2019 PLP 437 (YLR)

AMIN-UD-DIN KHAN, J.

Through this writ petition, following prayer has been made:-- "By gracing this petition with acceptance, the list of candidates selected against the disabled seats for admission in M.B.B.S. Session 2017-18 issued by respondent on 29.11.2017 and all subsequent lists be declared as null and void and the respondent be directed to issue a fresh list after implementing section 10 of The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981. It is awfully implored that by gracing this petition with acceptance, the list of candidates selected against the disabled seats for admission in M.B.B.S. Session 2017-18 issued by respondent on 29.11.2017 and all subsequent lists be declared as null and void and the respondent be directed to issue a fresh list after considering the petitioner as a disabled person as defined by their own prospectus. It is in the alternate implored that a fresh board be constituted consisting of at least three medical professionals and the petitioner be re-examined qua his disability. Any other writ which this Court may deem appropriate may also be issued in the interest of justice."

2. I have heard learned counsel for the parties at length. No need to note all the arguments advanced by the adversaries which will be a futile exercise as very limited question for determination is before this Court.

3. Admittedly, petitioner applied for admission in M.B.B.S. Session 2017-18 on the basis of disability. Petitioner has appended a Disability Certificate issued by the Chairman as well as the Secretary, District Assessment Board, District Layyah according to which type of disability of the petitioner is "Difficult in Speech".

4. The other ground taken by learned counsel for the petitioner is that as per The Disabled Persons (Employment and Rehabilitation) Ordinance, 1981 (XL of 1981), the quota of disabled persons must be @ 3%. According to learned counsel for the petitioner, total seats for M.B.B.S. are 3405 whereas at least 19 seats are reserved for disabled quota, which are much less than the quota. Against this argument, learned counsel for the respondent-University of Health Sciences has referred the Prospectus of U.H.S. wherein at Page-3 at Sr. No. 1 under the head of General Policy Guidelines, it has been written that "The rules and regulations contained in this prospectus are approved by the Government of the Punjab (notified by Specialized Healthcare and Medical Education Department, Government of the Punjab, vide Notification No. SO(ME)9-4/2017 dated 10th August, 2017). The prospectus is revised on yearly basis to update the changes". Learned counsel for the respondent argues that in the instant writ petition, Province of the Punjab has not been arrayed as party, therefore, the argument advanced by learned counsel for the petitioner is worthless and cannot be attended to by this Court.

5. In this view of the matter, the argument of learned counsel for the respondent to this effect is valid as without impleading Province of the Punjab/ Government of the Punjab, the argument of learned counsel representing the petitioner with regard to number of seats reserved for disabled quota cannot be entertained and as such the same prayer made through this writ petition is not tenable under the law.

6. Now coming to the question of disability of the petitioner. As per medical certificate appended by the petitioner, at the time of filing the application form for admission in M.B.B.S. for the Session 2017-18 against disabled quota, petitioner was medically examined by medical board comprising three Professors of ENT and one Assistant Professor Psychiatry.

7. Admittedly, the criteria for seats for disabled students in U.H.S. is as follows:-- "ii) Seats for Disabled Students:- a. The admission against these seats shall be carried out strictly on merit from amongst the Punjab-domiciled candidates who apply for these seats and who have already appeared in the Entrance Test for the session and passed HSSC/F.Sc. (Pre-Medical) or equivalent examination with a minimum of 60% (660/1100) marks. b. The candidate shall have to attach a certificate from a government certified specialist about the nature of his/her disability. Such certificate, however, will only make him/her eligible to apply against the reserved seats. c. A Medical Board constituted by the Chairman Admission Board will make final decision about the eligibility of the candidate for admission against the reserved seats. d. The Medical Board shall consist of following committees each comprising 3 to 5 experts in the relevant field. i. Physical Disability Committee. ii. Visual Disability Committee iii. Hearing Disability Committee. f. Disability for the purpose of admission to medical and dental institutions is defined as a physical impairment that has a substantial and permanent, adverse effect on candidate's ability to carry out normal day-to-day activities and puts him/her at disadvantage as compared to a normal person acquiring education before entering a medical or dental institution. Here: 'substantial' means neither minor nor trivial 'permanent' means that the effect of the impairment is likely to last for the rest of the person's life 'normal day-to-day activities' include mobility, manual dexterity, speech, hearing, seeing, understanding danger, and memory. g. The threshold of disability will be judged by the Medical Board, according to a structured criterion. h. The Merit List of disabled candidates shall be finalized on the basis of inter se merit. i. The decision of the Medical Board shall be final."

8. The conclusion drawn by the Committee of Medical Board is as under:-- Sr. # Sections Recommendations

1. History Petitioner has had stuttering disorder since childhood. He has never got treatment for his stuttering disorder.

2. Clinical Examination On detailed mental state examination, the individual has moderate anxiety (which can be relatable to the pressure of entering into medical college) and his stuttering disappeared after he was distracted. Which gives a very strong cue that it is basically psychological in origin and can easily be treated.

3. Conclusion --

4. Recommendations Stuttering disorder is a treatable condition and certainly does not possess the likelihood of a major disability. Hence, not eligible for disability seat.

9. It is an admitted fact that neither the petitioner has challenged the recommendations of the Committee of Medical Board constituted by the respondent-University nor copy of the said recommendations has been appended with this writ petition. Even the petitioner has not claimed any partiality, bias or discrimination against the Committee of Medical Board examined him.

10. I am conscious of the fact that this Court cannot exercise the powers of judicial review against an expert opinion given by a Committee of Medical Board consisting of three Professors and one Assistant Professor. Light can be taken from De Smith's Judicial Review (Sixth Edition) by Harry Woolf, Jeffrey Jowell and Andrew Le Sueur. At Page-20, it is found written as follows:-- Matters which are polycentric 1-033 A third limitation on the court's institutional capacity occurs when the matter to be determined is "polycentric". Most "allocative decisions"/decisions involving the distribution of limited resources-fall into this category. If the court alters such a decision, the judicial intervention will set up a chain reaction, requiring a rearrangement of other decisions with which the original has interacting points of influence.

11. I can further strengthen my view by the judgments of the Apex Court reported as "Muhammad Ilyas v. Bahauddin (Zakariya University, Multan and another" (2005 SCMR 961) and "University of Health Science, Lahore through Vice-Chancellor and others v. Arslan Ali and another" (2016 SCMR 134).

12. In addition to above, I have further noticed that neither the other candidates who have been granted admission in the M.B.B.S. Session 2017-18 have been made party nor their medical certificates have been appended or challenged through the instant writ petition.

13. Pursuant to above circumstances, the declaration sought for through this petition cannot be granted. Resultantly, writ petition being devoid of force stands dismissed. SA/M-159/L Petition dismissed.