1985 PLP 956 (MLD)

In Bilal Ahmad Malik's case, it was held that when a scheme was formulated by the Government even without any statutory sanction behind it, violation of such scheme by the Government itself in an arbitrary manner was legally objectionable and, therefore, justiciable. In the case mentioned at serial No.12 above, it was held that when an import license was granted to a person according to the declared policy of the Government on fulfilment of certain conditions, the Government had no power to cancel the said license on the pretext of non-compliance with the rule requiring submission of a bank certificate. In Muhammad Ashraf's case, it was held by the Lahore High Court that a person could be termed as "aggrieved party" for the purposes of Article 98 of 1962 Constitution if under law he was entitled to certain benefit or treatment which was refused to him. In the case mentioned at serial No.14, it was held that the status of rules or regulations embodied in the prospectus of Bolan Medical College could not, in any case, be placed higher .than the rules or bye-laws framed in executive authority. 'In Mian Fazal Din's case, it was ruled that a right considered sufficient for maintaining proceedings in writ - jurisdiction is not necessarily a right in the strict juristic sense but is enough if the applicant discloses that he had a personal interest in the performance of the legal duty which if not performed in a manner not permitted by law would result in the loss of some personal benefit or advantage or, the curtailment of a privilege or liberty or franchise., In Miss Safia Hameed's case, it was held that the Chairman Selection Committee rejected the petitioner's application for admission on fallacious grounds and that such order could not be maintained as superior Courts in our country have always condemned arbitrary and injudicious orders. In the last case mentioned at serial No.17, it was held that educational facilities being provided by the Universities should not be denied to citizens except for valid and legal reasons.

8. While controverting the arguments addressed on behalf of the petitioners, the learned, Advocate-General emphasised that: (a) medical colleges' in the Punjab arc financed, run, managed and controlled by the Government of Punjab for promoting the health of the public and that, therefore, the Governor of the Punjab, as Head of the Province, has full power to formulate and modify the policy regarding admission in medical colleges. He, in exercise of such. powers, keeping in view the deterioration in the standard of medical education, reduced the number of seats to avoid congestion and to provide more facilities of laboratories, class rooms and practical experience, etc. to medical students. To achieve the same goal, merit has been improved and those who passed the F.Sc. (Pre-medical) examination in one attempt have been given preference to the ones who passed such examination in more than one attempts; (b) there is no illegality in case .of the actions assailed through the under consideration Writ Petitions and, therefore,, this Court cannot exercise jurisdiction in these cases under Article 9 of the Provisional Constitution Order; (c) the advertisement in the Press only invited applications from candidates for considering their candidature for admission and the advertisement thus did not confer any right on the petitioners to be admitted; (d) it has been specifically indicated on the front page of the prospectus including prospectus of 1980-81 and onwards that "Government in the Health Department reserves the right of additions and alterations of any rule in the prospectus and admission forms"; (e) boys and girls who have been admitted in medical colleges of Punjab in preference to the petitioners have not been impleaded as respondents in the under consideration Writ Petitions and, therefore, merit cannot be disturbed to their detriment; and (f) by now half of the course has been covered by the students who have been admitted for 1983-84 session of the first year M . B . B . S . course and, therefore, it would not be possible for the functionaries of the medical colleges to admit the petitioners at this belated stage.

9. In support of his arguments, the learned Advocate-General cited:- Naseem Mahmood v. Principal King Edward Medical College and others P L D 1965 (W.P.) Lah. 272; Muhammad Razaq v. Province of Baluchistan through Secretary Health Quetta and 6 others P L D 1976 Quetta 64; Mian Muhammad Nasrullah and 2 others v. District Magistrate Lah. and 3 others 1970 S C M R 214; Humairr, Satwat Yusuf v. Government of the Punjab through Secretary of the Health Department P L D 1971 Lah. 641; Ehsanul Haq and another v. Federation of Pakistan and 2 others P L D 1976 Lah. 504; Miss Majeeda Tabassam v. Government of Sind and 3 others P L D 1978 Kar. 222; Kaiomarz R. Ferozepurwala and others v. Administrator Dow Medical College Karachi and another PLD 1976 Kar. 1039; Sajid Raza and 3 others v. The Commissioner Quetta Division Quetta and 9 others P L D 1973 Kar. 332; Naqvi Muhammad Abbas v. The Admission Board for admissions' to first year M.B.B.S. class of medical colleges in Punjab and another 1983 C L C 1430 and University of the Punjab v. Shahid Nazir 1982 P S C

456. In Naseem Mahmood's case, quoted at serial. No.l above, it was observed that all the medical colleges except one at Peshawar are Government institutions, maintained, staffed and financed by the Provincial Government, although affiliated to the respective Universities in whose jurisdiction they are geographically located. It was further observed that these institutions being government institutions and their heads being Government employees, not much argument is needed to see that the Provincial Government clearly retains a right to control and guide the affairs including the question of admissions to all these colleges. In Muhammad Razaq's case, it was held that the power of the Governor, as executive head of the Government in the Province, extends to the matter of laying down a policy and issuing instructions for regulating admissions to the medical colleges run by the Provincial Government. In Mian Muhammad Nasrullah's case, it was ruled that policy .matters cannot be decided by Courts in exercise of the Writ jurisdiction and that Courts were merely concerned to see that executive acted in accordance with law and rules and exercised discretion upon sound principles fairly and reasonably and not perversely and whimsically. In Humaira Satwat Yusuf's case, it was ruled that the right to apply for admission to an educational institution does not carry with it a right to be admitted which could be enforced under Article 98 of the Constitution 1962. In Ehsanul Haq's case, it was found that with the increase of colleges in the Province, Government was at liberty to increase the seats and a petitioner, with reference to an old advertisement, could have no just or legal grievance against the same. In Miss Majeeda Tabassam's case, it was ruled that the petitioner who was never admitted to the college did not acquire any vested right which could be said to have been interfered with by the admission of the contesting respondent to the medical college as against the petitioner. In Kaiomarz's case, the petitioner had taken an objection to the validity of the amendment of rule in the prospectus which provided that merit for admission would henceforth be calculated on the total marks obtained in all the five subjects. It was contended that the amendment was made on the last date for submitting applications for admission. It was held that apart from inherent right to amend on general principles, it was expressly stated in the prospectus that the provisions incorporated therein were subject to additions or alterations as may be considered necessary from time to time. It was further observed that the petitioner had not shown any case of prejudice by the last minute amendment. In Sajid Raza's case, it was opined that though the petitioners had certainly the right to apply for admission, they had no right to be considered, muchless, selected, until the surplus seats of Kalat Division became available and these did not become available before 4th December 1972, when applications of the candidates from Kalat Division were considered by the persons authorized to make selection. However, before the arrival of the said date, prior to which the petitioners had applied for admission, the instructions contained in the prospectus were amended by the Governor of Sind, by the aforesaid letter dated 8-11-1971 and the selection of respondents Nos.6 to 10, being, admittedly in terms of these amended instructions, was not open to question. In Naqvi Muhammad Abbas's case, it was found that the seats for admission to the first year M . B . B . S . class for a particular session being limited, this Court could not direct the respondents to create additional seats for the petitioner who possessed requisite qualifications for admission to the said class but his application was erroneously not considered by the Admission Board. In University of Punjab's case, it was observed that there was no doubt that the High Court could. not have directed the authorities to create additional seats either for 1979-80 session or 1980-91 session. It was also found that if affected persons were not made party to the proceedings before the High Court, the order passed in the absence of such persons who were necessary party deserved to be set aside on appeal.

10. The arguments advanced by the learned counsel for the parties have been considered and analysed in the light of the judicial precedents as detailed above. There can be no doubt about the proposition that medical colleges in the Province of Punjab are run, staffed, financed and controlled by the Government although they are affiliated to different Universities on the basis of their location. The Governor, as head of the Province, has full executive powers, in the absence of any law to the contrary, to lay down, amend and modify the policy of admission in these colleges and to fix number of seats of students to be admitted in these colleges. In the under consideration cases, number of seats of students to be admitted against merit quota has been reduced by

200. This reduction could lawfully be ordered by the Governor as there is no statutory provision prohibiting such an action. It has, however, been maintained on behalf of the petitioners that reduction in seats has been ordered after their applications for admission to first year M. B.B.S. course were entertained. It has further been urged that the Health Minister declared before the Provincial Council on the floor of the house that there would be no reduction in case of girls as there was already shortage of lady doctors. It appears that, in fact, decision about the reduction of seats in the medical colleges was taken prior to the submission of applications by the petitioners and they knew about this reduction. They also knew that the Minister, on the floor of the house, had given an undertaking that in case of girl students, there would be no reduction. As regards the Minister's undertaking or a declaration by him the same has no binding force because that virtually amounts to his personal opinion and the Courts have to see as to what actual decision has been taken by the competent authority. In regard to reduction of seats, it is, therefore, held that the Governor, in exercise of his executive authority, has competently reduced the seats in medical colleges, run, financed and controlled by the Provincial Government. Such decision of the Governor is not justiciable in exercise of extraordinary jurisdiction of this Court.

11. It is true that rule 7 of the Rules for the Intermediate Examination (in force from 1974) o: the Board of Intermediate and Secondary Education, Lahore, permits the passing of intermediate examination in four attempts within a period of 21 months, but this rule has nothing to do with the determination of merit for admission in medical colleges and, therefore, it cannot be said that while effecting deduction, the respondents have violated statutory rule 7 supra in disregard of the provisions of Article 4 of the Constitution 1973. In case of rule 15 ibid. a second attempt has been allowed for improving the aggregate marks. But it has been provided clearly that a candidate who thus improved the aggregate marks, would not be eligible for the award of a scholarship or any other academic distinction on the basis of the improved aggregate of marks. Thus the impugned decision regarding deduction of marks cannot be termed as violative of a statutory rule, viz rule 15.

12. In regard to deduction of marks, on account of additional attempts, therefore, it may be observed that ordinarily the Governor, in exercise of his powers for laying down a policy for admissions in medical colleges administered by the Provincial Government in the province, could modify the merit. But that can be done prospectively and not retrospectively. In the circumstances of the present Constitutional Petitions, applications for admission to first year M . B . B . S. course were invited by 10-1-1984 although subsequently, last date for submission of applications was extended by ten days. In the advertisement inviting the applications or even by the extended date for entertaining the applications, no decision was taken about the deduction of marks on account of additional attempt in F.Sc. examination. It was of course, provided in the advertisement that prospectus of 1980-81 and onwards, which admittedly did not contain any provision about the deduction of marks on account of additional attempts, would not be applicable to the admissions for 1983-84 Session and that prospectus of 1983-84 would be applicable. But nevertheless, it is an admitted fact that prospectus of 1983-84 was printed long after the Admission Board displayed the list of admitted candidates which did not include the names of the petitioners. This prospectus was, in fact, printed even after the institution of the present Constitutional Petitions. The provisions contained in this prospectus of 1983-84 cannot, therefore, be applied retrospectively. It has been stated that the Governor directed the change in the policy of admission to effect deduction in case of additional attempts. No such order .of the Governor has been produced and it cannot be said as to when the Governor issued such directions. The deductions have been effected clandestinely, retrospectively and arbitrarily. In case of students who passed F.Sc. (Pre-medical) examination from the institutions affiliated with Federal Board of Intermediate and Secondary Education in two attempts, no deduction has been effected. As a matter of fact, in case of such institutions, examination cannot be passed in one attempt. The deduction has been effected in case of students who passed examinations from the institutions affiliated with the Provincial Boards of Intermediate and Secondary Education. It has also not been taken into consideration that the additional attempt was for improving the division marks or for passing the examination in the subjects in which the student failed in an earlier examination.

13. As already observed, deduction of marks, on account of additional attempts, has been effected in case of the petitioners clandestinely, retrospectively, arbitrarily and in a discriminatory manner. Such an action cannot be said to have been taken in accordance with sound principles, fairly and reasonably and not perversely or whimsically. It is so well-established that a public duty cannot be exercised arbitrarily, whimsically or in disregard of the principles of natural justice. Same observations hold good when retrospectivity is involved without any statutory sanction. It is true that the petitioners have no legal right to be admitted to the medical colleges but certainly they have the right to demand that the college authorities should determine their merit in accordance with law, fairly and, equitably. Unfortunately, this has not been done while determining their merit as deduction of marks has been effected clandestinely, retrospectively and in a discriminatory manner. Such an action can certainly be struck down by this Court, in exercise of its Constitutional jurisdiction.

14. The learned Advocate-General, as already stated above, has urged that since the students who have been admitted in preference to the petitioners have not been impleaded as respondents in the present Constitutional Petitions, therefore, no adverse order can be made against them and further that almost half the course of the first year class of M.B.B.S. course has since been covered, therefore, it would not be proper to direct that the petitioners be admitted in the said class at this belated stage. In regard to these contentions, it may be observed that, of course, no adverse decision can be taken against a person who is not a party to these proceedings, but keeping in view the limited number of petitioners, it can be directed that without disturbing the admissions already made, the petitioners whose admission has been refused, on account of wrongful deduction of marks, be also admitted by creating a few, additional seats as a special case. Needless to say that 200 seats have already been reduced this year and addition of a few seats would not cause any embarrassment to the respondents.

15. The objection regarding belated stage is also without any substance. The present Writ Petitions were filed in May 1984 i.e. soon after the list of admitted candidates was displayed. These Writ Petitions were fixed after notice to the respondents for regular hearing in the month of July 1984, but the learned Advocate-General himself sought an adjournment for filing the written statement and preparing the arguments. Consequently, the case had to be adjourned to 17-9-1984 i.e. for a date soon after the vacations which commenced with effect from 15th July 1984. The learned Advocate-General could not contradict the information supplied on behalf of the petitioners that till only a few days prior to 17-9-1984, candidates against reserved seats and even against merit quota have been admitted in first year M.B.B.S. course for the session 1983-84.

16. In the light of what has been said above, the Writ Petitions are allowed to the extent that the petitioners who could not secure admission on account of wrongful act of the respondents whereby, while determining the merit, their marks, on account of additional attempts, have been deducted out of the total marks obtained by them, be re-considered for admission without effecting such deductions and without disturbing the admissions already made. There shall be no order as to costs. A.A. Writ issued.