2001 PLP 1732 (CLC)

A 85 % to 89 % 75% A‑ or B + 80 % to 84 % 70% B 75 % to 79 % 65% B‑ or C + 70 % to 74 % 60% C 65 % to 69 % 55 % C‑ or D+ 60 % to 64 % 50% D 55 % to 59 % 45 % D‑ 50 % to 54 % 40 %

3. It is further submitted that the devised Equivalence Formula for evaluating merit adopted by the Inter Board Committee of Chairman (I.B.C.C.), Ministry of Education, Islamabad, has no sanction of law and the incorporation thereof in the Prospectus for the Session 1997‑98 is totally unwarranted and illegal. It was equally submitted that the quota system provided in the Prospectus is also un‑Islamic, opposed to the merit policy and is against the principles of fairplay and as such it must be scraped out and all seats be made available for open merits amongst the candidates.

4. Learned counsel for the petitioners also urged that the question of equivalence of qualification is to be considered by the University whereas the question of equivalence of merit vests in the Board of Admission under para. 23 of the Prospectus. Admission to Medical Colleges is generally granted on the basis of open merit on consideration of marks obtained in the examination. Where marks are not awarded in examination but instead the candidate is graded, essential requisite would be to quantify grades into marks so as to enable the Admission Board to determine the positions of respective candidates to be placed on merit list. It is, however, argued that the conversion by the Admission Board is not based on rationale material and offends against Articles 2A, 18, 27, 25(2) and 22(3)(b) of the Constitution being discriminatory. They also vigorously opposed quota system on the ground of being un‑Islamic, opposed to healthy competition and in violation' of Article 27 of the Constitution. Reliance has been placed amongst others, on 1997 SCMR 1043.

5. Learned counsel for the respondents, appearing on behalf of American Education System and Britain Education System have supported the Appendix‑II of the Prospectus for the Sessions 1997‑

98. They argued that, the students of foreign institutions are very brilliant and they have been rightly granted 5 % increase in classified grades while evaluating merit as against locally qualified students. They have also supported the equivalence formula introduced by I.B.C.C.

6. Learned Advocate‑General and learned counsel appearing on behalf of Chairman, Admission Board submit that in fact the admissions are to be made in accordance with the Prospectus issued for the current sessions.

7. In view of the statement made by Mr. Mahmood A. Sheikh, Advocate, for Principle K.E. College and the learned Additional Advocate General we disposed of Writ Petition No.521 on 2‑3‑1998 as they fairly stated that while determining the merit of a candidate for the purpose of admission to a medical college in Punjab, Circular in question is not being acted upon by the Admission Board Committee which is following the prospectus issued by the Government of Punjab itself. On account of having been conceded, that writ petition fructified to that extent. However, regarding his grievance about provisions of the prospectus, the petitioner in that writ petition was allowed to file a fresh petition.

8. Disposal of the aforesaid writ petition has clinched the objection regarding equivalence formula evolved by I.B.C.C. Learned Advocate General has not seriously opposed the objection regarding the quota system. However, in relation to quota of three categories, namely, for disabled persons, FATA and children of doctors, the learned Advocate‑General prayed that it should not be disturbed.

9. It was also argued that the Government intends to maintain merit policy in all educational institutions and no candidate shall be admitted in violation of the merit policy. Sex area, caste and creed shall in no way stand in the way to determine the merit for grant of admission to a candidate in a medical college.

10. We have heard the learned counsel for the parties at length on various dates. In an earlier reported case. Habib Subhani Chaudhry v Chairman Admission Board for Medical Colleges 1996 MLD 849 decided by us, a candidate who was holding General Certificate of Education (Advance Level) had applied for admission to a Medical College in Punjab for the session 1992‑93 but was refused admission on the ground that on the basis of formula of equivalence, he did not come on merit. This action of the respondent was challenged by the petitioner as being discriminatory. In that writ petition, we held:‑‑ "Although in F.Sc. Examination, marks are awarded to the candidate but in certain other systems of education like ' A' level, Senior Cambridge, instead of marks, grades are awarded by the University. In such a situation, the question arises is as to hew to translate the grades into marks. According to the petitioner this power also vests in the University and not in the respondents. However, we are not in a position to accept this contention inasmuch as there is a distinction between the equivalence of qualification and equivalence of merit. The question of equivalence of qualification is to be considered by the University. However, the power to equalise the merit vests in the Board of Admission under para.23 of the Prospectus. To that extent no possible exception can be taken. The admission to the Medical Colleges is generally granted on the basis of open merit, on the basis of marks obtained in the examination. In the cases where marks are not awarded in the examination but instead the candidate is graded it is essential to quantify the grades into marks so as to enable the Admission Board to determine the position at which those candidates are to be placed in the merit list." In other universities in Pakistan while translating grades into marks much higher percentage has been employed and A‑Grade has been considered teas equivalent to 90% of the total marks Grade‑A has been construed to be excellent. The conversion formula in the aforesaid case was held to be unrealistic and discriminatory.

11. The judgment of the learned Single Judge of this Court, relied upon by the respondent (in Writ Petition No.7083 of 1990) wherein the conversion formula was upheld, was challenged in I.C.A. and has been set aside, remanding the case to the Admission Board for re‑determination keeping in view the system of education under which the foreign degree had been obtained.

12. We are, therefore, of the considered view that the conversion formula must have logical, rational and reasonable basis for determining the merit. No legitimate objection can be raised so far as G.C.E. "A" Level/Higher Senior Cambridge qualification is concerned. They have external examiners of their institutions. Marking is made in U.K. Papers are also set in their head office. Their standard of education, method of marking and setting of papers exclude all possibilities of favouritism. Marking is made by external examiners and the internal teachers of the institutions have no approach to them. Their standard of marking and setting papers can fairly compete with our system of education. The students of their institutions can get admissions in their medical colleges just :after G.C.E. "A" Level/Higher Senior Cambridge. The formula adopted for conversion of A‑Level to F.Sc. marks prescribed in the Prospectus appears in Appendix II(i) to be just and fair.

13. American system of education is, however, entirely on different footings. Mr. Mehmood Ali Malik, Principal, K.E. College appeared before us during the hearing of the case and frankly conceded that under the American System in order to get admission in a medical college first 12 years education is about general awareness and thereafter two years education as advanced placement is compulsory and then they have to qualify SATI to get admission. No student can get admission in a medical college after 12 years education under their system. This statement of the Principal clearly shows that the candidates educated under American system cannot get admission in the medical colleges in U.S.A. but if declared equivalent to F.Sc. they are entitled to get admission in our medical colleges and thereby their educational career is shortened by 2 years for entering into medical colleges. It shows that the principle of equivalence applied in the prospectus is not based on rational foundation. Under their system the papers are set by the internal examiners and marking is also made by them. They themselves award grades to the students. Liking and disliking of the internal examiners for their students and upgradation of their institutions by showing better results definitely lean towards giving them an edge over the students of other institutions. In our system, papers of F.Sc. students are marked by external E examiners of other Boards of Punjab. The papers are set by the third Board to exclude all possibilities of unfair means to get increase in the marks. The equivalence formula laid down in the Prospectus in relation to American system of Education is unfair, unrealistic and without any foundation. For the aforesaid reasons the formula (ii) for American Educational Institutions, including LAS is unjust and unfair, having no rational and logical basis. While making conversion formula the reasons spelled out above, have not been considered. Without going through the comparative study, its effect on each other system and examining the material, the disputed provisions of prospectus have been wrongly applied for the current session.

14. Now coming to the quota system, we are satisfied that category of special persons cannot be interfered with. Such persons are physically handicapped and cannot compete in open merit, reserved quota for them is justifiable. The candidates of FATA who get education in advanced area like it Lahore , Islamabad etc. are, of course, not entitled to get admission on ` special quota as all the facilities like others are available to them. However, if a student of such a backward area gets F.Sc. education from district of his domicile, he shall be entitled for admission on reserved seat for FATA I candidates.

15. Regarding reserved seats for Doctor's children such quota is not permissible, it deprives the other deserving candidates. However, sons and daughters of teachers of the medical colleges can legitimately claim from this quota, as an incentive for the doctors to teach in the medical colleges. I I

16. Except for the aforesaid three categories the remaining reserved seats of all types are un‑Islamic and in conflict with Articles 18, 27, 25 and 2A of the Constitution of Pakistan (1973) as laid down by the Supreme Court in Mushtaq Ahmed Mohal v. The Lahore High Court and others 1997 SCMR 1043. Although the said case relates to service matter, yet the principles laid therein are fully attracted in the instant case. If has been laid down:‑‑ "A perusal of clause (1) of Article 27 of the Constitution (which relates to one of the Fundamental Rights guaranteed by the Constitution), enjoins that no citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth." It was further observed:‑ "that Article 27 of the Constitution is to be read in conjunction with inter alia Articles 2A, 18 and 25 of the Constitution. Aforesaid Articles 2A and 18 of the Constitution have already been referred to hereinabove. Whereas Article 25 of the Constitution guarantees that all citizens are equal before law and are entitled to equal protection and that they shall not be discriminated on the basis of sex alone. Inter alia the above Articles of the Constitution are designed, intended and directed to bring about an egalitarian society based on Islamic concept of social justice." In para. No.25 of the judgment, it has been laid down:‑ "We deprecate the above conduct on the part of the defaulting departments. It may be observed that clause (1) of Article 27 of the Constitution in fact enshrines what has been commanded by Allah and his Holy Prophet (p.b.u.h.). In this regard it may be pertinent to quote paras. 11, 12, 22 and 36 from the judgment of the Federal Shariat Court in the case of Nusrat Baig Mirza v. Government o1 Pakistan and another (PLD 1992 FSC 412) rendered by Tanzil‑ur Rehman, C.J. sitting with Fida Muhammad Khan and Nazir Ahmad Bhatti, JJ:‑ "(11) The following verse of the Holy Qur'an is very much apt to the issue before us that there is no difference between the individuals of mankind on the basis of race, colour and territory. All human beings are equal in eyes of Allah as He created man from quinteinessence of clay. The Holy Qur'an says:‑‑ (O mankind! We created you from a single (pair) of male and female, and made you into nations and tribes that ye may know each other (Not ye may despise each other). Verily the most honoured of you in the sight of Allah is (He) who is the most righteous of you (Al‑Hujrat 49:13). By this verse the entire humanity is addressed i.e. all mankind without any distinction as to caste, creed and colour, and the territory, origin or place of residence. Let us here note this fundamental message of Islam that all humanity belongs to one human family, without any inherent superiority of one over the other. Consequently all racial, national or tribal prejudices stand condemned. " Earlier in Mussarat Uzma Usmani's case PLD 1987 Lah. 178 while dealing with Articles 22(3)(b), 25, 27 and 8 of the Constitution, it was held, that discrimination between girls and boys for admission in the medical colleges on the basis of sex is unlawful and the girls were equally declared eligible to compete with boy candidates on merit, Debarring of girls to get admission in such colleges, even with more marks, held, would not only be discriminatory on the ground of sex and so violative of the Constitutional provisions, but also against reasons and justice. Reserved quota for girls was also taken into consideration, and same was overruled and the petitioners therein were allowed to compete with the boys in open merit

17. Yet in another judgment reported as Province of Punjab and another v. Miss Khaqan Mehmood and others PLD 1985 Lah. 300, .a Division Bench of this Court held, "Rules in Prospectus could not be placed higher than Rules or bye‑laws framed in exercise of delegated powers, or executive authority and such rules could be struck down as invalid on ground of unreasonableness".

18. In the light of the judgments referred to above and particularly PLD 1992 FSC 412, the relevant portion of which has been reproduced above, it is clear that no discrimination on the basis of race sex, territory etc. is admissible under Islam. Quota system, for the reasons stated above is un Islamic. We, therefore, direct the respondent‑Admission Board to fill all the seats on open merit basis except the aforesaid three categories. The disputed provisions of Appendix II, clause (ii) in the Prospectus are declared unfair, unjust and without justifiable sound foundations. Fresh equivalence formula for determination of merit shall be evolved by the Admission Board keeping in view the observations made in this judgment. All the aforementioned writ petitions are disposed of in the above terms. H.B.T./T‑33/L Order accordingly.