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Petitioner: WAHEED AHMED KHAN and others VS Respondent: PRINCIPAL SINDH MEDICAL COLLEGE and JUDGMENT
Court Name: Sindh High Court Judge(s): Khilji Arif Hussain, Ghulam Rabbani, Shabbir Ahmed Title:WAHEED AHMED KHAN and others vs PRINCIPAL SINDH MEDICAL COLLEGE and
JUDGMENT
Reported As: 2004 MLD 1722 Result: Petition dismissed Judgment JUDGMENT ' SHABBIR AHMED, J.---On conflict of decisions between two Benches of this Court, necessitated the formation of Full Bench for disposal of above titled petitions containing similar facts and law involving admissions in Sindh Medical College, in order to resolve the controversy. 2. The conflict decision emanates in the following background: ' Constitutional Petition No.1764 of 2002 (Feroz Shah and others v. Principal SMC and others) (2) C.P. No.1746 of 2002 (Haroon Anwar and others v. Principal SMC and others), (3) C.P. No.1887 of 2002 (Haseeb Arisari v. Principal Sindh Medical College and others) pertaining to admission in Medical College were dismissed on 25-2-2003 by a Division Bench comprising of our learned brothers S.A. Sarwana (now retired) and Muhammad Mujeebullah Siddiqui, JJ., by common judgment, inter alia, on the grounds that the High Court in exercise of its Constitutional jurisdiction under Article 199 of the Constitution of Islamic Republic of Pakistan does not decide the disputed question of facts, which involve recording of evidence. Whereas another Division Bench comprising of our learned brother Sarmad Jalal Osmani and Rehmat Hussain Jaferi, JJ., allowed the following petitions:-- ' C.P. No.160 of 2003 (Muhammad Ayaz and others v. Principal SMC and others), C.P. No.364 of 2003 (Salma Gul and others v. The Principal Sindh Medical College and others), C.Ps. Nos.367 of 2003 (Miss Uzma Farid v. Principal Sindh Medical College and others) 385 of 2003 (Zeeshan Alam Khan v. Principal Sindh Medical College and others) and 397 of 2003 (Miss Noreen Ehsan and others v. Principal Sindh Medical College and others) involving admission in Medical College by common judgment dated 27-3-2003 with the following observations/directions:--
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(a) The petitioners would be allowed to sit in the Final Year MBBS Professional Examinations which are due to commence from . 31st March, 2003 and shall be over on 20th April, 2003. (b) So far as their admission to Sindh Medical College is concerned,which is the bone of contention between the parties, the matter shall be thoroughly investigated by the concerned Authority, .Which shall hear the petitioners on 21-4-2003. However, the petitioners shall deposit copies of the documents on which they rely to establish the bona fide of their admission with the Principal Sindh Medical College, Karachi by tomorrow viz., 28-3-2003 till 3-00 p.m. (c) Upon hearing of the petitioners on the aforementioned date, the concerned authorities shall be free to pass an order based on the record as well as arguments addressed at the time of hearing in accordance with the law. (d) The order passed could be subject to the order which shall be passed ultimately by the concerned authorities. 3. It is pertinent to mention that in all petitions (disposed of and pending disposal) notice dated 23- 1-2003 issued by the office of the Principal and Chairman, Academic Council Sindh Medical College Karachi were/are impugned, the contents thereof are as follows:-- "As per list received from the Member, Governor Inspection Team III for verification that the following students have been identified to have got admitted on bogus/fake documents. Any student who have any valid admission letter and fee receipt should submit to the undersigned within 7 days otherwise their admission will be cancelled as per Prospectus Rule 1987, Rule 3 of Admission Sr. No.22 Page. 17 Till verification, their examination forms will not be accepted. "The names of the persons were given in the list." ' The names of the petitioners are included in notice impugned amongst the students, who were required to submit the documents to establish their admission. 4. The questions involved in the above petitions are almost common. It is, therefore, considered proper to deal with and disposed them of by this common judgment. ' Petitioners in above petitions have invoked the Constitutional jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan for the following reliefs, except in C.P. No.606/03:-- A(i) Declare that the notice dated 23-1-2003 is illegal, without jurisdiction and has been issued with mala fide intention and it has no legal effect. (ii) Direct the respondents to provide Examination Porm for the year2003 and allow the petitioners to sit in the said Examination with all regular facilities. (iii) Any other relief/reliefs this Hon'ble Court deems fit and proper under the circumstances of the case. B. The brief in C.P. No.D-606 of 2003 are in the following terms:-- (i) Declare that the notice issued to the petitioner dated 5-5-2003 by the respondent No.1 requiring her to produce PRC, Domicile Certificate, Matriculation Certificate, Intermediate Certificate with marks sheet and Admission of her letter of Principal Sindh Medical College, Karachi illegal, unlawful and of no legal effect. (ii) Direct the respondents to accept the Equivalence Certificate of the petitioner, her Grades Certificate issued from her School in United States and take into consideration her American Passport, coupled with Visa fixed by the Embassy of Pakistan and not to insist on production of PRC, Matriculation Certificate, Intermediate Certificate, Marks sheet. (iii) Direct the respondents to conduct and allow the petitioner to appear in the viva voce examination of the final year MBBS and if upon success be conferred with the Degree of MBBS. (iv) Grant any other relief. 5. The facts are common in all petitions. However, the petitions can be categorized with reference to admissions claimed against (i) Merit seat, (ii) Reserved seat on (a) C.M. Quota and on (b) Foreign Students' seat.
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' All petitions pertain to admission against merit seats except Petition No.606 of 2003 (Salma Gul v. PSMC and others), Academic Sessions 1997-1998, against reserved seat (Foreign Student), C.P. No.241 of 2003 (Hasan Dhari v. Government of Sindh and others) Academic Sessions 1996-97 and C.P. No.188 of 2003 (Khatija Khan v. Government of Sindh) Academic Sessions 1997-98 on C.M. Quota. 6. The petitions can also be divided into two grounds with reference to criteria for admission on merits (i) based on adjusted marks obtained in Intermediate Examination, (ii) Entry Test. It would not be out of place to mention that till Academic Sessions 1997-98, the admissions were based on adjusted marks obtained by candidate in Inter Examination, whereas w.e.f. Academic Session 1998- 99, Entry test is the basis of admissions on merits. ' In order to facilitate consideration of questions involve in these petitions, it would be proper to deal with C.P. No.D-161 of 2000 and the conclusion arrived on the basis of contentions raised on either side will be applied to all petitioners and it might suffice explaining factual background to refer the facts which emerged from these petitions. ' The petitioners claimed to be admitted by the competent Authority after complying with due procedure for admission under the Admission Rule and they also claimed to have paid the fees and they were issued Identity Cards. They also claimed that they have attended their classes regularly, paid tuition fees, other charges, including Examination Fee, acquired Admit Cards as well as Enrolment Card, appeared in test and examinations every year without any gap. It was surprising and shocking news to them when they came to know on 25-1-2003 that a notice dated 23-1-2003 has been displayed on notice board, whereby the petitioners approached the Principal, who asked the petitioners to submit relevant papers, first admission letter and fee receipt but the petitioners submitted Admit Card of every year and fee receipts available to them but the Principal did not accept the same and insisted for original admission letter, which is only available with the respondent. It was also pleaded that they went for their Examination Form for ensuing examination but they were disallowed to sit in the examination without assigning any reason. Thus the College administration are bent upon to cancel the admission of the petitioners which will ruin their career without their fault. Thus they are being deprived of their right to appear in the examination. A show- cause notice dated 23-1-2003 is without jurisdiction, based on mala fide intention and only to save their skin for their irregularity. The petitioners claimed to be regular students and were never objected nor show-cause notice has been issued individually. They were not informed about the enquiry conducted by the Governor's Inspection Team, which is not competent to act as such under the law, neither the Respondent No.1 is competent to take final decision of cancellation of the admission of the petitioners. 7. Reserved Seat C.M. QUOTA (i) C.P. No.241 of 2003, Hassan Dahri v. Government of Sindh and others. (ii) C.P. No.188 of 2003, Khatija Khan v. Government of Sindh and others. ' Petitioner in above petitions have claimed that they were admitted in academic year 1996-97 and 1997-98 on Chief Minister Quota respectively. In support of the plea, petitioner Hasan Dahri has filed (Annexure-B), Letter No.PA/DS/Admn/CM/97 322, dated 22-1-1997addressed to the Secretary, Government of Sindh, Health Department with captioned: Request for admission in Medical College, whereby the application of the petitioner was forwarded with minutes "Pl. Admit". Second letter of Health Department, Government of Sindh dated 25-1-1997 (annexure-C) addressed to the Principal Sindh Medical College with captioned "Admission in Medical Colleges against the seat reserved for the nomination of Chief Minister for consideration during the session 1997. It says that "The Chief Minister has approved the name of Gul Hasan son of Juma Khan for admission in the first year MBBS against the above category in the college, if not previously admitted on self- financing basis". He has also annexed photocopy of Marks sheet of Intermediate Examination of
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Hyderabad Board of the year 1995 with 723 marks (B-Grade) (Annexure-A) date of enrolment 26- 11-1998. The petitioner Hassan Dahri claims his admission against Chief Minister Quota pertaining to Sessions 1996-97. The admission on Chief Minister Quota pertaining to the said year was subject of C.P. No.1641 of 1997 (Sazia Nabi Khan v. Principal and Chairman Board and others) wherein the list of candidates admitted on Chief Minister Quota in different Medical Institutions including Sindh Medical College was placed on record. We have examined the list pertaining to Sindh Medical College. There were 79 students admitted on Chief Minister Quota in Sindh Medical College name of petitioner Hasan Dahri does not appear in the said list. Whereas Petitioner Khatija has filed a letter NO.SOIME/3/98 of Government of Sindh Health Department Letter dated 9-3-1998 addressed to the Principal, Sindh Medical College, (Annexure-P-1) subject: Admission in Medical College against the seat reserved for nomination by the Chief Minister for special consideration during the session 1997-98, the contents whereof are that the Chief Minister Sindh has approved the name of. Khatija, daughter of Rafiq Ahmed for admission in the 1st Year MBBS against the above category in your college, if not previously admitted on self-financing basis. She has also filed office order dated 29th Sept. 1998 (annexure-P-4) asking her to deposit college fee, dues within seven days. 9. Reserved Seat (Foreign students) (C.P. No.D-606 of 2003, Salma Gul v. Principal S.M.C. And others). ' Petitioner Salma Gul in support of her claim with regard to the admission against reserved seat has filed letter dated 19-6-1998, issued from the office of Principal and Chairman Academic Council Sindh Medical College with title: Admission of 1st Year MBBS Class 1997-98 in Sindh Medical College against the seat reserved for Foreign national under Technical Assistance Program. With reference to (i) Ministry of Economic Affairs Division, Government of Pakistan Islamabad. Letter No.2(SMC)OTA-II/97, dated 17-2-1998 (ii) University Karachi Letter RIy-20-A/98 dated 6-6-1998 intimating her the grant of provisionaladmission at her risk and cost in 1st year MBBS in Sessions 1997-98 with conditions mentioned therein. ' In addition to above, the petitioners in support of their plea have filed documents, inter alia, photocopies of receipt of fee, mark sheet from 1st professional to IIIrd year professional, Enrolment Card, Admit Cards, Identity Cards etc. 10. Respondents on notice filed common comments/reply statement in C.P. No.161 of 2003 narrating therein the procedure for admission in medical Colleges in Sindh based on prospectus that the primary requirement is of Passing of Intermediate Science Group, with not less than 60% marks, Sindh Domicile Certificate and PRC, evidencing that candidate is residing for the last three years in a particular District of Sindh. ' The students of Karachi desirous of admission of Medical Colleges of Karachi had to apply to DMC on prescribed application with required documents and the Selection Board after selection of candidate on merits, had to assign them one of the Medical College for admission on merits basis i.e. D.M.0 or SMC. There is no quota of any students from other Province on reciprocal basis except Punjab. ' The main plea of the respondents was that neither the petitioners had applied for admission nor they were admitted on merits. The documents annexed with the petitions are fabricated documents prepared with 'connivance of College staff. The sum and substance of such plea was that the petitioners were not duly admitted students and they were given first opportunity to establish their admission by production of relevant documents instead of proving their admission they have rushed to the Court. 11. On the request of the learned counsel for the parties we have heard the petitions at Katcha peshi stage for final disposal and the learned counsel have argued the petitions for final disposal of the petitions.
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' Mr. Raja Qureshi, learned counsel for the petitioners has argued that the petitions, whereas Mr. Muhammad Aqil, Mr. Muhammad Nawaz and Muhammad Hatif, Advocate, have adopted his arguments. Mr. Muhammad Aqil, while adopting the arguments of Mr. Raja Qureshi, further pointed out that petitioners Hasan and Khatija were admitted against reserved seat on C.M. Quota. 12. During the hearing the petitioners were directed to file statements specifying therein the marks obtained in the Intermediate with year, place of domicile and date of offer and admission, whereas learned Additional Advocate-General was also directed to file statement(Academic Session-wise) number of applications received from desirous candidates, number of selected candidates, seat allocation to SMC and closing mark for admission of each year. Both have filed such statement and also exchanged copy thereof. Even the list of applications received (years-wise) was also produced by learned Additional Advocate-General We have also considered and referred them. 13. First we would like to refer the statement filed on behalf of the petitioners its perusal gives the following picture:- Name of the petitioner with petition numberIntermediate Marks:Domicile/PRC Enrolment issuance dateDate of offer Waheed Ahmed Khan C.P. No.161820 N.-W.F.P 13-7-1999 Not in practice Samiullah C.P. 161709 -do- 2-2-1999 -do- Noshaba Lal Khan C.P. 161720 -do- 6-12-1999 -do- Shafiullah Khan C.P. No.161727 -do- 27-12-1999 S.M. Fahad C.P. No.161556 Karachi 6-12-1999 Not in practice Jahanzeb C.P. 279584 N.-W.F.P 28-10-1999 -do- Asma Jawed C.P.279761 Karachi 3-1-2000 Aisha Rasheed Awan C.P.279766 -do- 18-12-1999 15-3-1999 Sajjad Ali Shah C.P.279722 N.-W.F.P 27-12-1999 24-3-1999 Asadullah C.P.279807 -do- 27-12-1999 Not in practice Shandana Faiz C.P.279838 -do- 20-2-1999 -do- Sumaira Malik C.P.279675 Islamabad 23-12-1999 -do- Saima Anwar C.P.301606 Karachi 20-2-1999 -do-
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Waghma Ismail C.P.162708 N.-W.F.P 4-1-2001 M. Afzal Khan C.P.162644 -do- 22-1-2001 Sajjad Ahmed C.P.162 13-1-2000 Amjad Ali C.P.162834 N.-W.F.P 9-1-2001 Yaar Muhammad C.P.162616 Balochistan 2-2-2000 Naila Ehsan C.P.162776 Karachi 2-1-2000 Jawad Ali C.P.162668 -do- 2-1-2000 12-2-2000 Nadia Farooq C.P.162778 -do- 2-1-2000 12-2-2000 M. Raheel C.P.162697 -do- 2-1-2000 25-2-2000 Arnanullah Khan C.P.162697 -do- 2-1-2000 S. Muhammad Zahid C.P.279 N.-W.F.P 25-1-2001 Zaryab Ali Khan C.P.279761 Karachi 2-1-2001 Uzma Zahoor C.P.279686 -do- 13-7-1999 Afsheen Rahman C.P.307780 -do- 2-1-2001 Quratulain Waseem C.P.482701 -do- 21-1-1999 Farrukh Sair C.P.30667 Sindh Not in practice Salma GuI C.P.606825 USA 20-2-1999 -do- Farooq Ahmed C.P.470725 N.-W.F.P 2-1-2001 Breshna Ismail C.P.470780 -do- 2-1-2001 M. Imran C.P.470574 Karachi 22-1-2001 Bushra Zahoor780 N.-W.F.P 9-1-2001
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C .P.No. Academic SessionsNo of applications receivedNo. of students successful in SMCClosing marks 1 2 3 4 5 D-241/03 1996-97 995 238 820 D-188/03 D-423/031997-98 1567 220 827 -301/03 -606/03 -473/03 -279/03 -470/03 -279/03 -166/03 -470/031998-99 2531 209 862 -162/03 1999-2000 2755 195 863 -482/03 -183/03 -219/03 -279/03 -307/03 C.P.470 Khatija Khan C.P.188720 Karachi 21-12-1998 29-9-1998 Hasan Dahri C.P.241723 26-11-1998 22-1-1997 Gausia Khan Khandhari C.P.219729 Karachi 2-1-2000 - Aneela Rafi C.P.219 758 Karachi 21-12-1999 - Kiran Fatima C.P.219807 Karachi 6-12-1999 - Fauzia Ashraf C.P.219793 Karachi - -
14. The detailed statement filed by learned Additional Advocate-General showing number of applications received, number of successful candidates for admission in SMC, closing marks, Entry Test, Merit, whether name of petitioners are available in list of applicants who had applied for admission and whether the name of the petitioners are available in finalized list of successful candidates for admission in SMC, whether the Petitioners appeared in Entry Test, its reflection is as follows:--
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Entry TestMerit Whether name of petitioners available in application listWhether petitioner name of petitioner available in final list for admission in SMC 6 7 8 9 No merit No. No. No merit Not appeared No. No. Not appeared No. No.
15. Before addressing the contention of the learned counsel of the parties, it would be advantageous to refer to the relevant provisions of Sindh Medical College Act, 1987 and Rules framed thereunder for admission in MBBS in Medical Colleges of Sindh: Under the provisions of section 3 of the Act the Provincial Government of Sindh enjoins the Rules Making Powers, to regulate admissions in Medical Colleges in Sindh, inter alia: (a) with regard to allocation of seats, (b) form of application for admissions, (c) conditions for admission, ' In order to regulate the process of admission in MBBS course, the Provincial Government used to issue prospectus with schedule for admission in 1st MBBS courses every year. ' The following were notified Schedules for Admissions in 1st Year MBBS/BDS Class in the Medical Colleges in Sindh for the relevant sessions shown therein. Process 1996-97 1997-98 1998-99 1999-00 Date of Inviting Applications16-11-1996 10-11-1997 21-12-1998 25-10-1999 Last date of receiving applications;30-11-1996 24-11-1997 2-1-1999 15-11-1999 Display of provisional list of applications:15-12-1996 18-12-1997 9-1-1999 13-12-1999 Objections if any on provisional list ' of personal hearing;21-12-1996 to 23-12-199626-12-1997 to 30-12-199724-1-1999 5-12-1999 Last date for submission of short documents;26-12-1996 5-1-1998 2-2-1999 27-2-1999 Final list of District merit seats to be completed by2-12-1996
12-1-1998
13-2-1999
30-12-1999
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Chairman Principals of Colleges meeting to finalize admission of all categories of seats in Health Department; 6-1-1997 19-1-1998 22-2-1999
24-1-2000 Start of classes. 11-1-1997 3-2-1998 22-2-1999 31-1-2000 ' Here we may also refer the Prospectus issued by the Government containing similar Rules for admission for each year, except with certain variance, with regard to alteration of District-wise merit seat by increase or decrease in total seats save entry test has been introduced w.e.f. Academic Sessions 1998-99 following the guideline given by the apex Court in Hina Jawed v. Government of N.-W.F.P. And others (1998 SCM R 1469). ' In terms of the prospectus, the seat allocations are of three categories, (I) Merit Seat; (for candidates Domiciled in Sindh). (2) Reserve Seats:-- (a) Foreign National (Nomination by Economic Affairs DivisionFederal Government) for admission in Medical Colleges at Karachi (including 3 seats for Palestine). (b) Self financing basis (i) @ US $ 5,000 per student per year for foreign National and Overseas Pakistani (ii) Rs.1,25,000. Per year per student for Local Students. (c) Federally Administered Tribal Area's, Northern Areas and Azad Kashmir (Nominations by Ministry of Health for admission in Chandka Medical College, Larkana). (d) Children of Defence Forces Personnel (Nominations by Ministry of Health for admission in Medical Colleges). (e) Children of Medical Doctors domiciled in the Province of Sindh (Nomintion by Government of Sindh, Health Department). (f) Afghan Refugees (Nomination Ministry of Health, Federal Government for admission in Sindh Medical College Karachi). (3) (i) Reciprocal seats for admission in Medical Colleges of Punjab. (ii) Fatima Jinnah Medical College, Lahore. ' Selection against reciprocal seats in Punjab and those in Fatima Jinnah Medical College Lahore shall be made by the Government of Sindh, Health Department on the basis of merit-cum-choice. ' Third part contains rules for admissions which are: (i) The minimum qualification for a candidate to become eligible for admission to Medical Colleges of Sindh is Intermediate Science (Pre-Medical Group) in "B" Grade of Karachi, Hyderabad, Sukkur or Larkana Board of Higher Secondary Education or any equivalent examination of some other Board/University or body recognized by the University to which the college is affiliated. Candidates obtaining marks less than 60% are not eligible. Even the qualification in B.Sc. (Biological Sciences) in higher division would not be considered unless Intermediate Science (Pre-Medical Group) examination has been passed at least "B" Grade (unadjusted marks). 2. The following candidates shall be eligible for admission in the 1st Year MBBS in Medical College in Sindh for the Academic Sessions 1997-98: (i) Those who are permanent residents and domiciled in any District of Sindh.
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(ii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Annual Examination or equivalent examination and secured at last 60% marks. (iii) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Supplementary Examination or any other equivalent examination whose result has been declared after the closing date of applications of said sessions and before the last date for receiving applications for said session and secured 60% marks as per Board's marks sheet. (iv) Those who have passed Intermediate Science (Pre-Medical Group) (Biological Science) Annual/Supplementary Examination and could not be considered in the last session due to late issuance of domicile or late declaration of result or late issuance of marks Certificate (provided he applied for admission during the last year) may apply provided supported by proper documentation. (v) Candidates producing equivalent certificate of examination other than Intermediate Boards of Pakistan shall have to produce certificate from the competent authority of having passed the following subjects. (a) Physics, Chemistry and Biology (two of A level and One at 0 level. (b) English and Urdu/or any other language at 0 level. (c) A pass Certificate in Pakistan Studies and Islamiat/Civics from any Intermediate Board of Pakistan for Muslim and non-Muslim as the case may be. (d) Those candidates having studies course equivalent to Intermediate Science Pre-Medical from any Institution other than Pakistan Board/University, will be eligible and if admitted they will have to pass Urdu/Sindhi, Islamiat/Civics Pakistan Studies before appearing in first Professional Examination of MBBS. 3. All seats in various Districts are open for competition within such District and nobody shall be denied admission on the ground of race, religion, colour, caste or sex. 4. Competition in each District shall take place between candidates of the district. Thus a candidate from District "X" shall not compete with a candidate of District "Y". 8. The Application forms and required…
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