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Petitioner: PROVINCE OF PUNJAB AND ANOTHERs VS Respondent: Miss KHAQAN MAHMOOD AND JUDGMENT
Court Name: Lahore High Court Judge(s): Saad Saood Jan, Rustam S. Sidhwa Title:PROVINCE OF PUNJAB AND ANOTHERs vs Miss KHAQAN MAHMOOD AND
JUDGMENT
Reported As: PLD 1985 Lahore 300 Result: Appeal accepted Judgment JUDGMENT ' RUSTAM S. SIDHWA, J.-This judgment will dispose of the under-noted fourteen Inter-Court Appeals as they involve common questions of law and facts :- (1) I. C. A. 213 of 1984. (2) I. C. A. 215 of 1984. (3) I. C.A.- 216 of 1984. (4) I. C. A. 218 of 1984. (5) I. C. A. 219 of 1984. (6) I. C. A. 220 of 1984. (7) I. C. A. 224 of 1984. (8) I. C. A. 225 of 1984. (9) I. C. A. 226 of 1984. (10) I. C. A. 214 of 1984. (11) I. C. A. 217 of 1984. (12) I. C. A. 221 of 1984. (13) I. C. A. 222 of 1984 and (14) I. C. A. 223 of 1984. ' These appeals arise out of a consolidated judgment of a learned Single Judge of this Court passed in sixteen constitutional petitions filed before him by the respondents and others, whereby he upheld the action of the Provincial Government and the Principal of the King Edward Medical College, Lahore, the Chairman of the Admission Board, the present appellants, in regard to reduction of seats, which decision of the Governor the learned Judge held to be non-justiceable, but struck down the action of the appellants regarding deduction of marks of the respondents under paragraph 22(b) of the prospectus as having been effected clandestinely, retrospectively and in a discriminatory manner. The learned Single Judge, therefore, partially accepted the writ petitions by holding that the respondents, who could not secure admission on account of rule 22(b) having been applied against them, should be considered for admission, without affecting
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such deduction of marks, and without disturbing the admissions of students already made by the Admission Board. 2. The brief facts of the case are that in respect of the combined admissions to the First Year M. B., B. S. Course in respect of the seven Medical Colleges in the Punjab for the Academic Year 1983-84, applications were invited through an advertisement published in various Urdu and English daily newspapers, including The Pakistan Times, Lahore dated 13-12-1983. It was stated in the said advertisement that admissions in all categories would be on merits, that the students qualifying in the Supplementary Examination of 1983 and those obtaining less than 50 per cent. Marks in F. Sc/B. Sc. Examinations would not be eligible, and that twenty marks for NCC/WG would be added to the marks obtained by the candidates in F. Sc/B.Sc. Provided they produced certificates from the competent authorities. Other matters regarding the application to be filed and certificates to be attached, were stated. It was also stated that other details could be obtained from the Office of the Principal, King Edward Medical College, Lahore, and that the old prospectus titled "For the Session 1980-81 and Onwards" would not be applicable for the admission and that the new prospectus was under print. The last date for the submission of applications was given as 10-1-1984, but subsequently, it was extended by ten days. It was nowhere stated in the advertisement that the seats originally obtaining in the previous year would be reduced and that, each college would only admit two hundred students or that any marks would be deducted from the total number of marks of students who had appeared for their examination in parts, whilst preparing the merit list for each category of students to be admitted. It is the case of the respondents that no prospectus was available for sale either with the King Edward Medical College, Lahore, or at the Government Printing Press, till much after the admissions were made and some of the writ petitions filed were admitted. It appears that attempts were made by some of the students to obtain the prospectus from both the sources, but they failed. The case, therefore, is one of "no prospectus". Be that as it may, it appears that a few days before the Admission Board assembled to admit the candidates, certain decisions of the Provincial Government taken at the highest level were available to it, through the Principal of the K. E. Medical College, on the basis of which the admissions were made. Two of such decisions which affected the applicants and in respect of which the sixteen writ petitions were filed are the reduction of seats and deduction of marks. The seats to be filled in each of the seven colleges was restricted to two hundred and whilst preparing the merit list of candidates, ten marks were deducted from the total marks of each candidate for each extra chance availed of in the case of such candidates who had failed, or had taken their examinations in parts, or had attempted to improve their marks in the F. Sc/B. Sc. Examinations. Since the rules regarding the reduction of seats and deduction of marks were not in force earlier, but came into effect with the admissions for the academic Year 1983-84, a large number of students, including the present respondents, filed sixteen constitutional petitions before the High Court, challenging the same. In the writ petitions leading upto Inter-Court Appeals mentioned at Serial Nos. 1 to 9 above, the appellants' action of reducing the number of seats and deducting the marks on account of clearing their examination in more than one attempt, were assailed, whilst in the writ petitions leading up to Inter-Court Appeals mentioned at Serial Nos. 10 to 14 above, the action of the appellants in deducting the said marks was alone challenged. 3. On behalf of the respondents it was urged before the learned Single Judge that, apart from the advertisement, the prospectus of 1983-84 was never available for sale or distribution to the intended applicants, either up to the last date of the filing of the application forms or up to the date when the results were announced, but was actually printed on 29-5-1984 i,e, long after the admissions were completed and the results of admitted candidates were displayed and that the prospectus was available only after most of the writ petitions were filed by the respondents. It was also submitted that there was no indication in the advertisement inviting applications for
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admission about the reduction of seats and deduction of marks and that the appellants' action in reducing the seats and deducting the marks was arbitrary and in deviation of the long established practice prevailing in the Province. It was also urged that the action was retrospective in nature. The other grounds of attack advanced were that the impugned actions were retrospective in nature, that the reduction in seats had been made only in case of open merit seats, but not in case of reserved category seats, such as that of nominees of the Governor, army personnel's children and doctors' children, that in the presence of rules 7 and 15 of the Rules for the Intermediate Examination in force from 1974, which were statutory and had been framed under section 21 of the Punjab Board of Intermediate and Secondary Education Act, and which permitted persons to pass their Intermediate Examination in parts or to appear in more than one examination to improve their aggregate of marks, the appellants could not by executive action deduct marks in violation of Article 4 of the 1973 Constitution and that the clandestine manner in which the marks were deducted. Without any previous notice in the advertisement, and the late distribution of prospectus for sale, much after the completion of admissions, led to the irresistible conclusion that the action of the appellants was unjust and unfair and legally not in order. 4. On behalf of the appellants it was urged before the learned Single Judge that the Medical Colleges in the Punjab were financed, run, managed and controlled by the Government of the Punjab, that the Governor of the Punjab, as head of the Province, had full powers to formulate and modify the policy regarding admissions in the medical colleges, that in view of the deterioration in the standard of medical education and cramped facilities of laboratories, etc., and to avoid congestion, the Governor, in the exercise of his plenary powers, had reduced the number of seats and upgraded the standard of merit. It was further urged that the advertisement did not confer any right on the rudondents to be admitted and that the previous prospectus clearly indicated that the Government in the Health Department reserved the right to make additions and alterations in any of the Rules in the prospectus and in the admission form. It was also contended that the candidates who had been admitted in the medical colleges, in preference to the respondents, had not been impleaded as parties in the writ petitions, therefore, the merit lists could not be disturbed to their detriment. It was lastly urged that half the course had by then been covered by the students who had been admitted and, therefore, it was not possible for the appellants to admit the respondents at that belated stage. 5. The learned Single Judge in dealing with the question relating to the reduction in the number of seats held that as the medical colleges were run, staffed, financed and controlled by. The Provincial Government, although they were affiliated to different universities, the Governor, as. Head of the Province, had full executive powers, in the absence of any law to the contrary, to lay down, amend and modify the policy of admissions and to fix the number of seats for students to be admitted in the institutions and that such decision of the Governor was not justiceable in the exercise of the extraordinary jurisdiction of the Court. The learned Judge also observed that the decision about the reduction of seats in the medical colleges had been taken prior to the submission of applications by the respondents, which decision they knew, for the Federal Minister of Health had given an undertaking on the floor of the House that in the case of girl students, there would be no reduction. As regards the Minister's undertaking, the learned Judge held that the same had no binding force, as it only amounted to his personal opinion,. With regard to the rule about the deduction of marks, the learned Judge held that the same was not violative of rules 7 and 15 of the Rules for the Intermediate Examination of the Board of Intermediate and Secondary Education, Lahore (as in force from 1974), but that it was retrospective clandestine and arbitrary, for the order of the Governor justifying the same had not been produced before him and that the students who passed the F. Sc. (Pre-medical Examination) from the institutions affiliated with the Federal Board of Intermediate and Secondary Education, did not have any marks deducted from their aggregate,
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though they passed their examination in two attempts. In these circumstances, the learned Judge took the decision, as has been stated in paragraph 1 above, which need not be repeated. 6. On behalf of the appellants the same arguments have been pressed into service as were urged before the learned Single Judge and which have been noted above. In addition, it is submitted that once the learned Single Judge came to the conclusion that the question regarding the reduction of seats was clearly not justiceable, the learned Single Judge could not have treated the rule regarding the deduction of marks as justiceable. It is further submitted that the policy regarding deduction of marks is being followed in respect of admissions to medical colleges in the other Provinces. It is also contended that the learned Judge was wrong in holding that there was no order of the Governor approving such deduction and that the observation made in that respect was erroneous. As regards the learned Judge's observation that the deduction of marks was retrospective, it is submitted that the policy decision of the Provincial Government in respect of admissions to the medical colleges was taken on 18-3-1984, which had the consent of the Governor, an that the same was in the knowledge of the Board of Admission in time, which then assembled and took its decisions, resulting in the display of the admission list on 7-5-1984. Since the decision was known to the Admission Board before it assembled and took its decisions, the said decision of the Governor cannot be treated as retrospective. In this connection, Muhammad Razzaq v. Province of Baluchistan through Secretary Health and 6 others (1), Kaiomarz R. Ferozepurwala and others v. The Administrator, Dow Medical College, Karachi and others (2) and .Sajid Raza and 3 others v. The Commissioner, Quetta Division, Quetta and 9 others (3) have been referred. 7. On behalf of the respondents the same arguments have been pressed into service as were urged before the learned Single Judge and which have been noted above. In addition, on the question of reduction of seats, it is submitted that neither in the advertisement nor in the application forms, there was any indication that the seats in each of the colleges had been reduced. The advertisement referred to the fact that other details were mentioned in the advertisement which could be obtained from the office of the Principal, King Edward Medical College, Lahore, and that the old prospectus titled "For the Session 1980-81 and onwards" was not applicable for these admissions and that the new prospectus was under print, but since no information regarding the reduction of seats was displayed outside the office or communicated by the Principal of the King Edward Medical College, lahore, to any applicant and no copy of the new prospectus for the Session 1983-84 was available even uptil the date when the results of the admissions were declared, the absence of any reference in the advertisement about the proposed reduction of seats amounted to a declaration of the policy of the Provincial Government and the Admission Board that there was no intention on their part to reduce any seats. In these circumstances, the action of the Provincial Government or of the Admission Board to reduce the seats was not only retrospective, but violative of the declared policy of the Governor, which should have been struck down and set aside by this Court. In addition, on the question of deduction of marks, it is submitted that the advertisement clearly stated admission in all categories would be made on merit and that twenty marks for NCC/WG would be added to the marks obtained by the candidates who had completed their NCC/WG Training, if they produced certificates from competent authority. Since no representation was made with regard to any form of deduction of marks, the said advertisement amounted to a declaration of the policy of the Provincial Government and the Admission Board that there was no intention on their part to deduct any marks. It is further submitted that the decision to deduct marks affected the vested rights of the respondents. In this connection, Maxwel on Interpretation of Statutes (1969 Edition) page 219 and Craies on Statute Law (1971 Edition) page 400, have been referred. It is also contended that the deduction was arbitrary and unjust in that it placed the students of colleges affiliated with the
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Lahore, Rawalpindi, Quetta and Multan Boards, who passed their F. Sc (Pre-medical Examination) in two straight years, at a disadvantage, against those who passed the same examination from colleges affiliated with the Federal Board and other Boards, who passed their examination in the same period of two years, but in two parts, the first part in the first year and the second part in the second year. (1) PLD 1976 Quetta 64 (2) PLD 1976 Kar. 1039 (3) PLD 1973 Kar. 332 8. I have given my anxious consideration to this case.: Before I deal with the main contentions, I note with some concern that proper assistance was not rendered to the learned Single Judge, as the judgment is founded upon certain misconception of facts. In paragraph 2 of the judgment, the learned Single Judge refers to the fact that in respect of the admissions in question, the number of seats of candidates to be admitted on merits has been reduced by two hundred. In paragraph 3 thereof, the learned Judge states that in the advertisement there is no indication that seats have been reduced by two hundred as compared with the previous year and in paragraph 10 thereof he states that the number of students to be filled against merit quota has been reduced by two hundred. In fact, the seats against merit quota were not reduced by two hundred ; rather a maxima ceiling of the candidates to be admitted in each college was fixed at two hundred, thus reducing the aggregate number of seats in the seven colleges by 376 seats over those in the previous year. Consequent to the reduction in seats, the number of students to be admitted against open merit quota and special category quotas also stood reduced in different proportioRs, In paragraph 12, the learned Single Judge refers to the submission before him that the Governor directed the change in the policy of admission so as to affect deduction of marks in case of additional attempts, but since no such order of the Governor was produced before him, it could, therefore, not be said as to when the Governor issued such direction. The learned Judge accordingly went on to assume that the deductions were, therefore, effected clandestinely. After inspecting the relevant file, I note that the policy decision was taken on 18-3-1984 by the Provincial Government, presided over by the Governor of the Punjab. Various decisions including that relating to the reduction in the number of seats and deduction in the marks was taken in that meeting. The Principal of the King Edward Medical College, Lahore, the Chairman of the Admission Board, was, amongst others, present at that meeting. The Admission Board, therefore, through its Chairman, had knowledge of all decisions taken by the Provincial Government before it assembled on 25-3-1984 to deal with the admissions. The Government also formally communicated its decisions to the Admission Board on 1-4-1984. The Admission Board sat twice to go through the applications, the first time from 25-3-1984 to 28- 3-1984 and the second time from 1-4-1984 to 4-4-1984. The Admission Board acted on the policy decisions before the list of admitted candidates was displayed. I record these facts as I feel that the learned Single Judge was not offered proper assistance and that he was not presented with the proper facts which were available and which have, therefore, led to certain findings, which he otherwise would not have given. 9. Before I take up the two main questions of reduction of seats and deduction of marks, it is first necessary to examine the following questions. First, what are the powers of the Provincial Government in respect of the admission policy, of the medical colleges. Second, upto what epoch of time can amendments be made to the admission policy, so as not to affect the vested rights of applicants, if any obtaining. Third and last, what is the effect of the rules, conditions or instructions contained in the application form for admission and the College Prospectus. 10. With regard to the first question, the power of the Provincial Government to lay down and amend the admission policy of the medical colleges under its control was first noted by this Court in Naseem Mahmood's case (1). In that case it was observed that Governing Bodies constituted by the Provincial Government, with the approval of the Central Government, for each of the medical
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colleges in Pakistan under the Medical Colleges (Governing Bodies) Ordinance, XIII of 1961, had the power to administer and manage the affairs of the medical colleges, for which they were constituted, that subject to the rules made in that behalf they had all the powers necessary for that purpose and that in the exercise of their powers and performance of their functions, they could be guided in respect of policy making, co-ordination and maintenance of educational standards, by such directions as the Central Government gave from time to time. Since it was discovered that Governing Bodies of the various medical colleges in the Province, which had been formed, were not functioning, as no rules had been framed by the Central Government, as required by section 8 of the Ordinance, it was held that the Principals or Administrators of such colleges could not be regarded as completely independent and autonomous officials, not amenable to the control of any superior authority, but that the institutions being Government institutions, maintained, staffed and financed by the Provincial Government, the Provincial Government had authority to lay down an admission policy in respect of the colleges under its control. The same question again came up in Humera Satwat Yusuf's case (2), where it was noted that Governing Bodies had never been set up under the provisions of the said Ordinance in respect of the King Edward Medical College, the Fatima Jinnah Medical College for Women and the Nishtar Medical College for the nine years that the said Ordinance had been on the statute book and that to bury all controversy, the Government of the Punjab had repealed the said Ordinance, in its application to the Province of the Punjab, by the Medical Colleges (Governing Bodies) (Punjab Repeal) Ordinance, 1970, during the pendency of the hearing in the said case. In the result, this Court held that the prospectus issued by the three medical colleges of the Punjab, under the directions of the Government of the Punjab, were valid, notwithstanding that they had not been issued by the Governing Bodies visualised under the Central Government's Ordinance XIII of 1961. In Ehsanul Hay's case (3), where the question was whether students who had passed the F. Sc. (Pre-medical) in the Supplementary Examination, had the right to apply for extra seats arising in the medical colleges as a result of a new medical college being set up, which seats were subsequently advertised, over the heads of such students who had passed the F. Sc (Pre-medical) in the Annual Examination and had earlier applied for admission, this Court held that for the new additional seats, the authorities concerned were free to lay down the sphere and scope of their policy. This Court, therefore, has expressed itself clearly with regard to the powers of the Punjab Government to lay down and amend the admission policy of the medical colleges under its jurisdiction and I have no hesitation in following the' same view. But this should not be taken to mean that this Court has approved in ,principle the action of the Government in not framing the rules under section 8 of the Medical Colleges (Governing Bodies) Ordinance, 1961, or in enacting the Medical Colleges (Governing Bodies (Punjab Repeal) Ordinance, 1970, both of which have prevented prope Governing Bodies from being established and managing the Medical Colleges g in the Punjab, which is so very necessary for the proper academic development of these colleges and for effecting some stability to their (1) PLD 1965 Lah. 272 (2) PLD 1971 Lah. 641 (3) PLD 1976 Lah. 501 academic policies, so that the vagaries of too frequent amendments does not unsettle the hopes and prospects of intended applicants. 11. As regards the second question, namely, the fixing of the epoch of time up to which amendments can be made to the admission policy by the competent authority, without disturbing the vested rights of the applicants, if any obtaining, the same does not present any difficulty. In Arif Ali Hazoor's case (C. P. S. L. A. No, 124 of 1970, decided on 29-5-1970), the Supreme Court held that there was no authority for the proposition that the right to apply for admission to an educational institution carried with it any legal right to be admitted, which could be enforced under Article 98 of the Constitution I submit that application forms are nothing but offers received from students
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offering themselves for being considered for admission and agreeing to be bound by the terms and conditions of the institution with regard to a host of matters, including their admission, courses of studies, etc., both as conditions precedent to their admission and as conditions subsequent to their selection. Where the C selection is dependent upon interview, or where the institution reserves the right at any stage to refuse admission to any candidate who appears, at the time of interview, to be unsuitable or unlikely to complete the course, the mere possession of high qualifications or superior position by itself dues not guarantee him any admission. In the instant case, rules 16 and 18 of the Prospectus provide for such eventualities. It would, therefore, appear that the date when the Admission Board assembles to select candidates and conducts its proceedings, can fairly be taken as the…
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