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Petitioner: Miss HINA JAVED and others VS Respondent: GOVERNMENT OF N.-W.F.P. and others
Court Name: Supreme Court of Pakistan Judge(s): Raja Afrasiab Khan, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title: Miss HINA JAVED and others vs GOVERNMENT OF N.-W.F.P. and others Case No.: Civil Appeals Nos. 26 and 27 of 1997 Date of Judgment:1998-05-13 Reported As: 1998 SCMR 1469 Result: Appeal dismissed
JUDGMENT
JUDGMENT SAIDUZZAMAN SIDDIQUI, ACTG. CJ.---The appellants applied for admission to M.B.,B.S. 1st year classes academic year 1996-97, in Khyber Medical College (KMC), Peshawar and Ayub Medical College (AMC), Abbottabad on the basis of their results of the F.Sc. (Pre-medical) examination of the Board of Intermediate and Secondary Education. They were, however, denied admission on the ground that they failed to qualify the entry test held by the College Authorities for admission to 1st year M.B.,B.S. Classes. The appellants in Civil 'Appeal No,26 of 1997 challenged the refusal by the College Authorities to admit them in Ist year M.B.,B.S. Classes on the basis of the Jesuit of entry test organised by the College Authorities, in Writ Petition No,1430 of 1996 filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (hereinafter to be referred as 'the Constitution'), before the Peshawar High Court which was dismissed summarily by a learned Division Bench of that Court as follows:--- "The entry test in the Professional Colleges or otherwise in other Colleges is now a well recognised criteria, manner and method for selection of candidates for admission in a college or institution having limited number of seats. As pointed out by the learned counsel for the petitioners entry test has also been prescribed for Agha Khan Medical College, Karachi and as well for Army Medical College, Rawalpindi and now besides the medical colleges other colleges and institutions are holding and conducting entry tests. This manner and method has been evolved due to notoriety of the results of the Secondary Board of this Province which now has disinterated into 4 Boards almost division-wise. Even admissions in Professional institutions in foreign countries do require entry tests. The marks obtained in the final examination by a candidate can also not be a safe and sole criteria, otherwise there would have been no need of conducting competitive examinations for
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different services in Pakistan and the Province, although there is much difference between a test and a competitive examination, which need not be elaborated and discussed in this case as neither it has been urged nor is relevant in the case of the petitioners. After hearing the learned counsel for the respondents, there is no need to proceed further in this petition which consequently is dismissed in limine and the order of status quo, dated 23-12-1996 in respect of final list of the successful candidates is vacated." 2. The appellants in Civil Appeal No,27 of 1997 also applied for admission to 1st year M.B:,B.S. Classes in the two medical colleges in the .Province of N.-W.F.P. On the strength of their results in F.Sc. (Pre- Medical) but like the appellants in Civil Appeal .No,26 of 1997 they too were declined admission in the colleges, as they failed in the entry test held by the College Authorities. The appellants in Civil Appeal No,27 of 1997, however, without challenging the action of College Authorities first before the Peshawar High Court, filed a petition before this Court against the judgment of Peshawar High Court impugned in Civil Appeal No,26 of 1997, contending as follows:--- "That the petitioners who have passed their F.Sc. Examination with flying colours, details whereof are given hereunder, are adversely affected by the judgment of the Peshawar High Court rendered in a case titled Hine Javed and others v. Khyber Medical College, Peshawar, etc. Vide Writ Petition No,1439 of 1996. In view of the dictum laid down in H.M. Saya & Company v. Wazir Ali Industries Limited (PLD 1969 SC 65), they are entitled to appeal against the order/judgment rendered by the Peshawar High Court. Some of the similarly aggrieved persons filed petitions in the Peshawar High Court. The cases of petitioners are identical and after rendering of the judgment by the Division Bench of the Peshawar High Court of which they are aggrieved they cannot invoke the jurisdiction of the High Court under Article 199 of the Constitution but instead are filing this petition for Special Leave to Appeal being aggrieved of the impugned order." 3. Leave was granted in both the appeals to consider the following contentions:--- "The grievance of the petitioners in both these petitions is common to the effect that they have passed F.Sc. Examination with very good results on the basis of which they are entitled to admission in the Khyber Medical College, Peshawar and Ayub Medical College, Abbottabad but they have been refused admission on the ground that they had failed in the entry test which is mentioned in the prospectus but has no legal cover as far the law and regulations issued by the Pakistan Medical and Dental Council, Islamabad are concerned. 2. It is submitted that the entry test has been super imposed on the result of F.Sc. Examination which is not permissible under the regulations and if the results of F.Sc. Which is part of the system, are not to be relied upon and discarded, then the whole system of examination should be changed and modified to make it effective instead of providing for entry test, which does not fit in the system. In support of the proposition reliance can be placed on Dr. Dinesh Kumar and others v. Motilal Nehru Medical College, Allahabad and others (AIR 1986 SC 1877) and Aaliya Ihsan v. Mrs. Bushra Mateen and others (1994 CLC 1739). 3. The contention raised is of first impression and leave is granted to examine this contention in detail. 4. In Civil Petition 91 of 1997, there are twenty petitioners and in Civil Petition 121 of 1997 there are nineteen petitioners and prayer is made for provisional admission of these petitioners by way of interim relief. Mr. Muhammad Akram Sheikh has informed that immediately after the Eid admissions are going to be finalised and the classes will begin. Instead of giving interim relief of provisional admissions to such a large number of the petitioners we feel that it would be worthwhile to have these appeals finally disposed of after hearing the learned Advocates of the respondents and the concerned authorities. Issue notice to the respondents, the Attorney-General
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for Pakistan, and the Advocate-General, N.-W.F.P. Let these matters be fixed for final hearing out of turn at Peshawar before the Bench of three Judges on 15-2-1997." " 4. The appellants in Civil Appeal No,26 of 1997 in their writ petition Wore the Peshawar High Court had impleaded only the Government of N.-W.F.P., the Principals of two Medical Colleges in N.-W.F.P. And the Joint Admission Committee of Khyber Medical College/Ayub Medical College, as respondents. Before this Court, they have also impleaded 309 students who qualified the entry test and were allowed admission in KMC and AMC on the basis of their performance in the entry test. The appellants in Civil Appeal 27 of 1997 have, however, made only the official respondents, parties in their appeal before this Court. During pendency of these appeals, Abdul Saboor Khan, who failed to get admission in the medical college on the basis of his F.Sc. (Premedical) result filed Civil Miscellaneous Application No,265 of 1997 for being impleaded as appellant in Civil Appeal 26 of 1997 which was allowed by the court on 9-4-1997. Three other similar miscellaneous petitions (unnumbered) filed by three students, Miss Farhat Ahmed Khan, Anila Bano and Akhtar Ali, respectively, who also failed in the entry test and were declined admission on the basis of their result. Of F.Sc. (Pre-medical) examination by the College Authorities, praying that they may also be impleaded as appellants in these appeals are pending and no orders thereon appear to have been passed by the Court. Keeping in view that the Court allowed a similar petition (CMA 265 of 1997) filed by the student Abdul Saboor Khan on 9-4-1997 and joined him as appellant in the above appeals, we allow the above three pending petitions and join them as appellants in Civil Appeal 26 of 1997 subject to all just exceptions. 5. The above appeals were partly heard on 10-4-1997 and keeping in view the general importance of the issues raised therein, notices were issued to Attorney-General for Pakistan, Pakistan Medical and Dental Council (hereinafter to be referred as PMDC) and Secretary Health, Government of Pakistan, for 14-4-1997. On 14-4-1997, the learned Attorney-General could not attend the Court as he was unable to reach Islamabad from Lahore, due to inclement weather. However, the Deputy Attorney-General was present in the Court and so was the Secretary Health Division. After hearing the views the Secretary Health Division, on the issue involved in the above appeals, the Court passed the following order:--- "Mr. Mumtaz Ali Mirza, Deputy Attorney-General has stated that Attorney-General has not been able to come from Lahore for the reason that the system of flights is disrupted on account of inclement weather. 2. Mr. Zaheer Sajjad, Health Secretary to the Government of Pakistan states that he Will discuss this matter with regard to the entry test which is applicable in some Medical Colleges in N.-W.F.P. With the Attorney-General and the Federal Government so that a solution be found out that if it is justified on the ground that system of examinations is defective, then why the system should not be improved or the entry test should not be made applicable to all medical institutions throughout Pakistan so that there should be no discrimination on the question of admission in the Colleges. We expect that PMDC should also be represented before the Court by the Secretary himself. We should also like the assistance from Secretary Education to the Government of Pakistan. They should have a .Prior meeting among themselves, with the Attorney-General of Pakistan and then appear in the Court on the next date of hearing with some formula if it is possible. Adjourned to a date in office. Not to be treated as part-heard." These appeals were heard at some length on 24-10-1997 and having noticed that the issues raised therein are likely to affect the system of admission in medical colleges throughout the country, the Court decided to have on record the views of Pakistan Medical and Dental Council (PMDC) and Provinces of Punjab, Sindh and Balochistan as well. Accordingly, a fresh notice was issued to PMDC besides notices to Advocate-General of Punjab, Sindh and Balochistan. A report on the issues arising in the above appeals in terms of the earlier orders of this Court in the meantime, was
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finalised following the meeting of Secretary Health, Government of Pakistan, Secretary Education, Government of Pakistan and Secretary PMDC, in the office of learned Attorney-General of Pakistan on 23-4-1997, which was fled in the Court on 3-11-1997. The report reads as follows:--- "SUBJECT: ENTRY TEST FOR MEDICAL COLLEGES IN PAKISTAN In compliance with the directive of the Honourable Supreme Court of Pakistan, dated 14th April, 1997 a meeting of the Committee comprising the following was held in the office of the Attorney- General of Pakistan on 23rd April, 1997:--- (1) Mr. Chaudhry Muhammad Farooq, Attorney-General of Pakistan.. (2) Mr. Zaheer Sajjad, Secretary Health, Government of Pakistan. (3) Mr. Sikandar Hayat Jamali, Secretary Education, Government of Pakistan. (4) Syed Ehtram Ali, Secretary, Pakistan Medical and Dental Council. The Committee noted that under Rule No,3(3) of Rules of Business, 1973, the Health Division, Government of Pakistan is responsible for ensuring uniformity and appropriate standards in Medical Education. This function is exercised by the Federal Government through the Pakistan Medical and Dental Council (PMDC) a body corporate constituted by the Federal Government under the Pakistan Medical and Dental Council Ordinance (Ordinance No,XXXII of 1962). The Committee deliberated in detail on the question of introducing a pre-entrance test as a pre- requisite for admission into Government-owned medical colleges throughout the country. It was noticed by the Committee that the Government of N.-W.F.P. Has introduced a pre-entrance test for its two medical colleges in the public sector namely (i) Khyber Medical College, Peshawar (ii) Ayub Medical College, Abbottabad. The other Provinces have not introduced any such tests which has created discrimination amongst the prospective students of medical and dental colleges. The test carried out for the N.-W.F.P. Medical colleges is also not in conformity with the Regulations of the Pakistan Medical and Dental Council prescribed in exercise of the powers conferred under subsection (2) of section 33 of the PMDC Ordinance because a pass in the test had been made mandatory and those who did not pass the entry test were not considered irrespective of their merit in the Intermediate Science Examination. The Regulation provides as under:- 'The final selection of the candidate will be evaluated by adding his performance in Intermediate Science Medical Group Examination and the entry test'. The Committee was also informed by the Secretary Education that the entry test is also envisaged by the Education Policy. The relevant portion from the Education Policy is reproduced below:--- 'A National Testing service will be established for providing national level leadership in developing tests needed in educational setting and carrying out research for this purpose. The work of test development and research will be carried out by N.T.S. On its own, or in collaboration with agencies and individuals within or outside Pakistan. The N.T.S. Will provide test as well as testing services to schools, colleges including professional colleges, universities and other institutions. This agency will also be responsible for developing a system of academic accreditation of various institutions on the basis of the performance of students of these institutions on national tests.' The Committee also evolved a formula for introducing a pre-entrance examination for all Medical and Dental Colleges in Pakistan. The Pakistan Medical and Dental Council will be requested to frame Regulations for this,purpose so that the entry test may have the force of law. The Committee also decided that the weightage to the Intermediate (Pre-Medical Group) and the entry test shall be as under:--- (a) Intermediate (Medical Group) 50% (b) Entry Test 50% The final selection of candidates shall be made by adding his/her performance in the Intermediate Science Medical Group and the entry test to be conducted under the Regulations of the Council on the basis of the weightage mentioned above. The passing of the entry test shall not be mandatory.
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The Committee decided that a format for the preadmission test be developed with input from as many Medical Colleges as possible. The Committee also noted that the development of a format for the test will need sufficient time (at least six months) and therefore, the entry test cannot be introduced for the next admission i.e, Academic Session 1997-98 in any medical college. The criteria for admissions for the Academic Sessions 1997-98 shall only be the Intermediate Science Examination and in accordance with the following priorities as laid down in the Regulations of the Council for the degree of M.B.,B.S.: (1) 1st Priority F.Sc. (Pre-Medical) Grade A + & A (2)2nd Priority - B.Sc. (Biological Sciences) A + & A (3) 3rd Priority - F.Sc. (Pre-Medical) Grade-B (4) 4th Priority - B.Sc. (Biological Science) Grade-B The admission test shall be introduced throughout Pakistan without any exception with a uniform format to be developed and provided by the Pakistan Medical and Dental Council to all Provincial Governments. The students will compete within their own district or areas for the purpose of admission into Medical and Dental Colleges according to the admission policy of the respective Provincial Governments. This note is being put up for the perusal of the Attorney-General. He may kindly submit the suggestions/recommendations of the Committee to the Supreme Court of Pakistan. (Sd.) (Sikandar Hayat Jamali), Secretary Education, Government of Pakistan. (Sd.) (Zaheer Sajjad), Secretary Health,Government of Pakistan. (Sd.) (Syed Ehtram Ali), Secretary PMDC. Attorney-General of Pakistan (Mr. Chaudhry Muhammad Farooq). Islamabad . " On 26-3-1998 when these appeals again came up for hearing before the Court in presence of the above. Report of the Committee appointed by this Court to examine the issues raised, in the above appeals, Mr. Sardar Khan, the learned counsel for the two medical colleges of asked for time to submit objections to the report of the Committee. The law officers representing the Governments of Punjab, Sindh, N.-W.F.P. And Balochistan, however, endorsed the views expressed by the Committee on behalf of their respective Provinces. The case was thereafter adjourned to 22-4-1998 to enable the learned counsel for KMC and AMC tofile objections against the report of the Committee and also for the reason that Mr. Akram Shaikh, the learned counsel for the appellants was intending to proceed to Hat We have heard the learned counsel for the parties at length. The learned Advocate-General, N.-W.F.P. Adopted the arguments of Mr. Sardar Khan, the learned counsel for KMC and AMC in the above appeals. 6. Mr. Muhammad Akram Shaikh, the learned counsel for the appellants, contended that the introduction of entry test for admission to medical colleges in N.-W.F.P. Is discriminatory as no such examination is prescribed for admission to Ist year M.B.,B.S. Classes in the medical colleges in the remaining three provinces of Pakistan. The learned counsel for the appellants further contended that by introducing the entry test for admission to medical colleges the age old well established system of examination and the method of judging the merits of the students has been replaced overnight by new system which has no legal base or justification. It is also contended by the learned counsel that the entry test has changed the well-established criteria for admission without any legal support at its back. The learned counsel argued that the students were not made aware well in advance that besides passing the prescribed F.Sc. (Pre-medical) examination, which hitherto was the sole criteria for seeking admission to M.B.,B.S. Classes in the medical colleges, they were also required to Pass the entry test. It is also contended that the entry test was organised in an arbitrary manner as the students/appellants were not provided any syllabus for the entry test in
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advance so that they could prepare themselves for the same. The learned counsel lastly contended that by providing in the prospectus that the student who failed to pass the entry test will not be considered for admission to M.B.,B.S. Classes (1st year) the College Authorities refused to recognise the result of F.Sc. (Premedical) examination which was not only an arbitrary action but a patent illegality. 7. Mr. Sardar Khan, the learned Advocate Supreme Court representing the management of two medical colleges of N.-W.F.P. On the other hand contended that the entry test for admission to 1st year M.B.,B.S. Classes in the medical colleges of N.-W.F.P. Was introduced to determine the real merits of candidates seeking admission in these colleges as in view of the rampant corrupt practices and serious irregularities committed in the conduct and compilation of the result of the examinations by the Board of Secondary Education, the results of F.Sc. (Pre-Medical) could .Not be taken as representing the true merits of the candidates. The learned counsel argued that the entry test for admission of candidates in professional colleges is not a new phenomenon as such tests are in vogue in various medical colleges in Sindh and the Army Medical College, Rawalpindi, for quite some time. The learned counsel argued that the legal sanction behind the introduction of entry test for admission to medical colleges in N.-W.F.P. Was the Regulation of PMDC and the notification of the Government of N.-W.F.P. Issued in August/September, 1996. The learned counsel argued that much before the introduction of entry test for admission to medical colleges, it was widely publicised through press as well as by mentioning it in the prospectus of medical colleges for the academic year 1995-96 that from the next academic year, the entry test will be compulsory for candidates seeking admission to M.B.,B.S. Classes.. The appellants, therefore, had due notice about the entry test and had ample time to prepare themselves for appearing in the test. The appellants having participated in the entry test without protest could not be allowed to raise objection regarding its validity after they failed in the test. The learned counsel vehemently argued that the entry test was arranged through an independent and neutral agency Agha Khan University which had sufficient experience in holding such tests. It is contended that Agha Khan University prescribed the entry test for admission to its college, Agha Khan Medical College, long time back and it had helped in improving the standard of medical education in that institution. Mr. Sardar Khan lastly contended that the report submitted by the Committee constituted by this Court to recommend a uniform policy in respect of medical education in the country failed to take into account that entry tests were provided for in the regulations of PMDC framed in 1981 and 1987 and it was the failure on the part of respective Provincial Governments to give effect to these provisions while formulating the admission policy for the medical colleges situated in their respective provinces. The provision for entry test for admission to medical colleges in N.-W.F.P., therefore, suffered from no legal lacuna. We have carefully considered the contentions of the learned counsel for the parties and have also examined the contents of the report of the Committee constituted by this Court to formulate its recommendations on the issues arising in these appeals and our conclusions are as follows. 8. Rule 3(1) of the Rules of Business, 1973 (hereinafter to be referred as the Rule') which have been framed under Articles 90 and 99 of the Constitution provides that the Federal Secretariat shall comprise of the Ministries and Divisions shown in Schedule I. Ministry of Health, Special Education and Social Welfare is listed at Serial No,10 of section Aof Schedule I, and Health Division which works under Ministry of Health, Special Education 'and Social Welfare is shown at Serial No,16 of Section 'Bof Schedule I. Sub-rule (3) of rule 3 of the Rules provides that the business of the Government shall be distributed amongst the Divisions in the manner indicated in Schedule H of the Rules. Item No,5 under heading No,16 Health Division of the Second Schedule, reads as follows:--- "5. Medical, .Nursing, dental, pharmaceutical, para-medical and allied subjects:--- (a) maintenance of educational standards;
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(b) education abroad; and (c) educational facilities for backward areas and for foreign nationals, except the nomination of candidates from Federally Administered Tribal Areas for admission to Medical Colleges." Therefore, under the Rules referred to above, amongst others the responsibility of maintenance of educational standards of medical, nursing, dental, pharmaceuticals, para-medical and allied subjects rests on the Federal Government. The Federal Government through Medical and Dental Council Ordinance XXXII of 1962 (hereinafter to be referred as the Ordinance') has constituted an Authority known as Medical and Dental Council in Pakistan (PMDC) which has been entrusted with the responsibility of establishing a uniform standard of basic and higher qualifications in medicine and dentistry. Section 33 of the Ordinance deals with the powers of PMDC to frame Regulations with the previous sanction of the Central Government to carry out the purposes of the Ordinance. Subsection (2) of section 33 which is relevant here, provides as follows:---. "(2) Notwithstanding anything contained in subsection (1), the Council shall make Regulations which may provide for--- (a) prescribing a, uniform minimum standard of courses of training for obtaining graduate and post-graduate medical and dental qualifications to be included or included respectively in the First, Third and Fifth Schedules; (b) prescribing minimum requirements for the content and duration of courses of study as aforesaid; (c) prescribing the conditions for admission to courses of training as aforesaid; (d) prescribing…
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