P L D 2011 Lahore 106 (PLP)

SH. AZMAT SAEED, J.

Through this order, we propose to dispose of Writ Petition No. 20460 of 2010 filed on behalf of petitioner. Uzair Ikram to call in question the vires of the Self-Finance Scheme formulated on the basis of letter dated 7th of July, 2010 purportedly issued by the Pakistan Medical and Dental Council. It is the case of the petitioner that Clause 4(III) of the said Scheme is ultra vires Article 25 of the Constitution of Islamic Republic of Pakistan 1973, inasmuch as, it ' discriminates between the students who wish to join B.E./B.Sc. and those wishing to pursue their medical education of MBBSIBDS by adding an additional eligibility criteria without any intelligible differentia.

2. It appears that there is a Self-Finance Scheme for foreign students for admission in the professional institutions of Pakistan. The matters had apparently been transferred to the Higher Education Commission from the Economic Affairs Division in June, 2006 whereafter the scheme in question has been issued. The eligibility criteria in the said Scheme reads as under:-- (1) The applicant must hold foreign nationality at the time of admission (2) The applicant must have passed Higher Secondary School or equivalent examination with the following combination of subjects:-- (a) For MBBS/BDS/Pharm D: English, Physics, Chemistry and Biology (b) For BE/B.Sc Engineering: English, Physics, Chemistry and Mathematics (3) The Students desirous of admission should not have a study gap of more than two years after passing his-her HSSC or equivalent examination (4) Additional Requirement for admission in MBBS/BDS under Self Finance Scheme are as under: (I) A candidate has also either passed the entrance test of the concerned institution/admission board or passed SAT-II with minimum aggregate score of 550 marks in the subjects biology, chemistry, physics/mathematics. (II) Valid TOFEL or IELTS with score of 500 or 5.5. (not applicable for those students whose medium of instruction is English at HSSC level) (III) Students with dual nationality who have qualified intermediate/ equivalent from Pakistan are NOT ELIGIBLE for admission in MBBS/BDS Course.

3. Perusal of the aforesaid makes it clear and obvious that it deals with both the students wishing to pursue their career by entering the institutions for MBBS/BDS, Pharm D, as well as the students aspiring to join BE/B.Sc Engineering. Clause (4) reproduced ibid places additional requirement for admissions in M.B.,B.S. and B.Ds. under the Self Finance Scheme. The captioned Constitutional Petition has been filed to assail the vires of Clause 4(III) whereby the students holding dual nationality who have passed Intermediate or an equivalent examination from Pakistan are ineligible for admission to MBBS/B.Ds Courses under the Self Finance Scheme while the students with dual nationality who have also taken their Intermediate or equivalent examination are eligible for admissions under the Self-Finance Scheme for BE/BSc Engineering and incidentally also for Pharm D. It is contended that there is no intelligible differentia which would justify this discrimination inter se the two sets of students.

4. Pursuant to notice issued by this Court, respondents entered appearance through their counsel and have also filed report and parawise comments. In pith and substance, the case being put forward by the learned counsel for the respondents was that the eligibility criteria was issued on the basis of instructions of the PMDC. Dr. A.Basit Advocate representing the PMDC frankly concedes that the said clause 4(III) is discriminatory and apparently has been introduced into the Policy as a consequence of misunderstanding and misinterpretation of the communications of the PMDC. In fact, the learned Deputy Attorney-General for Pakistan also conceded the case of the petitioner qua discrimination. It was in the above context that this Court had asked the learned Attorney General for Pakistan to assist the Court, and in response, written instructions by the learned Attorney-General for Pakistan to the Deputy Attorney-General for Pakistan present in Court have been placed on record, and the relevant excerpt therefrom is reproduced as under:-- (2) I have discussed the matter with the Registrar PMDC and the Director (Academics) Higher Education Commission (HEC) and have examined the relevant documents. So far as HEC is concerned, I have been told that it simply follows the policy/criteria laid down by PMDC in the matter of admission to medical colleges. (5) Having considered the contents of the WP and the said documents, the provision does appear to be discriminatory inasmuch as a person entitled to hold a foreign nationality under the laws of the country being otherwise qualified to be considered for admission in MBBS/BDS Courses, stands excluded from the process of consideration for admission to a foreign seat. The discrimination becomes more apparent upon a reading of Clause II (a) of letter Annex E which enables the wards of foreigners posted in Pakistan (several categories have been enumerated) to be eligible for admission on seats for foreigners notwithstanding the fact that they have obtained their 12 years education or equivalent from Pakistan.

5. Heard. Record perused. There can be no escape from the fact that eligibility criteria reproduced above applies not only to the students wishing to pursue their career in medicine by an admission in MBBS/BDS but also the students seeking admission in BE/BSc Engineering and Pharm D. It is obvious that students with dual nationality who have done their Intermediate or equivalent examination from Pakistan had been dealt with differently, inasmuch as, the additional disqualification has been added by way of Clause 4(III). There is ex facie no intelligible differentia justifying such discrimination. All the learned counsel, representing various stakeholders including the PMDC and the Higher Education Commission as well as the Federation through the learned Attorney-General for Pakistan have stated in no uncertain terms that said Clause 4(I1I) is discriminatory, and therefore, violative of Article 25 of the Constitution of Islamic Republic of Pakistan. Even otherwise, no intelligible differentia justifying the said Clause is decipherable from the Policy in question. Consequently, the said Clause 4(III) is declared to be ultra vires the Constitution with the result that no student shall be deprived of the benefits of the Self-Finance Scheme on the basis thereof. The respondent are directed to ensure that the factum of this order is publicised so that no student entitled to be considered for the benefit of the said Scheme is deprived thereof.

6. Petition accepted in the terms articulated ibid. M.U.Y./U-17/L Petition accepted.