2022 PLP 1922 (MLD)

SHAHID JAMIL KHAN, J.

The petitioners in this and connected petitions (W.Ps. Nos.5075 and 6719 of 2022) are aggrieved of declining or not entertaining their request of including improved marks, obtained in Special Examination, while preparing final merit for admission in MBBS/BDS Session 2021-2022.

2. The petitioners have already filed their online applications on the basis of original result of Higher Secondary School Certificate ("HSSC"). It is apprised that online system is not allowing the petitioners for substitution of original marks with improved marks, cutoff date for which is 06.02.2022.

3. Facts of the case are narrated by learned counsel for respondent-UHS with permission. He has referred to Admission Policy, 2021-2022 duly approved by Government of the Punjab and read following paragraphs:- "vii. Please also note that the Repeaters who have appeared in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination in a bid to improve their marks and are awaiting their result, they must NOT enter their available HSSC/equivalent exam marks on their online application. They should also follow the aforementioned procedure. When their delayed HSSC (Pre-Medical) Special Examination or A- Level (November 2021 Series) Examination result is declared, they can submit the marks of that examination in which they secured higher marks. It must, however, be remembered that the deadline for such submission of delayed result is Sunday, 6th February, 2022. vii. The Repeaters are informed that if they fail to follow the procedure as given in Para (vi) above and enter their available HSSC/Equivalent marks, intentionally or unintentionally, at the time of submission of their online application then, at the later stage, their improved marks in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination shall NOT be accepted and no request in this regard shall be entertained." [emphasis supplied] It is apprised that under the policy, applications for admission were required to be filed online till 22.11.2021, however, those applicants, who intended to improve their marks were asked to register their intention by selecting the category 'delayed result candidates' in the system. 1294 applicants selected this category, while submitting their applications online, who are allowed through the system to submit their improved marks till 06.02.2022. 27 applicants (including petitioners), failed to select the category of 'delayed result candidates', therefore, are denied to submit their improved numbers in the system in view of Clause (vii), ibid, of the policy. System is not allowing them to submit their improved marks, it is explained.

4. In response, Barrister Haroon Dugal, Advocate, representing petitioners' side has argued that non-selection of the category was due to a confusion created by a clarification letter dated 13.11.2021 issued by Pakistan Medical Commission ("PMC"). Relevant part referred by him is reproduced:- "This policy only applies to students who have sat for their HSSC examination in October-November 2021 for the first time and not as a repeat/re-sit student to improve their marks or to pass earlier failed exams in the same academic year. A student who held an HSSC qualification at the time when application for admission were due is required to apply on the basis of such earlier result." However, it was followed by a clarification letter dated 18.11.2021, which is also reproduced:- He submitted that petitioners had applied online before issuance of subsequent clarification by UHS and had abstained to select the category of 'delayed result candidates' in view of letter dated 13.11.2021 by PMC.

5. Learned counsel for the petitioners has also raised question of discrimination and violation of fundamental rights under Article 25 read with Article 37(c) of the Constitution of the Islamic Republic of Pakistan, 1973" ("the Constitution"). To substantiate discrimination, it is apprised that all successful candidates in HSSC Examination 2021 had right to appear in Special Examination 2021 for improvement in their marks to compete in the merit for admission in the MBBS/BDS. Result of all the candidates, who appeared in Special Examination was announced on the same date, therefore, they should be treated as one class to be considered for admission on the basis of improved marks. The impugned condition imposed by the respondent has created a class within a class to oust the petitioners from being considered on merit. Also submitted that medical universities of other Provinces did not impose any such condition and are allowing the students to submit their improved marks till the cutoff date.

6. Learned counsel for respondent-UHS submitted, in response, that option to select category was not availed by the petitioners, therefore, they are estopped by their conduct. He has placed reliance on a decision by another learned Single Bench of this Court in W.P.No.19918 of 2021 to submit that similar petition has already been dismissed. It is argued that merit for admission has already been prepared on the basis of original marks, which cannot be disturbed. However, on Court's query, it is not denied that the cutoff date for submission of improved marks is 06.02.2022, whereafter the merit is required to be finalized. Responding to Court's further query, Dr. Allah Rakha, Team Lead Admissions, UHS, Lahore has apprised that 100% marks in the system for the applicants, who opted for the category 'delayed result candidates', shall be substituted with the improved marks obtained in Special Examination, based on which final merit shall be prepared. The officer could not reply satisfactorily, when confronted, why originally submitted marks by the 27 applicants cannot be treated like the 100% marks and be substituted with the improved marks, as the option of substitution is available in the system. The reason given by him is not technical but factual i.e. the petitioners had not selected the category at the relevant time. To rescue the officer, at this stage, learned counsel for respondent-UHS submitted that merit of the candidates, who applied on the basis of original marks has already been prepared and declared online. In response, learned counsel for the petitioners has referred to advertisement dated 11.11.2021 and read clause (v), which is reproduced:- "v. It is clarified for information of all candidates that their admission shall remain absolutely provisional till 10th February, 2022"

7. Arguments heard. Record perused.

8. The judgment by another learned Bench, relied upon by learned counsel for the respondent-UHS is perused and relevant part is reproduced:- "

4. The respective contentions have been considered by this Court. Perusal of the impugned Order dated 17.12.2021 clearly depicts that the Petitioner along with other Applicants was provided an opportunity to follow the mandatory online procedure in terms of the conditions contained in advertisement dated 11.12.2021 which clearly provides that the Applicants who are Repeaters and have appeared in HSSC (Pre-Medical) Special Examination or A-Level (November 2021 Series) Examination in a bid to improve their marks and are awaiting their result must not enter their available HSSC / equivalent exam marks on their online Application but should follow the procedure when their delayed result is declared and can submit the marks of that examination in which they secure higher marks for which deadline is 06.02.2022. It was further stated that if a candidate failed to follow the procedure as above and enter their available marks, intentionally or unintentionally, at the time of submission of their online Application then, at the later stage, their improved marks shall not be accepted and no request in this regard shall be entertained. Hence, it is manifestly clear that the Petitioner voluntarily availed the option to be considered on the basis of his existing marks and waived off his option to apply in the category of "Delayed Result Candidates".

5. Further, the Petitioner has been duly considered and has been denied admission so far in accordance with the merit list. As such, the impugned Order is unexceptional. The contention of the learned counsel for the Petitioner that advertised clarification published by PMC permitted the Petitioner to change his category of admission, was duly rebutted by stating that said clarification was not applicable to Public Sector Universities and it was clearly mentioned in other clarification that each Public University may proceed as per its declared Admission Policy in terms of exam result policy which is considered for eligibility requirement for Admission and that is prerogative of the Public Universities under the PMC Act, 2020." It appears that learned Single Bench was not assisted properly on the grounds of discriminations; violation of Article 37(c) read with Article 25 of the Constitution and confusion created by the letter dated 13.11.2021 by PMC, therefore, is per incuriam, which is an exception to rule of Stare Decisis in law of precedence, asking to have persuasive or binding force of previous decision on same issue, by a Court of same strength.

9. Respondents' side is unable to displace the factual position that the candidates selecting category of 'delayed result candidates' and the petitioners are one class, being similarly placed for the purpose of the Article 37(c) read with Article 25 of the Constitution. Article 37(c) enjoins upon the State, that it shall "make technical and professional education generally available and higher education equally accessible to all on the basis of merit". Article 25 ensures equality and equal protection before law. After declaration of original result for HSSC and A-level examination for 2021, all the students had a right to attempt for improvement of the marks in respective Special Examinations. The petitioners and other candidates appeared accordingly in the examinations and their results have been declared on the same dates, however, a class has been created within similarly placed person, by introducing technical condition in the computer system. The technicality introduced in the system is though a policy matter but it offends fundamental right of 27 candidates under Article 37(c) read with Article 25 of the Constitution by creating a class within a class.

10. Ample opportunity was given to respondents' side for showing that creation of such class was inevitable and that allowing permission, to the petitioners and other similarly placed applicants, would halt the system. The explanation given by respondents' side is not satisfactory. If 100% marks entered in the system for the applicants, who selected the 'delayed result candidates' category, can be replaced with improved marks, why original marks obtained and entered by 27 applicants cannot be substituted with their improved marks obtained in Special Examination. The submissions that result has already been prepared and declared is not found correct because the list, if any, before the fixed date is provisional as per Clause (v) of the advertisement. The marks obtained by the candidates who opted for 'delayed result candidates' are being entered in the system till 06.02.2022, whereafter final list for the purpose of merit is to be prepared. Deadline by PMC can also not be taken as a pretext to violate the fundamental rights under Article 37(c) read with Article 25 of the Constitution. It is not denied that merit of each public sector university like UHS is created differently and does not affect merit of other universities in different Provinces. Reliance of learned counsel for the respondent-PMC on Pakistan Medical and Dental Council, Islamabad through Authorized Representative v. Shahida Islam Medical Complex (Pvt.) Limited through Authorized Director and another (2019 CLC 1761) is also of no avail because this judgment has dealt with extension of time through court's order. Whereas, the case in hand is not for extension of time but for allowing 27 applicants to substitute their improved marks with original marks before the cutoff date (06.02.2022), which has yet not reached.

11. It is admitted position that 27 applicants, including the petitioners have already applied for substitution of their improved marks before 06.02.2022, however, the request is declined through written orders or by not entertaining their applications. This Court is convinced that by rejecting the request for substitution of marks, respondents are ousting them, for a technicality, from being considered on merit, which is violation of the fundamental right under Article 25 read with Article 37(c) of the Constitution. Primary duty of a Judge in a High Court, exercising constitutional jurisdiction under the Article 199, is to protect the Constitution and fundamental rights guaranteed therein, even of those citizens who are not before the Court. Under the circumstances, the Vice Chancellor of UHS (respondent No.3) is directed to ensure that improved marks of 27 applicants, including the petitioners, are included in their respective applications for admission by substituting the original marks till 06.02.2022 and considered the improved marks, while preparing the merit list for admissions for MBBS/BDS in question.

12. This and connected petitions are allowed with direction to the Vice Chancellor-UHS. MH/F-4/L Petitions allowed.