2000 PLP 737 (CLC)

"10‑‑‑ the order of preference in selecting the candidates for M.B.,B.S./B.D.S. course shall be as under:‑‑‑ Ist Preference: Intermediate science Pre‑medical group Grade‑B and above. 2nd Preference: B.Sc. (Biological Sciences) Grade‑B and above with inter‑Science Pre‑medical Group securing at least Grade "B".

3. Mr. Ghulam Qadir Jatoi learned counsel for the petitioner argued that the petitioner was a student of outstanding merit as is inter alia evident from the fact that she obtained first position in the University in her B.Sc.examination and A‑1 grade in matriculation. Even her performance in the Intermediate and the entry test is far superior‑ to most candidates that are being considered entitled to admission. As such denial of admission to her would amount to great injustice. Learned counsel, however, was unable to assist us on the question of how Rule 10 quoted above could be surmounted. He attempted to place reliance on a judgment of the Honourable Supreme Court in Hina Jawaid v. Government of N.W.F.P. 1998 SCMR 1469. Having read the aforesaid judgment very carefully. however, we do not find anything therein which could support Mr. Jatoi's contention.

4. On the other hand Mr. Sarwar Khan learned Additional Advocate General very candidly conceded that he was not able to defend the position taken up by the respondents in the comments as it would lead to great injustice inasmuch as a candidate though found eligible to participate in the entry test may be denied admission despite the fact that his/her performancc was far superior to several others merely because such candidate had become eligible to apply on the basis of having passed B.Sc. Examination. According to learned A.A.‑G, therefore, all that Rule 10 meant was that if two candidates had secured equal marks on merit the one having applied on the basis of Intermediate Examination would, be accorded preference.

5. The Merit List of candidates from Hyderabad was placed on record pursuant to our directions on 4‑11‑1999. Prof. Jan Muhammad Bhutto, the respondent No.2 and Dr. Aziz Memon a Section Officer in the Health Department appeared in Court and stated that the petitioner was the only candidate who had applied on the basis of having passed her B.Sc. Examination and her name appears on the Merit List. On 5‑11‑1999 learned A.A. ‑G. confirmed that only one list had been prepared.

6. We have anxiously considered both the aspects of the controversy. Prima facie there is force in the contention of the respondents, that when the Rules specify a particular order of preference in selection of candidates possessing B.Sc. degree would be considered only after the list of those having passed Intermediate in Grade "B" or above is exhausted. At the same time it is not ease to accept the interpretation suggested by the learned A.A.‑G. inasmuch as Rule (.v) expressly deals with situations where the adjusted marks of two or more candidates are equal and does not provide that one obtaining higher marks in Intermediate or having applied on the basis of passing the Intermediate Examination during the relevant year would be accorded priority. At the same time, the Merit List placed on record contains some 932 names and several candidates mentioned therein have secured less than 700 marks as against 820 marks obtained by the petitioner in her Intermediate Examination. Moreover, many of them have obtained Zero or even negative marks in the entry test as against 268 obtained by the petitioner. It appears highly unfair to assume that for the purpose of admission such candidates must be deemed to be more petitioner, who has prepared better both in the entry test and the Intermediate Examination.

7. It may now be pertinent to consider the system of according admissions in Medical Colleges in the Province. It may be recalled that under the rules operative prior to the year 1998‑99 (hereinafter mentioned as the old Rules) students having passed their Intermediate (pre‑medical), B. Sc. (Biological Sciences) or equivalent examinations during specified years and obtaining certain minimum number of marks were eligible to apply. Under Rule 17(a) the respective "merit" of a candidate qualified for admission was determined strictly .on the basis of marks obtained in the Intermediate or B.Sc. Examination (after appropriate adjustments) as the case may be. Accordingly separate merit lists had to be prepared for those passing the two examinations or equivalents thereof and in this context Rule 10 proceeded to grant preference, as a class, to those having applied on the basis of Intermediate result over those having done so on the basis of B.Sc. The interpretation of Rule 10, in the context of the old Rules placed by the Respondents appears to be quite justified. The question whether such classification was permissible in that context need not obtain us as the Rules have ceased to exist.

8. Apparently the system of merit evaluation under the old Rules came under a great deal of criticism primarily because the credibility of the Intermediate Examinations came to be severely eroded. Consequently from the year 1998‑99 a new system of merit evaluation was introduced which appears in the prospectus for the aforesaid year (hereinafter mentioned as the new Rules). Under the new Rules an objective entry test is required to be conducted. Under Rules 1 and 2 candidates having passed their Intermediate or B.Sc. Examinations during specified years are eligible to participate in the entrance test. The performance of a candidate in such test is the dominant factor in working out the overall merit of a candidate for the purpose of admission under Rules 17 and

18. Indeed such method of merit evaluation appears just and fair and has been upheld as unexceptionable even by the Honourable Supreme Court in Hina Javed v. Government of N.W.F.P. 1998 SCMR 1469. Under the new Rules the overall merit of a candidate is worked 50 % credit is accorded to his performance in the ‑entry‑test, 40 % to his adjusted marks in Intermediate (or equivalent) Examination and 10% to his marks in Matriculation (or equivalent) Examination. It may be emphasised that the new Rule 17(a) expressly provides that the result in Intermediate Examination, even for those having applied on B.Sc. basis, is to be taken into consideration. In other words the performance of a candidate at the B.Sc. Examination is altogether irrelevant for the purpose of determining his merit.

9. Indeed the old Rule 10 in its pristine form has been retained. However, against the above background and the admitted position that only one entry test was held and one merit list was prepared we are extremely doubtful if the classification envisaged under the old Rules was intended to be retained. It is evident that the new Rules purport to treat all eligible candidates (for purpose of merit evaluation) exactly at par. Under the new Rule 17 even when a candidate applies on the basis of having passed his B.Sc. only his result at the intermediate level is relevant. The rules do not require minimum pass mafks for the entry test and if every candidate eligible to appear in the test (having obtained "B" Grade in Intermediate) was to be given priority over those having passed B.Sc. evaluation will become altogether illusory for those made eligible to apply on the basis of having passed B.Sc. We, therefore, find it, extremely difficult to harmoniously reconcile Rule 10 with Rule 17 or the scheme of the new Rules.

10. The interpretation canvassed by the respondents in their comments becomes all the more questionable when we consider Article 37(c) of the Constitution which requires the state to make professional and technical education generally available and higher education equally accessible to all on the basis of merit. Indeed this provision, occurring in the Chapter on Principles of Policy is not directly enforceable. Nevertheless, it is settled law that it casts obligations upon the legislature and it ought to be assumed that laws were made to give effect to these principles. Therefore, they can always be considered for interpreting a statute. Section III of the Sindh Medical Colleges Act, 1987 confers powers upon the Government to make rules regulating admissions in Medical Colleges maintained by the State and obviously the rule‑making power is conferred to provide for admissions on merit. The eligibility criterion for applying and the method of determination of merit has been laid down giving prime importance to performance in the entry test. A literal interpretation of Rule 10 seems to lead to the ludicrous consequence, that a person securing the bare minimum marks in the Intermediate to be eligible to apply and performing hopelessly in the entry test must be accorded priority in admission over one having performed exceedingly well in the test, securing much higher marks in Intermediate and also having acquired a higher qualification. Such basis of admission we are afraid could be premised on anything but merit. Indeed the comments of the Respondents read with the merit list amply demonstrate such endicrous situations. Therefore, if Rule 10 is literally construed, it must be struck down as being ultra vires section III of the parent statute, Le the Sindh Medical Colleges Act.

11. Moreover, the question whether those becoming eligible to apply on the basis of having passed B.Sc. Examination could be treated as a separate class, inferior to those having applied on the basis of Intermediate results, in the scheme of admissions needs to be considered from the stand point o Constitution validity as well. Article 25 of the Constitution guarantees that 8 all citizens are equal under the law and entitled to equal protection of laws.1n the context of admissions to professional colleges this Court has held, in 8 Abdul Qadir Sheikh v. N.E.D University of Engineering and Technology 1992 CLC 2222 that Article 25 is to be read alongwith Article 37(c). It was observed by Mamoon Kazi, J. (as his lordship then was) that any rule which deviates from the policy porpounded in Article 37(c) can be subjected to scrutiny on the touchstone of Article 25 that people in different situations can be treated differently but such classification must be reasonable and bear a rational nexus with the objection of the law as repeatedly held by the Honourable Supreme Court. No doubt it may be permissible to assume, other things being equal, that those attaining a certain level of performance in their first attempt are more meritorious than those having done so in subsequent attempts and may be accorded a slight preference. However, once the Rules have enabled those passing B.Sc. Examination eligible to apply, a stipulation that despite their better performance according to prescribed standards of merit evaluation (marks in the entry test, Intermediate and Matriculation Examinations) they must be treated as an inferior class basis is palpably irrational and bears no nexus whatsoever with the object of the law designed to regulate admissions on the basis of merit.

12. In view of the above there appear two options available to the Court Le either to strike down the abovementioned Rule 10 as unconstitutional or to read it down and interpret it in such manner so that it can be harmoniously reconciled with the requirements of a higher law i.e. the Fundamental Rights guaranteed by the Constitution. The principle of "reading down" has been acknowledged by our own Supreme Court in the recent well‑known case of Illahi Cotton Mills v. Federation of Pakistan PLD 1997 SC 582 where at page 679 it was summarised by Ajmal Mian, J. (as his lordship then was) in the following words:‑‑‑ "That the theory of reading down is rule of interpretation which is resorted to by the Courts when they find a provision read literally seems to offend fundamental rights or falls outside the competence of a particular legislature."

13. Accordingly, we would agree with the learned A.A.‑G. and interpret the expression preference in Rule 10, as was done by the Supreme Court of India in Sher Singh v. Union of India AIR 1984 SC 200 in a slightly different context, only to mean that when the marks of two candidates worked out under Rule 18 are equal, the one having applied on the basis of Intermediate Examination will be given preference and Rule 17(v) will apply thereafter. For these reasons, we will allow this petition and direct the respondents to accord admission to the petitioner on the basis of her position in the merit list and in accordance with the rules to the above interpretation. Q.M.H./M.A.K./A‑366/K Petition allowed.