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Petitioner: TALHA SARFRAZ VS Respondent: AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 16 others
Court Name: High Court of Azad Jammu and Kashmir Judge(s):M. Tabassum Aftab Alvi, Ghulam Mustafa Mughal, Munir Ahmed
Chaudhary Title:TALHA SARFRAZ vs AZAD GOVERNMENT OF THE STATE OF JAMMU AND KASHMIR through Chief Secretary and 16 others Case No.: Writ Petition No.530 of 2012 Date of Judgment:2012-11-29 Reported As: 2013 YLR 652 Result: Order accordingly Judgment ORDER ' GHULAM MUSTAFA MUGHAL, C.J.---The captioned petition is directed under section 44 of the Azad Jammu and Kashmir Interim Constitution Act, 1974, whereby admission of private respondents, herein in Medical College Muzaffarabad and Mirpur against the seats reserved for Overseas Kashmiris has been challenged for having made without lawful authority. ' Facts of the case are that petitioner and private respondents applied for admission in M.B.B.S. Course in Azad Jammu and Kashmir Medical College Muzaffarabad and Mohtarma Benazir Bhutto Shaheed Medical College, Mirpur against the seats reserved for the Overseas Kashmiris. Private respondents, herein, have been granted admission by the Admission Committee whereas petitioner has been refused the same on the ground that he could not obtain merit position against the quota of Overseas Kashmiris. The petitioner has challenged the admission of the private respondents on the ground that criteria formulated by the official respondents in the meetings dated 29-12-2011 and 20-2-2012 is violative of PM&DC Regulations, 2010. It is alleged by him that through arbitrary and colourable exercise of powers respondents have infringed the fundamental right of education enshrined in section 4(8) of the Interim Constitution Act 1974 and have also violated the PM&DC Regulations known as "Conditions for Admission in MBBS and BDS Courses and Conditions for Job Regulations, 2010. It is further alleged that petitioner was sole eligible candidate against the quota of Overseas Kashmiris in view of Rule 9 sub-rule (2) & (3) of the PM&DC Regulations but the official respondents have accommodated the candidates who were their kith and kins on the ground of favouritism and nepotism. It is further stated that
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respondents have even violated their own criteria framed in meetings dated 29-12-2011 and 20-2- 2012. It is further stated that under Item No.9 of the minutes of meeting dated 20-2-2012 it was resolved that criteria adopted for nomination against the reserved seats by the medical colleges in Pakistan shall be consulted and adopted but in violation of the rules, private respondents who were not fulfilling the required conditions have been admitted against the Overseas seats. It is pleaded that respondent No.11 has been granted admission on the basis of political consideration by violating the conditions of PM&DC Regulations because his father is Government servant and is not in possession of the documents which were required for the purpose of admission against the Overseas seats. It is prayed that by declaring the act of respondents capricious, mala fide and violative of guidelines approved in the meeting on 20-2-2012, admissions of private respondents may be declared to have been made without lawful authority. ' Petition has been contested by the respondents by filing separate written statement. The respondents have negated the facts pleaded by the petitioner on common grounds. It is prayed that the petition may be dismissed on the ground that after acceptance of the terms and conditions of advertisement, policy laid down by the respondents from time to time and criteria adopted by the executive committee in its meeting dated 20-2-2012, petitioner has submitted his application for nomination against the seats reserved for Overseas Kashmiris and after being unsuccessful in obtaining admission, he cannot challenge the procedure adopted for admission by the admission committee on account of acquiescence and estoppel. It is further stated by the respondents that petitioner has not attained merit position, hence, has rightly been denied admission. Respondents have submitted that rules of PM&DC have been followed and merit has been determined strictly in accordance with the said rules and the criteria formulated by the official respondents. It is also stated on behalf of respondent No.11 that petitioner's parents have died while they were serving in Saudi Arabia and after their death petitioner shifted tto Pakistan and received his education from Azad Jammu and Kashmir. He did his F.Sc. From Mirpur Board hence, is not entitled to be considered for admission against the disputed quota. On behalf of respondent No.11, it is pleaded that though his father is in the service of Azad Jammu and Kashmir Government, however, he was allowed private practice under rules and he has been practising outside the country after obtaining ex-Pakistan leave on the basis of a valid resident visa. He was registered as. Overseas Kashmiri with the Overseas Pakistanis Foundation, therefore , was entitled to be admitted against the seats reserved for Overseas Kashmiris in view of his merit position. In the written statement filed on behalf of respondents Nos.8, 9, 12, 14 and 16 same grounds of defence have been raised, therefore, need not to be reiterated. ' Mr. Sadaqat Hussain Raja, the learned counsel for the petitioner vehemently argued that first advertisement for the purpose of admission was issued in daily "Jang" on 27-12-2011 in which the last date for submission of the applications was fixed as 5th January, 2012 and without any genuine reason, a corrigendum was issued vide annexure PA/1 in which date was extended from 5th January, 2012 to 10th January, 2012. He submitted that the time was further extended till 16th January 2012 and once again extension was allowed up to 27-1-2012. The learned counsel referring to the advertisement and their dates strenuously argued that extension has been granted by the respondents with mala fide intention in order to accommodate the private respondents especially respondent No.11 who has submitted his application before expiry of the last extended date and prior to that he was not in possession of the documents which were to be, furnished along with the application in view of the criteria adopted by the respondents in the meeting dated 20-2-2012. The learned counsel vehemently argued that for granting admission to private respondents the official respondents changed their policy from time to time and have given undue benefit to the respondents on the basis of political consideration, nepotism and favouritism. The learned counsel contended that respondents were not competent to frame policy/criteria in violation of PM&DC
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Regulations and in case of contradiction, said Regulations shall prevail and the criteria framed by the official respondents being ultra vires to the Statutory Rules/ Regulations, is liable to be ignored. He argued that it was enjoined upon the respondents to make admission strictly in accordance with Regulation 9 of PM&DC Regulations, 2010 which provides that candidates must have studied from abroad from a foreign education system. He submitted that private respondents are not fulfilling these conditions, so they were not even entitled to be considered for admission against the Overseas Kashmiris seats. The learned counsel submitted that admission of Basit Mukhtar, respondent was totally illegal, because the same has been made in violation of the statutory rules on the basis of so-called policy framed by the respondents. It is further submitted that neither father of Basit Mukhtar was an Overseas Kashmiri, nor he is in possession of foreign education. The learned counsel contended that petitioner was the only candidate who was in possession of Residential Certificate from abroad. It is further contended that parents of the petitioner were died but he remained residing in Saudi Arabia and resident certificate issued to him was valid at the time of admission, therefore, he was entitled to admission against one of the seats falling in the quota of Overseas Kashmiris. It is stated that change in the merit list has been effected in- order to deprive the petitioner from his lawful right, of admission and education. ' Kh. Attaullah Chak, the learned counsel appearing for respondent No.11 has controverted the arguments advanced on behalf of petitioner. The learned counsel contended that 2 Medical Colleges have been established for the first time in Azad Jmmu and Kashmir and it was decided to start the classes forthwith, hence, the statutory rules could not be framed for regulating the admission and no prospectus was issued by the Admission Committee as is done in the Punjab and other Provinces of Pakistan. The learned counsel contended that though PM&DC Act, Rules and Regulations framed thereunder have been adapted in Azad Jammu and Kashmir, but notwithstanding the adaptation of Act and Rules, the Govt. Is competent to frame policy or guidelines for the purpose of admission and the criteria adopted by the executive committee/Government is neither contrary to the PM&DC Regulations nor can be declared as such. He argued that after accepting the conditions of the advertisement, criteria approved in the meeting dated 20-2-2012 and after being unsuccessful in obtaining admission, petitioner is estopped from challenging the process of selection on the basis of principles of acquiescence and estoppel. The learned counsel contended that even otherwise procedural irregularities committed by the respondents are ignorable, because it was first experience and the classes were to be started within the time framed fixed by the PM&DC. He argued that annual exam of the first year has been scheduled, therefore, acceptance of writ will not serve any purpose, because the petitioner cannot be admitted in the previous session and ouster of the private respondents will be shocking. In support of his submission, the learned counsel placed reliance on a judgment of the apex Court rendered in Civil Review No.6/97 titled "Aisha Hameed Qadri v. Azad Govt. And others" decided on 13-11-1997. The learned counsel maintained that in the cited case, apex Court of Azad Jammu & Kashmir mould the relief according to the circumstance which happened after the admission and institution of the petition and declined to disturb the students who were studying in the relevant institution although their merit position stood changed after availability of the additional seats. The learned counsel prayed that Overseas Pakistanis Foundation which has issued the certificate in favour of. Basit Mukhtar on the basis of which he has been declared entitled to admission has not been impleaded in the line of respondents, therefore, no effective direction can be issued and petition is liable to be dismissed on this sole ground without attending its merits. He argued that writ jurisdiction being discretionary can be refused even otherwise in the circumstances of this case because respondents are likely to be placed in an ugly position. ' Mr. Khalid Yousaf Chaudhary, the learned counsel for respondents Nos. 8 to 10 and 16 has filed written arguments wherein it is submitted that stand of the petitioner is self-contradictory and
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inconsistent. He applied against the seats reserved for Overseas Kashmiris and was considered by the official respondents. He did not obtain merit position, therefore he was refused admission. The learned counsel pleaded that respondents Kos.8 to 10 and 16 were fulfilling the prescribed qualification, therefore, their admission cannot be recalled on the move of the petitioner who has not obtained merit position. ' We have heard the learned counsel for the parties and gone through the record of the case with our utmost care. ' It may be stated that captioned petition was filed in this Court on 10-3-2012. After necessary proceedings vide judgment and order dated 6-6-2012 the same was dismissed on the ground that petitioner is not aggrieved. Petitioner felt aggrieved from the judgment and filed an appeal before the apex Court of Azad Jammu and Kashmir. The apex Court vide judgment dated 7-11-2012 by setting aside the judgment of this Court dated 6-6-2012 has remanded the case for decision on merit. ' In order to resolve the controversy, it is necessary to refer the PM&DC approved Regulations for admissions in M.B.B.S/BDS courses. The admissions in the Medical Colleges of Pakistan have been regulated through the regulations called "The Conditions for Admission in MBBS and BDS Courses and House Job Regulations, 2010". For proper decision of the controversy Rules 4 and 9 of the said Rules are produced as under:-- (4) Minimum Academic Requirements for admission in the MBBS/BDS Course: (1) For local Pakistani Students. (2) For Overseas Students. (i) The candidate who has passed an examination equivalent to Intermediate level of Pakistan from a foreign education system with three science subjects out of which Biology and Chemistry are essential subjects with 60% marks in each as certified by IBCC, is eligible to appear in the entry test of MBBS/BDS. On open merit seats no admission shall be given except through the provincial entry test (ii) On foreign seats only and not on open merit seats, in lieu of the entry test of the admission authority, the candidates is required to have passed SAT II examination score with minimum 550 marks in each of the three science subjects of which two have to be Biology and Chemistry. (iii) ............................ (9) Admission on Overseas (foreign) self-finance seats and eligibility criteria for foreign students and Pakistani students who have done premedical studies from abroad (1) No admission shall be given in MBBS/BDS course on the Overseas (foreign), self finance seats or any other such Government or private scheme, without any entry test or the requisite SAT II score of 550 marks. (2) Only 10% of seats in a private college shall be allowed to be foreign seats. The foreign/overseas self-finance seats shall be filled only by persons who meet the Council criteria for admission on foreign seats. (3) The following categories of students shall be eligible for admission on the Overseas (foreign) self-finance seats if they fulfil the following conditions: (1) Pakistani national student having passed an examination equivalent to Intermediate level of Pakistan after study abroad from a foreign education system with three science objects out of which Biology and Chemistry are essential subjects with 60% marks in each certified by IBCC, is eligible to appear in the entry test for admission in MBBS/BDS subject wise equivalence by IBCC shall be acceptable irrespective of study group mentioned by IBCC if any. In lieu of the entry test of the admission authority, the candidates is required to have passed SAT II examination score with minimum 550 marks in each of the three science subjects of which to have to be Biology and Chemistry.
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(2) Foreigners and Pakistanis having duel nationality shall be eligible for admission on foreign/ Overseas seats irrespective of the place of their pre-medical study, Pakistan or abroad. They shall either have to appear in the entry test or present the admitting authority/University with the requisite SAT scores and entry test marks. The candidate is required to have passed intermediate from a Pakistan board or an examination equivalent to intermediate level of Pakistan after study abroad from a foreign education system. (3) Pakistani students studied abroad for premedical but appearing in the Pakistani boards from abroad are also eligible. They shall either the Pakistani boards from abroad are also eligible. They shall either have to appear in the entry test or present the admitting authority/University with the requisite SAT scores and entry test marks. The candidate is required to have passed intermediate from a Pakistan board or an examination equivalent to intermediate level of Pakistan after study abroad from a foreign education system.... ' The executive committee constituted for the purpose of supervision, scrutiny and admission held a meeting in the office of Chief Secretary, AJ&K, Muzaffarabad on 20-2-2012. After examining the progress regarding the establishment of the Medical Colleges, the following additional criteria for admission against the seats reserved for Overseas Kashmiris was approved:- 9. Reserve Seats:-- (a) Admission against the reserve seats for Occupied Kashmiri students. The nomination against those' seats will be awaited till 29th February, 2012. Failing to get nomination by the due date these seats will be converted into open merit. (b) Nomination against Overseas seats: For the nomination against the overseas students, the criteria of nomination against such reserve seats for other medical colleges in Pakistan to be consulted as guideline and following documents will be mandatory: (1) Overseas Pakistani card. (2) A bank draft of US$4000. (3) The copy of the Passport of parents with resident visa/work permit/ proof of second nationality. (4) Proof of tangible fund remittance by the parents from abroad. (5) Proof of AJK nationality (State Subject Certificate) ' For proper appreciation of the matter the criteria approved and laid down for admission against the seats reserved for Overseas Pakistanis by the University of Health Science, Lahore is also reproduced as under:-- "Foreign Students Seats: (a) (b) Foreign Students Seats Under Self-Finance Scheme (FSF): (a) The eligibility criteria for admission of foreign students and students of Pakistani origin under Self-Finance Scheme shall be as follows:-- (i) The< applicant must hold a permanent foreign nationality at the time of admission (dual nationality for Pakistani origin applicants). (ii) The applicant must have passed HSSC/12th grade or equivalent examination (either from Pakistan or abroad). (iii) The applicant must have scored a minimum of 60% marks in HSSC/12th grade or equivalent examination with Chemistry and Biology as compulsory subjects and third science subject could be Physics or Mathematics. (iv) The applicant has either appeared in the Entrance Test of the Punjab OR passed SAT-II examination with a minimum score of 550 marks in each subject I . e. , Biology, Chemistry and Physics/Mathematics. ' We have considered the PM&DC Rules, guidelines laid down by UHSL and criteria adopted by the Executive Committee constituted by the Government in its meeting dated 20-2-2012 in
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juxtaposition. In view of the observations recorded by the apex Court in the remand order, first question which needs resolution is as to whether in presence of PM&DC Regulations, the executive committee or Government was competent to frame its own policy and criteria for admission and, as to whether the criteria/policy framed by the executive Committee is in line with the statutory rules? Admittedly, the PM&DC Ordinance, 1962 and all the rules and regulations framed thereunder from time to time have been adapted in Azad Jammu and Kashmir, that is why in the meeting dated 29-12-2011 it was resolved that for the purpose of admission in the Colleges the criteria and policy laid down by the PM&DC shall be adhered to. It hardly need any deliberation that PM&DC has been established under the aforesaid Ordinance as an autonomous body. The objective and scope of the various provisions and its supervisory role has been examined by the apex Court of "Pakistan in a case titled Pakistan Medical and Dental Council v. Ziauddin Medical University and others" (PLD 2007 SC 323]. The honourable Supreme Court of Pakistan after examining various provisions, at Page 335 of the report concluded in respect of the objective and responsibilities of the Council, as under:- "A careful study of various provisions of the Ordinance referred to in the preceding paragraphs show that the objective of the ordinance are as follows:- ' Maintenance of uniform standard of Medical and Dental Education (at the Graduate and Postgraduate level). (ii) Recommendations for recognition, de-recognition of medical qualifications registration of doctors with recognized medical' qualifications within the country or outside the country. (iii) Registration of doctors possessing recognized medical qualification from within country or from foreign countries. (iv) Making arrangements with foreign countries for according reciprocal recognition to the medical qualifications." ' In view of above the Council has sole authority to provide qualification as well as other conditions for the purpose of medical education etc. The same view was taken earlier in a case titled "Nadir Khan and others v, Principal Khyber Medical College Peshawar and others" reported as 1995 SCMR 421. At page 428 of the report, it was observed that "the regulations framed by PM&DC shall as to all the medical colleges of Pakistan irrespective of the fact whether prospectus issued by these colleges contained a similar provision or not." No doubt, the Government can establish medical colleges and reserve seats for different categories because it is the prerogative of the Government. The Government is also competent to adopt policies which are essential for day to day business within constitutional framework. However, where a case of arbitrary exercise of power by the Government or a public functionary is made out or violation of statutory rules is proved or any policy or executive or administrative order has been issued without any statutory backing, or any contravention is noticed in the policy or order and statutory rules, then the Court is duty bound to declare such policy and administrative order to the extent of such inconsistency against the statute and without lawful authority. Identical view was taken in the following cases:-- (1) AIR 1984 SC 1543 (2) AIR 2009 SC 2322 and; (3) 2012 SCMR 1841; ' In the first case referred to hereinabove, it was observed as under:- "The Court should be extremely reluctant to substitute its own views as to what is wise, prudent and proper in relation to academic matters in preference to those formulated by professional men possessing technical expertise and rich experience of actual day-to-day working of educational institutions and the departments 'controlling them." ' In the second case, their lordships concluded as under:--
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"The Courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the Courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realizing the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education. The role of statutory expert bodies on education and role of courts educational policy or an issue involving academic matter, the courts keep their hands off. If any provision of law or principle of law has to interpreted, applied or enforced, with reference to or connected with education, the courts will step in." ' It the 3rd case apex Court of India at page 1855 of the report, it was observed as under:-- "Thus, the process of evaluation, . The process of ranking and selection of candidates for admission with reference to their performance, the process of achieving the objective of selecting candidates who will be better equipped to suit the specialized courses, are all technical matters in academic field and courts will not interfere in such processes. Courts win interference only if they find all or any of the following: (i) Violation of any enactment., statutory Rules and Regulations; (ii) mala fides or ulterior motives to assist or enable private gain to someone or cause prejudice to anyone., or where the procedure adopted is arbitrary and capricious. An action is said to be arbitrary and capricious, where a person, in particular, a person in authority does any action based on individual discretion by ignoring prescribed rules, procedure or law and the action or decision is founded on prejudice or preference rather than reason or fact. To be termed as arbitrary and capricious, the action must be illogical and whimsical, something without any reasonable explanation. When an action or procedure seeks to achieve a specific objective in furtherance of education in a bona fide manner, by adopting a process which is uniform and non- discriminatory, it cannot be described as arbitrary or capricious or mala fide." (Underlining is our) ' As we have held that PM&DC is only statutory body vested with the authority to frame policy, criteria for admission for Medical. Colleges, therefore, the executive…
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