' I propose to dispose of the instant writ petition as well as Writ Petitions Nos.3793 of 2003/BWP (Muhammad Ali Usman and another v. Government of the Punjab and 6 others) and 3894 of 2003/BWP (Nayyar Abbas and another v. Government of the Punjab and 3 others) by this single judgment because all these writ petitions have got similar facts and common questions of law to be resolved.
2. An order passed on 22-8-2003 by the Minister for Health, Punjab, Lahore, conveyed through Dr. Tahir Ali Javed, to the Principal, Quaid-e-Azam Medical College, Bahawalpur with regard to the grant of permission and relaxation in attendance of lectures, a preceding condition to be fulfilled by a student for appearance in the coming examination to Salman Arif son of Muhammad Arif, and Fawad Yousuf, two students of 3rd Year and 4th Year M.B.,B.S. Class respectively (who have been arrayed as respondents Nos.4 and 5 in the instant writ petition) considering their cases as of exceptional nature and based on hardship. It created unrest and upheaval amongst the students of Quaid-eAzam Medical College, Bahawalpur and has brought into being these petitions. Upon the above noted letter/order, an office note was put up by the Officer Incharge of the Staff and Students Affairs, QAMC, Bahawalpur, in which it was clearly noted that both these students were not qualified to appear in the Annual Examination of 2003. It was further informed that the Admission Forms for the examination would be sent if ordered by the high ups. Even after this office note, but acting upon the order of the Health Minister, Punjab, the Principal, QAMC, Bahawalpur passed an order in the following words:- "As per relaxation by the Health Minister, their admission is allowed Signed 23-8-2003"
3. Nayyar Abbas and Junaid Saleem, petitioners considering themselves to have been deprived of the same concession, allowed to the aforesaid students, and discriminatory treatment having been given to them, have filed this writ petition. Concisely, their case is that as the aforesaid students (Salman Arif and Fawad Yousuf) have been allowed relaxation from the completion of 75% attendance of total lectures, both in theory and practical in the M.B.,B.S. Professional so they are also entitled to be treated alike and to be granted the same concession as have been given to the aforesaid students, in the examination.
4. During the pendency of writ petition, petitioners prayed for grant of permission to amend the writ, which was allowed and the petitioners included in it the prayer to declare the impugned order of aforesaid Minister and Principal to be Plegal and unlawful as an alternative.
5. The respondents have defended these orders by taking the plea that these were passed by the aforementioned authorities within their competence.
6. In Writ Petition No.3793 of 2003/BWP, Muhammad Ali Usman and Azhar Abbas Malik have also prayed for issuance of a direction to the respondents, to allow them to appear in the forthcoming examination by ignoring the shortage of their lectures in the subject of Pathology and Community Medicine on the basis of order/memorandum dated 22-8-2003 issued by the Minister for Health, Punjab, referred to above.
7. The petitioners of Writ Petition No.3894 of 2003/BWP (Nayyar Abbas and another v. Government of the Punjab and 3 others) have also filed this writ petition, to get a direction issued, against the respondents, to allow them to sit in the 4th Class of M.B.,B.S. While considering their case to be at par with those of the above mentioned respondents Nos.4 and 5.
8. All the parties concerned have appeared through their respective counsel, who have argued the case with their full force and vigour.
9. The learned counsel appearing on behalf of the petitioners Nayyar Abbas and others has argued that in case of petitioners, violation of Article 25 of the Constitution of the Islamic Republic of Pakistan, 1973 (hereinafter called the Constitution) has been committed because they were refused admission into the examination on the basis of shortage of lectures, while respondents Nos.4 and 5 were granted relaxation in the percentage of their attendance of lectures. So, they were also entitled to be treated alike. It has further been canvassed by the learned counsel that Admission Form prescribed for the examination issued by the University of Health Sciences had prescribed 66% of attendance of lectures for the purpose of participation in the examination but the Administration of QAMC, Bahawalpur had illegally required the percentage of lecturers up to 75% of the total lectures without anyjustification. The learned counsel has indicated that the order/letter dated 22-8-2003, conveyed by Dr. Tahir Ali Javed, had referred to 70% attendance of total lectures to have been fixed by the PMDC and the Punjab Government as per prospectus. So, the condition for the completion of attendance of 75% lectures by the authorities of the QAMC, Bahawalpur was not lawful. The learned counsel has further asserted that the prospectus although had provided 75% attendance of lectures for the aforesaid purpose but that was the requirement of the Islamia University Bahawalpur and after the affiliation with the University of Health Sciences, the requirement of 75% of attendance of lectures was not to be complied with as the University of Health Sciences had prescribed 66% attendance of lectures in its form of admission. To support his arguments on the proposition of equality of citizens, learned counsel has referred to 1999 SCMR 467 (Nizamuddin and another v. Civil Aviation Authority and 2 others), PLD 1992 SC 263 (Board of Intermediate and Secondary Education, Lahore, through its Chairman and another v. Mst. Salma Afroze and 2 others), 1998 CLC 1984 (Shagufta Man v. Islamia University, Bahawalpur and another) and 2002 SCMR 71 (Abdul Samad and others v. Federation of Pakistan and others).
10. The learned counsel appearing on behalf of respondents Nos.4 and 5 Salman Arif and Fawad Yousuf pleading their case has replied that the writ petitions were not maintainable as Fawad Yousuf, respondent No.5 was the student of 3rd Year M.B.,B.S. Class while the petitioners were the students of 2nd Year M.B.,B.S. Class and the date of examination was not the same, therefore, they were not the sailors of the same boat. He has further argued that Fawad Yousuf, having passed his examination, has already migrated from this Institution to Allama Iqbal Medical College, Lahore, therefore, the ground of discrimination is not available to the petitioners. It may be noted here that the argument creating difference and presenting distinguishing features is a mere far fetched idea which is an outcome of the mind of the learned counsel and is not acceptable. These points cannot be held to have created dissimilarity with the writ petitioners qua respondents Nos.4 and-
5. As regards the power of the Minister, learned counsel has referred to Articles 139(3) and 248 of the Constitution and has further relied upon Proviso to rule 6 of the Rules of Business and Serial No.20 of Schedule VII, appended to it and has tried to prove that the aforesaid Minister had the power to order the relaxation in the case of respondents Nos.4 and 5. He has further argued that the writ petitioners have got no locus standi to challenge the order of the Health Minister, Punjab and that of Principal QAMC, referred to the above, because they cannot be held to be an aggrieved party. Learned counsel has also relied upon PLD 1985 Quetta 63 (Nek Muhammad and another v.
The Member Board of Revenue(Judicial), Quetta and 3 others) 2002 SCMR 970 (Qazi Hussain Ahmad, Ameer Jamat-e-Islami, Pakistan, Lahore and others v. General Pervez Musharraf, Chief Executive and others), PLD 1991 Lahore 433 (The State v. Muhammad Nazir and others), PLD 1990 SC 295 (Shrin Munir and others v. Government of Punjab through Secretary Health Lahore and another), 1988 SCMR 988 (Khairuddin and others v. Settlement Commissioner and others), PLD 1987 Lahore 286 (Adeeb Jawedani, Correspondent Daily 'Wafaq', Faisalabad v. Chief Administrator Auqaf, Government of the Punjab Lahore and 2 others), 1992 SCMR 809 (Mst. Mahmooda Begum and another v. Taj Din), 1990 PCr.LJ 1231 (Juvenile Jail Landhi, Karachi in Re: (Suo Motu notice), 1999 SCMR 467 (Nizamuddin and another v. Civil Aviation Authority and 2 others) and PLD 1990 SC 1092 (Amanullah Khan and others v. The Federal Government of Pakistan through Secretary Ministry of Finance, Islamabad and others).
11. The learned counsel appearing on behalf of QAMC, Bahawalpur/respondent No.3 has asserted through his arguments that it is wrong to state that the University of Health Sciences had prescribed 66% attendance of total lectures for admission in the examination. According to the learned counsel, Admission Form was misprinted and the authorities of QAMC, Bahawalpur had got it clarified through their letter on 8-8-2003, and earlier to it, in which University of Health Sciences had clarified that attendance of lectures must be 70% of the full course of lectures delivered in each subject of the examination. As regards the case of Salman Arif and Fawad Yousuf, it was pleaded that the Principal QAMC, Bahawalpur, had acted on the directions/ instructions of the Health Minister because these were considered as special cases of "hardship" by the aforesaid Minister. As to the case of the present petitioners, he has opposed the grant of permission to them by stating that the permission would create a chaotic condition in all the institutions of medical education. Resisting the prayer and case of the petitioners being accepted, learned counsel has informed this Court that the petitioners were provided a chance to improve their lectures by arrangement of special classes but they failed to appear and attend. As they failed to make up the deficiency of lectures, so no indulgence should be shown to them by this Hon'ble Court.
12. The learned Assistant Advocate-General, has also supported the version of the QAMC, Bahawalpur.
13. After hearing and pondering over the lengthy and valuable arguments of all the learned counsel, appearing on behalf of the parties to the writ petitions and examining the record made available by them, I have concluded that to deliver a decision upon other issues ofcontroversial nature, it is necessary to resolve the first and foremost issue as to what was the attendance percentage provided and envisaged by the rules and regulations to govern the situation? As I have already held in Writ Petition No.2894 of 2003/BWP (Syed Fiaz-ur-Rehman v. Principal Sheikh Zaid Medical College, Rahimyar Khan and others) that a prospectus is a document which has to be granted sanctity by both the parties i.e. Government/college administration and the students, otherwise anarchy would prevail in the medical institutions of valuable learning. Not only the smooth running of college administration yet the discipline, which is an essential ingredient for the impartation of education to the student community, would be destroyed.
14. The present petitioners were admitted to the college on the basis of the prospectus for the Session 2000-2001, which would be a governing document of vital importance for both the parties as held by me earlier. According to Para. No.5 of Chapter "Examination", it is essential for a student to sit in the examination to fulfil the condition of 75% attendance of lectures delivered. As all these students, who had entered into this educational institution, were to follow these rules/regulations in the matter of their examination in the future and the students/petitioners having bowed their heads to these rules and having undertaken implicitly by their own act and admission that they would abide by these conditions, were hound to act accordingly. The argument that the petitioners were required 66% attendance of the lectures as entered in the Admission Form of the University of Health Sciences cannot be accepted because the University bf Health Sciences has already clarified the minimum required attendance of lectures to the- extent of 75% of the total lectures delivered. The letter dated 8-8-2003 had clearly given out that the students had to fulfil the requirement of 75% of the full course of lectures delivered in each of the subject to qualify for participation in the examination of M.B.,B.S. To be held in the year 2003, which was further clarified by the second letter dated 29-12-2004 (the year was in fact 2003) bearing No.UHS/CE/RC/03/307 issued by the University of Health Sciences. Therefore, seen from both the angles, the petitioners are deficient in the percentage of lectures even if it be considered to the extent of 70%or 66% as provided by the prospectus, and the University of Health Sciences.
15. The next question which arises for decision is as to whether Principal of QAMC, Bahawalpur had the power to relax the rules and grant permission to respondents Nos.4 and 5 to sit in the examination? Para 4 of Chapter, "Examinations" of the Prospectus of The Government Medical Colleges in the Punjab, it has been written:##TE# # appearing in the Professional M.B.,B.S. University Examination at any stage, if in his opinion, the student is found to be short of attendance in theory or practical of any subject or his work is reported to be unsatisfactory by any professor, lecturer or if in the opinion of the Principal, the character and conduct of the student is unsatisfactory".
' From bare reading of this para. It is clear that the Principal has been granted the right to detain a student if in his opinion the student is found to be short of required lectures. The learned counsel for the parties have not been able to refer to any other provision which could be construed to have bestowed upon the Principal, any such power, to relax these rules and permit the students deficient of lectures to sit in the examination. An argument can be raised that an authority, which has got the right to detain can also relax the rules and admit a student in the examination. The argument on its face is very fascinating but cannot be accepted on its deeper examination. From the apparent wording of para. 4 even, this power cannot be spelled out. The right to grant relaxation creates a vested right in a person which has to be clearly granted to an authority through clear provision of law. It may be kept in mind that the relaxation is, in fact, an act in derogation and in violation of a provisions of law. If the right to detain was provided into this Chapter, there was no impediment in the way of the Government to introduce such a power into this Chapter. The omission to add such provision is, therefore, a conscious act of the Government to maintain and keep the discipline.
16. Learned counsel for the respondents Nos.4 and 5 has tried to justify/prove the validity of the impugned order dated 23-8-2003 passed by the Punjab Minister for Health, by referring to Article 248 of the Constitution. The learned counsel has submitted that the Provincial Minister is not answerable to any Court for the exercise of power and performance of function of his respective office or for any act done or purported to be done in the exercise of those powers and for performance of those functions. The emphasis has been laid down upon the words "for any act done" by the learned counsel. The answer to this proposition is very simple one. For application of this Article 248 of the Constitution, the learned counsel has also to prove and to show that the act was done in the exercise of powers conferred by any law and in relation to performance of those functions. Because a Health Minister is not a person having unlimited and unrestricted powers to do all or any act, he wishes to perform. If a Provincial Minister has not been vested with the powers or performance of any function or act, he could not claim protection of the wordings of this Article of the Constitution. So, when confronted with this, the learned counsel referred to sub-Article 43) of Article 139 of the Constitution. By referring to it, he states that theGovernor is empowered to make rules for the allocation of the business of the Provincial Government. To augment it further, he has referred to the Punjab Government Rules of Business, 1974, which were framed under Article 139 of the Constitution by the Governor of the Punjab through Notification of 1st July, 1974. The learned counsel has referred to Rule 6 of the aforesaid Rules. This rule, as per learned counsel, provided a Minister with the power to conduct the business of his department. Rule 6 is reproduced hereunder, for ready reference:-- "6. Functions of the Minister. A Minister shall--
(a) be responsible for policy matters and for the conduct of business of his Department: Provided that in important political economic or administrative matters, the Minister shall consult the Chief Minister;
(b) submit cases to the Chief Minister as required M the provisions of these rules;
(c) keep the Chief Minister informed of any important case disposed of by him without reference to the Chief Minister; and
(d) conduct the business relating to his Department in the Assembly.
' Interpreting the aforesaid rules, learned counsel has relied upon clause (c) of the same, in which the Minister, if he has disposed of any case without reference to the Chief Minister, has to inform afterward to the Chief Minister..But having found himself on weaker position, in the last, he has switched over to Schedule VII Part-A of the Rules of Business and has referred to Serial No.20 where, the words "All cases of relaxation of Service Rules" have been used, to empower the Minister to grant the relaxation. The learned counsel has, accordingly, concluded with this reasoning that these words in fact are beneficial to the interest of his clients. But I am astonished as to how these words could help them. The wording of this Serial No.20 are itself suggestive of its applicability of those cases where Service Rules are involved and not to the case of respondents Nos.4 and 5, so, the reference to Rule 6 and thereafter to Serial No.20 of Part-A of Schedule VII, has been found to be of no use to the learned counsel for respondents Nos.4 and 5 because the words, on the face of it, have wiped out the arguments of the learned counsel and have proved their ineffectiveness with regard to the case of respondents Nos.4 and 5. The word "Service" has been used in it with its first letter in capital. Therefore, this exercise of the learned counsel has proved to be a non-gratifying provision for the aforesaid respondents because Serial No.20 of Schedule VII is clear in its scope, word and import, the meaning of which cannot he stretched on any far fetched idea to the facts of the present case. Accordingly, learned counsel for the respondents has failed to prove that the aforesaid Minister had the power to allow relaxation in the matter in dispute.
17. The learned counsel for the respondents Nos.4 and 5 has further argued that the petitioners had got no locus standi to file the instant writ petition as they do not fall within the definition of words used in the Constitution for "an aggrieved party". He has referred to 1990 PCr.LJ 1231 (Juvenile Jail Landhi, Karachi in Re: (Suo motu notice). There is no cavil to the proposition that under clause (a) containing sub-clauses (i) and (ii) of Sub-Article (1) of Article 199 of the Constitution, the words 'any aggrieved party", whereas in clause (c) of sub-Article (1) of the Article 199 of the Constitution the words used are "any aggrieved person" and in clause (b) consisting of sub-clauses (i) and (ii) of Sub-Article (1) of Article 199 of the Constitution find the word "any person". So, all these three clauses "any aggrieved party", "any aggrieved person" and "any person" have got different meanings, connotations and interpretations. In the case in hand the petitioners are invoking the provisions of Sub-Article (1) of Article 199 read with Article 25 of the Constitution. The words "any aggrieved party" has to be seen through the authoritative and propounded judgment of the superior Courts, which have laid down its definition in the following words:-- "A person who has a personal interest in performance of legal duty and that the non-performance of the duty is to result in loss of some "personal benefit or advantage or the curtailment of a privilege".
' In 1990 MLD 1428 Muhammad Farooq v. Vice-Chancellor, University of Azad Jammu and Kashmir and 2 others, the petitioner who was denied admission in the University was considered "an aggrieved party". In PLD 1975 Lahore 544 (Munawar Ali and 5 others v. Secretary to the Government of Punjab and 2 others) and 1981 CLC 321 (Khawar Ijaz and another v. Government of the Punjab), it was held hat a person was aggrieved when he had got an interest in the performance of legal duty. As held in 1985 SCMR 666 (Azizuddin v. Muhammad Ismail and others), if rights of person can be affected or if a person can gain advantage with regard to his rights by getting a declaration, he has got locus standi to invoke these provisions of Article 199 of the Constitution. After this interpretation, it becomes explicit that to claim the right and to get it exercised under Article 199 (1) of the Constitution the person coming to this Court has to show and prove the following requirements before he could be granted the relief:--
(i) petitioners' personal interest;
(ii) that must be in the performance of legal duty;
(iii) he must be benefited/affected from its performance; and
(iv) benefit, advantage may be small or large.
' To examine the case of petitioners in the light of these requirements, petitioners are loser of this case, because it has been found and held by me that the orders of relaxation by the Minister and the above noted Principal were not legal. After making declaration of such a nature, if this Court directs the Principal to grant relaxation, it would amount and tantamount to get performed from the Principal a duty, an act which has no been considered by the Court itself a legal one. Therefore, it has to be kept in mind that the direction, order or instructions to be issued by this Court would not compel or cause the person or an authority to perform an illegal act or omission, as it would result in giving birth and creation of illegal and unlawful child of law whose existence would become a perpetual painful succession. So, the petitioners cannot be granted the declaration prayed for and their petitions merit dismissal on this sole account.
18. The last question which is of vital importance and consideration is as to whether the petitioners should be treated alike as those of respondents Nos.4 and 5 in the matter of relaxation of their deficiency in the attendance of lectures or not? Viewed from the fact that the dispute relates to the students who have got an edge of special paternal feelings, if considered through this out look, they earn concession/relaxation but seen from another angle of maintaining discipline and importance of imparting of quality education, it being a branch of human suffering, the petitioners are not to be granted any relaxation. Students of today would be licence holders of tomorrow with conferred powers to play with the fate of ailing humanity. The qualitative education would produce a doctor of competence while relaxation would bring in a bad addition. Fixation of percentage of attendance of lectures, in fact is a necessary requirement for reception of a prescribed standard quality of education. Therefore, it is a requirement of vital importance to maintain the standard.
19. It may be noted that once relaxation is granted, it would open the flood-gate of concessions, which will give birth not only to nepotism, favourtism but to corruption also. This would cause the collapse ofwhole qualitative system of imparting of the medical education. There may be cases of hardship, difficulties and of unavoidable circumstances but the thought to be given is as to whether such a power has to be conferred upon an authority or not and what would be the result of such grant of power to any authority. The consequences have come out from and have brought before us the result from a wrong precedent set out from the order of the Minister of Health.
20. So, the powers granted by the Constitution to this Court are to be exercised in aid when a person claims right or discrimination on the basis of a valid and legal order. As found from the discussion dilated upon the foregoing pages, the order of relaxation passed by the Health Minister and implemented by the Principal, QAMC, Bahawalpur having been found illegal, without lawful authority, it cannot be used as a precedent for the present petitioners because an illegal/invalid/unlawful order cannot be used to gain benefit or made the basis for obtaining the assistance form this Court. This Court would not act to enternizing and expanding the illegal act and orders in the field. It would rather curb such practice and orders and would nip the evil in the bud as to bar its more creation and implementation in future.
' With these observations, all these writ petitions are dismissed with no order as to costs.