2019 PLP 975 (YLR)

MALIK HAQ NAWAZ, J.

Since both the Writ Petitions bearings Nos.255/2017 and 258/2017 involves similar question of law and facts, therefore, these are being disposed of through this single judgment. W.P. No.255/2017 Petitioner Haneen Gul daughter of Amin Gul filed the above writ petition contending that she is a bona fide resident of District Diamer and applied for reserved seat of MBBS for District Diamer as she scored 76.077 % aggregate marks but she has not been nominated for MBBS seat, which act of respondents Nos.1 to 8 is not only illegal, unwarranted, and unlawful but also against the concept of the equity and fair treatment. It is further averred in the petition that respondents Nos.9 and 10 scored 73.827% and 64.370% aggregate marks respectively whereas respondent No. 11 failed to qualify entry test in Khyber Pakhtunkhwa and scored 280/800 marks in Entry Test of Khyber Pakhtunkhwa, where his nomination has been made. Finally that nomination of respondents Nos.9 to 11 be declared void ab-intio, unlawful, without lawful authority, against the order of merit and the petitioner be adjusted on any seat either of Punjab or of Khyber Pakhtunkhwa. The learned counsel for the petitioner in support of above raised grounds took us to the final nomination list and the marks obtained by various contesting/nominated candidates. The learned counsel mainly contended that the policy for nomination of candidates for MBBS and B.Sc. Engineering was settled once for all by the apex Court of Gilgit-Baltistan and the respondents were not competent to deviate from the policy. The learned counsel contended that respondent No.11, who could not qualify written test in Khyber Pakhtunkhwa and scored 280/ 800 marks was nominated for Khyber Pakhtunkhwa, which is against the policy and the petitioner be nominated to save her career/future being a female candidate.

2. On the other hand learned Assistant Advocate General assisted by legal advisor Education Department and Mr. Amjad Hussain advocate for respondents Nos. 9 to 11 defended the nomination and submitted that petitioner's name is appearing at serial No 244 of the final list which depicts that she scored 709/1100 in entry test conducted by the Government of Punjab but she has not appeared in entry test of Khyber Pakhtunkhwa. Per learned counsel the merit list of Punjab was closed on 78.51% marks, whereas the petitioner scored 76.77% marks and as such she failed to qualify for her nomination in Punjab. The learned counsel lastly submitted that the last aggregate merit for District seats of Diamer was closed on 64.370% per learned counsel the petitioner could not be nominated for Khyber Pakhtunkhwa, as she has not appeared in entry test of Khyber Pakhtunkhwa. W.P. No.258/2017 Petitioner Noor-ud-Din son of Walayat Noor, who also appeared in entry test for reserved seats of MBBS 2017/2018 from Punjab as well as Khyber Pakhtunkhwa but could not be able to find a place in the list of selected candidates either of Punjab or Khyber Pakhtunkhwa. The petitioner scored 842/ 1100 marks in entry test conducted by Government of Punjab and 217/800 in Khyber Pakhtunkhwa entry test.

2. The learned counsel raised almost all similar question of law and facts as discussed in Writ Petition No.255/2017, hence these are need not being reproduced again to avoid lengthy discussion.

3. On the other hand the learned advocate General, legal advisor Education Department and Mr. Amjad Hussain Advocate, opposed the contentions of the learned counsel for the petitioner with vehemence and submitted unanimously that no irregularity or illegality has been committed, while making nomination for various Colleges and the members of the board ensured that no injustice should prevail. The petitioner could not find placed either in open merit list or in the merit list of Khyber Pakhtunkhwa, due to paucity of aggregate marks.

4. We heard both the parties and perused the record with their valuable assistance. It would be advantageous to answer the main contention of the learned counsel for the petitioners that a person, who could not scored 40% aggregate marks in entry test could not be nominated for any reserved seat, is not tenable as PMDC through a notification has introduced certain amendments in subsection (2) of Section 33 of Pakistan Medical and Dental Council Ordinance, 1962 (XXXII) of 1962 and issued some approved regulations, section 8 of the said Ordinance is relevant, which is reproduced as under:-- "(8) The pattern of the test paper of the entry test shall be determined and announced by the Provincial Central Admission Authority/NTS. There shall not be any pass marks for the entry test and all marks obtained shall be declared."

5. Further Director Education (Colleges) Gilgit who is also Secretary Nomination Board issued a notification No. DE-9(18) / NB / 2016 dated 11 November, 2016 and by means of above notification certain amendments were made in the nomination policy 2016 for Medical/Engineering reserved seats for Gilgit-Baltistan. Rule 5.3 of the said policy is also reproduced for the purpose of ready reference:-- "5.3 passing criteria of entry test of Khyber Pakhtunkhwa and Punjab At present there is no pass marks limit in the entry test of Punjab , Khyber Pakhtunkhwa and Baluchistan, conducted for admission in their respective medical colleges however, in future the criteria of nomination in medical colleges of Punjab, Khyber Pakhtunkhwa and Baluchistan shall be made, keeping in view eligibility of respective provinces, whenever there is change in criteria of passing marks in entry test."

6. The re-production of above rules reveals that no passing marks limit in the entry test of Punjab, Khyber Pakhtunkhwa and Baluchistan has been fixed and the nomination is made on the basis of eligibility of the respective province.

7. As discussion above and the policy placed at page 25 of paper book, 43 seats of MBBS and 05 BDS seats are filled on open merit among the candidates of Gilgit-Baltistan, while 43 seats are distributed on the basis of population of each District. The chart showing population and share of each District is given below:-- "

10. Distribution of 50% District Quota Seats On The Basis Of Population: S.# Name of District Population Percentage % share of District District seats

1. Gilgit 148040 16.75% 7.20 7

2. Diamer 131250 14.85% 6.38 7

3. Skardu 130664 14.78% 6.35 6

4. Ghizer 121278 13.72% 5.90 6

5. Ghanche 089445 10.12% 4.35 4

6. Astore 075857 8.58% 3.69 4

7. Nagar 051963 5.87% 2.52 3

8. Hunza 046784 5.29% 2.27 2

9. Shigar 045974 5.20% 2.24 2

10. Kharmang 042598 4.81% 2.07 2 Total 883799 100% 43

8. As evident from the above chart 7 (seven) seats have been reserved, which are to be filled among the candidates belonging to District Diamer. Both the petitioner as well as three respondents are hailing from District Diamer, the merit position of the petitioners/respondents is as under:-- Respondents Nos. 9, 10 and 11 S. # Names of candidates Marks obtained in Punjab Entry Test Marks obtained in Khyber Pakhtunkhwa Entry Test Merit position Respondents 155 Azimullah 830/1100 280/800 78.672 270 Sibghatullah 691/1100 340/800 73.827 478 Hafiz-ur-Rehman

374/800 64.370 Petitioners 224 Haneen Gul 709/1100

76.077 238 Nor-ud-Din 842/1100 217/800 75.477

9. As discussed supra the last merit list for Punjab closed at 78.51 and one Mamoun-ur-Rashid was nominated and the last nominated candidate from Diamer scored 58.44 marks, while the petitioner Noor-ud-Din scored 50.77 and petitioner Haneen Gul has not appeared in Khyber Pakhtunkhwa entry test, which was a pre-requisite, hence she cannot be adjusted against any seat of Khyber Pakhtunkhwa.

10. All persons cannot be treated alike and reasonable classification, if based on an intelligible differentia, which distinguishes persons and things grouped togather from those who have been left out if found justified and rational should be given and recognized, if it has a direct bearing with the object of law and policy. Needless to mention that policy matters require expertise and experience, which are made keeping in view the social, political and other allied matters in mind according to the changing circumstances of the county or a particular province and if a policy is initiated by the government, the Court should not interfere, until and unless the policy so made is in conflict with any provision of law or is violative of fundamental right of a citizen. We found no flaw in the nomination made by respondents Nos. 1 to 8.

11. As a sequel of above discussion, there is no merit in the above writ petitions which are dismissed accordingly. ZC/1/GB Petition dismissed.