that Cabinet had not given any instruction to adopt any formula which is contrary to Regulations of P.M.D.C., therefore, in our opinion departure from Regulation of P.M.D.C for holding pre-entry test for admission in First Year M.B.,B.S. is without lawful Now question arises as to whether at this stage on the instance of petitioner all the admissions which have already been completed, can be declared illegal. Before answering this question we would like to point out that at the time of preparing for pre-entry test petitioner himself did not raise objection nor he agitated his grievance by filing of a Constitutional petition to challenge the formula which was being adopted by the Selection Committee contrary to Regulations of P.M.D.C. Thus, petitioner himself submitted to the jurisdiction, therefore, at this belated stage at his instance no interference is called for. However, we may observe that petitioner shall be free to agitate his grievance, i1 any, before commencement of next session if he applied for admission it M.B.,B.S. against the reserve seat of Killa Abdullah in B.M.C. Before parting with the judgment we would also like to observe that for the forthcoming academic session of 1998-99 the Provincial Government through its Health Department must issue instructions to the Selection Committee to follow a formula for pre-entry test which has been laid down by the P.M.D.C being mandatory in its nature because continuous departure from adopting the formula prescribed by P.M.D.C for pre-entry test, shall result in non-obtaining prescribed standard of M.13-B.S. Course in the Provincial Medical College due to which there is every likelihood that in future the graduates of this Institution might face some difficulties in obtaining admission to post-graduation or any institution outside the Province of Balochistan. For the foregoing reasons relief claimed by the petitioner for admission. to First Year M.B.,B.S for the year 1997-98 cannot be granted to him. As a consequence, with above observations petition is dismissed leaving parties to bear their own costs. C.M.A./770/Q Petition dismissed.